This appeal is to assail the validity of judgment and decree recorded by Additional District Judge, Pallandari dated 31-5-1992 whereby, the judgment and decree by the trial Court was set aside.
2. Initially Afsar Khan and seven other persons brought a declaratory suit in the Court of Sub-Judge, Pallandari op 27-11-1984. However, later on pro forte defendants were also transposed to the side of plaintiffs. It was averred in the plaint that a gift deed registered on 7-12-1970 in favour of defendant Muhammad Aziz Khan and mutation sanctioned as a consequence of the said gift-deed were inoperative and ineffective against the rights of plaintiffs because the gift-deed was incomplete and void due to non-delivery of possession by the donor to the donee. It was further claimed that the plaintiffs being legal heirs of the donor late Muhammad Hussain were in possession of the gifted property after his death and the deceased Muhammad Hussain remained in, possession of the property allegedly gifted to the defendant till his death. It was also claimed by the plaintiffs that the defendant cleverly manoeuvred gift-deed in his favour through inducement and kept it secret till the death of donor. The plaintiffs, when approached Revenue Authorities for attestation of mutation of the deceased property in their favour being his legal heirs after his death, they came to know that a mutation had already been sanctioned in favour of defendant Muhammad Aziz Khan in the light of gift-deed. Therefore, they by acquiring knowledge about the gift-deed, brought the present suit. It is worth-mention that the mutation in favour of defendant Muhammad Aziz Khan about the suit-land was also sanctioned after the death of donor i.e. Almost after 14 years time. The suit-land is the share of donor out of Survey Nos. 1627 (2603) measuring 10 Kanals and 5 Marlas, 1638 (2541) measuring 3 Kanals, 1642 (2555/1) measuring 2 Kanals and 14 Marlas, 1771 (3512) measuring 24 Kanals and 8 Marlas, 1627 (2602) measuring 1 Kanal and 3 Marlas, 1628 (2603) measuring 20 Kanals and 7 Marlas, 1773 (2494) measuring 8 Kanals and 17 Marlas, 1643 (2555) measuring 15 Kanals and 2 Marlas, 1826 (3586) measuring 7 Kanals and 7 Marlas, 1349 (7846) measuring 18 Kanals and 7 Marlas, 1349 (2871) measuring 18 Marlas, 1349 (2876) measuring 2 Kanals and 3 Marlas, 1657/1 (3327) measuring 32 Kanals and 16 Marlas, 1706 (3474) measuring 47 Kanals and 9 Marlas, 1651 (2560) measuring 33 Kanals and 1 Marla, 1651 (2561) measuring 21 Kanals and 19 Marlas, 1790 (3521) measuring 6 Kanals and 4 Marlas, 1790 (3523) measuring 5 Kanals and 5 Marlas, 1790 (3522) measuring 4 Kanals and 6 Marlas, 1932/1403 (3102), measuring 16 Kanals, 10 Marlas, 1934/1403 (3103) measuring 11 Kanals and 16 Marlas, 1933/1403 (3101) measuring 29 Kanals and 16 Marlas 1934/1403 (3104) measuring 9 Kanals and 5 Marlas, 1794 (3532) measuring 6 Kanals and 10 Marlas, 1794 (3530) measuring 5 Kanals and 17 Marlas total measuring 360 Kanals.
3. The real defendant Muhammad Aziz Khan submitted his written statement on 16-2-1985 wherein he repudiated the claim of the plaintiffs on various grounds. According to him, the suit by the plaintiffs was not tenable after the death of donor. It was further claimed by him that the suit was hit by law of limitation as it was brought after considerable delay spreading over almost 14 years time. He also raised objection regarding cause of action as the plaintiffs were not legal heirs of the donor. On factual side, he denied the claim of the plaintiffs about the delivery of the possession of the gifted property. Per his claim, the possession of the gifted property was delivered physically by donor after the registration of the deed and from there onwards, the suit-land is in his possession.
4. Another written statement by pro forma defendants 15 to 19 is also on the file. However, later on, these defendants were transposed to the side of plaintiffs. Initially these pro forma defendants supported the claim of real defendant Muhammad Aziz Khan but subsequently they changed their position by coming on the side of plaintiff and supported their claim.
5. An objection by the real defendant was raised about this development that those who had supported him through written statement were barred to contradict their own written statement.
This controversy was resolved by trial Court and it was observed that Mst. Sahib Jan (real sister of donor) and other persons except Muhammad Hanif and Muhammad Younis sons of Gulab Khan neither authorized any counsel to submit written statement on their behalf nor they themselves filed any written statement supporting the claim of real defendant.
6. The trial Court after framing relevant issues directed the parties to lead evidence in support of their respective claims. After closing evidence on both the sides, the parties were heard and the suit was allowed in favour of plaintiffs except Muhammad Hanif and Muhammad Younis sons of Gulab Khan.
7. Feeling aggrieved by the judgment and decree of the trial Court, the respondent Muhammad.
Aziz Khan brought an appeal before Additional District Judge, Pallandari who after due process of law vacated the judgment and decree of the trial Court through the impugned judgment.
8. The appellants brought appeal before this Court challenging the validity of the judgment and decree of the 1st Appellate Court but they did not succeed resultantly the matter went before Supreme Court of Azad Jammu and Kashmir in shape of appeal against the judgment and decree of the High Court. The learned Judges of the Supreme Court accepted the appeal however, the case was remanded to the High Court with the following observation:-- "After giving due consideration to the points raised at bar, we are of the view that some important aspects of the matter have not been properly adverted to by High Court. The question as to what would be the effect of the evidence of Muhammad Aziz Khan, respondent, if any, that his were lived with the donor in his lifetime when no such point has been raised in the written statement by the defendant--respondent. Similarly, the question as to how the suit is hit by law of limitation because, prima facie, the suit is governed under Article 91 of the Limitation Act according to which the limitation for setting aside an instrument or the cancellation of the same would start from the date when the plaintiff had the knowledge of the facts which entitle him to challenge the instrument. It is also important to point out that if donor or donee were residing together at the time of gift---deed in the house built over the property gifted, formal delivery of possession may not be necessary but in the instant case irrespective of the fact that the point was not pleaded in the written statement, the were of the donee lived with donor and not the donee. Thus, the question arises as to whether the defendant-respondent would be deemed to be in joint possession with Muhammad Hussain, donor in the aforesaid circumstances.
9. The learned counsel for the appellants argued that the judgment and decree of the 1st Appellate Court was result of non-application of mind to the facts of the case and the evidence thereon.
According to him, the learned Judge decided the case merely on the basis of suppositions, surmises and conjectures leaving aside the evidence brought on record. The evidence whether verbal or documentary on the side of appellants was cogent and convincing proving the case of the appellants satisfactorily but, unfortunately, it was overlooked by the 1 appellate Court. The plaintiffs were the legal heirs of the donor and this fact was established through the evidence, the learned counsel maintained. The fact of non-delivery of possession to the donee by the donor was also proved in the light of evidence, therefore, the gift-deed in favour of respondent Muhammad Aziz Khan was incomplete and invalid as against the rights of the appellants, the learned counsel argued. It was further submitted that the 1st Appellate Court was wrong to hold that the appellants had no cause of action. According to the learned counsel, the appellants are collaterals of the donor and they had rightly challenged the gift deed after the death of donor on the ground of non- delivery of physical possession. Mst. Sahib Jan was admittedly real sister of the donor and, as the donor died issueless therefore, even if the other plaintiffs are accepted not to be the collaterals of the donor, the entire property devolved upon Mst. Sahib Jan being sharer and on account "return" in absence of residuaries under the law of inheritance. Thus, according to the learned counsel, keeping in view the admitted fact of relationship between Mst. Sahib Jan and the donor, the suit by the trial Court was rightly decreed against the respondent Muhammad Aziz Khan. The learned counsel during his arguments also contended that the evidence, if any, on a point not pleaded in the written statement could not be looked into and the 1st Appellate Court by doing so travelled in the wrong direction. To support his contention about the evidentiary value of any evidence on the point which has not been specifically pleaded, he referred to 1998 PLC (C.S.) 1396 and 2002 MLD 1243 SC (AJ&K). Dealing with the question of limitation he resorted to Article 91 of Limitation Act, 1995 SCR 284 and contended that the suit by the plaintiffs was within time from the elate when they acquired knowledge about alleged gift-deed and mutation in view of the said deed. It was also argued that mere declaration in the gift-deed about delivery of possession was not a conclusive proof especially when the respondent himself through his written statement and Court statement contradicted this declaration about the delivery of possession to him by the donor. He placed reliance on 1997 SCMR 1087 on the point of declaration in the gift-deed. On the point as to who is competent to challenge the gift-deed on the ground of its incompletion, he referred PLD 1956 Lah.
218 and contended that the legal heirs were competent to challenge the gift---deed after the death of donor. To be brief, the suit by the plaintiffs was wrongly dismissed by 1st Appellate Court, the learned counsel submitted.
10. On the other hand the real respondent Muhammad Aziz Khan himself argued the case.
According to him, the physical possession of the gifted property was delivered to him after execution of the gift---deed therefore, it was complete in all respect. He also submitted that the suit by plaintiff was hit by law of limitation as the plaintiffs brought their suit after expiry of almost 14 years time. The limitation, according to him, started from the date of registration of instrument.
The fact of registration by itself was sufficient knowledge to the plaintiff therefore, they were legally obliged to bring their claim within three years time if they had cause of action. It was also contended by him that the plaintiffs were neither collateral nor legal heirs of the donor therefore,st they had no cause of action to challenge the gift-deed after the death of donor. He also challenged the validity of trial Courts' judgments and contended that the same was result of non-- -reading and misreading of evidence. During his arguments, he relied on PLD 1979 SC (AJ&K) 245, 1979 SCMR 625 and contended that the gift-deed was complete even in absence of physical delivery of possession on the ground of mere declaration about delivery of possession. By emphasizing his view--point, he submitted that the donor did all that what he could do. He (donor) handed over physical possession of the property which was under possession and by executing gift-deed he enabled the donee to take possession of the rest of property under the possession of co---sharers.
12. After examining the law cited at Bar the following legal position appears to be well-settled by now on the question of validity of a gift-deed: "It essential to the validity of gift that the donor should divest himself completely of all ownership and dominion over the subject-matter of the gift. To take possession of subject---matter of the gift by donee either physical or constructively is necessary to complete a gift. However, if gifted property is held in possession by a person who claims it adversely to the donor or th6se who claim under him is not valid unless the donor obtains and delivers possession thereof to the donee or does all that he can to complete gift as to put it within power of donee to obtain possession. "
13. Keeping in view the above legal position, let us advert to the facts of the present case. The case has been remanded by the apex Court to decide it afresh after taking into consideration the question of limitation and the legal effect of evidence if any, on the point which has not been pleaded specifically in the written statement. Before debating question of limitation, cause of action and legal effect of evidence on the point which has not been specifically pleaded, it is felt appropriate to deal with the question of delivery of possession of gifted property.
14. After close examination of pleading and the evidence on the either side, it becomes clear that the parties are in agreement about the fact that late Muhammad Hussain (donor) was in physical possession of a portion of joint property at the time of registration of gift-deed. They differ only about delivery of possession. It means that he was in position to deliver possession to the donee by divesting his ownership and dominion over the gifted property to the extent it was under his physical possession and authorize the donee to take possession of the share in possession of co- sharers being joint property.
15. The next question which needs resolution is that whether the physical possession was ever delivered to the donee? To help resolve this controversy, the evidence on either side was closely scrutinized. The appellants have relied on verbal and documentary evidence both whereas respondent Muhammad Aziz Khan produced verbal evidence only however, he placed reliance on Vakalatnama and written statement by pro forma defendants 15 to 19 (now appellants). The verbal evidence on the side of appellants is unanimous on the point that physical possession was never delivered to the donee at the time, before or after the registration of gift-deed. All the persons who are resident of vicinity in which the suit-land is situated categorically supported the claim of the appellants. Their statements were recorded on solemn affirmation rather they were ready to state this fact through special oath by placing their hands over the Holy Qura'n. They do not have any relation with the appellants neither the respondent could show anything to discredit their testimony therefore, this verbal evidence cannot be brushed aside lightly. The documentary evidence relied upon by the appellants also supports the oral evidence. According to Revenue Record placed on record and tendered into evidence, the suit-land is shown either in possession of donor or the plaintiff at the time of gift and afterwards till the death of donor. The donor died on 24- 8-1984 and the gift-deed was executed in the year 1970. There is no entry in the Revenue Record showing the possession of respondent Muhammad Aziz Khan. No doubt the entry showing possession of late Muhammad Hussain (donor) continued for sometime after his death but this is probably due to litigation over the suit-land and temporary injunction etc.
16. The respondent produced different persons as his witnesses who belong to village Mang situated for about four to five miles away from Pattan Shair Khan Village where the suit-land is situated. Those witnesses who appeared on behalf of respondent are also his relatives as born out by their statements. Their statements are not convincing. The respondent Muhammad Aziz Khan also appeared before the Court and recorded his statement wherein he deposed that he obtained physical possession of the gifted property after registration of deed. He has taken same stand in his written statement whereas the recital of the gift-deed speaks otherwise. According to the contents of gift---deed, the gifted property remained under the possession of donee long before the execution of the deed. It clearly suggests to say that the verbal and documentary evidence by the respondent contradicts each other resultantly it loses its credibility. After appreciation of evidence on either side, it may be observed that the gift in favour of respondent Muhammad Aziz Khan was incomplete account of non-delivery of possession.
17. Now coming to the point of limitation, it may be observed that in the instant case Article 91 of Limitation Act is the relevant provision to be followed. According to this Article, the limitation shall start when the facts entitling the plaintiff to have the instrument cancelled or set aside become know to him. 1t is claimed by the plaintiffs that they knew about the alleged gift-deed in the year 1984 when they approached Revenue Authorities for attestation of mutation of the deceased (donor) property in their favour being legal heirs and they were refused to do so on the ground that a mutation in favour of respondent Muhammad Aziz Khan had already been sanctioned on account of gift--deed. One of the plaintiffs Muhammad Maqsood supported his claim through his Court statement. His statement gains support from the fact that Muhammad Aziz Khan respondent also got the mutation sanctioned in his favour after the death of donor meaning thereby that the document was kept secret till the death of the donor and it was not shown to the Revenue Authorities so as to keep the record straight about the disputed property. Neither respondent nor his witnesses could establish the fact of knowledge to the plaintiffs about the execution of the gift- deed before 1984. It follows that the statement of one of the plaintiffs went un-rebutted. When this statement is seen coupled with the fact that the mutation in favour of respondent was also sanctioned after the death of donor suggest to say that the plaintiffs had no knowledge about the respiration of gift-deed before they approached Revenue Authorities for attestation of mutation in their favour being legal heirs of donor after his death.
18. The next point which needs resolution by this Court is whether the evidence if any on the point which has not been pleaded in the written statement can be looked into. The answer is in negative.
Firstly, it may be observed that there is no evidence on record to show that donor had been living with the were of donee. Only a casual assertion by one of the plaintiffs witness is there to say that donor occasionally lived with the were of the donee. This witness in his second breath categorically stated that the donor never lived with the were of donee permanently meaning thereby that he might have lived with the were of donee for some time temporarily due to relationship in between them. This does not mean that he had a permanent residence with her. Secondly, it is nowhere on record that donee and donor ever-lived together so that it could be said that physical delivery of possession was not necessary. Thirdly this point has not been pleaded in the written statement by the respondent and if at all the aforesaid statement of the witness who appeared on behalf of the plaintiffs is accepted as it is claimed by respondent even then it cannot be looked into as held in 1998 PLC (C.S.) 1396 and 2002 MLD 1244 SC (AJ&K). It is nobody's case that the donor was living with the donee's were therefore, delivery of physical possession was not necessary.
19. The last point which requires resolution by this Court is about the cause of action. It is contended by the respondent that except Mst. Sahib Jan the other plaintiffs are not legal heirs of the donor therefore, they do not have locus standi to challenge the validity of gift in his favour. The verbal evidence produced by the plaintiffs coupled with the fact that the plaintiffs are co-sharer in the joint property suggest to say that the plaintiffs are collateral of the donor and, under law of inheritance, they are entitled to inherit one-half of the entire suit-land because the donor died issueless leaving behind Mst. Sahib Jan as real sister. However, even if it is accepted that other plaintiffs except Mst. Sahib Jan are not collateral of the donor the fact remains that Mst. Sahib Jan is also one of the plaintiffs. Under the law of inherence, m absence of residuaries, the entire property left behind by the donor shall revert back to the aforesaid lady on account of principle or return therefore, it can safely be said that the gift-deed being incomplete on account of non--- delivery of possession has rightly been challenged by Mst. Sahib Jan and the suit could not be dismissed for want of cause of action. The reason being that gift can be challenged by the donor or his legal heirs. The respondent during his arguments stressed to say that Mst. Sahib Jan could not be allowed to take contradictory stand after submitting her written statement. This objection was examined carefully in the light of the record. It is evident, as rightly pointed out by the trial Court, that she never authorized Abdul Rashid, Advocate through any power of attorney to submit written statement on her behalf. Therefore, there was no legal bar in her way to be transposed on the side of plaintiffs.
20. Result being that the appeal in the light of what has been stated above merits its acceptance which is hereby accepted by setting aside the judgment and decree of 1st Appellate Court.