1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in Regular Second Appeal No. 443 of 196 dated the 18th October 1966. By this judgment, the appeal was accepted and the suit of the appellants was dismissed with costs throughout.
2. Briefly, the facts leading to this appeal are that Ashiq A.I, a resident of Muzaffargarh who was a Hindu, embraced Islam and did not migrate to India on Partition. He was a blind old man of 70/80 years of age. He appointed Ashiq Hussain appellant No. 1 as his attorney to help him in the management of his lands at Muzaffargarh. On the 17th February 1955, he made a gift of about 103 kanals and 1 marla of land, situated in village Taleri, District Muzaffargarh in favour of the appellants Ashiq Hussain and Muhammad Aslam by a registered deed, Exh. P.
20. On the 17th November 1955, the gift was revoked and waqf was created by a registered deed, Exh.-D. 2, in favour of Anjuman-i-Islamia, Muzaffargarh, respondent No. 2. Anjuman-i-Islamia, Muzaffar--garh was appointed as Mutwalli to manage the property and to pay him Rs.50 per month for maintenance out of the income. The rest of income was reserved for religious and charitable purposes.
3. The appellants challenged the revocation of the gift by filing a civil Suit No. 844 of 1958. In this suit, the appellants sought a declaration that they were the owners in possession of the land in dispute by virtue of the gift in their favour and for a permanent injunction restraining the respondent from interfering with their possession. They alleged that the gift in their favour was com--pleted by delivery of the possession of the land given to them. The suit was resisted by the respondents. They filed a joint statement denying the allegations made in the plaint. They denied that the appellants were in possession of the land in dispute and contended that their suit for mere declaration was not com--petent. It was pleaded that the registered deed dated the 17th February 1955, was obtained by the appellants from Ashiq A.I defendant No. 1, by fraudulent mis-representation to the effect that it was merely a general power of attorney. They also denied that the alleged gift was completed by the delivery of possession given by the defendant No. l to the plaintiffs. They averred that the deed of gift was revoked later on by the donor and he lawfully dedicated the property for religious and charitable purposes by registered waqf deed dated the 17th November 1955, and gave the possession of the land to Anjuman-i-Islamia, Muzaffargarh.
4. On these pleadings the following issues were framed by the trial Court :-
(1) Are the plaintiffs in possession of the land in dispute ?
(2) Whether defendant No. I made the gift in question ?
(3) If issue No. 2 is proved, is the gift invalid on account of having been made under fraud or by misrepresentation ?
(4) Whether defendant No. 1 could revoke the gift in favour of the plaintiffs. If so, whether he revoked it and what is its effect ?
(5) Relief.
5. On these issues, the parties led evidence. Appellants pro--duced Munshi Abdul Rabim P. W. 1, Fatal Abbas P. W. 2, Hakim A.I P. W. 3, Sultan A.I P. W. 4, Khadim Hussain P. W. 5, plaintiff P. W. 6, Muhammad Shafi P. W. 7, Allah Bakhsh P. W. 8, Ghulam Rasul P. W. 9, Nazir Hussain P. W. 10, Mistri Siraj Din P. W. 11 and Ashiq Hussain plaintiff P. W.
12. The respondents produced Faizullah D. W. 1, Sardar Khan D. W. 2, Allah Wasaya, D. W. 3, Ghulam Qadir D. W. 4, Munshi Fait Bakhsh D. W. 5, Munshi Ghulam Rasul D. W. 6, Ashiq A.I defendant D. W. 7, Munshi Ghulam Nabi Patwari D. W. 8 and Munshi Rahim Bakhsh D. W. 9.
6. The appellants produced evidence to show that Ashiq A.I deceased had made the gift of the property in their favour and the tenants have executed lease deeds in their favour.. The evidence of the respondents showed that the tenants have delivered possession of the property in dispute to respondent Anjuman-i---Islamia, Muzaffargarh and that a waqf has been created in respect of the property in dispute.
7. The learned Senior Civil Judge, Muzaffargarh, decreed the suit on the 11th January 1961, and decided all the issues in favour of the appellants. He held that the property in dispute was admittedly in the cultivating possession of the tenants and none of the parties to the suit was in its actual possession and in these circumstances, it was unnecessary for the plaintiffs to have sued the defendants for the possession of the land and held that the suit was competent. He further held that the gift deed, Exh. P. 20, was executed by Ashiq A.I in favour of the plaintiffs voluntarily. It was not obtained by any fraud practised on him. He further held that the tenants had executed lease deed in favour of the plaintiffs which proved that the gift was completed by delivery of possession of the land to them.
8. He further held that the conduct of Ashiq A.I was such which showed that he gave the possession of the property to the donees and changed his mind later on. In these circumstances, -the trial Court came to the conclusion that the gift deed could not be revoked by the donor after its completion by the delivery of possession to the donees. The respondents took the matter in Civil Appeal No. 4/13 of 1961, which was dismissed on the 30th of March 1961. The Additional District Judge passed his judgment on the following conclusions reached by him :-
(i) That the declaration of the donor in the gift deed to the effect that he had transferred the possession of the land to the donees, though not conclusive in itself, is a relevant circumstance to be considered.
(ii) That the land in dispute was in the possession of the tenants and not in the possession of the donor and, therefore, the declaration by the donor that he had transferred the posses--sion to the donees would amount to notice to the tenants so far as they were concerned because the document was registered at a public office and the gift deed was delivered to the donees and was not retained by the donor. The donor in the present case by making a declaration at the time of the execution of the gift deed that he had delivered the possession of the land in dispute to the donees and by delivering the title deed after registration to the donees, completed the gift by transferring the possession to the donees under the gift.
(iii) That for all practical purposes the land in dispute was already under the control of Ashiq Hussain the donee who was acting as Mukhtar of the donor before this gift. He was already managing the property by realising rents from the tenants and was in a way in constructive possession of the property in dispute. Therefore, nothing more was needed except a declaration on the part of the donor to complete the gift.
(iv) That the donees had brought on the record various lease deeds which were- executed by the tenants in their favour immediately after the execution of the gift deed.
(v) That the conduct of the parties would also show that the possession had been transferred to the donees. It is admitted by Ashiq A.I that after the execution of the gift deed defendant No. 1 who was his Mukhtar stopped paying rent to him.
9. The respondents challenged this decision in Regular Second Appeal No. 443 of 1961 and a learned Single Judge of the High Court accepted the appeal. The High Court concurred with the finding of the two Courts below that a gift deed was executed by Ashiq A.I in favour of the appellants and that it was not obtained by fraud or misrepresentation. It further held that the gift was not completed as delivery of possession was not delivered to the donees at the request of tile donor. In view of this finding, it was held that the gift has been validly revoked and a valid waqf of the property in dispute has been created in favour of respondent Anjuman-i-Islamia, Muzaffargarh.
10. This decision is being challenged in this appeal before us.
11. Special leave was granted in. This case to consider whether the High Court was justified in interfering with, what was essentially a finding of fact, namely, that the donor had delivered possession to the donees of the gifted property.
12. Mian Muhammad Shafi, learned counsel for the appellants, has contended that the High Court was not competent to interfere with a finding of fact, namely, that the donor had delivered possession to the donees of the gifted property. He has taken us through the judgments of the trial Court and the learned Addi--tional District Judge and has urged that the High Court was not competent to interfere with this finding of fact. The contention of the learned counsel has not impressed us. It will be noticed that the Additional District Judge has held that the donor had delivered possession to the donees of the gifted property in view of certain circumstances which were brought to his notice. He has held that a mere declaration in the gift deed was sufficient to deliver possession of the property in dispute to the donees. He has further held that one of the donees being a Mukhtar, was already in possession of the property in dispute and, therefore, such a declaration was quite sufficient to deliver possession of the gift deed. It may be further noticed that the trial Judge and the Additional District Judge have held that the tenants of the property in dispute had attorned in favour of the appellants and, therefore, the gift was completed in favour of the appellants.
13. After hearing the learned counsel for the parties, we are satisfied that the finding of the Courts below that a gift deed was executed by Ashiq A.I deceased in favour of the appellants is proved beyond reasonable doubt. The finding of the Courts below that it was not obtained by fraud or mis- representation is based on- proper appreciation of the evidence led in the trial Court. In fact, the deceased Ashiq A.I took three different positions so far as the execution of the gift deed is concerned. In the waqf deed, he stated that the gift deed has been obtained by undue influence. In the written statement it was stated that the gift deed was obtained by fraud and misrepresentationAshiq did execute the gift deed in favour of the appellants but he wanted to incorporate a condition that he would remain as the owner of the property in dispute during his life time and this condition was not incorporated in the gift deed. In view of the fact that Ashiq A.I had been changing his position in regard to the execu--petition of the gift deed, we are satisfied that the Courts below are perfectly justified in coming to the conclusion that the gift deed was not obtained by fraud or misrepresentation.
14. Coming now to the question whether the gift deed has been completed by delivery of the possession of the property in dispute. It will be noticed that the land in dispute was in cultivating possession of the tenants. Ashiq Hussain was a Mukhtar of Ashiq A.I and he was collecting the produce from them. Mian Muhammad Shafi, learned counsel for the appellants, has contended that in such circumstances a mere declaration in the deed that possession has been delivered to the donees is sufficient to complete the gift. This contention has no force. This aspect of the case was considered by this Court in the case of Sharnshad A.I Shah and others v. Syed Hassan Shah and others (PLD1964SC143). It was held in that case that a mere recital in the gift deed that the possession has been delivered to the donees is not enough. In that connection it was observed as under :- "Even in the case of an ordinary donor it has never been that a simple declaration as to delivery of possession in the deed of gift would effect a transfer or possession if land was in possession of tenants and in a case like the present where the donor was in the hands of the donee any recitals at her instance would obviously be of less weight."
15. This Court further observed :- "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.
16. This Court further observed that "taking of possession by the donee without the permission of the donor is of no effect."
17. It is needless to point out that 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 gift property by the donor to the donee.
18. The High Court has, at length, discussed the question of the delivery of possession by the donor. It has rightly observed that 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 this connection, certain authorities of Hedayat and Baillie have been referred to and it is unnecessary to reproduce them.