PLD 2013 Lah. 498, NLR 2013 Rev. 93
P L D 2013 Lahore 498
P L D 2013 Lahore 498
Before Shujaat Ali Khan, J
MUKHTAR AHMAD GONDAL---Petitioner
Versus
DISTRICT OFFICER (REVENUE), LAHORE and 5 others---Respondents
Writ Petition No.1993 of 2013, decided on 19/03/2013.
(a) Words and phrases---
----"Gift"---Definition.
D.F.Mulla's principles of Muhammadan Law; Black's Law Dictionary 6th Edn. and Concise Oxford English Dictionaryref.
(b) Words and phrases---
----"Tamleek"---Definition.
Black's Law Dictionary 6th Edn.ref.
(c) Islamic law---
----"Gift" and "Tamleek"---Distinction stated.
The only line of distinction which can be drawn between "Gift" and "Tamleek" is that in the former, the donor can transfer property to anybody else, but where the property is to be transferred under the latter, the condition precedent is that same should be amongst the family members/legal heirs.
(d) Punjab Local Government (Tax on Transfer of Immovable Property) Rules, 2001---
----R. 9---West Pakistan Land Revenue Act (XVII of 1967), S.46---Stamp Act (II of 1899), S.33---Attestation of mutation andtransfer of ownership of property on basis of decree of court---Payment of tax and mutation fee---Scope---Transfer of ownership of property on basis of court decree would not be exempted from payment of tax under R. 9 of Punjab Local Government (Tad on Transfer of Immovable Property) Rules,2001and mutationfeepayableasperlawinvogue.
Said Akbar and others v. Mst. Kakai PLD 1975 SC 377; Abdul Aziz v. Deputy District Officer (Revenue) 2011 YLR 1759; Messrs Marathon Construction Co. Pvt. Ltd. v. Oil and GasDevelopment Co. Ltd. PLD 2010 Lah.707; Allah Ditta Bhatti v. Amjad Saeed and others PLD 2009 Lah. 440; Okara Textile Mills Ltd. and another v. Deputy District Officer (Registration) Okara andanother PLD 2007 Lah. 507; Khurshid Begumv. Sub Registrar and 2 others 2010 CLC 157; Komal Chand and another v. The State of Madhya Pardesh AIR 1966 Madh. Par. 20; Mst. Anwar Sultan v. Collector Lahore PLD 1994 West Pakistan (Rev.) 49 and Muhammad Akbar and another v. Allah Ditta and 3 others 1991 CLC 282 ref.
Muhammad Arif v.Tahira Asif PLD 2005 SC 972rel.
Talal Farooq Sheikh for Petitioner.
Rana Shamshad Khan, A.A.G. with Rana Sajjad Iqbal, Naib Tehsildar and Muhammad Iftikhar, Patwari.
ORDER
SHUJAATALIKHAN, J.---Throughthispetitionunder Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for a direction to the respondents to implement judgment and decree dated 24-2-2009 passed by the learned Civil Judge, Lahore, in its true letter and spirit.
2.Tersely, the facts, forming factual canvass of instant petition, arethatmotherofthepetitioner orally gifted Plot Nos.36 and 37, Block-E, Nawab Town, Raiwind Road Lahore, to him in her lifetime. In this regard the petitioner filed a declaratory suit which was decreed in his favour vide judgment and decree dated 23-2-2009 passed by the learned Civil Judge, Lahore. Respondent No.4 did not give effect to the said judgment and decree, therefore, the petitioner filed an application for implementation of the same to the District Officer (Revenue) Lahore/ respondent No.1 which was accepted vide order dated 11-3-2010. Thereafter the petitioner approached respondent No.5 with orders of respondents No.1, as well as the aforesaid judgment and decree, who entered Rapt No.1 dated 1-9-2010 in Roznamcha Waqiati and Mutation No.16421 was entered and the petitioner was apprised that the said Mutation would be sanctioned on next tour of the concerned Revenue Officer but till today the Mutation duly entered by respondent No.5 has not been sanctioned by respondent No.3; hence this petition.
3.Learned counsel for the petitioner contends that all the officials including revenue authorities are bound to abide by orders of courts in letter and spirit; that there is difference between ordinary gift between two strangers and Tamleek by mother in favour of the son; that revenue authoritieshave wrongly demanded 2% of the present market value and 1% tax as Tamleek is exempt from such levies; that only Rs.500/- can be charged as Mutation Fee; that in view of Punjab Local Governments (Tax on Transfer of Immovable Property) Rules, 2001, Tamleek (i.e. gift in favour of legal heirs) up to 25 acres of agriculture land in rural areas is exempt from any tax and that for the purpose of assessment, value at the time of Tamleek is considered. In support of his contentions learned counsel has relied upon Said Akbar and others v. Mst. Kakai (PLD 1975 SC 377), Abdul Aziz v. Deputy District Officer (Revenue) (2011 YLR 1759), M/s Marathon Construction Co. Pvt. Ltd. v. Oil and GasDevelopment Co. Ltd. (PLD 2-010 Lah.707), Allah Ditta Bhatti v. Amjad Saeed and others (PLD 2009 Lahore 440), Okara Textile Mills Ltd. and another v. Deputy District Officer (Registration) Okara andanother (PLD 2007 Lahore 507), Khurshid Begumv. Sub Registrar and 2 others (2010 CLC 157), Komal Chand and another v. The State of Madhya Pardesh (AIR 1966 Madhya Pardesh 20), Mst. Anwar Sultan v. CollectorLahore(PLD1994WestPakistan(Rev.)49)and Muhammad Akbar and another v. Allah Ditta and 3 others (1991 CLC 282).
4.On the other hand, learned AAG submits that in view of Notification dated 30-6-2010, the decree in favour of the petitioner is leviable with the taxes in question; that even according to Section 33 of the Stamp Act, 1899, the transferee is bound to pay 2% of the value of the land and that since the mutation is to be attested on the basis of decree the question of gift or Tamleek is immaterial and that the respondents are ready to implement the judgment and decree in favour of the petitioner subject to payment of fee in question as per Notification dated 30-6-2010.
5.I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as those produced during the course of arguments.
6.The main contention of the learned counsel for the petitioner is that as the decree in favour of the petitioner is based on Tamleek made by his mother, payment of only Rs.500/- is to be required for attestation of mutation. To appreciate the controversy in a better way, understanding of terms 'Gift' and 'Tamleek' is necessary. According to section 138 of D.F.Mulla's principles of Muhammadan Law, Hiba or gift means-
A hiba or gift is "a transfer of property made immediately, and without any exchange," by one person to another, andaccepted by or on behalf of the latter.
Hiba means transfer of right of property in substance by one person to another without consideration which is a condition to be fulfilled in order to make a gift valid"
Accordingly to Black's Law Dictionary, 6th edition, Gift means-
"A voluntary transfer of property to another made gratuitously and without consideration.
In Concise Oxford English Dictionary, the word gift has been defined as under:--
"A thing given willingly to someone without payment"
From the above definitions one thing is established that gift means voluntary transfer of something to another without any consideration irrespective of the fact as to whether the donor or donee has any relation with each other or not.
7.Insofar as the word `Tamleek' is concerned, though the same has not been specifically defined anywhere but according to the various verdicts of the superior courts of the country the same is considered as one of the kinds of gift and it is equated with the term 'family settlement'. As per Black's Law Dictionary, 6th edition, Family Settlement means-
"An agreement between members of a family settling the distribution of family property among them...an arrangement or an agreement, between the heirs of a deceased person, by which they agree on distribution or management of estate without administration by court having jurisdiction of such administration proceedings"
The only line of distinction which can be drawn between the words 'Gift' and 'Tamleek' is that in the former, the donor can transfer property to anybody else but where the property is to be transferred under the latter the condition precedent is that the same should be amongst the family members/legal heirs.
8.The hub of arguments advanced by learned counsel for the petitioner before this Court is that the transaction in favour of the petitioner is Tamleek, therefore, no mutation or any other fee can be charged by the respondents and any demand made by them in this behalf is totally illegal. A perusal of the documents appended with this petition negates the aforesaid stand taken by the petitioner inasmuch as in Paragraph No.3 of the plaint of the suit filed by the petitioner, wherein the judgment and decree was passed in favour of the petitioner, it has inter alia been mentioned as under:--
"and in the presence of all legal heirs, she verbally gifted out the same to the plaintiff' which was accepted by him and possession was delivered to him and he became the exclusive owner. At the time of death, Mst. Ghulam Ayesha Bibi confirmed the gift in the presence of all the defendants ........."
In the ending lines of paragraph No.4, the petitioner has averred as under:--
the defendants had shown their resistance in getting the properties transferred in the name of the plaintiff without any legal justification, therefore, the plaintiff has to seek the assistance of this Hon'ble Court for the redressal of his claim as the exclusive owner of properties."
Even in the prayer clause of the said plaint, the petitioner inter alia prayed that he be declared as exclusive owner of the properties mentioned in paragraph No.3 of the plaint as the donee from his mother, during her lifetime, in the shape of oral gift made in presence of defendants. A cursory view of the afore-quoted portions from the plaint of the suit, filed by the petitioner, makes it clear that there was no document in the nature of Tamleek in favour of the petitioner and other legal heirs rather the stance of the petitioner revolves upon an oral gift. When the stand of the petitioner is put in juxtaposition to the definitions of words 'Gift' and 'Tamleek', his case, by no stretch of imagination, falls under the category of Tamleek inasmuch as if the properties owned by their predecessor in interest were distributed/transferred amongst the legal heirs, pursuant to a family settlement, then why the defendants refuted the claim of the petitioner and there arose a necessity of filing civil suit seeking declaration.
9.Now coming to the powers of the revenue authorities to levy any fee against attestation of mutation, I am of the view that a perusal of Section 46 of the West Pakistan Land Revenue Act, 1967, is inevitable which for convenience of reference is reproduced herein below: -
"46. Mutation, fees.--(1) The Board of Revenue may fix a scale of fee for all or any classes of entries in any record or register under this Chapter and for copies of any such entries.
(2) A fee in respect of any entry shall be payable by the person in whose favour the entry is made."
From a bare reading of afore-quoted provision of law, it is evident that Board of Revenue has the exclusive power to fix scale of fee against attestation of mutations etc. While exercising the powers conferred under section 46 ibid, the Senior Member Board of Revenue, Punjab, issued Notification dated 30th June, 2010. According to serial No.3 of the Schedule of the said Notification, an entry based on Tamleek (gift in favour of legal heir) is leviable with Rs.500/- as mutation fee whereas as per serial No.6, for entry based on settlement compromise in favour of legal heirs, in respect of agriculture land in rural area, the same amount of fee is required to be paid. Since neither any Tamleek in favour of the petitioner and other legal heirs is available on record nor there is any settlement compromise amongst the legal heirs, case of the petitioner is not covered under the said categories rather the same is covered under the instruments mentioned at serial No.8 which reads as follows:
8. | Decree. Rule of a Court based on mutual consent of parties in cases involving transfer of an immovable property including sale, exchange, gift or mortgage, declaring or conferring a right in or title to an immovable property. | 2% of the value of land according to the Valuation Table notified by the District Collector in respect of the land situated in the locality under the Stamp Act, 1899 (II of 1899). |
A cursory view of the afore-quoted portion of the Notification makes it clear that any court decree based on gift etc. involving transferring of an immovable property is leviable at the rate of 2% of the value of land according to the valuation table notified by the District Collector in respect of the land situated in the locality under the Stamp Act, 1899. The case of the petitioner in no way is distinguishable from the documents mentioned in the fore-quoted portion of the Notification, therefore, he cannot claim any exception. Had there been any entry in the revenue record on the basis of Tamleek, the position would have totally been different. Even according to column No.12 of Mutation No.16421, entered by the Patwari concerned, it has been mentioned in unequivocal terms that the same is based on a judgment and decree passed by Mr. Kashif Qayum, Civil Judge 1st Class, Lahore, in Civil Suit No.76 of 2009. If it was a Tamleek or Gift simpliciter, there should have been any reference to the said document in the relevant column. Since the petitioner is seeking attestation of the mutation as per the judgment and decree passed by the Civil Court in his favour, he is liable to pay the mutation fee as per Notification dated 30-6-2010.
10.Another salient feature of the instant petition is that though the mutation in favour of the petitioner has not been sanctioned formally, the Patwari Halqa concerned has malafidely issued copy of Register Haqdaran Zamin relating to Mauza Rakh Khamba, Tehsil and District Lahore for the year 1998-99 wherein the name of the petitioner has been shown as owner on the strength of mutation No.16421 which has not yet been attested by the competent authority as per law. It is interesting to note that under column No.4 of the said document, Settlers Limited has been shown as the vendor whereas the case of the petitioner is that he is owner in possession of the suit property on the basis of a gift. It is very strange to note that mala fide on the part of the Patwari Halqa concerned is manifest from the fact that he has incorporated the name of the petitioner in the record of rights on the basis of Mutation No.16421 which is still bereft of formal approval by the competent authority.
11.Now coming to the petitioner's plea that if the fee is leviable, the same be reckoned on the basis of the value of the land in the year 1996 i.e. the time of making of gift in favour of the petitioner by his mother. It is very astonishing that on the one hand the petitioner is claiming that cause of action arose in his favour in the year 1996 whereas in Para No.7 of the plaint of his suit he has mentioned in unequivocal words that cause of action arose in his favour after 1-1-2006 when Ch. Muhammad Afzal breathed his last. There is nothing on record tending to establish that any gift in favour of the petitioner was made in the year 1996. Moreover, according to the verdict of the august Supreme Court of Pakistan in the case of Muhammad Arif v. Tahira Asif (PLD 2005 SC 972) the stamp duty etc. is to be paid according to the instrument and not the transaction as the effect is given to the decree of the court and not the transaction. As far as the case in hand is concerned, since the mutation in favour of the petitioner has been entered on the basis of a court decree, he is bound to pay the fee etc. as per the law in vogue.
12.As far as the contention of learned counsel for the petitioner that the petitioner is immune to pay the tax on transfer of immovable property in view of the exemption postulated under section 9 of the Punjab Local Governments (Tax on Transfer of Immovable Property) Rules, 2001, is concerned, since there is no Tamleek in favour of the petitioner rather he is claiming ownership of the suit property on the basis of Court decree, he cannot seek exemption from payment of requisite fee on the basis of section 9 ibid.
13.Now coming to the case-law cited by learned counsel for the petitioner I am of the view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Allah Ditta Bhatti (Supra) the proposition was qua the powers of the Sub Registrar to claim stamp duty against the decree which is not the position in the instant case whereas the cases of Komal Chand and another, Okara Textiles Limited, Khurshid Begum and Mst. Anwar Sultan (Supra) deal with the power of the Sub Registrar to impound any document after its registration on account of raising demand of extra duty and penalty. Likewise, in the case of Marathon Construction Company (Supra) it was held that the instrument is to be stamped according to the time and place where it is executed but in the instant case no document was ever executed rather the claim of the petitioner is based on a court decree. Similarly, in the case of Muhammad Akbar and another (Supra) the point of law involved was as to whether the cousin's sons comes within the definition of legal heirs or they were entitled to get anything under the Tamleek. As far as the case of Said Akbar and others (Supra) is concerned, suffice it to observe that the proposition involved was as to whether any condition put in the Tamleek Nama curtails the power of the donee only to usufruct or he is the full owner and that the same does not relate with the payment of mutation fee against registration of mutation on the basis of court decree. Similarly, in the case of Abdul Aziz(Supra) it has been held that the revenue authorities are bound to give effect to the court's decree in the revenue record and they have no exception but in the said case it has nowhere been held that the revenue authorities cannot claim the requisite fee etc. In the case of the petitioner, the respondents are not denying to implement the judgment and decree of the learned Civil Court rather they are demanding the payment of mutation fee as per Notification dated 30-6-2010.
14.For what has been discussed above, I see no force in this petition which is accordingly dismissed with no order as to costs.
15.Before parting with the order, it is observed that the respondents are bound to attest the mutation in favour of the petitioner forthwith subject to payment of requisite fee.
SAK/M-89/LPetition dismissed.
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