1974 PLP 448 (SCMR)

(3) The petitioner's father Syed Ghulam Mujtaba Shah was declared a natural guardian of the petitioner and therefore was competent to make the gift on his behalf in favour of his infant sister. It must be conceded at once that "person" includes a minor and it is precisely for this reason that the gift by the petitioner, being a declarant under the Regulation, came in for the Scrutiny of the Land Commission Authorities. However, to adjudge the remainder part of the argument of the petitioner's learned counsel, it is necessary to reproduce paragraph 7 of the Regulation as amended by Punjab Ordinance XV of 1972, in so far as it is relevant to this case: "

7. Certain transfers void.‑(1) Save as otherwise provided in this Regulation:‑‑ (a) The transfer of any land, and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever in respect of any area on or after the twentieth day of December 1971. by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of unmitigated land ..shall be and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date: Provided that .............................................................................. (b) save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of land and the creation of any right or interest in or encumbrance of any land made in any manner whatsoever by any person holding on first March 1967 an area equivalent to more than fifteen thousand produce index units ............ shall be and shall be deemed always to have been void and the land so transferred or the land on which the right, interest or encumbrance was so created shall be and shall be deemed always to have been owned or possessed as the case may be by the person by whom it was owned or possessed immediately before that date: Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso, in no case be held by the Commission to be a bona fide transaction: Provided further that nothing in this clause shall apply to‑‑ (i) any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift or otherwise made by a person in favour of his heirs; or (ii) any transfer of land or right or interest therein by way of gift, made by a person in favour of his widowed or unmarried sister, who has not received her due share of inheritance or ancestral land; or (iii) any transaction whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated . A plain reading of the above provision makes it clear that it is not in the nature of an enabling or empowering provision and therefore cannot be read to validate what is invalid under the principles of Muslim Law for that matter under any other law. Rather it is prohibitory in its context; its sole object is to render void any transfer of land or creation of any interest therein by a person of the relevant category on or after 20‑12‑1971 and also to invalidate the transfer or creation of interest in land by any such person unless the Land Commission "is satisfied that it was a bona fide transaction". The two provisos to clause (b) lay down what shall be bona fide transactions for the purpose of that clause. It is fallacious to suggest that these provisions were intended to empower a minor governed y Muslim Law and failing under relevant category of persons to make a gift which the Principles of Muslim Law do not permit. If the argument were to be stretched to its logical conclusion, it would indeed lead to startling results. It will also render valid a transfer by a lunatic or any other person under a disability under the law. Such absurd results are unthinkable rather it is clear from the language of the statute that intention is to nullify certain kind of transfers of land or creation of interest therein which but for the Regulation would have been perfectly valid. Therefore, if any transfer is void ab initio because transferor is under a disability, it is no transfer in the eye of law and it can be struck down on that score, independently of the provisions of the statute. Therefore the learned Single Judge and the Chief Land Commissioner were right to treat the impugned gift by the petitioner a nullity. Nothing turns on the so‑called declaration by the Guardian Judge that Ghulam Mujtaba Shah being the petitioner's father was his natural guardian. It is pertinent to point out that the petitioner's father's application for appointment as legal guardian was dismissed because he was natural guardian of the minor. That connotes guardianship of the person and property of the minor for the purpose of its management. It is wholly wrong to think that as natural guardian of his son, he was invested with plenary power to transfer his property. Law is very jealous of the rights of minors in their property and does not countenance its transfer except under very stringent conditions set out in monograph 362 of Mulla's Principles of Muhammadan Law (16th Edn.), or in case of a guardian appointed by the Court, by the leave of the Court, which is granted only if it is in the interest of the minor. The gift in the instant case does not satisfy any of these conditions. For the foregoing reasons, we do not find any merit in this petition which is dismissed. Petition dismissed.