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Civil Appeal No. 117 of 1974, decided on 3rd March, 1986.

(On appeal from the judgment of the Lahore High Court, dated 12‑12‑1975, in Writ Petition No. 2298 of 1977).

‑‑‑Art. 185(3)‑‑Land Reforms Regulation, 1972 (M.L.R. 115), para. 7‑‑Gift‑‑Leave to appeal granted to consider whether gifts were rightly made in favour of two minor sons of donor and were in existence in circumstances of case. ‑‑[Muhammadan law].

‑‑‑Para. 7‑‑Gift‑‑Gift validly made prior to date when mutations were put up for confirmation‑‑Mere fact that donor wished to repudiate gift, held, would not legally invalidate such gift‑‑Basic question in case was whether gift was validly made when matter was reported to Patwari.

‑‑‑Gift‑‑Gift can be orally made and no writing is essential to validity chereof‑‑Mutation of names in revenue record is not a necessary requirement for giving effect to a gift.

‑‑‑Gift‑‑Requirements for a valid gift.

Ordinarily under the Muslim Law three requirements for a valid gift are (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied by or on behalf of the donee, and (iii) delivery of possession of the subject‑matter of the gift by the donor to the donee.

‑‑‑Gift‑‑Gift by father to his minor child‑‑No transfer of possession, held, was required in case of gift by a father to his minor child and the only requirement in such a case was bona fide intention to make gift.

Mir Haji Ali Ahmad Khan Talpur and others v. Government of Sind and others P L D 1976 Kar. 316 ref.

‑‑‑Para. 7‑‑Gift‑‑Gift by father to his minor child‑‑Entries in Roznamcha Waqiati recording substance of statement of father was unequivocal evidence that he had made valid gift in favour of his minor son before he reported to Patwari for purpose of mutation‑‑Donor in his such statement had described land with reference to Khasra numbers and area and had also stated that he had transferred possession of land to donee concerned‑‑Roznamcha Waqiati, held, proof of fact that gift was complete in every respect before mutation entries were effected in record‑‑Document testified to unequivocal and bona fide intention of donor to make gift in favour of his minor son‑‑Fact that mutation was not confirmed or that donor did not abide by gifts for some reason, was wholly immaterial so far as legal effect of transactions of gift was concerned.‑‑[ Muhammadan Law].

‑‑‑Art. 199‑‑Constitutional jurisdiction‑‑Finding on a question of fact by a subordinate Tribunal in total disregard of relevant material placed before it, held, could be reviewed in constitutional jurisdiction‑‑Order passed on basis of such finding, therefore, would be an order passed without lawful authority.

S. Inayat Hussain, Advocate‑on‑Record for Appellant.

Rao Muhammad Yousaf Khan, Advocate‑on‑Record and M. Nawaz Abbasi, A. A.‑G. for Respondents.

Date of hearing: 3rd March, 1986.

In the year 1970, appellant Muhammad Zaman Khan held considerable agricultural land in several Mauxas of Tehsil Lodharan, District Multan. He made an oral gift of 371 Kanals 18 Marlas out of the aforesaid land in favour of his minor son Khuda Bakhsh and 512 Kanals 18 Marlas of land in favour of his other minor son named Muhammad Bilal. The factum of these gifts having been made and possession having been delivered to the donees was duly recorded, vide report No..200 and 201, respectively in the Roznamcha Pachwari of the Patwari on 23rd February, 1970. These are evidenced by the reports in the Roznamcha Waqiati on record for the year 1969‑70. Patwari also entered Mutations No.49 and 50 on the same date in the revenue record. However, when on 7th June, 1970, mutations were put up for confirmation before the Assistant Collector‑II Mutations Nos.49 and 50 aforesaid, were rejected on the ground that as the donor was an agricultural income‑tax assessee he had to obtain prior permission from the Collector for making the gifts and therefore, the donor was for the time being not supporting the gift mutations. Subsequently on 11th March, 1972, Martial Law Regulation 115 known as the Land Reforms Regulation was promulgated. Two days thereafter, on 13th March, 1972, separate civil suits were filed by the donees against the appellant, their father, seeking declaration that the gifts in their favour were validly made and the ownership duly conveyed in their favour. The civil Court decreed the suits and in pursuance thereof a new Mutation No.89 was sanctioned on 6th August, 1973, in respect of the cancelled Mutation No.50. As there was a slight error in the description of the area in the other decree in respect of earlier Mutation No.49 for the correction of which an application was submitted in the civil Court no fresh Mutation, on the basis of the other decree was yet sanctioned. In the meantime in obedience to the Land Reforms Regulation the appellant submitted declaration in Form No. LR I which was scrutinized by the Land Commissioner, Multan Division, Multan.

2. By his order dated 11th July, 1972, the learned Land Commissioner, however, found the gifts made by the appellant in favour of his sons to be invalid on the ground that Mutations No.49 and 50 were rejected and there was nothing on the record to support the contention of declarant that he had gifted the land in favour of his sons.

3. On appeal before the learned Additional Chief Land Commissioner, Punjab, it was contended by the appellant that the two reports in the Roznamcha Waqiati clearly established that the appellant had already gifted the land in favour of his two minor sons as well as transferred possession of the subject land to the donees, with the result that the transactions of gift were complete in all respects at the time the same were reported to the Patwari. Learned Officer, however, did not accept this argument for the reasons which appear from the following extract from his order:‑

"The report to the Patwari was on behalf of the donor and he was making the statement in the capacity as will be clear from the wordings of the reput. It was before the attesting officer that he was to make a statement on behalf of the donees. He made no such statement before the attesting officer and in fact retracted his previous statement made before the Patwari. There is no other entry anywhere in the revenue record or any other proof that he had in fact accepted the gift on behalf of his minor sons. A transaction of gift in order to be complete has also got to be accepted. In the absence of any proof that he accepted the gift on their behalf it cannot be stated that the gift was complete."

In this view of the matter the learned Additional Chief Land Commissioner dismissed the appeal of the appellant by his order, dated 22‑10‑1973. Being dissatisfied the appellant challenged the adverse orders passed by the authorities of the Land Commission in a constitutional petition before the Lahore High Court which was also dismissed by a learned Single Judge by judgment, dated 13th December, 1973. The main reason that prevailed with the learned Judge in the High Court was that he was unable to review a finding of fact recorded by the relevant authorities to the effect that the transactions of gift were not complete.

4. Leave was granted in order to consider whether the gifts had been rightly made in favour of the two minor sons and were in existence.

5. We have heard Mr. S. Inayat Hussain, learned counsel appearing on behalf of the appellant and Mr. M. Nawaz Abbasi, A.A.‑G who appeared on behalf of the respondents. Learned A.A.‑G. has very fairly conceded before us that there was no legal embargo on the appellant to transfer his land by way of gift by virtue of the fact that he was an assessee for the payment of agricultural income‑tax. The perusal of the order rejecting the confirmation of Mutations No.49 and 50 by the Assistant Collector, dated 7th June, 1970, being placed in proper perspective in the light of the aforesaid concession, clearly makes out that the statement made by the appellant that he was unable to make a gift because he was paying agricultural income‑tax without the prior permission of the Collector, was made under a misconception of law. The order clearly shows that it was on this account that the appellant did not press his request for confirmation of the mutations for the time being. It is further clear from this that the donor was not outright repudiating the factum of gifts already made by him and reported to the Patwari. Even otherwise if under the law the gifts were validly anade prior to the date when the mutations were put up for confirmation, the mere fact that the donor wished to repudiate them would not legally invalidate the gifts. Therefore, the basic question is whether the gifts were validly made by the donor when the matter was reported to the Patwari.

6. There is nothing on the record, nor indeed it was anybody's case that the entries in the Roznamcha Waqiati, dated 23rd February, 1970, were forged or were manipulated. It is also admitted position that the donor was the father of the donees who were his minor sons. It is well‑settled that gift under the Muslim law can be orally made and no writing is essential to the validity of the gift. Nor for that matter mutation of the names in the revenue record is a necessary requirement for giving effect to a gift under the Muslim law. Ordinarily under the Muslim law three requirements for a valid gift are, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied by or on behalf of the donee, and (iii) delivery of possession of the subject‑matter of the gift by the donor to the donee. However no transfer of possession is required in the case of gift by a father to his minor child and the only requirement in such a case is the bona fide intention to make the gift. See Mir Haji Ali Ahmad Khan Talpur and others v. Government of Sind and others P L D 1976 Kar. 316. Having regard to these principles of Islamic law on the subject we are clearly of the view that the entries in the Roznamcha Waqiati recording the substance of the statement of the appellant is unequivocal evidence that the appellant had made valid gifts in favour of his two minor sons before he reported to the Patwari for the purpose of mutations. In this statement the donor had described the land with reference to Khasra numbers and area and had also stated that he has transferred the possession of the land to the donees concerned. This document is, therefore, proof of the fact that the gifts were complete in every respect before the mutation entries were effected in the record. In any case these entries testified to the unequivocal and bona fide intention of the donor to make the gifts in favour of his minor sons. The learned Land Commissioner and the learned Additional Chief Settlement Commissioner, were, however, totally oblivious of the true effect of: these entries in the revenue record. As already observed, the fact that the mutations were not confirmed or that the donor did not abide, by the gifts for some reason, is wholly immaterial so far as the legal effect of the transactions of gift is concerned. We are unable to subscribe to the view taken by the relevant authorities that there was no evidence on record that valid gifts were made, as this would amount to ignoring totally, material evidence which was before these authorities. This also clearly demonstrates that the learned Additional Chief Land Commissioner misconceived the true legal position in holding that the donor was required to accept the gifts on behalf of his minor children.

7. In the context of what has been stated above the learned Judge in the High Court was also not right in holding that in exercise of constitutional jurisdiction the finding thus recorded was not open to scrutiny. A finding on a question of fact by a subordinate Tribunal in total disregard of relevant material placed before it can be reviewed in constitutional jurisdiction. And an order passed on the basis of such finding would be an order passed without lawful authority. In this case the finding of fact was not only totally unsustainable but was made the basis of the order on a wholly misconceived legal position, which clearly shows that the subordinate Tribunals misdirected themselves to reject the gift alienations illegally.

8. For the foregoing reasons the gift alienations declared by the appellant were liable to be validated under paragraph 7 of Land Reforms Regulation, 1972. We accordingly hold the same to be valid and declare the orders passed by the Land Commissioner and the Additional Chief Land Commissioner to have been passed without lawful authority and to be of no legal effect. In the result the impugned judgment of the High Court is set aside and this appeal is allowed with costs. The relevant authorities of the Land Commission shall now give effect to the two gifts made by the appellant in favour of his sons and take further proceedings in accordance with law.

M. B. A. Appeal allowed.

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