1988 PLP 1690 (CLC)

AJMAL MIAN, J.‑‑This petition is directed against an order dated 23‑10‑1976 passed by respondent No.l whereby he invalidated the two gifts made by the petitioner in favour of his two minor sons namely, Ghulam Rasool and Nabi Bux. The particulars of the above gifts and mutation etc. are given in the Land Commissioner Sind Hyderabad Division Camp at Mirpurkhas's order dated 23‑8‑1972 which reads as follows:‑

Deh Name and Relation Area Gift or sale Mutation entry 246

1. Ghulam Rasool 33.30 Gift No.10/4/1/71 M.Khas. son. 4/1.71 ‑do‑

2. Nabi Bux 55.13 ‑do‑ -do - son. 2(a) The above gifts were accepted as valid in view of explanation 1 to para. 7 (i) (b) of the M:L.R. 115 by the Land Commissioner Sind Hyderabad Division, Camp at Mirpurkhas by his order dated 7‑8‑1972. The matter was again taken up by the Deputy Land Commissioner Tharparkar at Mirpurkhas, who by his order dated 20‑9‑1972 upheld the above gifts. The matter was taken up 3rd time by the Additional Chief Land Commissioner Sind Hyderabad upon the objection lodged by the Member of Federal Land Commission. However, he also by his order dated 27‑4‑1974 upheld the above gifts (please refer to Annexures 'B' 'C' and 'D' to the petition). It appears that thereafter respondent No.1 in exercise of the power contained under paragraph 29 of the M.L.R. 115 purported to declare the above gifts as invalid on the ground that the land which was the subject‑matter of the gifts was already mortgaged and that subsequent to the gifts further loan was taken. (2)(b) As regards the first ground, it may be observed that this point has been decided by a Division Bench of this Court and it had been held that the creation of mortgage does not debar the owner of the land to gift away agricultural land subject to the right of the mortgagees. In the present case, the mortgagee had not come forward to object to the above gifts. Gifts were clearly covered by explanation 1 to para. 7 (i) (b) of the MLR 115 and, therefore, they were rightly held to be valid in the 3 orders referred to hereinabove Annexures 'B' C' and 'D'.

3. Adverting to the second ground found favour with the respondent No.l, it may be observed that this ground was not agitated before any forum prior, to the impugned order. It is not clear from the impugned order that on what basis this has been stated that the land in question was again mortgaged after the gifts by the petitioner. In this regard, it may be pertinent to refer to the case of Mir Haji Ali Ahmed Talpur and 9 others v. Government of Sind and 2 others, reported in P L D 1976 Kar. 316, in which the question of gift to the minors by the father has been inter alia dilated upon and it had been pointed out that in case a donee is a minor, the declarant father may continue‑to manage the subject matter of the gift.

4. In our view, the 3 orders referred to hereinabove Annexures 'B' 'C' and 'D' were more in consonance with explanation 1 to para. 7 (i) (b) of the M.L.R. 115 than the impugned order. We would therefore, allow the petition and declare the impugned order as without lawful authority. There will be no order as to costs. A.A./W‑20/K Petition accepted.