2000 PLP 1021 (SCMR)

CH. MUHAMMAD ARIF, J.

The parties in this litigation had filed their respective suits in relation to the inheritance of one-Chhotey Khan who had, during his lifetime, gifted away his agricultural lands through mutations bearing Nos.225 and 226 sanctioned on 23-1-1984 respectively favouring (1) Buddan Khan (brother of Chhotey Khan's wife Mst. Maryam Bibi) and Mst. Maryam Bibi. The suits filed by Mst. Hajran Bibi and Mst. Saira Bibi (petitioners herein) and Sardar Khan and another, were for Declaration and Injunction and were consolidated before a learned Civil Judge, Jauharabad, District Khushab.

2. The suit of the petitioners against Mst. Maryam Bibi and Buddan Khan was decreed but that of Sardar Khan and others was dismissed vide judgments/decrees, dated 17-10-1990.

3. The parties impugned the judgments Jecrees, dated 17-10-1990 under section 96, C.P.C. before the learned District Judge, Khushab who, vide his consolidated judgment therein, dated 3-3-1991, accepted both the appeals with the result that the suit filed by the petitioners was dismissed and that filed by the respondents was decreed.) `

4. On Civil Revisions Nos.679 and 680 of 1991 filed by the parties against the judgments/decrees, dated 3-3-1991, a learned Judge in Chambers of the Lahore High Court, Lahore proceeded with dismissing the same with the following observations:--

8. I have heard the learned counsel for the parties an gone through the record. Perusal of Mutation No.225, Exh.P.3 placed at page 41 of the petition clearly shows that it was attested by Assistant Collector Grade ' 11' in presence of the parties duly identified by Mumraiz Khan Lambardar Deh (P.W.'F) and Hassan Khan Pattidar The national identity cards of Chhotey Khan donor Budhan Mumraiz Khan and Hassan Muhammad are also mentioned therein. Vide this mutation Chhotey Khan gifted his 40 Kanals of land to his brother -in-law Budhan. It was entered by Patwari on the statement of Chhotey Khan on 12-1-1984. Subsequently it was placed before Tehsildar/A.C. Grade '11' on 23-1-1984 and sanctioned in presence of abovementioned persons in the ordinary course of business. Delivery of possession was also admitted in the mutation. Similarly vide Mutation No.226 Exh. 11 Chhotey Khan transferred 120 Kanals of land in favour of Mst. Maryam Bibi his wife as Hibba. Delivery of possession of the land is also incorporated in the mutation. 'It was also sanctioned on the same day by the Tehsildar/Assistant Collector Grade 'II' in presence of aforementioned witnesses. The Identity Card Nos. of Chhotey Khan, Mst. Maryam, Mumraiz Khan Lambardar and Hassan Khan Patti Dars are also mentioned therein.' "

9. It was also clear from the evidence on the record that possession of the disputed property was with the tenants. Chhotey Khan has admitted the delivery of possession to the donees before the Tehsildar. The possession of the tenants on the land in question would be deemed to be constructive possession of the donees and the tenants henceforth would be liable to pay share of Batai to the donees. The ingredients of a valid gift, announcement, acceptance and delivery of possession were complete. The mere non-production of Tehsildar and Patwari as witnesses will not render the official act done by them as unproved, The public documents and the proceedings of mutations cannot be lightly interfered unless a positive misrepresentation of fraud is established on the record. The perusal of evidence clearly indicates that Chhotey Khan was the absolute owner of the property in question. He had no male issue and in order to provide security to his wife during his lifetime gave his land to his wife Mst. Maryam and Budhan brother-in-law. She further gifted away her property to Sardar Khan, her brother. The grievance caused to the petitioners by disposal of the property in dispute through gift to the respondents may be considered to be legitimate desire of inheritance of the property but Chhotey Khan during his lifetime by lawful device could deprive them of future inheritance by disposal of the property by way of Hiba. The oral gift is permissible under the Muhammadan Law and he had validly transferred the property to Mst. Maryam and Budhan his wife and brother-in-law through Mutations Nos.225 an

26. The gifts made by him are perfectly in accordance with law. "

10. The findings of the learned Appellate Court are based on the evidence on the record. The impugned judgment does not suffer from any legal infirmity calling for interference by this Court. Both these petitions have no force and are dismissed."

5. Mr. Rashid Murtaza Qureshi, learned Advocate Supreme Court appearing in support of these petitions, has very vehemently contended that Islamic Law heirs could not be deprived of their right to inherit by resorting to 'Hibas' in favour of respondents Bhudan Khan and Maryam Bibi who had also passed on the estate to her extent, in favour of Bhudan Khan. According to him, neither Bhudan Khan nor Mst. Maryam Bibi was recorded present at the time of the entries in relation to Mutations Nos.225 and

226. The plea was that the presence of a donee is necessary at the time of sanction of a mutation in his/her favour by the Revenue Authorities and as their such presence was not reflected in the Revenue Record and Mst. Maryam Bibi having stated that she was not in attendance at the relevant time, the transactions in question are void ab initio. Contrarily, Mr. Malik Noor Muhammad Awan, learned Advocate Supreme Court appearing for the caveators/respondents, has supported the impugned judgment in its entirety with the submissions (1) that under Islamic Law an owner is possessed of the requisite authority to deal with his/her property in any manner as he/she likes and (2) that the presence of a donee is not at all necessary at the time of sanction of Mutation/s of Gift. Further, the presumption of regularity attaching to the Revenue Record in this case has not been rebutted by the other side with the result that both the petitions are liable to be dismissed.

6. We have considered the arguments addressed at the Bar as have also been taken through the available material by the learned counsel for the parties. We find that the points raised on behalf of the petitioners were duly considered by the learned Judge in Chambers and repelled with the . observations that "....The grievance caused to the petitioners by disposal of the property in dispute through Rift to the respondents may be considered to be legitimate desire of inheritance of the property but Chhotey Khan during his lifetime-by-lawful device could deprive them of future inheritance by disposal of the property by way of HIBA The oral Rift is permissible under the Muhammadan Law and he had validly transferred the property to Mst Maryam and Budhan his wife and brother-in-law through Mutations Nos.225 and

226. The -gifts made by him are perfectly in accordance with law. " (Underlining is for emphasis).

7. As regard the plea that neither Mst. Maryam Bibi nor Buddan Khan was present at the time when the Mutations Nos.225 and 226 were sanctioned by the Revenue Authorities, we suffice by observing that subsection (7) of section 42 of the Land Revenue Act, 1967 and Rule 7.4(i) of the Land Record Manual present a different picture altogether as below:-- S.42 ................................................................................. "(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signature or thumb 'impressions shall be obtained by the Revenue Officer on the register of mutations." And "7.4 Genera instructions-40 The mutation register consists of a unterfoil and foil. The former is the Patwari's copy of the register, the latter is removed after orders have been passed and sent to the Teftsil to be filed with the (Jamabandi). The Patwari should make his entries in columns 1 to 13 of the counterfoil (except the entry- relating to Dakhil Kharij fee). Having, thus, filled up columns I to 13 in the counterfoil, the Patwari will copy these entries in the foil. He will then write his report in (column 14) of the foil: He will briefly state the facts explaining the change, the names of the persons on whose information the entry is based, and he will require the Lambardar concerned to attest the entry by seal or signature. He is, however, strictly forbidden to take the thumb- mark or the signature of any of the parties to the transaction anywhere on the mutation sheet."

8. No other point was urged.

9. Resultantly, these petitions fail and are hereby dismissed. M.B.A./H-5/S Petitions dismissed.