1. Kh. MUHAMMAD SHARIF, C. J.--Land Khasras Nos, 654, 1110, 933, 1814, 662 and 1112 measuring 39 kanals 5 marlas situate in village Palaak was acquired for the construction of the Mangla Dam Reservoir. The compensation was assessed in the name of Gulab son of Mota Jat resident of Pind Khurd Tehsil Mirpur. Sakhi Muhammad, the appellant, claimed that the land was his, property and that the compensation had been wrongly assessed in the name of Gulab. Being dissatisfied with the award he applied to Collector II Mangla Dam, Mirpur, for making a reference. The learned District Judge, Mangla Dam Affairs, Mirpur, framed the following issues:-- (1)What would be the effect of that case of the land under reference filed in the civil Court (Court of the Sub-Judge)? 0. P. Applicant.
2. (2)Whether land in dispute is owned and possessed by the applicant the compensation of which he is entitled to receive and the gift deed Exh. P. A. has become void and ineffective and how ? 0. P.
3. Applicant.
4. (3)Relief ?
5. Gulab pleaded that Sakhi Muhammad had made a gift of the suit land in his favour by a registered deed and that Sakhi Muhammad had filed a Suit in the civil Court challening the hiba but that a compromise was effected between the parties, Sakhi Muhammad had relinquished his claim. The case of Sakhi Muhammad applicant-petitioner was that he had not given possession to Gulab, the donee, therefore, the hiba was void and ineffective. Gulab died during the pendency of the reference in the Court of the District Judge and his widow Mst. Rasool Begum and his son Kaka were brought on the record as legal representatives. The learned District Judge by his judgment and decree dated 30-6-70 held that he was himself competent to decide about the validity of the hiba and decided that the hiba was perfectly valid. He, therefore, dismissed the reference application. Sakhi Muhammad, the applicant, has now come up in appeal before this Court in forma pauperis.
6. Learned counsel for the appellant (applicant) argued that under the Muhammdan Law it was essential for the validity of a gift that possession should be given to the donee and that possession had not been given to Gulab, the donee, in this case, therefore, the hiba was void and ineffective.
7. He cited PLD 1967 Lah. 336 in support of his contention. Muhammad Akram, J. laid down in this authority that : "The law contemplates that the possession required to be given to the donee must be such as the nature of the property permits. If the donor has done all that he could do to complete the contemplated gift the transfer is valid. The mode by which the possession is delivered to the donee depends upon the nature and character of the property and the question has to be considered keeping in mind all the facts and circumstances of the case. 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."
8. It is recited in this gift deed which is a registered one that possession has been given to Gulab, the donee. About this entry in the gift deed with regard to the passing of the possession it was laid down in this ruling that :-- "A mere recital in the gift deed that the possession has been delivered to the donee is not enough."
9. Mr. Cheema learned counsel for the respondents, non- Sharif, C J applicants, cited PLD 1955 Lail.
10. 191 which is a Division Bench judgment. Akhlaque Hussain, J. laid down in this judgment that: "A declaration by a donor regarding the delivery of the gifted property made solemnly, intelligently and freely, is irrevocably binding on him and those who may claim the property through him in disregard of his gift.
11. The true doctrine of the Muslim Law relating to gifts does not require either that only particular kind of possession be given; or that possession can be given only in certain specified ways.
12. What is really required by Muslim Law is that there should be satisfactory evidence that the donor did in fact part with possession of the subject-matter of his gift either physically or constructively.
13. A declaration that possession had been delivered, if satisfactorily proved, is by itself sufficient to show that possession has been given to the donee."
14. Kaikaus, J. laid down in this D. B. authority that:-- "The question to be answered in this case is whether possession has in fact been delivered to the donee. It is a matter to be decided on the circumstances of each case. Though decided cases may be of some help in appreciating the evidence of possession in a particular case, they do not provide any rule of law and the final decision must depend upon whether on a consideration of the evidence in a case we reach the conclusion that possession has passed.
15. If it be not the case of the donee at all that the donor did anything beyond the making of a declaration in the deed, the value of the declaration as evidence of delivery of possession is practically nil. However, in such a case, although declaration has no value as evidence it may by itself be effective in transferring possession for possession may, in the circumstances of a particular case, be delivered even by a declaration. It would depend inter alio on the intention of the donor and the kind of possession the donor had. If there was a bona fide intention to transfer possession and if there was nothing further which the donor was under the circumstances capable of doing, the transfer of possession could very well be effective merely by a declaration. On the other hand, a formal recital without any intention on the part of the donor of effecting transfer of possession would be of no avail for transferring possession. The matter has obviously to be decided according to the facts and circumstances of each case."
16. Oral evidence of a couple of witnesses on both sides with regard to the passing or non-passing of the possession is of no help. We have to look into the entries of the Revenue Record to find out whether possession had been or could be given to Gulab and in what form.
17. The hiba-nama was executed on 26-11-60 and registered on 8-3-1961. The Khasra Girdawari Exh. P.
18. B. shows that from Rabi 1960 onwards Khasra No, 654 in which Iddo and Sakhi Muhammad possessed half equal shares was under the cultivating possession of Iddo co-sharer. Sakhi Muhammad, therefore, was not in physical possession of this Khasra No, Khasra No, 1110 measuring 4 kanals 4 marlas was under the cultivating possession of Misri son of Bagga Jat resident of the village `Ghair Mouroosi' paying {{URDU TEXT}} on account of (3174.) {{URDU TEXT}} Khasra No, 1110 Min measuring 4 kanals 4 marlas was under the cultivating possession of Badlo son of Haider Jat resident of the village `Ghair Mauroosi' paying {{URDU TEXT}} on account of {{URDU TEXT}} Khasra No, 933 measuring 13 kanals 10 marlas was under the cultivating possession of Kaloo son of Allah Din Jat resident of the village `Ghair Mauroosi' {{URDU TEXT}} on account of URDU TEXT}} Khasra No, 1814/727 measuring 2 kanals 9 marlas was also under the cultivating possession of Kaloo son of Allah Din Jat resident of the village `Ghair Mauroosi paying {{URDU TEXT}} on account of {{URDU TEXT}} Khasra No, 662 measuring 3 kanals 16 marlas was under the cultivating possession of Hussaina son of Khushia Jat resident of the village `Ghair Mauroosi paying on account of {{URDU TEXT}} Khasra No, 1112 measuring 7 kanals 4 marlas was under the cultivating possession of Habib Ullah son of Miri resident of Unah `Ghair Mauroosi' paying {{URDU TEXT}}{{URDU TEXT}}on account of relationship. In land Nos, 1110, 1110 Min, 933, 1814/727 and 662 the mortgagees were in possession on behalf of Sakhi Muhammad.
19. The land having been mortgaged by Sakhi Muhammad with various persons when he made a gift of this land he was virtually making a gift of the equity of redemption There is a conflict of opinion whether a gift of an equity of redemption, where the mortgagee is in possession of the mortgaged property at the date of the gift, is valid. The High Court of Bombay has held in 23 Bom. 682, 6 Bom.
20. 650 that it is not. On the other hand, it has been held by the High Court of Calcutta in 49 Cal. 68, 57 C L J 375, 146 I C 803 that it is valid. Mulla, the learned commentator in his book `Principles of Muhammadan Law' 13th Edition writes under section 145 on page 136 that the latter, is the correct view.
21. The Bombay High Court does not hold that an equity of redemption cannot form the subject of a gift in any case but what it does hold is that a gift of an equity of redemption is not valid if the mortgaged property at the time of gift is in the possession of the mortgagee. The ground of the Bombay decisions is that the delivery of possession by the donor to the donee is a condition essential to the validity of a sift and the mortgagor cannot deliver possession if the ,mortgagee is in possession. It is true that the delivery of possession, by the donor to the donee is necessary to validate a gift but it is equally well established that when the subject of a gift is not capable of actual possession, the gift may be perfected by appropriate acts on the part of the donor which may have the effect of transferring the ownership to the donee. When the mortgagor himself is in possession of the mortgaged property, a gift of the equity of redemption is not valid unless he delivers possession of the property to the donee but where the mortgagee is in possession, the mortgagor cannot deliver possession to the donee, and the gift, it is submitted, may in that event be completed by some other appropriate method. Mulla writes on page 137 of his book that Bombay decisions, it is submitted, are not sound and that the correctness of these decisions was questioned by the High Court of Allahabad in 11 All. 1 and 21 All. 165, and they have been dissented from by the Calcutta High Court. We agree with the opinion of the learned Commentator Mr. Mullah that in cases where the possession of the gifted property is with a mortgagee, a gift of an equity of redemption is valid even without passing of the possession to the donee. The declaration made by Sakhi Muh mmad in the hiba nama that he had given possession to the donee in the circumstances of the case is sufficient evidence of his intention to divest himself of the property for all times to come and he did all he could to divest himself of the property by relinquishing his title in the property in dispute and transferring the same in favour of Gulab by a deed in writing, and registered. The donor mortgagor was not in physical possession of the property, therefore, he could not deliver physical possession to the donee.
22. The position with regard to Khasra Nos, 654 and 1112 equally is that Sakhi Muhammad, the donor, was not in physical possession of this piece of land even. Therefore, with regard to these Khasra numbers also his declaration in the hiba myna that he had parted with possession was sufficient in the circumstances of the case to divest himself of his title in the property and to invest the same in Gulab and it would be sufficient to validate the gift.
23. There is also on record that the land mortgaged with Kaloo son of Allah Din was redeemed by Gulab which is evidenced by the document Exh. D. B.
1. Similarly land mortgaged with Hussaina was redeemed by Gulab by paying off the mortgage money to Badar Din son of Hussaina vide Exh. D. C.
24. Sakhi Muhammad in his civil suit challenging the hiba nama effected a compromise with Gulab, a copy of the compromise deed is Exh. D. C. in which Sakhi Muhammad admitted that the hiba nama which had been reduced to writing was true and correct and that it should be considered to have been co-rect. Exh. D A. is a copy of the order of the learned Sub-Judge, Mirpur, dated 21-7-66 by which Sakhi Muhammad withdrew from his suit and the suit was dismissed. Exh. D. B/1 is a decree of the Court of the Sub-Judge, Mirpur by which the suit of Sakhi Muhammad was dismissed. The learned District Judge was right in saying that he was competent to decide the question of the validity of the gift for himself and we agree with his finding that the gift of the suit land made by Sakhi Muhammad in favour of Gulab was perfectly valid in spite of the fact that physical possession had not been given to Gulab at the time of the gift. Sakhi Muhammad, the donor, had not the physical possession with him, therefore, the gift was valid.
25. The appeal fails and is dismissed with costs. The Collector shall be informed so that he can realize the court-fee from Sakhi Muhammad appellant.