1. ' This is a second appeal by the plaintiff-appellant against the judgments and decrees of the Lower Courts whereby the suit for cancellation of a gift-deed of the suit property was dismissed. The suit in this appeal relates to the validity of the transfer of the gifted property consisting of agricultural land measuring 11 kanals and 3 marlas under Surveys Nos. 205 and 236 and a house measuring 4 marlas under Survey No, 206-min situate in village Banala, Tehsil Nakial, District Kotli, made by Kala Khan respondent to Jan Muhammad respondent.
2. ' It was contended by the plaintiff-appellant in his suit that as the property in suit was ancestral one, no gift of the same could legally be made as against the rights of the plaintiff-appellant because he as well as the donor are the descendants of a common ancestor Noor Khan by name.
3. The custom etc, was pleaded as a bar to the transfer of the property by way of gift and it was further added that as possession of the property gifted away was not delivered to the donee, no validity could be attached to the deed of gift for want of delivery of possession. Furthermore, it was also prayed that a perpetual injunction may also be granted refraining the defendants from interfering with his possession of the suit property.
4. ' The defendants, viz. Donor and donee both resisted the suit and asserted that Kala Khan donor- defendant was an absolute owner of the property in suit and there was no restriction imposed by law to it so as to invalidate the gift made in favour of Jan Muhammad, the respondent. According to them, it was validly made and possession of the property gifted away was also delivered to the donor and as there was nothing of the landed property left in the name of the donor ; provisions of the Land Reforms Act placing fetter on the sale etc., of the agricultural land, if any, were not attracted in this case.
5. ' The learned counsel for the parties were heard and the perusal of the record of the case was also made.
6. ' The trial Court framed the issues as under :-
(1) Whether the plaintiff and Kala Khan defendant are the descendants of a common ancestor ?
7. O.P.P.
(2) Whether the property in suit is the ancestral property of the plaintiff and defendant No, 2 which was inherited by the latter from his father under custom in Dogra Regime and what would be its effect on the suit ? O.P.P.
(3) Not to alienate the ancestral property in suit without consider Whether Kala Khan defendant was bound by a custom so as action? O.P.P.
(4) Whether gift-deed dated 20th May, 1969 was a nullity (in the eye of law) and if so, what would be its effect on the suit ? O.P.P.
(5) Relief.
8. ' Both the Courts below answered Issue No, 1 in favour of the plaintiff-appellant but the remaining issues were decided against him.
9. ' Certified copies of the Revenue record were produced by the plaintiff himself, vide Exhs. P A, P B and P C. Issue No, 1 stands proved in favour of the plaintiff-appellant and there is no dispute to it between the parties. According to the Revenue record, the land in suit was exclusively owned by Kala Khan donor. Homestead site is numbered as Survey No, 206 measuring 12 marlas out of which 4 marlas under Survey No, 206-min were also shown in the exclusive ownership of the donor and this much was gifted away alongwith the agricultural land in suit by Kala Khan respondent.
10. Evidently, Survey No, 206 is shown to have been partitioned either by the parties themselves including some others in equal shares or by their predecessors-in-interest and so there was left nothing joint in Survey No, 206 amongst the owners indicated in the revenue record.
11. ' Both the Courts below came to the conclusion that no custom could be proved by the plaintiff so as to have restricted disposal of the property in suit by Kala Khan donor. Simply to say that there was a custom that no ancestral property could be alienated by a person holding as such is of no significance. There should have been an apparent custom to help the plaintiff but no such custom as was alleged by the plaintiff was made visible on record. This is not a case of a limited owner as in respect of a female could be pleaded who could have had such a status even after the enforcement of Shariat Law in the country in matter of inheritance till her death. By introduction of Shariat Law in this territory, her status as a limited owner was kept intact and as soon as she expires, the property inherited by her as a limited owner shall vest to the very person from whom since dead it was inherited by a limited owner and it would then be construed that original owner died at that very day the limited owner expired so as to distribute the property so left by a widow or other female of a limited character, to the legal heirs of the original owner who were then alive at the time of his death according to law of inheritance of property contained in Muslim Law.
12. This is not the case of the plaintiff. Kala Khan donor in no way could have become a limited owner, so as to be rendered unable by an law to dispose of his property in any manner he liked. After the enforcement of Muslim Law relating to inheritance of the property customary laws were put to an end and as such there was no fetter on the property inherited by a Muslim so as to limit its ownership in any manner.
13. ' The plaintiff-appellant is a third party having nothing to do in law with the property in suit as of a right, possession of the property in suit may or may not be with him. He has no legal right to challenge the validity of the gift made by Kala Khan, respondent in favour of Jan Muhammad respondent. Nevertheless, the general rule of Muslim Law is that the gift is to be followed by delivery of possession, i,e, done is required to deliver to the done possession of the property gifted away but the objection as to delivery of possession may be taken by the done himself or by his legal heirs.
14. Here in this case, donor is arrayed as a defendant contesting the suit in support of the gift in favour of Jan Muhammad respondent and so no value in fact can be given to the objection made against the validity of the gift in question by a third person, viz. The plaintiff who claims to be in possession of the property in suit.
15. ' Apart from this, there is concurrent finding of fact given by the Courts below that the plaintiff- appellant is not in possession of the property in suit. Revenue record supports the contention of the defendants that the plaintiff is not in possession of the property in suit but Kala Khan who after giving away the property in suit lives with Kala Khan donee who is bound by the agreement to serve him and so he cannot be said to have remained away from him but to live with Kala Khan as promised to pass the days of his remaining life comfortably.
16. ' Documentary evidence of the plaintiff itself which was testified to by the revenue officials produced by him and which stands un-rebutted, goes in favour of the defendants. It was after the gift of the property in suit and that too even after the institution of the suit that the plaintiff or say his agent made an attempt to change the entries in Khasra Girdawaris in his favour but to no avail.
17. The plaintiff himself has not come in the witness-box to support his case. It is a third person though related to him as husband of his daughter that this case without a legal right vested in the plaintiff is litigated by the former.
18. ' The gift in question was validly made by the donor. No restriction as claimed to be placed by any provision of Land Reforms Act, was brought to light by the plaintiff. This point was dealt with by a learned Single Judge of this Court while remanding the case, vide his order dated 3rd January, 1977, wherein it was decided that no provision of the Land Reforms Act was found to have been violated by the donor. That being so, there is no force in this appeal and as such it is hereby dismissed with costs.