P L D 1966 Supreme Court 84 (PLP)

CORNELIUS, C. J.‑This appeal by special leave is brought before the Court to call in question' an order of the Chief Land Commissioner, West Pakistan, made under Martial Law Regulation No.

64. The facts may be conveniently stated as under. The large landed estate of the late Mir Muhammad Bakhsh Khan TaIpur fell into possession upon his death in 1940. The heirs under Muslim Law were his nephew, Mir Bandeh Ali Khan Talpur, his widow the appellant Mst. Bibi Ayesha and his sister the appellant, Mst. Bibi Dhano. The following statement made in the petition for special leave to this Court will indicate the manner of the succession which actually took place: "That after the death of the aforesaid Mir Muhammad Bakhsh Khan Talpur the aforesaid agricultural lands were, however, entered in the revenue records in the name of respondent No. 2 (Mir Bandeh Ali Khan Talpur) only since according to an old and established custom of the Talpurs family the land was always allowed to remain in the names of the male members of the family‑ on the revenue records to eliminate the possibility of the women of the family being made the subject of revenue process, etc. The petitioners, however, have enjoyed the produce of the land in proportion to their shares and have at all material times been (deemed to be) in joint possession of the same." This will show that the two ladies did not appear in the revenue records as owners of the estate, and consequently, by virtue of the definition given to term "existing owner" by the Land Commission, exercising power under paragraph 4 (5) of the Regulation, they could not qualify for treatment as "existing owners". It should be mentioned that the definition aforesaid was confined to "a person entered as an owner in the revenue records on or before the 7th February 1959, and the person who had become entitled to any land on account of inheritance before the said date although not entered as such in the revenue records. Under the Regulation, an "existing owner" was entitled to retain for himself, an area equivalent to 36,000 produce index units, as well as certain supplements, according to his choice, the rest being resumed by Government. Under paragraph 11 of the Regulation, special provision was made for "female dependents," viz., that the existing owner holding ancestral land was allowed to transfer by way of gift to each such dependent a "maximum area equivalent to six thousand produce index units". The condition of being a "female dependant", to qualify for such a gift was that the Commission should be satisfied "that the dependent in question is a person who was entitled to inherit her share out of the property in question at the time when succession opened, but for reasons of custom or usage became dependent on the applicant instead of inheriting the property in her own name." The order of the Land Commission shows that Mir Bandeh Ali Khan applied to be allowed to make a gift under paragraph 11 of 6,000 produce index units to Mst. Bibi Ayesha and an equal amount to his mother Mst. Bibi Dhano. In each case, Deputy Land Commissioner refused permission, and appeals were taken before the Land Commission. The Land Commission found that Mst. Bibi Ayesha was entitled to a 4‑anna share under Muslim law of the properties left by her husband, but "because of custom and tradition she was not given a share, and that the entire property passed on to the petitioner on whom Mst. Bibi Ayesha has been dependent all the time." Accordingly, the gift was permitted in Mst. Bibi Ayesha's case to the maximum extent of 6,000 produce index units. In the case of Mst. Bibi Dhano, however, the gift was refused on the ground that she was not `dependent on the applicant' (i.e., Mir Bandeh Ali Khan Talpur) since Mir Bandeh Ali Khan's' father, that is to say the husband of Mst. 8ibi Dhano was alive, and she was "obviously dependent on her husband, who is a very well‑to‑do man, owning over 5,000 acres of land". The two ladies made applications to the Commission to be treated as "existing owners" on the ground that they were "co‑sharers in the land under all canons of law legally entitled to receive our share in mukkadami rights". They denied that they were dependent on Mir Bandeh Ali Khan or on any other man, and claimed that they were getting their full share of batai from Mir Bandeh Ali Khan. Upon this request, the Chief Land Commissioner made an order that the claim to be "existing owners" could not be entertained by the Commission, as they could not bestow any title on any claimant, but it was open to the petitioners "to go and obtain a decree from the competent Court of law" to establish their title after which they could apply afresh to the Commission for "re‑determination of the ceiling under Martial Law Regulation No. 64". Accordingly, the ladies filed suit and obtained' a decree to the effect that they were heirs under Muslim Law of Mir Muhammad Bakhsh Khan Talpur as well as a declaration of the areas to which they were respectively entitled. When they presented this decree before the Land Commission, they were told finally that the Chief Land Commissioner declined to accept the decree "for the purpose of land reforms" and that the matter should stand as it had already been determined. In other words, with respect to the estate which stood in the name of Mst. Bandeh Ali Khan, Mst. Bibi Ayesha was permitted to receive a gift from him of 6,000 produce index wits, but Mst. Beicbei Dhano was to receive nothing. It was against this order that this Court on the 23rd May 1962, acting under the Constitution of 1956, granted special leave to the ladies to appeal, formulating the following questions:‑ (1) Whether the Chief Land Commissioner had jurisdiction to make the order in question without giving an opportunity to the parties to show cause against it?; and (2) Whether the Land Commission could ignore a decree of the competent Court determining ownership rights in land? We have heard Mr: Abdus Sattar Pirzada in support of the appeal and the Advocate‑General of West Pakistan in reply. The questions which arise in this case for decision are precisely those which have been considered in my judgment in the appeal of Mst. Hajiani Civil Appeal No. K‑53 of 1963 in which judgment has been pronounced today. The only point on which reliance may possibly be placed for taking the present case out of paragraph 11 of the Regulation is that arising from the allegation of the4appellants that they were receiving shares of the produce in proportion to their shares in the estate according to Muslim Law and were "not dependent on any man". These two questions were not examined in the Civil Court, whose decree is confined to a declaration of the rights of these ladies to inherit a share out of the estate when it fell into possession in 1940 and the' determination of the exact extent of their respective shares. That finding by itself is not sufficient for supporting a claim to be in no way dependent upon the existing owner or more generally, to be outside the purview of paragraph

11. As I have pointed out in my judgment in the case of Mst. Hajiani, paragraph 11 makes special provision for ladies who though entitled to inherit shares in an estate when it fell into possession were not entered as owners in the revenue records, but under a custom applicable to their families, the name of a male member always appeared in those records as the owner, and as for the ladies, their expenses were borne out of the estate. This being a special provision, the conditions of whose application are clearly present m this case, the Land Commission authorities, were in my opinion fully justified in treating the case of these ladies exclusively under this provision, and refusing to allow them the benefit of the more general provision relating to "existing owners". A diminution of right is undeniably involved, but the law, as laid down in paragraph 11 is clear, and in my view, it leaves no option to the Land Commission authorities to deal` with the case otherwise than under that paragraph. As to the decree of the Civil Court, as I have said in the case of Mst. Hajiani, the Regulation provides an absolute safeguard for the power of final decision being vested in the Commission. This is equally binding on the Commission itself so that the Commission is powerless to waive or forego its right and duty in this respect. Therefore, the permission granted by the commission to the ladies to have their rights declared by Civil Court did not carry 4nything in the nature of an assurance of compliance with that decree. It is clear that the Commission was like o be assisted in the exercise of its powers by obtaining a clarification and determination of the rights of the ladies, through the agency of the Civil Courts, which are well qualified to perform that function. Such a determination would not necessarily be of value only for determining rights as an "existing owner", as it might be in the case of a male co‑sharer whose name happened to be excluded from the revenue records or even of a female so situated, but who was not dependent upon the estate. For, where the claimants were, plainly "female depen dents", determination of the extent of their rights by a Civil Court would be of assistance to the Commission in determining how much land could be allowed to be gifted to them ‑ within the maximum provided by paragraph

11. But in any case, whatever action was taken by the Commission would be a matter within the final and exclusive jurisdiction of the Commission to take and would not be governed by a decision of Civil Court. The argument of the Chief Land Commissioner in the order refusing permission to Mir Bandeh Ali Khan to make a gift to his mother who was plainly dependent upon her own husband's estate which was very large, is clearly undeniable. She could not be thought to be "dependent upon the applicant" i.e., her own son, in the circumstances. In the view that I have taken above, she would clearly not qualify for treatment as an "existing owner" in respect of the land entered in the name of her son as heir to her late brother. For these reasons, I would dismiss this appeal, but having regard to all the circumstances I would leave the parties to bear their own costs. A.H. Appeal dismissed.