' Munshi brother of Din Muhammad (plaintiff No,1) father of Bashir Bibi (plaintiff No,2), Mehran Bibi (respondent No, 1/defendant) and Aalam Bibi (respondent No,2/defendant) was owner of 2/5th share in the land measuring 25 Kanals, 7 Marlas, situated in the area of village Saikhan, Tehsil Ferozewala, District Sheikhupura. Prior to his death Mehran Bibi defendant No,1 in connection with the land measuring 15 Kanals, 10 Marlas out of the land as mentioned above secretly got executed registered gift deed dated 24-7-1984 from Munshi in her favour which certainly deprived the others from the inheritance of Munshi, therefore, Din Muhammad and Bashir Bibi filed a suit for declaration to challenge the gift deed as mentioned above, being based upon fraud and ineffective upon their rights alleging that it has been got executed to deprive the other legal heirs from the inheritance, as such, it is liable to be set aside.
' This suit was contested by the defendants. Alam Bibi simply stated that she was assured that no gift deed had been executed and the inheritance of Munshi would be divided in the heirs in accordance with their shares and since she was simple lady so she had confidence on Mst.
Mehran Bibi. While Mehran Bibi in her written statement raised some preliminary objections and submitted that Munshi her father executed a gift deed dated 24-7-1984 in her favour and since the suit-land was joint, therefore, the plaintiffs were paying the share of the produce to her and remained mum till January, 1996 and after the death of Munshi they filed the suit.
2. In view of the pleadings of the parties the following issues were framed:--
(1) Whether the plaintiffs are owners in possession of the suit property? OPP
(2) Whether the gift deed dated 24-7-1984 is illegal, fraudulent and is not binding upon the rights of the plaintiffs? OPP
(3) Whether the plaintiffs have no cause of action to institute this suit? OPD.
(4) Whether the plaintiffs have instituted this suit with mala fide intention? OPD.
(5) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD.
(6) Whether the suit has not been properly valued for the purposes of Court-fee and jurisdiction, if so, what is the correct valuation? OPPs.
(7) Relief.
3. Issue No,2 was important in this case. After discussing the legal and factual aspects of the case, the learned Judge observed that possession of plaintiff No,1 over the suit land is proved; that no doubt the physical delivery of possession in a joint khata is not necessary but at the same time, it was necessary that the donor should ask the possessors of the land that they should in future give the share of the produce to the done as he has gifted the land to the donee and that when there is no evidence regarding this fact, it is proved that the possession was not transferred. Consequently Issue No,2 was decided in favour of the plaintiffs. The other issues were also disposed of.
Resultantly, the suit filed by the plaintiffs was decreed and the gift deed dated 24-7-1984 was cancelled vide judgment dated 20-5-1991.
4. The decision given by the learned trial Court was set aside when after discussing the different aspects of the evidence of the parties it was mainly observed that since the land in dispute was out of joint Khata, therefore, the possession of one of the owners is deemed to be possession of the others, as a consequence of it material Issues Nos.1 and 2 were decided against the plaintiffs and that the appeal was accepted vide judgment dated 7-12-1993. Hence this revision petition.
5. This revision petition was filed perhaps in the year 1997 along with an application under section 5 of the Limitation Act, 1908 for condo nation of delay. The affidavit of the petitioner was attached with the petition and that the main revision petition was admitted by this Court vide order dated 20-2-1998 by issuing notice to the respondents, but subject to objection of limitation raised in this petition for condo nation of delay. The notice to the respondents was also issued for 24-3-1998.
Therefore, first of all this petition for condo nation of delay is being disposed of after hearing the learned counsel for the parties in this connection and also on the main revision petition.
' It is mainly stated in the above mentioned petition that after the decision in appeal some relatives and respectables of the locality convened a Punchayat and arrived at this settlement that the parties shall receive their respective shares in the inheritance and respondent No,1 shall receive expenses of litigation but later on after filing of the execution petition, there was no other solution except to file the revision petition, therefore, the certified copies were obtained and the revision petition was filed by stating therein that the delay in filing the revision petition was not deliberate.
' It appears from the perusal of the record that this petition is supported by an affidavit but no counter-affidavit has been filed by the respondents and even the written reply could not be filed.
Since the dispute is about inheritance, therefore, such-like disputes should be disposed of on merits and being so the delay in filing the revision petition is condoned by accepting the petition as mentioned above. Let the main revision petition be disposed of rim on merits.
6. Learned counsel for the petitioners argued that the judgments passed by the Courts below are at variance, therefore, the real controversy involved in this case should be resolved by this Court by exercising its revisional jurisdiction. He submitted that when the alleged gift deed in favour of respondent No,1 was challenged to have obtained on basis of fraud the onus was upon the respondent (donee) to prove that the transaction of gift deed was genuine and that the possession of the disputed land was actually transferred to the donee but the learned First Appellate Court examined this point from a wrong angle by observing that the disputed land was situated in a joint Khata, therefore, the possession of one legal heir is the possession of the other legal heirs. Whereas when it was claimed that father was gifting the land to his major daughter then in order to believe that the transaction is genuine, the transaction should be naked and it should have come into the knowledge of concerned persons and this was possible only when the physical possession had been transferred and in this connection the learned trial Court had rightly observed that neither the possession was delivered nor the donee was attorney and so far the finding of the learned Appellate Court on this point is concerned, it was against law, therefore, the judgment passed by the learned Appellate Court is liable to be set aside. He has relied on the case reported in Mst. Qabal Jan v. Mst. Habab Jan and 9 others 1992 SCM R 935 (SC); Ghulam Hussain and another v. Faiz Muhammad and 7 others PLD 1991 SC 218; Mst. Farida Sajid v. Syed Muhammad Baqir Ai Shah and others 200u MLD 1729 (Lahore); Muhammad Yaqoob through Legal Heirs v. Feroze Khan and others 2003 SCM R 41 (SC); Mitho Khan and another v. Abdul Jabbar and 9 others 2003 SCM R 46 (SC); Azim Khan v. Malik Mobeen Khan and others 2001 SCM R 34 (SC); Mst. Khalida Bibi v.
Mst. Daryan Khanum 1995 PLR 267 (Abbottabad); Mir Haji Ali Ahmad Khan Talpur and 9 others v.
Government of Sindh and 2 others PLD 1976 Kar. 316; Abdul Karim v. Muhammad Ibrahim 1976 SCM R 79; Haji Rehmdil v. The Province of Balochistan and another 1999 SCM R 1060 (SC) and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCM R 1072 (SC) in support of his arguments.
7. Learned counsel for the respondents opposed the arguments advanced by the learned counsel for the petitioners and submitted that the transaction of gift deed was genuinely proved by the marginal witnesses and so far as the possession over the suit-land is concerned, it was joint and the donee had been receiving the share of the produce, therefore, the judgment passed by the learned Appellate Court calls for no interference.
8. After hearing the learned counsel for the parties, basically the point for determination is as to whether any valid gift deed was executed by Munshi in favour of his daughter Mehran (respondent). It is obvious that there are three essentials of valid gift out of which first of all is that there must be a declaration of gift by the donor; secondly the acceptance of the gift expressed or implied by or on behalf of the donee and the third one is the delivery of possession on the subject of the gift. In other words bedsides offer made by the donor and acceptance by the donee the delivery of the possession should be in such a way or naked that it should come into the knowledge of other legal heirs and this is possible only when the physical or constructive possession is transferred at the spot to the donee, otherwise, the transaction would be void, ab initio and an outcome of concealment.
' Now here in the instant case the learned trial Court and the learned Appellate Court have examined the evidence of the parties and one thing essential for discussion is that the subject- matter of the gift deed is a land out of joint Khata. The learned Appellate Court observed that since the possession of one legal heir is the possession of other, then it should be believed that there was an exercise of transfer of the possession after execution of the gift deed. This observation is not correct in each and every case because in the lifetime of the donor the fact of delivery of possession may not come out of surface as under the cover of donor the donee might be believing that he or she is in possession. Even in the lifetime of the donor in case a valid gift is executed, it is essential that the possession of the donee be looked at the spot as naked as growth of a tree at the spot, or in other situation when the donor dies the other legal heirs must know that the done is physically cultivating the land given to her by the donor and this change must reflect from the Revenue Record as well.
' Here in the instant case the condonation sought by Mst. Mehran Bibi in her statement was that since the land was joint, therefore, after execution of gift deed the plaintiffs had been paying the share of the produce to her. The witnesses of the plaintiffs had not supported the gift deed even Din Muhammad plaintiff stated in cross-examination that the gift deed was an act of concealment and result of fraud and that he was cultivating the suit-land since the very beginning. Now the onus has shifted on the donee. It is correct that the fact of delivery of possession was given in the gift deed (Exh.P.l) but in Khasra Girdawari P.3, Din Muhammad was shown a self cultivator. D.W.1 Abdul Sattar stated that he was the marginal witness of gift deed Exh.D.1, but in cross-examination stated that the plaintiffs are in possession as tenants. D.W.2 Rehmat Ali another marginal witness supported the gift deed to have signed the same but in cross-examination stated that the plaintiffs are in possession of the suit-land; that the plaintiffs have not given the share of produce to Mehran Bibi and that there was no operation of the gift deed at the spot and when Mst. Mehran Bibi came in the witness-box her contention was that since she is owner of the suit-land, therefore, she is in possession of the same. It is obvious that the evidence of the donee had been very weak for the reason that her witness D.W.3 stated that the gift deed was not operated at the spot which certainly means that for indefinite period the document of gift deed remained as concealed document. Moreover, there is no convincing evidence on the point that Din Muhammad plaintiff had been paying any share of the produce to Mst. Tehran Bib. In fact she failed to discharge the onus upon her and it looks as if the gift deed was an act of concealment to deprive the other legal heirs. Therefore, the judgment passed by the learned trial Court is in accordance with evidence on the record and relevant law. Whereas the findings of the learned First Appellate Court are not correct because when the gift is made by a father to a major son or daughter the fact of delivery of possession should come into existence in a way that it is an open transaction, however, it is not essential in case the gift deed is made in favour of a minor son. Reliance is placed on "Mst. Farida Sajid v. Syed Muhammad Baqir Ali Shah and others 2000 M LD 1729 (Lahore).
9. In view of the discussion above, the judgment passed by the learned Appellate Court dated 7-12- 1993 is set aside and that of the learned trial Court dated 20-5-1991 is upheld after accepting this revision petition, however, with no order as to the costs.