The petitioners/plaintiffs filed Suit No, 172/1 in the Court of learned Civil Judge Charsadda seeking declaration-to the effect that they are legal heirs of Sher Muhammad Khan deceased and are owners in possession of their share in land measuring 97 Kanals, 7 Marlas comprised in various Khasra Numbers mentioned in the plaint situated at Mauza Tarnab' Tehsil Charsadda and Mutation No.5536 attested on 21-4-1988 in favour of Mst. Rang Mahal (defendant No.3) in respect of 19 Kanals, 10 Marlas and registered gift-deed, dated 9-5-1991 in favour of respondents Nos.4 to 6/defendants Nos.4 to 6 in respect of land measuring 20 Kanals and 6-1/2 Marlas are based on fraud and collusion. Sher Muhammad Khan, predecessor-in-interest of parties was on the death bed at the time of said mutation/registered gift-deed and was not mentally fit to execute the same, therefore, the same are ineffective upon the rights of petitioners/plaintiffs. The said suit was resisted by the respondents/defendants. The learned trial Court after framing issues and recording pro and contra evidence of the parties dismissed the suit vide judgment arid decree, dated 5-12- 1994. Feeling aggrieved of the said judgment and decree, petitioners filed Appeal No.10/13 on 23-1- 1995 in the Court of learned District Judge, Charsadda which too was dismissed vide judgment and decree, dated 2-11-1995. The petitioners have now assailed the judgments and decrees of both the Courts below through revision petition in hand.
Mr. Abdul Samad Khan, (Zaida), Advocate the learned counsel representing the petitioners argued that neither any dower deed in favour of Mst. Rang Mahal was produced nor any witness of her marriage who could testify that any property " as given to her in lieu of her dower was produced.
Nor the witnesses of dower mutation were examined in support of the claim.
3. It was also argued that Sher Muhammad was aged about 100 years. He was not in a position to understand his actions and two Doctors namely Dr. Muhammad Mansoor (P.W.2) C.M.O. L.R.H. And Dr. Musharaf (P.W.3) M.O. Government Mental Hospital Peshawar had confirmed that Sher Muhammad was suffering from 'Parkinson' disease and was mentally incapacitated to understand consequences of his acts.
4. It was further argued that the gift-deed was allegedly registered on 9-5-1991 whereas Sher Muhammad expired on 13-5-1991 i.e. Within five days. No witness of the gift-deed- was produced: Moreover,' there was nothing on record to show that there was any offer and acceptance between the parties and the possession was delivered to Mst. Rang Mahal. In the registered deed also no words of transfer of possession were also mentioned meaning thereby that the possession of the property was not handed over to her. It is on record that Sher Muhammad was residing with Mst.
Rang Mahal who was his third (youngest) wife of Sher Muhammad, therefore, she used undue influence and got property mutation in her name.
5. It was also argued that Dr. Muhammad Naseer (P.W.2) and Dr. Musharaf (P.W.3) were impartial witnesses who stood the cross-examination by the respondents and affirmed about the deceased with which Sher Muhammad was suffering but the learned appellate Court without any lawful justification discarded the certificates issued by those Doctors.
6. On the other Mr. Attaudlah Khan 'Tangi, Advocate the learned counsel representing respondents Nos.3 to 11 argued that Sher Muhammad Khan was mentally capable of executing the registered deed whereby he transferred a portion of his property in favour of minor children respondents Nos.4 to 6 and dower Mutation No.5536 attested on 21-4-1988 in favour of Mst. Rang Mahal. Two Doctors namely Muhammad Naseer (P.W.2) and Dr. Musharaf (P.W.3) did not state-that Sher Muhammad was not in a position to execute the gift-deed as well as dower mutation. They have rather admitted in cross-examination that he was in normal condition. The petitioners/ plaintiffs have, therefore, failed to prove their case through cogent evidence. Sher Muhammad had not executed any dower deed in favour of Mst. Rang Mahal. Therefore, the question of producing the said deed or witnesses thereof would not arise at all. The property in lieu of dower was mutated through dower mutation mentioned above in the year 1988 which was not appealed against. The gift-deed was duly registered in the office of Sub---Registrar Charsadda and presumption of truth is attached to the said document.
7. Regarding delivery of possession of the gifted property in the name of minors the learned counsel for respondents Nos.3 to 11 argued that since the land was gifted in the names of minors, therefore, delivery of possession to the minors was not necessary. In this regard reliance was placed on Abdullah v. Maqbool Ahmad (1988 CLC 1633).
8. It was also argued that concurrent findings 'of facts cannot be disturbed while exercising revisional jurisdiction by this Court.
9. I have heard the learned counsel for the parties and perused the record.
10. So far as the argument of the learned counsel for the petitioners that neither any dower deed in favour of Mst. Rang Mahal was produced nor any witness of her marriage who could testify that any property was given to her in lieu of dower was produced nor the witnesses of dower mutation were examined in support of the claim, therefore, the respondents failed to substantiate their view point, this argument has no force. At the time of the third marriage of Sher Muhammad (late) with Mst. Rang Mahal no dower deed was scribed, therefore., the question of producing the said deed or its marginal witnesses does not stand at all. So far as the dower Mutation No.5536 attested on 21- 4-1988 (EX.P.W.4/3) is concerned, through this deed Sher Muhammad transferred land measuring 19 Kanals, 18 Marlas in favour of Mst. Rang Mahal. Sher Muhammad remained alive till 13-5-1991 but the petitioners did not challenge the said mutation before any competent forum in his life time.
Similarly the gift-deed (Exh.P.W. 4/2) shows that land measuring 20 Kanals, 6-1/2 Marlas was gifted in the names of Khadim Muhammad Khan, Nadim Muhammad Khan and Naeem Muhammad Khan, minor sons of Sher Muhammad. The said deed was duly registered in the office of Sub- Registrar Charsadda. There is no evidence available on record that the said property was got mutated by Mst. Rang Mahal by playing fraud upon Sher Muhammad or that he was on the death bed and was not mentally capable of understanding his actions. No doubt Sher Muhammad was about 90 years old, but the two Doctors examined by petitioners/plaintiff as P.Ws. 2 and 3 did not in clear words state that Sher Muhammad was incapacitated due to mental illness to understand the consequences of his act. On the contrary Dr. Musharaf Khan (P.W.3) who is medical officer of Mental Hospital stated that Sher Muhammad was brought to OPD for check-up. There is nothing on record to show that Sher Muhammad remained admitted in Mental Hospital for treatment. The certificates Exhs.P.W.2/l, 2/2, 3/1 and 3/2 were issued from the private clinics and no history of Sher Muhammad was maintained and were rightly discarded by the trial Court as well as learned appellate Court.
11. So far as the argument of the learned counsel for the petitioner that possession was not handed over to the donees, hence the gift was not complete, is concerned, this argument has no force. The perusal of gift-deed, dated 9-5-1991 shows that Sher Muhammad gifted land measuring 20 Kanals, 6-1/2 Marlas in favour of his three minor sons. The minors were at the time of registration of the deed represented by Muhammad Yousaf, who accepted the contents of the gift-deed as correct.
Since the property was gifted to minors, therefore, the delivery of possession to the minors was not necessary. No doubt Muhammadan Law prescribes that for validity, of gift delivery of possession is necessary as a general rule, but the law prescribes an exception to the general rules in a case where gift is made to the minor by his father or by guardian to his ward. In Sardar Ikramullah Khan and another v. Federal Land Commissioner, Pakistan, Rawalpindi and 6 others PLD 1984 Pesh. 260 it was held:------ "Bona fide gift by father in favour of his minor sons, presumption was that no change of possession was necessary"
Likewise in Abdullah v. Maqbool Ahmad. 1988 CLC 1633 it was held:-- "As regards the contention regarding invalidity of gift on the, ground of non-delivery of possession, it may be observed that, no doubt, Muhammadan Law prescribes that for validity of gift delivery of possession is necessary as a general rule. But the law prescribes an exception to the general rule in a case where gift is made by a father to his minor son or by a guardian to his ward. In such a case change of possession is not necessary and the possession of the father or guardian after declaration of gift is presumed to be on behalf of the minor (para. 155 Mulla)."
Similarly in Rabia Khatun v. Azizuddin Biswas and others PLD 1965 SC 665 it was held:--- "that in case of gift- by father to his infant child, possession remained with the father as natural guardian and formal delivery of possession to donee is not necessary."
12. The petitioners/plaintiff have failed to prove that Sher Muhammad was mentally incapacitated to understand the consequences of his act and that the transfer, of property vide . Mutation No.5536, dated 21-4-1988 and registered gift-deed, dated 9-5-1991 was the result of undue influence and fraud. Sher Muhammad could in his lifetime transfer his entire property and transfer of the land by him in favour of respondents was legal/lawful. I have not been able to find any misreading or non-reading of evidence or any material irregularity or mis-exercise or non-exercise of jurisdiction vested in Courts below. Finding no reasons to interfere in the concurrent findings of facts I dismiss the revision petition in hand with no orders as costs.