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Civil Petition for Special Leave to Appeal No. 396 of 1973, decided on 16th November 1973.
(From the judgment and order dated 2‑10‑1973 of the Lahore High Court, Lahore, passed in Writ Petition No. 1605 of 1973).
---‑‑Para. 7(l)(b) Proviso‑Petitioner's father (declarant) still alive- Petitioner (daughter of declarant) can not be said to have been deprived of her "due shore of inheritance in ancestral property"‑Succession to Muhammadan father‑Does not open during his life time‑Petitioner also not heir to her brother unless brother dies issue less and his father pre‑deceases him‑Gift made by brother in favour of sister‑Not protected under proviso to para. 7(1),b).
D. M. Awan, Advocate Supreme Court instructed by Rana Maqbul Ahmad Qadri, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing : 16th November 1973.
Petitioner No. 1 herein, who is a declarant under the Law Reforms Regulation 1972 made an oral gift of land measuring 825 kanals 13 marlas in favour of his unmarried minor sister Saleh Begum, petitioner No. 2 herein, who is a minor aged about 10 years. The mutation was entered at No. 50, sanctioned on 19‑6‑1970. It came under the scrutiny of the Land Commission authorities. The Land Commissioner, Bahawalpur Division upheld the gift on the ground that the donee had been denied her share in "the ancestral property" and, therefore, to the extent of her share in that property, the gift was protected. This worked out at 725 kanals. As a result, the gift was upheld to the extent of 725 kanals and the remain ing area measuring 100 kanals 13 marlas was resumed. On an appeal by the donor, the Additional Chief Land Commissioner, set aside the gift in its entirety. Basing themselves on the second proviso to paragraph 7(1)(b) of the Regulation, as inserted by Punjab Ordinance XV of 1972 which protects inter alia "any transfer of land or right or interest therein, by way of gift, made by a person in favour of his widow or unmarried sister, who has not received her due share of inheritance of ancestral land", the two petitioners filed writ petition to call in question the order of the Additional Chief Laud Commissioner on the ground that the gift of land by petitioner No. 1 in favour of petitioner No. 2 was protected by the above provisions. The writ petition was, however, dismissed in limine by a learned single Judge by order dated 2‑10‑1973, against which the petitioners now seek special leave to appeal.
As in the High Court, learned counsel for the petitioner contended that petitioner No 2 was unmarried sister of petitioner No. 1 and had not received "her due share of inheritance of ancestral land", the gift of land in dispute in her favour was valid. The argument proceeds on a mistaken view of the relevant provisions. It is not denied that the petitioners' father is still alive and is a declarant under the Regulation. As such petitioner No. 2 cannot be said to have been deprived of her "due share of inheritance in the ancestral property" because succession to her father cannot possibly open during his life time. She is not an heir to her brother either under Muslim Law of inheritance unless he dies without an issue and his father also pre‑decesses him. Therefore, the impugned gift is not protected under proviso to paragraph 7(1)(b) of the Regulation.
For the foregoing reasons we do not find any merit in this petition which is dismissed.
Petition dismissed.
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