' GHULAM RABBANI, J.---Both these petitions seeking leave to appeal involve identical questions of law and facts and are disposed of by this single order.
2. Late Noor Nishan was owner of land measuring 19 Kanals and 3 Marlas in joint Khata situated in Mauza Kohla, Tehsil and District Okara. She gifted out to her daughter Mst. Zohra Bibi (daughter from previous husband Bakhshia), the above share of land by way of registered deed. No,1798 executed on 26-5-1976. Mutation No,272 was sanctioned on 28-6-1976 in favour of donee vide Roznamcha Waqiati (Exh.P.6). Palpably, Mst. Zohra died thereafter. On 28-8-1988, respondents Nos.
1 to 6, her successors-in-interest instituted suit seeking permanent injunction to restrain the petitioner Haji Muhammad Ali son of late Mst. Noor Nishan from her second husband from transferring land in dispute till its partition. During the pendency of the above suit, petitioner also instituted on 22-12-1988 another suit bearing No,1039 seeking declaration to the effect that the gift in question made by Mst. Noor Nishan in favour of Mst. Zohra was illegal and was liable to cancellation. Learned Civil Judge, Okara consolidated both the suits and ultimately vide consolidated judgment and decree dated 31-7-1991, dismissed the suits of the respondents Nos. 1-6 and decreed the suit of petitioner. Respondents' appeals bearing Nos.430 and 431-ADJ/91 preferred there against were also dismissed by learned Additional District Judge, Okara vide his consolidated judgment dated 28-11-1994. Feeling aggrieved, respondents Nos. 1 to 6 made two separate Revision Applications bearing Nos. 137 and 121 of 1995. The same have been accepted and the judgments/decrees of two Courts below set aside vide judgment and decree dated 9-4-2002 respectively passed by learned Single Judge of Lahore High Court, Lahore, impugned herein.
3. Mian Israr-ul- Hag, Advocate Supreme Court, learned counsel for the petitioners contended that the gift by late Mst. Noor Nishan in favour of donee qua the land in question jointly held was invalid since the requisite ingredient viz. Delivery of possession, necessary to complete the gift, was absent. To support his contentions, learned counsel referred to paragraphs 158 to 160 of the Muhammadan Law by D.F. Mulla. Learned counsel, next, argued that learned Trial Court rightly decreed the suit of petitioner and dismissed the suit of respondents Nos. 1 to 6 by holding that since the land being agricultural was divisible and the third ingredient such as delivery of possession was missing; doctrine of mushaa in the instant case was not applicable and the gift was not valid.
He submitted that learned Appellate Court was, therefore, justified in affirming the above view and dismissing the appeals of respondents while learned Single Judge of Lahore High Court misconceived the legal position and wrongly held that the gift was valid.
4. On the other hand, Mr. Saif-ul-Maluk, Advocate, Supreme Court learned counsel for the respondents refuted the above submissions and supported the impugned judgment of the High Court. He contended that learned Single Judge of High Court passed the impugned judgment/order on correct appreciation of law and the material available before him. He, next, submitted that paragraphs 158 to 160 of Muhammadan Law by D.F. Mulla referred to by Mr. Hague were not supportive to the plea taken by petitioners' side and prayed that the petitions be dismissed.
5. We have given due attention to oral submissions of both the learned counsel for parties and with their assistance, we have gone through the available record. The ownership and the registered gift deed qua the suit land are not disputed. The gift was, however, challenged on the sole ground that since there was no delivery of possession of the land in joint holding, the same was hit by paragraphs 158 to 160 of Muhammadan Law by D.F. Mulla. The same are reproduced as follows:- "158. Mushaa defined.---Mushaa is an undivided share in property either movable or immovable.
159. Gift of mushaa where property indivisible.-- A valid gift may be made of an undivided share [mushaa] in property which is not capable of partition.
160. Gift of mushaa where property divisible.---A gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid), but not void (batil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated.
Exceptions.--A gift of an undivided share (mushaa), though it be a share on property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases:
(1) where the gift is made by one co-heir to another;
(2) where the gift is of a share in a zemindari or taluka;
(3) where the gift is of a share in freehold property in a large commercial town;
(4) where the gift is of shares in a land company."
6. Perusal of the above provision of law inflects that a gift of undivided share (mushaa) in a property which is capable of division is irregular, but not void. However, the same .May be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him and once possession is taken the gift is valid. Notwithstanding the aforesaid, there are exceptions to that rule as noted supra, firstly, where the gift is made by one co-heir to another and the other where the gift is of a share in a zemindari or taluka. In the instant case the admitted fact is that it is a gift by mother to .a daughter.
Needless to say that a mother is a legal heir and is entitled to inherit the property of a daughter, like Mst. Zohra in this case, to the extent of 1/6th as described in Table of Shares--Sunni Law, available in Muhammadan Law by D.F. Mulla. The gift of 19 Kanals and 3 marlas in joint holding/khatas of agricultural land measuring about 561 kanals, being divisible as mentioned by Civil Judge Okara, is of the share in the zemindari and in a Taluka (Tehsil). Therefore in our opinion the gift in A question seen in the light of above provision of a law was valid.
7. Learned Single Judge of Lahore High Court, Lahore, therefore, rightly set aside the judgments and decrees passed by both the Courts below and decreed the suit instituted by respondents Nos. 1 to 6 and dismissed the suit of petitioner under the impugned judgment and order which are simply correct and un-exceptional warranting no interference.
8. For the fore going reasons, these petitions fail and are dismissed accordingly. Leave refused.