' The dispute in this regular second appeal by defendant relates to the validity of the gift of agricultural land measuring 100 kanals 13 marlas situated in Revenue Estate Jalla Jeem Tehsil Mailsi, District Multan, having been made by one Abdul Aziz, respondent-plaintiff in favour of his real sister Mst. Manzoor Mai appellant-defendant. Abdul Aziz donee/plaintiff/respondent and Mst.
Manzoor Mai appellant/defendant, shall be hereinafter referred to a "DoNor" and "Donee", respectively, while the gifted property shall be described as 'property' or 'property in dispute'.
2. At the outset, the material facts leading to this litigation may be Noted. On 20-7-1962, the doNor made a statement to Patwari (Consolidation) Revenue-estate Mouza Jalla, stating therein that he had alienated the property by way of gift in favour of donee, who accepted the same and he had delivered the possession of 'Property' to her. On his statement Rappat No, 347 was recorded by the Patwari in his Daily Diary. On the basis of this entry, a Note was recorded by the Patwari (Consolidation) in the register of mutations. On 26-7-1962, the doNor appeared before the Revenue Officer and reiterated the factum of declaration of gift, acceptance of the same and delivery of possession of property by him in favour of the donee in an open assembly and in the presence of the donee. On the statement of the doNor and the donee the Revenue Officer attested the impugned mutation bearing No,768 on the same date.
3. It was on 23-5-1963 when the doNor respondent brought a suit for declaration to the effect that the aforeNoted gift embodied in Mutation No,768 was in fact Nominal and fictitious. It was alleged that neither he had made the declaration of gift Nor the donee had accepted the same, Nor any possession of the property was given to her. It was further averred that this fictitious mutation was got incorporated with the concurrence of the donee who had executed an agreement dated 19-7- 1962 ackNowledging therein that No gift was made in her faovur.
4. The donee contested the suit by taking up the plea that the gift was complete in all respects; that the doNor had donated the property to her; that she had accepted the gift and obtained the possession of the property; that she was in full control of the property and so had become the full owner of it.
5. Upon the divergent pleadings of the parties the learned trial Court framed the following issues:
(i) Is the plaintiff in possession of the suit land and the suit is competent in its present form? OPP
(ii) Whether the gift is invalid for the reasons stated in para. No,2 of the plaint? OPP.
(iii) Relief.
' Upon the consideration of oral as well as documentary evidence so adduced by the parties, the learned first Court by judgment dated 26-5-1966, decreed the suit by coming to the conclusion that neither the doNor had intended to make gift in favour of the donee Nor he had delivered the possession of the property to her. Feeling aggrieved with this, the appellant-donee filed appeal which was dismissed by the learned Addl. District Judge by decision of affirmance, dated 5-5-1967.
Hence this second appeal by the appellant-defendant-donee.
6. In disputing the correctness/validity of the decisions of the two Courts below, the learned counsel appearing on behalf of the appellant advanced the following arguments.
' Firstly, that the two Courts below have neither examined Nor have taken into consideration the evidential value of admission contained in statement of the respondent before Patwari (Consolidation) as well as before the Revenue Officer. It was stated that on both the occasions, the respondent ackNowledged that he had donated the property to the donee; that the donee had accepted the gift and that he had delivered the possession of the property to her. According to the learned counsel, these admissions were binding on the respondent and he had No right to resile from these admissions in view of the doctrine of estoppel embodied under section 115 of the Evidence Act/Article 114 of the Qanun-e-Shahadat Order, 1984.
' Secondly; that the relief under Section 42 of the Specific Relief Act is discretionary in nature and canNot be granted to a person who comes to Court with unclean hands. The learned counsel strenuously asserted that this principle was totally overlooked by the two Courts below. From the case of the respondent, it was obvious that the respondent had come to Court with a plea that the proceedings from Patwari (Consolidation) to the Revenue Officer, were in fact a scheme to hoodwink the Consolidation Authorities. As such the respondent could Not be granted a decree in discretionary and equitable jurisdiction under section 42 ibid. ' Thirdly; that the findings of the two Courts below are the result of misconstruing the terms of deed of attorney executed by the appellant in favour of the respondent and so the Courts below have erred in law by coming to the conclusion that the gift was Not complete.
' Fourthly; that the learned first appellate Court had erred in law by recording a finding on the question of gift on the basis of conjectures and surmises and without applying his mind and withot scrutinizing the soundness/propriety of the finding of the first Court.
' Reliance was placed on Sahibzada Muzaffar Ali v. Mst. Agha Begum and others (PLD 1968 Lah. 372), Farid v. Mst. Nur Bibi (PLD 1970 Lah. 502) Mushtaq Ahmad and 4 others v. Said Muhammad and aNother (PLD 1987 AJ&K 57) and Khurshid-ul-Islam v. M/s Qamar Jahan (1989 CLC 1467).
7. The learned counsel appearing on behalf of the respondent supported the impugned decisions.
He felt contented by raising a preliminary objection to the maintainability of the second appeal. It was urged that the findings of the two Courts below on the question of declaration and on the question of delivery of possession were findings of fact, as such these findings were Not open to interference under section 100 of the Code of Civil Procedure. It was further contended that if the gift is at all found to have been made it was with strings and conditions which rendered it void.
8. I have heard the learned counsel for the parties at a considerable length and gone through the evidence with their able assistance. The sole question falling for determination in this appeal is whether the impugned gift was perfected by delivery of possession of property to the donee as required by the Muslim Law. Admittedly the three essentials of a valid gift under the Muslim Law, are
(i) declaration of gift by the doNor, (ii) an express or implied acceptance of gift by donee; and (iii) seisin/delivery of possession of donated property by the doNor to the donee. These elements are necessary for a gift. The possession is a condition precedent to the validity of gift. The Holy Prohpet (peace be upon him) said "A gift is Not valid unless possessed" (Ref: A Inayah, Vol.IV, page 24). The law, however, requires that the possession is to be given to the donee as nature of the property permits. The mode and manner of delivery of possession is dependent upon the nature and character of a property and the question has to be considered by taking into consideration all the facts and circumstances of each case. The only thing to be considered is that delivery of possession by doNor in favour of donee, must be conscious, unequivocal and distinct. Hidya XXX at page 482 says: "Gifts are rendered valid by tender, acceptance and seisin-tender and acceptance are necessary, because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property according to our doctors, is Not established in the thing given merely by means of the contract, without seisin."
' Again in aNother place it is stated:- "A gift may be taken possession of on the spot where it is tendered without the express order of the doNor; but Not afterwards:--If the donee takes possession of the gift, in the fleeting of the deed of gift without the order of the giver, it is lawful upon a favourable construction. If, on the contrary, he should take possession of the gift after the breaking up of the meeting, it is Not lawful, unless he have had the consent of the giver so to do."
' Similarly B.E. Baillie in his Digest of Mahomedan Law (Pages 520-521) has observed: "Legal effect of a gift is Not complete and possession is taken of the thing given; ' The possession on which the completion of the gift and the establishment of its legal effect are dependent, is possession taken with the permission of owner-a permission which is sometimes express, but, at others, has to be established by evidence When the donee is neither expressly permitted Nor forbidden to take possession, and does so at the meeting, the possession is valid on a favourable construction of law, though Not so by analogy. But, if possession is Not taken till after separation from the meeting, the possession is Not valid, either by analogy or on a favourable construction."
9. In Sharifa Bibi v. Golam Muhammad Dastagir Khan (ILR 16 Mad. 43) it was held that when the gifted land is occupied by the tenants or raiyats as in a zamindari or mitta, a request to them to attorn to the donee is a sufficient delivery to complete the gift and formal entry on the land is Not indispensable, the principle being that the intention to transfer possession and to divest himself of all control over the subject of the gift must be unequivocally manifested by some overt act done towards the execution of such intention. This principle of law is well-established. Sheikh Ibrahim v.
Suleman and others (ILR 9 Born. 149), Muhammad Mumtaz Ahmad and others v. Zubaida Jan (ILR 11 All. 460 LPC), Hassanalli Degumiya v. Ruhullah Hamad (AIR 1925 Born. 305), Abdul Haque and others v. Mst. Tamizan and others (AIR 1927 Pat. 20), Bibi Khewer Sultan v. Bibi Rukhia Sultan (ILR 29 Born.
408), K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqoob Shah and others (PLD 1957 Kar.
258), Anjuman Islamia, Muzaffargarh v. Ashiq Husain and aNother (PLD 1967 Lah. 336), Ashiq Hussain aNother v. Ashiq All (1972 SCMR 50) and Khurshid-ul-Islam v. M/s. Qamar Jahan (1989 CLC 1467), are some of the cases in which it has been held that in case the land is occupied 12y tenants, a request to them by the doNor to attorn to the donee is the only possession that the doNor can give of the land in order to complete a proposed gift and such possession would be sufficient.
10. According to Kazi Khan, a book of high authority, the ability of donee, if adult, or of his guardian, if a miNor, to take possession of the gift--in other words, to exercise the right of property over it, is sufficient to validate the acts of donation. Accordingly, where a gift is made, and direction is given to the donees to take possession of the subject of the gift and partition it among themselves, such a gift is held to be valid, meaning thereby the power to take possession is equivalent in certain instances to actual delivery of possession (See `Mahomedan Law by Syed Ameer Ali' Pages 110-114).
11. Before T proceed to determine the contentions of the parties, in the light of aforesaid principles it will be advantageous to again Note the case of the respondent set up during trial and in the plaint.
In para. 2 of the plaint it was pleaded that the impugned mutation of gift was devoid of legal efficacy on the premises that doNor had Not given possession of the property to the donee; that the donee had Not accepted the gift; that the donee did execute agreement Ex.P/1 dated 19-7-1952, wherein she categorically admitted that the mutation of gift was Nominal, while respondent appeared before the Court, he stated that he was the owner of two tracts of land; one at Chah Sukhanwala and the other at Chah Baitwala; that the land at Chah Sukhanwala was more precious as compared to land at Chah Baitwala; and when the consolidation proceedings commenced, he hatched a Novel plan in collusion with donee to get a fictitious mutation of gift incorporated in the Revenue-record and get Vanda Ishtimal prepared relating to land at Chah Sukhanwala in the name of donee in order to retain this land in consolidation operation. This case was accepted by the two Courts below by coming to conclusion that Ex.P/1 was duly proved document and as a matter of fact No gift was made.
12. Having set down the case of two parties, their arguments I feel necessary to tabulate the evidence of both the sides.
13. The evidence of doNor comprises of following evidence:-Evidence of respondent-doNor.
14. P.W.1 Ata Muhammad, PW.2 Muhammad Bakhsh, PW.3 Allah Bakhsh. These witnesses stated that they were tenants at the crucial time; that they have never given rent to the donee. P.W.4 Sher Mohammad, P.W.5 Shah Mohammad, P.W.6 Illahi Bakhsh and P.W.7 Mohammad Ramzan, proved the execution of Ex.P/1. They stated that on 19-7-1962 Mst. Manzoor Mai executed agreement wherein she ackNowledged that No gift was made in her favour in reality and she further undertook to return the property to doNor.
15. The documentary evidence of doNor comprises of following documents:-Documentary evidence of respondent-doNor comprises of following:- Ex.P/3 is a certified copy of Khasra Girdawri relating to Rabi-1962, ' which does Not bear any entry pertaining to doNor or donee. Ex.P/4 is certified copy of Khasra Girdawari relating to Kharif, 1963. These documents show that the possession of property was with donee under the gift and the property was in cultivating possession of tenants namely, Abdul Aziz, Allah Bakhsh son of Khamisa, Ahmad Bakhsh son of Ilahi Bakhsh, Mohammad Bakhsh son of Wali Mohammad, and Mohammad Bakhsh son of Pir Bakhsh as tenants. Ex.P/5 is copy of Register Scheme relating to Vanda bearing No,173 and 183/1. It demonstrates that Vanda Ishtimal was made in the name of donee. Ex.P/6 is the copy of register scheme relating to Vanda Ishtimal bearing No,66/59 in favour of Abdul Aziz doNor, Exh.P/7, P/8 and Ex.P/9 are copies of Khasra Girdawari containing entries regarding Kharif, 1961, Rabi, 1962 and Kharif, 1962. Ex.P/10 is copy of Jamabandi of year 1957-58. In column No,12 thereof the entry regarding impugned mutation has been incorporated. Exs.P/11, 12 and 13 are copies of Khatooni Pamaish. These exhibits demonstrate that the donee was in possession of the property. Ex.P/5 is the copy of impugned mutation.
Evidence of donee-appellant.
17. In addition to herself she produced DW.1 Muhammad Isa, D.W.2 Haji Mohammad Ramzan and D.W.3 Gul Muhammad, these witnesses stated that they were tenants at the crucial time of making the gift; that the doNor had asked them to give rent to donee as he had gifted the property to her.
Thereafter they have paid the rent relating to harvest of cotton and sugarcane to the husband of donee; that after the consolidation operations, the donee was in possession of the land in dispute.
18. The documentary evidence is Ex.D/1, copy of Roznamcha Waqiati, of Patwari (Consolidation) dated 20-7-1962, Ex.D-2 is the copy of impugned mutation, Ex. D/3 is the copy of Khasra Gridawari pertaining to years 1958-59, and 1960-61.
19. I have carefully taken into consideration the evidence of both parties Noted above and have come to considered opinion that the concurrent findings of the two Courts below are in contravention of provision of law and in disregard of the well-settled principles relating to evidential value of the admission contained in duly sancioned mutation. For this purpose I have tabulated the evidence of both parties in paragraphs Nos.16 and 17 and Now proceed to take objective appraisal of aforeNoted evidence in the light of principles of Mohammadan Law relating to gift highlighted in paragraphs Nos.8 and 9.
20. I will Now first take up the documentary evidence of the doNor. It was on 20-6-1962 when the doNor made a report regarding the tender, acceptance of gift and delivery of possession of property to Patwari (Consolidation). He prayed therein that entry be recorded in Roznamcha Waqiati (Daily Diary). It is to be Noticed that the diary of Patwari contains the entries regarding the change of possession. It has No concern whatsoever with attestation of mutation. This entry is incorporated in order to bring a corresponding change in Khasra Girdawri as well as janiabandi relating to change of possession. To me, this tantamounted to a conscious and distinct act of putting the donee in possession of donated property. Had it been otherwise the doNor would have contended himself with making statements before Patwari in ordinary course of proceedings and would have got himself satisfied with the Nominal act of attestation of mutation. There was No compulsion on his part to make report to Patwari for the purpose of getting entries in Khasra Girdawri changed. I am, therefore, of the opinion that this act of the doNor alongwith the statements made before Revenue Officer was sufficient to prove the transmutation of donated property in favour of donee. Furthermore the donee reiterated the circumstance of declaration, acceptance and delivery of possession before the Revenue Officer in open assembly and mutation was attested. The circumstance of delivery of possession contained in aforeNoted admission is corroborated by the entries of Khasra Girdawri Ex.P3, Ex.P-4, and Ex.P-7 wherein it had been clearly shown that donee was given possession of property under the gift. It is sufficient to Note that these entries were entered in Jamabandi also. The admission in the aforeNoted documents further seeks confirmation from the oral evidence. The doNor admitted in his cross-examination that Gul Mohammad DW-3 was tenant over the land in dispute at the time of making gift; that No other person was cultivating the property as a tenant at that time. Gul Mohammad appeared as DW-3 and stated to the effect that he was in cultivating possession of land in dispute and the doNor asked him to give rent to donee by way of attornment. This part of his statement was Not impeached by the doNor by way of cross-examination. It is well-settled principle of law that a fact asserted in examination-in-chief which is Not subjected to cross-examination is deemed to have been admitted.
21. Now the stage is set to examine the legal effects of these admissions. It is established principle of law that entries in duly sanctioned mutation are relevant under section 35 of Evidence Act.
Although they are Not evidence of title yet they are strong pieces of evidence in respect of which they are made. If these entries contain undisputed admission, the onus of proving that these admissions are false lies on the party who says so and are binding on the maker of them unless and until they are proved false. Reference may be made to Mohammad and ethers v. Sardul (PLD 1965 Lah. 572,) Anjuman Islamia, Muzaffargarh v. Ashiq Hussain and aNother (PLD 1967 Lah. 336), Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 376), Bhondu v. Sami Khan (1982 CLC 316 and Sikandar Shah and others v. Sher Zaman and others (1987 SCMR 1125). When judged from this angle I have No hesitation in coming to conclusion that the two Courts below have erred in law by overlooking the evidential value of the admission of respondent before Patwari Ishtimal and before the Revenue Officer. These admissions were corroborated by the bulk of evidence and led to conclusion that doNor did make a gift of property in dispute in favour of donee and she had received the possession of the property.
22. The oral evidence of the doNor is untrustworthy, partisan in nature and canNot be believed. The doNor himself stated that P.W.1, P.W.2, and P.W.3 were Not in cultivating possession of land in dipute as a tenant in his cross-examination. On account of this admission No reliance can be placed upon the testimony of P.W.1, P.W.2 and P.W.3.
23. I Now take the evidence of P.W.4, P.W.5, P.W.6 and P.W.7. These witnesses proved the execution of agreement Ex.P/1 and deposed that the doNor was the owner of two tracts of land one at Chah Sukhanwala and other at Chah Baitwala. That land at Chah Sukhanwala was more valuable than the land at Chah Baitwala; that he had, hatched a plan in consultation with donee to hoodwink the consolidation authorities; that the donee executed Ex.P-1 where she admitted that No gift was made in her favour. This document was denied by Mst. Manzoor Mai. The document appears to be of spurious nature. The thumb-impression of Mst. Mansoor Mai on this document is Not discipherable. Furthermore, this case was Not embodied in plaint, where it was stated that No gift was made in favour of donee. It is settled principle of pleading that the facts which are Not alleged in the plaint canNot be permitted to be proved at trial by means of evidence. This basic rule is that of secundum allegata et probata i,e.; a party can only succeed according to what was alleged and proved. I am, therefore, clear in my mind that both the Courts below fell into error of law by permitting the doNor to prove these facts and by placing reliance upon them for the purpose to coming to conclusion that No gift was made.
24. The upshot of aforesaid discussion is that the donee by means of oral, documentary evidence and by means of admissions contained in duly sanctioned mutation proved all the necessary elements of gift as required by Muslim Law of gift. The learned two Courts below had fallen into error of law by igNoring the evidential value of these admissions and principles of Muslim Law relating to gift. The contention of the respondent that the concurrent conclusion of facts on the question of possession recorded by two Courts below canNot be interfered with is devoid of legal support. If the perusal of the impugned judgment shows that the findings of the two Courts below on the question of fact were contrary to circumstances apparent on the record and were in violation of the provisions of law, such findings are liable to jnterference under section 100 of the C.P.C. Reference be made to Malik Din and others v. Muhammad Aslam PLD 1969 SC 136, Muhammad Afsar and 7 others v. Allah Ditta and 13 others (1970 SCMR 118), All Muhammad v. Ali Muhammad and others (1974 SCMR 22), Nazar Muhammad and aNother v. Mst. Shahzada Begum and aNother (PLD 1974 SC 22), Mst. Bibi Jan v. Habib Khan and aNother (PLD 1975 SC 295), Malik Muhammad Bashir v. Ghulam Rasul and aNother (1978 SCMR 358), Begum Bibi and 9 others v.
Abdul Ghani and 4 others (1980 SCMR 675) and Ghazan and others v. Hayat Ali and aNother (1981 SCMR 492).
25. There is yet aNother aspect of the case that the declaratory relief under section 42 of the Specific Relief Act is discretionary in nature. The Court may refuse such relief where one of the parties comes to Court with unclean hands and unjust claim. Reference be made to Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan (PLD 1966 SC 612). Applying these principles to the facts of the case it it clear that according to the case of plaintiff he hatched out a plan to deceive the consolidation authorities who were functioning under the provisions of Consolidation of Holdings Ordinance. Plaintiff, was thus Not entitled to relief under section 42 of the Specific Relief Act.
26. The result of whatever has been stated above is that I accept this appeal, set aside the judgments and decrees of two Courts below and dismiss the suit filed by the doNor. The respondent shall bear the costs of the proceedings throughout.