1978 PLP 264 (SCMR)

(d) Constitution of Pakistan (1973)‑

Art. 185(3)‑Point neither raised in High Court nor any discussion on such aspect of matter (in judgment)‑Question whether gift not complete due to mutation being still under review‑A mixed question of law and fact‑Question, in circumstances, held, could not be can‑vassed for first time before Supreme Court.‑[Mixed question of law and fact. Malik Maqbool Elahi, Advocate‑General Punjab with M. M. Saeed Baig, Advocate Supreme Court and Sh. Ijaz Ali, Advocate‑on‑Record for Petitioners. Khan Muhammad Younus Khan, Advocate Supreme Court with M. A. Qureshi, Advocate‑on‑Record for Respondents. NASIM HASAN SHAH, J.‑This petition for leave to appeal is directed against the order of the Lahore High Court, dated 11th March, 1974, where by Writ Petition No. 2198 of 1973, filed by respondents 1 to 3, was accepted and the orders of the Land Reform Authorities declared as without lawful authority and to be of no legal effect.

2. The relevant facts are that Maula Dad, the first respondent, made a gift in. favour of the two minor sons (respondents 2 and 3) of agricultural land, measuring 157 acres 5 kanals and 19 marlas on 1‑8‑1971. The land in question along with some other land, prior to the said gift, had been mortgaged by the first respondent with the Agricultural Development Bank of Pakistan, Hafizabad, against a loan. On the promulgation of Martial Law Regulation No. 115 (Land Reforms Regulation, 1972), the first respon dent filed the required declaration of his holding. The Land Commissioner, Lahore, while considering the declaration did not approve of the gift on the ground that the gifted property was mortgaged and the consent of the mortgagee Bank was not obtained. Consequently Mutation No. 714, sanc tinning the gift was declared a nullity, and the said area was counted towards the total land holding of the first respondent for the purpose of M. L. R. I

15. This order was impugned in appeal by the first respondent before the Chief Land Commissioner. Lahore, who dismissed the same. He then filed a revision petition before the Federal Land Commissioner, which too was rejected. Consequently, the said respondent along with the donees filed a Writ Petition in the Lahore High Court for quashment of the above order passed by the Land Revenue Authorities.

3. The Writ Petition was heard by a Div isi0n Bench of the High Court and accepted by its order dated 11‑3‑1974. It was held that the gift was not barred under the provisions of section 19 of the Agricultural Development Bank Ordinance (IV of 1961) or the Rules framed there under. It was common ground that these provisions of law governed the matter. On the other hand, the scheme underlying the above view that the charge or mortgage was to run with the land and the transferee of the previously encumbered land would step into the shoes of the debtor. As there was no indication in the, relevant law that a transfer during the subsistence of mortgage was to bet void, the Land Reforms Authorities were not justified to consider the land gifted as still belonging to the transferor. The learned Judge observed that as matter of fact it was conceded before them that the impugned orders of the Land Reforms Authorities suffered from an error patent on the face of the record and were against the provisions of the relevant law on the subject. It was further observed that the bona fides of the aforesaid gift had not otherwise been impugned order. Consequent, the writ petition was accepted. The impugned orders passed by the Land Reforms Authorities were declared to be without lawful authority and of no legal effect, and the land in dispute found to have been validly' gifted in favour of respondents 2 and 3, and as such considered not to be liable to be counted towards the holding of respondent No. 1 herein.

4. Mr. Maqbul Elahi Malik, learned Advocate‑General Punjab, raised three contentions before us. First, that as the possession of the land continued to be with the mortgagor (respondent No. 1 herein) and the possession was not, delivered to the donees, therefore. it was a nullity. When it was pointed out to him that respondents 2 and 3 were the minor children of respondent No. 1 and the question of handing over physical possession to them did not arise, he did not press the point further.

5. He next submitted that the transaction in favour of respondents 2 and 3 was hit by the provision of section 52 of the said Act is in the following terms :‑

"53.‑(1) Every transfer of immovable property made with intent to defeat; or delay the creditor or the transferor shall be voidable at the option of any creditors defeated or delayed." But when the learned Advocate‑General was asked to indicate as toe which creditor or the transferor was being prejudiced by the transfer, he was unable to do so. Consequently, the provisions of section 53 of the Transfer of Property Act were not attracted to the facts and circumstances of this case.

6. Lastly, it was contended that the gift was not complete because the mutation was still under review. We observe that this point was not raised in the High Court, nor there is any discussion on this aspect of the matter. As the question is a mixed question of law and fact it cannot be canvassed for the first time before this Court. This result is that there is no force in this petition, which is hereby dismissed. Leave refused.