P L D 1971 Karachi 1061 (PLP)

S. A. NUSRAT, J.‑‑The petitioner No. 1 owned agricultural land in district Nawab Shah and during the period between 1‑3‑1967 and 19‑12‑1971 he made certain alienations. Consequent upon the promulgation of Land Reforms Regulation, 1972 (Martial Law Regulation 115), hereinafter referred to w the "Regulation", the petitioner No. 1 filed a declaration disclosing the aforesaid alienations, one of which was by way of gift of 100.30 acres of land in deh, 57‑Jamrao, made on 15‑1‑1971 In favour of his wife, petitioner No. 2 herein. This petition Is concerned with the said alienation only. The record of right was duly mutated on 26-6‑1971, in favour of the petitioner No. 2 on the bass of the said gift and transfer was thus legally complete. The Land Commissioner, Sind, scrutinized the aforesaid alienations under paragraph 7 of the Regulation and by order dated 4‑9‑1971 held the same to be in order. He observed that the alienation In favour of petitioner No. 2 was covered by Explanation 1 to para. 7(1) (b) of the Regulation ,After more than 3 years the respondent No. 1, in exercise of power under paragraph 29 of the Regulation, issued a show‑cause notice and after hearing the petitioner No. 1 held the alienation made in favour of petitioner No. 2, to be void on account of contravention of the provisions of paragraph 25 of the repealed Martial Law Regulation 64 of 1959, because after making the said gift the petitioner No. 1 was left with only 39.30 acres of land, which was leas than the required economic holding of 64 acres. The respondent No. 1 ordered that area in excess of 120(10 P. I. Us. should be resumed by the respondent No, 2. This order has been challenged by the petitioners through this petition. 2. Mr. Khalid M. Ishaque, learned counsel for the petitioners raised only one contention before us. According to the learned counsel the transfer of the whole area gifted to the respondent No 2 could not be rendered void on account of contravention of para. 25 of MLR 64/59, but transfer only of that portion would be void which by itself reduced the balance left with the alienator below the economic holding. The "economic holding" being 64 acres, the area left with the petitioner No. 1, after alienation of 100.30 acres, in favour of petitioner No. 2, was 39.30 acres and was short by 24.10 acres for the purpose of making an "economic holding." Accordingly it was contended that the gift was void only to the extent of 24‑10 acres and was valid for the balance. 3. Para. 25 of the West Pakistan Land Reforms Regulation (MLR 64) of 1959 reads as follows :‑‑ "25. Restrictions on alienation of holdings.‑‑(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding Provided that such a person may alienate his entire holding. (2) No person owning an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding : Provided that such a person may alienate his entire holding. (3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which miry reduce the size of his holding to an area less than the area of subsis tence holding : Provided that such a person may alienate his entire holding. (4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any par! of his holding : Provided that he may alienate his entire holding. (5) Any alienation made in contravention of the provisions of this paragraph shall be void." The petitioners' case admittedly falls under sub‑para. (1) of para. 25. In sub‑paras. (1) and (3) there is no restriction on the sale of one's entire holding but, if choice is made to retain some land, one must keep his holding intact within the prescribed limits mentioned therein. The restriction on transfer of any 'portion' or 'any part of holding' by a person holding an economic holding or an area equal to or lees than the area of subsistence holding is absolute as laid down in sub‑paragraphs 2 and 4 but sale of entire holding is not barred. The emphasis in sub‑paras. (1) and (3) is in respect of portion of holding and redaction of the size of one's holding below the prescribed limits. It, therefore, follows that the bar on alienation contained in sub paras. (1) and (3) is not absolute and relates only to that portion which may reduce the balance held by a person after alienation, as one must, in any case, hold an area equivalent to an economic holding, or subsistence holding, as the case may be, if he does not part with his entire holding. If any Iaw intervene the same cannot but operate within the ambit of its limited sphere of mischief and cannot destroy the transaction as a whole. The provision contained in the said para. 25 of the Regulation calls for strict construction because any statute which tends to infringe upon a vested right should ii considered so as not to destroy and impair the same except to the extent the statute itself requires. The following passage from Crawford's Statutory Constructions at page 486 may be advantageously quoted :‑ "Statutes or Ordinances which restrain the exercise of such rights, or impose restrictions upon the use of private property will always be strictly construed, and the scope of such statutes or ordinances cannot be extended to include limitations not therein clearly prescribed." 4. Mr. Khalid Ishaque in support of his contention placed reliance on a D. B. decision of Lahore High Court reported as Ghulam Mehr v. Chief Goad Commissioner, Punjab and others (P L D 1974 Lah. 520). In that case also the point in issue was similar as raised in this petition with regard to the interpretation of sub‑para. (3) of para. 25 of Martial Law Regulation 64/1959, which is in similar terms as sub‑para. 1. It was hold that the bar to alienate provided in the said sub‑para. was not absolute and pertained only to relevant fraction involved in any particular case. Mr. Mohammad Sharif, learned counsel for the respondents, however, attempted to distinguish the said judgment on the ground that what was discussed in the said case was a transaction of a different nature whereas in the instant case the alienation was made by way of gift. We do not find any substance in this contention. All kinds of alienations are "transfer of land" within the meaning of para. 7 of Land Reforms Regulation, 1972. In the case of a valid gift, a donor having gifted a property ceases to have any domain over the same, has no power to revoke the gift and donee acquires vested interest in the property. It is not a contract but a voluntary transfer without consideration and the law relevant to cases involving reciprocal promises to do certain things which are legal, and, secondly, under specified circumstances, to do certain other things which are illegal or inability to perform ;dart of contract, where part unperformed is small, or part un performed is large or performance of independent part of contracts laid down in section 57 of the Contract Act, sections 14, 15 and 16 of Specific Relief Act or doctrine of frustration of contract, as referred to in the learned judgment of the Lahore High Court, are also not to be called In aid in the case of a valid gift. 5. The learned counsel for the respondents further contended that the bar of alienation contained in para. 25 of M. L. R. 64 was absolute and stated that part of the transaction being tainted with illegality there could be no severance of the illegal or the legal part. In this connection he referred to Mills v. Donhem ((1891) 1 Ch. D 576) and Baker v. Hedgecock ((1888) 39 Ch. D 520). Both these decisions are irrelevant bemuse the same involved consideration regarding the validity of agreements in restraint of trade. 6. In the result it Is held that the respondent No. l passed the impugned order dated 18‑8‑1976 without lawful authority and the same Is of no legal effect to the extent that the entire gift made in favour of the petitioner No. 2 b not invalid. The impugned order, therefore, will hold good to the extent of an area of 24.10 acres only, out of 100.30 acres of land gifted In favour of petitioner No. 2 in Deh 57‑Jamrao, district Nawabshah, and the direction of respondent No. 1 In the said order for resumption of land will also be confined to the said extent only. The petition is allowed to the extent mentioned above, with no orders as to costs. S. A. H. Petition partly allowed. are irrelevant because the same involved conelderation regarding the validity of agreements in restraint of trade. 6. In the result it is held that the respondent No. i< paused the impugned order dated 18‑8‑1976 without lawful authority and the same is of no legal effect to the extent that the entire gift made in favour of the petitioner No. 2 b not invalid. The impugned order, therefore, will hold good to the a:tent of an area of 24.10 acres only, out of 100.30 acres of land gifted in favour of petitioner No. 2 in Deb 57‑lamrao, district Nawabahah, and the direction of respondent No. 1 in the said order for resumption of land will also be confined to the said extent only. The petition h allowed to the extent mentioned alcove, with no orders as to colts. S. A. H. Petition partly allowed.