1. ' Shop on Commercial Plot No,614 (ST-4), Sector 37-K, measuring about 11.66 sq. Yds., situated inside Babar Market, Landhi Township, Karachi (hereinafter referred to as the suit shop), was allotted to one Saleem Baboo son of Karimuddin and was purchased by Syed Luqman Ali, the predecessor- in-interest of plaintiffs and defendants Nos.1 to 4 under sale agreement, dated 28th September, 1986. Before the transfer of the shop in his favour, said Syed Luqman Ali died, after his death, the plaintiffs, and defendants Nos. 1 to 4 became co-owners and co-sharers in the suit shop alongwith their mother Mst. Tahira Khatoon by inheritance. The suit shop was transferred directly in the name of Mst. Tahira Khatoon on the basis of fresh documents and lease was executed in her favour on 28-7-1992 as a mark of respect being mother of the plaintiffs and defendant, though she had no independent source of income. The suit property was and is in occupation of one Imran Ahmed, the defendant No,5 under his tenancy at monthly rent of Rs,2,000 and he was paying rent to Mst.
2. Tahira Khatoon till her death. Said Mst. Tahira Khatoon was cancer patient and was on bed and was unable to walk or move without assistance till her death. On 25-12-1998 plaintiffs came to know on the death of Mst. Tahira Khatoon that defendant No,1 in collusion and connivance of defendants Nos.2 and 3 with the help of their respective husbands with mala fide intention and ulterior motives got the suit shop transferred by virtue of registered declaration and confirmation of oral gift on 21st November, 1998 and got the suit shop mutated in his name on 22-12-1998 only to usurp the suit property and deprived the plaintiffs of their rights, titles, share and interest in the suit property despite defendant No,1 's positive knowledge that suit property is jointly owned by plaintiff and other legal heirs of Syed Luqman Ali and Mst. Tahira Khatoon was only an ostensible owner. It was also the case of the plaintiff that the said shop is in possession of the tenant and transfer by gift is invalid and void without transfer of possession and maintained that the registered declaration and confirmation and mutation are illegal. Plaintiffs after serving legal notice to defendant No,1 to withdraw the claim of his ownership and to arrange cancellation of the declaration and confirmation and mutation, filed the suit with following prayer:-- "(1) Declaration that the plaintiffs and their brother/sisters defendants Nos.1 to 4 alongwith their mother by inheritance from Late Syed Luqman Ali were/are real owners and each co-owner/ co- sharer and Mst. Tahira Khatoon was only an ostensible owner of immovable property bearing Shop No,614 (ST-4, Sector 37-K, measuring 11.66 sq. Yds., situated inside Babar Market, Landhi Township, Karachi.
(2) Declaration that the ownership/title of the suit property bearing Shop No,614 (ST-4), Sector 37-K, measuring 11.66 sq. Yds., situated inside Babar Market, Landhi Township, Karachi in the name of Mst.
3. Tahira Khatoon be cancelled and its ownership/ title substituted/ mutated in the names of all above co-owners in the documents/records of the defendant No,6 and other authorities concerned.
(3) Declaration that documents of declaration and confirmation of oral gift, dated 22-12-1998 and mutation order, dated 22-12-1998 are invalid, ab initio, null and void and of no legal effect and not binding on the plaintiffs and be delivered up, and cancelled.
(4) Mandatory injunction ordering and directing the defendant No,6 to substitute/ mutate the property bearing Shop No,614 (ST-4), Sector 37-L 11.66 sq. Yds., situated inside Babar Market. Landhi Township, Karachi in its documents/ records on the names of all the co-owners/ co-sharers, deleting the name of Mst. Tahira Khatoon and defendant No,1 in property bearing Shop No,614 (ST- 4), Sector 37-K, measuring 11.66 sq. Yds., situated inside Babar Market, Landhi Township, Karachi and regularize ownership rights and title of the co-owners in its records.
(5) Declaration and direction that the defendant No,5 is tenant of the plaintiff and defendants Nos.1 to 4 in the suit property and liable to pay the monthly rent of Rs,2,000 regularly to the plaintiffs or deposit in Court every month by the 10th of each calendar month w,e,f, the month of February, 1999 and onwards till he is evicted therefrom in due course of law.
(6) Permanent injunction restraining the defendant No,1 from claiming any absolute and exclusive ownership rights and exercising such rights directly and indirectly in any manner whatsoever in property bearing Shop No, 614 (ST-4), Sector 37-K, measuring 11.66 sq. Yds., situated inside Babar Market, Landhi Township, Karachi and further restraining the defendant No,1 from transferring, alienating, selling, disposing, mortgaging, encumbering, let or lease of the suit property or part thereof to any person and from parting possession of the suit property or part thereof to any person other than the plaintiffs directly or indirectly in any manner whatsoever.
(7) Costs of the suit be borne by the defendants.
(8) Any other relief or reliefs this honourable Court deems fit and proper in the circumstances of the case,"
4. ' The defendants Nos.1 to 4 filed joint written statement, wherein they have admitted the lease in favour of Mst. Tahiti Khatoon, who was absolute and exclusive owner of the shop and denied that she was Benamidar. They have admitted the illness of Mst. Tahira Khatoon. They also admitted that during her illness, defendant No,1 served her, which was main factor for gift of the suit shop in favour of defendant No, 1 The defendant No,5 has not contested the suit but in counter-affidavit to the application under section 39, Rules 1 and 2, C.P.C.. He claimed to be tenant of the suit property and has shown his readiness and willingness to deposit the monthly rent w,e,f, February, 1999 and he is depositing the rent. Defendant No,6 KDA maintained that the mutation was effected on the basis of gift in favour of defendant No,1. Only one issue was framed, which was re-casted as follows, at the time of arguments:--
(1) Whether the gift is valid under the law ?
(2) What should the decree be ?
5. ' ISSUE NO.1: ' The plaintiff examined himself and one Saleem Baboo, whereas, defendant examined himself.
6. Both parties have produced documents.
7. ' I have heard the learned counsel for the parties. The counsel for the plaintiff has confined his arguments to the validity of the gift for want of transfer of possession. According to para. 138 of Mulla's Principles of Mahomedan Law, edited in Pakistan by Dr. M.A. Mannan (Pakistan Edition) three essentials to the validity of a girt, have been enumerated, which are (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. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, "the taking of possession of the subject- matter of the gift by the donee, either actually or constructively", is necessary to complete a gift.
8. ' (Paragraph 139 of the Mohamedan Law by Mulla) A recital in the deed regarding handing over of the possession to the donee is not conclusive one. Even the registration of a declaration of gift does not cure the want of delivery of possession.
9. The delivery of possession to the donee is a condition precedent to the validity of the gift, under Mahomedan Law, to use the language of Hedaya in Vol. III, Second Edition, page 482: "The Prophet (p.b.u.h.) has said, "A gift is not valid without seizin."
10. ' It is further stated at page 482 of the same book as follows:-- "Tender and acceptance are necessary, because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seizin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract without seizin."
11. ' The question is whether the donor, Mst. Tahira Khatoon made over possession of the gifted property to the donee. It is admitted fact that the gifted shop is in possession of tenant, defendant No,5, Elan Ahmed, where the gifted property is in the occupation of the tenant, the transfer of the possession may be completed by the donor by asking the tenant to attorney to the donee.
12. ' In the instant case, the declaration of gift deed (Exh.P.6), dated 21-11-1998, contains a recital regarding putting the donee in physical possession of property gifted, which was in possession of the tenant. In case of Ghulam Hasan and others v. Sarfraz Khan and others (PLD 1956 SC 309), the apex Court while dealing with a similar question, made the following observations:--- "We do not think that the argument that a mere recital (in the deed of gift) is conclusive evidence of the delivery of possession in the present case, is tenable."
13. ' The counsel for the defendants contended that the defendant No,1 has received the rent from the tenant which amounts to atonement of the tenant to the donee and which amounts to handing over of possession by the donor.
14. ' The counsel for the plaintiff has contended that the possession was never handed over by the donor till she died and he referred Exh.D.7, Agreement (Iqrarnama), dated 10-12-1998 (an admitted document), executed between the tenant and Mst. Tahira Khatoon, the donor, whereby the tenant on 18-12-1998 had agreed to vacate the shop and to hand over the possession on 22-2-1999, whereas, the declaration of gift was registered on 21-11-1998 much before the agreement. The learned counsel for the plaintiff contended that if the defendant was attorney by the tenant as a landlord the subsequent agreement, dated 10-12-1998 negates the contentions as till the said date viz., 10-12-1998, Mst. Tahira Khatoon asserted her ownership over the property and dealt with, as such, by entering into an agreement with tenant for vacation of the shop in the month of February, 1999.
15. ' The learned counsel for the defendant contended that the declaration of gift was registered after due inquiry, as such the gift is complete in all respect and cannot be challenged.
16. In my view, the registration of the gift deed will not cure the want of delivery of possession, a defect in the gift itself. Two receipts Exhs.D.8 and D.9 counter files of the receipts, cannot prove the delivery of possession as there is no evidence on record from the sides of the defendants that Mst. Tahira Khatoon, the donor had ever asked the tenant to attorney the defendant as a landlord in respect of the gifted property.
17. ' It has also been contended by the learned counsel for the plaintiff that if donor dies before handing over of the possession gifted property, the gift would be void and the property so gifted falls back into the succession. This contention is based on the view expressed in Baillie's Digest of Muhammadan Law under Chapter of Gift, the learned author at page 204 has further laid down that:-- "If the donor should die after the contract and before possession has been taken of the gift it falls back into his inheritance."
18. ' In the present case, Mst. Tahira Khatoon was admittedly ill as admitted by the parties and was suffering from cancer. She died on 25-12-1998. The defendant No,5 was in possession of the suit shop and he executed an agreement with donor Mst. Tahira Khatoon as owner of the shop agreed for vacation of the shop by tenant by 22-2-1999. In absence of any evidence on record to suggest that Mst. Tahira Khatoon had ever intimated the defendant No,5 (the tenant) to attorney the donee (defendant No,1) as a landlord and he be paid the rent to constitute the possession in favour of the donee. As mentioned earlier, the three gradients to constitute a valid gift are the tender, acceptance with seizin in or taking possession.
19. In the present case, the delivery of possession to the donee, a condition precedent of a validity of gift is missing. In absence of any attornment of the tenant to the defendant No,1, therefore, I am constraint to record the finding that the gift is not valid and the declaration of gift being void for want of delivery of possession cannot convey the title.
20. ' I am fortified in my view, from the view taken by the apex Court in Shamshad Ali Shah and others v. Syed Hassan Shah and others (PLD 1964 SC 143), wherein following observations were made:-- "The legal requirement is that there should be delivery of possession by the donor. Taking of possession by the donee without the permission of the donor is of no effect. According to the Hedaya, 'If the donee takes possession of the gift in the meeting of the contract of gift without the order of the giver, it is lawful upon a favorable construction. If on the contrary, he should take possession of the gift after the breaking-up of the meeting, it is not lawful unless he have had the consent of the giver so to do.' (P.114 to Amir Ali, Vol.1). Similarly in Raillie's Imameea it is said (p.204) that permission of the donor a condition of valid seizin'. It is also stated in Baillie's Imameea (p.204) that if the donor should die after the contract, and before possession has been taken of the gift, it falls back into his inheritance."
21. Learned counsel for the plaintiff also argued that the gift is also hit by the doctrine applicable to Marzul Maut gift. In my view, in absence of any plea, same cannot be considered. The Court can't consider the following fact with reference to the doctrine applicable to Marzul Maut gift:--
(1) Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death?
(2) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to engender in him the apprehension of death?
(3) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations a circumstance which might create in the mind of sufferer an apprehension of death?
(4) Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady?
22. ' In short the Court has to see whether the gift in question was made under the pressure of the sense of the imminence of death. As observed earlier neither the plea was taken nor doctor was examined. In absence of a specific plea, the same cannot be raised.
23. ' ISSUE NO.2: ' In view of the discussions on Issue No,1, the suit of the plaintiff is decreed in terms of prayer made in clauses Nos.(3), (4) and (6) of prayer clause, however, with no order as to costs.