On the strength of Mutation No. 598 dated 17-4-1977 12 Kanals of Shamilat land in Village Togh, Kohat Tehsil was given in gift by one Khanzada son of Sherdil to his five sons, namely Abdur Rehman, Said Badshah, Khan Mir, Younas Khan and Nur Rehman. This mutation was later on cancelled by the Collector on 7-5-1980 on the review application made by Col. (Retd.) Syed Sultan Ali Shah. Khanzada with his five sons thereafter on 4-6-1980 filed a suit before the Civil Court and asked for the grant of a declaration that he being in possession of 22 Kanals 6 Marlas in Khasra No.5009/2 of .The Shamilat land in Village Togh which he had reclaimed being an owner in Shamilat could make gift of an area of 12 Kanals out of the same in favour of his sons and mutation No598 was, therefore, wrongly cancelled by the Collector. Syed Sultan Ali Shah etc., the petitioners herein, res1sted the suit. The learned trial Judge framed all such necessary issues arising between the parties out of the pleadings and recorded evidence pro and contra. He ultimately dismissed the suit on 1-10-1986 in view of his decision arrived at issues Nos.6, 7, 8, and an additional issue which were to the following effect:-- Issues: (No.6). Whether Mutation No. 598 dated 17-4-1977 is wrong and illegal?
(No.7). Whether the plaintiffs are owners in possession of the suit property?
(No.8). Whether defendants Nos. 4 to 6 have been in possession of the suit property as `Hissadar' owners, if so, its effect ?
Addl. Issue. Whether the order of defendants Nos. 1 and 2 dated 7-5-1980 in respect of cancellation of Mutation No.598 attested on 17-4-1977 is illegal, wrong and without jurisdiction ?
On appeal filed by Abdur Rehman etc, the plaintiffs respondents, the D1strict Judge, Kohat set aside the judgment and decree of the trial Court on the acceptance of the appeal and himself passed-a decree on 10-1-1987 as prayed for declaration and permanent injunction in the suit in favour of the respondents which is now impugned before me in this revision possession lodged under section 115, C.P.C. By Syed Sultan Ali Shah etc.
2. I have heard Mr. N. M. Khan, Advocate on behalf of the defendants-- petitioners and Mr. Amjad Zia, Advocate for Abdur Rehman etc., the plaintiffs-respondents. During arguments on both sides before me this fact could not be disputed that plaintiff Khanzada (now dead) was an owner of 20 "Sarsais" of land in the Shamilat of Village Togh which comes to an area of about 10 Marlas. No doubt Khanzada had been shown in possession of about 20' Kanals of Shamilat land comprised in Khasra NoS009/2 which he had allegedly reclaimed being an owner in Shamilat but he never claimed his ownership rights over an area of more than 20 "Sarsais' or 10 Marlas of land in the suit Shamilat. Extracts from the "Wajab-ul-Araz" have been made available on record which read expressly that without prior permission of Lambardars of the Village no person can reclaim to his possession any Shamilat land. There are said to be as many as six Lambardars in Village Togh. It is not shown as to whether these notables had been taken into confidence before doing "notour" in the Shamilat land by Khanzada deceased.
3. This would be besides the question as to whether the deceased-- plaintiff being in possession of a certain area of Shamilat land could transfer by way of gift in excess of his ownership rights in the joint land in favour of his sons. A simple gift or `Hibba' is immediate transfer of property without any exchange by one person to another and accepted by or on behalf of the latter. Every person of sound mind can dispose of his property by gift but there must always be in every gift a bona fide intention on the part of the donor to transfer his property from himself to the donee. A Muslim donor can make gift of the whole of his property and it may be in favour of a stranger or an heir. This would mean that the donor must have complete dominion of ownership over the property of which he intends to make gift. In the instant case Khanzada deceased being admittedly an owner of 20 "Sarsais" or 10 Marlas of Shamilat land could not make gift of more than that in favour of his sons which he did on the strength of his alleged possession over an excess area of the joint land on the pretext that he could retain that possession being a co-sharer till the partition of Shamilat. Gift of an undivided share in a joint property which is capable of division would be valid even if the share transferred is not divided off and delivered to the donee where the gift is made by one co-heir to another and the donee has taken joint possession of the property in place of the donor. The impugned gift mutation in this view of the matter could only be held valid and retained to the extent of 10 Marlas of Shamilat land.
4. I would, in the circumstances of the case, alter the impugned judgment and decree as passed by the appellate Court to the extent aforesaid by dismissing the balance claim of the plaintiffs- respondents in their suit on the acceptance of this revision petition in these terms. No order as to costs.