' ABDUL MAJEED MALLICK, ACTG. J.-This appeal by leave arises out of the judgment of the High Court, dated 21-6-1978, whereby the learned Single Judge of the High Court set aside the findings of the subordinate Courts, accepted the appeal and decreed the plaintiff-respondent's suit.
2. Sahiboo executed a gift deed in favour of Hassan Muhammad, appellant, on 25th November, 1958, with the condition that Hassan Muhammad, donee, will render{{URDU TEXT}} "c-:-->-&-4-" to him till death. Some years after the execution of the gift relations between the parties strained, consequently Sahiboo brought a suit for declaration in the Court of Sub-Judge, Kotli, on 17-7-1962, with the claim :-
(1) that gift was procured by fraud and misrepresentation ;
(ii) that gift was incomplete for lack of delivery of possession ; and
(iii) for failure to fulfil the condition of the gift (render{{URDU TEXT}} ',I..' trp- (3 The defendant- appellant denied the allegations and claimed :-
(i) that possession was delivered in consequence of the execution of the gift ; and
(ii) that no condition, whatsoever, was accompanied the gift.
3. The plaint was amended twice but issues arising out of the amendments, not being necessary and relevant to the controversy in question, are not discussed.
' The learned trial Judge held that plaintiff failed to prove exercise of fraud and misrepresentation ; hence Issue No. 1 was decided against the plaintiff. Likewise, it was held that possession of the property was delivered to the donee, thus Issue No, 2 was also decided against the plaintiff. The learned District Judge concurred with the finding of the trial Court and dismissed the appeal, on 20-5-1977. Sahiboo, plaintiff, died after the institution of the suit and was succeeded by the present respondents. The respondents feeling dissatisfied with the findings of the lower Courts filed second appeal in the High Court. The learned Judge of the High Court disagreed with the lower Courts, set aside the findings and granted a decree in favour of plaintiff-respondents, on 21-6-1978.
4. The first point raised before us is as to whether the gift in dispute is a simple gift or contingent gift (Hiba-ba-shart-ul-ewaz). Kh. Muhammad saeed the learned counsel for the appellant, contended that it was a simple gift and not a contingent gift (Hiba-ba-shart-ul-ewaz). The learned counsel supported the stand taken by the defendant-appellant, in his written statement, and contended that the gift deed cannot be construed as gift contingent.
5. We have perused the gift-deed. The relevant recitals are reproduced below :-{{URDU TEXT}} To construe the aforesaid recitals, in order to ascertain the intendment of the donor, we revert to the definition of Hiba-ba-shart-ul-ewaz. In Muhammadan Law, by Syed Amir Ali, 5th Edition, at page 163, Hiba-bashart-ul-ewaz is described as :- "A Hiba-ba-shart-ul-ewaz is a contract of a different description from a Hiba-bil-ewaz. The terms used in the constitution of such a hiba imply a contingency. Thus :-"I have given you this on condition of your giving me such a thing." Now, it will be observed that in this contract, its legal operation depends upon the fulfilment of the condition, being the delivery and season of the Ewaz or consideration ; otherwise, if it were valid and binding without such condition, the consideration might be withheld, and it might thereby become, as it were, a nudum pactum. As to the effect, this contract is declared to have the property of a sale, after the condition is fulfilled, that is to say, after mutual delivery of seisin it becomes in effect a sale.
' For example, if a person were to declare that he had made a gift to, and conferred on another, the proprietary right to his entire property on condition that the donee should give to him something in exchange for the gift, and the donee were to accept the condition, it would be a gift Ba-shart-ul- ewaz or a gift on condition of an exchange. So long as the condition is fulfilled, it is a gift revocable at the will of the donor under the same circumstances as a simple gift. And for the same reason delivery of seisin is necessary. But once the condition is fulfilled the contract becomes a sale. It is, therefore, stated in the Sharah-i-Chalpi that a Hiba-ba-shart-ul-ewaz technically, as regards the Shart, is considered in the light of a gift, and sale as to the effect. Seisin is requisite to its validity and the gift cannot be said to be established until the parties shall have delivered seisin to each other, but the property conferred remains as formerly at the disposal of the donor."
' Again at par 165, while discussing different aspects relating to the validity of the Hiba-ba-shart- ul-ewaz, it is stated :- , .. . Where the "condition" has not that effect, where it forms, in fact, the "consideration" for the grant, and the gift is made on the express stipulation that the donee should do something or abstain from doing something or should give something in return for the gift the contract is valid in its entirety. For example, if were to convey to a property in consideration of maintaining him during his lifetime, or of paying him, and after his death, to his heirs a fixed allowance, there is absolutely nothing illegal in the contract as the condition does not make the contract nugatory ; and if the grantee obtains possession of the property upon that contract, the grantor or his heirs would have the right to enforce the performance of the covenant relating to the consideration against the grantee and all persons deriving title under him."
' In "Mulla on the Principles of Muhammadan Law" under para. 169, Hibaba-shart-ul-ewaz is explained as :- "169. Hiba-ba-shart-ul-ewaz.-Where a gift is made with a stipulation (Shart) for a return, called Hiba-ba-shart-ul-ewaz. As in the case of a hiba (simple gift), so in the case of a Hiba-ba-shart-ul- ewaz, delivery of possession is necessary to make the gift valid, and the gift is also revocable (S. 167). But the gift becomes irrevocable on delivery by the donee of the Ewaz (return) to the donor (z)."
7. The proposition found attention of Mr. Justice Karam Elahee Chauhan in Khuda Bakhsh and others v. Mst. Khudeja Bibi (1). The relevant observation is reproduced below :-
(4) Hiba-ba-shart-ul-ewaz.---In this case, the donor makes a gift but on the express stipulation that it is being made on the condition of a return (e. g., "I have given you this on the condition of you are giving me such thing)". The legal operation of the gift depends on the fulfilment of the condition. The transaction is thus in the nature of an executor gift and the "grant" and "condition" are dependent upon each other. It is a gift in its inception and continues to have all the incidents of a gift till the condition is fulfilled. Delivery of possession is thus necessary and either party refuse to deliver possession. Till then the gift is revocable. It becomes a sale as soon as the condition is fulfilled and the return is given."
8. In Muhammad Aslam Khan and another v. Bashir Khan and others (2) Mr. Justice Kh. Muhammad Yusuf Saraf gave a comprehensive review of the concept of Hiba and its various classes, under Muslim Law, and in that context the learned Judge described Hiba-ba-shart-ul-ewaz. As :- "Hiba pure' and simple is where the donor receives no property in return ; Hiba-bil-ewaz is where after the gift has taken place, the donee out of his own volition, returns the obligation by giving some property to the donor without being bound to do so ; hiba-ba-shart-ul-ewaz is where the initial gift is made subject to the condition (shart) of an iwaz."
Hiba-ba-shart-ul-ewaz is made with an express stipulation for a return. Delivery of possession and fulfilment of stipulation of return are essentials for completion and validity of Hiba-ba-shart-ul- iwaz. Failure of possession and non-fulfilment of stipulation render Hiba-ba-shart-ul-ewaz invalid.
9. In the instant case, the gift in dispute purports to be a Hiba-ba-shartul-ewaz. The condition in the gift is that donee shall render services to the donor till the death of the donor. The word{{URDU TEXT}} ",:-,-k>." as is used and familiar with the society, to which the parties belong,, would mean to provide maintenance, respect and revere, as obligatory.. The obvious intention of the donor, by executing gift in favour of the donee, was that the donor being an old man and incapable to maintain himself in future reposed trust and(I) PLD 1968 Lab. 1001 (2) PLD 1975 Azad J K 42 confidence in the donee that in consideration of gift the donee would render the requisite service to him. Thus intention of the donor finds support from the pleadings, evidence and the testimony of the plaintiff (donor). The cause of revoking, the gift and seeking a declaration to that effect, as alleged, was that defendant-donee maltreated and beat the donor resulting in hatred, disregard and ill-will between the parties. Thus the allegations, made in the pleadings, suggest that the condition of the gift was left unfulfilled.
10. The learned Single Judge of the High Court rightly observed that the trial Judge as well as the learned District. Judge failed to apply their mind to this aspect of the proposition. The subordinate Courts primarily appreciated issue No, I in order to determine that fraud and misrepresentation, as asserted by the plaintiff, were not proved. They ignored that basically plaintiff-donor revoked the gift and sought declaration to that effect, on the ground of non-fulfilment of the condition of the gift.
11. It is already pointed out that for a valid Hiba-ba-shart-ul-ewaz, delivery of possession of the property, like in the case of simple gift, is an essential condition. In the present case, in para. 2 of the first amended plaint, plaintiff-donor alleged that he was in possession of the property. In other words the possession of the property was not delivered to the donee in lieu of the gift. This plea was repeated in the second amended plaint in its para.
2. Sahiboo, donor, appeared as witness twice. His first statement was recorded on 26-11-1963 and second time on 23-9-1967. In his testimony Sahiboo reiterated the failure of donee to fulfil the condition of "Khidmat", accompanying the gift, as well as non-delivery of possession of the property till the time of his testimony. In his cross-examination, on both the occasions, the plaintiff unequivocally deposed that he was in possession of the property and he cultivated the land himself. He admitted that defendant-appellant lived alongwith him. It is strange that defendant- appellant failed to put his version to the plaintiff in cross-examination. Sahiboo, plaintiff, was not confronted with the suggestion that possession was delivered to the donee in lieu of the gift and that donee enjoyed the possession of the property after execution of the gift. The aforesaid part of the testimony was not considered by the subordinate Courts. The other oral evidence led by the parties suggests that donor and donee were in joint possession, except Allah Ditta, Numberdar, produced by the defendant-donee, who admitted in his cross-examination that he received land revenue of the suit land from Sahiboo, donor, till his death. In re-examination the witness tried to help the defendant by stating that Sahiboo and Hassan Muhammad both used to pay the land revenue of the suit property. Apart from the aforesaid evidence Munshi Muhammad Rafique, Patwari, who verified the entries of Khasra Girdawari, deposed that on 19th April, 1959, Sahiboo was shown in possession of Survey Nos. 91, 91 min. 92 and 457/92. Cultivation of Survey No, 456/93 was entered in the name of Sahiboo as disputed. The witness deposed that there was no entry of change of cultivation in favour of Hassan Muhammad. In cross-examination this witness deposed that entries of Survey Nos. 95 and 95 min. Were tampered with. The copies of the Khasra Girdawari, produced by the defendant, indicate that Sahiboo remained in possession till 1st June, 1959.
Change in cultivation was entered on 1st June 1959, but it is not entered in the relevant column nor it is supported by Roznamcha-waqiati of Patwari. It is safely held that defendant-donee failed to get possession of the property in lieu of the gift.
12. It is already observed that in case of hiba-ba-shart-u1-ewaz, like a simple Hiba delivery of possession is essential for completion of gift. In case possession of property is not delivered the gift cannot be considered complete and valid. In the instant case the preponderance of evidence is that Sahiboo remained in possession of the property till the time of his death.
13. It is disclosed in the evidence that after the death of Sahiboo, Hassan Muhammad, appellant, occupied the suit property and dislodged Mst. Said Begum, on which she moved for an amendment and prayed for a relief of restoration of possession. During the argumants we enquired from the appellant as to who is in possession of the property at present. He stated at the bar that Mst. Said Begum, respondent, is in possession and that he (appellant) is living in his own house situate in a different village.
14. Kh. Muhammad Saeed, the learned counsel for the appellant, pointed out that recital of gift deed by itself is a good proof of delivery of possession. We are unable to accept the suggestion recital of gift deed by itself is not a conclusive proof to raise presumption of delivery of possession to the donee. Whenever the question of delivery of possession is agitated, Court has to resort to other evidence. This is so as the presumption arising out of recital is rebuttable one. In Shamshad All Shah and others v. Syed Hassan Shah and others (1) Mr. Justice Kaikaus while discussing the importance of recital relating to delivery of possession observed as :- "A declaration in a deed of gift as to delivery of possession has two aspects. It may be evidence of delivery of possession and it may of its own force transfer or help in transferring possession, so far as the first aspect is concerned if it be otherwise known that the donor did nothing beyond making a statement as to delivery of possession the recital is of no value. In its second aspect the making of the declaration is a circumstance to be taken into consideration for determining whether delivery has taken place. But in neither aspect is such a declaration conclusive and learned counsel for the appellant is unable to offer any argument as to why such a declaration should be conclusive."
15. In Ishaq Hussain and another v. Ashiq All (2) it was observed as under :- "A mere recital in the gift deed that possession has been delivered to the donee not enough. There are three essentials of gifts under the Muhammadan Law (I) A declaration of gift by the donor ; (ii) an express or implied acceptance of the gift by the donee ; and (iii) seisin or the delivery of possession of the gifted property by the donor to the donee. The delivery of possession by the donor as a conscious, unequivocal and distinct act on his part is necessary to perfect the gift made by him."
' In Mst. Eldun Nisa Begum v. Member (Revenue), Board of Pakistan, Lahore and 4 others (3) it was held that delivery of possession must be satisfied for making of a valid gift. Actual delivery of possession is necessary even if donor and donee were living together as husband and wife.
16. The aforesaid citations laid down a rule which, in or view, is correct one ; we, therefore, hold that recital by itself is not conclusive proof of delivery of possession of gift property. In the instant case we have already examined that delivery of possession of the suit property. In the life {FOONOTE}}
(1) P I, D 1964 SC 143 (2) 1972 SCM R 50
(3) PLD 1973 Pesh. 1 ' time of Sahiboo, donor, has not been proved. The evidence on the other hand leads to the conclusion that Sahiboo, donor, never parted with the possession of the suit property. We uphold the conclusion of the learned Judge of the High Court. No other point was raised before us.
' In view of the aforesaid findings the appeal being devoid of force is dismissed with costs.