P L D 1975 Karachi 416 (PLP)

1. Mir Illahi Bux, the father of the appellant No. 2 and the uncle of the respondent, was the owner of 6 plots, bearing Nos. 8 to 13 in the town of Mehrabpur, and measuring 14,036 sq. ft. which were in unauthorized occupation of squatters who had raised some constructions thereon. The plaint disclosed that Mir Illahi Bux had gifted these plots to the respondent in 1956 and the possession thereof was delivered to him by the bailiff of the Court in execution of the decree against the unauthorized occupants in September 1957. Mir Illahi Bux had died in 1958, and the appellants Nos. 2 and 3 as his heirs, notwithstanding the title and possession of the respondent, had sold these plots to the appellant No. I or Rs. 25,000 purporting to be the consideration for the plots. The reliefs claimed were a declaration that the plots were 'the exclusive property of the respondent and the sale thereof in favour of the appellant No. 1 was a nullity in law; and a permanent injunction restraining the appellants from interfering with his possession. The allegations came to be resisted by all the defendants therein, on a number of grounds. On the basis of the pleading, a number of issues were raised, but the contest was confined only to issues Nos. 1 and 2 which were as follows:‑ "(1) Whether Mir Illahi Bux has gifted these plots under dispute to the plaintiff in the year 1956, as alleged in para. 3 of the Plaint 7 (2) Whether the possession of the plots was handed to the plaintiff by Mir Illahi Bux after the said gift, as alleged in paras. 4 and 5 of the Plaint ?"

2. The learned Joint Civil Judge answered both the issue in the negative as according to him, the delivery of possession to the respondent was not n the capacity of donee, but as a representative of Mir Illahi Bux, and even before that the gift had been revoked by Mir Illahi Bux. He, therefore. dismissed the suit with costs. The respondent preferred an appeal which came to be allowed by the Additional District Judge with costs, His finding was that there was no revocation of gift ; at any rate, it was after the possession of the plots had been handed over to the respondent by the bailiff of the Court under the direction of Mir Illahi Bux, and thus the gift had been completed earlier.

3. The respondent, apart from himself had examined as many as 6 witnesses. The appellants Nos. 1 and 2 appeared as their own witnesses. The respondent's case however was, that the land in dispute had been gifted to him in November 1956, through correspondence. In that context, there is a letter, Exh. 57, addressed by the respondent to Mir Illahi Bux, which is dated 12th November 1953, and the reply from the letter is in November, but without any mention of the year. Then there is another set of letters towards the end of 1957, after the possession of the lands had been obtained by the respondent, through the Court's bailiff.

4. The letter written by the respondent opens with his plight, as a result of the withdrawal of maintenance to him and his family members, by his father. It also mentions that though his earlier request to him (Mir Illahi Bux) for being provided accommodation had remained unheeded, yet, "being nearest after father", he still wanted to. give him `'a chance of serving me." It went on to say that he was prepared to purchase the plots in dispute for a reasonable price, with the idea that he might raise constructions thereon and "arrange for my livelihood". It further went on to say " . . . .I would have not mentioned the words of the payment of price, but I see, that when father did not recognize my right, then what claim can I have on my uncle".

5. The reply was that he could not part with the house, as Hussain Bux (the appellant No. 2), bad no other house to live in. However, the respondent could retain any number of plots as he liked, though he might as well consider leaving three of them to Hussain Bux. It went on to say ; very time, every moment, I am prepared to give blood for the children of my father. It went on to say that the very idea of accepting any money was just abdominable, and he was willing to execute the documents any time before the registering authority. The matters rested thus till Mir Illahi Bux. in January 1957. filed a suit in the Court of the Civil Judge 1st Class, Nawabshah, against the squatters) and obtained an ex parte decree. The possession of the plots was delivered on 9‑9‑1957 by the Court's bailiff, P. W. Muhammad Qasim to the respondent on behalf of Mir Illahi Bux. After obtaining the possession, the respondent again wrote a letter to Mir Illahi Bux. Inter alia he wanted an assurance from the uncle, whether the latter still stood by his words, in which case, he would go forward with the con struction of his choice. The reply was that he would talk about the plots personally and the respondent should not be displeased for the same possession of the plots was delivered on 9‑9‑1957 by the Court's bailiff, P. W. Muhammad Qasim to the respondent on behalf of Mir Illahi Bux. After obtaining the possession, the respondent again wrote a letter to Mir Illahi Bux. Inter alia he wanted an assurance from the uncle, whether the latter still stood by his words, in which case, he would go forward with the con struction of his choice. The reply was that he would talk about the plots personally and the respondent should not be displeased for the same.

6. Gift in the language of law means a transfer of property immediately and without any exchange. The requirements of valid gift in the words oil Syed Amir Ali, in his commentary on Muhammadan Law, 4th Edition j page 41, are "(a) manifestation of the wish to give on the part of the donor (b) the acceptance of the donee, either impliedly or expressely, and (c) the taking of the subject‑matter of the gift by the donee, either actually or constructively". It presupposes a bona fide intention on the part of the donor to divest himself In praesenti of the property and to confer it upon the donee. In accordance with the Muslim Law, it is complete once the possession is delivered, subject to an exception only in the case of gift to a minor by his father or other guardian. The learned Civil Judge found that Mir Illahi Bux had made the gift, in clear and unequivocal terms. He also found that there was also acceptance on the part of the donee. He, however, held that it was not accompanied by seisin or actual delivery of the subject‑matter of the gift, and later on it came to be revoked.

7. It was contended. by Mr. Ali Ahmed Fazeel, learned counsel for the respondent, that as there was no cross‑appeal or cross‑objection against the finding of the learned Civil Judge in regard to the declaration by the donor, or the acceptance on the part of the donee, it will be deemed that these findings were accepted by the defendants. Reliance was placed on Rashan All arid others v. Mst. Abedur Nesa aid takers (P L D 1963 Dacca 712). He further contended that once the gift had been completed, it could not be revoked, as the respondent was a relation of the donor within the prohibited degree.

8. According to Baillies' Digest of Muhammadan Law, Third Im pression, page 533 : "The revocation of a gift is abominable under any circumstances, but it is valid nevertheless . . . . . All may be revoked before delivery to the donee, whether he was present or absent at the time of gift and whether he was permitted to take possession or not. But after delivery the donor has no right of revocation, when a gift is to a relation within the prohibited degree. With regard to all others besides these, he has the right of revocation, except that after delivery, he cannot revoke it himself and the revocation requires the decree of a Judge, or the consent of the donee. Previous to delivery, however the donee can revoke the gift to himself in whole or part". There is also a consensus of authority that it is not necessary that the donor and the donee should be of the opposite sexes, so as to come within the prohibited degree or relationship for purposes of the revocation of gift (See Tajja Khan v. Mazhar Khan (A I R 1952 All. 614), Muhammad Lati'v. Muhammad Nawaz (P L D 1960 Lah. 130) and Bahadur v. Jan Muhammad (P L D 1960 Kar. 745).

9. As held by their Lordships of the Privy Council in Jhumman v. Hussain and others (129 1 C 161 ), possession taken at a subseqent period may also be effective provided it has been obtained with the consent of the donor. The same has been taken in Aaj Khan and others v. Fazal Husain and others (1972 S C M R 267). `The only question that remains to be examined is whether the gift had been accompanied by seisin or actual delivery of the subject‑matter on 9‑9‑1957.

10. Within five weeks of the declaration of gift, Mir Illahi Bux had filed a suit for the possession of the plots against the squatters. It was Suit No. 1 of 1957 against Jamaluddin and 12 others. The plaint mentioned that he had purchased the same in 1939, and was the full owner thereof ever 'since. The relief sought inter alia was that he be put in possession of the plots. The suit was not resisted and resulted in an ex parte decree in March. The possession was given to the decree‑holder on the 9th of September by Muhammad Qasim, a bailiff of the civil Court. He had been examined by the respondent and has stated that he had met Mir Illahi Bux in connection with the execution of the decree. The material portion of his evidence is: "I gave possession to Hyder Bux on the direction of Mir lllahi hux, though he was not his Mukhtiar, but he was looking after his affairs". There is nothing more than that in the case, even in the statement of the respondent.

11. It was contended by Mr. Ali Ahmed Fazeel, that Mir Illahi Bug had filed the suit, because the title of the respondent was imperfect, in the absence of the delivery of the plots to him. If Mir Illahi Bux, however, wanted to divest himself of the ownership, here was an occasion to come out in clear terms, as to how the matters stood and what necessitated the filing of the suit in the terms it was filed. The testimony of Muhammad qasiat clearly shows the, the possession to the respondent was only as a agent of representative of Mir lllahi Bux. The respondent does not say, that Mir 1tlahi 13ux ratified the possession to him as donee. That accounts for the letter of the respondent dated 15.12‑1957, in which he mentions the Jots as "your plots' and seek permission to raise constructions of his choice thereon. The reply to the same has been referred to earlier. It is obvious that Mir Illahi was to r a between the loyalty to his son, with whom apparently he was not too happy and his desire to be helpful to a nephew, and ultimately bowed before the instructive urge. It is to be seen that though he lived for over any year, even after execution of the decree, there was no mutation of names and the plots continued in his name. Even earlier, only a copy of Ijazatnama and the sketch of the plots were passed on to the respondent, while the original documents were retained by him and were yrodaced at the teat by tire appellant No. 2.

12. As Mir lllahi Bux did not divest himself of the ownership of these plots and the possession was not given by him to the respondent, the gift was invalid and ineffective. On the death of Mir Illahi Bux, these devolved on his heirs who were free to dispose of any way they liked. See Shamshad All ,shah and others v. Syed Hassan Shah and others (P L D 1964 S C 143), Amir Muhammad Khan v. Dost Muhammad and others (1968 S C M R 859), Jhamman v. Hussain and others (1291 C 161), Qamruddin v. 1141a. Basan Jars (A I R 1935 Lah. 795), Pani lihujooronissa v. Roshan arid others ((1876) L R 3 T A 291) and K S. Agha hl it Ahmed Shah acrd others v. K. S. Agha Mir Yaqab Shah (P L D.1957 Kar, 758).

13. In the result, I would set aside the Judgment and Decree pawed by the learned Additional District Iudge and allow the appeal, but with no order as to costs. Appeal allow.