1987 PLP 28 (CLC)

‑‑‑Para. 7(1)(b), Explanation III, proviso‑‑Bona fide of transactions‑ Determination of‑‑Criteria laid down in Explanation III, under para. 7(1)(b) of Land Reforms Regulation, 1972 for determination of bona fides of transaction, held, would become irrelevant in view of proviso of para. 7(1)(b) which clearly and specifically excluded all transactions in favour of heirs from requirement of scrutiny as regards their bona fides. P L D 1979 Lah. 375 rel. (c) Land Reforms Regulation, 1972 (M.L.R. 115)‑‑ ‑‑‑Para. 29‑‑Revisional jurisdiction of Federal Government, exercise of‑ Where transactions were in favour of heirs, Federal Government, held, would have no jurisdiction to determine bona fides of such transactions. Khawaja Ahmad Tariq Rahim for Respondents (in both Cases). These cases have been remanded to the Federal Land Commission for "proceeding with the matter after notice to all the parties concerned in accordance with law" vide Lahore High Court order, dated 2‑12‑1985 in Writ Petitions Nos. 123 and 124 of 1977. This order shall dispose of both the revision petitions as the circumstances and the points at issue in both are identical.

2. Mutation No. 1675, dated 25‑8‑1970 for sale of 504‑4‑13 Acres in village Dullewala and Mutations Nos. 571 and 572, dated 25‑8‑1970 of gift of 375‑2‑16 Acres and 250‑1‑17 Acres respectively in village Gadai, Tehsil Bhakkar, District Mianwali, were sanctioned on behalf of the declarants Ghulam Mustafa and Muhammad Hussain in favour of their respective wives and children. On the report of the Deputy Land Commissioner, Mianwali that the transactions were valid, the Land Commissioner, Sargodha Division through separate orders both dated 12‑6‑1972 held that these alienations being in favour of heirs as defined in paragraph 7(1)(b) of Land Reforms Regulation, 1972 were in order. Federal Government's suo motu revisional jurisdiction under paragraph 29 of the Land Reforms Regulation, 1972 was exercised in these cases on the basis of Federal Land Commission Inspection Team's reports submitted after examining the declarations and the land revenue record and notices were accordingly issued under paragraph 29 to the parties.

3. The parties concerned were heard through their counsel. The objections raised in connection with Mutation No. 1675 of village Dullewala which was a joint sale by the two declarant brothers Ghulam Mustafa and Muhammad Hussain to their respective sons, was that no documentary proof of payment of consideration money was produced, that only one of the sons, Elahi Bukhsh, was present before the Revenue Officer at the time of sanction of the mutation although all the sons of both the declarants were major, that there was no independent source of income of the vendees from which consideration money could have been paid, and that, finally there was no entry in the relevant Khasra Girdawari to indicate delivery of possession to the vendees before the crucial date, entries in Khasra Girdawari for Kharif 1971 and Rabi 1972 being fictitious and over‑written. In respect of Mutations Nos. 571 and 572 of village Gadai, the objections were that these transactions were in the nature of 'tamleek' in favour of wives, sons and daughters and that none of the donees was present before the Revenue Officer at the time of sanction of mutations to admit delivery of possession and that entries in the Khasra Girdawari showing transfer of possession in favour of the donees were fictitious and over‑written. For these reasons the mutations concerned were to be regarded as void for purposes of Land Reforms Regulation, 1972 and holding of the declarants were to be redetermined accordingly after excluding areas of land claimed to have been alienated through these mutations.

4. Counsel of the respondents submitted that in case of all these transactions the actual factum of sale/gifts was not in question as these had been duly sanctioned in accordance with law through Mutations Nos. 1675, 571 and 572 and authenticity of the sanction of the mutations and entries in respect thereof have not been challenged at any stage. What in fact has been questioned by raising the objections cited above are the bona fides of these transactions. In other words, it is conceded that the mutations in question were duly sanctioned in accordance with law but the transactions themselves were alleged to be in the nature of ' Bainami' transactions inasmuch as consideration was not allegedly paid in case of the sale transactions and delivery of possession did not allegedly take place in case of both the sale and the gift transaction.

5. In so far as the gift mutations were concerned, the counsel submitted that under paragraphs 153 and 155 of Mohammedan Law by Mulls no transfer of possession was require) in case of a gift of immovable property by husband to his wife or by father to his minor children. The counsel produced a school leaving certificate of Rehmatullah son of Ghulam Mustafa showing his date of birth in order to prove that Rehmatullah respondent was minor at the time of the gift transaction. But apart from the Mohammedan Law the counsel argued that under paragraph 7(1)(b), bona fides of a gift in favour of heirs which include wife, sons and daughters could not be questioned and he relied on the Supreme Court judgment 1984 S C M R 1110 which laid down that the Federal Land Commission had "no jurisdiction in law to consider the merits of the transaction made in favour of the heirs during the period prescribed in clause (b) of paragraph 7 of the Regulation". I agree with the counsel as the law on this point is very clear. The actual fact of the gifts through Mutations Nos. 571 and 572 having been admitted no further scrutiny as to the bona fides of these gifts is called for and these transactions are, therefore, declared valid for purposes of Land Reforms Regulation, 1972.

6. As regards the joint sale transaction through Mutation No. 1675 in village Dullewala by the declarant brothers in favour of their respective sons, the counsel submitted that this transaction was also exempt from scrutiny of its bona fides under paragraph 7(1)(b) of Land Reforms Regulation, 1972 by virtue of the word "otherwise" the proviso to section 7(1)(b) which reads as follows: "provided further that nothing in this clause shall apply to any transfer of land or creation of any right or inter in or incumberance on any land by way of gift or otherwise made by a person in favour of heirs." In order to show that the word "otherwise" included sale transactions, the counsel relied on Lahore High Court judgment 1979 P L D 375 which has laid down that the word in paragraph 7(1)(b) included sale transactions also. Such being the case questions such as adequacy of consideration, delivery of possession, presence of minor vendees at the time of sanction of mutation etc. which are in the nature of criteria laid down in Explanation III under paragraph 7(1)(b) of the Land Reforms Regulation. 1972 for determination of the bona fides of transaction become irrelevant because the proviso to paragraph 7(1)(b) clearly and specifically excludes all these transactions in favour of heirs from the requirement of scrutiny as regards their bona fides. In view of this position of law, the Mutation No. 1675 in village Dullewala through which the declarants jointly sold an area of 504‑4‑13 Acres to their sons is also declared valid for purposes of M.L.R. 115.

7. There is, therefore, no ground for proceeding against the declarants in these two cases in exercise of the suo motu jurisdiction of the Federal Government under paragraph 29 of M.L.R.

115. Notice issued to the respondents, therefore, are hereby vacated. A . A Order accordingly