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NO.SMR.1(37) FLC/86, decided on 4th September,. 1986.

‑‑‑Paras. 7 & 29‑‑ Gift‑‑ Genuineness and bona fides of‑ Requirements‑‑Mutation duly entered and sanctioned‑‑Change of ownership reflected in subsequent Jamabandi‑‑ Khasra Girdawari showing possession of donees subsequent to transaction of gift‑‑ Totality of evidence and circumstances in which gifts were made, held, would prove genuineness and bona fides of gift‑‑Minor donees present before Revenue Officer to make statement accepting gift would not be material‑ Such acceptance would be implicit where gifts were made by father of donees when they were minor‑‑Transfer of possession to minor children, would not be necessary in a gift made by father.

1978 S C M R 264; 1984 S C M R 1110 and 1980 C L C 1110 ref.

‑‑‑Para. 29‑‑Validity of transaction‑‑Notice to donor and doneer‑Effect‑ Objections raised by Federal Land Commission's Inspection Team being not tenable, notices issued thereunder relating to transaction of gift were vacated by Federal Land Commission.

Muhammad Bilal and Nazar Muhammad Taher for Petitioner.

This case has been remanded for fresh decision by the Lahore High Court vide their order, dated 3‑6‑1986 in Writ Petition No.340 of 1977 setting aside Chairman, Federal Land Commission's order, dated 6‑12‑1976. Respondent No.1 declarant Dilawar Khan had gifted in favour of his sons, Ahmad Khan and Zafarullah Khan, respondents Nos.2 and 3, land measuring 267 Acres situated in village Mangini, Tehsil Chiniot, District Jhang vide Mutation No.323 sanctioned on 21‑6‑1968. Federal Land Commission's Inspection Team on scrutiny of the transaction found that the donees, Ahmad Khan and Zafarullah Khan, were major sons of the declarant but had not appeared before the Revenue Officer for acceptance of the gift and to acknowledge delivery of possession to them. Since this prima facie amounted to the fact that two of the three essential ingredients of a gift under Muhammadan Law were lacking, notices for suo motu action under paragraph 29 of M.L.R.115 were issued to the respondents.

2. Declarant and the donees are represented through their respective counsel and have been heard and the relevant land revenue record has been examined in their presence. The counsels submitted evidence regarding the age of the two donees in the form of attested copies of the entry in the admission register of Government High School Tahli Mangini and School Leaving Certificates, both of which showed the dates of birth as being 12‑6‑1950 in the case of Ahmad Khan and 2‑5‑1954 in the case of Zafrullah Khan. Their respective ages on 23‑2‑1968 when the gifts in question were made were, therefore, 17 years 8 months 11 days and 13 years 9 months 21 days. In other words, both the donees were minor at the time when the gifts were made to them by their father. The counsels‑‑relied on section 155 of Muhammadan Law according to which no transfer of possession was required in the case of a lift by a father to his minor child. All that was necessary to establish bona fide making of the gift. The counsel also cited the following cases decided in Supreme Court wherein it had been laid down that physical possession of the gift made or non‑delivery of 'possession was not material for establishing the validity of the gift 1978 S C M R 264; 1984 S C M R 1110; 1980 C L C 1110. Acceptance of the gift by the donees, the counsels submitted, was implied in the act of their father, a natural guardian, making the gift to the minor children.

3. Examination of the Roznamcha Waqiati showed an entry on 23‑2‑‑1968 according to which respondent No.1 had made the statement of gifts to the Patwari concerned. The mutation was duly entered in the Mutation register and was duly sanctioned as Mutation No.323 on 21‑6‑1968. The change had also been reflected in the Jamabandi in the year 1968 which was also produced in the Court. The Khasra Girdawari also showed possession by the donees starting from Kharif 1969. The totality of the evidence and the circumstances in which the gifts were made proves the genuineness and bona fides of the gifts. Possession of the gifted property in the hands of the donees is also established from the entries in the revenue record, even though transfer of possession from father to minor children is not necessary under the Muhammadan Law. The fact that the minor donees did not appear before the Revenue Officer to make a statement accepting the gifts is not material in these circumstances, as such acceptance is implicit in the fact that the gifts were made to them by their father when they were minor and were therefore not in a position to perform a legal act.

4. In view of the foregoing, the objections raised by the Federal Land Commission's Inspection Team are not tenable and notices issued paragraph 29 of M.L.R.115 are hereby vacated.

A.A. Notices vacated.

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