P L D 1979 Karachi 200 (PLP)

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3. That I say that Syed Ghulam Haider Shah son of Nawab Shah owned two pieces of land in Deh 22‑Deno Shah Taluka Sakrand, District Nawabshah. The first piece of land measuring 271.15 acres was alienated by way of gift by said Syed Ghulam Haider mir Hussain Shah and record was mutated in favour of the petitioner No.

3. That there was another piece of land measuring 218.27 acres in which Syed Ghulam Haider Shah had share of 5 annas 4 pies. On death Syed Ghulam Haider Shah left the following heirs:

(1) Syed Ghulam Haider. (2) Syed Amir Hussain Shah Shah. (3) Syed Nawaz Ali Shah. (4) Daughter No. 1. (5) Daughter No. 2. (6) Daughter No. 3. (7) Wife No. 1 (8) Wife No.

2. The said land still stands in the name of late Ghulam Haider Shah and no approach whatsoever has been made for affecting Fotikhatabadal of late Syed Ghulam Haider Shah in the Record‑of‑Rights in accordance with the law of inheritance. If and when such application is made the same would be considered by the Revenue Authorities concerned in accordance with law."

5. On a reading of the two paragraphs appearing in the additional counter‑affidavit of Mr. Muhammad Ramzan Bhargari the position that emerges is that deceased Ghulam Hussain Shah initially owned two pieces of land respectively measuring 271.15 acres and 218.27 acres in Sakrand Taluka. The first piece of 271.15 acres was alienated by deceased Ghulam Haider Shah during his lifetime by way of a gift in favour of petitioner Amir Hussain Shah and Mst. Malook, whereas the other piece of land measuring 218.27 acres stood in the names of deceased Ghulam Haider Shah, and Mst. Malookzadi in respective shares of 1/3 and 2/3. Admittedly, this piece of land in which Ghulam Haider Shah had a 1/3 share (which would be roughly 73 acres) continued to stand in the name of deceased Ghulam Haider Shah until the gift made by petitioner Amir Hussain Shah in favour of the two female petitioners. We have calculated and found that the share of each one of the female petitioners would be approximately 7 acres so that if any land was gifted by Amir Hussain Shah in favour of the two female petitioners, the validity of such gift would have to stand the test provided in proviso (ii) appearing in paragraph 7 of M. L. R.

115. The impugned order discloses that the total area transferred by petitioner Amir Hussain Shah to the twn female petitioners was 224‑31 acres. On such state of facts Mr. S. M. Sadiq learned counsel for the petitioners, has contended that proviso (ii) in paragraph 7 of M. L. R. 11 5 does not impose any limit in regard to the area of land gifted by a person in favour of an unmarried sister who had not received her due share of inheritance of ancestral land.. To put it in simple and illustrative language his contention is that if an unmarried sister had received 5 acres less than due share of inheritance, an unlimited area could be transferred to her by way of gift and such gift would also be protected by the said proviso. This proviso reads as follows :‑ "Provided further that nothing in this clause shall apply to‑

(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 of ancestral land."

6. We now proceed to examine the contention of Mr. S. M. Sadiq. The ingenuous argument may look half attractive at the surface but when considered in the light of the objects of the enactment, its persuasive force' loosens. The words "due share" appearing in proviso (ii) in paragraph 7 of the Regulation provide a safe‑guide and help interpretation consistent with the objects of the enactment. These words connote that a gift to the A extent that puts the donee at the level of legatee is valid. Gifts are permitted only to such extent as may enable a deprived heir get his rightful share and no more. On the other hand if we are to interpret the proviso as meaning that a gift of an unlimited area of land would be considered valid solely because a female heir had by inheritance obtained less land than her due share, we would not only destroy the patent effect of the words "due share" brut would also be permitting a fraud on the statute. It may also put a female heir mentioned in proviso (ii) at a position of unjust advantage. e The purpose of the several statutes, viz. Martial Law Regulation No. 64 of 1959, Martial Law Regulation No. 115 of 1972 and Land Reforms Act II of 1977 was to reduce the large holdings of land and the purpose underlying proviso (ii) in paragraph 7 of Martial Law Regulation No. 115 was also to provide an equitable share of lawful inheritance for female heirs, who very often were deprived of their land by the male heirs for a variety of reasons. However, if the proviso is interpreted to mean that gifts of unlimited area are also covered the very object of reducing holdings would be, frustrated.

7. It is then contended by the learned Advocate for the petitioners that if the law‑makers intended to limit the extent of the gift the proviso could have been couched in a different language or some words to such effect should have found a place in the relevant provisions. We are of the view that the words "due share" in the proviso clearly convey this intention of the law‑makers. The best test, in such context is to view the subject matter and the object of the enactment and to adopt a meaning which tends to accomplish the purpose of the law in question, the obtaining of a result intended by the law‑givers and also not to be oblivious to the consequences of adopting one meaning rather than the other if such mod runs contrary to the objects of the enactment. On a careful consideration proviso (ii) in paragraph 7 of Martial Law contemplate gift of an unlimited area or in Q which the female heirs would be entitled as heirs, of course after taking into consideration the area already obtained and the maximum limit of holding imposed by clause (1) of the same paragraph. The illustration stated in the earlier part of this judgment would make the compulsion of such intention clear.

8. The next point that was urged before us was that the rules of natural justice, in so far as they relate to hearing a party before passing an adverse order bad not been followed, because the impugned orders had been passed without any notice to the female petitioners. In that behalf the allegation of the petitioners bas been denied in the counter‑affidavit and the petitioners have been put to strict proof. We have found that the appeal which was heard by the Additional Chief Land Commissioner, Sind was filed by all the petitioners and in the title of the order it is stated that Mr. Kazi Muhammad Saleh appeared as counsel for the "petitioners". In the order itself there is a mention about the appeal being directed against the "rejected appeal of the appellants" What is more that the case of all the petitioners before us was considered by the Additional Chief Land Commissioner who recorded his findings on the relevant aspects of the case. Additionally the memo of the present petition discloses that the petitioners had even preferred a revision application before the Federal Land Commissioner and while revision application was pending the constitutional jurisdiction of this Court was invoked. It is stated that this was done because orders on stay application had been delayed and there was a threat of resumption of land. No documents has been placed before us to support such assertion. Even the memo of the appeal or application which led to the order of the Additional Chief Land Commissioner has not been produced, presumably because such remedy was invoked by all the petitioners. We are of the view that even this contention is neither substantial nor substantiated.

9. For the above reasons we are of the view that the gift of such area, which falls short of the area legally heritable by the two female petitioners, has to be recognized but the gift in regard to the area in excess of their hereditary entitlement is void. We would, in these circumstances, dismiss this petition with costs. It shall now be open to the respondents to resume the excessive land in the light of our directions. S.Q. Petition dismissed.