' The petitioner, Mst. Mahtab Elahi is the real daughter of respondent Ghulam Rasool. Admittedly, the respondent executed a gift deed on 2-9-1976 and got it registered on 4-9-1976 in favour of the petitioner in respect of the land in dispute measuring 200 Kanals. The respondent filed a suit on 27- 7-1977 for a declaration that the said gift deed was illegal, void and in operative as against his rights and that the petitioner has got no right therein and as a consequential relief prayed for issuance of a permanent injunction restraining the petitioner from alienating the land in dispute and from interfering in the ownership and possession of the respondent. The suit was resisted by the petitioner and she refuted all the allegations. After filing of the written statement the following issues were framed:-
(1) Whether the plaintiff has no locus standi or cause of action to file the suit?
(2) Whether the suit is not maintainable in its present form?
(3) Whether the suit has been deficiently stamped? If so, its effect?
(4) Whether the plaintiff is estopped to file the suit?
(5) Whether the gift deed dated 2-9-1976 registered on 4-9-1976 is illegal, against facts, void and ineffective over the rights of the plaintiffs? OPP.
(6) Relief.
' The learned Civil Judge, Multan dismissed the suit vide judgment and decree dated 17-2-1986. On appeal the learned District Judge, Multan decreed the suit vide order dated 29-5-1986. This revision petition has been filed to challenge the said appellate order. I have perused the record and have heard arguments.
2. The most important document in the case is the plaint filed by the respondent. In para 2 thereof it is stated that the respondent had executed and got registered the gift deed in favour of the petitioner on the repeated requests of her mother who obviously was the wife of the respondent. He does not allege therein that the said registered sale-deed was got executed and registered in some untowards or illegal manner. In para 3 thereof he has stated that afterwards the petitioner through some collusion became disobedient and left his house after some quarrel. In sub-para.
(iii) of para 4 of the plaint while giving a ground for avoiding the said gift deed he has repeated that the petitioner gave up his service as a father, became disobedient and quarrelled at the instance of and in collusion with her mother and other relatives and then left his house. He adds that she as such changed the circumstances under which he had executed the said gift deed in recognition and in lieu of his service by her. In sub para (iv) he has stated that even in view of the changed circumstances the respondent has not handed over the possession of the land in dispute to the petitioner and as he wishes to keep the land with him till his life he seeks to cancel and repudiate the said gift deed. It will be seen from these averments in the plaint that the respondent had not, even in the plaint, alleged that the gift deed was got executed and registered due to any illegality or untoward happening. As a matter of fact the said averments clearly show that the said gift deed was executed and got registered by the respondent of his own free will and willingly in recognition and in lieu of the service she rendered as a daughter to his father, the respondent.
Therefore, factually the gift deed was made and executed as also got registered by the respondent of his free will and with bona fide intention to divest himself of the ownership and to transfer the land to the petitioner. The reasons why the respondent later on thought of avoiding the said gift is mentioned in his statement as P.W.1. After saying that he had made the gift on the asking of his wife, the mother of the petitioner, he has stated that subsequent to the making of gift his said wife and the petitioner left his house after some quarrel. He has also stated that his said wife instituted a suit (for dissolution of marriage) and ultimately obtained a decree of divorce. He has further stated that the petitioner entered into a marriage against his wishes and as the petitioner had not rendered service to him (as a daughter) he has cancelled (repudiated) the gift deed. This makes it clear that the gift was validly and willingly made but due to the said reasons the respondent retaliated and when his relations got strained with the mother of the petitioner his relations also got strained with the petitioner as a consequence and he then thought of repudiating the gift to deprive her of the property which he himself had given to her. Therefore, the aspect of making the gift legally and willingly is proved beyond any doubt.
3. In the said plaint he has given reasons for avoiding the said gift that no mutation on the basis of the said deed was entered or sanctioned, that the petitioner did not make any effort to get the possession of the land in dispute and the respondent still continues in possession of the same and that he has for reasons mentioned in sub-paras (iii) and (iv) of para 4 (discussed in the foregoing paragraphs) repudiated the said gift. The crucial points now to be taken into consideration are as to whether a mutation was necessary to be entered and sanctioned for completion and validity of the gift and whether the gift was completed by delivery of possession. The learned counsel for the respondent conceded that non-entry and non-sanctioning of a mutation do not render a gift deed or a gift A invalid only on account of this reason. Anyhow, there is enough case-law on the point. In Firm Baldeo Prasad Balgovind v. Mst. Shubratan and others 169 Indian Cases 720 and Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121, it has been held that entering or sanctioning of a mutation on the basis of a gift deed is not essential or in other words that the non-entry or non-sanctioning of a mutation do not render a gift invalid. This is a well-settled legal proposition. Hence the gift is not bad for non-entering or non-sanctioning of a mutation on the basisi of the gift deed in question.
4. The all important point in this case relates to the aspect of possession or the completion of the gift by delivery of possession. In the gift deed itself, Exh. P.1, it has been stated that the petitioner then was aged 16/17 years. She was, therefore, a minor at that time. Admittedly she was by then unmarried and was living with her father, her natural guardian, and was his dependent and obviously a Pardanasheen minor girl. In the gift deed itself it was mentioned that constructive possession of the land in dispute had been given to the donee. Learned counsel for the petitioner has also pointed out that the land in dispute is situated in 5 different Khatas in which the respondent owned shares in fractions and consequently he made the gift of his shares in fractions in the said Khatas. He argues that such a land was not capable of physical possession and as no physical possession was possible only a constructive possession could be passed. This aspect is not so much relevant because the deed itself talks of constructive possession and not of physical possession. The real point to be seen is as to how the gift by the father in favour of his minor daughter could become valid by delivery of possession or what sort of possession had to be delivered to her for completion and validity of the gift in dispute. In Article 155 of Mulla's Mahomedan Law (1980 Edition) it has been provided on the basis of Hedaya that no physical transfer of possession of the gifted property is required when a gift is made by a father to his minor child. The Islamic Law under which our gifts are governed is also very clear on the point but instead of quoting from Fatawa Alamgiri, Hedaya or Kitabul Fiqa, it is better to confine to the said Article 155 and the interpretation and verdicts given by our superior Courts on this very point. It is in fact now settled law, without any contrary opinion, that when a gift is made by a father in favour of his minor child there is no requirement of law that physical possession should also be delivered to the donee for completion and validity of the gift. There should be a bona fide intention to make the gift, there should be acceptance of the gift and the gift by the donor should show that he is divesting himself of the ownership of the gifted property and is conferring the same on the donee. Factually the gift deed Exh. P.1 is quite clear in that matter. The gift was made, the gift was got registered, the gift was accepted and the same was made and registered in good faith, bona fide and with due understanding as also willingly. So, is clear from the plaint and so is strengthened by the statement of the respondent as P.W.1. Coming to the case law, the learned counsel for the petitioner has referred to the cases Firm Baldeo Prasad Balgovind (supra) and Muhammad Zaman Khan (supra).
He also referred to Mst. Jamilunnissa and another v. Sheikh Muhammad Zia 170 I C 824, All Khan v.
Nawab Fakhar Jahan Begum and others 136 IC 385 and Mst. Natho v. Mst. Hadayat Begum and others PLD 1952 Lah.
545.
' In the first case the gift was in favour of daughter-in-law. In the second case it was a gift by a father to his minor son. In the 3rd case the gift was to a related female. In the 4th case the gifts related to a wife by her husband and by a father to his minor child and in the last case the gift was from mother to a daughter. In all these cases it has been clearly held that in such gifts no transfer of actual or physical possession is necessary. Coming to the point in hand the said cases clearly provide that when a gift by a father in favour of his minor daughter and that too a daughter who is unmarried and is living with him is made no transfer of physical possession is necessary. On the other hand a mere recital of transfer of constructive possession in the gift deed itself is sufficient to complete and validate a gift. Therefore, for the completion and validity of the gift in dispute it was not at all necessary for the respondent to pass physical or actual possession of the suit land to the petitioner for completion and validity of the gift. The gift deed Exh P.1 curries a recital that constructive possession of the laud had been transferred to the petitioner and that suffices to complete and validate the gift. The respondent held the suit land in his possession as a guardian of the petitioner and as a trustee for her and he is legally bound to account for the same to her.
5. The learned counsel for the petitioner has referred to Ghulam Hassan and others v. Sarfraz Khan and others PLD 1956 SC 309 wherein it was held that a mere recital of transfer of possession in the gift deed was not sufficient to complete the gift and this ruling is relied upon by the learned counsel for the respondent too. There is a marked difference in the facts of that case and in the facts of the cases cited earlier as also with the case in hand. That gift was by a grand-father in favour of a grand-son and that too in the life-time of the father of the said grand-son. Obviously in the life-time of the father it was he who was the guardian of the son and not the grand-father.
Therefore, the physical possession in that case had to be delivered for completion of the gift but in the present case the donor is the father of the petitioner, he was the guardian of the petitioner and he was the person who was to maintain and look after her. The learned counsel for the respondent has cited Anjuman Islamia, Muzaffargarh v. Ashiq Hussain and another PLD 1967 Lah. 336, Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1960 Lah. 300 and Shamshad All Shah v. Hassan Shah PLD 1964 SC 143 to show that a gift requires completion by transfer of physical possession and mere recital of its transfer was not sufficient. In the first case the gift was to a stranger. The second case relates to a gift made by a mother to a son and the third case relates to its appeal before the Honourable Supreme Court. The difference of those cases with the case in hand is quite clear. A donee who is a stranger, may be an adopted son, has to be given physical possession for completion of the gift as the maker of the gift is not his guardian and similarly a mother is not the guardian of the property of a son may be a minor. As already stated in the case in hand it was a gift by a natural guardian in favour of his daughter and the said case, therefore, do not apply to the present case. Therefore, the gift was legally made and validly completed by the respondent in favour of the petitioner.
6. The respondent has taken a plea in the plaint itself that he has repudiated the gift. In this respect Article 167 of Mulla's Mahomedan Law 1980 Edition makes the matter clear, that a gift can be revoked before the delivery of possession. As already said legal and valid possession was passed to the petitioner at the time of the making of the gift and it became complete, there and then. It could not, therefore, be revoked after the registration of the gift deed. Similarly, the same Article provides that a gift made by a person in favour of a donee who is related to him within a prohibited degree cannot be revoked after it had been completed. Admittedly, the parties being father and daughter, they are related to each other within the prohibited degree and the gift made in favour of the petitioner could not be and has not been repudiated.
7. Learned counsel for the respondent has referred to Mst. Zeenat Hi v. Zaman Mehdi and two others PLD 1956 Lah. 760 and has argued that the fact of delivery of possession is a question of fact and as laid down in the said case the finding of the lower appellate Court cannot be gone into by the High Court. Firstly, it may be pointed out that at page 763 thereof my learned brother Muhammad Sharif, J. Has very clearly narrated that "after going through the entire evidence on the file and keeping in view of the other circumstances of the case I have no hesitation in holding that she did pass the constructive possession of the suit land" to the donee. This means that he had himself gone into the evidence and was satisfied that the finding of the learned first appellate Court was factually correct. If he had found otherwise he .Would not have said that no interference with the said findings was required because in that case the question of legal interpretation of the evidence on record would have arisen. Therefore, there is no bar even according to this ruling to go into the evidence to find out whether the finding of the first appellate Court is correct or not. As such even in this case the finding of fact could be gone into and there could be no legal bar in holding that the finding of the lower appellate Court was incorrect. However, in the present case the situation is different. Instead of being a question of fact the question of possession has been taken up and dealt with as a question of law to determine whether the passing over the constructive possession is sufficient to complete a gift by a father in favour of his minor daughter or not. Therefore, there is absolutely no bar in interfering with such finding of the learned lower Court on such question of law.
8. In view of my findings above the revision petition is accepted. The judgment and decree of the learned appellate Court is set aside and the judgment and decree of the learned trial Court is restored. In view of the relationship between the parties, they are left to bear their own costs throughout.