1992 PLP 602 (CLC)

(c) Muhammadan Law‑‑‑ ‑‑‑‑Gift‑‑‑Revocation‑‑‑‑Gift would not be complete before delivery of possession and same could be revoked by the donor at any time, before delivery of possession‑‑‑Gift to a son could not be revoked after delivery of possession except in case of donee's death or when donee had sold or gifted subject of gift to someone else or when the thing given had increased in value or when the donor had received something in exchange for the gift‑‑‑Once possession of subject of gift had been delivered nothing short of a decree of Court was sufficient to revoke the gift. (d) Muhammadan Law‑‑‑ ‑‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss. 42 & 164‑‑‑Gift‑‑ Donor's entitlement to gift his property‑‑‑Extent‑‑‑Conditions necessary for completion of gift‑‑‑Donor was entitled to gift whole of his property to one of his heirs‑‑‑Respondents' contention that donor intended to gift his property in shares according to Shariat was not supported by mutation for if he intended to gift according to Shariat then instead of word wahab, word tamlik kanda would have been used‑‑‑All the necessary conditions of gift i.e. declaration, acceptance of subject of gift and transfer of possession being complete in case of gift in favour of petitioner, same could not subsequently be revoked‑‑ Decisions of Courts below to the contrary were set aside and mutation of gift in favour of petitioner was affirmed. Ch. Khan Muhammad for Petitioner. Abu Bakar Ahmad Naseem for Respondents. Brief facts of the case are that the petitioner is the son and respondent No. 2 is the daughter of respondent No.1 who vide Mutation No. 785 dated 29‑9‑1988 gifted his landed property in a way that petitioner was given 69 kanals and 12 marlas land and the respondent No.2 was given 11 kanals 18 marlas land. However, after 11 days from the sanction of mutation, the donor applied to the AC/Collector for the review of the mutation on the plea that he wanted to gift the land as per Shariat. His request was acceded to on 11‑2‑1989 and the case was sent back to the Revenue Officer for fresh decision. That order was assailed in appeal by the petitioner but to no avail. Hence this revision petition under section 164 of West Pakistan Land Revenue Act,1967.

2. The learned counsel for the petitioner contended that respondent NO.1 (Raja Shah), father of the petitioner, had gifted his land to the petitioner and his sister Mst. Amir Bibi on 29‑9‑1988, in the presence of the petitioner, Nazar Mohammad Lambardar of the village and one Salhoon Pattidar. The possession had also been delivered to the petitioner. The gift was made consciously and the respondent No.1 could not have gone back 'on the gift. If any fraud was alleged then it was for the respondents to go to Civil Court to prove it.

3. The learned counsel for the respondents argued that an appeal against the Mutation No.785 was preferred by the respondent within 11 days of its sanction. The respondent was an old man and did not know how much land was to be given under the Shariat Law to the petitioner and his daughter. Only the petitioner was present at the time of attestation of the mutation. The daughter (respondent No.2 was not present and she did not accept the gift which was also not according to the shares of inheritance as prescribed by the Shariat Law. Since the respondent wanted to gift the land to his son and daughter according to tile Shariat Law, therefore, the revision petition may be dismissed.

4. I have considered the arguments and perused the case record. Respondent No.1 has not denied that he had made the gift to his son and daughter but cLalms that the shares were not correctly recorded. A perusal of the certified copy of the relevant mutation shows that the mutation of gift was attested in the presence of the petitioner and respondent No.1, Raja Shah, in the presence of the witnesses Whose national identity cards are also recorded on the reverse side of the mutation. The findings of the learned Additional Commissioner (Revenue) in the impugned order that there were cuttings it some columns, i.e.., Nos.3, 8 and 9 of the mutation which create doubt is not correct. These cuttings/ over writings do not affect the final outcome of the mutation because the shares have been recorded without any ambiguity, overwriting or cutting in the order of the Assistant Collector‑II dated 29‑9‑1988. The contention of the learned counsel for respondents that obtaining of the signatures or the thumb‑marks of the donor on the mutation was necessary is not correct. The Board of Revenue has never prescribed that signatures or thumb‑impressions of parties ~ should be obtained on the mutation. In fact para 4.7 of the Land Records Manual and Director of Land Record's Circular Letter No.101 dated 17‑4‑1968 strictly prohibit this practice.

5. Under section 167 of Mullah Mohammadan Law (1981) a gift can be revoked by the donor at any time before delivery of possession because a gift is not completed at all before delivery of possession. However, after delivery of possession, a gift to the son cannot be revoked except in case of the donees' death or when the donee has sold or gifted the gift to someone else or when the thing given has increased in value or when the donor "has received something in exchange for the gift. All these conditions are not present in the present case. Subsection (4) of section 167 ibid further lays down that once possession has been delivered nothing short of a decree of a Court is sufficient to revoke the gift. Under section 142 ibid a gift to an heir can be made to the extent of whole property. The contention of respondent No.1 that he wanted to gift the property in shares according to Shariat is not supported by the mutation document because he gifted his property. If he had intended to gift according to Shariat then instead of wahab the word tamleek kanda would have been used (although it has been held by me in R.O. Rs. Nos. 172 and 173/1990 decided on 23‑12‑1990 that for purposes of Muslim Law there is no difference between tamleek and gift) As regards the contention of respondent No.1 that Mst. Amir Bibi respondent No.2, was not present at the time of the gift nor had accepted the gift as such, it is observed that the respondent can revoke the gift to the extent of his daughter because all conditions necessary for completion of a gift, especially its acceptance and transfer of possession, are not present in the case of respondent No. 2,' but as far as the petitioner is concerned, respondent No.1 cannot revoke that gift because all conditions had been fulfilled. I therefore accept the revision petition and set aside the orders of the Courts below. A .A. 402/R Revision accepted.