' This revision petition is directed against the judgment dated 26-6-1988 whereby the learned Additional District Judge-II, Okara dismissed the petitioner's appeal against the judgment and decree dated 6-3-1988 by virtue of which the learned Civil Judge, Dipalpur had decreed the respondent's suit for declaration and consequential relief.
2. The brief facts which gave rise to the present revision petition are that on 23-12-1985 Taj Din respondent instituted a suit against his daughter Mst. Sardaran Bibi petitioner for a declaration to the effect that he was the owner in possession of the suit land measuring 170 Kanals 14 Marlas (fully detailed in para. No,1 of the plaint) and that the registered gift deed 23-1-1985 purporting to have been executed by him in her favour was fake, fictitious and the result of misrepresentation. By way of consequential relief he sought the issuance of permanent injunction to restrain the petitioner from interfering with his possession over the said land. It was asserted in the plaint that the respondent was an old man who had no male issue and had only seven daughters including the petitioner. The petitioner's husband, who was a clever person, had forged a fake gift deed showing that the respondent had gifted the suit land to the petitioner. The respondent maintained that he had never executed the said gift deed nor did he appear before the Sub-Registrar at the time of the registration of the said deed. He further asserted that he had never got the suit land mutated in favour of the petitioner.
3. The petitioner resisted the suit and maintained that the respondent had himself got the gift deed in question executed in her favour and that he had also appeared before the Sub-Registrar at the time of registration of the said document. She further claimed that the possession of the suit land was also transferred to her under the said gift. She also raised a number of legal objections which are reflected in the following issues:--
(1) Whether the plaintiff is estopped to file the present suit by way of his words and conduct? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, to what effect? OPD
(4) Whether the suit is mala fide and collusive and that the defendant is entitled to receive special costs from the plaintiff? OPD
(5) Whether the impugned "Hiba" dated 31-12-1985 is fictitious, illegal and ineffective and also Mutation No,582 dated 28-3-1985 is void, cancelled and ineffective qua the rights of the plaintiff?
OPD
(6) Whether the plaintiff is entitled to the relief prayed for? OPP
(7) Relief.
4. The parties produced their oral as well as documentary evidence on the above issues. The respondent's suit was decreed against the petitioner by the learned trial Court. She lodged an appeal but the same was dismissed by the learned appellate Court.
5. By this revision petition the petitioner has called in question the propriety of the decisions of the two Courts below.
6. I have heard the learned counsel for the parties and have also gone through the record.
7. The concurrent findings of the two Courts below are to the effect that execution of the gift deed in question had not been proved and even otherwise the gift in question was invalid because of the non-delivery of the possession of the land in question by the donor to the donee.
8. Learned counsel for the petitioner has contended that there was sufficient material on record to show that the gift deed in question was genuine and had been duly proved through reliable evidence and that as the parties were living together the delivery of the possession of the land in dispute by the respondent to the petitioner was not necessary and thus the gift in question could not be held to be invalid on that count. Learned counsel submitted that the learned Courts below had misread the evidence and had reached incorrect conclusions. Conversely, learned counsel for the respondent has defended the impugned judgments and decrees.
9. Exh.D.1 is the gift deed in question. Its certified copy Exh.P.2 has also been placed on record. The document shows that it was executed on 23-1-1985 and was registered on the same day. Sh. Noor Din D.W.2 is its scribe while Doona D.W.4 and Shah Muhammad D.W.5 are the two attesting witnesses of the said document. D.W.1 Hamid Baig was the Sub-Registrar before whom the registration proceedings had taken place. Mst. Sardaran Bibi petitioner had appeared as D.W.3. The D.Ws. Have supported the petitioner's case i,e, that Taj Din respondent had executed the gift deed Exh.D.1 and had put his thumb mark on it and that he had also appeared before the Sub-Registrar for the registration of the said deed.
10. Taj Din respondent appeared as P.W.1 and denied having executed the gift deed Exh.D.1. He categorically stated that he never gifted any land to the petitioner and asserted that the gift deed in question was a forged and fabricated document. The deposition of Ali Muhammad P.W.2 who is a cousin of respondent, is to the effect that the petitioner and her husband had obtained his thumb-impressions on certain papers on the pretext that they had to obtain some loan. He further stated that subsequently he came to know that his thumb-impression was also obtained on the registered deed in question whereby Taj Din respondent had been defrauded and deprived of his land and that thereafter (on 25-9-1986) he swore an affidavit Exh.P.1 before a Magistrate to the effect that the registered gift deed was fake and the result of fraud and misrepresentation. P.W.3 Ghulam Murtaza who owns land near the land in dispute stated that the respondent was in possession of the said land. P.W.4 Noor Muhammad grandson of the respondent stated that he was cultivating the suit land as a tenant under the respondent and was paying Batai to him. It has not been proved that the thumb-impression on Exh.D.1 purporting to be that of the respondent was actually his thumb-impression. The disputed thumb-impression (on Exh.D.1) was sent to the Finger Print Expert in the Finger Print Bureau alongwith the admitted thumb-impressions of the respondent for comparison. The Expert reported that the thumb-impression on the gift deed in question was not clear enough to permit comparison with the admitted thumb-impression in minor details and thus no opinion could be given.
12. Taj Din respondent, who is an illiterate villager, was about 80 years old at the time of the alleged execution of the gift deed. In such a case the proof of the execution of the gift deed should have consisted of unimpeachable evidence which should be free from all possible doubts. He had seven daughters and no son. A pertinent question arises as to why did he gift away his entire land to one of his daughters, i.e the petitioner, excluding the other six. The petitioner in her statement has not adverted to this aspect of the matter and has not stated as to why she was preferred over her other sisters. In the gift deed, contrary to the admitted facts, it is stated that the respondent had no daughter except Mst. Sardaran Bibi the petitioner. Had the respondent executed the said gift deed, contended his learned counsel, he would not have made such a mis-statement. The dubious nature of the gift deed in question is further highlighted when the petitioner states in her statement as P.W.3 that she had spent about Rs,2,00,000 on the registration of the gift deed out of which 20,000 rupees were paid to the scribe. This statement was sufficient to create suspicion about the whole transaction. Influenced by this statement the learned Courts below had come to the conclusion that the gift deed in question was of a doubtful character. I am of the view that they were justified in assuming so, for with this amount it was not difficult to purchase a few witnesses and manufacture the document in question. As the view taken by the learned Courts below was possible in the circumstances of the case I am of the opinion that any interference from this Court with the concurrent findings of the said Courts in revisional jurisdiction, would not be justified.
13. This brings us to the question as to whether the possession of the land in dispute was delivered by the respondent to the petitioner under the gift deed. No doubt in the recital of the gift deed Exh.D.1 it is mentioned that the possession had been delivered to the petitioner but it is a settled principle of law that the same is not enough to establish the factum of the delivery of possession.
The petitioner's own witness D.W.5 Shah Muhammad has admitted that the respondent used to receive the Theka of the suit land, that Noor (P.W.4) and Jalla were cultivating the said land, that he did not know if the respondent was receiving anything from them and that Mst. Sardaran petitioner was not receiving any share from the said cultivators. Statement of Ghulam Murtaza P.W.3 is to the effect that the respondent was in possession of the suit land and Noor Muhammad (P.W.4) states that he was cultivating the land in dispute as a tenant under the respondent and previously the same was cultivated by one Muhammad Abbas. There is thus sufficient evidence on record to establish that the possession of the land in dispute, physical .Or constructive, was never delivered by the donor to the donee under the gift in question and therefore, on this count also the gift was rendered Invalid. Relying on Ibrahim v. Mst. Wazir Begum PLD 1987 Lah. 1087 learned counsel for the petitioner submitted that under the Muslim Law it is not always necessary for donor to physically part with the possession of the gifted property. He further submitted that mere intention on the part of the donor was sufficient especially where the donor, his daughter the donee and her husband were all living in the same house. I am afraid the authority cited by the learned counsel is clearly distinguishable from the facts of this case. Firstly, there is no evidence on record to establish that the petitioner, her husband and the respondent were living in the same house and secondly in the cited case actual delivery of possession of the gifted land was held to be unnecessary because of the fact that the husband of the donee had all along been looking after and managing the said property. In the present case the petitioner's husband was neither looking after the land nor managing it. It is settled law that a gift of immovable property, of which the donor is in actual possession, is not complete unless he physically parts with the said possession and in case the gifted property is in the possession of tenants the gift would be completed only when the donor directs the said tenants to attorn to the donee. Delivery of possession is not necessary where the gift is from a father to his minor child or by a guardian to his ward. In the present case, the land was in possession of tenants who were attorning to the respondent and therefore, either physical possession should have been delivered to the donee or the tenants should have been asked by the donor to attorn to the donee. As this has not been done the learned Courts below were justified in holding that the gift in question was incomplete and thus invalid. Their concurrent findings on this pure question of fact are not assailable in revision.
14. In view of the above discussion there is no merit in this revision petition which is dismissed with costs.