' By virtue of this Civil Revision and Revision Petitions Nos.171/1984 and 172/1984 the donees- defendants challenged the single judgment and decree of the learned Additional District Judge, Charsadda dated 5-5-1984 whereby three appeals filed by the plaintiffs-respondents were accepted, the single judgment and decree of the learned Civil Judge Ist Class, Charsadda dated 27-4-1983 dismissing three identical suits, was set aside and the claim of the plaintiffs for the annulment of four transactions of gift of landed property in favour of the defendants and joint possession of 1/4th share therein was decreed leaving the parties to bear their own costs.
2. The following pedigree-table will be helpful in understanding the facts of this case:- Syed Qaim Shah {{TABLE}} Mst. Benazira D.
9. Mst. Bacha Zarin Ist. Wife (since dead)
Mst. Syed Syed Mst.
Afsar Kiramat Hikmat Sardar Sultana Shah Shah Begum D.
7. I (since D.
8.
I dead) #TBS 1 1 Mst. Mst. Mst. S. Nasreen Husan Razia Mustafa D.
6. Ara Begum Kamal D.
5. D.
4. Shah D.
1.
Mst. Mehtab D.
10. #TBE I I S. S. Mst.
Shau- Abid I Samiha kat All Ruhi All Shah I P.
3.
Shah D.
3. I D.
2.
I 1-7 Mst. Mst. Mst. Mehtab Sima Parveen Begum Begum Begum P.
7. P.
6. P.
5.
I S. S. Tai- Feroz moor Shah Shah P. I. P.
2.
Dr. S. Musarrat Shah P.
4.
3. Syed Qaim Shah, who happened to be an Advocate by profession, was owner of considerable landed property in two villages: Akhun Dheri and Umarzai in Tehsil and now District Charsadda. He purported to make oral gift of 242 Kanals 4 Marlas of land situate in village Akhun Dheri and 25 Kanals 9 Marlas in village Umarzai in favour of his son Syed Mustafa Kamal Shah while 148 Kanals 8 Marlas again in village Akhun Dheri in favour of his another son Syed Abid Ali Shah. These gifts are evidenced by Mutations Nos. 1303, 1305 and 1307 respectively attested on 27-5-1971, 28-8-1971 and 13-12-1971 in village Akhun Dheri and Mutation No,6602 of village Umarzai sanctioned on 25-1-1975.
4. On 25-1-1975, Syed Feroz Shah and 6 others sons and daughters of Syed Hikmat Shah and Syed Karamat Shah, the two predeceased sons of Syed Qaim Shah donor from the first wife, filed three suits Nos.31/1, 32/1 and 33/1 against Syed Mustafa Kamal Shah, Syed Abid All Shah, donees and 9 other successors-in-interest of the donor aforesaid. In these suits plaintiffs challenged the validity of the gifts and also sought a declaration that they were co-owners of the land in dispute and assailed the validity of the gift mutations on the grounds: (1) want of acceptance by or on behalf of donees, (2) gift had been made by the donor under the undue influence of the donor's second wife (mother of the donees), (3) having been made during the death-bed illness (marzul-maut), (4) need of season in the instant case was not satisfied on the part of the donees either actually or constructively, (5) the gift had been made to disinherit the plaintiffs and, (6) the mutations of gift had been sanctioned not in the 'Mahal' wherein the land in dispute was situated but at another village. In Suit No31/1 the plaintiffs also sought the annulment of alienation of part of the disputed land on behalf of Syed Mustafa Kamal Shah defendant which he had made to his wife Mst. Mehtab Bibi defendant by a registered dower deed dated 11-4-1972. The consequential relief of joint possession of 1/4th share of the disputed land was also added.
5. The suit was resisted by the donees-defendants and Mst. Mehtab Begum, the subsequent transferee from one of the former. The donees filed their written statement denying the allegations made in the plaint. It was averred that prior to the attestation of gift mutations the donor had gifted the disputed land to the donees and had directed the tenants thereof to attorn to the donees. They further maintained that transaction of gift in their favour was thus completed by offer, acceptance and delivery of possession. The allegation of undue influence/coercion of the mother of donees upon the donor was also refuted.
6. On these pleadings the following issues were framed by the learned trial Court:-
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the plaintiffs are estopped to sue?
(3) Whether the suit is bad in its present form?
(4) Whether the suit is bad for non-joinder of necessary parties?
(5) Whether the gift in question is not revocable?
(6) Whether the defendants are the owners of the suit land and the gift in their favour is valid under the law?
(7) Whether the impugned gift is against law and factum on the grounds mentioned in the plaint?
(8) Whether the plaintiffs are entitled to a declaration that the impugned mutation is ineffective over their rights alongwith a decree and joint possession of 1/4th share out of the suit property?
(9) Relief.
' On these issues the parties led evidence. The plaintiffs produced Muhammad Haroon Patwari Halqa, Akhun Dheri (P.W.1) (Abdur Rashid Shah Patwari in Suit No,32/1), Syed Feroz Shah plaintiff No,1 (P.W.2). The defendants apart from Alam Zeb Khan A.D.K. (DW.) produced Syed Mustafa Kama!
Shah (D.W.2).
7. The learned trial Court vide its consolidated judgment and decree dated 27-4-1983 found that the impugned gifts were not made during his deathbed illness; that those gifts were not the result of undue influence or coercion of Mst. Benazira; that possession of the gifted land had been duly evidenced by the entries in Khasra Girdawari; that attestation of mutation 'at the village other than the village where the land is situate' is not rendered invalid. The crucial issues Nos. 5, 6, 7 and 8 were thus "decided accordingly". Unhappy wording of issue No,5 notwithstanding, issues Nos. 5 and 6 appear to have been decided in favour of the donees-defendants while issues Nos.7 and 8 against the plaintiffs and so was finding on issue No,1 . It was held on issue No,2 that as the donor was dead, therefore, the plaintiffs were estopped to sue the donees-defendants. Issues Nos.3 and 4 were neither pressed nor proved. As a result of these findings the plaintiffs were non-suited with costs.
8. The plaintiffs preferred three separate appeals before the learned Additional District Juidge, Charsadda. The learned appellate Court upheld all the findings of the learned trial Judge except that on delivery of possession of the gifted land by the donor to the donees which was a sine qua non for the validity of the gift but had not been proved. In consequence, 'the impugned judgment and decree of the learned trial Judge was set aside and the plaintiffs-appellants were granted the decree for declaration and also for joint possession in respect of the suit land as prayed for in the plaint against the donees-defendants leaving the parties to bear their own costs.
9. The aforementioned appellate judgments and decrees passed by the learned Additional District Judge have been called in question through these three civil revisions. Since all the three civil revisions are the outcome of single judgment and decree each of the Courts below and common questions of fact and law are involved, these are, therefore, being disposed of by this single judgment.
10. Mian Muhammad Younas Shah, learned counsel for the petitioners contended that the only controversy in these petitions revolves around the question as to whether gift of the disputed lands which were in occupation of the tenants had been completed. According to him, the other two constituents of a valid gift viz., the offer by the donor and the acceptance by the donees had been concurrently found by the two Courts below to have been proved and that, in any case, those findings having not been challenged by way of appeal or cross-objections by the respondents, cannot be assailed by them in these revisions. In support of the contention that the gift of lands in dispute which were admittedly in occupation of the tenants were completed by virtue of direction by the donor to attorn to the donees, the learned counsel relied upon the relevant entries in the Khasra Girdawari and successful proceedings of ejectment brought by the donees against the tenants. In this context two salient features were highlighted: (1) that while exhibiting extracts Ex.P.W.1/1 to Ex.P.W.1/5 the Patwari was not cross-examined which on the authorities of: (i) Sayed Iqbal Hussain v. Mst. Sarwari Begum (PLD 1967 Lah. 1138), (ii) Qasim and others v. State (PLD 1967 Kar. 233), and (iii) Mst. Zar Jan v. Najmun Nisa (PLD 1969 Pesh. 118) was tantamount to admitting the factum of delivery of possession; (2) On the authority of the Supreme Court in Muhammad Aslam v. Khuda Dad (1982 SCMR 511) presumption of truth is attached to the entries of Khasra Girdawari; (3) By virtue of precedent case of Shahzad Gul and another v. Ziarat Sher (PLD 1991 SC 489) Kharif 1971 period of inspection of crop was from 1-5-1971 to 15-6-1971.
11. As against this, Sheikh Wazir Muhammad, learned counsel for the plaintiffs-respondents, in each of the above petitions, has argued the following points:-
(i) That in Suit No,33/1 neither Syed Abid All Shah donee nor any authorised person on his behalf appeared in support of averments in the written statement filed on his behalf.
(ii) That the donees instead of sticking to their defence taken up in all the three suits set up quite different case in the witness-box. Reference was made to the statement of Syed Mustafa Kamal Shah D.W.2 wherein he had alluded to a promise made by the donor to transfer the disputed lands by way of gift to the donees seven years prior thereto and that in 1971 he received a telephonic message conveying and a letter communicating offer therefor which Syed Mustafa Kamal Shah had accepted.
(iii) That there was neither any offer by the donor nor acceptance by the donees due to which the gift transactions were vitiated.
(iv) That the assertion of D.W.2 in the witness-box that Shaukat All Shah the elder brother of the donees was put in possession of the gifted land on behalf of Syed Mustafa Kamal Shah donee was neither set up in the written statements nor he was produced to substantiate it and that, in any case, latter's deposition read as a whole does not inspire confidence on the points of offer and acceptance and delivery of possession to the donees.
(v) That possession either actual or constructive of the gifted land was not proved to have been made by the donor to the donees inasmuch as mere entries in the Revenue Record could not adversely affect the interest of the co-heirs nor could the petitioners discharge the onus to prove that valid transactions of gift in respect of the disputed lands had taken place in their favour. As to the evidentiary value of mutation in the Revenue Record reference was made to: (1) Hussain Bibi etc. v. Nasib Begum PLD 1988 SC (AJ&K) 1 and (2) Fazal Dad Khan v. Mst. Hazrat Jan 1986 CLC 545.
(vi) That change of title and possession of lands assessed to land revenue is required to be recorded in the Daily Diary. Reference was made to Muhammad Zawar Khan v. Addl. Chief Land Commissioner (1986 SCMR 1121).
12. Before dilating on the respective contentions raised on behalf of the parties in the case, it is necessary to refer to the legal position in regard to gifts of immovable property under the Muslim Law. In the case of Amjad Khan v. Ashraf Khan (AIR 1929 PC 149) their Lordships of the Judicial Committee while referring to the case of Muhammad Abdul Ghani v. Fakhar Jahan Begum (AIR 1922 PC 281) reiterated the law on the point of gifts under the Muslim Law in the following paragraph:- "In order therefore to constitute a valid gift inter vivos under the Mahomedan Law applicable to this case, three conditions are necessary: (1) Manifestation of the wish to give on the part of the donor;
(2) The acceptance of the donee, either impliedly or expressly; (3) The taking possession of the subject-matter of the gift by the donee, either actually or constructively."
13. In support of his case the learned counsel for the petitioners also borrowed the following observations from the case of Zahuran and others v. Abdus Salam and others (AIR 1930 Oudh 71):- "Where the subject-matter of the gift is only capable of constructive possession and such possession accompanies the gift must be held to be valid,"
' There is no cavil with this proposition which has also been reiterated by a Division Bench of Karachi High Court in Mir Haji Ali Ahmad Khan Talpur and 9 others v. Government of Sindh and 2 others (PLD 1976 Kar. 316). It was held therein:- "It is well known that Muhammadan Law has prescribed just three simple but very essential requisites for a valid gift. These are (1) a declaration of gift by the donor, (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject- matter of the gift by the donor to the donee. In-simple words, the three acts involved are that the donor should make a declaration of gift and give the gift property to the donee, and the latter should accept it. It is not even essential that the gift should be made in writing for a written gift is as good as an oral one. In the case of Jamarun-nisa Bibi v. Hussain Bibi (1) the Privy Council upheld a verbal gift. Writing is, therefore, not essential to the validity of a gift, either of movable, or of immovable property. No mutation of names in the Record-of-Rights is also necessary to complete the transfer of possession of the gift property. A gift of lands in occupation of haris may be completed by the donor asking the haris to attorn to the donee, or by delivery of title deeds, or, by getting the mutation entries effected in donee's favour in the Record-of-Rights. A husband making a gift of the house to his wife, which is in their joint occupation, may complete the delivery of possession of the corpus of the gift, which is one of the essential requisites of a valid gift, by making a declaration to the effect that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammadan Law. The same procedure would be true in the case of a house let out to the tenants, or in the case of lands cultivated to haris, if the tenants or the haris are asked by the husband to attorn to his wife.
In such cases, the fact that the husband continues to live in the house or receives the rents from the tenants, after the date of the gift, would not invalidate the gift, the presumption being that the rents were received by him on behalf of his wife, and not on his own account."
14. The objection of the learned counsel for the petitioners that the respondents, having not challenged the findings of the appellate Court on the point of validity of offer and acceptance of gifts by way of appeal or cross-objections cannot question the findings at this stage, is repelled by the provision of Order XLI, rule 22 of the Civil Procedure Code. In Mst. Jamila Begum v. Awam-un- Nass and 15 others (PLD 1978 Lah. 1376) it was held that the provisions of Order XLI, rule 22, C.P.C.
Authorise the respondent to support the judgment of the Court even on the basis of the issues decided against him. Respectfully following the dictum of the Lahore High Court I also hold that the answering respondents are competent to support the appellate judgment of the Court below even on the grounds which were not decided in their favour because there being no decree or order against them, it was not open to them to file any cross-objection or cross-appeal of their own.
15. The first question falling for determination is whether the primary requirement of offer by the donor and acceptance by the donees in the instant case was proved by the evidence adduced by the petitioners in the trial Court. Equally important is the second question to be addressed as to whether the offer and acceptance of the gifts as aforesaid was followed by the delivery of possession of the disputed lands to the donees either actually or constructively. On the point of offer and acceptance of the aforesaid gift transactions the contention of the learned counsel for the answering respondents has very force. It was the case of the petitioners in the witness-box as deposed to by Syed Mustafa Kamal Shah D.W.2 that Shaukat All Shah, the elder brother of the domes, was put in possession of the gifted lands. Besides, the fact that this assertion never found mention in the written statements, Shaukat Ali Shah was not examined to substantiate this claim of the donees in Suits Nos.31/1 and 32/1. Even the testimony of Syed Mustafa Kamal Shah petitioner in the trial Court read as a whole leaves much to be desired for placing implicit reliance thereon. The claim of the donees that the offer of gifts of the landed property by the donor when the donees were in England and their acceptance on telephone and simultaneously by a letter is not only far from proved but even otherwise does not sound reasonable from a person of the status of Syed Qaim Shah donor who, as stated earlier, himself was a Lawyer by profession. In consequence, I am of the considered opinion that the requirement of offer and acceptance in this case is not established.
16. The reliance of the petitioners on mere entries of Khasra Girdawari is not well-founded for two- fold reasons: Firstly, that the presumption of correctness is not attached to the entries in Khasra Girdawari as recently held in the precedent case of Muhammad Aslam v. Khuda Dad (1982 SCMR 511) and secondly, that in the disputed cases of gift of immovable property in the occupation of the tenants as laid down in Anjuman Islamia, Muzaffargarh v. Ashiq Hussain and another (PLD 1967 Lah.
336) may be completed by attornment by the tenants to the donees. In answer to the second ground of completion of gift as aforesaid, the learned counsel urged that the tenants in occupation of the gifted lands had been successfully ejected from the disputed lands by the petitioners and, therefore, they would not have supported the petitioners even if they had been produced. This contention is devoid of any force because this case was never set up in the trial Court by the petitioners either in the written statements or in the witness-box. Then under Rule 9.1 of the Land Records Manual, Kharif Girdawari starts from Ist of October while Rabi Girdawari commences from Ist of March. Looking to the relevant entries of Khasra Girdawari in this case it is abundantly clear that the said entries are not in accord with the dates recorded therein.
17. There is still another legal infirmity in the completion of the gift transactions of the disputed lands. Under rule 34(4)(xvii) of the West Pakistan Land Revenue Rules, 1968, Syed Qaim Shah donor ought to have reported to and the Patwaris in the two villages were required to have but had not recorded in the daily diary the impugned alterations in the ownership in and cultivating possession over the disputed lands in the Crop Inspection Register (register Khasra Girdawari).
Notwithstanding the entries of oral transactions of gift, this omission on the part of Syed Qaim Shah donor, who was a practising Lawyer of the high standing, is quite significant and noteworthy. This omission in the circumstances of this case, would certainly affect the propriety of the impugned gift transactions. This being so, mere entries in the Khasra Girdawari of the transfer of possession of the disputed lands to the donees cannot be said to be either actual or constructive possession of the gifted lands as required under the law.
18. In the case of Syed Abid All Shah (C.R.172/1984 arising out of Suit No,33/1) there is still another legal flaw in the impugned transactions of gift of the lands in his favour. In his case he did not personally appear in the witness-box to support the impugned gift transaction. Instead Syed Mustafa Kamal Shah appeared as D.W.2 and reiterated the case which he had set up in the witness-box in his own case. He is not shown to have been duly authorised by Syed Abid Ali Shah defendant-petitioner to pursue his case. Legally speaking, Syed Abid Ali Shah has not appeared to susbtantiate his case and rebut the objections raised by the plaintiffs-respondents to the impugned gift transactions. The statement of Syed Mustafa Kamal Shah in his case, therefore, is of no avail to him. The case of Syed Abid All Shah is thus even on the weaker wicket.
19. As a result of what has been discussed above, it is abundantly clear that in all these gift transactions neither offer by the donor nor acceptance by the donees nor delivery of possession by the former to the latter of the disputed lands either actual or constructive has been satisfactorily proved. The finding of the learned appellate Court on the point of want of delivery of possession in pursuance of the impugned gift transactions is thus affirmed. In the circumstances, all the three civil revisions are without merit and are accordingly dismissed with costs.