' MALIK MUHAMMAD ASLAM KHAN, J. -Through this appeal by leave the judgment and decree dated 26th June, 1978 passed by a learned Single Judge of the High Court is challenged.
2. The following pedigree-table is being given for elucidation of the case :- {{TABLE}} DINA Ahmed Ali Rehm Ali Niaz Ali Baj (plaintiff) (daughter)
Laab Bibi (widow)
I Abdul Abdul Karim (defendant) (defendant)
Mohd Sharif Manzoor Begum Sakina Begum son daughter daughter (plaintiff) (plaintiff) (plaintiff) {{TABLE}} ' Baj (who died during the hearing of first appeal before the District Judge), transferred through a registered gift deed dated 24th June, 1972 18 kanals 8 marlas of land alongwith a house thereon, situate in village Bihari, Tehsil Dudyal out of Khewat No, 19/18, measuring 58 kanals 19 mar/as, to contesting respondents herein, Abdul and Abdul Karim, the sons of his daughter. This gift deed was challenged by Baj's brother Ahmad Ali, his nephew Muhammad Sharif and nieces Manzoor Begum and Sakina Begum (the son and daughters of Niaz Ali) through a declaratory suit on the following grounds :-
(a) That the land and house was in possession and ownership of the plaintiffs (appellants and proforma respondents herein) which, donor Baj, had no right to transfer ;
(b) That the plaintiffs were in adverse possession of the gifted property for more than twelve years.
' Baj, the donor and Abdul and Abdul Karim, the donees, filed two separate written statements controverting the claim of the plaintiffs and stating therein that Baj was in possession and ownership of the gifted property on and before the execution of the gift deed who put the donees in possession thereafter. They also averred in- their written statements that the plaintiffs were never in adverse possession and that Baj being a co-owner and co-sharer with the plaintiffs, was in exclusive possession of the gifted property. The trial Court framed the following issues :-
(i) Whether the suit land and the house is in ownership and possession of the plaintiffs and defendant No, 1 was not competent to transfer the said property, which transfer would not affect the rights of the plaintiffs ? 0. P. Ps.
(ii) In case issue No, 1 is not proved, whether the plaintiffs are in adverse possession of the property for more than twelve years their adverse possession had matured into ownership ? 0. P. Ps.
(iii) Whether plaintiffs are not in possession of the suit land, and therefore, the suit in the present form is not maintainable ? 0. P. Ds.
(iv) Relief.
' The trial Court decided issues Nos. (i) and (iii) in favour of the plaintiffs and decreed the suit on the ground that the gift deed was void for want of delivery of possession to the donees. On appeal, the learned District Judge, Mirpur, upset the judgment and decree passed by the trial Court by deciding issue No, (i) against the plaintiffs. The finding of the learned District Judge, was that Baj was the owner and in possession of the gifted property and that he had duly delivered the possession of this property to the donees, thereby completing the gift. This judgment and decree of the learned District Judge, dated 30th June, 1977 was challenged in second appeal before the High Court which concurred with the finding of the first appellate Court and dismissed the plaintiff's appeal vide his judgment and decree referred above. Under these circumstances the plaintiffs have come up in third appeal before us.
3. The learned counsel for the appellants has assailed the judgment of the lower two appellate Courts mainly on the ground that gift deed was void as the possession of the gifted property was never delivered to the donees ; and that the finding of these Courts suffers from gross misreading and misappreciation of the evidence resulting in manifest injustice.
' On the other hand, it is contended by the learned counsel for the contesting respondents, that the concurrent finding of these two appellate Courts is well-founded, on proper analysis and appreciation of evidence and further that the appellants have no locus standi to challenge the gift deed even if the possession of the gifted property had not been delivered to the donees.
4. With the help of the counsel of the parties, we have gone through the relevant record and authorities cited by them. Our considered view is that the stand taken by the learned counsel for the appellants is un- tenable for the following reasons ;
(i) The question as to whether the possession of the property, which is the subject of gift deed, was or was not delivered to the donees, is purely a question of fact and a concurrent finding of the District Judge, A and High Court about this fact cannot be legally challenged unless it is shown that there has been gross misreading or non-reading of evidence resulting in manifest miscarriage of justice. The learned counsel for the appellants has not been able to show that there has been any gross misreading or non-reading of the evidence by the two appellate Courts, much less occasioning of any miscarriage of justice. He has however, referred to the statement of Baj, Fazal Ellahi, Dewan Ali and Abdul Karim D. Ws. In an effort to establish his contention. Perusal of the statement of these witnesses and judgments of the District Court and the High Court leaves no doubt that the testimony of these witnesses along-with that of the plaintiffs, were properly analysed and appreciated by both the Courts providing no basis for us to interfere with such a concurrent finding of fact. The mere fact that after the execution of the gift deed and handing over possession of the property to the donees, donor Baj shared the possession of the gifted property or that the land was being ploughed by the donees with the bullocks of the donor, does not in any way affect the validity of the gift deed. These witnesses and donor Baj have stated unequivocally that the possession of the gifted property had been duly delivered to the donees. Under Mahomedan Law, the validity of a gift qua delivery of possession is to be seen at the time the gift is made and if at that relevant time, there is actual or constructive delivery of possession as the corpus is susceptible of, the subsequent domain of the donor over the property especially when it is jointly with the donees, cannot invalidate the gift. Here we may refer to Syed Amir Ali's view in his "Mahomedan Law (5th Edition)" at page 113 :- "But a full consideration of dicta on the subject shows that actual delivery of possession is not necessary. If the character of the possession changes, the mere retention of the subject-matter of the gift in the hands of the donor, would not affect the validity of the gift. He may continue to retain the possession of the property as a trustee or depositary, and such possession will not affect the legality of the transfer. Similarly, if the thing given be in the hands of the donee by virtue of a trust the gift is in that case complete, although there be no formal seisin, since the actual article is already in the donee's hands, whence his seisin is not requisite."
' Considering the close relationship of the donor and donees, and at least one donee, Abdul Karim, and the donor living together in the gifted house since ten years before the execution of the gift deed, and the donor being an old man of 60/70 years, the mere fact of the land being ploughed with his bullocks by the donees or he also being in possession of the gifted property, does not in any way negative the donor's own firm stand taken by him in the written statement as well as while appearing as a witness that he had delivered the possession of the property to the donees. These facts as well as the averments in the gift deed that the donor had delivered the possession of the property to the donees, have been properly considered alongwith the revenue record by the two appellate Courts. Therefore, we are not prepared to accept this plea of the learned counsel for the appellants. The question of delivery of possession being purely a question of fact cannot be upset in the face of well based concurrent-finding of two appellate Courts below. The appeal fails on this very ground. However, we are considering as well, the other points raised by the learned counsel for the parties.
5. It is contended by the learned counsel for the appellants that a gift deed to be valid must be genuine and bona fide and not for achieving an ulterior object like depriving the heirs of their right of inheritence. Relying on Sardar Ahmed Khan and others v. Mst. Zamroot Jan (1) it is contended that Baj had gifted the property mala fide with a view to depriving the plaintiffs of their right of inheritence and as such the gift deed is invalid even if the possession was properly delivered to the donees. As against this, the learned counsel for the respondent has cited Safi Ullah v. Ghulam Jabbar and 4 others (2) to contend that a gift made even to deprive heirs is valid provided it fulfils the other requisite conditions of a gift under Mahomedan Law. With profound respect for the views of the learned Judicial Commissioner contained in "Sardar Ahmed Khan and others v. Mst. Zamroot Jan" we are unable to subscribe to his views. Mahomedan Law places no restriction on disposition of property by a sane Muslim owner by way of gift inter vivos except the disposition by a person suffering from death illness (marz-ul-maut). In fact the effect of a gift under Mahomedan Law is the deprivation of some of the heirs, whereby the donor consciously and intentionally interrupts the devolution of his property through the means of `hiba' by favoring one of the heirs or even a stranger of choice at the cost of other heirs. This is legitimately permitted under the Mahomedan Law and the mere fact that a full-fledged Muslim owner disposes of his whole or in part, property in favour of one of his heirs to the exclusion of other heirs be it with such an intention or not, the validity of gift is unassailable on this ground, provided the donor fulfils the requisite conditions. We may refer to page 137 of "Mulla on the principles of Mahomedan Law" by Dr. M. A. Mannan : "A Mahomedan may dispose of the whole of his property by gift in favour even of a stranger, to the entire exclusion of his heirs."
' The three essential conditions for the validity of the gift under the Mahomedan Law are-
(1) that there should be a manifest declaration of intent of gift by the donor ;
(II) there should be an acceptance of gift expressed or implied by the donee or by somebody on donee's behalf ; and
(iii) delivery of the possession of the subject of the gift by the donor to donee either actually or constructively as the subject is susceptible.
' In the case before us all these conditions have been fulfilled and according to us the law laid down in "Safi Ullah v. Ghulam Jabbar and 4 others (PLD 1955 Lah. 191) by Kaikaas and Akhlaque Hussain, JJ, (1) PLD 1950 Pesh, 45 (2) PLD 1955 Lab. 191 is the correct exposition of law on this point.
We, therefore, hold this plea of the learned counsel of the appellant as untenable.
6. Although we have held in para. 4 that the concurrent finding about the possession of the property in dispute being with the donees cannot be upset in the circumstances of this case we would like to reiterate the views of our own Court concerning this matter contained in Saida v.
Pinnu and another (1). It was agitated before us by the learned counsel for the appellant that unless the donor parts with physical possession of the subject of gift and puts the donees in actual physical possession thereof a very essential condition of a complete gift namely delivery of possession, remains unfulfilled. As a broad principle it may be stated that if a donor is himself in actual physical possession of the corpus, the delivery of possession would normally require actually putting the donee in physical possession thereof. But there may be cases where the possession is not with the donor himself or where the donee is already in possession jointly or severely with the donor or where F the donee is a minor and the donor is minor's guardian, it would not be necessary for the completion of a valid gift under the Mahomedan Law to put the donee in actual physical possession of the gifted property. In such cases if the donor does all that he could do to divest himself of his ownership and domain over the property, a gift will be complete and valid. The reason as contained in 'Durr-ul-Mukhtar, is that, 'To be in a position to take the possession is tantamount to taking the possession'. In these cases though the donor does not put the donee in actual physical possession of the corpus, but by doing all that he could do in this respect he places the donee in a position to take the possession and this fact per se will be taken as delivery of possession without the necessity of handing over physical possession.
7. The learned counsel for the respondents, relyingupon 'Fazal Ahmad v. Mst. Rakhi' (2) has contended that the appellants have no locus standi to challenge the gift deed even if it had not been completed by delivery of possession. As against this, the learned counsel for the appellants has pleaded that the appellants being heirs of the donor have the locus standi to contest the gift deed on the basis of non-delivery of possession.
Our considered view is that a donor or an heir claiming through him (and not against him as is the case before us) has the locus stand' to challenge the gift deed for want of delivery of possession.
But where a presumptive heir (as was the appellant) challenges the gift on the basis of non- delivery of possession in exercise of his independent right as for instance, being in adverse possession, he would have no locus standi to challenge the gift on this score as this challenge is not through the donor but in spite of and against him. A cursory reading of the plaint in the case before us will show that the appellants were not challenging the gift deed as heirs of donor Baj, but independently of, and rather against the rights of the donor and donees in their alleged capacity of being, the owners, and alternately holding adverse possession of the subject-matter of the gift deed. The suit was both against the donor and the donees and this claim of the appellants was controverted by both of them. In view of these facts, the position of the appellant will be (1) PLD 1979 SC (A & X) 245(2) PLD 1958 Lah. 218 that of a stranger claiming adversely against the donor and donees and as such the principles of an heir of a donor challenging the gift deed would not apply to them. It was never their case, and this plea is taken for the first time before us, that they were challenging the gift deed as heirs of the donor. In view of this fact of the matter, the principle enunciated in Fazal Ahmed v. Mst. Rakhi is fully attracted to the facts of this case. We have no doubt that the appellants had based their plaint not on account of being heirs of or because of deriving their right through the donor but manifestly on the basis of their independent right and even against the right of the donor. In view of this fact of the matter we hold that even if Baj had not delivered the possession of the corpus of the gift deed (which is not the case here) the appellants had no locus standi to challenge it.
' The upshot of the whole discussion is that finding no force in this appeal we dismiss it with costs throughout.