' Instant civil revision is directed against the judgment and decree, dated 10-10-1994 passed by the learned Additional District Judge Chalcwal, confirming the judgment and decree dated 14-1-1991 passed by the learned Civil Judge 1st Class, Talagang.
2. Briefly stated the case of plaintiffs/respondents Nos.1 to 4 is that Noor Khan deceased (predecessor-in-interest of the parties) was owner of land measuring 118 Kanals and 5 Mules, described fully in the plaint. He gifted the said land in favour of her daughter Mst. Mehr Bharri vide Mutation No,3387, dated 7-12-1941 subject to the condition that she will enjoy its usufruct till her life.
However, later on Mst. Mehr Bharri gifted the said land to Muhammad Khan defendant/petitioner vide Mutation No,12026, dated 18-8-1973. The plaintiffs/ respondents Nos.1 to 4 contend that she being a limited owner could not gift the land to Muhammad Khan defendant/petitioner, as such said mutation is illegal, void and ineffective upon their rights and they are entitled to claim 62 Kanals out of that land. They further alleged that Noor Khan died on 18-12-1980 and mutation of his inheritance has been sanctioned in their favour on 10-2-1981. They requested the defendant/ petitioner to treat said Mutation No,12026, dated 18-8-1973 as illegal, void and hand over the possession of land measuring 62 Kanals to them. As their request was not accepted, hence the instant suit.
3. The defendant/petitioner contested the suit and raised various preliminary objections. He asserted that Mst. Mehr Bharri was competent to gift the suit land in his favour and plaintiffs/respondents Nos.1 to 4 have no locus standi to file this suit. t. From the divergent pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the suit is within time?
(1-A) Whether the suit is not maintainable in its present form? OPP.
(2) Whether the Mutation No,12026 made by defendant No,2 in favour of defendant No,1 is illegal and inoperative on the rights of the plaintiffs? OPP.
(3) Whether the plaintiffs have been estopped to file this suit? OPD.
(4) Whether the suit is bad because of preliminary objection No,3 of the written statement? OPD.
(5) Whether the defendants are entitled to special costs? OPD.
(5-A) Whether the suit abated under Ordinance No, XIII of 1983? OPD.
(6) Relief.
5. In support of their contentions, the plaintiffs/respondents Nos.1 to 4 examined P.W.1 Bashir Ahmad, P.W.2 Ghulam Muhammad and again examined Bashir Ahmad as P.W.3. They also brought on record documents Exhs.P.1 to P.5. In rebuttal, the defendant No,l/petitioner examined D.W.1 Muhammad Khan, D4.2 Allah Yar and D.W.3 Ahmad Khan.
6. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiffs/ respondents Nos.1 to 4 on 10-2-1987. They filed an appeal against the said judgment and decree, which was accepted and suit was remanded to the trial Court on 13-6-1988. The trial Court was directed to record additional evidence. In compliance of said direction, statements of P.W.4 Muhammad Khan and D.W.4 Noor were recorded. The trial Court then decreed the suit vide judgment and decree, dated 14-1-1991 which was upheld by the Appellate Court vide judgment and decree, dated 10-10-1994.
7. Arguments have been heard. Record perused.
8. It is admitted fact that land measuring 118 Kanals, 5 Marlas was gifted by Muhammad Khan deceased in favour of his daughter Mst. Mehr Bharri vide Mutation No,3387, dated 7-12-1941. The dispute relates to the condition attached to said gift. A perusal of said mutation reveals that she was given the said land till her life. The stand of plaintiffs/respondents Nos.1 to 4 is that as Mst. Mehr Bharri was given the suit property till her life, so she being a limited owner, could not further alienate the same vide Mutation No,12026, dated 18-8-1973, That the said mutation being void, the land reverted to Muhammad Khan i,e, donor. That as Muhammad Khan died on 18-12-1980 and they got their share out of his other estate, similarly they are also entitled to claim 62 Kanals out of the suit property.
9. Conversely, the stand of learned counsel for the defendant/petitioner is that alienation by Mst.
Mehr Bharri vide Mutation No,12026, dated 18-8-1973 is perfectly legal, as she was exclusive owner of the suit land. His stand is that alienation of land vide Mutation No,3387, dated 7-12-1941 is legal and the condition attached is void.
10. The only point which requires determination is, if in the given circumstances Mst.-Mehr became an Occlusive owner of property by stetted of mutattim of Gift No,3387, dated 7-12-1%1 or she was a limited owner. There is no doubt that Muslim Law contemplates gift of corpus as well as of usufruct of property. The answer to the question, whether in a given case, gift is of corpus of property or of usufruct of the property, is to be found by ascertaining the intention of the donor from the document of gift or the statement made, if any, or the circumstances surrounding the grant of the property. It is well-established that if the corpus of property is gifted then attaching of any condition derogatory to the gift i,e, transfer of absolute ownership to the donee, is treated as void.
This proposition also finds support from paragraph 164 of Muhammadan Law by Sir D.F. Mullah, which lays down as follows:--
164. Gift with a condition.---When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it."
' Thus, the imposition of condition in Mutation No,3387, dated 7-12-1941 to the effect that Msi. Mehr Bharri was entitled to the usufruct of land till her life is void, and she is a complete owner of suit land. Again the instant case is a case of transfer of corpus of property as she was handed over the possession so the words " or " are to be treated according to the well-established principles of Sharjah to be ineffective and void, as any condition sought to be attached by the donor which is derogatory to the passing of the exclusive ownership in the donee is treated as void. The gift made remains valid and the condition is ignored. Reliance is placed on Abdul Hameed and others v.
Muhammad Mohyuddin Siddique Raja and others (PLD 1997 SC 730), Nawab Amjad Ali Khan v. Mst.
Muhammadee Begum (1867) Mors. IA 517), Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others -(PLD 1991 SC 466), Said Akbar and others v. Mst. Kakai (PLD 1975 SC 377) and Farid (represented by heir) v. Mst. Nur Bibi (PLD 1970 Lahore 502).
11. The upshot of above discussion is that Mst. Mehr Bharri was an exclusive owner of the suit property which she acquired vide Mutation No,3387, dated 7-12-1941 and the condition attached thereto is void. Thus, transfer by her by way of gift Mutation No,12026, dated 18-8-1973 in favour of Muhammad Khan defendant/petitioner is absolutely valid. The conclusion arrived at by the Courts below is based on misreading and non-reading of evidence which justifies interference by this Court. Accordingly, revision petition is accepted and the impugned judgments and decrees are hereby set aside. Consequently, suit filed by the plaintiffs/respondents Nos.1 to 4 fails and stands dismissed.