P L D 1975 Lahore 59 (PLP)

KARAM ELAHEE CHAUHAN, J.-This judgment will dispose of two writ petitions bearing Writ Petition No. 247 of 1974 and Writ Petition No. 248 of 1974.

2. The following pedigree-table will help in understanding the facts of this case:- Malik Khaliq Dad Bandial Mst. Amir Khatun Firstwife Second wife Mst. Daulat Mst. Maryam Khatun. Khatun. | | Daughter Mst. Kausar Sultana | | One son Daughter Daughter Daughter Daughter name not Mst. Mst. name not name not known. Rukhsana. Naheed known. known. Sultana. Malik Khaliq Dad Bandial, as the above pedigree-table will show is the head of the family involved in this case. He has two wives, namely, Mst. Daulat Khatun and Mst. Maryam Khatun. From the former he has a daughter Mst. Kausar Sultana. From the latter he has four daughters and one son. The names of two daughters in the instant case are known and they are Mst. Naheed Sultana and Mst. Rukhsana. Malik Khaliq Dad Bandial has a sister whose name is Mst. Amir Khatun.

3. Mst. Daulat Khatun by means of mutations bearing Nos. 270, 273 and 275 made the following transfers: (i) By mutation No. 270 she made a transfer of 2901 kanals and 11 marlas of land in favour of her husband's sister Mst. Amir Khatun mentioned above; (ii) By mutation No. 273 she made a transfer of 144 kanals of land in favour of her step-daughter Mst. Naheed Sultana; (iii) By mutation No. 275 she made a gift of 183 kanals and 12 marlas of land in favour of her step-daughter Mst. Rukhsana. All these mutations were attested on 12-5-1969. Mst. Daulat Khatun is a declarant owning large areas of land and filed relevant L. C. forms under Land Reforms Regulation (M. L. R. 115) of 1972. The aforesaid transactions of Mst. Daulat Khatun came under scrutiny before the Land Reforms authorities. The learned Land Commissioner by means of his order dated 29-9-1972 held all the aforesaid three transactions to be invalid under paragrah 7(1)(b) of M. L. R.

115. Mst. Daulat Khatun filed an appeal but without any success as the same was rejected by the learned Additional Chief Land Commissioner on 2-10-1973. She filed a revision before the Federal Land Commission but without any success as the same was rejected on 3-11-1973. She has come up in writ petition against the aforesaid pro ceedings and orders to this Court. It is pertinent to mention that the finding of the Land Reforms authorities was that the aforesaid transfers being in favour of non-heirs were hit by the provisions of para. 7(1)(b) of M. L. R. 115 and were, therefore, void.

4. Learned counsel for the petitioner referred to paragraph (7) of M. L. R. 115, which reads as follows:- Paragraph (7). "Certain transfers void.-(1) Save as otherwise provided in this Regulation:- (a) the transfer of any land, and the creation of any right or interest in or encumbrance on any land made in any manner whatsoever in respect of any area, on or after the 20th day of December 1971, by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of un irrigated land or an area equivalent to twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1969 and Rabi 1969-70), whichever shall be greater, shall be and shall be deemed always to have been void: and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date: Provided that in the case of a person to whom the provisions of sub. paragraph (2) of paragraph 8 apply, no such transfer or creation of any right or interest or encumbrance shall be void unless he was holding on the said date an area more than fourteen thousand produce index units; (b) save in case where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatso ever, by any person holding at any time during the 1st day of March 1967, to the 19th day of December 1971 (both days inclusive) an area equivalent to more than twelve thousand produce index units (cal culated on the basis of classification of soil as entered in the Revenue Records for Kharif 1966 and Rabi 1966-67), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been, owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date: Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso in no case be held by the Commission to be a bona fide transaction. Pro vided further that nothing in this clause shall apply to- (1) any transfer of land or creation of any right or interest in or encum brance on any land, by way of gift or otherwise made by a person in favour of his heirs; or (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; or (iii) any transaction whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated. Explanation I-For the purposes of this sub-paragraph and paragraph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter. Explanation II.-Deleted by Land Reforms (Punjab Amendment) Ordi nance, 1972. Explanation III.-In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors (i) whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created; (ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created; (iii) who has been paying the land revenue and other charges in respect of such land; (iv) who has been receiving the rent for or batai share from such land. (2) If any question arises whether any transfer or other transaction is or is not void under sub-paragraph (1), the decision of the Commission thereon shall, subject to the provisions of paragraph 29, be final. (3) Nothing in sub-paragraph (1) shall apply to any transfer of land or the creation of any interest or right or encumbrance on any land made by a person who held on 20th December 1971, land in excess of the permissible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions for this Regulation, the land in excess of such limits." Taking up mutations Nos. 273 and 275 learned counsel argued that even though the donees therein were the step-daughters of the donor nevertheless the gifts made to them could not be said to be in favour of "non-heirs". He laid emphasis on clause (i) of the Second Proviso to para. 7(1)(b) wherein it was written that "nothing in this clause shall apply to any transfer of land or creation of any right or interest in or encumbrance on any land, by way of gift or otherwise made by a person in favour of his heirs". He referred to explanation I wherein it was, written that "for the purpose of this sub paragraph and paragraph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter." Learned counsel argued that even though Mst. Naheed Sultana and Mst. Rukhsana were from the wedlock of Mst. Maryam Khatun and Khaliq Dad Bandial but as Mst. Daulat Khatun was also a wife of Khaliq Dad Bandial, therefore, in the eye of law the donees were her daughters as well. The contention has no merit. In "Principles of Mahomedan Law" by Mulla, Fourteenth Edn., paragraph 84 it is written that "step-children do not inherit from step-parents, nor do step-parents inherit from step-children. See Macnaghten, p. 99, Precedents of Inheritance No. XXI." The aforesaid precedent in Macnaghten reads as follows:- "Case XXI Q. Has a woman any right to share in the property left by her deceased step-son? R: A step-mother is not considered in law a mother. She is called wife of the father. She only who bears the child is termed mother. As a step-mother is not viewed in the same light as a mother, she cannot take the maternal share of inheritance, which is a right apper taining to mother alone." Precedent No. XXII is also relevant and is reproduced below:- "Case XXII R. Her son will take two parts and her daughter one. The daughter by the second wife of her husband has no title to any share." For case-law on the subject refer to Allah Bakhsh and others v. Muhammad Umar and another A I R 1929 Lah. 444(l), Mst. Begun v. Jalal Din and another 50 P R 1917 and Budday Sait v. Zoonoo Bee 1853 Mad. S D A 199-(a case cited in various textbooks but was not available to us). Here it may be pointed out that Tyabji in his "Muhammadan Law" Third Edn. 1940, under section 606(2-A) on p. 839 in footnote 8 has written that a step-son is son of husband by another wife or of wife by another husband and a step-father is a person who has married one's mother after one's father's death or on mother being divorced and a step-mother is vice versa. It is further to be noticed that in explanation I earlier reproduced in the category of heirs, only daughters of the "owner" of the land are included and not the daughters of the husband-(to confine to the facts of the present case)-of the "owner". Mst. Naheed Sultana and Mst. Rukhsana not being daughters of the owner Mst. Daulat Khatoon, the Land Reforms Authorities were perfectly justified in not considering them as her heirs.

5. Taking up mutation No. 270 here the gift has been made by Mst. Daulat Khatun in favour of Mst. Amir Khatun who is a sister of her husband. Obviously she does not fall in the category of heirs under Muhammadan Law' and transfer in her favour by gift will also be void. When confronted with this situation, learned counsel for the petitioner argued, that this transaction was actually of a sale and not of gift. This is a question of fact and the Land Reforms Authorities have held it as a gift on the basis of entries in the revenue record. We have not been shown that revenue record in this respect has been misread in any manner. In the relevant mutation also the recitals through and through are about a gift and since the view of the Land Reforms Authorities is supported by and is based on the relevant evidence the same cannot be taken exception to in writ jurisdiction especially when there is nothing to the contrary before us.

6. The result is that Writ Petition No. 247 of 1974 has no merit and is, dismissed with no order as to costs. Writ Petition No. 248 of 1974

7. The subject-matter of this writ petition are transfers by means of two mutations bearing Nos. 272 and 271, the details whereof are as follows:-- (a) By mutation No. 272 Mst. Kausar Sultana daughter of Mst. Daulat Khatun-(first wife of Malik Khaliq Dad Bandial)-made a gift of land in favour of her step-mother Mst. Maryam Khatun, second wife of Malik Khaliq Dad Bandial; and (b) By mutation No. 271 Mst. Kausar Sultana aforesaid made a gift of land in favour of Mst. Naheed Sultana daughter of Malik Khaliq Dad Bandial from his second wife Mst. Maryam Khatun.

8. The Land Reforms Authorities rejected these transactions again as being in favour of non-heirs. The petitioner has come up in writ petition against the proceedings and orders in that respect, to this Court.

9. As regards the transfer involved in mutation No. 272, it is self-evident, that it is by a step-daughter in favour of her step-mother and our view I in this respect is mutatis mutandis the same as expressed in Writ Petition No. 247 of 1974 with regard to step-relations. The orders of the Land Reforms Authorities with regard to this transaction are, therefore, unexceptionable.

10. As regards the transfer involved in mutation No. 271, learned counsel for the petitioner argued, that it was a gift from Mst. Kausar Sultana to her consanguine sister Mst. Naheed Sultana. A consanguine sister according to the learned counsel, was an heir under the "Muhammadan Law" and, there fore, he submitted, the Land Reforms Authorities had acted without lawful authority in considering otherwise. The contention has no merit. In Mulla's "Muhammadan Law", above referred to, on page 58-A is given a chart show ing the position of a consanguine sister under item No. 12, which shows that she succeeds as a sharer only when there is no (1) child, (2) child of a son howsoever, (3) father, (4) true grandfather, (5) full brother, (6) full sister, (7) consanguine brother. In the instant case the father of Mst. Kausar Sultana is alive and as such the gift to Mst. Naheed Sultana cannot ire said to be in favour of an heir. The consanguine sister in the instant case will not be a residuary as well inasmuch as father of Mst. Kausar Sultana is alive who falls in the category of ascendant (residuary) and consanguine sister will fall in the category of those residuaries who come below the ascendants. Another thing to be noticed is that in Explanation II to para. 7(1)(b) o M.L.R. 115 wherein list of persons who are to be considered as heirs is given, the word `sister' does not appear. This will show that regardless of all the t aforesaid incidents of a "consanguine sister", a sister even otherwise is not to be considered as an heir.

11. Learned counsel lastly placed reliance on clause (ii) of Second Proviso to para. 7(1)(b) where "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" is saved. He argued firstly, that the word "sister" here was wide enough to include a consanguine sister and secondly, the present was case where land was ancestral qua the donee, and as she had not received her due share of inheritance, therefore, the gift to her by her consanguine sister was quite valid. Leaving aside the controversies whether the word "sister" includes a -`consanguine sister" the key to the interpretation of the aforesaid clause lies in finding out as to whether she was eligible to get a share in the ancestral land and whether she has not received her due share. In the instant case, as already pointed out, the father of the donee is still alive and the question of her having been deprived of her "due share of inheritance" as such does not arise. A share of inheritance in "Muhammadan Law" becomes "due" only after succession has opened out. Clause (ii) of second proviso, therefore, it appears, applies only to such cases where succession had already opened and a widowed and unmarried sister)-(whether full or consanguine)-has not received her due share of inheritance of ancestral land for one reason or the other. It does not apply to such cases where no stage for receiving a share of inheritance has yet arisen.

12. The result is that this writ petition also has no merit and is dis missed with no order as to costs. S. A. H. Petition dismissed.