ZULFIQAR AHMAD KHAN, J.---This judgment will dispose of above referred two revisions filed against concurrent findings of the Courts below where appellate Court dismissed the appeals filed by the applicant against consolidated judgment and decree of the trial Court.
2. Succinctly, facts of the case are that applicant filed IInd Class Suit No,27/2002 for Declaration, Permanent Injunction and Cancellation of Declaration of Gift asserting therein that deceased Muhammad Rafique was, original owner of the house bearing C.S. No,32/52-1, Ward "G" admeasuring 55-05 Sq yards located at Liaquat Colony, Hyderabad, who passing ailing life, died issueless leaving behind applicant as his surviving legal heir. It was further pleaded that during lifetime, deceased Muhammad Rafique donated/waqf the suit property to Muhammadi Masjid by executing Iqrarnama on Stamp Paper dated 14.03.1998 in presence of witnesses Muhammad Hanif and Saeed Ahmed for charitable purpose upon which nephew of the deceased/respondent Abdul Waheed (a witness to the lqrarnama) was aggrieved, hence, he with mala fide intention and ulterior motive so that usurp the suit property, illegally inserted his as well as applicant's name in the record of rights to the tune of 50% each share through registered Declaration of Gift bearing No,1689 dated 02.06.1999, hence, committed fraud as he had no authority to insert his name by way of fraud, besides prepared a Will in a fraudulent manner on stamp Paper No,71 dated 19.07.1999 in the name of plaintiff/widow of deceased to usurp the suit property.
3. Conversely, respondent Abdul Waheed also instituted a Second Class Suit bearing No,28/2002 for Partition, separate possession and mesne profit pleading therein that deceased Muhammad Rafique during lifetime gifted the suit property to him and Mst. Anwar defendant/ widow to the extent of 50% share each with his consent and will through declaration of gift and he being co- sharer is in joint possession of the suit property. It is further mentioned that he many time approached the applicant to have partitioned the suit property but she refused, hence, he filed present suit.
4. Both the parties contested the suits filed by each other and by the consolidated judgment dated 26.07.2004, the trial Court dismissed the suit filed by the applicant and decreed the suit of respondent as prayed, against which, applicant preferred appeal bearing No,207 of 2004 but the same was turned down by judgment dated 28.05.2009.
5. Learned counsel for the applicant submitted that both the Courts below have failed to appreciate the fact that respondent was residing in the house of his maternal uncle, who took advantage of illiteracy of his uncle/aunt and by playing fraud got signatures on declaration of gift before Sub-Registrar, Hyderabad by giving expression that the said document was Waqf deed.
Counsel next submitted that both the Courts have not taken into consideration the fact that deceased bestowed/waqf the property by way of Iqrarnama dated 14.03.1998 to Muhammadi Masjid Liaquat Colony, Hyderabad. Learned counsel further added that respondent has failed to bring on record that the deceased gifted 50% share with his wishes, therefore, said declaration of gift is void, illegal and unlawful. Counsel additionally submitted that both the Courts have committed gross illegality and material irregularity by overlooking the aforesaid facts, therefore, impugned judgments are liable to be reversed. Counsel lastly contended that the mere purpose of the applicant for following even upto this. Honourable Court is to get the suit property handed over to Muhammadi Masjid and to keep it away from the clutches of the respondent, who has committed fraud and that the applicant has brought sufficient evidence that the respondent never ever possessed the suit property as owner. In support of his contention,: counsel for the applicant placed reliance on case laws reported at 2003 SCMR 286, 2003 SCMR 41 and 2003 MLD 1280.
6. In resistance counsel for the respondent submitted that respondent was residing with deceased Muhammad Rafique since his birth and due to love and affection, the deceased was willing to gift of 50% share of the suit property and in consequent to said willingness, deceased with his consent and will before Sub-Registrar, Hyderabad, gave statement and gifted the suit property to the extent of 50% to the applicant and respondent each. It was further added that deceased during his lifetime did not donate the suit property for charitable purpose nor wrote down any Iqrarnama and said Iqrarnama produced by the applicant is managed and is attempt of usurping the share of the respondent. Counsel further submitted that execution of gift declaration and its registration is not denied on the part of the applicant even sufficient evidence was brought on record clearly showing that the gift was executed by the deceased with his consent and respondent is possessing the suit property as owner to the extent of 50% share. Counsel in last submitted that by proper consideration of said evidence, both the Courts have rightly passed the impugned judgments and decrees, which require no interference by this Court as applicant has failed to highlight any illegality and irregularity in the impugned judgments and decrees. In support of his contention, counsel for the respondent relied upon case laws reported at PLD 1967 Lahore 1087.
7. Heard counsel for the parties and reviewed the record brought on record.
8. It is abundantly clear that the respondent was permitted to reside in the house of applicant / deceased on temporary basis as they were growing old, therefore, his presence in the suit property was not an owner or donee and it is well settled law that mere presence over the property cannot be termed as owner. It is the case of respondent that deceased gifted 50% share from the suit property to him by means of gift declaration. A bare reading of the said document, it transpires that deceased Muhammad Rafique gifted the suit property to the extent of 50% share each to the applicant and respondent and for the sake of arguments, it is presumed that the said gift is valid and legal, yet respondent is bound to prove delivery of possession being essential to the validity of gift, which admittedly respondent could not prove as nowhere respondent has alleged that after execution of gift declaration, possession was delivered to him by the donor.
9. While the appellate Court has touched the ingredients of a valid gift but seemingly did not expound on the issue, which I hereby do by pointing out that in the instant case where the possession of the land was already with the beneficiary i,e, donee, Islamic law in order to make it a valid gift requires donor to perform any of the overt acts to disassociate himself from the property in order to let the surviving legal heirs know that the property would now solely rest with the donee.
In the case in hand no such overt act was done by the deceased to inform the remaining legal heirs that he has in fact gifted out the land to his nephew and had thus deprived the other legal heirs from their share. In the absence of such overt act, offer/acceptance of possession of the lands did not take place, therefore, the gift itself had become invalid and no rights could be claimed on the basis of that void gift, once assuming that the gift deed was infact a legit document.
10. In order to constitute a valid gift under Islamic law, there must be an offer (ijab), an acceptance (qabul), and transfer (qabza), while there is no requirement of public depiction of ijab and qabul, the pivotal requirement is the mark-able delivery of possession by the donor and taking of the possession by the donee. It is important to point out that under Islamic law 'gift' is considered to be a contract, however under the English law this at best could of the nature defined in Section 2(d) of the Contract Act, 1872. Since the term possession means only such possession as the nature of the subject is capable of, the real test of the delivery of possession is to determine as to who (donor or the donee) reaps the benefits of the property after the gift. If the donor has not handed over the possession or if he is still reaping the benefit, then the delivery conditionality is not met and the gift remains invalid. In fact this requirement is so critical that gift is said to only take effect from the date on which the requisite possession of the property is delivered to the donee; not from the date on which the declaration was actually made. Delivery of possession hence becomes concomitant of the gift and so serious that without delivery of possession to the donee, the gift is held void even if it was made through a registered document.
11. A study of the applicable jurisprudential standards could start from paragraph 152(3)of the Principles of Mahomedan Law by D.F. Mulla. Full text of the said para is reproduced in the following: 152: Delivery of possession of immovable property.- (3) Where donor and donee both reside in the property.- No physical departures or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift.
Paragraph 153 is spot on this point which is reproduced in the following: 153: Gift of immovable property by husband to wife.--- The rule laid down in Sec. 152(3) applies to gifts of immovable property by a wife to the husband, and by a husband to the wife, whether the property is used by them for their joint residence or is let out to tenants.
Paragraph 150(2) is spot on this point which is reproduced in the following:
(2) Registration;- Registration of a deed of gift does not cure the want of delivery of possession.--
12. As it could be seen from a combined reading of above two paragraphs that in case of father/mother and son (being donor and donee) both in possession of the property being gifted, while there is no need of physical departures or handing over of the possession, however to make such a gift complete, donor has to perform some overt act through which D he indicates his clear intention to transfer possession and to divest himself of all control over the gifted property. The overt act conditionality becomes critical in such cases since the very essence of a gift (or hiba) is to achieve the delivery of possession in this manner when the matter is between family members.
Guidance in this regard could be taken from the case of Muhammad Javed v. Nisar Ahmed (2012 YLR 1021) where Court dilated upon this aspect of overt act and held that the act of making a gift was a prerogative of an owner and it should not have been a covert exercise but an overt recital on the beat of a drum. In the case of Ghulam Rasool v. Rasheeda Bibi (2006 CLC 531) Court set aside judgments and decrees of Courts below holding them suffering from infirmity of misreading and non-reading of evidence since the possession of alleged gifted land was not shown to have ever changed hands on the basis of alleged gift, as neither there was any independent proof on the record nor change of possession having been established on account of any overt act of petitioner. Such transfer of possession is so critical that paragraph 150(2) of DF Mulla (supra) even nullifies the effect of registration of a gift deed, where the possession was not delivered. The emphasis on such divestment via an overt act becomes more important since most of the deliberations between husband and wife are usually taken to be kept private and are given the classical example of things given by one hand and received by another. That's why the overt act becomes vital so that public at large could get to know the details of the private agreement entered into between the family members, since such act of hiba would affect (for example) other legal heirs' rights in the property being gifted. In this regards guidance could also be sought from the case of Maqbool Alam v. Khodaija (66 ASC 1194) where it was held that a gift of property is not established by mere declaration by the donor and acceptance by the done, there must also be either delivery of possession or some overt act by the donor to put it within the power of the donee to obtain possession. Example of such over act could be seen from the case of Ibrahim Haji Musa Haji Rasul Samol v. Sugra bibi (1978 19 G.L.R.) where after the declaration of the gift, and handing over of the possession by the donor to the donee, an application was made on the same day to the Land Records Authority, for mutation of the property from the name of the donor to the name of the donee and that the statements of both the parties were recorded in which the factum of delivery of possession was admitted and in consequence, the Land Records Authority actually mutated the property from the name of the donor to the done and Court held that this overt act by the donor and the donee establishes compliance with the requisite condition of the delivery of possession of the property. In the case of S.M.S. Saleem Hashmi v. Syed Abdul Fateh (72 Pat 279) where the donor and donee used to reside together in a house, the overt act was done by handing over of the papers related to the property by the donor and Court held that the said act of handing over of the original documents regarding the gifted property satisfied the requisite condition about delivery of possession. In the case of Abdul Razzak v. Zainab Bi (1933) 63 Mad. LJ. 887 the overt action was shown from the fact that after the execution of the deed, the donee started paying all municipal taxes and Court held that the gift was complete although there was no physical departure or formal entry.
13. In the case of Haji Muhammad Yaqoob Khan v. Muhammad Riaz Khan reported as 2016 YLR 2492, the Court gave important finding that "if corpus of gifted property was not transferred then any condition limiting the authority of donee over the gifted property could validly be restricted".
Court also held that "the intention of donor would be relevant to determine whether corpus or usufruct of gifted property had been transferred to the donee which could be determined by title of document; terms related in the instrument; incorporation of gift in the revenue record; entries sowing the transfer as reflected in the revenue record". The said judgment further holds that "once the gift, in cases to the family members, was proved to be officially recorded in the revenue record or with the registering authority, it would be presumed that donor's subsequent act with regard to gifted property was done on behalf of donee and not on his own behalf." In the case reported as 2010 MLD 352 of Muhammad Nawaz v. Abida Bibi who were family members and dispute arose as to gifted property. Court held that in order to be a valid gift, "donor had to relinquish all rights and dominion over the gift and had to divest himself totally of all ownership over the subject of the gift, whether implied or implicit for the completeness of the grant."
14. The case law cited by the respondent being PLD 1967 Lahore 1087 being from a single judge is humbly not binding on me particularly in the light of whatsoever has been stated in the foregoing.
15. A bare reading of evidence, it appears that the applicant was receiving the rent from the tenant, who came in the Witness Box and admitted such fact. The respondent has nowhere admitted to have received the rent from any of the tenants, and his evidence generally is even otherwise contradictory. It is worth mentioning here that there is no apparent self-interest of the applicant to usurp the property of her own husband as she only wants to donate/waqf the suit property to Muhammadi Masjid as per will of her late husband, against such noble cause, there should be no estoppel.
16. It was for the above reasons, I was of the considered view that both the Courts committed gross illegality and patent irregularity while passing the impugned judgments and decrees by not applying the judicial mind but mechanically hammering on the point of registration of the alleged gift deed, which under Article 150(2) of the Muhammadan Law does not cure the want of delivery of possession, I thus through my short order dated 29.05.2018 allowed both the revisions and set aside the judgments and decrees' of the trial as well as appellate Courts, resultantly the suit of the applicant bearing Second Class Suit No,27 of 2002 stood decreed as prayed, and suit of the respondent bearing Second Class Suit No,28 of 2002 stood dismissed. These are the reasons of my said order.