1999 PLP 1687 (MLD)

(1) Whether plaintiff is in possession of the suit land and mutation No.30, dated 16-1-1983 regarding suit land in favour of the plaintiff is based on fraud and misrepresentation and inoperative qua the rights of the plaintiff. (2). Whether the plaintiff is estopped by his words and conduct to file this suit? (3). Whether the plaintiff has no cause of action to bring this suit? (4) Whether the suit is barred by time? (5). Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? (6). Whether suit of the plaintiff is not maintainable? (7). Relief Learned Civil Judge dismissed the suit vide judgment and decree dated 19-7-1988. Appeal of the respondent was accepted against which present revision has arisen.

5. Learned counsel for the petitioner contends that gift made by the respondent was irrevocable in view of para. 167 (2)(B) of the Muhammadan Law. He further submits that the petitioner was not married at the time of tamleek of the dispute property in her favour. Other daughters of the respondent were married and settled in their houses. He had no male issue and in order to provide financial security to the petitioner the gift was made voluntarily. He appeared before the Revenue Officer and pronounced the gift which was accepted by the petitioner and possession of the property was delivered to her. Since the sanction of the gift mutation petitioner is in possession of the disputed property. The gift is complete and is irrevocable and unchallengeable. Finally argued that son-in-law of the respondent who was living with him as Khana Damad has taken his wife to his own house who has unfortunately expired and is being represented by her daughters, caused displeasure to him whereupon the instant suit was instituted.

6. Learned counsel for the respondent on the other hand submits that possession of the suit property was never delivered to the petitioner. Donor remained in possession throughout of the disputed property. The gift was not complete, therefore, para. 167(2)(B) of the Muhammadan Law referred by the petitioner is not applicable. He further asserts that other daughters of the respondent cannot be deprived of his property who are expected to inherit the same in case of his demise alongwith the petitioner. He has supported the Judgment of the lower Appellate Court.

7. I have heard the learned counsel for the parties at length and perused the record minutely with their assistance. Petitioner/defendant Produced Ashiq Ali, Basharat Ali, Nisar Ahmad, Karam Din, Muhammad Ismail as D.W.1 to 'D.W.5 respectively and herself appeared as D.W.6. All the D.Ws. have supported the claim of the petitioner. They have asserted that respondent has voluntarily gifted the suit property to his daughter Mst. Hameeda Bibi Petitioner. She was not married at the time of mutation of tamleek. His other daughters were married and were settled in their houses. He had no male issue and in order to provide some security to his unmarried daughter he himself executed tamleek in her favour. He appeared before the Revenue Officer and on his own statement tamleek was sanctioned. He also delivered possession of the disputed property to his daughter in recognition of the gift. The witnesses of tamleek have also supported the version of the petitioner/defendant in whose presence tamleek was made. The gift was made in recognition of her services by her father. This plea of the defendant is also supported by evidence of Karam Din D.W.4. and Muhammad Ismail D.W.5 in addition to other witnesses who have specifically stated that parties are known to them and property was gifted to the petitioner by respondent voluntarily in view of her services rendered to him and in order to provide financial security to her. The suggestion of the respondent was categorically denied that tamleek was not executed by the respondent voluntarily. Other witnesses have also supported her version in detail. The evidence of the aforesaid witnesses was relied upon by the learned Civil Judge also while decreeing the suit in her favour.

8. I am convinced that the petitioner has established her assertion made in the written statement through reliable evidence referred above. Petitioner is the youngest daughter of the respondent. At the time of gift she was not married whereas other daughters were married and settled in their houses which persuaded the respondent to gift away the demised property in her favour. Shy was living with the respondent at the time of execution of the gift. Her possession is also evident from the evidence on record. The entries in the Roaznamcha entered at the instance of respondent show that possession was delivered to her by her father and he was holding land on her behalf. The possession of respondent was on behalf of her daughter Mst. Hameeda Bibi the donee. Revenue record placed on the file clearly establishes that respondent is in possession through the donee.

9. As compared to documentary evidence produced by the petitioner oral evidence of the respondent is unreliable and unnatural. The evidence of respondent does not inspire confidence. Admittedly, Wali Muhammad had no male issue. Petitioner was his unmarried daughter. Keeping in view his old-age he opted to transfer the disputed property to her, so that she may have some source of income as his other daughters were all married and settled in their own houses. The evidence of P.W.1. and P.W.2. to the effect that the disputed property was not gifted to the petitioner and no mutation was sanctioned in her favour is of no avail to him. His witnesses have admitted that they were not present at the time of attestation of the tamleek. Similarly his own statement as P. W.3 does not refer to any fraud or misrepresentation. Only P. W.1 has stated that mutation was forged. Statement of P.W.1 is not supported by any other evidence of the respondent. It is admitted by witnesses of the respondent that petitioner was married with Munir Ahmad by respondent himself and at the time of their marriage they had cordial relations with each other. The overall examination of the evidence of the respondent reveals that the disputed property was gifted by respondent to Mst. Hameeda Bibi his daughter with free-will and it was complete in all respects.

10. Now coming to the legal position asserted by the learned counsel for the petitioner that gift in dispute is irrevocable, reference is made to para. No. 167 (2)(B) of the Muhammadan Law by D.F. Mulla which is reproduced below:- "

167. Revocation of Gifts.--(1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no complete gift at all. (2) Subject to the provisions of subsection (4), a gift may be revoked even after delivery of possession except in the following cases:- (b) When the donee is related to the donor within the prohibited degrees;" A complete gift in which possession has been delivered is irrevocable if the donee is related to the donor within prohibitory degree. Petitioner is admittedly daughter of the respondent. Gift was pronounced by the respondent and accepted by: the petitioner possession of the disputed property was also delivered to the petitioner. Such a gift by the father to daughter in view of the aforesaid provisions of Muhammadan Law is irrevocable. It may also be noted that aforesaid gift was not sanctioned by the respondent himself and delivery of possession was also reported by him to the Revenue Officer. He cannot be allowed to contend that the gift was invalid due to non-delivery of possession. Reference has been made to 1980 SCMR 765, Syed Lal Hussian Shah v. Kausar Hussain Shah. The relevant paragraph No.4 of the aforesaid judgment lays do" n as under:- "(4) The learned Judge in the High Court held that in view of the fact that the petitioner had claimed himself to be in possession and made statement regarding delivery of the possession in favour of the respondent he was now estopped under the law to take up the position that the gift was invalid on account of non-delivery of possession. Mr. Iftikharul Haq Khan, again re-agitated before us the same submission, as was urged in the High Court, but after hearing the learned counsel and perusing the available record we have reached the conclusion that the view expressed by the learned Judge that in the circumstances the petitioner should be held as estopped from challenging the factum of gift in favour of his own son requires no interference and that this is not a fit case for grant of leave to appeal. This petition, therefore, fails and is dismissed hereby." On the strength of the aforesaid judgment, too, respondent cannot claim that the tamleek made by him is invalid. The assertion that other daughters of the respondent shall be deprived of his property in case disputed gift is not declared invalid is without substance. Owner of any property has unfettered power to gift away his property according to his own wish. Deprivation of some of his prospective heirs of the property in no way stands as hurdle in his authority to transfer the property by way of gift to any person he likes. Reference in this behalf has been made to 1994 CLC 1774, Mst. Rasul Bibi v. Nasrullah Khan wherein it was held that result of gift was deprivation of some of his heirs whereby donor consciously and intentionally interrupted deduction of devolution of his property through means of 'Hiba' by favouring one of the heirs or even a stranger of choice at the cost of other heirs. Such course of action is permitted by Muhammadan Law. Mere fact that a full-fledged Muslim owner disposes of his whole or in part, property in favour of one of his heirs to the exclusion of other heirs, be it with such an intention or not, validity of gift is unassailable on this ground. A Muhammadan may disposes of whole of his property by way of gift in favour of even a stranger to the entire exclusion of his heirs. The donor has unfettered powers to gift away his property to whom he likes.

11. Deprivation of other daughters of respondent is immaterial as far as his power of gift of his immovable property is concerned. The contention of respondent on this ground is against the law referred above. Similarly, the Supreme Court in case of Noor Muhammad Khan and three others v. Habibullah Khan and 27 others (PLD 1994 SC 650) held "that gift of immovable property otherwise validly made in favour of one completely excluding other heirs is not void". Under the Muslim Law a person owning property has a right to dispose of whole or part of that and there can be no objection to it. He can dispose of the property by way of sale, gift, will or Waqf. The Holy Qur'an does not prohibit a gift in favour of a heir excluding other heirs.

12. If three ingredients of gift i.e. offer, acceptance and delivery of possession are complete from a document then such a document in substance is a gift deed. It can be oral as well as written. It is provided under the Muhammadan Law that a gift deed need not be compulsorily registered and it can be effected even orally or under any other unregisterably instrument as laid down in the case of Allah Bakhsh and 3 others v. Mst. Bakht Bhari (1990 CLC 2027) and the same cannot be revoked after delivery of possession when the donee was related to the donor within the prohibitory degree. In the case cited above, there was also dispute between father and daughter like the instant case and it was held that no revocation of gift could be made after delivery of possession when donee was related to the donor within the prohibited degree. Donor and the donee being father and daughter, gift made in favour of the daughter could not be revoked. Donor had no authority to alienate his property when it had become absolute property of the donee.

13. Essentials of a valid gift were faithfully fulfilled leaving no valid objection to be raised about its validity and subsequently validity of the gift could not be objected by the donor, as laid down in Muhammad Yousaf and others v. Mst. Amina Bibi (1991 CLC Note 215). The Supreme Court in the case of Muhammad Bashir v. Allah Ditta and others (1994 SCMR 1870) held as follows: "Power to make alienation by way of gift. Muslim donor has unfettered power to alienate his property by way of gift or otherwise during his lifetime provided he was in proper state of health and gift was made in exercise of his independent voluntary discretion. "

14. Keeping in view the law laid down in the aforesaid judgments I am clearly of the view that the tamleek in dispute was voluntarily made by the respondent in favour of his daughter Mst. Hameeda Bibi, petitioner. He pronounced the gift which was accepted by the donee and possession was delivered to the petitioner. All the ingredients of a valid gift were completed. Donor has no authority to revoke the gift through instant proceedings. The impugned judgment is not based on proper appraisal of evidence and the law referred above. The impugned judgment and decree of the Appellate Court is accordingly set aside and that of the Trial Court is restored with no order as to costs. C.M.A./H.50/L Revision accepted.