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Civil Appeals Nos. 48 and 68 of 1976, decided on 25th April, 1983.

(Against the judgment and order of the Lahore High Court, Lahore, dated 25‑4‑1974 in Writ Petition No. 845 of 1973).

‑‑Art. 185(3)‑‑West Pakistan Land Reforms Regulation, 1959 (M. L. R. 64) para. 25‑‑Alienation of land in contravention of provisions of paragraph 25 of Regulation‑‑Validity of‑‑Leave granted to examine: whether transfer in favour of respondents was divisible, i.e. out of 205 Kanals of disputed land, transfer in favour of one of brothers of petitioner was to be ignored as he did not claim area and thereby petitioner was left with 102 + 102 Kanals of land which was more than a subsisting holding under para. 25 of M.L.R. No, 64; whether entire alienation which reduced holding of alienator below subsisting holding was void or was alienation void only to extent by which holding of alienator was diminished below subsisting holding. If latter view was correct, then alienation in question would be void only to extent of about 8 Kanals whereas Chief Land Commissioner had set aside entire alienation; and whether para. 25 (Martial Law Regulation 64) applied to decrees passed by Courts of competent jurisdiction.

‑‑‑Para. 25‑‑Civil Procedure Code (V of 1908), O. XX, r. 6‑‑Alienation of land‑‑Mutation in consequence of decree of civil Court‑‑Validity of‑ Reduction of holding below subsistence holding‑‑Whether transaction was not sever-able and void as a whole and not in part‑‑Restriction being on alienation of "portion of his holding" which had effect of reducing a holding to an area less than area of subsistence holding, taint was confined to a small portion which was sever-able and such severance was in accord with general principles of law and public policy behind it‑‑Law is to be applied to decree as it stands irrespective of and ignoring subsequent concessions made by parties Decree incorporates and affirms an antecedent transaction which is hit by statutory prohibition and to that extent alone rendered decree void‑ Order of Chief Land Commissioner being in excess of his jurisdiction and based on misinterpretation of law in declaring whole decree void and unenforcible, High Court's judgment in writ jurisdiction upheld and appeal dismissed.

Maleverer v. Red Shaw (1669) 1 M 0 D 35 and Dip Narain Singh v. Nageshar Prasad and others A I R 1930 All. 1 cited.

Khalil Ramdey, Assistant Advocate‑General, Punjab with Ijaz Ali, Advocate‑on‑Record (absent) (in C.A. No. 48 for Appellant).

S.M. Zafar, Senior Advocate Supreme Court with Ejaz Ahmed, Advocate Supreme Court, M.A. Qadri, Advocate‑on‑Record (absent), M. A. Siddiqui, Advocate‑on‑Record for Respondent.

Malik Abdul Qayum, Advocate Supreme Court with Ch. Walayat Khan, Advocate‑on‑Record in C.A. No. 68 for Appellant.

S.M. Zafar, Senior Advocate Supreme Court and Ch. Ejaz Ahmed, Advocate Supreme Court with M.A. Siddiqui, Advocate‑on‑Record for Respondents in C . A. No. 68 for Respondents.

Date of hearing: 25th April, 1983.

Leave to appeal was granted to Chief Land Commissioner, Punjab (in C.A. 48 of 1976) and to private party Muhammad Afzal (in C.A. 68 of 1976) to examine the following questions of law arising out of a judgment of the Lahore High Court, dated 25‑4‑1974.

(i) Whether the transfer in favour of the respondents was divisible i.e. out of 205 Kanals of disputed land, the transfer in favour of Muhammad Akram, one of the brothers of the petitioner, was to be ignored as he did not claim the area and thereby the petitioner was left with 102 + 102 Kanals of land which was more than a subsisting holding under para. 25 of the Martial Law Regulation No. 64;

(ii) Whether the entire alienation which reduced the holding of the alienator below the subsisting holding is void or is the alienation void only to the extent by which the holding of the alienator is diminished below the subsisting holding. If the latter view is correct, then alienation in question will be void only to the extent of about 8 Kanals whereas the Chief Land Commissioner has set aside the entire alienation; and

(iii) Whether para. 25 of Martial Law Regulation No. 64 applies to decrees passed by Courts of competent jurisdiction."

2. One Muhammad Aslam, the father of the contesting private parties, owned about fourteen squares of land in two villages, Kot Miana, and Ghaus Muhammad Wala in Tehsil Bhalwal, District Sargodha. He had two wives Mst. Nazir Begum who died first leaving behind a son Ghulam Mehr respondent. From the other wife, Mst. Ashraf, he had two sons Muhammad Akram and Muhammad Afzal. Before the birth of Muhammad Afzal appellant, Muhammad Aslam transferred 1,246 Kanals of his land in Kot Miann to the first two sons jointly. He also transferred 249 Kanals of land to them in village Ghaus Muhammad. He then sold his own left over proprietary land and purchased 429 Kanals land in Chak 49‑N.B. which he transferred to minor Muhammad Afzal in 1961. Out of it 122 Kanals was acquired by Government for the P.A.F. Colony for which compensation was received by Muhammad Afzal. Muhammad Aslam after so providing for each of his sons felt that everyone of them should have his 2/3 share in each of the three villages. By Mutation No. 533 tested on 17‑9‑1964, 1/3 share (415 Kanals out of 1,246 Kanals) was given in exchange in village Kot Miana, to Muhammad Afzal by Ghulam M'hr and Akram. Similarly by Mutation No. 116 verified on 21‑8‑1964, 83 Kanals were given in exchange in Ghaus Muhammad Wala by the two bothers to Muhammad Afzal. On behalf of Muhammad Afzal, the minor, an exchange Mutation No. 468 was got entered in respect of 2/3 shire of land measuring 307 Kanals and ten Marlas in Chak 49 which was sought to be given in exchange to Muhammad Akram and Ghulam Mehr from whom he had obtained a share in land in the other two villages This mutation was rejected on 21‑5‑1965 on the ground that Muhammad Afzal was a minor.

3. Ghulam Mehr and Muhammad Akram thereupon filed a civil suit (No. 309 of 1965) (n 26‑6‑1965 against Muhammad Afzal minor and their own father as his guardian claiming the ownership of 2/3 (205 Kanals) share in the land owned by Muhammad Afzal in Chak No. 49‑N B. The claim was conceded and in terms thereof the declaration and injunction was granted on 145‑1966. The decree was given effect to by Mutation No. 274 attested or 28‑6‑1967.

4. Muhammad Islam died on 30‑6‑1967. A civil suit was instituted by Muhammad Afza minor through his mother as next friend seeking a declaration that h, continued to be owner of 307 Kanals of land in Chak 49‑N B and the consent decree obtained by the two defendants, on 14‑5‑1966 was operative, inter alia, for the reason that it violated para. 25 of Land Reforms Regulation, 1959. This suit was however withdrawn by Muhammad Afzal on 24‑4‑1972.

5. Muhammad Afzal had also meanwhile filed an appeal against the attestation of Mutation No. 274 which was accepted by the Collector on 26‑10‑1971. The Additional Commissioner accepted on 6‑1‑1972 the appeal of Ghulam Mehr or the ground that in view of the pendency of the civil suit between the same parties the Collector should not have interfered with the mutation. The revision filed by Muhammad Afzal was also rejected by the Member, Board of Revenue.

6. Muhammad Nzal then filed an application under rules 3 and 12 of the West Pakistan Land Reforms Rules, 1959 read with para. 235(c) of Vol. I of Land Reforms in West Pakistan before the Chief Land Commissioner. The Chief Land Commissioner accepted this application and held that the transaction given effect to by Mutation ho. 274 violated para. 55 of the Land Reforms Regulation and was void .as it had the effect of reducing the holding of Muhammad Afzal to 102 Kanals and 10 Marlas whiei was below the subsistence holding of 111 Kanals 5 Marlas. Aggrieved by this order Ghulam Mehr invoked the constitutional jurisdiction of the High Court.

7. In the constitutional petition Ghulam Mehr the writ petitioner took a number of objections to the order of the Chief Land Commissioner. One ground was hat the land happened to be located inside the cantonment and the land was acquired for bona fide residential purpose and as such it was exempt from the constraints provided in para. 25. It was further contended that as the mutation in respect of compulsory acquisition of land for the use of P.A.F. was sanctioned subsequent to the mutation in favour of the writ petitioner the minor transferor could not be said to have alienated his holding so as to reduce it below the subsistence holding.

8. The learned Judges in the High Court rejected most of the contentions raised by the writ petitioner touching the jurisdiction or the competence of the Chief Land Commissioner to deal with the matter. However, the constitutional petition succeeded on the ground that not the entire transaction as such got vitiated or was void but only that part of it which contravened the statute and it was confined to 8 Kanals and 15 Marlas of land out of the total of 205 Kanals shown to have been exchanged. It was also held that as Muhammad Akram a brother of the minor transferor was not claiming any benefit under the decree or under the transaction of exchange and wanted his share to be restored to the minor, there was no violation of para. 25 even if the exchange in favour of the writ petitioner was kept intact. It was also held that the whole transaction could be looked upon as a family settlement or as a decree of the Court as distinguished from an alienation by one party in favour of the other and so stood excluded from the ambit of para. 25. The alienations were directly the subject‑matter of prohibition but not either a decree of the civil Court or a family settlement as such. The necessary declaration was, therefore, granted and confined to the interest of the writ petitioner Ghulam Mehr and the order of the Chief Settlement Commissioner was declared to be without lawful authority.

9. The two appeals one of Muhammad Afzal and the other by Chief Land Commissioner proceed on common grounds of law and fact. It is urged that there was a clear provision of law (para. 25 of M.L.R. 64) which prohibited alienation by any means whatsoever by any person of land so as to reduce his holding below the subsistence holding. Not only there was a peremptory prohibition against such alienations by any means whatsoever, such transactions were, on the express words of the statute, declared void. The language itself as well as the consequence provided left no manner of doubt that the prohibition was absolute, vitiated the entire transaction and left no scope for any authority to ignore the effect of law and to subordinate or sidetrack that provision. In such a situation, according to the learned counsel for the appellants, transaction was inseverable and void as a whole and not in part.

10. The learned counsel for the writ petitioner/ respondent Ghulam Mehr contended that his client would be satisfied if that portion of the transaction of exchange which is afflicted by the taint of prohibition contained in para. 25 is severed without any compensation to him and the remainder of his share is kept intact. According to the learned counsel it is only that portion which can, taking the case against him at its best, be said to be violative of law, tainted or void and un enforceable. The rest of the transaction, the exchange by which Ghulam Mehr and Akram gave a share to Muhammad Afzal in other two villages and that portion of the transaction by which Muhammad Afzal gave them a share without reducing his holding below subsistence holding, should be kept intact on the strict words of the law, on the doctrine of severability of contracts and transactions, and on the principle that such a contract was capable of being specifically enforced, on the strength of the provisions of sections 13 to 17 of the Specific Relief Act. This is in addition to all the legal grounds on which the decision of the learned Judges in the High Court is based.

11. The question as to what is prohibited by the law and declared void by para. 25 is required to be determined and given effect to. As Muhammad Afzal had lost 122 Kenals by its acquisition for the P.A.F. Colony earlier to this exchange, notwithstanding the attestation of its mutation later, he was left with 307 Kanals in Chak No. 49 and this happened to be an area below economic holding. His case of alienation, if at all it was an alienation, fell under clause (2) of paragraph 3 which provides as follows:

"No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding:

Provided that such a person may alienate his entire holding."

12. Clause (5) of the same paragraph provides that any alienation made in contravention of provisions of this paragraph shall be void.

13. It is clear from this law that on the ground of public policy, in advancement of the larger interest of the country's agricultural economy the law had declared certain transactions void and directed all authorities concerned not to permit such an alienation. It restricted the contracting power of the parties. The intention of the law is clear. The consequence of violating the requirements of the law was also provided. The restriction was on alienation of "portion of his holding" which had the effect of reducing his holding to an area less than the area of subsistence holding. Even this was qualified by a proviso that he could alienate B his entire holding. Where he was not selling his entire holding the taint or vice attached by the law was confined only to that portion of the land belonging to him which had the effect of reducing the holding below subsistence holding. The law itself preserved the principle of severability of the transaction and declared the alienation of severed and identifiable portion to be a void transaction. It did not render the entire transaction void nor was there any principle of public policy discernible in rendering the entire transaction of alienation of both valid and invalid parts as void. On the plain language of the law such is the consequence.

14. This provision of the law, it appears, had been framed with the full awareness of the doctrine of severability of contracts, of the enacted law of contract and specific relief as in force in the country. Historically the doctrine of severance has its origin in common law doctrine that legal promises were not void merely because the promisor had made other promises in the same instrument which were illegal. A development of it Maleverer v . Red Shaw (1669) 1 M O D 35 was "that the statute is like a tyrant where he comes he makes all void but the common law is like a nursing father which makes void only that part where the fault is and preserves the rest". A further development of the rule was to refuse severance unless it was in accord with the public policy to do so. Certain tests were evolved, for example, the blue pencil rule according to which the illegal portion of the contract must be capable of being verbally separated from the remainder of the argument.

15. A Full Bench of the Allahabad High Court in Dip Narain Singh v. Nageshar Prasad and others A I R 1930 All. 1 was seized of a similar problem and dealt with it in the context of the Contract Act, section 24 and Transfer of Property Act, section 56 and section 6 (h). In the judgment delivered by Suleman, Judge it was held that once a transferring immovable property has been registered, the transaction passes out of the domain of a mere contract into one of conveyance. Such a completed transaction would be governed by the provisions of the Transfer of Property Act and only so much of the Contract Act as are applicable thereto. In that case transfer of an untransferable right of occupancy had taken place, and it was held that it is the attempted transfer of an untransferable right. The distinction of a void contract and what has been forbidden by law was expressed in the following words:

"There is a clear distinction between an agreement which may be forbidden by law and one which is merely declared to be void. In the former case the legislature penalises it or prohibits it. In the latter case, it merely refuses to give effect to it. If a void contract has been carried out and consideration has passed the promisor may not in equity be allowed to go back upon it without restoring the benefit which he has received. But if the promisee comes to Court to enforce it he would receive no help from a Court of law."

The conclusion reached was as follows:‑

"But if we take the case of a contract only party beyond the competence of the promisor, there is no good ground why the promisee, who has paid good consideration should not be allowed to enforce that part of the promise which the promisor was competent to make."

16. In the case before us there was a decree of the civil Court reflecting the title of the parties to the disputed property. A portion of it was violative of paragraph 25 of the Land Reforms Regulation, 1959 and to that extent it was void, unenforceable in law. The Chief Land Commissioner had indeed the power and the jurisdiction not to enforce that part of a contract or even a decree of the civil Court which was void. He could not sit over judgment either on the basis of concession made by Muhammad Akram or independently with regard to that part of the decree of the civil Court which was not void. He could, therefore, only find fault with the decree in so far as it included 8 Kanals 15 Marlas of land which had the effect of reducing the holding of Muhammad Afzal to an area lower than the subsistence holding which in that estate was 111 Kanals and 5 Marlas. The plain language of the statute, the doctrine of severability of the contracts and the principles governing the specific performance of contract all protected the transaction in so far as it was not void.

17. We are not quite convinced that what the decree of the civil Court reflected was not a case of alienation at all or that it was a case of family settlement. The claim brought to the Court and decreed by it was embedded in an earlier transaction and that was in the nature of an alienation which was sought to be recognized and legally enforced. Merely because such an alienation got recognition and enforcement by a decree of the civil Court will not take the transaction as such out of the ambit of alienation as was mentioned in paragraph 25 of the Regulation.

18. The question of a family settlement prima facie does not arise because we find that the property qua Muhammad Afzal already stood separated and divided. None of the sons of Muhammad Aslam was laying a claim to any property which did not already belong to him. There was no antecedent claim to be either recognized or adjusted. There was no family dispute over it. It was at lone desire of Muhammad Adam 'not having any interest in the property but a best acting as the guardian of the property of the minor which induced a series of transactions, of exchanges.

19. The somersault that Muhammad Akram took after the impugned decree of the civil Court was passed and after the death of his father, is not relevant for determining the validity of the decree or the jurisdiction of the Chief Land Commissioner or for giving effect to the decree in revenue record. A decree of the civil Court cannot be set aside by any authority on a subsequent concession of the party to the decree though it may not be given effect to. Legally a decree continues to have the validity, the legality and the efficacy notwithstanding the admissions, renunciation or abandonment by any party after the decree except to the extent that it may be given effect to in subsequent litigation and by competent Court. The Chief Land Commissioner could not for that reason on the admission of Akram modify the decree or control its legal effect while interpreting and applying para. 25 of the Land Reforms Regulation, 1959.

20. The conclusion therefore is that on the plain words of the statute the taint was confined to a small portion which was severable and such severance was in accord with the general principles of law and public policy behind it. The law is to be applied to the decree as it stands irrespective of and ignoring the subsequent concessions made by the parties. The decree incorporates and affirms an antecedent transaction which is hit by the statutory prohibition and to that extent alone rendered the decree void.

21. The Chief Land Commissioner has, for the reasons already recorded, exceeded his jurisdiction and misinterpreted the law in declaring the whole decree void and unenforcible. To this extent the judgment under appeal is upheld and both the appeals are dismissed with no order as to costs.

M. I. Appeals dismissed.

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