' The instant Civil Revision No,666 of 2000 as also Civil Revision No,628 of 2000, are being disposed of together, as both involve the common questions of law and facts.
2. The suit for declaration, brought by the petitioners claiming, that they are the joint owners of the suit property and the claim of the respondent No,1 about exclusive ownership, and any entry to this effect in the Revenue Record is illegal and unlawful, has been dismissed, whereas the suit for declaration filed by respondent No,1, that he is the exclusive owner in possession of the suit property, has been allowed, by the learned trial Court vide judgment and decree, dated 26-6-1994.
Appeals of the petitioners have also failed on 14-1-2000, hence these revisions.
3. Briefly stated the facts of the case are, that Ghulam Qadir petitioner No,2 is the father, of petitioner No,1 and the respondents. He admittedly was the owner of the land measuring 24 Acres situated in Mauza Panduri. He is yet alive and has three sons and two daughters. The other relevant fact is, that his three sons along with their two uncles, purchased 132 Kanals and 6 Marlas of land in equal share, through a registered sale-deed dated 13-9-1981. Subsequently, on 5-12-1982, a document Exh.P.1. Dated 5-12-1982 was executed by his three sons purporting it to be some family settlement, by virtue whereof, Nasrullah respondent No,1 got 10 Acres of land out of 132 Kanals and 6 Marlas, jointly in the names of his two brothers and two uncles, whereas Zafarullah and Ajmal, the other two sons of Ghulam Qadir, got certain lands out of 24 Acres owned by Ghulam Qadir.
Anyhow, Ghulam Qadir in the years 1985 and 1986, out of his 24 Acres of land, gifted about 70 Kanals in favour of Ajmal, his son and Mst. Muqaddas, his daughter, and a Mutation No,26, dated 29-1-1985 of gift was duly executed. He through gift Mutation No,30, dated 8-9-1986, out of the remaining land of 24 Acres, bequeathed 116 Kanals and some Marlas in favour of Zafarullah, petitioner No,1 and Nasrullah respondent No,1. None including Nasrullah respondent No,1, has challenged these mutations. However, all the petitioners along with respondent No,2, filed a suit challenging the claim of respondent No,1 of being the exclusive owner of 10 Acres of land, allegedly falling to his exclusive ownership on account of the family settlement and they also impugned the Revenue Record, envisaging the -change of ownership in favour of respondent No,1. Likewise, respondent No,1 also brought a suit for the declaration claiming exclusive ownership of the same land, on the basis of the family partition dated 5-12-1982. Both these suits were consolidated and after the conclusion of the trial, the learned Civil Judge was pleased to allow the suit of respondent No,1 and dismiss that of the petitioners and respondent No,2. In this behalf, it has been found by the Court that Exh.P.1, the family settlement between the parties, stands proved and, therefore, on account of this, respondent No,1 has become the owner of 10 Acres of the land, purchased through registered sale-deed dated 13-9-1981 by him along with his two brothers and two uncles, as stated above. One of the reasons to arrive at this conclusion, given by the learned trial Court is, that Ghulam Qadir has appeared as a witness and has admitted that he had gifted his property orally, which means that on the basis of this oral commitment and in order to give effect thereto, the document Exh.P.1 was executed. Aggrieved of the above, the petitioners preferred appeal, but without any success, and the conclusion drawn by the learned Civil Judge has been affirmed.
4. Learned counsel for the petitioners has argued, that the document dated 5-12-1982 was neither a gift-deed nor a family settlement, through which, an admittedly co-owner of the property could be deprived of his ownership of the joint property; Exh.P.1 was executed only between the three brothers namely Nasrullah, Zafarullah and Ajmal with an object that they could independently cultivate separate parcels of land without the interference of each other. He states that the present petitioner No,1, in no manner, relinquished or gave up his right in the joint ownership of 132 Kanals and 6 Marlas purchased through the sale-deed dated 13-9-1981 and obviously, the land of Ghulam Qadir, petitioner No,2, measuring 24 Acres, could not have been partitioned through such settlement by his sons, when Ghulam Qadir was not even a party to the document Exh.P.1; simply for the reason that he has witnessed the instrument, by itself would not mean that he ha's gifted his property, as claimed by respondent No,1; particularly, when subsequent to this, Ghulam Qadir has himself gifted, the aforementioned 24 Acres, through Mutation No,26 and Mutation No,30 in favour of his three sons and two daughters; this shows about his intention that he never ever transferred the corpus in the property in favour of any of his sons, merely being a witness to Exh.P.1. In support of his arguments that aforementioned was never a gift, but only the "Areeat", reliance has been placed upon Fateh Muhammad v. Adalat Khan 1979 CLC 587 and section 148 and section 170 of the Muhammadan Law by D.F. Mulla; and on the strength of the above, it is argued that the Courts below have drawn absolutely improper and illegal conclusion, particularly by misinterpreting Exh.P.1 and the evidence on the record, which is against the law.
5. Heard. Admittedly, Ghulam Qadir is not one of the executants of Exh.P.1. And is not party thereto.
Though he has signed the document, but as a witness, and by virtue thereof, without there being any evidence about his intention followed by the offer of making the gift, its acceptance by the donee, coupled with the delivery of the possession, a valid gift cannot be presumed. The factum of gift also stands controverted by the subsequent conduct of Ghulam Qadir, when through two mutations Nos.26 and 30, out of 24 Acres of land, he gifted in favour of his children, including the respondent No,1, which has not been challenged by the said respondent, meaning thereby that he accepted Ghulam Qadir to be the owner/donor of the property and accepted the gift. Moreover, the document Exh.P.1 cannot be interpreted to be a family settlement vis-a-vis the partition of the property, which was not owned by the three brothers, or the other land, because admittedly the land measuring 132 Kanals and 6 Marlas, out of which 10 Acres are claimed to have been given to respondent No,1, was also owned by two brothers of Ghulam Qadir, who were not party to Exh.P.1.
Therefore, how by excluding two co-owners of the property, any family settlement could be achieved by the others, not with reference to the share, but of a particular area. The two Courts below have misinterpreted the statement of Ghulam Qadir; while concluding about the gift of the property by him The passages, which are reproduced by the Court of appeal, are gross misreading of his statement, because Ghulam Qadir has deposed that he made gifts in favour of his three sons and two daughters, which obviously shall be the one effected through Mutation Nos.26 and 30.
Otherwise, if it is construed with reference to Exh.P.1, there is no mention of the daughters. It means, that through the said statement, he has never admitted to have gifted the property by virtue of Exh.P.1. And this is only the erroneous assumption of both the Courts below. The argument of the respondents' side, that as he was the witness of the document, therefore, the gift should be assumed. Suffice it to say that it is against the settled principles of law, pertaining to the essentials for the making of a valid gift, which includes the declaration and the offer made by the donor, acceptance by the donee and obviously the delivery of possession. All these essential ingredients have not been established rather are lacking and such cannot be deemed to be existing only for the reason, that Ghulam Qadir had witnessed the document. From the statement of Ghulam Qadir coupled with the interpretation of Exh.P.1, it is clear that he allowed his two sons to cultivate his land as "Areeat" and these two permitted their third brother (respondent No,1), to separately cultivate 10 Acres of the joint land between them and their two uncles. There has never been any gift by Ghulam Qadir in favour of Zafarullah or Ajmal about his land, and the above named two also never relinquished, surrendered or gifted their rights in favour of respondent No,1, regarding 10 Acres of the joint Khata. The family settlement Exh.P.1 was only for the purpose of facilitating the cultivation and in no manner transferred the proprietary right or legal title in favour of either party. The Courts below have ignored all these aspects of the case, therefore, the judgments are based upon total misreading of the statement of Ghulam Qadir, the misinterpretation of Exh.P.1 and ignoring and misapplying the law pertaining to the valid gifts. Resultantly, such judgments and decrees of the Courts below cannot be sustained, which are hereby set aside, with the result, that the suit of the petitioners stands decreed in their favour and that filed by respondent No,1 dismissed. No order as to costs. Both the revisions are accordingly allowed.