' The appellant in this appeal, calls iu question the judgment and decree of the learned District Judge, Sialkot, dated 16-2-1965 by which be affirmed the decree of the trial Court dated 12-12-1963 passed in a suit by Kaka respondent.
2. The facts, relevant to the disposal of this appeal, briefly stated, are that the land as described in para. 1 of the plaint and hereinafter referred to as the suit land, admittedly, belonged to Kaka respondent, who by a gift deed, dated 10-3-1959 alienated the same in favour of the appellant. The donee obtained possession under the gift. On 11th May 1962 respondent filed a suit for a declaration to the effect that he had not transferred any right to the appellant by way of gift in the suit land and if there was any gift deed in the possession of the appellant, the same was obtained by fraud and in the alternative, it was pleaded, that he had revoked the gift. The appellant resisted the suit contending Inter alla that the respondent had, under a valid gift, transferred the disputed land to him and had also delivered possession. On these pleadings, the following issues were framed
(1) Whether the gift deed dated 10.3-1959 was got executed by the defendant on the pretext of writing a pasta in his favour and the plait tiff executed the gift under that belief. If so, what is its affeoi ?
(2) Whether the possession of the land covered by the gift was not transferred to the defendant and what is its effect?
(3) Whether the gift has been lawfully revoked by the plaintiff? (3-A) Whether the suit is barred by time.
3. The trial Court by its judgment dated 13.4-1963 decided issues 1 to 3 against the respondent and on issue No, 3-A, the finding was against the defendant appellant. The suit was, accordingly, dismissed on an appeal by the respondent, the learned District Judge, affirmed the findings of the trial Court, on issues 1 and 2, but remanded the case to reconsider the plea of revocation of the gift.
As the appellant, in the mean time had sold the disputed land to one Rehmat Khan, he was permitted to amend his written statement so as to raise the plea that on account of alienation by the donee, the gift could not be revoked. The respondent-plaintiff could file replication to controvert the plea sought to be raised by amending the written statement.
' Trial Court, in view of the objection raised by the appellant in his written statement filed on 19- 7.1962 as to the maintainability of a simple suit for a declaration and without a prayer for possession, was also, directed to frame an additional issue.
4. The respondent with a view to forestall the objection as to the maintainability of the suit applied for an amendment in the plaint so as to include a prayer for possession. However as the appellant in his reply to this application took up the position that the possession of land had been delivered to Rehmat Khan under a sale, the respondent did not consider necessary to amend the plaint and accordingly, withdrew the application.
5. The appellant in his amended written statement raised the plea that he had been in possession of the disputed land on the basis of the gift, but had, later, sold it to Rehmat Khan for a consideration of Rs, 2,000 and had delivered possession to him. He contended further that a mutation of sale had also been sanctioned in favour of the vendee and the suit, therefore, as framed, was not maintainable. The respondent in the replication controverted the new plea of the appellant, denying the sale and alleged that the sale and also the mutation were fictitious and, in the alternative, if the same was proved, it would be ineffective having been made during the pendency of the suit. During the post-remand proceeding the following were, therefore, the issues t-
(1) Whether the suit is maintainable in the present form?
(2) Whether the defendant has transferred the suit land to Rehmat during the pendency of the suit.
If so, to what effect?
(3) If the transfer is proved under issue No, 2 whether the plaintiff can revoke the gift?
6. The learned trial Judge by his judgment dated 12-12-1963 re-affirmed his findings on issues Nos.
1, 2 and 3-A as framed before remand, holding that there was a valid gift ; that possession has passed to the donee under the gift and that the suit was within limitation. On post-remand issue No, 2, he found that there had been no alienation by the appellant in favour of Rehmat Khan and, therefore, the gift bad been rightly revoked. As to the maintainability of the suit, as questioned in post-remand issue No, 1, the learned Judge was of the view that the appellant having admitted to have delivered possession to Rehmat Khan, a simple suit for declaration was competent.
7. The learned District Judge on an appeal by the defendant, reversed the finding of the trial Court on post-remand issue No, 2 and held that the appellant had transferred the suit land to Rehmat Khan during the pendency of the suit. This transfer, according to him, however, having been made during the pendency of the suit would be subject to the result of the suit. The learned Judge, though without expressly referring, it seems, invoked the doctrine of Lis Pendens as contained in section 52 of the Transfer of Property Act. He, accordingly, concurred with the view of the learned trial Court that the gift had been, validly revoked. The findings of the learned trial Court on the question of limitation and as to the maintainability of the suit were also, affirmed. The decree and judgment of the trial Court was thus upheld.
' The appellant in this appeal, as noticed above, assails the judgments and decrees of the two Courts below.
8. The learned Advocate appearing for the appellant has raised the following points t-
(I) The two Courts below having held that there was a valid gift and possession bad passed to the appellant, have erred in holding that the same has been revoked. The learned District Judge has also gone wrong to apply the doctrine of lies pendens as contained in section 52 of Transfer of Property Act ; a donor, under Rules of Muslim Law cannot revoke a gift, if the donee had transferred the subject-matter of the gift to a third person.
(ii) Suit as framed was not maintainable as the plaintiff-respondent being out of possession should have prayed for possession by way of further relief. Under-------the proviso to section 42 of the Specific Relief Act, 1877 a simple suit for declaration of t ale was not competent. The frame of the suit should have been judged with reference to the position obtaining at the time of the institution of the suit and events subsequent to the institution of the suit could not be taken into consideration.
(iii) It having been found that the possession of the suit land was delivered to the appellant under a valid gift, the view of the trial Court, that Article 120 of the Schedule to the Limitation Act would govern the case, is wrong. Similarly the view of the learned First Appellate Court that according to the rule of Muslim Laws no time limit has been prescribed within which a gift could be revoked and the suit having been filed immediately after the revocation of the gift, the same was in time, is not correct. According to the learned counsel, Article 91 is applicable and the suit, therefore, was barred by limitation.
9. The learned Advocate appearing for the respondent has, however, argued that the gift had been rightly revoked. The revocation according to him would take effect from the moment a declaration revoking the gift was made. He referred to the plaint as originally instituted on 11.5-1962 which contained a statement that the gift had been revoked 3/4 months before the institution of the suit.
Alienation in favour of Rehmat Khan made during the pendency of the suit would not be of any avail to the appellant. In any case, according to learned counsel, the doctrine of Ifs pendens would apply even to gifts, made under Muslim Laws.
' As to the objection regarding maintainability of the suit the learned counsel argued that the suit as framed was one for cancellation of the gift deed and under section 39 of the Specific Relief Act.
According to him, it was not a suit for declaration of title as envisaged under section 42 of the Act, and, therefore, proviso to this section has no application. Even if it was a case under section 42, the admitted position being that possession had been transferred to Rehmat Khan, the suit, as framed, was maintainable. Subsequent events, according to the learned counsel could be taken into consideration. On the question of limitation, the learned counsel contended that the view taken by the two Courts below was correct. According to him, in any case Article 120 would apply and the suit therefore, was in time.
10. The important question which will determine the fate of this appeal is in regard to the revocation of the gift. That plaintiff-respondent in the plaint has unequivocally stated that he had revoked the gift immediately after it became known that the appellant was relying on some gift made in his favour. The suit was instituted on 11-5-1962. The gift, therefore, according to the assertion in the plaint, was revoked in or about January 1962. Sale in favour of Rehmat Khan, was effected by Mutation No, 1554 (Exh. RD-2). This mutation was sanctioned on 16-2-1963. The suit in the first instance was dismissed on 13-4-1963. The sale therefore, in favour of Rehmat Khan was admittedly after the alleged revocation and during the pendency of the suit. It shall have to be seen if there was a proper revocation of the gift ; or if the gift could at all be revoked after transfer of the property by the donee to a third person and finally if the doctrine of lis pendens applies to gifts made under Muslim Law.
11. A donor can revoke a gift at any time before delivery of possession. However, when once possession is delivered a gift cannot be revoked by a mere declaration and the decree of the Court is required to nullify the gift. If the donee transfers the subject of the gift to a third person before the revocation takes effect under a decree of the Court, no power, whatsoever, is left with the donor to revoke it. In support of the proposition, I have been referred to the views of the Muslim Jurists and epitome of judicial pronouncements as digested in the recent work on Muslim Law. In the 15th Edition of the principles of Muhammadan Law by D. P. Mulla the proposition has thus been summarised in section 167 at page 146 : "167. Revocation of gifts.-(1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no complete gift at all.
(2) Subject to the provisions of subsection (4), a gift way be revoked even after delivery of possession except in the following cases-
(a) ...
(b) ...
(c)
(d) when the thing given has passed out of the donee's possession by sale (h), gift or otherwise ; (e)
(f)
(g)
(h)
3
(4) Once possession is delivered, nothing short of a decree of the Court is client to revoke the gift.
Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift."
' In Chapter IV at page 533 of 1965 Edition Neil B. E. Baillie has observed thus :- "The revocation of a gift is abominable under any circumstances j but it is valid nevertheless. Gifts are of several kinds, some being to relations within the prohibited degrees, some to strangers, some to relatives who are not within the prohibited degrees, and some to persons who are prohibited but not relatives. All may be revoked before delivery to the donee, whether he were present or absent at the time of the gift, and whether he were permitted to take possession or not.
But after delivery, the donor has no right of revocation when the gift is to a relation within the prohibited degrees. With regard to all others besides these he has the right of revocation, except that after delivery he cannot revoke of himself, and the revocation requires the decree of a judge or the consent of the donee. Previous to delivery, however, the donee can revoke the gift of himself, either in whole or in part."
' In Muhammadan Law by Syed Amir Ali, Fifth Edition (by Raja Said Akbar Khan) at page 151, the views of Imam Abu Yusuf and also the opinion of Imam Abu Hanifa and Imam Muhammad had been quoted thus- "151. Abu Yusuf is reported to have held that, until an order has been passed by a Judge for cancelling a gift, the donee may use and dispose of the subject of it ; but any such use or disposal, after the Judge has made his order, is unlawful ; and the opinions of Abu Hanifa and Muhammad are to the same effect.
152. A gift is not revocable under the following circumstances
(a) When the subject-matter of the gift has passed out of the possession of the donee by gift, sale, or any other form of alienation by which the right of property is transfered."
' I have had the occasion of going through the Institute of Mussalman Law A Treatise on Personal Law According to the Hanafite School published in 1907. The Author in the notes to the Article has also referred to the original text. The preposition raised in the case is dealt with in Articles 462 and
453. It provides :- "462. How revocation Is effected.----A gift is rescinded either by a mutual agreement between the parties concerned, or by the judge. If the donor seizes the thing given without either a decree or the donee's consent, he is answerable to the donee for any loss occasioned by his own act, accident or use.
' After the donor has obtained an order for revocation from the judge and has given notice thereof to the donee, the latter becomes liable for any loss occasioned to the gift while it is in his possession. Notes ' Kurat-ul-Ayoon, Vol. 2, p. 355 j Fatawa-i-Alamglri, Vol. 5, pp. 235, 23& ' Hamilton's Hedaya, Vol. 3, Bk. 33, Chap. 2, p. 487 ; Zaidu-nil-Ambani, Vol., 2, p. 265".
"453. Right of revocation is also forfeited if the donee has disposed of the gift. The right of revocation is also forfeited when the donee has definitely disposed of the gift 1 but it continues to exist when no definite disposal has taken place. Where the donee has sold a part of the property constituting the gift, the donor can revoke the remainder. Notes ' Radd-il-Muhtar, Vol. 4, p. 566 1 Fatawa-i-Alamgiri, Vol. 5, pp. 235, 2401 Bahrr-ul-Rayek, Vol. 7, p. '320 1 Kurrat-ul-'Ayoon, Vol, 2, pp. 340, 354.
Hamilton's Hedayah, Vol. 3, Bk. 30, Chap. 2, p. 486 ; Zaidu-nil-Ambani, Vol. 2, p.
258."
' I have, therefore, no hesitation in accepting the proposition enunciated above. In the instant case, as has been noticed above the gift had never been revoked under the decree of a Court before 16.2-1963 when mutation of sale was sanctioned in favour of Rehmat Khan. The Court for the first time granted a decree accepting the revocation of gift on 12-12-1961 After 16-2-1963, the gift could not be revoked even under the decree of the Court. It therefore, follows that the decree of the trial Judge dated 12-12-1963 accepting the revocation of gift was of no legal consequence to the donor,
12. Doctrine of Lis pendens also, has no application to gifts under Muslim Law. The rule is contained in section 52 of the Transfer of Property Act, which falls in the second Chapter of the Act. Clause 'd' of section 2 of the Act, however, rovides ". . And nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan Law". It is clear, therefore, that if there is rule of Muhammadan Law on the point, then the principles embodied in section 52 of the Transfer of Property Act, cannot be invoked. The rules of Muslim in regard to the revocation of gift, as have been noticed above, run counter to the principles embodied in section 52 of the Transfer of Property Act. The appellant, therefore, was competent to alienate the suit land in favour of Rehmat Khan during the pendency of the suit. The view taken by the learned 1st Appellate Court, therefore, cannot be sustained. I reverse the findings of the two Courts below on post-remand issue No,
3. I am supported in the view I have taken by a judgment of this Court in the case of Ghulam Qadir and others v. Ghulam Hussain (1).
13. Now turning to the question of limitation and the maintainability of the suit, it shall have to be remembered that both the Courts below have given a concurrent finding that there was a valid gift in favour of the appellant and that possession had also passed under the gift. In view of this finding the bare statement of the plaintiff-respondent that he became aware of the gift a few days before the institution of the suit cannot be accepted. He was aware of the existence of the instrument from the date of its execution. He had to have it set aside as a preliminary to his taking possession of the suit land. Article 91 of the Schedule to the Limitation Act would be attracted. A suit to have the document set aside could be instituted within a period of three years from the time the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him. The article however, does not apply if the document is void ab initio. The gift deed was executed on 10- 3-59, the suit having been filed on 11-5.62 was beyond a period of three years and was, therefore, barred by limitation. ##TE# The finding of the learned
(1) PLD 1965 Lab. 200 trial Court on the issue of limitation is also, reversed. The view of the learned First Appellate Court in the light of my decision on the question of the revocation, cannot be sustained. The Supreme Court have expounded the proposition in Shamshad All Shah and others v. Syed Hassan Shah and others (1). A judgment of the Privy Council "Ramchandra Jlvajl Kanago and another v. Laxman Shrinivas Nalk and another" (2), was also noticed with approval in this judgment. At page 153, their Lordships have observed thus :- "Lastly Mr. Said Akbar contended that the plaintiffs' suit was barred by limitation. According to him the suit in fact was for cancellation of the deed of gift and as such Article 91 of the Limitation Act was applicable to this case. A similar question arose in the case of Ramchandra Jlvaji Kanago and another v. Laxman Shrinavas Naik and another AIR 1945 P C 54 and the Privy Council observed: ' Having regard to the findings of the High Court which their Lordships find no reason to reject, the main question for determination before the Board as stated already, is whether the suit is barred by Article 91, Limitation Act. If the deed of gift is a void transaction no question of cancelling, or setting it aside, would arise, but if it is only a voidable transaction, that is, a transaction valid until rescinded, then the necessary to set it aside is obvious before possession of the property can be claimed. No doubt if the deed was merely invalid and not void, it would have been necessary for the plaintiffs to have it set aside as a preliminary to their taking possession of the property, and Article 91 would be attracted to the case'."-[See Pathermal Chatty v. Munfandy Serval AIR 1935 Cal.
55 (P The maintainability of the suit as framed, should not cause, any difficulty if the plaintiff's title is, otherwise, established. The plaintiff can be allowed to amend the plaint so as to include the prayer for possession by way of further relief even at the appellate stage. In Kera nat All and another v.
Muhammad Anus Haji and others (3), the plaintiff was allowed to amend the plaint even in an appeal before the Supreme Court. The contention of appellant that suit should have been dismissed as the prayer for possession by way of further relief was not made, has no force.
' For all that has been stated above, I allow this appeal set aside the judgments and decrees of the Courts below with the result that the suit filed by the respondent stands dismissed.