MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the. Leave of the Court, calling in question the judgment and decree passed by the High Court on May 11, 1996, has been filed by the appellants herein, whereby the appeals filed in the High Court were dismissed.
2. The necessary facts, giving rise to the present appeal are. That a suit for the cancellation of gift- deed executed by Mst. Ghulam Bi and Mst. Sahib Bi on November 23, 1987, in favour -of Muhammad lqbal; respondent, herein, was filed in the Court of Sub-Judge, Dadyal, onovember, 14, 1988, by Muhammad Sarwar and others. In this suit Mutation No.3007 attested on February 25, 1988, on the basis of gift-deed was also challenged.. It was claimed that land measuring 112 Kanals 18 Marlas, comprising Survey Nos.4371, 4373, 4383, 4385, 4387, 4390, 4384, 4401, 19, 4420, 4427, 4372, 4379, 4380, 4386, 4418, 4388, 4421 and 4422, Khewat No.88, Khatas os.437 and 438, situated. In Village Khirrari, Tehsil Dadyal, District Mirpur, was in possession of plaintiffs and pro fornia-respondents, Abdul Rehman and others. The gift-deed was challenged on the ground of same being executed in excess of share of donors, for want of delivery of possession and on various other grounds. Another suit for correction of the gift-deed executed by Mst. Ghulam Bi and Mst. Sahib Bi in favour of Muhammad lqbal was also filed by donee, Muhammad Iqbal, in the Court of Sub-Judge badyal on March 18, 1989. Both. The suits were consolidated and many issues arising out of the pleadings of the.Parties were framed. After the conclusion of the trial of the suits, the . Learned trial Judge, dismissed the declaratory suit filed by Muhammad Sarwar and others, however the suit filed by Muhammad lqbal for correction of gift- deed was decreed. The two appeals filed by the appellants against the judgment and decree of the trial Court were dismissed by the learned District Judge, Mirpur. Subsequently both the appeals taken to the High Court were also. Dismissed vide the order impugned, which is the subject _ of present appeal.
3. Kh. A.I Muhammad, the learned counsel, arguing the case on behalf of appellants, submitted with vehemence that the gift-deed executed by Mst.. Ghulam Bi and Mst. Sahib Bi in favour of Muhammad Iqbal, respondent, was invalid as the same was not coupled with the delivery of possession to the donee. The learned counsel argued that the gift-deed was executed in excess of the share of the donors. According to the learned counsel even the acreage ofKhewat from which the gift was executed was shown less than the actual one and in 'some of survey numbers the land was shown more whereas in fact it was less. The learned counsel. Also emphasised that the consolidated trial of both the suits was illegal as -the cause of action in both the suits was different.
The learned counsel pointed out that the suit filed for declaration had nothing to do with the suit filed for correction of entries in the gift-deed.
4. Raja Muhammad Siddique Khan, the learned counsel representing the respondents, in reply argued that the copy of petition for leave to appeal supplied to him under the Supreme Court Rules was not the same as was filed in the Court. The learned counsel submitted that the copy of the petition supplied to him substantially varied than the one filed in the Court and on this sole ground the appeal merited dismissal. The learned counsel strenuously contended that the impugned judgment recorded by the High Court was perfectly valid warranting no interference by this Court.
The learned counsel submitted that the delivery of actual possession in all the cases of gift was not a condition precedent. The requirement of law, according to the learned counsel, was that in case of a gift from joint holding the donor should do all that which was within his power and express his intention to depart from the subject of gift and from the ownership of the gifted property. The learned counsel also pressed into service the submission that the consolidated trial of both the suits has not in any way prejudiced the interests of appellants and as such their contention was unfounded and devoid of any legal force.
5.We have given our due consideration to the arguments advanced at Bar and perused the relevant record. On the basis of evidence brought on record by the parties both the Courts below and the High Court reached the conclusion that the disputed gift-deed was executed within the share of the donors and the plaintiff-appellants failed to substantiate their claim with regard to the execution of .Gift-deed in excess of the share of the vendors. The concurrent finding recorded by the trial Court on question of fact and the first Appellate Court A could not have been assailed in second appeal before High Court and the High Court very rightly .Observed that unless some material defect, such as non-t reading of evidence, misreading of evidence or travesty of the finding is established a finding of fact could not have been allowed to be discharged. Even erroneous finding of fact, however, inexcusable it may be, cannot be disturbed IA in second appeal unless there is some defect in the procedure causing error in the decision of case on merits. Thus we uphold the finding recorded by both the Courts below and the High Court that the gift-deed executed by donors was not beyond their shares.
6. The next point to be determined is as to whether a gift-deed not coupled with the delivery of possession of corpus to the donee is invalid in the eye of law? As a general principle it may be stated that if a donor is himself in actual physical possession of the corpus, the delivery of possession would normally require actually putting up the donee in physical possession of the same but there may well be cases where the possession is not with the donor himself or where the donee is already in possession jointly or severally with the donor or where the donee is a minor and the donor is a minor's guardian it would not be a 8 condition precedent for compldipn of a valid gift under the Muhammadan Law to put donee in actual physical possession of the gifted property. In the instant case the gifted land was undivided share of the donors so it was not necessary requirement to deliver the physical possession to the donee. In such-like cases the necessat~ requirement is only that donor should do all that for parting with the ownership of the gifted land whatever was within his control and he should divest himself of the ownership and his dominion over the property when the gift will be completed and valid.
7. Our aforesaid view finds support from the case reported as Fazal Hussain v. Mst. Walayat Jan and others (1996 CLC 1525). In the case reported as Muhammad Bashir and others v. Muhammad Yaqub and others (1993 CLC 1084), the precise facts were that one Mst. Bago executed aeed in favour of her son Gulla, of land measuring 13 Kanals 2 Marlas, out of which 7 Kanals 4arlas was transferred to Muhammad Yaqub and A.I Zaman Khan through registered sale-deed. Aaf Dn plaintiff, therein, filed a suit praying that gift--deed in favour of Gulla and subsequent ale-deed in favour of Muhammadaqub and A.I Zaman be declared as null and void on theound thatgift-deed executed by Mst. Bago in favour of Gulla, her son, was not followed by ivery of possession and the same being out of undivided property (Musha) was void and of no legal consequence dealing with the proposition it was observed by this Court at page 167 in the following manner:- "First coming to the question as to whether the gift-deed executed by Mst. Bago in favouated thattis well--settled principle of law that the objection regarding non-delivery ofossession can only be raised either by the donor or his heirs and not by a third person. There is no dispute in the instant case that the plaintiff, Alaf Din or for that matter his legal representatives are not legal heirs F T b bbaby gift-deed in question could not be challenged."
1980 CLC 1110 SC (AJK)), it was observed that gift cannot be held as invalid for non-delivery of possession and that the constructive possession, as corpus is susceptible, accompanied by the acts of the donor showing that he parted with the ownership of the property would suffice for the delivery of the gift.
8.From the survey of case-law it is evident that the plea of delivery of possession is not a condition precedent for the validity of a gift in all the cases and condition is subject to all just exceptions. If in a given case the possession is not with the donor at the relevant time but heakes his intention clear to divest himself of the ownership of the property by doing all that he could do, the validity of gift is not open to challenge on the basis of non-delivery of possession. Moreover the validity of gift-deed could have been challenged only by the donor or any of his heirs claiming through him. The donors after executing the gift in favour of donee in the instant case got the mutation of C gifted land sanctioned in favour of donee and thus they made their intention clear to depart from their dominion over the property and they never objected to the same. It is admitted between the parties that the land in dispute is a joint holding which is not yet partitioned by metes and bounds.
Thus a gift out of a joint property is valid without formally delivering the possession to the donee. By now it is settled that it is always a donor or his heir claiming through him who has the locus standi to challenge the gift-deed for want of delivery of possession but any other person who challenges the gift-deed on the basis of non-delivery of possession in exercise of his individual right he has no locus standi to challenge the gift as he challenges the same not through the donor but in spite of and against him. Reference may usefully be made to a case reported l as Safi Ullah v. Ghulam Jabbar (PLD 1955 Lah. 191).
9. As regards the objection relating to the consolidation of both the suits, it may be stated that the consolidation of the other suit filed by Muhammad Iqbal, donee, for correction of entries alongwith the declaratory suit filed by Muhammad Sarwar and others, suffice it to say that the consolidation even if proved to be irregular the same in no way prejudiced or jeopardised the interests of the appellants. The suit for correction of entries in the gift-deed was of a formal nature and the rights of appellants were not adversely affected by the consolidation of the said suit alongwith the other suit.
Section 99 of the Civil Procedure Code may usefully be reproduced:-- "No decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
This section provides that where a party was not caused any prejudice by any decree passed against it, the decree could not be reversed or varied, nor shall the case be remanded on account of misjoinder of parties or causes of action. This provision suggests that if a decision is within the jurisdiction of the Court it should not be upset merely for technical and immaterial defect. After having reached the conclusion that the consolidation of suits have not in any way adversely affected the interests of the appellants therefore the contention raised by the learned counsel for the appellants having no merit in it is hereby repelled.
10. As pointed out in the earlier part of the judgment that Raja Muhammad Siddique Khan, the learned counsel for respondents, raised a preliminary objection that appeal was liable to be dismissed under the Supreme Court Rules because the copy of petition for leave to appeal provided to him substantially varies than the one filed in the Court. Since the appeal is liable to be dismissed on other points. Already disclosed above, we do not feel the necessity of adverting to the aforesaid preliminary objection and we leave it open to be resolved in some other case if and when the occasion for the same arises.
11. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.
M.B.A./214/SC(AJ&K) Appeal' dismissed