' This second appeal raises a proposition of revocation of gift of immovable property, made by grandfather in favour of minor grandsons, on the grounds of invalid gift for-
(i) non-delivery of possession ; and
(ii) rule of Mushaa.
' Faqirullah Khan, who is grandfather of Muhammad Arif and Muhammad Tariq, respondents, made a gift in their favour, of immovable property consisting of land, a double-storeyed house and an orchard, situate in village Dab Sandoha, Tehsil Bhimber, on 8th January, 1977. Subsequently, Faqir Ullah Khan changed his mind and sought resumption of the gift and to achieve the object, filed a suit for such resumption on 1st January, 1979, in the Court of Sub-Judge, Bhimber. The revocation of the gift was sought for :-
(i) want of delivery of possession of the gift property ; and
(ii) failure of donees to comply with the condition of gift, of rendering `Khidmat' to the donor.
' The averments were repudiated by the defendant-respondents, who contested the claim of resumption of gift on all scores. The trial Court dismissed the suit of the plaintiff-appellant. The learned District Judge, Mirpur concurred with the finding of the trial Court and dismissed the appeal, on 14th November, 19.
2.
2. The leading facts of the case are that Muhammad Azam Khan son of Faqir Ullah Khan, died in 1971, leaving behind Mst. Sughran Begum, widow, Muhammad Arif and Muhammad Tariq, minor sons. Mst Sughran Begum widow of Muhammad Azam Khan, under compelling circumstances, married Muhammad Yaqub Khan, the elder son of Faqir Ullah Khan, years after the death of her husband. They lived in village Dab Sandoha for 6 months after the marriage and thereafter went to Karachi where minor respondents and their mother lived with Muhammad Yaqub Khan for 2 years.
On a family dispute, Mst. Sughran Begum received knife wounds from Muhammad Yaqub Khan at Karachi and arrived in the village where she resided with the plaintiff for some time and later on was allowed to live with her parents in village Samahani. The respondents also accompanied their mother and were admitted in the local School for primary education. These facts were available in the evidence of the parties and the fact that the minor respondents were admitted in the School was supported by School Certificate, Exh. D. B.
3.The leading ground for revocation of the gift, as averred in the plaint, was non-delivery of possession of the gift property. It was alleged by the plaintiff-appellant that he never parted with gift property, as such the gift was invalid. It is already noticed that the gift in question was made by grandfather in favour of minor sons of his predeceased son. It is well-accepted principle of Islamic Jurisprudence that no transfer of possession is required in case of gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish bona fide intention to give1 Formal transfer of possession of gift property by a father to a minor child is deemed unnecessary as father himself was the person to receive possession as guardian of his minor son. Likewise, no change is considered necessary in the case of gift by a guardian to his ward, as guardian is the proper persons' assigned the responsibility to receive possession of gift property in his capacity! As guardian of his ward. In the case of a gift by a grandfather in favour of a child of his predeceased son the rule equally required no change of possession as necessary condition for completion of the gift, as the grandfather, in absence of a minor child, is a lawful guardian of the grand-child. In his capacity as lawful guardian of grand-child, the grandfather is equally vested with the authority to receive possession of gift property on behalf of grand-child. A plethora of authorities is available in favour of the rule. A reference is made to section 155 of Principles of Muhammadan Law' by D. F.
Mulla, 15th Edition. The relevant part is reproduced below :- "155. Gift to minor by father or other guardian.-No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give."
' The proposition received the attention in various Courts of Indian jurisdiction in pre-Independence period, the Privy Council as well as superior Courts of Pakistan jurisdiction. The aforesaid view was accepted and adhered to by all the Courts. The Supreme Court of Pakistan acknowledged the view when its attention was invited to the rule in Ghulam Hassan's case (1). The relevant opinion recorded by the learned Judges in that case is reproduced below :- "In case of gift by father or guardian in favour of a minor, if a real and bona fide intention to make a gift is proved, law will be satisfied without a change of possession, the reason being that the father or guardian is already in charge of the minor's property. The principle, however, cannot apply in the case of a gift by the grandfather to his grandsons, the father of the donees being alive who is normally the guardian of the minors."
' An objection to the validity of the gift for want of transfer of possession by grandfather to minor grandso is, was raised in A urangzeb's case (2) before the Division Bench. The aforesaid principle was squarely applied in that case in the following manner :- "Delivery of possession is one of the three essentials of a valid gift, but no transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give. No change of possession is necessary in the case of a gift by a grandfather to his minor grandson, if the father is dead, for the grandfather is then the person to take delivery on behalf of his grandson as his guardian."
It is evident from the observations recorded in the aforesaid cases that forma delivery of possession is not required when the father or the guardian or the person in charge of a minor, makes a gift in favour of the minors. All that is required in such a case, is to establish a bona fide intention to give. Like wise, no transfer of possession is deemed necessary in the case of a gift b a grandfather to his minor grandson if father is dead, for the grandfather
(1) PLD 1956 SC 309 (2) PLD 1957 (W. P.) Pesh. 85 then the person entitled to take delivery of possession of gift property on behalf of his grandson as his guardian. In the instant case, the rule is equally applicable as the gift was made by the grandfather in favour of minor sons of his predeceased son. As Muhammad Azam, father of the minor donees, was dead at the time of execution of gift. Faqir Ullah Khan, appellant, who is grandfather of the minors, alone was entitled to receive possession of the property on behalf of minor grandsons, as their guardian, As the possession was to be delivered by Faqir Ullah Khan himself as guardian of the minor, no formal transfer of possession was necessary to complete the gift. In other words, the gift in dispute was complete on its, exception, even without formal transfer as possession of the gift property.
4. Whereas the law does not require formal transfer of possession in the case of a gift by a father to his minor child or by a guardian to his ward as well as by a grandfather to the child of his pre- deceased son, it was described necessary to hold the gift valid, to establish a bona fide intention of donor to give. The word, "bona fide" was defined in the 'Chambers Twentieth Century Dicitonary' as, in good faith, genuine. Thus, in order to accept the gift made by grandfather in favour of minor sons of his predeceased son, as a valid gift, it was necessary to prove a boda fide intention to give. The bona fide intention is established by reference to conduct and behaviour of the donor. For instance, the conduct and behaviour, to prove bona fide intention to give the property in gift, is primarily reflected by the recital of gift-deed. In addition to that, series of steps required to depart with the property, is another proof of such intention. These steps are :-
(i) delivery of deed to donees ;
(ii) report of execution of gift to revenue officers for recording necessary entries in the name of donees ; and
(iii) attestation of mutation and in case when possession of property is with the tenants, issuance of directions to such tenants to pay rent to the donees.
In the instant case, it is noticed from the evidence that Faqir Ullah Khan expressed his bona fide intention to give the property in gift to Muhammad Arif and Muhammad Tariq, minors, by making an unequivocal declaration in the gift-deed. The necessary recitals requisite for the complete gift, are shown entered in the gift-deed. On registration of the gift-deed, the original deed was received by him and delivered to the donees for it were the donees who produced the deed in the trial Court.
He reported the execution of gift-deed to local Patwari and asked him to initiate proceedings for attestation of mutation. He appeared before the Assistant Collector at the time of attestation of mutation when he accepted the execution of gift and transfer of property to the donees. These steps, taken by the donor rendered sufficient evidence to establish bona fide intention of the donor to give the property in gift to the donees. Thus, the requisite conditions to constitute a valid gift, are fully available in the instant case.
5. Here, it is important to discuss another aspect of the case. It was averred in para. 3 of the plaint that the minor respondents resided in village Samshani, as such they failed to render `Khidmie to plaintiff to fulfil the condition stipulated in the gift. It need not be reiterated that a conditional gift is valid whereas the condition entered therein is void. Apart from that, defendant-respondents who are admittedly minors, are not Opposed to render any service to the plaintiff at the time of execution of gift-deed or immediately thereafter. The plaintiff, in his testimony admitted that the minors were getting education in Samshani School and the expenses were met by him. This is just to point out that apart from legal status of the plaintiff, as guardian of the minor grandsons, he looked after them even at Samshani where they were residing temporarily to receive education. In other words, the minors were in the custody of plaintiff throughout irrespective of the fact that they temporarily resided with their mother and maternal-grand-parents at Samshani. The legal relationship of plaintiff and defendants (minors) as guardian and ward, as contemplated by law, has been enforced throughout. Therefore, the possession of plaintiff of gift property is to be deemed asp possession of the donees, in legal fashion.
6. Next, we examine the proposition of revocation of gift, as raised in the present case. It is an accepted tenet of Islamic Jurisprudence that a gif may be revoked by the donor at any time before the delivery of possession, for before delivery of possession there is no complete gift at all. In the instant case, it is already held that possession of the gift property has passe on to the donees, as such it is not available to the donor, at this stage, to seek resumption of the gift, as alleged by him, for want of delivery of possess Mon of the gift property. Another restriction enforced in the case is that the gift is not revocable as the donees are related to the donor within prohibited degrees.
According to the Hanfi Law, though revocation of gift is legal, yet the revocation of gift is worthy of reprobation from a moral point of view. The retrantion of gift, says the "Fatawai-Alamgire, 'Is abominable under any circumstance, but is valid nevertheless." When a gift is not made to a relation within the prohibited degrees and delivery of possession has taken place, the exception is that in such case, the donor has no right to revocation. Therefore, a gift made to a blood-relation within the prohibited degrees, after the delivery of possession of gift property, is irrevocable. But in order to make the gift irrevocable, it is necessary that not only must it be to a bloodrelation but such relation must be within the prohibited degrees. An identical proposition was raised in Aurangzeb's case, wherein on going through the leading authorities on the point, consisting of `Durrul Mukhtar', Tatawa-i-Hindiyya 'Hamilton's Hedaya' and 'Wilson's Anglo-Muhammadan Law', late Mr. Justice M. R. Kiani, who recorded the proposed judgment of the Division Bench, made an elegant analysis in the following fashion :- "Held, that a gift to a blood relation prohibited-by-marriage as from a grandfather to his grandson, was not revocable.
' In order that retraction of and otherwise valid gift should become impossible, two conditions are necessary. First, the donee must be prohibited in marriage ; secondly, he must be related by blood.
' In the case of blood relations who are males, to determine whether they are prohibited-by- marriage the sex of one of them is to be "altered" so as to ascertain whether the relationship becomes "prohibited"."
' The aforesaid view was affirmed by the learned Judges of the Supreme Court. In Duud Khan's case (1). The relevant observation is reproduced as under :- "We have carefully examined the reasons on which the High Court decision is based and agree with the view that a gift in favour of a grandson cannot be retracted. No Quaranic text exists on the point wale there are two opposite traditions mentioned in Hedaya at page 486. In this state of the law the learned Judges properly
(1) PLD 1968 SC 54 resorted to Qiyas and concluded that as the reason why a gift to a kinsman within the prohi )ited degree cannot be resumed is that "the object of the gift is to increase the ties of affinity which is thereby obtained" the term prohibited degree should be construed as I be.-* I I) otherwise the best part of the relations within the prohibited degree will be excluded from the benefit or irrevocability, a result neither based on reason nor common sense. There was also no logic in extending the benefit to a mother-in-law. But withholding it from a mother.
' The basis on which the learned Judges have differed with Imam Shafei on the retractability of a gift in favour of a son or a ward has also considerable merit. As reasoned by them the exception in case of a non-appeals to be based more or the authority of the father as a natural guardian to deal with the property of his minor son than on the concept of retractability of a gift for a father is responsible for the maintenance of only his minor children and not adults. This view is in conformity with Shia Law that a gift to ones descendants and accepted by them is irrevocable and finds support from the tradition 'when a gift is made to a prohibited relation it must not be resumed', the term prohibited in this context being construed as and not the persons with whom marriage is prohibited."
7. The next objection was that the gift was hit by the mischief of rule of Mushaa. It was argued that the shares of the donees being indefinite and unascertainable, the gift was invalid, under the rule of Mushaa. Reference was made to A 1 R 1934 8om.
21. Mushaa means "indefiniteness". Every joint undivided property subject to right of more than one individual is a / "Mushaa". The word, "mushaa" is defined in 'Muhammadan Law' by Sye Ameer Ali, I- Vol. At page 78 in the following manner :- "Mushaa has been defined by freytag as meaning "pluribus communis." Every joint undivided property subject to the right of more than one individual is a Mushaa. The word mushaa is derived from Shuyu'u which means confusion. Where several persons own a particular property joint and undivided, no one of them can predicate that his interest is attached to any specific portion. The gift by one of the co-sharers of his share in such a property is likely to create confusion in its enjoyment by all the co-sharers. It will be seen, therefore, that the doctrine of Mushaa which implies a prohibition against the hiba of joint undivided properties that are partible in their nature, ones its origin among the Hanafis to a rather nervous dreed on the part of some of their principal lawyers, notably Abu Hanifa, that unless divisible things were divided off, it would give rise to disputes and complications in the enjoyment of such subjects."
Next, describes Syed Ameer All in his Book, 'Muhammadan Law' (ibid) that "Abu Hanifa carries his objection to "indefiniteness," in other words, to the gift of a share in joint undivided property which is capable of partition, to the utmost limit. But there is a marked difference between him and his disciples on the point in question. Generally speaking, their views are more in accord with the requirements of a progressive community and less casuistically than those of Abu Hanifa." He quoted from 'Fatawa-i-Alamgiri' as :- "With regard to the validity of the gift of a mushaa (undivided part of property) which does not admit of partition, it is a condition that its quantity should be known as if a person were to give to another share in a bondsman, and the share is not known (not specified), the gift would not be valid for want of specification."
' The rule of Mushaa was made flexible by the passage of time, particularly in the Sub-continent where rule was considerably relaxed in its application, in almost all cases which came up before the Courts and an effort had been made to adopt the rule to its new environments and it was incorporated in a beneficiary manner so as to make it consistent with the principles of justice, equity and good conscience.
' In Ebrahim Alibhai Akuji v. Bai Asi and others (1), cited by Mr. M. Y. Saraf, the learned counsel for the appellant, in support of his contention, Mr. Justice Tyabji, J. Expanded the rule of Mushaa, in the following term :- "But I do not, by referring to these authorities, mean to indicate that there is the least doubt in my mind tnat a gift may be validly made at the present day in India to two donees, notwithstanding the fact that the two donees are to hold the property as tenants in common. I am emphatically of opinion that whether the shares given to the donees be equal or unequal, once the donor has parted with complete possession in favour of the donees, the donees become the transferees of the property, and the gift is complete. They may, if they so choose, continue to held the property unpartitioned, or they may come to partition."
' The proposition was once again raised before a Division Bench consisting of Mr. Justice Addison and Mr. Justice Late Din Muhammad, in Nazir Din's case (2). In that case, a dispute arose in respect of a gift executed by grand father in favour of grandson and other relations, wherein gift was sought to be set aside, among others, on the rule of Mushaa. Late Mr. Justice Din Muhammad who delivered the judgment, observed in the following terms :- "It will be manifest from the above that the original rigidity of the rule of Mushaa has been considerably relaxed in its application to British India and in almost all cases, which have come up before the Courts here as well as before the Privy Council, an effort has been made to adapt the rule to its new environments and so to interpret it as to make it consistent with the principles of justice, equity and good conscience. The Courts in this country have given effect rather to the spirit of the rule than to its letter and have upheld gifts in all cases in which the intention to give on the part of the donor had been expressed in most unequivocal terms, and had further been attended by all honest efforts on his part to complete the gift by divesting himself of the control over the property in such a manner as would clearly imply his divestiture in the eye of the law of the land.
' The raison detre of this rule was the avoidance of gifts that were vague, indefinite or incomplete, and the only test that should be applied in such cases is whether the gift in question is open to any of these objections ; or in other words, whether the donor has still reserved to loophole of escape or not. If this is not as and if the donor has done all that the law of the land required to be done to separate I himself from the property, a gift of Mushaa will be as valid as that of property which can be physically handed over to the donee. Transfer of possession is no doubt the main thing in the whole affair, and in every case this is the only thing to be seen. But, in different countries
(1) AIR 1934 Bon, z1 (2) AIR 1936 Lab, 92 there are different methods by which this can be affected ; and what acts amount to such a transfer is our own country, have been clearly indicated in the authorities cited above.
' Applying these tests, therefore, to the gift before us, it is abundantly clear that all the requirements of the law have been completely fulfilled."
' The rule of Mushaa also received the attention in Aurangzeb's case referred to above where rule of Mushaa was analysed in the foil awing observations :- "It was next contended that a joint gift in favour of two or more persons was not permissible, and reliance was placed for this argument, on para. 135 of Mulla's Principles (tenth edition). "A gift of property which is capable of division to two or more persons without dividing it is invalid, but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him." We think it is time that the curtain were rung down finally on a doctrine which, in this particular matter, has earned for Abu Haneefa's scholarship an "unprogressive" name. Its exposition has become an obstruction to charitable or beneficent dispositions, and we see no sense, logic or utility in rendering futile a gift where the two joint donees have agreed among themselves, whether on the division of the property or on enjoying it jointly. Most people will be ignorant of this unserviceable provision and will see no fatality in making a joint gift in favour of brothers or sisters. It is for this reason perhaps that Judges in British India have been ready in holding that a joint gift is permissible even without specifying or dividing the shares of the donees.
See, for instance, ' S. K. Golan Gous and others v. S. K. Kauja and others and Mustayini v. Diwan Chand.
' In Mulla's book itself three cases which contain a disapproval of this view have been reported.
Thus, Tyabji, J. Observed in Ebrahirn v. Bad Asi, not without an adequate examination of authorities, that there is not "the least doubt in my mind that a gift may be validly made at the present day in India to two donees, notwithstanding the fact that the two donees are to hold the property as tenants in common.' In Kaniz Fatma v. Narain, a Division Bench described the doctrine of mushaa as "an archaic rule of law" and sought support from the observations of the Privy Council in Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan that it is "wholly unadapted to a progressive state of society and ought to be confined within the strictest rules."
' In Muhammad Bakhsh Khan v. Hosseini Bibi Lord Macnaghten in the Privy Council exposed the absurdity of some of its reasoning thus : "But it appears to be settled by Muhammadan Law that if there are two sharers of property, one may give his share to the other before division---Now, if one of two sharers may give his share to the other, supposing there are three sharers, what is there to prevent one of the three giving high share to either of the other two? Mr. Doyne was asked that confusion that would introduce. Mr. Doyne took refuge in the doctrine itself, which he said was a very refined doctrine. To extend it to this case would be a refinement of a refinement, amounting to their Lordships opinion almost to a redutid ad absurdum.
' Their Lordships' reference to "confusion" goes to the root of the doctrine of Mushaal which literally means 'confusion'. If a gift leads to confusion in respect of the property gifted, it is ban in law. Consequently, if the keeping of joint property by the donees lads to no confusion in their minds, why should the gift be regarded as invalid."
In the instant case, Faqir Ullah Khan, appellant, was the sole owner of the gift property. He transferred his entire interest in the property through gift to the donees. The interest and title of the donor was not shown suffering from the defect of indefiniteness, uncertainty and confusion, as contemplated in the rule of Mushaa. Likewise, the donees were not shown to have been confused in identification of the title and interest of the donor or their own. They were not shown to face any difficulty or confusion in absence of specified shares and non-partition of suit property. In other words, the interest and title of the donees in the gift property is equally clear and it admitted no absurdity, indefiniteness and confusion. In these circumstances, the gift in question is not hit by the mischief of rule of Mushaa.
8. Another objection raised during the arguments pertains to acceptance of agreement Exh. D. A.
As a substantive piece of evidence. It was argued by Mr. M. Y. Saraf, the learned counsel for the appellant that the document amounted to previous statement of plaintiff, as such unless contents of the documents were put to him when he appeared in the witness-box and he was confronted with the portions purported to be inconsistent and contradictory to the stand taken by him in the pleadings and evidence, the document cannot be read against him as a substantive piece of evidence. The contention was supported by reference to AIR 1946 I. Ah.
65. The plaintiff averred in para. 3 of the plaint that the defendant-minors resided in village Same have and not village Dab Sandoha, where the property was situate, as such possession was not delivered to them and gift was invalid for such reasons. The averment was refuted by the defendant-donees and it was stated that the defendants temporarily resided in village Samahani to receive education. It may be mentioned here that averment was made to point out that possession was not delivered to the donees as they resided in a different village. The averment, by itself, was not a ground to seek retraction of the gift but it was one of the circumstances, alleged in support of non-delivery of possession of the gift property. The question of delivery of possession has already been dealt with at length. It is, therefore, unnecessary to reiterate the details of question of facts at this stage, but suffice it to say that in view of the relationship of the parties, as held elsewhere, formal delivery of possession of gift property is not deemed necessary to complete the gift. Nevertheless, the objection raised by Mr. M. Y. Saraf, finds some support in the sense that section 145 of the Evidence Act enjoins that "a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." The agreement Exh D. A. Purported to be inconsistent to the stand of plaintiff-appellant, reflected that the minors were residing at village Samshani at the instance of the plaintiff, to provide them protection and safety against the apprehended enmity of Muhammad Yaqub Khan, against whom Ala. Sughran Begum, mother of the minors, secur2d a decree for divoree. The plaintiff undertook to meet maintenance allowance of the minors during their stay at Samshani. The document was executed on 16th August, 1976. It was a registered document. A tentative look shows that the document was executed by the plaintiff. Nevertheless, as the stand taken by him in the pleadings and his evidence was inconsistent and contradictory to the recitals of the documents, it was incumbent upon the defendants to confront the plaintiff with the document when he appeared in the witness-box, so as to provide him an opportunity to explain the contradictions. It is noticed that apart from the recitals of agreement, Exh. D. A. Mst. Sughran Begum and Muhammad Arif, in their testimony, refused the claim of the plaintiff. That part of their testimony was left unchallenged in the cross-examination.
The evidence of these witnesses was not shown incredible, so as to sustain the objection. Therefore, even if the document, Exh. D. A. Is left out of the consideration, as substantive piece of evidence, the testimony of Mst. Sughran Begum and Muhammad Arif, is another substantive piece of evidence which, undoubtedly, refutes the solitary statement of the plaintiff. Therefore, preponderance of evidence is against the plaintiff. The finding of the subordinate Courts on this aspect of the case, is not, therefore, materially affected.
9. The aforesaid analysis leads to the conclusion that the gift in question being complete and valid, in the light of the taints of Islam, is not subject to 0 revocation, at the instance of Faqir Ullah Khan, plaintiff. The suit was rightly dismissed by the trial Court. The appeal being devoid of force is dismissed with costs.