1. ' WAJIHUDDIN AHMED, J.---The appellant was the only brother of one Saadullah Khan, who died, on 18-9-1986, leaving behind, as his legal representatives, two daughters, Mst. Mumtaz Begum and Tasleem Begum together with the appellant. Sometime after the demise of the said Saadullah Khan his two daughters applied for mutation of the landed property left behind by the deceased on the basis of a declaration of gift, dated 16-9-1985. Because the mutation was refused, the daughters of Saadullah Khan preferred an appeal, which was allowed by the Collector, Nowshera, per order dated 6-4-1987 against which appellant-Alif Khan going to the Additional Commissioner, the latter confirmed the finding on 29-7-1987. This prompted Alif Khan to file a civil suit in the Court of Senior Civil Judge, Newshera. The essential issue was whether the gift in question was fake and fraudulent. Parties examined their evidence, the plaintiff deposing through son Rab Nawaz and some formal witnesses. Proving the landed properties to have, initially, belonged to Saadulalh Khan. Since deceased. The defendants examined the marginal witnesses to the deed namely, Tila Muhammad and Khan Muhammad together with Zaman Khan, husband of Tasleem Begum and attorney of the defendants as also some tenants of the properties in dispute. It was brought out in evidence that the declaration of gift was inscribed on a stamp paper purchased at Peshawar and was also executed and attested there, that Saadullah Khan was putting up with one of his daughters and that two of the witnesses, cultivating the lands were asked by the deceased to make over the produce to the donees, which was being done by the cultivators during the life-time of the donor. One of the DWscultivators, however, stated that he used to hand over the produce to the deceased in his life-time. Per judgment and decree, dated 12-12-1990 the trial Court dismissed the suit and RFA No,5 of 1992 met the same fate in the High Court on 26-3-1994. Leave to appeal was granted on 30-8-1994 for examining the various contentions raised and for reappraisal of evidence, as huge property was involved in the case.
2. ' Before us it has been argued that the declaration was fabricated because the donor did not get the mutation effected during his life-time, that there was no reason for a man, 80 years of age, to proceed all the way from Nowshera to Peshawar for executing the deed and that no overt act evidencing completion of the transaction was proved.
3. In the first place, it is to be emphasised that civil proceedings are decided upon preponderance of evidence and, unlike in criminal matters, moral certainty of an act having been done is not required to be established therein. The initial burden having been discharged by the defendants, if signature of the donor on the declaration was disputed, the plaintiff was free to prove the donor's admitted signatures and a comparison with the disputed one could be claimed. C The deceased, admittedly, had a bank account and the record pertaining to his signatures, figuring in the bank, could be summoned but that was not done. There was some other material, which also could be summoned by the plaintiff in rebuttal but that need not detain us. As against this, marginal witnesses were examined by the defendants, who acknowledged the execution of the document in their presence, Corresponding material of the gift having, in substance, been acted upon was also placed before the Court. There may have been some weaknesses and even minor contradictions in the defence version but, on principle, such were not enough to displace the factum of the gift. In the circumstances, it could hardly be said that the transaction was fraudulently put up to defeat the rights of inheritance, accruing to the appellant.
4. As to the doubts expressed, in the plaintiff's evidence about the gift actually having been made, such too are far-fetched. Under the precepts of Muslim law the essential ingredients of a valid gift comprise of a declaration by the doner, its acceptance, express or implied, by the donee and corresponding delivery of possession which, in turn, can be either actual or constructive. If possession of the corpus of a gift is, at the time of the declaration, shared between the donor and the donee, the donor is not required to vacate and may continue jointly in possession with the donee, without entailing any adverse repercussions on the factum of the gift. Such principle would apply to the house, jointly in possession, aforementioned. Likewise, where a gift is made by a husband to his wife, the husband can continue to receive the accruing returns on the subject- matter of the gift and yet the required element of delivery of possession would remain unaffected,.
5. Generally, an extension of the same principle to female descendants of the donor cannot but be toward advancement of the intention and desire of the author, and, therefore, in the way of a just and fair treatment of the matter, all the more so, where the donor no longer breathes to, adequately, meet a challenge brought against his duly manifested resolve to dispose of property in the manner, ex facie, appearing. The rule has been extended to gifts to minors by a father but not by a grandfather, if father of the minors be alive: Ghulam Hassan v. Sarfraz Khan PLD 1956 SC (Pak.) 309. Such however, cannot be extended to dispositions during Marz-ul-Maut, per Shamshad Ali Shah v. Hassan Shah, PLD 1964 SC 143 or to strangers, as opined in Ashiq Hussain v. Ashiq Ali, 1972 SCM R 50.
6. It is not disputed that the recipients of the instant gift were the real daughters of the deceased and that he had no male issue. A Muslim is left free by law to dispose of his property, in his lifetime, the way he deems fit and it is open to none of the presumptive heirs to question either his motive or conduct, except to the extent the same militate against the alienation by way of gift itself.
7. ' In circumstances, where the deceased was shown, desirous to make over his landed property to his daughters, in preference to a surviving brother, who himself could have been of quite an age and well provided for, such a disposition, qualifying upon natural and standard human inclinations, cannot, routinely, be doubted. Quite understandably therefore it could be with a view to avoid injury to the sensibilities of such a surviving brother and his immediate relatives that the deceased chose to effect the transaction in the city of Peshawar rather than, nearer home, at Nowshera. His motives, thus, cannot cursorily, be overlooked. He seems to have done all that he could by recording the declaration in writing and travelling as far as Peshawar to give vent to his intent. At his age, no more could be expected. Add to this the fact that with a view to make the gift effective, the deceased took care to instruct the tenants to attorn to the donees. If, however, he chose not to get the transfer mutated in the relevant record, he plausibly, could have done so, again, not to injure the sensibilities of his surviving brother, something, which also, he could do without detracting from the factum of the gift, because a follow up mutation, while such may be evidence of the making of a gift, is not a requirement for the effectiveness of the transaction, itself. This, precisely, is the situation in which the disposition is to be viewed.
8. ' Having examined the case in detail we do not see as to how the concurrent findings, recorded at the trial and in appeal, can successfully be questioned in this appeal. For such reasons the appeal is dismissed but parties to bear their own costs.