P L D 1965 Supreme Court 665 (PLP)

MUHAMMAD YAQUB ALI, J.‑This appeal by special leave is directed against the judgment of the High Court of East Pakistan, Dacca, dated the 20th of July 1962, in Civil Revision No. 701 of 1960.

2. The facts necessary to be stated for the purposes of this order are that Azizuddin Biswas; deceased ,plaintiff‑respondent, adopted Ismail, the nephew of his wife as a son when he was only nine months old. On the 4th of August 1929 when Ismail was only 2J years old, Azizuddin Biswas made a gift of one‑third of his riyati rights in certain lands by a registered deed and got entries to that effect made in the records of the different landlords. About 8 years later, he made hiba‑bil‑iwaz of his homestead to his wife dedi Nessa and Ismail in 2/3rd and 1/3rd share, respectively, not in dispute in the present litigation and got their names mutated in the record of the Municipal Committee, Kushtia, in regard to this holding. From his infancy Ismail was brought tip by Azizuddin Biswas and his wife Gedi Nessa as true parents; his own father having by a written deed given up all concern with what is described as `sonship' meaning thereby the person and property of Ismail. Ismail lived all along with his adoptive parents and, in due course, was married to Rabia Khatun, appellant. The spouses continued to live in the same house with Azizuddin Biswas and Mst. Gedi Nessa until in 1951 Ismail died leaving him surviving the appellant and a number of relatives on the side of his natural parents. Mst. Rabid Khatun continued to live in the house of Azizuddin Biswas and was again given in marriage by them to one Saadat from whom she has a son. The second marriage did not last long and was dissolved by divorce pronounced by Saadat. Thereafter, Rabia Khatun married Chand Muhammad Khan, defendant No. 3, and took up separate residence which, apparently annoyed Azizuddin Biswas, who in consequence of it filed a civil suit for a declaration that Ismail was his benamidar and, therefore, on his death no interest in the estate held by him passed on to Rabia Khatun and other heirs of Ismail The suit failed but, on appeal; Azizuddin Biswas was allowed to withdraw the suit with permission to file a fresh suit. Finally, the present suit was filed on the 16th of April 1957, in which Azizuddin Biswas asked for possession of the land gifted by him to Ismail on the 9th of August 1929, on the ground that he had, in fact, made no gift in his favour but created a life estate by a settlement deed and on his demise the grant had lapsed. In the alternative, the gift was claimed to be invalid as possession was not delivered to the donee. The learned Munsif, who tried the suit, in a well‑reasoned judgment found both the issues in favour of the defendants and dismissed the suit. On a proper construction of the gift‑deed, it was found that an absolute estate was created in favour of Ismail and the conditions, which derogated from the gift were illegal and inoperative. Relying on the statement of Mohiuddin Ahmed (D. W. 1), the nephew of Azizuddin Biswas, who at that time resided and had joint mess with him, the learned Munsif held that on coming of age Ismail, deceased, had entered into possession of the property gifted to him by Azizuddin Biswas. Reliance was also placed in this behalf on decrees passed in rent suits and warrants of ejectment issued against Ismail in respect of the land in suit ax the instance of the landlord. On appeal by Azizuddin Biswas, the learned Subordinate Judge, Kushtia, armed the finding that the gift in favour of Ismail was absolute but disagreeing with the trial Court held that Ismail was not given possession of the. property purported to have been gifted to him by Azizuddin Biswas and, therefore, the gift was invalid in law. The appeal was, accordingly, allowed and the suit against Rabia Khatun and others was decreed for possession. Aggrieved by it, Rabia Khatun filed a revision petition in the High Court of East Pakistan, Dacca, and the only question argued before the learned Judges was whether under Muhammadan Law it was necessary to deliver possession of the properties gifted by Azizuddin Biswas to the natural father of Ismail. In the light of the decision of the Judicial Committee in Musa Mia and another v. Kadar Bux (55 A 171), the answer was given in the affirmative and, affirming the judgment and decree of the first Court of appeal, the revision petition was dismissed, leave to appeal was granted to consider the failure on the part of the learned Judges to take into consideration the fact that the donor was, for all intents and purposes, in the position of a parent to the done, who was only 2 years old at the time of the gift and therefore, formal delivery of possession was not necessary to complete the gift.

3. It is well established that under Muhammadan Law to perfect a gift it is essential to deliver possession of the corpus of the gift to the donee as evidence of complete divestation on the part of the donor and that if the natural father of a minor is alive, the possession should be delivered to him it is equally well established that in case a father makes a gift to his infant son, by virtue of the gift he becomes proprietor and the same rule holds good where a mother makes the gift to her infant son, whom she, maintained and of whom' the father is dead and no guardian provided and so also with respect to the gift by airy other, person maintaining a child in these circumstances, (Hadaya). The words `in these circumstances' were interpreted by their Lordships of the Judicial Committee in Musa Miya and another v. Kadar Bux to mean: "When father is dead and no guardian has been provided", but that was a case in which Abdul Rasul, the donor, had maintained and brought up his grandsons, the donees, from the time of their birth until his death; but during that time the father and mother of the two minors were also living with the donor. From this circumstance their Lordships felt persuaded to conclude that Abdul Rasul was a man of property and able and willing to support in his own house, his daughter, her husband and family. The ratio in the case, therefore, is that if the father of an infant donee is alive and as a natural guardian the duty to take care of and manage the property of his minor son facts on him then possession should be delivered to him to perfect the gift. But if, as in the present case, the minor has been adopted by the donor and he takes entire care of his person and property then the rule enunciated by the Judicial Committee will be found that the adoptive father occupies the position of a de facto guardian of the person who takes care of the infant as is the rule in case of gifts by the father to a minor son. We are fortified in this view by the following remarks of Amir Ali in his well known book on Muhammadan Law, Volume I, page 131, "If the father is dead, or is at such a distance as to preclude the possibility of his presence, in that case the executor of the father takes the place of the father . . . . . Besides these, who may be regarded as guardians de jure any person who happens to be the de facto guardian of the infant, that is, in whose custody the child is, may take possession‑ of the subject‑matter of the gift. In the present case, there is an additional circumstance, to which reference has been made earlier, that the natural father of Ismail had by a written deed forsaken all rights in the person and property of Ismail. The position of the natural father in this case was, therefore, in principle, not dissimilar to that of a father who is "at such a distance as to preclude the possibility of his presence.

4. On the view expressed above, we accept this appeal with costs and affirm the judgment and decree of the learned Munsif, dated the 25th of November 1958, dismissing the suit brought by Azizuddin Biswas (deceased) for possession of the properties gifted by him to Ismail (deceased), S. A. H./S. Q. Appeal accepted.