P L D 2009 Supreme Court 191 (PLP)

FAQIR MUHAMMAD KHOKHAR, J.

Late Sardar Masih, predecessor-in-interest of the parties, instituted a suit for declaration and permanent injunction against his son, the respondent No.1 to the effect that the registered gift deed dated 17-7-1997 (Exh.P1) purportedly made by him in favour of respondent No. 1 was illegal, as a result of fraud and forgery. After framing of issues and recording evidence of the parties, the Civil Judge, Murree, District Rawalpindi, dismissed the suit vide judgment dated 13-8-2003. The appeal preferred by the petitioners before the Additional District Judge, Camp at Murree, District, Rawalpindi, also met the same fate and was dismissed by order dated 1-4-2006. Therefore, they filed Civil Revision No.272 of 2006 which was dismissed by a learned single judge of the Lahore High Court, Rawalpindi Bench, vide impugned judgment dated 16-9-2008.

2. The learned counsel for the petitioners submitted that the delivery of physical possession of immovable property being an essential ingredient of gift had not taken place in this case. Therefore, the so-called gift was invalid. Moreover, the respondent No.1 was not found to be residing with his father late Sardar Masih at the relevant time.

3. We have heard the learned counsel at length and have also perused the available record with his able assistance. Undoubtedly, both the parties are Christians. The High Court and both the Courts below recorded concurred findings of fact that the gift deed dated 17-7-1997 (Exh.Pl/D-10) was duly executed by Sardar Masih in favour of the respondent No.1 for the suit property, attested by two witnesses which was registered. The trial Court as well as the Appellate Court also found that the respondent was already in possession of the suit property.

4. Admittedly, both the parties are Christian by faith. The Muslim Personal Law is not applicable to them. The provisions of sections 122 and 123 of the Transfer of Property Act, 1882, governing gift of an immovable property in such a case, read as under;-- 122. "Gift" defined.--`Gift' is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.

Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

123. Transfer how effected.--For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered."

5. The requirements of making of a gift or its revocation by a non-Muslim of immovable property has been examined in a number of cases on the touchstone of the provisions of sections 122 and 123 of the Act. In Kalyanasunbaram v. Karuppa AIR 1927 Privy Council 42, it was held that where the donor of immovable property had handed over to the donee an instrument of gift duly executed and attested, and the gift had been accepted by the donee, the donor had no power to revoke the gift even prior to the registration of the instrument. The same view was reiterated in Venkat Subba v. Subba Rama Hegde AIR 1928 Privy Council

86. In Kali Das Mullick v. Kanhya Lal Pundit (11 Indian Appeals 218) it was held that where a donor had done all it could to complete the gift, such a gift could not be set aside as utterly void, because the donor was out of possession, and no possession was ever given to the donee". The full Bench of Allahabad High Court took the view in Lallu Singh v. Gur Narain (AIR 1922 Allahabad 467) that "Section 123 did away with the necessity of delivery of possession even if it was required by the strict Hindu Law, where a registered instrument of gift was properly executed and attested". In Jaidayal v. Umrao Harchand (AIR 1958 Rajasthan 199), while examining the provisions of section 123 of the Act it was held that "where the donor and the donee lived in the same house and the gift of the house has made subsequently by a registered deed, it was not necessary that the donor should have left the house in order to complete the gift. In Revappa v. Madhava Rao (AIR 1960 Mysore 97) it was observed that under section 123 of the Transfer of Property Act the emphasis was on the execution of an instrument but not so much on the actual delivery of the property and thus, the delivery of possession of the property gifted was not an essential ingredient for validating the gift under the law.

6. The learned counsel was not in a position to cite law to the contrary. In our opinion, the impugned judgment is plainly correct to which no exception can be taken. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. M.H./S-7/S Petition dismissed.