' The appeal is addressed against the order of the learned District Judge, Mirpur, passed on March 26, 1989, whereby the order of the learned Sub-Judge, Dadyal, passed on May 29, 1984, was set aside.
2. Akbar, the ancestor of the present appellants, made a gift of the suit land measuring 20 kanals, 3 marlas and 3 sarsahis out of 130 kanals 17 marlas comprising survey Nos. 112, 118, 14, 116, 133, 15, 157, 34, 36, 38, 159, 159, 2, 3 and 158/32, situate in village Bandarian Balagra, Tehsil Dadyal, in favour of Walayat Hussain, defendant-respondent, on February 19, 1978. The gift was made in consideration of relationship and for providing subsistence to the donor by the donee. Later on, the donor brought a suit for cancellation of the gift on the ground of fraud and non-delivery of possession of subject of dispute. The suit was instituted on April 20, 1983. The defendant-donee resisted the suit.
In reply to the allegation of non-delivery of possession, it was averred in para. 5 of the written statement that the suit land was occupied by the donee but later on, on account of absence of the donee, the donoor took unue advantage and forcibly occupied the land for which the defendant had to take due action under law. The written statement was furnished on May 21, 1983. On November 14, 1983, Walayat Hussain brought a counter-suit for joint possession, against Akbar. In para 2 of his plaint, it was averred that the donee visited England and frequently returned home, in village Thara. During his stay at home, he cultivated the land himself and during his stay in England, the land was cultivated by the donor, on payment of `batai'. Seven months earlier when he was in England, his agent asked the donor to pay `batai'. The donor refused to do so and also denied to restore possession of the land. The trial Court decreed the suit of the donor and dismissed the counter-suit. On appeal, the learned District Judge reversed the finding of the trial Court. This order is the subject of second appeal.
3. The essentials constituting a valid gift are:--
(i) Declaration of gift by the donor;
(ii) acceptance of gift expressly or impliedly by the donee; and
(iii) delivery of possession of subject of gift by the donor to the donee.
' On fulfilment Of these conditions, the gift is complete, as such valid for all purposes. In the present case, in addition to the ground of fraud, the donor expressly denied the delivery of possession of the land. It is, therefore, to be resolved as to whether possession of the land, the subject of gift, in fact, was delivered in consequence of the execution of gift or not.
4. It is well-accepted that when the subject of gift is susceptible of delivery of possession, it is imperative that the possession must be delivered by the donor to the donee, to make the gift complete. The possession may be delivered actually or constructively, but it was a condition precedent to transfer the possession in consequence of execution of the gift, to make it a valid transaction.
' In the present case, it is admitted by the donee that the donor was in possession of the land at the time of institution of both the suits. In written statement, it was expressly averred that the donor, on account of absence of the donee from the country, took undue advantage and forcibly occupied the land. That suggested that the possession of the donor of the suit land preceded the institution of the suit. The alternate plea raised in the counter-suit is that the donor occupied and cultivated the suit land during the absence of the donee, on payment of `batai' and that he refused to pay `batai' and restore possession, seven month,. Prior to the institution of the counter-suit. These two defence versions are quite inconsistent; rather self-contradictory, but the fact remains that the donee-respondent expressly accepted the possession of the donor over the suit land. The controversy, therefore, stands half way resolved.
5. The onus to prove delivery of possession was on the donee. To discharge the onus, he produced documentary and oral evidence. The documentary C evidence consists of gift-deed, Khasra Girdawari, copy of mutations, agreement purported to be executed by Muhammad Akbar in favour of Chaudhary Fazal Ellahi, and Jamabandi for the year 1980-81. He produced Qazi Muhammad Sharif, Chaudhary Muhammad Afsar Shahid, Sabir Hussain, Muhammad Sharif, Munshi Ali Akbar, Patwari and Fazal Hussain, his attorney. In rebuttal, Muhammad Akbar, donor appeared himself as a witness and produced Pehlwan and Munshi Ali Akbar, Patwari. He also produced Khasra Girdawari for the year 1983 and Jamabandi for the year 1968-69.
6. It is in evidence that the donor was in actual posession of survey Nos.112, 116, 118 and 133. Despite having exclusive possession of these survey numbers, land falling under these survey numbers was not transferred by gift. But only part of land out of the total share in the Khewat was transferred. In such a situation, the donor should have delivered either joint possession. But this is not shown to have been done and this is not the case of the either party. Next, the donor should have transferred possession of particular survey numbers, as readily available with him. That is equally not proved to have been done in this case. In such a situation, it is necessary for the donee to prove that he acquired possession of the land, under gift by one of the well-known devices. The proposition of D delivery of possession of the gift property is to be resolved next in the light of evidence.
7. Agha Ashiq Hussain, the learned Counsel for the respondent, emphasised that the best proof of delivery of possession is contained in the gift deed itself. He referred to the recital wherein it was describe that possession was delivered to the donee. He referred to PLD 1955 Lah. 191 and 1980 SCM R 765.
8. It is an accepted rule that mere recital in the gift deed is not a conclusive proof of passing of possession. It is a very weak defence. The execution of gift itself is not a conclusive proof of delivery of possession of the subject of gift. Passing of possession has to be proved by independent evidence. In Safi iJllah's case (PLD 1955 Lahore 191), Mr. Justice Akhlaque Hussain observed that the relevant law contemplates no specific device of delivery of possession. The recital in the deed, therefore, lends support to the case of the donee. There is no dispute with the aforesaid observation but the fact of the matter is that it cannot be a universal rule. The proposition of delivery of possession when questioned by the donor, has to be ascertained by positive evidence, as may be necessary in each case. Mr. Justice B.Z. Kaikaus who was party to the aforesaid judgment, elaborated the proposition as:-- " If it be not the case of the donee at all that the donor did anything beyond the making of a declaration in the deed, the value of the declaration as evidence of delivery of possession is practically nil. However, in such cases, although declaration has no value as evidence, it may by itself be effective on transferring possession, for possession may in the circumstances of a particular case, be delivered even by a declaration. It would depend inter alia on the intention of the donor and the kind of the possession the donor had. If there was a bona fide intention to transfer possession and if there was nothing further which the donor was under the circumstances capable of doing, the transfer of possession could very well be effective merely by a declaration.
On the other hand, a formal recital without any intention on the part of donor of effecting transfer of possession would be of no avail for transferring possession. The matter has obviously to be decided according to the facts and circumstances of each case."
' In Ghulam Muhammad's case (PLD 1956 SC 309), Mr. Justice Amiruddin, the learned Judge who spoke for the Court, observed that mere recital of delivery of possession described in the deed of gift is not a conclusive evidence of delivery of possession. This view was followed in Ashiq Hussain's case (1972 SCM R 50) and Shamshad Ali Shah's case (PLD 1960 (W.P) Lah. 300).
9. In the present case, the gift deed reflects that only part of the land out of the share of the donor was transferred by gift. This is how it has been described that the land measuring 20 kanals 3 marlas and 3 sarsahi out of 130 kanals 17 marlas was being transferred by gift. It is not the case of the donee that his share of the land was delivered by private or regular partition. It is also not the defence of the donee that possession of particular survey numbers was delivered to him in consequence of the gift. The defence raised in the written statement as well as in the counter-suit is absolutely silent on that aspect of the proposition. The recital of the gift deed equally does not reflect or show that specific survey numbers, previously in possession of the donor, were given to the donee by virtue of the gift. It is a very vital aspect of the proposition to be kept in mind in resolving the controversy.
10. The other aspect attracting the mind of the Court is that in the countersuit of the donee, he has not asked for specific possession of particular survey numbers, of which he was forcibly dispossessed by the donor or possession of which he delivered to the donor for cultivation on payment of `batai'. He instituted the suit for joint possession out of land measuring 130 kanals 17 marlas. Thus, in his pleadings the donee impliedly admitted that he was never in exclusive possession of the suit land, at any stage, prior to the institution of the suit.
11. The record of rights contains self-contradictory entries. The Khasra Girdawari for the year 1982- 83 shows survey Nos.112 and 118 in continuous possession of Akbar donor. Survey Nos. 116 and 133 are shown in possession of Mst. Sarwar Jan, wife of Walayat Hussain; on account of gift. In Rabi, 1983, Akbar, donor was again shown in possession of these survey numbers. It is unexplained as to how Mst. Sarwar Jan wife of the donee occupied the land at subsequent stage. In Rabi 1978, survey Nos. 112, 118 and 133 were shown in possession of Walayat Hussain by virtue of gift, whereas survey No, 116 was shown in possession of Mst. Sarwar Jan wife of Walayat Hussain on the basis of gift.
These entries do not correspond to the gift deed and the mutations relating to the suit land. The mutations attested on March 27, 1978, correspond to the gift deed. Therefore, the documentary evidence consisting of record of rights is not of any assistance to accept that the donee occupied his share of the land at the time of execution of gift or immediately thereafter. The agreement Ext.
DA is ascribed to have been executed by Muhammad Akbar in favour of one Chaudhary Fazal Ellahi, on January 28, 1978. The agreement purports to show that land measuring 24 kanals comprising survey Nos. 133, 118, 116, 112 was mortgaged with possession by Muhammad Akbar, in favour of Chaudhary Fazal Ellahi son of Fateh Muhammad of Mohra Heeran, Tehsil Dadyal, for a sum of Rs,10,000. On the reverse of this agreement deed, there is a receipt of March 14, 1978, describing that the mortgage was redeemed on payment of mortgage money. The mortgage deed was delivered to Muhammad Akbar, the mortgagor and the mortgage money was paid by Walayat Hussain. It was emphasised that by virtue of redemption of the mortgage, the donee occupied the mortgaged land, in consideration of the gift executed in his favour. This position is contradicted by Jamabandi for the year 1980-81 produced by the donee. In this Jamabandi, survey Nos. 116 and 133 are shown in possession of Mst. Gul Begum, Farman Ali, Pehlwan, Muhammad Ellahi and Fazal Karim, Co-sharers. It is unknown as to how land measuring 18 kanals 2 marlas out of 24 kanals passed on to the aforesaid co-sharers. By virtue of this Jamabandi, only survey Nos. 112 and 118 measuring 6 kanals 13 marlas, are entered in possession of Walayat Hussain. These entries negate the claim of the donee. In case these two survey numbers were exclusively occupied by the donee as described in Jamabandi for the year 1980-81, then obviously, he would have brought a suit for restitution of possession of these survey numbers. This has not been done.
12. The agreement constituting the mortgage was produced in evidence by Fazal Hussain, attorney of the donee. Muhammad Akbar, donor appeared as a witness. He was not confronted with the said agreement nor the receipt showing redemption of mortgage was confronted to him. He was questioned, of course, verbally to ascertain that the land was mortgaged by him to Chaudhary Fazal Ellahi which he admitted but at the same time, he disclosed that the mortgage was redeemed by him prior to the execution of the gift. It appears that the respondent consciously ' avoided to confront the donor with the aforesaid documents apprehending adverse answer, otherwise when the defendant-respondent was in possession of the documents, it was imperative for him to confront the plaintiff with those documents to find explanation and answer to the proposition under consideration. This has not been done for unknown reasons. The inference is, obviously, against the defendant-respondent.
13. The oral evidence led by the defendant-respondent is of no effect. All the witnesses belong to village Thara, situate at a distance of more than 4 miles from the suit land. None of these witnesses claims to be witness of execution of gift or delivery of possession in its consideration. They described different events on account of which they per chance saw the donee cultivating the land. They were unable to give description of the suit land to satisfy that the identity of the land was within their knowledge. They are related to the donee, as such interested to defend his claim.
14. The donee has been unsuccessful in bringing on record any overt act constituting forcible occupation of the land by the donor as described by him in his written statement. Likewise, he was unable to give any evidence to believe that the land was given by him to the donor for cultivation on payment of `batai'. Thus, the specific defence raised in the written statement and counter-suit, finds no support whatsoever, from the record. The defence raised in the pleadings (Written statement and the counter-suit), is quite contradictory and irreconcilable. It is not permissible to accept either of them to dislodge the claim of the plaintiff-appellants. The upshot of the analysis of evidence is that the donee has failed to prove that he acquired possession of the land by virtue of gift, at any stage after the execution of the gift.
15. Agha Ashiq Hussain, the learned Counsel for the respondent, argued that the suit was liable to he dismissed for its being patently beyond time. It was canvassed that the trial Court should have rejected the plaint as contemplated under Section 3 of the Limitation Act because it was beyond the requisite period of limitation. Reference was made to P.L.D. 1985 S.C. 153 and 1985 S.C.M.R.
799.
16. Section 3 of the Limitation Act empowers the Court to dismiss a suit when, on the face of it, it is instituted beyond limitation. There is no dispute with the proposition contemplated under Section 3 of the Limitation Act. But in a situation, when the fact of delivery of possession is disputed, it is permissible to entertain the suit to resolve the controversy as, prima facie, the gift unaccompanied by delivery of possession is void ab initio. The authorities referred by the learned Counsel for the respondent support this view. In the present case, the pleadings of the plaintiff contained the allegation of non-delivery of possession of subject of gift, as such the gift, prima facie, was void ab initio. In a case where the gift is termed as void ab initio for want of delivery of possession, the limitation loses its importance. For, limitation is applicable only when the transaction is valid or voidable and not when the transaction is, prima facie, assailed as void ab initio. In this situation, it was not enjoined upon the trial Court to dismiss the suit at the stage of its institution for want of limitation.
17. It is undenied when donor challenges the gift as void ab initio for want of delivery of possession and seeks his redress by bringing a suit; in such a situation, the Court has to satisfy itself by going through the process of recording evidence, to ascertain whether execution of gift accompanied delivery of possession or not. For, once it is satisfied that an essential condition, namely, the delivery of possession is not fulfilled, the gift remains incomplete, as such it is revocable at the instance of donor. Conversely, when all the essentials constituting a valid gift, are found to have been fulfilled, the gift becomes irrevocable, even at the instance of the donor. On this premises, the Court has to initiate proceedings to arrive at a correct conclusion. This view finds support from Anjuman Islamia's case (PLD 1967 Lahore 336).
18. The donor also claimed revocation of the gift on account of fraud. It is admitted that the donee is son-in-law of the donor. The donor is an old man. His daughter, the wife of donee, is living with him. She is mother of two children. The donee resided in England, and he has a second wife. The proposition of inducement and deception finds reasonable answer from the aforesaid facts. Akbar had no son and on marrying his daughter, the donee, obviously, would have assured him that he would live as lhana-damad'. Such an assurance would have necessarily induced and influenced the donor, to execute the gift. But when he left both the donor and his daughter and picked up second wife and settled in England, the illusionary paradise of dream of the donor, must have had been shattered down. Such a situation, raised a presumption, naturally in favour of the proposition to hold that the donor, being an illiterate, simpleton villager, was influenced by the inducement of the donee and he, accordingly executed the gift. The donor appeared in the witness-box to substantiate the allegation of fraud purported to be committed upon him. On the other hand, the donee who was ascribed deception, avoided to appear in the witness-box. In case he had appeared in the witness-box, he would have explained and answered the allegation of fraud ascribed to him. But this has not been done in the present case. In an identical situation in Mst.
Sewti's case (A.I.R. 1951 H.P.54), Mr. Justice Chowdhary concluded the proposition as:-- "An old illiterate widow executed a deed of gift in favour of her nephew, her only living relation who had been living with her since the lifetime of her husband. The executant not only purported to have appointed the nephew as her son and heir but declared him as the owner and possessor of all her property since the date of its execution. In a suit by the widow for cancellation of the deed on the ground of fraud: Held that the relationship existing between the parties was sufficient to raise a presumption that the deed had been obtained through undue influence which rendered the fraud possible.
' It was, therefore, incumbent upon the nephew to prove that the deed was the spontaneous act of the donor acting under circumstances which enabled her to exercise an independent will. (It was held on the evidence that the nephew had failed to discharge the onus and the deed had been obtained by misrepresentation and fraud.)"
' The aforesaid view is helpful to resolve the controversy raised in this case. The learned District Judge, omitted to apply his mind to the aforesaid factual aspect of the proposition. Therefore, it is safe to accord agreement with the finding of the learned Sub-Judge.
19. One of the objections raised on behalf of the respondent was that the suit was barred by estoppel. The objection is unsustainable. There is no allegation of misrepresentation constituting estoppel as alleged in the present case. The mutations are shown to have been attested at the instance of the donor. The donor appeared as a witness. He was not asked to explain as to whether he was present at the time of attestation of mutations or not. Mere entry showing the donor present before the Revenue Officer at the time of attestation of mutations, is not a conclusive proof of the fact that he admitted passing of possession of the land to the donee. Therefore, the objection of estoppel is not found sustainable.
' The result of the aforesaid analysis is that the donor has succssfully proved his claim. His suit is decreed accordingly. The finding of the learned District Judge is set aside and the appeal is accepted with costs.