PAGE MISSED 1729 (PLP)

MALIK MUHAMMAD QAYYUM, J.‑‑‑This is a plaintiff's first appeal from the judgment and decree, dated 2‑5‑1992 passed by the learned District Judge, Lahore as trial Court whereby suit of the plaintiff/appellant was dismissed.

2. The dispute between the parties relates to a Bungalow No.24, The Mall, Jhelum, which was admittedly owned by the father of the parties, Syed Muhammad Abdul Latif. Initially all the three sisters of respondents Nos. l to 3 had filed the suit out of which this appeal has arisen in which a declaration was prayed for that deeds of gift, dated 14‑2‑1977 and 22‑11‑1986 were illegal, unlawful, void and of no legal effect and that each of the plaintiff had 1/9 share in the property which may be partitioned and separated. As a consequential relief it was prayed that the respondents be restrained from alienating the suit land. In the plaint it was alleged that Syed Muhammad Abdul Latif during his life time had transferred portion of the property to the appellant through a deed of acknowledgement dated 21‑7‑1985 of which she was owner in possession and that the remaining property was joint and was liable to be partitioned. The plaintiff claimed 1/9 share in the said property. She also stated that the so‑called gifts made on 14‑2‑1977 and 22‑11‑1986 were a void and ineffective against the right of the plaintiff inter alia for the reasons that the possession of the house was never transferred to the defendants and that the alleged donor has been using the property and exercising the right of ownership over the same till his death and that gift deed, dated 22‑11‑1986 was fake and the gift deeds are futile attempt to deprive the appellant of her due right.

3. The suit was defended by the respondents by filing a written statement in which it was denied that any portion of the property had been gifted to the appellant. On the other hand, it was claimed that the property in dispute was gifted through registered deed by Syed Muhammad Abdul' Latif in favour of his three sons, namely, respondents Nos. l to 3 and possession was also delivered pursuant to the gift. The learned trial Court framed the following issues raising out of the pleadings of the parties:‑‑ (1)??????? Whether the gift deeds, dated 14‑2‑1977 and 22‑11‑1986 are fictitious, illegal, ineffective and liable to be cancelled. OPP. (2)??????? Whether the plaintiff is entitled to get possession of suit property through partition to the extent of their alleged share therein? OPP. (3)??????? Whether the suit is not maintainable in its present form as the suit property was given to the defendants as a gift by late Syed Muhammad Abdul Latif Shah? OPP ??????????? (4)??????? Whether the defendants Nos. 1 to 3 are the owners of this suit property on the basis of gift as such the plaintiff has not locus standi to file this suit? OPD (5)??????? Whether the suit is time‑barred? OPD (6)??????? Whether the suit property has been under‑valued for the purposes of court‑fee, if so, with what effect? OPD (7)??????? Whether the suit property has not been properly described, if so, its effected? OPD (8)??????? Whether the plaint is incompetent without a site plan? OPD (9)??????? Whether the plaint is hit by Order 7 rule 20, C.P.C.? OPD (10) ???? Whether the suit is not maintainable under Order 7 rule 26, C.P.C.? (11) ???? Relief. '

4. In support of her case, the appellant examined PWA, Bashir Ahmad, clerk of the office of the Military Estate, Kharian, who stated that he had brought the original record, according to which the property bearing No.24, The Mall, Jhelum was owned by Syed Muhammad Abdul Latif and the Exh.P.1 was correct copy of the letter, dated 8‑9‑1986, while copy of G.L.R. was Exh.P.2 and that of the surrender deed executed by Syed Muhammad Abdul Latif was Exh.P.3. He further stated that photostat of the declaration of the gift in favour of defendants Nos. l to 3 was on the file but no action had been taken. He stated that original of Exh.P.4 is on the record but no action was taken on this document also. In the cross examination he admitted that photo copy of the declaration registered on 6‑6‑1977 was on the file. He, however, stated that none of the documents was executed in his presence and he was making a statement from the record. The only other witness produced by the plaintiff was her attorney, Tanvir Bashir, whose statement was recorded as P.W.2. He reiterated that Syed Muhammad Abdul Latif during his life time had gifted a part of the property to the plaintiff while the remaining property continued to be in his ownership and no gift was ever made by Syed Muhammad Abdul Latif. He deposed that gift Exh.D.A., was a fictious document and that the deceased had remained in possession of the Bungalow throughout his life.

5. In rebuttal, the respondents have examined Malik Fazal Elahi as D.W.1 who was the scribe of the gift deed Exh.D.A. and deposed that the document was scribed by him at the request of Syed Muhammad Abdul Latif, who had‑ signed the same in his presence. ‑Syed Mahmood Jafri, Advocate appeared as D.W.2 and stated that he had attested gift deed as Exh.D.A., as a marginal witness and that Syed Muhammad Abdul Latif had signed the document in his presence. He further stated that the agreement Exh.D.B. was in his handwriting which bears his signatures.

5. The learned trial Court by means of its judgment and decree, dated 2‑5‑1992 dismissed the suit filed by the plaintiff/appellant, on the findings that the respondents have been successfully able to prove that the property in question had been gifted to them which was complete in all respects and, therefore, the suit was liable to be dismissed. In coming to this conclusion the main reliance was placed by the learned District Judge on the gift deed Exh.D.A. and other documents Exh.D.3 to Exh.D.C.

6. It has been contended by the learned counsel for the appellant that the learned trial Court has not examined the case in its true perspective and has failed to consider that the defendants/respondents had been taking contradictory pleas throughout the trial and they were themselves not certain of their title and the basis thereof. It was elaborated that though the defendants claimed to have become owners of the property on the basis of gift deed, dated 14‑2‑1977 yet they prepared another gift deed allegedly signed by the donor on 26‑11‑1986. It was urged that the gift was incomplete for two reasons, firstly, that the possession of the house was never delivered by Syed Muhammad Abdul Latif to the defendants but he remained in possession of the same throughout his life and secondly that there is no evidence that the gift was accepted at the relevant time by the respondents.

7. The respondents' learned counsel has, on the other hand; refuted these contentions and has re‑iterated that the respondents were donees under a valid gift made by their father in their favour. He further submitted that the gift was complete in all respects as possession of the house was delivered to respondents Nos. l to 3 at the time when the gift was made.

8. Having heard the learned counsel for the parties at length and perused the record we are of the view that the findings recorded by the trial Court are not sustainable and stand belied by the record. The fundamental question which was in issue between the parties was as to whether any gift had been made by Syed Muhammad Abdul Latif in favour of his three sons viz. respondents Nos. l to

3. In order to prove the factum of the gift, the respondents had heavily relied upon the document Exh.D.A. Although this document has been proved on the record through the statement of D.W.1., Malik Fazal Elahi and D.W.2, Syed Mahm6od Haider Jafri, Advocate, but it is highly doubtful that the said document was executed by the deceased. In any case, a perusal of the record shows that this gift was never acted upon by the parties and it is only for this reason that the respondents had taken up the plea that subsequently on 22‑11‑1986 a gift was made in their favour by the deceased. It is difficult to understand as to how could a second gift of the same property be made in favour of same donees if the donor had already parted with the ownership and possession of the land as far back as 14‑2‑1977. In such a situation, the question of making any second gift on 22‑11‑1986 could not have arisen. Although the second gift deed has not been proved but since it has been produced by the defendants themselves `it can be used as a piece of evidence.

9. This document which was allegedly executed by Syed Muhammad Abdul Matif on 22‑11‑1986, seciues that Syed Muhammad Abdul Latif, had, about four years earlier made an oral gift of the property in gavour of his three sons who are owners of the same. It was claimed that the possession was also delivered to them at that time. This document is attested by the Oath Commissioner as also Magistrate 1st Class at Islamabad on 23‑I1‑1986. This gift declaration is destructive of‑ the case of the respondents that any gift was made in their favour by their father on 14‑2‑1977. It is also interesting to notice that this document bears the signatures of all the three defendants in token of, acceptance of gift. While according to this documents, the earlier oral gift was made, four years ago i.e. in 1982, while the defendants claimed that registered deed of gift was executed on. 14‑2‑1977/ This contradiction has not at all been explained by the defendants.

10. There is sufficient evidence on the record to show that till his death Syed Muhammad Abdul Latif had been dealing with the property as an owner. It is an admitted fact that in the record of the Military Estate Office, the property remained throughout in the name of Syed Muhammad ‑Abdul Latif and the so‑called gift was never given effect to. The letter Exh.P.1 addressed by the Military Estate Officer to Syed Muhammad Abdul Latif by virtue of which he was informed of the segregation and resumption of some area out of the total holding. The G.L.R. register maintained by the Cantonment Board as Exh.P.2 also bears the name of Syed Muhammad Abdul Latif. Exh.P.3 is a document of much more importance which is a surrender deed executed by the Syed Muhammad Abdul Latif on 19‑3‑1985 with respect to a part of the property in favour of President of Pakistan. One of the witness of the document was Syed Khalid Javaid Shah, respondent No.3. If. Syed Muhammad Abdul Latif had already transferred the property by means of a gift in writing, the question of execution of surrender deed by him would not arise. The defendants had produced Exh.D.1, a copy of a letter. addressed by Syed Muhammad Abdul Latif to the Military Estate Officer, but according to the statement of P.W.1 this document was never given effect to in the record maintained by the department.

11. More importantly the respondents, have failed to prove that possession of the property was delivered to them at the time of the gift. Admittedly, Syed Muhammad Abdul Latif was living in the property and he continued to do so even after the alleged gift and breathed his last in the said Banglow. It has not been explained as to the capacity in which Syed Muhammad Abdul Latif continued to live in the property after he had allegedly divested himself of its ownership. There is nothing on the record to show that the donees viz. respondents Nos.1 to 3 were living in property alongwith their father. It was, therefore, essential to prove that the donor has walked out of the property in question at the time of making of the gift and possession was taken over by the respondents. In any event, in order to effectuate the gift it was necessary that Syed Muhammad Abdul Latif should have at least attorned in favour of the respondents and acknowledged that he was in possession either as a tenant or licensee but no such evidence has been produced.

12. It is indisputable position of law that delivery of possession is essential to the validity of gift. The nature of possession which would satisfy this condition depends upon the facts of each case. As a general principle, however, it is to be stated that the donor must do all he could do to divest himself of the ownership and domain over the property. In Muhammad Sarwar and 6‑others v. Muhammad Iqbal and others (1997 MLD 130) it was observed that where the donor was himself in actual physical possession of the corpus the delivery of possession would normally require actually putting the donee in physical possession thereof. But where possession was not with the donor himself or where the donee was already in possession jointly or severally with the donor or where the donee was minor and the donar was minor's guardian, it would not be necessary for the completition of a valid gift under the Muhammadan Law to put the donee in actual physical possession of the gifted property, In such case, if the donor did all that could do to divest himself of the ownership and domain over the property, the gift would be complete.

13. In the present case, as already rioted above, donor was in physical possession of the property at the time when he made the gift and, therefore, under the normal law he was required to put the donees in physical possession of the property. There is no evidence on the record to show hat the donor did so. On the other hand, it is and admitted fact that the donor continued to live in the `same house till his death. Similarly, respondents Nos. l to 3 have not led any evidence to show that they were in joint possession of the property with their father before the gift nor is there anything on the record to justify the conclusion that the donor had divested himself of the corpus. On the other hand, it is proved on the record that the donor has been dealing with the property as‑ an owner even after having made the gift.

14. While on this aspect of the case, it may be noted that the learned District Judge has taken the view that since there was a declaration in the gift deed itself that the possession has been delivered to the donees, it was sufficient to show that there has been delivery of possession. This observation of the learned District Judge is legally unsound. In Ghulam Hassan and others v. Sarfraz Khan and others (PLD 1956 SC (Pak.) 309), it was held that a mere recital in the deed of gift was not conclusive proof of delivery of possession. Again in Ashiq Hussain and another v. Ashiq Ali (1972 SCMR 50) it was laid down that the mere recital in the gift deed that possession has been delivered to the donees was not enough. Also see Shamshad Ali Shah v. Hassan Ali Shah (PLD 1960 Lah. 300).

15. The other error in which the learned District Judge fell was that he took the view that as the gift was being made by the father to the sons, delivery of possession was not necessary. This principle is applicable to those cases where son/donee is a minor and not when the property was being gifted by the father to a major son. Reliance in this respect may be placed on Ghulam Hassan and others v. Sarfraz Khan and others (PLD 1956 SC 309). No efforts was made by the respondents to produce any evidence to show the delivery of possession. The only evidence in this behalf is the statement of one of the respondents who while appearing. as his own witness had made bald assertion that the possession of the house was delivered to the donees. The manner in which delivery of possession had taken place had not been explained. As already observed. Throughout his life Syed Muhammad Abdur Latif had been living in the house where he met his death. Since he was in physical possession of the property before the gift, it was essential to the validity and completion of the gift that he should have delivered the actual 4 physical possession to the donees.

16. From the discussion made above, it follows not only that Syed Muhammad Latif had remained in possession of the property but also that even subsequent to the so‑called gift he has been dealing with the property as a owner. The learned District Judge had erred in observing that since there was a declaration in the gift‑deed Exh. D.A. that possession had been delivered, it was sufficient to meet the requirement of Islamic law. In Mulla's Mahomedan Law, paragraph 148 of 17th Edition, it is stated that it is essential to the validity of the gift that a donor should divest himself completely of all ownership and domination over the subjects of the gift. It is axiomatic and needs no gain saying that it is essential to the validity of the gift that there should be delivery of such possession as subject of the gift is F susceptible. The person relied upon the gift has to establish by convincing evidence that either physical or at least constructive possession was delivered to him by the donor. It has not been explained by the defendant in their written statement that in what capacity Syed Muhammad Abdul Latif continued to remain in possession even after the so‑called gift. In cases, where the donor is in actual physical possession of the property, it is essential that physical possession shall be delivered to the donees.

17. It follows from the above discussion that no valid gift was made by Syed Muhammad Abdul Latif during his lifetime in favour of respondents Nos. 1 to 3 and the learned District Judge has erred in holding to the contrary. As a consequence of what has been stated above, this appeal is allowed, the impugned judgment and decree is set aside and it is held that the appellant is entitled to 1/9 share in the property. Her suit stands decreed accordingly. Q.M.H./M.A.K./F‑10/l.?????????? Appeal allowed.