P L D 1984 Supreme Court 392 (PLP)

NAstM HASAN SHAH, J.-The dispute,- in this case, concerns an area measuring 55 Kanals 19 Marlas of agricultural land in village Kabirpur, Tehsil and District Multan. Ahmad Hussain, shortly before his marriage, made a gift of 66 Kanals of land (including the above-mentioned 55 itanals 19 Marlas) on 13-12-1965 in favour of his fiance Mst. Saeed Fatima (daughter of Ghulam Ahmad). They were thereafter married on 14-6-1957. . Although both of them were deeply attached to each other, but were overwhelmed by the forces outside and only about five months after their marriage committed suicide, by jumping into a well, on the night between 15/16th November, 1957 gad thereby ended their lives. The worldly affairs, however, continued to take their course and a mutation of succession to their property had to be recorded. In this connection, the mutation regarding Ahmad Hussain's succession was entered in favour of his father Hafizullah and mother Mst. Karam Elahi by the revenue authorities, even though the land stood in the name of Mst. Saeed Fatima under the earlier gift. The parents of Mst. Saeed Fatima, therefore, filed a suit for possession of the land gifted to Mst. Saeed Fatima, as also for 1/4th share of the other land of Anmad Hussain. The learned Civil Judge, Multan, hearing this matter, by his judgment dated 12-11-1902, decreed the suit regarding gifted land but dismissed it regarding 1/4th share of the remaining land of Ahmad Hussain. The successors of Ahmad Hussain dissatisfied with the above judgment and decree challenged it by filing an appeal. The Additional District Judge, Multan, who heard the same, accepted it on the ground that it was not established theft the gift of the land in favour of Mst. Saeed Fatima had become complete. Since there was no acceptance by her nor the delivery. of possession in her favour was proved. On second appeal to the High Court, however, a learned Judge of the Lahore High Court found that the gift was in the nature of "Hiba-bll-iwaz", as the land was being transferred by the husband in favour of his wife in lieu of dower. Iii such a gift, he observed, no question of its acceptance of proof of delivery o. possession arose ; furthermore, he added that even though Ahmad Hussain may have been collecting rents of the land, the presumption would be that after the marriage, the collection of rents etc. by Ahmad Hussain deceased was on behalf of his wife and not for himself. He went on to say that Ust. Saeed Fatima deceased being `Pardanashin' lady could not collect the rents herself, particularly when the couple was newly married and there was no cause for the donee to collect the rents herself and not to rely upon her husband in this connection. According to the learned Judge, in the absence of strong evidence to the contrary it would be presumed that the produce of the land was collected by Ahmad Hussain deceased on behalf of his wife. He added "that the fact that both the deceased had committed suicide together showed that they were very much attached to each other and wanted to live and died together and could not tolerate separation. In view of such love and affection there was absolutely no scope to think that Ahmad Hussain deceased had been managing the property and collecting the rents during the brief period of six months on behalf of himself and not for his wife". He, therefore, concluded that the opinion expressed by the learned Additional District Judge that after the marriage, the donee did not get the possession with the permission of the donor was not sound. Accordingly, differing with the opinion of the learned Additional District Judge, he held that the finding of the learned trial Judge that the gift had become complete was correct. The decree of the learned trial Judge was, accordingly, restored. In the meantime, it appears that the mother of Ahmad Hussain deceased had died and her legal representatives had not been brought on record. He, therefore, found that the appeal had abated to the extent of her share (namely, 116th share of the mother of Ahmad Hussain, deceased). The parents of Ust. Saeed Fatima were, therefore, held entitled to 5/6th share of the property. This petition for leave to appeal is directed against the above judgment and decree of the High Court. Ch. Muhammad Anwar Bhuttar, in support of this petition, argued that in a case where a gift is made before nikah, the presumption of delivery of possession, which arises in the case of a gift by a husband in favour of his wife who are living together, would not arise. In this connection, he pointed out that the gift in this case was made six months before the nikah between the parties, when Mst. Saeed Fatima was only the fiancee of Ahmad Hussain deceased and not yet married to him. The above submission of the learned counsel is no doubt correct on the strictly legal plane. However, in the circumstances of this case; the fact that the gift was made by Ahmad Hussain to Mst. Saeed Fatima at a point of time when she was yet only his fiancee would not affect the situation. As pointed out by the High Court, the gift (Thmleek) recorded in the mutation shows that it was being made in lieu of dower. The marriage also took place shortly thereafter and all the circumstances reveal that the husband was not only willing to adhere to the gift made by him in favour of Alst. Saeed Fatima but was also prepared to sacrifice his life for her. We have, therefore, no doubt that the view expressed by the High Court that the gift in favour of Mst. Saeed Fatima was complete, was clearly the correct view in the peculiar circumstances of this case. The petition must, therefore, fail and is, accordingly, dismissed hereby. M. z. M.? Petition dismissed.