The petitioners Mst. Raheela and others have assailed the judgment and decree, dated 3-3-1997 of the learned District Judge Peshawar whereby he accepted the appeal of the respondents Nos.1 to 3 and thereby set aside the judgment and decree, dated 19-9-1995 of the learned Senior Civil Judge, Peshawar.
2. Since Civil Revisions Nos.110, 135, 136 of 1997 and Civil Revision No.508 of 1999 arise out of the same judgments rendered in Civil Appeals Nos.128/13 and 129/13 and originate from almost the same set of facts, I propose to dispose them through this single judgment.
3. The facts, stated in brief, are that Syed Muzaffar Shah since dead and now represented by respondents Nos.1 to 3 instituted a suit against Najmal Fatima and others for declaration to the effect that the registered deed bearing No.2879 attested on 23-12-1946 whereby an area measuring 32 Kanals out of the property comprised in Khasra No.545 bearing Khata No.567/472 measuring 62 Kanals, 9 Marlas was gifted by late Chan Badshah to his wife Mst. Najmal Fatima and subsequent mutations in favour of respondents, mentioned in the heading of the plaint are illegal, ineffective and void as against the rights of the plaintiff. Similarly Mst. Najmal Fatima since dead and now represented by her legal heirs, instituted a suit for possession through partition of land measuring 13 Kanals and 19-1/2 Marlas out of the suit Khasra with a prayer for prohibitory injunction restraining the defendants, respondents Nos.1 to 3 herein from interfering with her rights.
4. Yet another suit was brought by Syed Mustafa Shah against the plaintiff Muzaffar Shah and others wherein he sought declaration that Mst. Najmal Fatima was owner of 24 Kanals out of Khasra No.545 and that the transfer by way of gift by her in favour of Abid Ali Shah through Mutation No.783 attested on 11-11-1975 and subsequent transfer of land by Syed Abid Ali Shah through Mutation No.741, dated 15-3-1977 is illegal, ineffective and void as against his rights with a consequential relief for perpetual injunction. All the aforesaid suits were consolidated and eventually disposed of through one consolidated judgment, dated 19-9-1995 whereby the suit of Mst. Najmal Fatima for possession through partition was decreed while the suit of Syed MuzIffar Shah was dismissed and similarly the suit brought by Mustafa Shah was alio dismissed.
5. Respondents Nos.I to 3 herein, on being aggrieved by the aforesaid judgment, preferred appeals in the Court of District Judge which were accepted by the Court vide judgments. in Appeals Nos.128/13 and 129/13, dated 3-3-1997. The petitioners herein on being aggrieved by the judgments of the learned District Judge, invoked the revisional jurisdiction of this Court by filing the revision petitions as mentioned above.
6. The learned counsel for the petitioners contended that admittedly the suit property was ownership of Syed Chan Badshah who transferred the same to his wife by way of gift Vide registered deed No.2879, dated 2312-1946, that gift was complete as it fulfilled all the pre- requisites thereof and that a recital as to the delivery of possession in the deed keeping in view the relationship of husband and wife between the donor and the donee was sufficient to complete the gift. He further contended that subsequent mutation of gift in favour of Syed Abid Ali Shah leaves no manner of doubt that the donor gifted the property in dispute to his wife and that he by all means divested himself of the corpus of the gift in favour of his wife. The learned counsel by impeaching the validity of the judgments of the learned District Judge submitted that delivery of possession in the strict sense of words is not required where 'the gift has been made by a husband to his wife, more so when possession of the property gifted with tenant. In this behalf he placed reliance on the case of Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466, Khuresheedul Islam. v. Mrs. Qamar Jehan 1989 CLJ 1467 and Mst. Waziran. v. Kalu etc. 1995 CLC 1532.
7. On the other hand, the learned counsel for the respondents Messrs M. Sardar Khan and Samiullah Jan, Advocates, contended that delivery of possession even though the gift has been made by a husband to his wife is to be proved and in the absence of any such proof gift cannot be held to be valid. To support his contention the learned counsel-placed reliance on the case of K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah and others PLD 1957 (W.P.) Kar. 258, Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143, Ashiq Hussain and another v.
Ashiq Ali 1972 SCM R 50 and Ghulam Hassan and others v. Sarfaraz Khan and others PLD 1956 SC (Pak.) 309. The learned counsel by summing up his arguments submitted that in the absence of any evidence showing attornment in iavour of wife delivery of possession cannot be presumed.
8. I have seriously considered the arguments addressed by the learned counsel for the parties and been through the case-law cited at the bar. A. perusal of plaint, its tone and tenor in which the facts are averred and the evidence on the record would reveal that the execution of the gift-deed is not disputed. It was, indeed, its validity which was questioned for want of delivery of possession.
Even the arguments addressed at the bar were confined only to the validity or otherwise of the gift for want of delivery of possession. The core of the matter, therefore, is whether delivery of possession was essential for the validity of the gift in this case? The answer to this question is an accentual no, because the rationale behind delivery of possession, as far as I am capable to understand, is to ensure that property forming subject-matter of the gift has been transferred and that the donor has divested himself of that once for all.
9. When seen in this perspective it is clearer than crystal that the donor by getting the gift-deed registered and subsequently by getting the mutation attested on the basis of the registered deed left nothing unturned in divesting himself of the subject-matter of gift. Above all else a recital in the registered deed as to delivery of possession by the donor to the donee is per se sufficient to prove that the subject-matter of the gift was parted with and that the donor who happened to be the husband of the donee divested himself of that.
10.Another conclusive rather crucial evidence on the record to prove this factum is Mutation No.703 attested on 11-11-1975 whereby Mst. Najmal Fatima transferred an area of 24 Kanals of land out of the property in dispute by way of gift to her nephew Syed Abid Ali Shah in the presence of her husband Chan Badshah as is evident from the mutation. Apart from this where the property gifted is not in actual possession of donor there delivery of possession becomes just a meaningless formality. Similarly, where a property has been gifted by a husband to his wife even there the proof of delivery of possession will not be necessary particularly when the control and management of the property is in the hands of the donor and possession with the donor after the gift shall be deemed to be on behalf of the donee.
11. In the case of Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others (supra) it was held that gift does not become invalid for want of delivery of possession where the donee is a female for the reason that possession with the donor after the gift shall be deemed to be on behalf of the donee. The relevant paragraph is reproduced as under:--- "The plethora of case-law on the question of the delivery of possession in cases like the present one; when the husband is the donor for a wife living with him, when the father is the donor for a daughter and/or a minor living with him or a father-in-law for a daughter-in-law and/or her husband living with him, was not at all noticed. It may be straightaway remarked that in such-like cases strict proof by the donee of transfer of physical possession, as in other type of cases, is not insisted upon. To cite only one example; the Privy Council three quarters of a century ago in the case of Ma Mai and another v. Kallandar Ammal AIR 1927 Privy Council 22 had observed that in the case of gift of immovable property by such a close relation of the female as are mentioned above, once mutation of names has been proved the natural presumption arising from the relationship existing between the donor and the donee, the donor's subsequent acts with reference to the property would be deemed to have been done on behalf of the donee and not on his own behalf.
The obvious consensus has to be followed and adopted in this case also; there is absolutely no reason for departure."
12.In the case of Khursheedul Islam v. Mrs. Qamar Jehan (supra) the same view was reiterated and reaffirmed with much greater accent and emphasis. Quite recently in the case of Mst. Waziran. v. Kalu etc. (Supra) his. Lordship of this High Court has sealed the fate of any view to the contrary by holding that change of possession shall be complete if a recital is made in the deed about the same. The relevant paragraph reads as under:-- "The Privy Council has further gone to hold in the same ruling that if the gift is between husband and wife, the change of possession is complete if it is merely written in the deed and that in case of a gift of a father to. daughter, simple bona fide intention to give, is sufficient to prove. Taken on the analogy, the case of a daughter should be taken at par with that of a wife. In Mst. Manzoor Mai v Abdul Aziz 1992 CLC 235, the transfer of possession was no considered material in case of female was involved. In such case of gift to a sister, mere utterance regarding change of possession made before Patwari Halqa while making an entry in Daily Diary was considered to be a sufficient evidence regarding change of possession."
13.The judgments relied 'upon by the learned counsel for the respondents are distinguishable and have little perceptible relevance to the facts of the case in hand. The judgment rendered in the case of K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah and others (supra) is of no value particularly when the view taken in the judgment is not in -tune with the latest pronouncements of the apex Court. The judgment rendered in the case of Shamshad Ali Shah and others v. Syed Hassan Shalt and others (supra) will not advance the case of the respondents as the facts and circumstances of that case are totally different from those of the instant lis before me.
14.The case of Ashiq Hussain and another v. Ashiq Ali (supra) has also no application to the case in hand as in that case the donor himself revoked the gift on the ground of want of delivery of possession. There is no such question at issue in this case as the gift by the donor in favour of the donee is not disputed either by donor himself or by the predecessor-in-interest of respondents Nos.1 to 3. The case of Ghulam Hassan v. Sarfaraz Khan (supra) is also distinguishable because in that case the deed of gift was executed on 31-5-1946 but the donor, so-called made no attempt to have it registered till the 2nd August, 1946. He also made no report to the Revenue Authority about the gift but in this case the deed was executed, it was registered and on the basis of registered deed mutation was entered and attested at the instance of the donor which goes a long way to prove that the donor has relinquished his dominion over the property gifted and completely divested himself of that by actively witnessing its further transfer by the donee to her nephew Syed Abid Ali Shah.
15. In the light of the facts and the case-law discussed and distinguished above, I have no hesitation to hold that the learned District Judge has not only misread the evidence on the record but has also shown a great deal of audacity by ignoring the latest dictums of the apex Court and High Courts of the country in general and this Court in particular. The learned District Judge, therefore, exercised a jurisdiction so vested in him by setting aside and reversing. a well-reasoned judgment of the learned trial Court without any legal and factual justification, particularly when the judgment of the learned trial Court was based on proper appreciation of evidence and was perfectly in conformity with the latest pronouncements of the Supreme Court and High Courts of the country.
16.Consequently all the revision petitions, inasmuch as they seek the restoration of the judgment of the learned trial Court are. accepted. The judgments and.decrees, dated 3-3-1997 of the learned District Judge are set aside and that of the trial Court, dated 19-9-1995 is restored. Keeping in' view the facts and circumstances of the case, the parties are, however, left to bear their own costs.