1. ' This petition by plaintiff is for revision of judgment and decree dated 5-10-1986 of learned Additional District Judge Attock, passed in Civil Appeal No.163/85. It arises out of a civil suit filed by Amir Khan, as plaintiff, for declaration of title of the land in dispute and for confirmation of his possession, after annulment of registered gift deed dated 9-6-1979.
2. ' The material facts leading to the petition may be shortly stated as follows:- Amir Khan was owner of 61 Kls. And 3 Mls. Of land situate at Mauza Nika Kalan, Tehsil Pindi Gheb. On the eve of marriage of Mst. Bhag Bhari to Muhammad Khan, latter's father namely Amir Khan made a gift of the land in dispute (61 Kls.-3 Mls.) to Mst. C Bhag Bhari, by means of a registered gift deed dated 9-6-1979. Gift deed recited that possession had been delivered to the donee. After the deed was registered, Bhag Bhari was married to Muhammad Khan, in the latter part of June, 1979. Contents of the gift deed were given effect to in revenue papers vide Mutation No.186 sanctioned on 18-6-1983. After marriage, Bhag Bhari lived with her husband for about 3/4 years and thereafter in result of strained relations between the two, started living separately in her father's abode. It is seen from the record that donee sold out the gifted land to Khan Muhammad, her brother-in-law for Rs.60,750 vide Mutation 205 sanctioned on 19-11-1983.
3. ' On 30-7-1984, plaintiff commenced a civil action against donee, her father and Khan Muhammad subsequent transferee of the land for cancellation of the gift as also the subsequent sale. It was alleged that gift was bad on account of undue influence. It was further alleged that gift was also incomplete on account of non-delivery of actual possession. In the plaint, it was stated that plaintiff was an aged person and when he approached Hayat Muhammad for the hand of his daughter for marriage to his son, latter exerted undue influence, in the result whereof land in suit was donated by him to Bhag Bhari. It was also alleged that the act of donation was not voluntary disposition of the property. It was further alleged that possession of the gifted land remained throughout with the donor and, therefore, through a gift deed was registered, yet it was incomplete.
4. Further sale by Bhag Bhari to Khan Muhammad was described as spurious.
5. ' Defendants submitted joint defence and resisted the suit. It was pleaded that gift was a voluntary mental act of the donor and was made without any pressure or undue influece. In substance, the defence was that fift was true and genuine. Locus standi of the plaintiff to revoke the gift and bring the suit was questioned. Pleadings give rise to the following issues:--
(1) Whether the gift of the suit land dated 9-6-1979 by the plaintiff in favour of defendants is illegal, void and liable to be cancelled for the reasons mentioned in paragraph No.6 of the plaint? OPP.
(2) Whether the plaintiff has validly revoked the gift in question? OPP.
(3) Whether the Mutation No.205 dated 19-11-1983 regarding the suit land by defendant No.1 in favour of defendant No.3 is fake, collusive, without authority and consideration and ineffective upon the rights of the plaintiff? OPP
(4) Whethor the plaintiff is owner in possession of the suit land? OPP.
(5) Whether the Plaintiff is estopped by his own acts and conduct to file this suit? OPD
(6) Whether defendant No.3 is bona fide purchaser for value without notice of the suit land? OPD.
(7) Whether the suit had been incorrectly valued for the purposes of court-fee and jurisdiction, if so, its effects and correct valuation? OPD.
(8) Whether the defendants are entitled to get the special costs from plaintiff u/s 35-A, C.P.C., if so, its extent? OPD.
(9) Relief.
6. ' After the issues were settled, learned trial Judge recorded evidence of the parties and on its examination found that gift was incomplete for want of delivery of actual possession. Allegation in regard to undue influence, however, were found not established. Sale in favour of Khan Muhammad was also not upheld. On the basis of decision given on issues 1, 3 & 6, it was found that plaintiff was in possession of the suit land as its true owner and suit was decreed in his favour on 7- 10-1985. Defendants appealed to the learned District Judge. Appeal came to be heard by learned Additional District Judge, who in disagreement with the trial Court found that gift made was valid and could not be revoked. His decision is dated 5-10-1986. It is this decision of the learned Court below which has been challenged in this civil revision.
7. ' Haji Shamas-ud-Din, Advocate, on behalf of the plaintiff raised two points; first, that the gift was not a voluntary mental act of the donor, and, therefore, was voidable; second, that the essential requirement of a valid gift under Islamic Law had not been fulfilled inasmuch as actual possession of the gifted property was not given to the donee and that the gift being incomplete was revokable.
8. Learned counsel referred to the evidence to support his contention. However, in the course of hearing, allegations in regard to undue influence were given up and not pressed. Only ground urged to attack gift was that actual possession was not delivered and in the absence of proper proof as to transfer of possession, it was argued that learned court below, was not justified in reversing the finding of fact given by the trial CourtLearned counsel referred to copies of revenue papers to show that plea in regard to non-delivery of possession was firmly established on record.
9. With reference to various Text-Books on Muhammadan Law and decisions of the superior Courts, it was argued that three essential requirements of a valid gift under Muslim Law unless faithfully observed and complied with, gift cannot be held valid and complete, its registration notwithstanding.
10. ' Short question falling for decision in the civil revision is whether the gift sought to be revoked was incomplete and it could justifiably be got cancelled by the plaintiff. There is no dispute that essential requirements of a valid gift under Muhammadan Law are donor's intention to make the gift, viz, declaration, its acceptance by or on behalf of the donee which can either be express or implied, delivery of actual or constructive possession as the subject-matter of the donation may permit. Unless these essential requirements are gone into and are complied with, gift cannot be held complete. Therefore, one of the essentials of a gift is that possession must have been delivered to the donee. Registration of the gift deed cannot dispense with requirement of actual delivery of possession nor can it cure this defect. Therefore, material question is whether possession was delivered to the donee to complete the gift. To resolve this issue, facts bearing on it shall have to be examined in some detail. Khan Muhammad was already married to Mst. Zulekha when his second marriage was proposed to Mst. Bhag Bhari. It is seen from the record that at this stage of time Mst. Zulekha was living a deserted life. Parties are close relations. Obviously, when plaintiff approached Hayat Muhammad, latter in the normal course of human conduct and behaviour, in the capacity of a father, would like to secure his daughter against any future mishap and may have rightly asked for some security from Amir Khan. It was in this background that donation of suit property was made and the gift registered. It is not denied that proposed marriage took place within a couple of days, and Mst. Bhag Bhari resided with her husband in the house of her father-in-law. She also lived with her husband at Multan and Karachi where he remained posted in connection with his service requirement. It transpires from the record that some 3/4 years after marriage marital relations suffered set back and parties got involved in serious criminal litigation. It was reported to the criminal Court that Mst. Zulekha and Mst. Bhag Bhari were ill- treated and were given beating by Amir Khan and his son Alam Khan. Both the accused were tried and convicted by Assistant Commissioner Pindi Gheb under sections 323, 343/34, P.P.C. On 31-3- 1983 and sentenced to three months' simple imprisonment. On appeal, (Crl. Appeal No.78/1983) they were acquitted from the charges by learned Sessions Judge, Attock on 30-5-1983. After sometime, Godar, real brother of Mst. Bhag Bhari was murdered. Net was thrown around Amir Khan and his two sons namely Alam Khan and Khan Muhammad, who were accused of the murder of Godar by Mst. Bhag Bhari and Hayat Muhammad. All the accused, however, were acquitted of murder charge, but a revision against acquittal is stated to be pending in the High Court. After acquittal from the charge of murder, plaintiff filed the present suit.
11. ' Learned counsel argued that it was not the case of residential property where donor and the donee resided under the same roof and it was not necessary for the donor to remove himself from the property to complete the gift. It was also argued that it was neither a gift from father to his minor son or daughter nor from a husband to his wife. Alleged gift was from father-in-law to his daughter-in-law and the principles applicable to the instances narrated above were inapplicable to the case of a gift from father-in-law to a daughter-in-law, when the donation relates to agricultural land. It was vehemently submitted that in case of agricultural land, it was absolutely necessary to deliver possession to complete the gift and possession having not been delivered, gift was rightly set aside and there was no legal justification for the learned Appeal Court to have reversed the decision of the trial court. As has already been observed, apart from the relation which sprang from marriage, parties were otherwise closely related. After marriage, Mst. Bhag Bhari, lived in the house of her father-in-law. Her husband was employed in the Pakistan Army and was stationed outside Attock district. Amir Khan was head of the family. He cultivated the disputed land alongwith his own and provided both shelter and sustenance to his daughter-in-law. In the deed, there is recital that possession of the property which was subject-matter of the gift was delivered to the donee. It was an admission binding on the donor and those claiming under him.
12. Consequently, burden lay on him to prove that no delivery of possession, in fact, had taken place. It is true that mere recital in the deed is insufficient to prove effective transfer of possession, but in the circumstances of the case, in my opinion, possession of th donated land shall be deemed to have been transferred and the gift cannot be held infirm on this score. After marriage parties lived together and were in joint mess also. As a woman, Mst. Bhag Bhari could not cultivate the land herself. On these facts it can be safely argued that subsequent management of the donated property by plaintiff was on behalf of his daughter-in-law and not on his own account. Plaintiff had done all what he could do under the law to complete effective transfer of land. To effectuate this intent he executed a formal deed of gift wherein it was recited that not only the land was irrevocably given to Mst. Bhag Bhari but possession was also delivered to her. After execution of the gift deed, plaintiff appeared before the Sub-Registrar, admitted the contents of the deed and allowed it to be registered. After registration, it was given effect to in the revenue papers and mutation was also attested in favour of the donee. Gift mutation is not available on record. It is clear from the revenue papers that gift was acted upon and the land was treated to be that of the donee. In the background of close relationship, execution and registration of gift deed, mutation in the name of donee, her residence with her father-in-law, it can clearly be held that the gift was complete in all respects and the subsequent management of the donated property shall be deemed to be on behalf of the donee and not on account of a donor namely Amir Khan. Principle of law in Ma Mi and another v. Kallander Ammal AIR 1927 (Privy Council) 22, Nawab Mirza Mohammad Sadiq Ali Khan and others v. Nawab Fakr Jahan Begum and another AIR 1932 (Privy Council) 13, can appropriately be extended and applied to the facts of the case under consideration. For the reasons set out above, it cannot be said that gift was infirm on account of non-delivery of possession. Therefore, the plaintiff had no right to seek its cancellation. In my judgment three essentials of a valid gift, declaration cf gift, its acceptance and delivery of possession were all completed by the donor and he was left with no locus poenitentiae to ask for its annulment. In result, revision fails and is dismissed summarily.