' The appellants have filed this Second Appeal under the following circumstances:
1. Respondent Shakil Akhtar on 30-5-1993 had filed the Suit No,444 of 1993 before learned Ist Senior Civil Judge, Karachi, Central, for possession, use and occupation charges, and injunction and for the purpose of court-fee and jurisdiction valued it at Rs,1,00,200. His case is that his father namely, Muhammad Ibrahim son of Din Muhammad, was the owner of house, situate at Plot No,3, Row No,5.
Block 3, Sub-Block F, measuring 21 sq. Yards Karachi, hereinafter referred to as said property, and gifted it to him on 23-3-1992 and its possession was delivered to him, which he accepted.
Thereafter, his father executed a registered gift deed on 7-12-1992. On 12-4-1993, Karachi Development Authority (KDA) affected mutation of said property in his favour.
2. Said property consists of three residential rooms and one shop on ground floor, and 5 rooms on first floor. Two rooms on ground floor are in possession of the respondent, while third room is in occupation of the appellant No,1, who is the real brother of the respondent and husband of the appellant No,2.. The shop is in possession of the respondent and was used as a Studio.
' The Ist floor is in possession of other brothers and sisters of the respondent and the appellant No, 1 . The respondent filed the suit for claiming possession of one room on ground floor, which is in possession of the appellant No,1 and for use and occupation charges at Rs,10 per day from the date of the institution of the suit till its possession was handed over to him.
3. The case of the appellants, in brief, is that the appellant No,1 in his capacity as the elder son of his father, who expired on 7-6-1995, has invested money for the improvement of said property from time to time and in lieu thereof, his father had given him a portion of said property, which is still in his possession. The appellants in their written statements have not specifically challenged the validity of the registered gift deed dated 7-12-1992, but maintained that possibly the respondent had obtained signatures of their father with the sole object to deprive the appellant No,1 with his legal shares in said property.
4. From the pleading of the parties, learned Trial Court had settled the following issues:
(1) Whether the suit is maintainable under the law?
(2) Whether the suit is undervalued?
(3) Whether the defendant No,1 is in occupation of suit room as owner?
(4) Whether the plaintiff is entitled to the relief claimed?
(5) What should the decree be?
5. At trial, the respondent examined to himself and to his father Muhammad Ibrahim. The appellant examined to himself.
6. On assessm ent of the evidence brought on record, learned trial Court decided Issues Nos.1 and 4 in affirmative and Issues Nos.2 and 3 in negative. Consequently, the suit was decreed as prayed with cost, as per judgment and decree dated 29-51996.
7. The appellants being dissatisfied with said judgment and decree preferred the Appeal No,15/1996, and the same was dismissed by learned Ist Additional Sessions Judge, Karachi, Central, as per judgment and decree dated 30-9-1996 and 10-10-1996 respectively.
8. Now the appellants have filed this Second Appeal against the judgment of the first Appellate Court.
9. Mr. Arif Khan learned counsel for the respondent has, as a preliminary objection, challenged the maintainability of the appeal. Precisely stated the contention is that the value of the subject- matter being less than Rs,2,50,000, the second appeal is not maintainable by virtue of section 102, C.P.C. In reply, Mr. Kizalbash, learned counsel for the appellants submitted that said property at least is worth rupees sixteen lacs, as such, the appeal is maintainable. Learned trial Court held that subject-matter being only one room of said property, the suit was rightly valued at Rs,1,00,000 and that the appellant had not led any evidence to show otherwise. This finding was maintained by the Ist Appellate Court. During the course of arguments, Mr. Kizalbash frankly conceded that the finding of the trial Court on above point was not challenged before the Ist Appellate Court. In fact, he did not press the above point further. It being so, the preliminary objection is valid and the second appeal is not maintainable.
10. On merits also the appeal cannot succeed. Mr. Kizalbash has urged only two legal grounds.
Firstly, he argued that the entire case of the respondent rests upon the alleged oral gift dated 23- 3-1992, and since donor Muhammad Ibrahim in his evidence recorded on 30-2-1995 stated that "he had not gifted suit property in favour of plaintiff (respondent) orally in the year 1992 but had gifted in writing in the year 1993", as such, the subsequent registered gift deed loses. All its credibility and create doubts about the authenticity of said gift deed. Secondly, he contended that, in any case, the possession was not delivered to the respondent and the gift under Muhammadan Law without possession was void. In support of these contentions, he cited two cases from Indian Jurisdiction (1) Fakir Nynar Muhammad Rowther and another v. Kandaswamy Kulatau Vandan and others The Indian Law Reports Vol., XXXV page 120 and (2) Musammat Bibi Bilkis v. Sheikh Wahid Ali The Indian Law Reports, Vol. VII, page 118.
11. In the case of Fakir Nynar Muhammad Rowther, it was held that to make a valid gift under Muhammadan Law the donee should be put in possession. In case of Mst. Bibi Bilkis, it was observed that where the donor administered and remained in joint possession of the property gifted with the donee until his death, the gift was not perfected by a proper transfer of possession and was invalid.
12. As regards, the first contention, it is rated that the donor Muhammad Ibrahim in his deposition before the Trial Court clearly stated that he had gifted in writing said property in favour of the respondent, and that he had gone to the Office of Sub-Registrar, where he signed the gift deed. It is noted that five real sisters of appellant No,1 and the respondent had signed the gift deed before the Registrar as witnesses. The donor was the father of the three sons and five daughters and all of them except appellant No,1 were satisfied and accepted said gift deed. Its validity was not challenged and no question was put up to the donor, when he was cross-examined. Mere fact that the donor stated that he had not gifted the said property orally but gifted it through Registered Deed, does not ipso facto make it invalid.
13. Under Muhammadan Law, an owner of the property may, in his lifetime, dispose it wholly or partially if he carries into effect certain forms, which in this case seems to have been done properly. There are three essential ingredients of a gift under Muhammadan Law namely (1) a declaration of gift by the donor (2) an acceptance of the gift express or implied by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. All above was done uprightly. The case-law cited by the learned counsel for the appellant is not applicable to the instant case and the contention has no force.
14. The second contention is regarding possession. It is true that it is one of the essential of a valid gift that the donor must divest himself of his possession to complete the gift. The registered gift deed specifically mentions that the donee had accepted the said property as a gift from the donor and that the donor had handed over physical possession of said entire property to the donee and that the donor also handed over all the relevant documents, papers, and receipts pertaining to said property to the donee, and the donee having accepted said gift had taken over its physical possession along with all the documents, Lease Deed, Papers, Receipts etc. The donor had done whatever possibly he could do to complete the gift and nothing was left to be done further. The gift was complete in all respect. Taking of possession of the subject-matter of the gift by the donee can either be actual or constructive. In the instant case, constructive possession was handed over to the donee. There is no force in this contention also.
15. In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to costs.