1. ' The appellants are the legal representatives of Sahiboo who die during the pendency of the suit. A suit for rescission of a gift of the property executed by Sahiboo in favour of defendant-respondent Hassa Muhammad by name, was instituted in the Court of Sub-Judge, Kotli b the donor himself on the ground that it was out sheer fraud practiced upto him that defendant maneuvered to get the gift of the property in sui made in his favour, on the understanding that the donee would be serving him throughout his life till his death and he was also to remain in possession of the same. But after the execution of the deed of gift the donee declined to serve him in his old-age as he was promised to be served. The plea of the donor was that as fulfilment of the condition was not made by the defendant, the gift would be liable to be rescinded Though it was specifically alleged that possession lay with the done himself yet at the same time a prayer for possession as a consequenti relief was also sought. The defendant-respondent asserted his possession of the property 1 suit to the exclusion of anybody else as the donee of the same. The condition of service allegedly attached to the gift and its fulfilment there during the lifetime of the donor was also denied stating that no such condition was attached to the gift of the property in suit made in his favour by the plaintiff. According to him it was a simple gift to which no condition whatsoever was attached and it was all complete in a respects.
2. ' The trial court framed the following issues :-
(1) Whether it was out of fraud and deceit that the plaintiff w given an assurance that the defendant would be serving h during his lifetime and who [then denied the fulfilment of promise so made. If so what would be its effect on the suit O. P. P.
(2) In case issue No, 1 is proved, whether the plaintiff is entitled get the gift deed rescinded ? 0. P. P.
3. ' Whether the plaintiff is bound by a certain custom under which he was not competent to transfer the property in suit by way of sale or gift in any manner without a legal necessity ?
(ii) Whether Mst. Said Begum plaintiff (representative capacity) was turned out of the house by the defendant after the death of her father and possession of the property in suit was taken thereof by him ? 0. P. P.
(iii) Whether the gift of the property in suit for its being an ancestral property of Sahiboo is against law as well as custom both for short of legal necessity and as such is ineffective and void ? 0. P. P.
4. ' The learned counsel for the parties were heard and the record of the case was also very closely gone into by me. The trial Court decided issue No, 1 against the plaintiff-appellants and so also Issue No,
2. These were the only main issues for the determination of the case whereas the remaining issues, except issue No, (ii) were struck for nothing. After inception of the Government of Azad Kashmir over the liberated territory of Jummu and Kashmir State, Shariat Law has been made applicable in the matter of inheritance without any exception and for being applicable at the relevant time, no place for any custom was left to step in for placing any restraint on the alienation of property owned by a Muslim or a Muslima, either by way of gift or sale. Muslim Law is the rule of the day to govern the parties in respect of the disposal of the property, without drawing any distinction between the self-acquired property and - the ancestral one. The absolute ownership of the property in both the cases vests in an owner and there is no question of any restriction placed on an owner in disposal of his property by way of gift or sale. The life estate is unknown to Muslim Law. Both the Courts below do not appear to have paid a careful heed to see the character of the gift in question. While going through the contents of the gift deed we find that gift of the property was made because the old man (donor) stood in need of the services of a person who could be useful to serve him in his old-age and for the purpose, Hassan Muhammad respondent was chosen. This condition of service was clearly mentioned in the gift deed. Thus the gift in question was made with a stipulation (condition) for a return of service and so it was in reality a `Hiba Ba Shartul Iwaz'. Evidently `iwaz' is the service to be rendered here by the donee to the donor in lieu of the gift of the property in suit. The gift becomes irrevocable on delivery of the `Iwaz' to the donor by the donee, but in the instant case the old man had a complaint of not being served by the donee as undertaken by him. The donee is so daring to say that no condition of service was attached to the gift at all and to this effect he has also produced two of the attesting witnesses of the gift deed, Dheroo and Muhammad Ellahi to state that no such condition was laid down in making of the gift.
5. These witnesses are very closely related to the donee-defendant and as such interested. The defendant and his witnesses who were interested had deposed against a content of the gift-deed itself which is clearly mentioned therein and that is to the effect of attaching a condition to the gift that the donee would be serving the donor all through his life till death. This important aspect of the case was totally ignored by the courts below and so they had to decide Issue No, 1 half way. The donor appeared himself before the Court as a witness of his own and made a strong allegation against the donee that no service was being done to him and rather he was even beaten by him.
6. No doubt there is no corroborative evidence on record to substantiate the fact of thrashing the donor, but at the same time there is also no rebuttal to it made by the donee by even appearing himself before the court as a witness of his own to refute the statement of donor. Thus the statement of the plaintiff in respect of non-service to him by the donee i,e, the non-fulfilment of the promise of the service, stands proved. If the defendant were true to his word he must have come forward to stand in the witness box before the trial Court to face the donor but he failed to do so.
7. Again the persistent stand of the donor was that he had been in possession of the property in suit, though the defendant appears to have resided with him to cultivate the land. The revenue record was also not properly appreciated by the trial Court as well as the lower appellate Court. Copy Exh.
8. DB of Khasra Girdawari shows that donor had been in possession of field No, 470/401 even after the gift till 1959 and still it was held by the Courts below that according to the revenue record this survey number had also been in possession of the donee in the year, 1959. If we take the statements of the revenue officials alongwith certified copies of the revenue record, we find that the donee was not able to get all the entries of the land gifted entered in his favour in the revenue record which appears to be tampered somewhat. In 1959 there had been a dispute between the parties in respect of possession of survey No, 456/93 min and survey No, 91 was shown in possession of Mir Muhammad the plaintiff, vide statements of the patwaris in this respect. The gift was made in the year 1958.
9. ' The power of attorney for attestation of mutation of the land in suit was also obtained by the respondent in favour of his cousin Dheroo by name, who made a statement at the time of the attestation of mutation in the year 1959 that the land gifted was under the possession of the donee, but revenue record prepared in 1959 shows that Survey No, 470/401 was still in possession of the donor and Survey No, 91 was in possession of Mir Muhammad the plaintiff. It shows that power of attorney in favour of a close relative was obtained in order to enable the donee to get a statement recorded by him before a revenue officer while attesting the mutation that the land in suit was under his possession. This seems to have been done simply, because the old man had been enjoying the usufruct of the property gifted and that he might not depose in favour of the donee in respect of the possession having passed out to him at the time of attestation of the mutation. The old man according to the very witnesses of the defendant had no other means of subsistence and no other house to live. This was the only land the yield of which could be a source of his living. The father-in-law and son in-law both used to live in the same house and the usufruct of the property gifted appears to have been utilized by both this way or that way. According to Allah Ditta a witness of the defendant, the land revenue of the land in suit was also being paid by Sahiboo deceased till his death. It all means that the donor never parted with the possession of the house as well as of the usufruct of the property. If parting of possession of the property gifted had been there. The specific mention of the item of maintenance would have been there In the deed of gift that he would also be maintained by the donee as the donor had no other means of subsistence as is evident from the very' evidence led by the defendant-respondent. However it may be said that after obtaining gift of the property in suit, the donee appears to have had an upper hand, but at the same time the fact of the enjoyment of the usufruct of the property in suit by the donor cannot be overruled. The old man was put to annoyance by him. Service is something more than the mere maintenance former mentioned in the deed so as to be carried into effect by the donee.
10. The service to be performed is absolutely lacking on the part of the donee. Thus there was no fulfilment of condition of service attached to the gift in dispute. Donee has absolutely denied to have given any assurance to the donor for the services to be rendered to him till his death, but assurance so given is indicative from the very deed of gift itself and so it can very safely be held that the old man was presumably deceived by the donee as a result of which he was successful in obtaining a gift of the property in suit in his favour which became a source of trouble to the donor instead of peace of mind expected therefrom. That being so both the Courts below failed to appreciate the evidence led by the parties in view of the character of the gift made by the old man who needed services of someone in his old-age to enable him to lead a comfortable life for the days remaining. But unfortunately son-in-law in whom the confidence was reposed by the father- in-law did not prove himself worthy of the credit. The Courts below appear to have been labouring under a wrong impression that no revocation of the gift in question could be made by the donor at all.
11. It was also contended by the learned counsel for the respondent that as donor is no longer alive, the gift cannot be legally revoked. It is in case of a donor who dies before revoking the gift and bringing a suit thereof to the Court of law. But revocation of the gift here was declared by the donor himself and a suit for obtaining a decree for the rescission of the gift was accordingly brought and so this revocation on the part of the donor cannot be hit by the exception that when a done is dead no revocation of the gift can be made. This exception pertains to the successors in interest of the donor who are not independently allowed to make a revocation of the gift of their own accord after the death of their predecessor making the gift. But when the donor had himself exercised his discretion of revocation, his successors in interest cannot be stopped to pursue the suit instituted by the donor. They as legal representatives of the donor suing the donee have every right to step into the shoes of the deceased donor and follow the proceedings till they end in due course of procedure.
12. ' The learned counsel for the respondent has also hinted that the donor and the donee were related within the prohibited degree and so the gift of the property in suit was irrevocable. By prohibited degree we mean that certain categories of persons cannot legally be united by their marriages.
13. Here in this case by giving artificial meaning to the term prohibited degree, if we say whether donee being a female could have ,entered into marriage with the donor, or vice versa the answer would be in affirmative. Therefore, there is also no force in this contention of the learned counsel for the respondent.
14. ' Further more just after the death of the donor his daughter, i,e, wife of the donee who is one of the legal representatives of Sahiboo deceased found to have been out of the house of her father which is also the subject matter of the suit and is residing separately from her husband somewhere else in another village in the house of one of her relatives. She did not appear before the Court to depose the circumstances under which she had to go out of the house of her father and remain aloof from her husband having no control whatsoever over the property in dispute. Thus the real cause of living of the wife separately from her husband could not be ascertained but one thing is clear that the plaintiffs are entitled to the possession of the land in suit.
15. ' The over all conclusion of the above discussion is that this appeal is accepted and the judgments and decrees of the Courts below are set aside and the suit of the plaintiffs is accordingly decreed in their favour with costs throughout.
16. ' Note. To be announced by any of my learned colleagues available at Mirpur in presence of the counsel for the parties, otherwise to be announced by the Camp Registrar (District Judge) Mirpur accordingly.