P L D 1989 Karachi 610 (PLP)

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: Provided further that nothing in this clause shall apply to (i) any transfer of land or creation of any right of interest in or encumbrances on any land, by way of gift or otherwise made by a person in favour of his heir; 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 had 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 produced index units as the land alienated, and (b) Explanation II shall be omitted and shall be deemed always to have been so omitted. Explanation I.--For the purposes of this sub-paragraph and paragraph 10, any heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter." From this it appears that any alienation made by the declarant in favour of his heir, which includes sons and daughters shall be exempt from scrutiny as to the bona fides of the said transaction. The present gift, therefore, if made within the period as provided in the above said clause (b) para 7 i.e. from 1-3-1969 to 19-12-1971 is exempt from the operation of this clause. The respondent No.l in 8 the impugned order has not differed with this legal position but he has examined as to whether the statement of gift or handing over of the possession was in fact made within the said period or after 20-12-1971 as according to him all the acts of mutation of record of rights to the payment of land revenue assessment and taken over of possession are done after the said date, and therefore, it has been concluded that the statement of gift is also ante-dated. In order to repel the above conclusion of the respondent No.l, Mr. Mushtaq Memon, learned counsel for the petitioners, has placed reliance on the statement of gift dated 30-4-1969 which is placed on record and has also shown that in the said Deh Chuharpur the record of rights was also mutated on the very same date. He has further contended that all the lands are situated in Taluka Larkana and the Tapedars of Larkana Taluka sit in the Taluka office, when not on duty in the field, therefore, the most appropriate place for a land holder to go and get statement recorded is the Taluka office and there is no bar that the statement should be recorded in the Dakhl Kharij register of the Deh where the land holder has major holding. He has contended that therefore, the observations made by the respondent No.l in this behalf are incorrect and fallacious. He has then referred to the affidavit sworn by the petitioners before the Resident Magistrate Larkana on 30-6-1971, wherein they have confirmed the fact of the gift having been made in their favour by their father and also the fact that they accepted the gift and received the possession. The other document referred to by the learned counsel for the petitioners is Village Form VIII A--Record of occupation . In this document which is placed on record as Annexure TB' the .name of the petitioner No.l is enterd as being in possession for the year 1970-71. He has also referred to the land revenue receipts of which two as Annexed 'D-E filed with the petition show that in Deh Dhamrah and Sultan Abro, the land revenue was paid in June 1971. From these documents, the learned counsel has submitted that it has been shown that even prior to the promulgation of MLR-115 the petitioners were in possession and paying the land revenue assessment and that these documents have not been taken into consideration by the respondent No.l. It may be observed that in Sind the agricultural year starts from Kharif season i.e. first April and ends with the Rabi season i.e. 31st March as provided in Standing Order No.2 of the Revenue Department and that the land revenue assessment is normally paid after the close of the agricultural year. Thus, the entries pertaining to the year 1970-71 and the land revenue assessment paid in June 1971 would pertain to the year beginning from 1-4-1970 which is very much prior in time than the crucial date of 19-12-1971 as provided in clause (b) of para. 7 of MLR

115. We are, therefore, of the view that these documents sufficiently prove that the possession of the abovesaid lands under gift was with the donees prior to the crucial date of 19-12-1971 and that the findings of the respondent No.l are erroneous as there is no evidence brought on record to l controvert the above facts. Mr. Mushtaq Memon, learned counsel for the petitioners, has also submitted that it is the de facto nature of the transaction which is to be considered and not the formal or technical compliances by the revenue authorities. He has placed reliance on the case of Sachunand and another v. Officer on Special Duty, Federal Land Commission, Rawalpindi and two others P L D 1981 Kar. 393 wherein it has been held: "There is force in the above submissions of the learned counsel. It would be observed that for the purposes of M . L . R . 115, transaction by which alienation of any land is made need not strictly be de jure, but an alienation which is de facto in nature would also be effective even if requirement of registration of the deed has not been complied with. This conclusion finds support from the case of Atta Muhammad v. Federal Land Commission (1), where a learned Division Bench of the Lahore High Court, observed that while construing the word 'transfer' the purpose and spirit of Land Reforms Regulations should be kept in view and it would be wrong to give the said expression ('transfer') that meaning which it normally carries under the law governing the transfer of properties. The learned High Court further held: "The error of Land Commission authorities lies in the fact that they construed the word 'transfer' strictly in a manner which would be justified only in a case where the dispute was between the transferor and the transferees. In the present case, it may be noted that there is no conflict between the positions taken by the Government servant, who is transferor, and the petitioners who are the transferee. It is the Government as a third party that is seeking to hold the transfer invalid in order to resume the bulk of the land in question. In these circumstances, what the Land Commission is to see is whether in effect the transfer is complete even if it is not strictly so under the general law governing the transfer of property." "7-A. We have carefully gone through the impugned order and find that the respondent No.l has not disputed the de facto nature of the alienations made by the petitioner No.l by way of oral gift in favour of his parents (who fall among the category of specified heirs under the said Regulation), which was accompanied by delivery of possession, and statement made before Mukhtiarkar, and followed by mutations of the names of the donees in the Records of Rights. There is also no dispute between the donor and the donees and the circumstances established that petitioner No.l had completely gotten rid of the property and cannot, since the date of gift, be said to own the land or possess it within the meaning of para. 7 (1)(a) of the Regulation." He has also placed reliance on the case of Khurshid Alam and 2 others v. Muhammad Shah Nawaz and 12 others (1985 C L C 1286) in which it has been observed: "It is also pertinent to note that the gift deed is a registered document and it cannot be said that the gift deed was not executed or registered on the dates appearing in the deed itself. On the basis of the evidence on record it cannot be held that it was a fictitious document merely because it was not given effect to in the revenue record." Lastly the learned counsel for the petitioners has placed reliance on the case of Mir Haji Ali Ahmed Khan Talpur and 9 others v. Government of Sind and 2 others (P L D 1976 Kar. 316). In this case a Division Bench of this Court has held as under: "It is well-known that Muhammadan Law has prescribed just three simple, but very essential, requisites for a valid gift. These are (1) a declaration of gift by the donor (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject-matter of the gift by the donor to the donee. In simple words, the three acts involved are that the donor should make a declaration of gift and give the gift property to the donee, and the latter should accept it. It is not even essential that the gift should be made in writing. for a written gift is as good as an oral one. In the case of Jamaurannissa Ribi v. Hussain Bibi (1818) 3 All- 366) the Privy Council upheld a verbal gift. Writing is, therefore, not essential to the validity of a gift, either of movable, or of immovable property. No mutation of names in the record of rights is also necessary to complete the transfer of possession of the gift property. A gift of lands in occupation of Haris may be completed by the donor asking the Haris to attorn to the donee, or by delivery of title deeds, or, by getting the mutation entries effected in donee's favour in the Record of Rights. A husband making a gift of the house to his wife, which is in their joint occupation, may complete the delivery of possession of the corpus of the gift, which is one of the essential requisites of a valid gift by making a declaration to the effect that he gives the house to her as a gift alongwith its possession. on his wife accepting the properties, the gift would be complete and valid under the Muhammadan Law. The same procedure would be true in the case of a house let out to the tenants, or in the case of lands cultivated to haris, if the tenants or the haris are asked by the husband to attorn to his wife. In such cases, the fact that the husband continues to live in the house or receives the rents from the tenants, after the date of the gift, would not invalidate the gift, the presumption being that the rents were received by him on behalf of his wife, and not on his own account." "Had the Mukhtiarkar of Shahdadpur, therefore, complied with the legal procedure by which he was bound, or had he not been guilty of the violation of the basic principles of natural justice which have been emphasized by the superior Courts time and again, he would not have fallen in error. The petitioners Nos.2 to 10 would have pointed out to him that the gifts had no lacuna of acceptance on their part, and the transfer of the property was a completed transaction 7 years old and that if there was any lacuna left of the Mukhtiarkar having signed mutation entries in the Record of Rights, it was his duty to fill up the lacuna. As held earlier, the petitioners 2 to 10 had acquired valuable rights in property by virtue of valid gifts under the Muhammadan Law, and they could not be saddled with the burden of the consequences of the non-performance, if any, of the duty cast upon the Mukhttarkar or his Head Munshi on 10-12-1966 to put signatures on the mutation, entries, recorded in their favour. On the facts of this case it is clear that if there was any defect it was lust that the Mukhtiarkar or his Head Munshi had committee a bona fide mistake or an inadvertent error. Had the petitioners been aware of it on 10-12-1966, they could have asked the Mukhtiarkar on that very day to perform the duty cast on him under the law. Nothing happened up to 14-1-1974 in spite of the promulgation of the Martial Law Regulation 115, that can be said to have taken away the petitioners' right of asking or indeed demanding the Mukhtiarkar of Shahdadpur on 14-1-1974 to do the duty that was cast upon his successor on 10-12-1966 i.e. of filling up the lacuna by verifying the entries himself. On this view of the case, had the Mukhtiarkar of Shadaopur given the opportunity of hearing to petitioners he could have been compelled by them to perform his duty of verifying the mutation entries required of his predecessor-in office to be done. On these facts the order passed by the Mukhtiarkar of Shadadpur dated 14-1-1974 is totally unwarranted in law." From the above, the learned counsel has argued that it was the duty of the revenue authorities to have given effect to the statement of gift made by the respondent No.6 and that any delay in mutating record of rights or giving sanction to the same would not effect the I rights of the petitioners. We are in agreement with the contention of the learned counsel that the factum of the gift stands proved from the facts and circumstances as based on the documents referred to as above which had taken place before the crucial date of 19-12-1971. Mr. A. A. Muhammadally, learned counsel appearing for respondent No.l, has placed reliance on the two counter-affidavits filed by M/s. Irfan Ali Syed, the Inspecting Officer of Federal Land Commission of Hyderabad and Muhammad Usman, Deputy Secretary, Sind, Land Commission, Secretariat Hyderabad, but he has not been able to refer to any document to rebut the above contention of the learned counsel for the petitioners. We, therefore, hold that the gift made by the respondent No.6 in favour of the petitioners had taken effect prior to the crucial date of 19-12-1971 as mentioned in clause (b) of Paragraph 7 of MLR 115 and that the orders passed by the respondent No.l are not sustainable in fact or law which are quashed and the earlier orders passed by the Additional Chief Land Commissioner, Sind, on 31-10--1973 are maintained. The present petition is, therefore, allowed. However, there will be no order as to costs. M . B . A . / K-155/ K Petition allowed.