' Ghulam Iqbal Khan son of Ghulam Sarwar Khan, resident of Kot Beli, Tehsil and District Bannu has sought the indulgence of this Court under section 115, C. P. C. Through this civil revision petition challenging the judgment and decree dated 27th May, 1982. Of Mr. Muhammad Qaim Jan Khan, District Judge, Bannu whereby he dismissed the appeal of the plaintiff/petitioner filed by him against the judgment and decree dated 24th November, 1981 of Syed Rafiq Hussain Shah, Civil Judge, Bannu vide which he dismissed the suit of the plaintiff/petitioner with costs.
2. Ghulam Iqbal Khan plaintiff/petitioner has instituted a suit for declaration that he is owner in possession of land 'Khata No, 6$' Khasra No, 473/2 measuring 3 Kanals 18 Marlas and 3 Sersais, Khasra No, 384/6 measuring 1 Kanal 10 Marlas, `Khasra No, 492/24' measuring 4 Kanals 13 Marlas, `Khasra No, 494/27' measuring 12 Marlas `Khasra No, 63' measuring 11 Kanals and `Khasra No, 127' measuring 5 Kanals 2 Marlas total area coming to 26 Kanals 15 Marlas and 3 Sersais or what area is proved through the revenue paper situate in village Kot Beli, Tehsil and District, Bannu to the extent of 10/55 share i. e. 5 Kanals left by Mst. Amir Shada Nara deceased daughter of Ghulam Sarwar Khan because according to the condition vide Mutation No, 1219 attested on 15th December; 1948 on the death of the said deceased lady the estate was to devolve on the plaintiff and inheritance Mutation No, 1998 attested on 13th September, 1971 is illegal and collusive and therefore ineffective on the rights of the plaintiff hence liable to cancellation.
3. The suit was hotly contested by the defendants and pleadings of the parties resulted in the framing of the following issues by the learned trial Court.
(1) Whether the suit is barred by time ?
(2) Whether the plaintiff is estopped to bring the present suit ?
(3) Whether the plaint is obscure if so its effect ?
(4) Whether the plaintiff has cause of action ?
(5) Whether the suit is bad in its present form ?
(6) Whether the plaintiff is owner in possession of the suit land as legal heir of Mst. Mir Shada Nara ?
(7) Whether the gift in favour of Mst. Shada Nara was still ?
(8) If issue No, 7 is proved in affirmative what is the effect of condition of upon gift Mutation No, 1219 attested on 15th December, 1948 ?
(9) Whether Mutation No, 1998 dated 3rd September, 1971 is illegal collusive and ineffective against the rights of the plaintiff ?
(10)Relief ?
' After recording the evidence of the parties the learned Civil Judge who was seized of the matter dismissed the suit of the plaintiff with costs. Aggrieved by the said judgment and decree the plaintiff went in appeal to the Court of learned District Judge, Bannu where too he did not succeed and hence the present civil revision petition.
4. Arguments of Mr. Saadullah Khan counsel for the petitioner and Mr. Muhammad Ali Jan Khan, Advocate on behalf of the respondent were heard and record of the case examined.
5. The land in suit was gifted by Ghulam Iqbal Khan plaintiff petitioner to his sister Alst. Amir Shada Nara vide Mutation No, 1219 attested on 15th December, 1948. The perusal of the copy of the mutation (Exh. P.W. 2/1) would indicate that the land was gifted to the said lady and was to be ultilised by her during her lifetime and was to revert to Ghulam Iqbal Khan or his successor-in- interest as the case may be after the death of the said lady. This mutation was fully incorporated in the revenue record. The question for determination in this case is whether the gift by Ghulam Iqbal Khan in favour of Mst. Shada Nara was a gift for the usufruct of the land or of its corpus. It is proved from record that a portion of the suit land was acquired by the Government under the Land Acquisition Act and compensation therefor was paid to the donee. Perusal of Exh. P.W. 1/1, Exh. P.W.
1/2 and Exh. P.W. 1/3 would clearly suggest that some property in Khasra No, 2 and in `Khasra No, 27' was jointly sold by Mst. Shada Nara and Ghulam Iqbal Khan petitioner. No objection whatsoever was raised by Ghulam Iqbal Khan petitioner that since the property was gifted to Mst. Amir Shada Nara during her lifetime and was to revert to the petitioner after her death, she was not entitled to the sale consideration/compensation amount of the land sold/acquired. It is well-settled principle of the Muhammadan Law that where corpus of the property is transferred for lifetime and the conditions are attached thereto, the gift is valid but the conditions are void. Under Muhammadan Law there are three essential ingredient to complete a gift vis-a-vis (1) a declaration of gift by the donor, (2) acceptance of the gift express or implied by or on, behalf of the donee and (3) delivery of possession of the subject of the gift by the donor to the donee makes the gift complete. It is well- settled that once from the recital it is clear that the ownership has been transferred in present absolutely it is a gift and any condition imposed on the enjoyment of the property is invalid. In Fateh Muhammad v. Nathu (1) it was held :- "These traditions bring into bold belief the distinction between corporeal things and incorporeal rights. The donor may convey the right of property or corporeal right in a specific thing. This is like any other conveyance of property which renders all conditions repugnant to it and void. There may be other cases in which only a right of enjoyment of the property for a limited period may be conferred, be it a right of residence or right of bringing the usufruct to one's use. The conferment of such a limited interest of beneficial enjoyment out of the estate even though it may envisage dominion over the property is not disallowed. But to be valid it must fall short of right of ownership."
As observed earlier the property in suit was declared to be a full-fledged ownership of the donee and all the ingredients essential to complete a gift having been complied, the donee in no case fell short of a full-fledged owner. Once it is held that the gift was a complete one with regard to the owner- B ship/possession of the suit land the condition of its reversion after death of the donee to the donor is a nullity. In this view I am fully fortified by the observation reported in the above-cited authority at page 2092 which read :- "I am of the view that if the gift had been only subject to right of reversion without any additional condition in accordance with the uniformity of view about Muhammadan Law it would have amounted to an absolute gift and the condition of reversion would be a nullity."
' If the intention of the donor was that he did not wish to divest himself or his children of the ownership of the property but wanted to confirm only a right of mesne profit of the property on the donee during her lifetime the condition imposed would have been that the donee should have no right to transfer the property in any manner whatsoever. As is clear from the record that a portion of the land in dispute was sold/acquired jointly by the petitioner and the deceased lady (vendee) and no objection whatsoever by the petitioner to the effect that since she was to hold the land for enjoying only the usufruct thereof, the donor is estopped by his own act to challenge the validity of the gift by alleging that after the death of the donee the land had as per the conditions reverted to him and inheritance mutation in
(1) 1982 CLC 2082 respect of the successor-in-interest of the donee was inoperative and ineffective carries no weight.
4. On the view of the matter that I take, I see no reason to interfere with the concurrent findings of the two Courts below who have fully appreciated evidence and the documents placed on record in holding that' the plaintiff/petitioner has no right to challenge the validity of the inheritance mutation. Consequently this civil revision petition meriting no consideration is dismissed with costs.