P L D 1962 W (PLP)

Allah Wasaya v. Ghazi P L D 1960 W. P. (Rev.) 88 ref. S. Ata Ullah for Petitioner. Said Akbar for Respondents. This order will dispose of both the connected Revision Petitions Nos. 237 and 238 of 1961‑

62. The parties are different but the legal issue involved is the same and for that reason the two petitions can be taken up together. The undisputed facts are as follows: ‑ In both cases a widow with a limited interest sold the land held by her by means of a registered deed. The mutations entered to incorporate the transactions in the revenue record were rejected by the officers below on the strength of a ruling given by Mr. M. Z. Khan in Allah Wasaya v. Ghazi (P L D 1960 r. P. (Rev.) 88). The alienees have come up in revision. The only point taken up is that the sale should at least hold good till the death or remarriage of the widow. In any case the transaction is not void under any existing law and is only voidable at the instance of a party who feels aggrieved by the alienation. Right upto Independence in a number of important rulings a distinction between void and voidable transaction was made. Broadly speaking a void transaction is one which is against a statute and is thus unlawful in itself. A voidable transaction is one which is not unlawful in itself but can be avoided at the instance of the parties. An alienation of land made by a limited owner under the customary law, without a valid necessity is a voidable transaction liable to be set aside by a Civil Court. But the other party may not go to a Civil Court; and get the transaction annulled. Anyhow a Revenue Office is not concerned with intricate questions of law and custom if he finds that the factum of a transaction is duly attested by the alienor he should affect a mutation in accordance with the transaction whether it be against the past or prevailing custom. The aggrieved party may sue in the Civil Court to get the transaction set aside as invalid but till the aggrieved part succeeds in proving its invalidity, the transaction has to be treated by the Revenue Officer as a valid one. In the case of void transactions the learned Financial Commissioners have held that these transactions should not be incorporated in the revenue records. Voidable transactions were treated differently and were given effect in the revenue record leaving it to the party who felt aggrieved to seek his remedy in a competent Court of civil jurisdiction. Some confusion arose later in the ruling relied upon by the respondents. Mr. M. Z. Khan held that a limited owner has no right to sell his property and the transaction was void ab initio. With due deference to the opinion expressed by him, in my humble opinion this is not necessarily so; as the Civil Courts have allowed alienations made by limited owners and in certain cases allowed them to stand. These alienations are thus clearly voidable transactions. I would thus abide by the views consistently held by a number of eminent Financial Commissioners including Mr. Akhtar Husain. It would be unfair to the parties and also to the revenue officers if the latter were allowed to go into complicated question of law and fact without any written pleadings of the parties, striking of issues thereupon and absence of any evidence on those issues. I would accordingly accept both the revision petitions, set aside the orders passed and direct that alienations mentioned in the registered deeds should be incorporated in the revenue records with the simple modification that the alienor in each case can only transfer what she had and no more. K. M. A. Petitions accepted.