GHULAM RASOOL Versus SENIOR MEMBER, FEDERAL LAND COMMISSION

1. SAEEDUZZAMAN SIDDIQUI, J.‑ ‑The petitioners have challenged in this petition the order of Senior Member, Federal Land Commission, dated 9‑10‑1984, whereby an area of 90‑22 Acres of land acquired by petitioners Nos. 2 to 5 in their names through registered sale‑deeds during the year 1968 to 1972 was treated as part of the holding of petitioner No. 1 for the purposes of determining his case under paragraph 10 of M.L.R.

115. The following facts may be stated here in brief which are relevant to determine the controversy.

2. Petitioner No.1 who is a retired Government servant submitted a declaration in respect of agricultural lands owned by him under M.L.O.

115. In his declaration petitioner No.1 disclosed that he inherited 39.5 Acres of land while 198‑7 Acres of land were purchased by his sons (petitioners Nos. 2 to 5) out of their own resources. The Additional Deputy Land Commissioner, Khairpur, who scrutinized the declaration of petitioner treated the entire purchased land as the holding of petitioner No.1 and allowed him to retain 100 Acres only out of it and directed resumption of excess area of 98‑7 Acres by order, dated 24‑5‑1972. Subsequently in terms of notifications, dated 17‑7‑1972 and 7‑8‑1972 the petitioner applied for exemption of the land standing in the names of petitioners Nos. 2 to 5 and the matter came up for reconsideration before the D.L.C. Khairpur who exempted an area of 50 Acres out of the resumed land which stood in the name of petitioner No. 2, by order, dated 28‑11‑1972. The petitioner No.1 was still not satisfied and made a review application before the D .L. C . , Khairpur to review his order, dated 28‑11‑1972. The D.L.C. Khairpur after obtaining necessary permission from Land Commissioner Sind reviewed his order, dated 28‑11‑1972' and passed a fresh order on 7‑4‑1973 allowing petitioner No. 1 to retain the land as follows:‑

3. Inherited property 39‑5

4. Permissible area under par&. 10 of

5. M.L.R. 115. 100.00

6. Area allowed on account of tubewell. 16‑27

7. Area purchased by petitioners Nos.2 to 5. 90-22

8. Total ‑ 246'14 acres

9. As a result of above determination by the Deputy Land Commissioner, Khairpur, the petitioner was allowed to retain a total area of 246‑14 Acres and only an area of 7‑13 Acres was ordered to be resumed from the holding of petitioner No.1. It appears that upon objection raised by Officer Incharge, Sind Land Commission, Sukkur, with regard to the area acquired by the sons (petitioners Nos. 2 to 5) of petitioner No. 1, the case was again examined by Deputy Land Commissioner, Karachi but he refused to review the order of his predecessor, dated 7‑4‑1973. Thereafter O.S.D., Federal Land Commission in a suo motu Revision No. 1464/FLC/75 by order, dated 6‑8‑1976 held that the land acquired by the sons (respondents Nos. 2 to 5 of petitioner No. 1 was not acquired through independent source and therefore, under paragraph 10 of M.L.R. 115 it constituted the holding of petitioner No.1. He accordingly set aside the order of D.L.C. and remanded the case for fresh determination of case and resumption of excess land. The order of 0. S: D. Federal Land Commission, dated 6‑8‑1976 was challenged before this Court in Petition No. 295 of 1977 which was allowed and the case was remanded back to the Federal Land Commission for a fresh decision after allowing parties to lead evidence on the point whether the money for which the land in question was purchased belonged to the sons or the father. After remand of the case the Senior Member, F. L. C. recorded evidence of petitioners Nos. 1 and 2, their witnesses and held that the lands purchased by the sons of petitioner No. 1 was out of the resources of petitioner No. 1 and, therefore, it formed part of his holding and thus maintained his earlier order. The petitioners have challenged this order.

10. Mr. Mushtaq Memon, the learned counsel for the petitioners contended before us that the decision of the Member F.L.C. is based on a misconception of law relating to 'Ariat'. It is contended by the learned counsel that respondent No.1 failed to appreciate that the income derived by petitioners Nos. 2 to 5 from land given to him on 'Ariyat' by respondent No.1 exclusively belonged to them and, therefore, the land purchased by them out of such income could not be held to be the property of petitioner No.1. The learned A.A.‑G. on the other hand supported the order of respondent No.1 and additionally contended that the plea of petitioners that land was given by petitioner No.1 to petitioners Nos. 2 to 5 on 'Ariyat' and out of the income of land which was with them on 'Ariyat', they purchased the land meaning 90‑22 Acres was not raised at the time of filing of declaration form under M.L.R. by respondent No. 1 and, therefore, the same cannot be considered. We are unable to accept the contention of learned A.A.‑G. From the order of respondent No.1 it is quite clear that the learned Member, F.L.C. did not disbelieve the contention of petitioners that the land was given on 'Ariyat'‑by petitioner No.1 to petitioners Nos. 2 to 5 and that the land measuring 90‑22 Acres was purchased from the income arising from the land which was given on 'Ariyat' to them. On the contrary he found that the income arising from land given on 'Ariyat' to petitioners Nos. 2 to 5 by petitioner No.1 shall be deemed to be income of petitioner No.1 and, therefore, the land purchased by petitioners Nos.2 to 5 from ‑such income formed part of the holding of petitioner No.1. We quote here the relevant part of the order of respondent No.1 which reads as follows:‑

11. "(5). In a nutshell the declarant and his sons have led evidence to the effect that the declarant had given by way of 'Ariyat' land measuring 39‑U5 Acres which he had inherited and land measuring 124 Acres which had been purchased by the declarant prior to 1968. That Izzat Ali son of the declarant had managed the lands since 1967 when he had attained majority and had enjoyed alongwith his younger brothers the usufruct and the produce of the lands. Further, that out of the produce and income derived from the lands merged by Izzat Ali he had purchased land measuring 90‑22 Acres in his name and the names of his younger brothers.

(6) Even if complete reliance is placed on the evidence produced by the declarant and his sons and on their behalf, the issue to be decided would still to be whether the income derived from the land given on 'Ariyat' by the declarant to his son would be considered as income derived from the independent sources of his sons or not. The contention of the respondents is that the land was managed by Izzat All. Even if this point is conceded the fact that the land had been given by declarant to his sons cannot be controverted. Even though the land was given on the basis of 'Ariyat' by the declarant to his declarant to his sons the fact remains that the income which was derived from such land was not derived from the independent sources of the sons of the declarant but was in fact derived from the land which the declarant had given to his sons. It may be noted that apart from the income derived from the land given by the declarant to . his sons they had no independent source of income and the land purchased in their name was purchased out of the income derived from the land given by the declarant to his sons.

12. (7)According to Notification No. SLC‑3668/72‑2476, dated 17‑7‑1972 where the heirs of a Government servant have acquired land through their own source, such land would not attract application of para. 10 of M. i.. R. 115 and would not be included in the holding of the Government servant. It will be seen that in the instant case the additional area of 90‑20 Acres was purchased by sons of the declarant from the income which was derived from 39‑03 Acres inherited by the declarant and 124 Acres of land purchased by him prior to 1968. Thus, it is clear that land purchased by the sons of the declarant was also out of his resources and as such is to be included in his holding for the purposes of determining his case under paragraph 10 of M.L.R. 115."

13. In view of the above findings of learned Senior Member, Federal Land Commission, we confine ourselves here to the sole question whether the income derived by petitioners 2 to 5 from the land which was given to them on 'Ariyat' by petitioner No.1 could be considered as their independent source of income so as to render the property purchased by them from such income as their personal property or such income accruing to petitioners Nos.2 to 5 should be considered as the source of petitioner No.1. In order to answer this question it is necessary to refer to the law relating to 'Ariyat' in Islam as enunciated by the classical as well as modern jurist.

14. Amir Ali in his book Muhammadan Law (5th edition) at page 35 quotes the following definition ‑ of 'Ariat' from Durrul Mukhtar, Kitab‑ul‑Hiba.

15. "To make a person the owner of the substance of a thing without consideration is a Hiba (gift), while to make him the owner of the profits only ‑ without consideration is an Aariat or commodatum'."

16. Similarly Fayzee in his book 'Outlines of Muhammadan Law' (IIlrd edition) at page 48 while comparing the incidents of 'Hiba' and 'Ariyat' states as follows: ‑

17. 'Ariya' is to transfer the right to enjoy the use or profits without any return. According to Durrul Mukhtar, 'to make a person the owner of the substance of a thing without consideration is a Hiba (gift), while to make 'him‑ the owner of the profits only without consideration is as 'Ariya or commodatum. In the classical definition of the Hedaya and the Alamgiri, it is 'the giving (Tamlik) of the usufruct (Manafi) without any return. For instance, 'I have lent this thing to you', or 'I have given you the use of this garment or house,' or 'my house is your residence'.

18. In Hiba the transferee acquires the right to the property itself; in 'Ariya' he only obtains the use or beneficial enjoyment for a limited time, and the property does not pass to him.

19. The chief incidents of this form of gift are, first, that) the period for which the gift is made may or may not be specified; and secondly, that it is recoverable at will."

20. Kamila Tayabj! in his book Limited Interest in Muhammadan ILaw (1949) in Chap. III after tracing the historical background of lair of 'Arlya' and its gradual development recorded following conclusion at page 44:‑

21. "The definition of 'Ariya' is the giving of the property (Tamlik) of usufruct without a return. The grantor of the 'Ariya' has to have legal capacity, but, in Shia law, a youth can grant it if he has the consent of his guardian. The subject of 'Ariya' has to be something which is capable of use without extermination. It does not matter however, if it constitutes Musha .

22. An Ariya can be for a limited or an unlimited term, but the lender, except under Maliki law, can resume it at his will. In Shia law, however, though ariya is always recoverable, Sukna is a kind of Ariya, which is binding if for a fixed period.

23. No special form of words was laid down for the creation of an Ariya, but where there was any kind of return involved, the grant, unless it could be construed as one of the 'partnerships' like Modarea or Musaqa, became a Fasid Ijara and care had to be taken that the grant was not mistaken for Hiba. In this as in other matters of construction Muhammadan Law paid the greatest respect of intention."

24. In Mulls's book on Muhammadan Law (1981 edition) Ariyat is defined in section 170 as follows:‑

25. "170. Areeat.‑‑The grant of a licence, resumable at the grantor's option to take and enjoy the usufruct of a thing, is called Areeat. "

26. In the explanatory notes to section 170 !bid the learned author has quoted from Hedaya the following passage to explain the classical concept of 'Ariyat':‑

27. "An Areeat is not a transfer of ownership, but a temporary licence to enjoy the profits so long as the ‑grantor pleases, and is defined by the author of Durrul Mukhtar as 'making another the owner of the usufruct without any consideration'. A Hiba is revocable except in certain cases. A Hiba‑bil‑hwaz is not revocable in any case. An arrest is revocable in every case."

28. In Muslim Law by Saksena (4th Edition) the learned author defined at page 385 'Ariat' as follows with reference to a large number of decided cases noted at the foot of the page:‑

29. "2. Ariat‑‑ Under the Hanafi law, Ariat is the transfer of the right to enjoy the thing without any consideration and thereby the acquirer becomes entitled to the profits. Ass it is only a gratuitous loan of an article, it is not necessary that for this purpose the donor must have attained puberty or its subject may be undivided part of any property, and the formalities of declaration and acceptance are also not required to be observed.

30. Thus, it is only a permission to use some property or to take its usufruct for a definite period. It is revocable at donor's will and is not transferable or heritable. Therefore, Ariat is a temporary licence to enjoy the profits so long as the grantor pleases. When a maintenance grant is a transfer of the‑ right to the usufruct of a property, the transaction is an Ariat as a distinguished from a Hiba. The essentials of an Ariat are:‑

(i) it is revocable,

(ii) it is for a definite period, and '`~

(iii) it is not transferable or heritable.

31. The contention that a life interest is unknown to the Muslim Law is not well‑founded. The rule of the Muslim Law stated in the texts (namely that a condition repugnant to a gift is void) is restricted to cases where the subject‑matter of the gift is the entire physical property and is inapplicable to a case where it is a limited interest in the property and should not be extended to the latter class of cases. Ariat for a fixed period being valid, it follows that the gift of the usufruct of property for the life term of the donee is valid as Ariat, though it would not be included in the term Hiba."

32. After considering the above definitions carefully we are in no doubt that where a property is given on 'Ariyat' by one person to another, the person receiving the property on 'Ariyat" becomes entitled to the enjoyment of such property without consideration in addition to his entitlement to the profits arising there from during the period of 'Ariyat'. In view of the above legal position we are of the view that respondent No.1 having accepted the position that petitioners Nos. 2 toy 5 had purchased the land measuring 90‑22 Acres during 1968 to 1977 out of the income accruing to them from the lands given to them on 'Ariyat' could not hold that the purchased land belonged to petitioner ‑ " No. 1 as it was purchased out of the resources of petitioners Nos.2 to 5. The law relating to 'Ariyat' does not contemplate that a man may give his property to another on 'Ariyat' and yet retain the profit arising therefrom to himself during the period of 'Ariyat'. The profits arising from the property during the period of 'Ariyat' belong exclusively to person to whom the property is given on 'Ariyat'.'

33. We accordingly accept the petition and declare that the order of respondent No.1, dated 9‑10‑1984 as without lawful authority. In the circumstances of the case we make no order as to costs.

34. A . A . Petition accepted .