' This appeal has been filed against the judgment of the learned District Judge, Sargodha dated 15th July, 1978 by which the appeal filed against the order of the learned Civil Judge, First Class Sargodha dated 5th March 1974 was dismissed.
2. Briefly the facts of the case are that Malik Muhammad Bahadar Khan and Mst. Akhtar Sultana had filed a suit against Malik Muhammad Khan defendant to the effect that the gift made by Malik Bahadar Khan donor (plaintiff No, 1) in favour of his brother Malik Muhammad Khan had been revoked, and that the properties mentioned in Schedule 'A' being lands and in Schedule 'B' being the residential houses belonging to the donor. The averments contained in the plaint were that Malik Muhammad Bahadar Khan wanted to gift a residential house in favour of Mst. Akhtar Sultana, Plaintiff No, 2, and one square each in favour of Mst. Akbtar Sultana and the remaining 9 squares also in favour of Mst. Akhtar Sultana. Malik Muhammad Khan being his real brother, according to plaintiff No, 1, sought advice from him. He advised Malik Muhammad Bahadar Khan to make a gift through a civil suit to which he agreed. Consequently in the two suits filed being Nos. 128 and 129, 2/3rd was got mutated by Malik Muhammad Khan in his favour and only 1/3rd in favour of Mst.
Akhtar Sultana. The case of the plaintiffs was that this gift deed witnessed by the decrees made on 4th April, 1964 were fraudulent and being void on account of non-delivery of possession and in any case stood revoked on the filing of the suit. Malik Muhammad Khan the original defendant died during the pendency of the suit and his legal representatives were brought on record who are now the appellants. The suit was contested by the appellants. It was submitted that the gift was valid and was complete by delivery of possession, and therefore, could not be revoked. The learned trial Court on the pleadings of the parties framed the following issues :-
(1) Is plaintiff in possession of the property in dispute ? If not whether the suit as at present framed is competent ? 0. P. P.
(2) Is the suit property valued for purposes of court-fee and jurisdiction ? 0. P. P.
(3) Is the suit bad for misjoinder of the property ? 0. P. D.
(4) Is the suit barred by the principles of res judicata? 0. P. D.
(5) Are the plaintiffs estopped by their conduct from bringing the suit ? 0. P. D.
(6) Whether the decrees dated 4th April, 1964 were obtained through fraud and misrepresentation ? 0. P. D.
(7) Whether plaintiff No, I made a gift of the property in suit in favour of plaintiff No, 2 and the defendant and the possession under the gift was delivered to the said decrees ? 0. P. D.
(8) Has plaintiff No, I revoked the gift ? If so, is the revocation proper and what is its effect ?
(9) Relief.
3. The learned trial Court decreed the suit on 5th March, 1974. The appellants filed an appeal which was also dismissed. The finding of the learned trial Court that the previous suits were not vitiated by fraud and at the most were treated to be transactions of gifts was affirmed.
' The only question on which the suit was decreed was that the delivery of the possession had not been proved and therefore, the donor could revoke the gift. This is the finding which has been challenged in the present appeal. Counter-objections had been filed against the finding of the learned trial Court as regards the validity of the gift transaction evidenced by the decrees of the civil suits. These cross-objections were also dismissed and the finding as regards the possession that it had not been delivered by the donor to the donee was affirmed.
4. The learned counsel for the appellants has raised the following contentions :- (i)That the transaction in question being a gift of the share in a joint property no actual delivery of the possession was necessary and in any case the constructive possession or a part possession thereof was sufficient to complete the gift ;
(ii) That in case the gift is made by a co-sharer to another co-sharer the handing-over of the possession was not necessary ;
(iii) That a consent decree operated as res judicata in any subsequent proceedings ;
(iv) That the finding of the lower appellate Court is vitiated by not taking into consideration important evidence on record ;
(v) That even most of the documents referred to by the learned lower appellate Court have been misread.
5. Points Nos. (i) and (ii) relate to the delivery of possession. The contention of the appellants as already quoted above is that the transaction in question being gift of a share in a joint property no actual delivery of possession was necessary and in any case the constructive possession Of part possession thereof to complete the case. It has also been argued that the gift made by one co- sharer to another co-sharer delivery of possession was not necessary. This contention has been disputed by the learned counsel for the respondents. The learned counsel for the respondents has further argued that the question of delivery of possession is purely a question of fact and as such the concurrent finding of fact in this behalf cannot be disturbed in second appeal. The following authorities cited by the learned counsel for the appellants in support of his contention may be examined.
6. The judgment in Ghulam Hassan v. Sarfraz Khan (1) does not support the contention of the appellants. This was a case where a gift had been made by the grandfather in favour of his grandsons while the father of the donees was still alive. The point raised before the learned Supreme Court was that under the principle of Mahomedan Law when the donor is the father or the guardian of the minor donee, no change of actual possession was necessary and the principle must also be deemed to cover the case of a gift by the grandfather in favour of the grandsons as he also stands in loco parentis to the donees. In this connection their Lordships of the Supreme Court observed as under :- "Under the Mahomedan Law even if this case be taken to be covered purely by the principles of Mahomedan Law formal delivery of (1) PLD 1956 SC (Pak.) 309 possession to a minor donee is not required only when the father or the guardian or the person in charge of the minor makes a gift in the minor's favour. It does not apply to a grandfather as such merely on the basis of the blood relationship with the grandson. In the present case the father of the minors was alive and living with them and there is absolutely no evidence to show that Anwar Khan is in charge of the minors.
In such a case delivery should have been made to the father (who is guardian of the property of the minors) under the Mahomedan Law to complete the gift."
' It would therefore be clear that the observations of the Supreme Court do not support the contention of the learned counsel for the appellants. The next case cited by the learned counsel for the appellants was Sanaullah Fakir v. Alam Fakir & others (1). In this case only the validity of a share of an undivided property was raised. In this case it was contended that a gift of 1/3rd share of undivided property by the donor was hit by the doctrine of musha. This contention was repelled by the learned Supreme Court and it was observed as under :- "It is now a well-settled rule that gift of share of undivided property is under Muslim Law quite valid.
The High Court has relied on the decision of the Judicial Committee in Sh. Muhammad Mumtaz Ahmad v. Zubaida Jan 16 I A 205 in which their Lordships observed that the doctrine relating to the validity of gift of much is wholly unadapted to a progressive state of society and ought to be confined within the strictest rules."
' It was further observed that the donee had taken possession of the 1/3rd share which both according to the Shia and Sunni Schools validated gift of a share of the undivided property. This judgment also does not in any way advance the case of the appellants. In Ashiq Hussain v. Ashiq Ali (2) the land in dispute was in cultivating possession of the tenants and the donee was a Mukhtar of the donor and he was collecting the produce from the tenants. It was in these circumstances held that a mere declaration in the gift deed that the possession was delivered to the donee was not efficient to complete the gift, and that the delivery of possession by the donor must be a conscious, unequivocal and distinct on his part in order to perfect the gift by him. The possession in this case had not been delivered with the permission of the donor and as such the finding of the High Court that the Courts below had committed an error in coming to the conclusion that the possession of the property had been delivered was affirmed by the learned Supreme Court. Similarly reliance on Sahib Dad v. Muhammad Ajaib (3) is of no avail. In this case their Lordships of the Supreme Court had held that a gift of a share of undivided property under the Muslim Law was quite valid. The proposition involved in the present case whether the delivery of the possession in case of a share in an undivided property was necessary to complete the gift.
7. The learned counsel for the appellants also relied on Nur Ali v. Muhammad Hussain (4). In this judgment the observations of their Lordships in a way go directly against the contention raised by the learned counsel for the appellants. The contention of the learned counsel that (1) 1968 SCM R 311(2) 1972 SC MR 50 (3) 1972 SCM R 295 (4) 1976SCMR 234 the gift being one of a part of the joint Khata could not have been made subject matter of the gift without the partition of the Khata was repelled. Relevant observations of their Lordships in this behalf are quoted below :- "Learned counsel however, argued that the gift was hit by doctrine of musha because the land being part of joint khata could not have been made subject-matter of gift without partition of the khata. The argument is wholly devoid of substance. It is nobody's case that the gift was not accompanied by physical possession of land to the donees."
' Their Lordships of the Supreme Court had taken into consideration the question of the delivery of possession even in the cases of gift of an undivided share in a joint khata. Reliance by the learned counsel for the appellants on Shamshad Ali Shah v. Hassan Shah (I) is also of no avail. In so far as in this case, it was held by the learned Supreme Court that for the delivery of possession by the donor to the donee when the land is in possession of the tenants direction to the tenants to attorney to the donee are not absolutely necessary. It was further held that the possession may be taken to have been delivered by the recital in gift-deed coupled with other circumstances. It was nowhere laid down that delivery of possession was not necessary in order to complete a gift even of an undivided share of the property. What had been considered was that the delivery of possession may be by different modes. In this connection it was observed as under :- "While 1 would accept that a declaration simpliciter will not effect delivery of possession I would not subscribe to the extreme proposition that such a direction by the donor is essential it may be that there are other circumstances which coupled with the declaration are sufficient for transfer of possession. I may refer as an illustration to the Privy Council case Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others (I L R 11 All. 460) wherein the donor had made a declaration of delivery of possession to the donee who was her daughter and the gift was followed by mutation of names. The donor had signed a power of attorney in favour of the husband of the daughter empowering him to present petition for mutation of names. The husband of the donee had been managing the property of the donor. Under the circumstances Judicial Committee was of the opinion that there was sufficient delivery of possession. There had no direction by the donor to the tenants to deliver the produce to the donee."
8. Lastly the learned counsel for the appellants relied on an unreported judgment of the Supreme Court in Civil Petition No, 583 of 1975 arising out of an R. F. A. No, 553 of 1967, decided by the High Court on 4th June, 1975. The Judgment of the High Court is reported as Hakam Khan v. Aurangzeb & another (2). Let this case I was the counsel for the petitioner and the contention raised was that the gift of an undivided share in the property was invalid due to the lack of delivery of possession which was necessary even in cases of musha gifts. This contention was not accepted by their Lordships on the ground that the grandsons in whose favour the gift had been made were under active custody, (1) PLD 1964 SC 143 (2) p L D 1975 Lah. 1170 control and supervision of their grandfather, namely the donor who was looking after and bringing them up and it was in these circumstances it was held that the plea raised had no substance. The relevant observations of their Lordships of the Supreme Court are quoted below :-- "The findings of the Courts below however, are that the donees were under active custody, control and supervision of their grandfather namely the donor who was looking after and bringing them up, therefore, in the circumstances the plea raised had no substance. We find nothing wrong with the view taken by the Courts below on the subject both on the factual and legal planes. The donor himself being the natural guardian of the minor donees (as their father had died much earlier)- they were under his care and control and were being brought up by him and in these circumstances the natural guardian could have by his own declaration parted with the seizen and at the same time received delivery of possession in the new context. He himself made a report before the Patwari and got the mutation entered. Then he personally appeared before the Revenue Officer and accepted the factum of making the gift and the delivery of possession."
9. In view of the above discussion I am of the considered view the even in the cases of a gift of an undivided share in a property must accompanied by the delivery of possession and the contention of they learned counsel for the appellants that no delivery of possession in such cases is necessary in order to complete the gift is not acceptable.
10. The learned counsel for the respondents has cited- several judgments to show that the question of delivery of possession was essentially a question of fact and the concurrent finding of fact could not be disturbed. Reliance in this behalf has been placed on Muhammad Afzal Khan v. Khurshid Begum (1). In this case the finding of fact as regards the delivery of possession was not disturbed in the second appeal. Similarly the learned counsel for the respondents has also relied on Wall Muhammad v. Muhammad Bakhsh (2) and Altaf Muhammad v. Mst. Fazal-un-Nisa (3) for the proposition that the concurrent finding of fact cannot be disturbed in the second appeal. There cannot be any dispute about the settled proposition and even no authorities were needed on this point.
11. This brings us to the next contention of the learned counsel for the appellants that in case of musha gift no delivery of possession is necessary in case the gift is made by one of the co-sharers to another co-sharer. Reliance in this behalf has been placed on section 160 of the Principles of Mahomedan Law by Mulla, Pakistan Edition, 1977 by Dr. M. A. Mannan. In order to appreciate the contention, section 160 is quoted below :- ' Section 160.-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 (ill). (a).
(1) PLD 1975 Pesh. 24
(2) AIR 1930 P C 91
(3) P L. D 1970 Lah. 654 ' Exceptions.-A gift of an undivided share (mushaa), though it be a share in 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 [ill. OA
(2) where the gift is of a share in zemindari or taluka [ill. (c)]
(3) where the gift is of a share in freehold property in a large commercial town [ill. (d)] ;
(4) where the gift is of shares in a land company (f)
12. The learned counsel for the appellants has for the purposes of applicability of clauses (1) and
(2) relied on Abdul Aziz v. Fateh Muhammad Haji (1) ; Jiwan Bakhsh v, Imtiaz Begum (2) and Sh.
Mumtaz Ahmad v. Zubaida Jan (3). In none of the judgments it has been held that delivery of possession in one form or the other is not necessary in cases of mushaa gift. Learned counsel for the appellant has vehemently argued that on the basis of the observations in Ghulam Shah v.
Jahandar Shah (4) wherein it was held that the gift of an undivided share in the landed estate was not unnecessarily invalid in the absence of proof of delivery of possession by partition if it is otherwise apparent that the donor has divested himself fully of his interest therein and the donee was enabled by the gift to exercise all the rights of possession by the donor. In this case the donor was not in actual possession except constructively or fictionally. Failure on the part of the donor to hand over the physical possession it was held will not target the completeness of the gift. This was never the contention raised before the trial Court rather the completeness of the gift was pleaded by complete delivery of possession. The other judgments relied upon by the learned counsel have already been discussed above. Even in the case cited under exception No, (1) the possession of the land had been delivered jointly. The reference under Exception No, (I) is quoted below : "Kanij Fatima v. Jai Narain (1944) 23 Pat. 216, ('44) A P 334 (a case of gift by mother to daughter of two annas share in lands, the daughter having taken joint possession)."
In any case I am bound by the law declared by the Supreme Court. All the judgments which related to mushaa gift the delivery of possession was considered to be one of the essential ingredients.
13. The learned lower appellate Court had considered the decrees in the suits as only an evidence of gift and not a proceeding actually meant for the determination of any question. It was necessary to prove that the possession had been delivered so that the donor could not revoke the gift. Section 11 is not strictly applicable to compromise decree as it applies only to what has been decided finally by Court. Both the Courts below have rightly considered the earlier decrees as evidencing the factum of gift and when the questions arise of the completion of the gift earlier compromise decrees would not debar the enquiry. The consent decree was only a convenient device of making a gift by avoiding the payment of stamp duty and the registration, etc.
(1) I L R 38 Cal. 521
(2) I L R 2 All. 93
(3) 16 I A 205
14. The learned lower appellate Court in the absence of proof of possession placed reliance on the khasra girdawari marked as Exh. D. 9/A relating to kharif 1964 and Rabi 1965 which related to a part of the suit land. The donor and others were recorded as the owners of the land and the same was being cultivated by tenants. Out of the khasra-girdawari (Exh. D. 9/A) the respondents examined D.
W. 1 Muhammad Hussain, D. W. 3 Sher Muhammad and D. W. 4 Ghulam Mohammad. Three others namely, Fateh Muhammad, Ghulam Rasool and Khan Muhammad were produced but their names do not find mention in the khasra girdawari. Sher Muhammad and Ghulam Muhammad D. Ws. Are recorded as tenants under the donee and the donee is a co-sharer in the land. It was rightly held that their testimony did not advance the donee's case. Muhammad Hussain D. W. 1 is recorded as tenant under all the co-sharers. The contention of the donee that he was placed in possession of the land by the donor to the extent of his share and since then he was in possession of the land is not supported by the revenue record. Khasra girdawari marked as Exh. P. 19 to 23 show that the donor had all along been shown as owner of the land. The plaintiffs produced Sukhroo Khan P. W. 3, Muhammad Hayat P. W. 4, Mian Muhammad P. W. 5, Muhammad Nawaz P. W. 6, Abdur Razaq P. W.
7. Ghulam Muhammad P. W. 8, Amir P. W. 9, Nazar Muhammad P. W. 10 and Ghulam Haider P. W.
13. The statements of these witnesses go to show that they had been cultivating the land under the donor. An important question that cannot be overlooked is that no steps had been taken by the donor to get the gift incorporated in the revenue record, no mutation of gift was entered nor the donor appeared Wore the revenue officer to support the gift. As regards the residential houses the donee produced Muhammad Hussain (D. W. 1) who did not depose about the delivery of possession of the residential house. Similarly, Sher Muhammad in the cross-examination admitted that the house had been built up by the donee and the donor was still in possession. This statement was supported by Ghulam Muhammad D. W. 4, Fateh Muhammad D. W. 5, Ghulam Rasool D. W. 6, and Khan Muhammad D. W. 7, Muhammad Malik Junior Clerk in the office of the WAPDA, proved electricity bills (Exhs. P. 1 to P. 6) which were rightly relied by the Courts below to affirm the possession of the donor.
15. The learned counsel for the appellants has argued that there had been wholesale misreading of evidence. I have checked up the findings of the learned lower appellate Court with reference to the above witnesses and do not find any misreading so as to justify interference in the present appeal.
The findings of the lower appellate Court are based on the correct appreciation of the evidence on record.
16. In view of the above discussion, no ground had been made out for interference in the concurrent findings of fact. This appeal has no force and is hereby dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.