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Constitutional Petition No.D-354 of 1978, decided on 29th February, 1984.

---Art. 199--Land Reform Regulation, 1972 (M.L.R 115), paras. 7 & 29--Gift-- Petitioners (minor son and daughter) specified heirs in terms of Explanation 1 to para.7 --Bona fide of gift, held, could not be gone into--Held further, that there was no embargo on power of mortgagor to effect gifts as gifts would have been subject to mortgage.

Chief Land Commissioner and another v. Mouladad and others 1978 S C M R 264 ref.

Imam Ali Kazi for Petitioners.

Nemo for Respondents.

Date of hearing: 29th February, 1984.

:----This Petition is directed against the order dated 20-12-1976 passed by respondent No.1.

The brief facts leading to the filing of the above Petition are that late Mir Bandah Ali Khan effected gifts in favour of petitioners Nos. 1 and 2 i.e. minor son and daughter in the year 1971 as follows:----

It seems that the matter came up for consideration before the Land Commissioner, Sind under paragraph 7 of the Land Reforms Regulation, 1972 (M.L.R. 115), who by his order dated 28-6-1972 held that the gift in respect of agricultural land situated in Deh Tando Ghulam Ali was valid, whereas the gifts in respect of the land situated in Deh Dariri were invalid for the reason that the same was mortgaged with the Agriculture Development Bank of Pakistan. The late Bandah Ali being aggrieved by the above order filed appeal before the Chief Land Commissioner, Sind Hyderabad, who by his order dated 14-5-1973 allowed the appeal and held that the above two gifts were also valid. It further seems that respondent No.1 in exercise of suo motu revisional power under paragraph 29 of M.L.R. 115 reopened the issue and by his impugned order dated 20-12-1976 has held that the above two gifts were invalid as the lands were mortgaged with the Agriculture Development Bank of Pakistan. The petitioners who are the donees being aggrieved by the above order have filed the present Petition through their next friend Mst. Bibi Sona widow of Mir Bandah Ali Khan.

2. In support of the above Petition it has been urged by Mr. Imam Ali Kazi, learned counsel for the petitioners that apart from the fact that the petitioners being specified heirs in terms of explanation 1 to para. 7 of the M.L.R and, therefore, the bona fide could not have been gone into, there was no legal embargo on the power of the mortgagor to effect the gifts as the gifts would have been subject to the mortgage In furtherance of his above contention he has referred to the case of Chief Land Commissioner and another v. Mouladad and others 1978 S C M R 264, in which a Division Bench of the Hon'ble Supreme Court declined to grant leave to appeal against the judgment of a Division Bench of the Lahore High Court, in which it was held that the gift in respect of mortgaged land effected was not void including for purpose of M.L.R. The above case on all fours is applicable to the present case. We, therefore, allow the Petition and declare the impugned order as being without lawful authority and of no legal effect. The respondents are restrained from acting upon the above order. There will be no order as to costs.

M. A. K. Petition accepted.

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