' TANVIR BASHIR ANSARI, Briefly the facts are that original owner of the property in question was one Lehna. He died in the year 1985. Upon his death, he was survived by Muhammad Ramzan son and Mst. Kanizan petitioner daughter. The respondent Muhammad Ramzan claimed that entire property was alienated in his favour through a gift deed dated 5-8-1979 and that after the death of Lehna the petitioner was not entitled to any share in the estate of the deceased. The petitioner filed a suit on 28-11-1988 for declaration that gift deed made by the said Lehna in favour of the respondent was a result of fraud and misrepresentation as it was brought about through impersonation of the deceased. This suit was contested by the respondent. The learned trial Court after framing the necessary issues recorded the evidence of the parties and vide judgment and decree dated 15-12-1991 decreed the suit of the petitioner.
2. The respondent preferred an appeal. The same was accepted vide judgment and decree dated 7-6-1992 with the result that the decree of the trial Court was set aside and the suit of the petitioner was dismissed. The learned counsel for the petitioner submits that three important ingredients for a valid Muslims Gift whether executed orally or through a registered document are (i) offer of gift by the donor (ii) acceptance of gift by the donee and the delivery of possession of the demised property.
3. It is submitted that according to the evidence on the record, the learned trial Court had vide judgment and decree dated 15-12-1991 decreed the suit of the plaintiff and found that the gift deed (Tamleek Nama) dated 5-8-1979 and Mutation No,598 dated 22-5-1983 were void and inoperative upon the rights of the plaintiff. Consequently, it was found that the petitioner was entitled to 1/3rd share in the suit property.
4. The respondent preferred an appeal, before the learned appellate Court. The main issue for consideration was Issue No,8 which related to the validity or otherwise of the gift deed. The learned appellate Court according to the learned counsel for the petitioner erroneously accepted the appeal vide judgment^ and decree dated 7-6-1992 and dismissed the suit of the petitioner. It is contended that even if the execution of the gift deed was established, it was nonetheless not proved on the record that actual physical possession was handed over by the donor (Lehna) in favour of Muhammad Ramzan respondent. The learned counsel submitted that it was the actual physical possession which was to be handed over to the donee in order to complete the gift. It is submitted that according to the entry in the Khasra Girdawari for the relevant period, Muhammad Ali husband of the petitioner was shown as tenant-at-will which would show that actual physical possession was not delivered by the donor to the donee at any time.
5. On the other hand, the learned counsel for the respondent submits that where the gift is from father to son, the delivery of possession of the subject of gift is not necessary for the reason that a father is a natural guardian of the minor donee and is in any event incharge of the possession as guardian of the minor and that in this situation the transfer of the actual physical possession was not necessary. It is further submitted that even if the possession was not delivered at the time of making of the gift, the act of the ratification by the donor after the execution of the gift would validate the gift itself.
6. Arguments have been heard and record perused.
7. The learned trial Court had framed the following issues:-- ISSUES
(1) Is this suit is not maintainable in its present form? OPD.
(2) What is the fact of preliminary objection No,2? OPD.
(3) Is the plaintiff estopped by her words and conduct to file this suit? OPD.
(4) Is this suit property incorrectly described if so, what is correct description, its effect? OPD.
' (5) Has plaintiff no cause of action and locus standi to file this suit? OPD
(6) Is this suit incorrectly valued for the purposes of court-fee and jurisdiction? OPD
(7) Is this suit frivolous and vexatious? If so, whether the defendant is entitled for special costs?'OPD
(8) Whether Tamleek Nama dated 5-8-1979 and Mutation No,598 dated 22-5-1983 were against law and facts, fraudulent, hence inoperative qua the rights of the plaintiff and liable to be set aside? OPP
(9) If above issue is proved, whether plaintiff is entitled for permanent injunction as prayed for? OPP
(10) Relief.
8. The petitioner/plaintiff examined Muhammad Rafiq P.W.1, Sardar Shah P.W.2 and appeared as her own witness as P.W.3. In documentary evidence she tendered Exh.P.1 to Exh.P.4 in support of her contention.
9. On the other hand, the respondent produced Farid as D.W.1 and entered the witness-box himself as D.W.2 Besides above respondent also produced the original Tamleek Nama as Exh.D.1.
10. The learned trial Court in appreciation of the aforesaid evidence found that gift was not proved to have been executed and proceeded to decree the suit of the petitioner. Before the learned appellate Court the main controversy resolved around Issue No,8 which dealt with the legality of the gift deed. The learned appellate Court relied upon the -evidence of D.W.1 and D.W.2 and came to the conclusion that execution of the gift deed dated 5-8-1979 was established on the record. The learned appellate Court was also influenced by the fact that donor namely Lehna never disputed the gift deed during his lifetime. The learned appellate Court has however, erred in non-suiting the petitioner. The learned appellate Court misread the evidence of D.W.1 wherein, he stated that he remained in actual physical possession even after two years of the execution of the gift deed. The learned appellate Court was not correct in holding that effect of Exh.P.1 and Exh.P.2 was to record that ownership of the defendant showing Muhammad Ali husband of the appellant to be a tenant at-will under him. Quite to the contrary the ownership of the respondent could become complete only upon the completion of the gift in his favour which cannot be considered to be a complete gift in the absence of transfer of actual physical possession to him. A Muhammadan Law gift does not contemplate the transfer of constructive possession. The learned counsel for the respondent has placed reliance upon the case of Ghulam Hasan v. Sarfraz Khan (PLD 1956 SC (Pak) 309 to contend that a gift from a father of his minor son would not in all cases require the transfer of possession as the father in the case of his minor son in any event retains the status of the minors natural guardian.
11. I am afraid this proposition of law cannot come to the aid of respondent. According to Exh.P.1 and Exh.P.2 Muhammad Ali husband of the petitioner has been depicted as in actual physical possession of the property in question. It would indeed have been different if Lehna continued to be entered as in possession in Khasra Gardawari subsequent to the making of the gift.
12. As a result of the aforesaid, the findings of the appellate Court in the impugned judgment are not liable to be sustainable. Resultantly, this civil revision is allowed, the judgment and decree dated 8-6-1992 of the appellate Court is set aside with the result that the suit of the petitioner shall stand decreed. Parties to bear their own costs.