2008 PLP 131 (CLC)

RAFIULLAH SULTANI, J.

This appeal was directed against the judgment and decree of Additional District Judge, Rawalakot, dated 30-6-2004, whereby the judgment and decree of Sub-Judge, Thorar dated 25-9-1998 was partly accepted. Brief facts of the case are that Mirzaman Khan had four sons namely Muhammad Enayat, Muhammad Ashraf, Muhammad Sharif and Muhammad Aziz. Mirzaman Khan, vide a registered gift-deed dated 25-3-1984, transferred his total share measuring 33 Kanals, bearing Survey Nos.1739, 1743, 1018, 710, 1090, 1067, 1010, 1051, 1498, 1000, 4488, 7789, 4489 and 4490, situated at Village Thorar in the name of one of his sons Muhammad Sharif. Feeling aggrieved by the above mentioned gift-deed, rest of three sons of Mirzaman Khan namely Muhammad Aziz, Muhammad Enayat Khan and Muhammad Ashraf Khan filed a declaratory suit against their brother and father challenging A the gift-deed executed in favour of Muhammad Sharif, dated 25-3-1985 in the Court of Sub-Judge, Thorar. It was alleged in the plaint that the gift-deed is against the law and is inoperative against the rights of the plaintiffs to the extent of 3/4 and gift-deed is not valid due to non-delivery of possession. It was also alleged that a private arrangement had been made by their father his said land according to equal shares among his sons and all the sons are in enjoyment of their respective shares of the said land and effected improvement on it in shape of construction of house. The said gift-deed is being without possession to the extent of 3/4 of gifted land be repudiated. The record was destroyed on account of fire and suit was reconstructed on 1-11-1990. The suit was contested and the parties led their evidence according to their respective claims for and against. After hearing the parties, Sub-Judge, Thorar passed the judgment and decree, dated 25-9-1998 against the appellant Muhammad Sharif and struck down the gift-deed dated 25-3-1984. Feeling aggrieved from the judgment and decree of Sub-Judge, Thorar, dated 25-9-1998, appellant filed appeal before Additional District Judge, Rawalakot on 1-11-1998, whereby the appeal was partly accepted and the gift-deed was remained intact according to the possession of the appellant. The appellant has challenged the judgment and decree of Additional District Judge, Rawalakot before this Court. During pendency of the suit before Sub-Judge, Thorar, the plaintiffs Muhammad Enayat and Muhammad Ashraf both died and they were substituted by their widows. The learned counsel for the appellant argued following submissions (1) that respondents' suit was time-barred and both the Courts below over sought this legal aspect; (2) that the application for reconstruction of record has not been moved by the respondents; (3) that respondents have not proved the plea of non-delivery of possession; (4) that both the Courts have given their judgments without reading the evidence and it is the case of misreading and non-reading of evidence; (5) that Fatima Jan (widow of Enayat Khan) has abandoned the suit to her extent and she has admitted the right of appellant; (6) that proper issues were not framed according to the pleadings of the parties and the issues which were framed by the trial Court were not adjudicated in legal manner; (7) that the documentary evidence have not been produced by the respondents in support of their submission; (8) that the suit was not competent in the eye of law. The learned counsel for the appellants placed reliance on the following precedents:-- An unreported case titled Muhammad Saddique v. Zakir Hussain, decided on 17-11-1997 by the High Court of Azad Kashmir, PLD 1987 Lah. 654, 2004 YLR 512, 2003 CLC 301 and 2003 MLD

67. On the other side, the learned counsel for the respondents made following submissions:-- (1) that the suit is competent in the eye of law; (2) that the suit is not barred by limitation. Article 91 of Limitation Act shall not apply because the original suit was filed firstly in the trial Court on 19-2-1985; (3) that under section 100, C.P.C. question of, fact should not be disturbed as it is held by both the courts below; (4) that the gift-deed is not valid under sections 52, 58 and 63 of Registration Act; (5) that the suit has been withdrawn to the extent of Fatirna Jan. In support of his submissions, the learned counsel for the respondents has placed reliance on the following precedents:

1997 MLD 2867, 2001 CLC 1115 and PLD 2007 Lah.

83. I have heard the learned Advocates for the parties and gone through the record carefully. The plaintiffs produced witnesses namely Shah Mir Khan, Walt Muhammad Khan, Muhammad Khaliq Khan, Muhammad Hussain Khan, Muhammad Arshad and one of the plaintiffs Muhammad Aziz in support of their claim and a copy of gift-deed Exh. P.A. has also been produced in shape of documentary evidence. The defendants have produced the witnesses namely Munsif Khan, Fateh Jang and Sardar Muhammad Aziz, Advocate. Muhammad Sharif Khan defendant himself recorded his statement on 18-2-1996. All the witnesses from both the sides have admitted that the plaintiffs and defendants are brothers and they are in possession of the suit-land from 1951-1952 and they are residing on the suit-land after constructing their houses Even defendant Muhammad Sharif, appellant herein, has stated in cross-examination that all the brothers were in possession of the suit-land in life, time of their father. It is admitted by the appellant through his statement that the suit had been privately arranged by their father and from that period, all the brothers are residing on the suit-land after constructing their houses. In gift-deed, at the time of registration, a note has been endorsed by the Sub-Registrar. I reproduce the wording of said note:-- According to section 63 of Registration Act, above cited note carries presumption of truth and this note indicates the intention of the donor that he has alienated except the shares of plaintiffs. I reproduce section 63 subsections (1), (2) and (3) of Registration Act:-- Power to administer oaths and record of substance of statements.

(1) Every Registering Officer may at his discretion administer an oath to any person examined by him under the provisions of this Act. (2) Every such officer may also at his discretion record a note of the substance of the statement made by each such person, and such statement shall be read over, Or (if made in a language with which such person is not acquainted) interpreted to him in a language with which he is acquainted, and, if he admits the correctness of such note, it shall be signed by the Registration Officer. (3) Every such note so signed shall be admissible for the purpose of proving that the statements therein recorded were made by the persons and the circumstances therein stated. It is also clear from the statement of defendant Muhammad Sharif that he is not in possession of the suit-land and nor he is in position to narrate the matter that how much land is in his possession. I reproduce portion of his statement, which his on backside of page 53 of the Civil Judge's file:- I also want to reproduce sections 149 to 150 of Muhammadan Law:

Sections 149 and 150 of Mahomedan Law:-- 149. Gift of Mushaa where property divisible.

A gift of an undivided share (Mushaa) in property which is capable of division is irregular (Fasid), but not void, (Batil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated.

150. Gift to two or more donees.

A gift of property which is capable of division to two or more persons without specifying their shares or without dividing it is invalid, but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him or if there is a subsequent arrangement between all the donees with regard to the possession of the property gifted. This rule does not apply to the case mentioned in the third Exception to section 149(0, nor, it is conceived, to the cases mentioned in the other Exceptions. It is crystal clear from the above mentioned law that there are three essentials of gift; (1) Declaration by donor, (2) Acceptance, express or implied, by donee or on his behalf and (3) Delivery of possession must be satisfied for making a valid gift. Now in this case, the donor and donee are related as father and son. The question arises that in case of gilts by father to children, actual delivery of possession is necessary or not? It is held that in case of gifts by father to his son, delivery of possession is as necessary as in any other case. The law recognizes the only exception which is in cases of gifts made in favour of minor children. The other important point is that either the suit was competent in the eye of law or not during the life time of their father? It is admitted on the record that gift-deed, which is disputed, executed on 29-0(sic)-1984 and the suit was filed on 19-3-1985 in the Court of Sub-Judge, Thorar and father of the parties Mirzaman Khan died in 1989. The suit was filed before Sub-Judge, Thorar after burning of record on 1-11-1990. The objection that plaintiffs could not institute the suit during the life time of their father Mirzaman Khan, this objection has disappeared on his death in 1989 during pendency of the suit. In this view of matter the suit became perfectly instituted as from the date of 19-3-1985, and thereafter the suit already instituted could proceed unhampered without requiring the plaintiff to file a fresh suit for the same relief. This view gets support from case-laws:

AIR 1922 Lah. 295, AIR 1927 Bom. 384 and AIR 1926 Mad.

6. Article 91 shall not apply on this case as already been mentioned above that this suit was filed on 19-3-1985 and the gift-deed was executed in 1984. The suit is not barred by limitation. The objection of the non-reconstruction of record, both the Courts have ignored this objection and impliedly admitted the reconstruction of record. Legally the findings of both the Courts below need no interference. There is no need to discuss points which are involved in this case. For the reasons listed above, the judgment and decree of Additional District Judge, Rawalakot is according to law and requires no legal interference. Appeal is dismissed. H.B.T./16/HC(AJ&K) Appeal dismissed.