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Before Abdul Hafeez Memon and K. A. Ghanl, JJ
SACHUNAND AND another-- Petitioners
versus
OFFICER ON SPECIAL DUTY, FEDERAL LAND COMMISSION.
RAWALPINDI AND 2 ohms‑Respondents
Constitutional Petition No. 199 of 1977, decided on 5th March, 1981.
Land Reforms Regulation, 1972 [M. L, R. 1151‑‑
Para. 7(1)(a) & (b) read with Transfer of Property Act (IV of 1882), S. 1.23‑Gift of land‑Bona fides of‑Alienation of land for purposes of M. L. R. 115, held, need not strictly be de jure i. e. in accordance with Transfer of Property Act (IV of 1882), but a de facto alienation also effective, even if registration of deed not done.
Atta Muhammad v. Federal Land Commission 1979 C L C 294 and Limo Khan and another v. Member, Federal Land Commission P L D 1981 Kar. 114
rel.
Imam All Kazi for Petitioner.
Nasrullah Awan for Respondents.
Date of hearing: 5th March, 1981..
K. A. GHANI, J.‑This. petition arises out of an order passed on 18‑12‑1976 by the O. S. D.; Federal Land Commission/Joint Secretary to the Federal Government in exercise of suo motu powers of revision under para. 29 of M. L. R. 115.
2. The brief facts of the case are that the petitioner No. 1 owned certain agricultural land measuring 537.26 acres situated in Deh Berani, Taluka Shahdadpur, District Sanghar. Out of the above land he transferred and alienated by way of oral gifts through statement made on 10‑2‑68 before the Mukhtiarkar in favour of his mother, Jhirmi Bai, and father, Gangomal, land measuring 133.26 acres and 157..02 acres respectively, possession of the land so transferred was also delivered to the donees. The aforesaid transactions, were duly entered in the records maintained by the revenue authorities and the names of the donees were mutated on the same day i. e. 10th February, 1968.
3. On coming into force of the Land Reforms Regulation M. L. R. 115 of 1972 petitioner No. 1 filed a declaration as required by the said Regulation disclosing the aforesaid alienations made in favour of his mother and father, besides other alienations made by him in favour of Akbar Khan and Sahib Khan by registered sale deed dated 2nd January, 19.70. and by exchange entry in favour of one Motiram (a cousin of the petitioner No. 1).
4. The Land Commissioner, Sind by order passed under para. 7 of the aforesaid M. L. R. 115 after scrutiny, confirmed all the alienations disclosed by the petitioner No. 1 including those made by gifts in favou r of his parents.
5. It appears that subsequently on a report made by the Head of Inspection Team of Federal Land Commission, Hyderabad, respondent No. 1 by an order passed on 18‑12‑76 in exercise of suo motu revisional jurisdiction, under para. 29 of M. R. L. 115 declared the alienations wade by petitioner No. 1 by way of oral gifts in favour of his parents as void and non‑existent for the purposes of Land Reforms and to that extent the order passed by the Sind Land Commission was set aside. The other alienations disclosed by the petitioner No. 1 in favour of Akber Khan Sahib Khan and Motiram, were upheld and not disturbed.
6. Aggrieved by the aforesaid order, the petitioners have filed ,this petition.
Mr. Imam Ali Kazi, the 'learned counsel submitted that respondent No. 1 set aside the alienations made by way of gifts by petitioner No. 1 in favour of his parents as void and non‑existent for the purposes of M. L. R. 115 on the sole ground that a gift of immovable property by a non Muslim could only have been made through a registered instrument signed by and on behalf of the donor and attested by two witnesses and that the registration of the deed in such cases cannot be dispensed with on any ground. The relevant portion of the said order reads as follows:‑
"Transfer of Property Act supersedes the Hindu Personal Law as to the transfer of property according to section 123 of the Transfer of Property Act, a gift of immovable property can only be made through a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The registration of the deed can not be dispensed with on any ground. This provision excludes every other mode of transfer and even if the intended donee is put in possession a gift of immovable property is invalid without a registered instrument. The alleged gifts are thus ineffective, inoperative and are hit by section 123 of Transfer of Property Act. It is a settled legal position that the alienations which are invalid under any other law cannot be validated under paragraph 7 of M. L. R. 115. The contention of the learned counsel that the donee shall be considered the owner of the gifted land which has been duly mutated in his name is devoid of any force. For the entries of mutation neither confer nor extinguish any right or title and are made only to facilitate the recovery of land revenue."
The learned counsel for the petitioner submitted that the alienations by way of oral gifts made in 1968, by the petitioner No. 1 in favour of the specified heirs followed by acceptance and delivery of possession by statements made before the Mukhtiarkar and mutation effected in favour of the said donees constituted sufficient transfer and passing of possession of the land which was subject‑matter of the two gifts and thus valid within the meaning of para' 7(1)(b) of M. L. R. 115 and that respondent No. I acted without any lawful authority in holding the same as invalid on the sole ground that the said alienation was invalid for want of registration of the deed and its attestation by two witnesses.
In order to appreciate the above contention of the learned counsel we may refer to para. 7 of M. L. R. 113 which is reproduced hereinbelow in extnso;-
"7. Certain transfers
void.‑(1) Saveas 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 twentieth 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 unirrigated land on an area equivalent to twelve thousand 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 cases where the Commission is satisfied that it was a bona
file transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner what soever, by any person holding it any time during the period from the first day of March, 1907, to nineteenth day of December, 1971, (both days inclusive) an area equivalent to more than twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1966, and Rabi 1966‑1997). 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 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 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 and .... "
7. Perusal of the language of sub‑para. (1)(a) of para. 7 reproduced would show that for the purposes of aforesaid sub‑para. transfer of any land and creation of any right or interest in or encumbrance on any land made between the target dates shall be and shall always be deemed to be void, irrespective of the question whether these transactions are legal or not and the land shall be deemed to be owed or possessed by the person by whom it was owned or possessed immediately before that date: However, when scrutinizing such transactions in terms of para. 7 (1)(b) the only factor which appears to be relevant and to be considered is the bona fides of the transaction. The submission of Mr. Imam Ali Kazi, the learned counsel for the petitioner is that the alienations in question made by the petitioner No. 1 cannot be struck down by the
Federal Land Commission merely on the ground that the transaction suffered from some legal technicality on account of alleged want of registration and attestation of the deed as required by section 123 of Transfer of Properties Act.
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 require ment of registration of the deed has not been complied with. 1 his conclusion finds support from the case of Atta Muhammad v. Federal Land Commis sion 1979 C L C 294, 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 cons trued the word "transfer" strictly in a manner which would be justified only in a case where the dispute was between the transferor and the transferee. 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‑Js whether in effect the transfer is complete even if it is not strictly so under the general law governing the transfer of property.
It was further held:
In my opinion, for the purposes of the Regulation, it is the de facto position that count‑s and not the de jure one except there the validity of the transfer is disputed also by one or the other party to the transfer. Similarly while interpreting the words "own" and "possess" occurring in paragraph 10 of the Regulation, the Land Commission should always bear in mind the purposes of the Regulation itself. For. it is only to enforce the provisions of the Regulation that the Commissions have been created and not to settle disputes relating to transfer or properties between the transferors and the transferees. In the circumstances of this case, the transferor has completely gotten rid of the property. Therefore, he cannot be said either to 'own' or 'possess' it within the meaning of paragraph 10 of the Regulation."
7‑A. We have carefully gone through the impugned order and find that the respondent No. 1 has not disputed the de facto nature of the alienation made by the petitioner No. 1 by way of oral gift in favour of his parent (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 e Records of Rights. There is also no dispute between the donor and the donees and the circumstances established that petitioner No. 1 had complete 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.
8. We have reproduced above in para 6, the relevant portion of the impugned order passed by respondent No. i and find that the de facto nature of the aforesaid gifts and the bona fides of the transactions have not been disputed or even doubted. Indeed the Sind Land Commissioner vide order passed on 21‑6‑1972 expressly found the same to be in order and covered by Explanation I to para. 7(i)(b) of the Regulation in the following words:‑
"Alienations in favour of mother and father are by way of gifts through statement dated 1a‑2‑1968. The gifts are according to muslim law. They are covered by Explanation 1 to para. 7 (i) (b) of the Regulation. I therefore declare them to be in order."
(Note.‑It appears to us that the words "Muslim law" the above order is a misprint and it should have been "Hindu law)"
Reference may here be also made to a recent judgment of a Division Bench of our own Court in the case of Limo Khan and another v. Member, Federal Land Commission P L D 1981 Kar. 114. The petitioner therein by registered agreement dated 3‑6‑1971 agreed to purchase 73.33 acres of land, for Rs. 1,33,000, they made part payment and were put in possession of the said land in part performance. On the basis of the said agreement, Revenue Authorities caused mutations in respect of the said land in favour of the petitioners on 21‑6‑1971. The sale deed was however registered after 20‑12‑1971. After coming into force of M. L. R. 115 in 1972, the seller filed a declaration under paragraph 12 disclosing his holdings on 1‑3‑1967 and showing apart from other alienations, the aforesaid sale made by him in favour of Limo Khan and another. The said alienations were scrutinized by Sind Land Commissioner, who by order dated 21‑6‑1972 having found the alienations as bona fide, declared them to be not void under Paragraph 7 of the said Regulation. After a lapse of nearly four years, the matter was taken up in exercise of suo motu powers by the Member, Federal Land Commission, who by order dated 8‑4‑1976 declared the alienation in favour of the petitioners in that case as void on the ground that sale‑deeds were not executed until after 20‑12‑1971, and the arguments advanced on their behalf that the transactions were in pursuance of an agreement recorded before the crucial date and petitioners were in possession in part performance was rejected. In the circumstances Constitution Petition was filed in the High Court, in which paragraph 7 (i) (b) of M. L. R. 115 came up for consideration. Citing with approval the observations of Mr. Justice Samdani, in the case of Atta Muhammad which have been noted above, Mr. Justice Nasir Aslam Zahid while delivering his opinion, held:‑
"19. There is yet another reason that not only completed sale transac tions duly confirmed by registered deeds can be confirmed under para. 7 (i) (b) of the Regulation but also other transactions, which create right or interest in the land although such transactions may not be complete sales through registered deeds. This sub‑paragraph lays down that unless the Commission is satisfied that it was a bona fide transaction, the transfer of any land or creation of any right or interest by the affected person during the prescribed period shall be deemed to be void and the land so transferred or the land on which the right, interest or encumberance 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. According to this provision, therefore, if in respect of any land, any right, interest or encumberance has been created by a declarant in favour of a third party and the said transac tion is held to be a bona fide transaction by the Land Commission authorities the said land may not be considered to be a part of the holding of the declarant for the purposes of land reforms law. It is, therefore, clear that even if no transfer in the form of a registered sale deed has taken place but the transaction only reflects the creation of any right or interest in land, it is possible for the Land Commission authorities to declare such transaction as bona fide and in such case, the person, who has created such right or interest in favour of another person, may not be treated as the owner of such land for the purpose of determining his holding under the Land Reforms Regulation, 1972."
9. Mr. Nasrullah Awan the learned counsel for respondents Nos. 1 and 2, while addressing us on the legal aspect of the case and its effect on the disputed alienations, could not say anything in support of the impugned orders in view of the two decisions, one of the learned High Court of Lahore (1979 C L C 294) and the other of learned Division Bench of this Court (P L D 1981 Kar. 114) which is binding on us.
10. Accordingly we find that the petition must succeed. The impugned order passed on 18‑12‑1976 by respondent No. 1 is declared to have been passed without any lawful authority and to be of no legal effect.
The petition is allowed with no order as to costs.
Petition allowed.
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