P L D 1975 Lahore 1090 (PLP)

A. R. SHEIKH, J.-Haji Ghulam Muhammad respondent executed a gift deed on the 1st of March 1956, of land in favour of his sons Mian Jinda and Mian Ramzan, the appellants. The gift deed was duly registered. Subsequently Haji Ghulam Muhammad, the donor, executed a deed of revocation and then brought the present suit for declaration to the effect that the gift in respect of land made by him in favour of the appellants had been obtained by fraud, undue influence and misrepresentation and that on coming -to know of the fraud played upon him he had revoked the gift by a revocation deed registered on the 16th of April 1956, and that he had not at all delivered the possession of the suit land to the appellants and for that reason the gift did not attain completion. The suit was resisted denying the allegations of fraud and misrepresentation or undue influence. It was also pleaded that the appellants had been delivered the possession of the suit land and that the revocation deed was illegal and inoperative. The trial -Court framed the following issues, which fully reflect the pleadings of the parties : "(1) Whether the plaintiff is out of possession; if so, whether a suit for declaration as brought is maintainable ? (2) What is the proper court-fee ? (3) Whether the disputed gift deed was made as a result of fraud, undue influence and misrepresentation; and if so, what is its effect ? ' 14) Whether the plaintiff can revoke the disputed deed of gift ? (5) Whether the plaintiff did not make any valid gift ? (6) Whether the disputed gift amounts to Hiba Bil Iwaz; and if so, what is its effect ?" 'The Civil Judge after recording evidence came to the conclusion that no doubt The land in suit was under mortgage with one Muhammad Siddiq (P. W. 1) at the time of the gift and the donor, Haji Ghulam Muhammad, was in possession of the land as a tenant under the mortgagee, the gift was valid to the extent of equity of redemption and it was a completed gift of equity of redemption not only as peg recital in the gift deed but also due to the fact that the donor had done all that he could to divest himself of his right, title to the equity of redemption. As regards revocation, however, the trial Court held that the gift is revocable even after delivery of possession because the donees are not related to the donor within the prohibited degree. The donees went in appeal and the only point debated before the lower appellate Court was whether the gift of equity of redemption by the father in favour of his sons could have been revoked, which question pertains to issue No. 4 above. The respondent before the lower appellate Court did not agitate as to absence of delivery of possession or invalidity of the gift for that reason. The lower appellate Court interpreted the provisions of the 'Muhammadan Law with respect to revocation of gift even after delivery of possession made by a donor to the donee related to him within the prohibited degree and it was observed with reference to page 302 of the Principles of Muhammadan Jurisprudence by Sir Abdur Rahim that after delivery of possession the gift in favour of the donor's ascendants, descendants, brothers, sisters or their children, uncle or aunt cannot be revoked. Reference was also made to Article 167 of Mulla's Muhammadan Law and the conclusion was that the donees being related within the prohibited degree to the donor, -the gift after delivery of possession could not be revoked by the respondent, with the result that the finding of the trial Court on issue No. 4 was reversed, the appeal accepted and the suit dismissed. The respondent came up to this Court in second appeal, and the learned Judge in Chamber has reversed the decree of the lower appellate Court. The contention ,that has weighed with the learned Single Judge is that , in the absence of any delivery of possession of the land in suit by the respondent the gift was never completed and was, therefore, liable to be declared as invalid and ineffective. The finding of the trial Court that in spite of the deed of gift the plaintiff continued to retain the cultivating possession of the land as a tenant under Muhammad Siddiq mortgagee was affirmed. However, the view expressed that the donee had done all that was within his power to complete the gift was not accepted. On the question of revocation, the findings of the lower appellate Court have been affirmed holding that in the case of blood relations who are males, to determine whether they are related within the prohibited degree, the sex of one of them is to be altered so as to ascertain whether the relationship becomes prohibited and as such the gift if found to have been completed could not have been revoked.

2. In this Letters Patent Appeal, the grounds taken are these :

"(1) That finding of the learned Judge in Chamber that in case of gift of equity of redemption, it is necessary to the validity of the gift to, give its notice to the usufructuary mortgagee is wrong in law. (2) That the opinion of his Lordship that in absence of reference in the gift deed to the previous mortgage, the gift is liable to fall is not correct and is not based upon any sound proposition of law. . (3) That the Courts below had agreed on the validity of gift and this agreement was based on a finding of fact, which could not be disturbed in second appeal. (4) That the learned Judge in Chamber erred in setting up a new case for the appellant in so far as to hold that gift was invalid because no, notice of the gift was given to the mortgagee in possession." It has been contended with vehemence that the fact that the land in suite was under mortgage and the gift deed purported to gift not only the equity of redemption but also corpus of the land and this fact goes to show that there was no delivery of possession or completion of the gift is not correct. The argument advanced is that a donor is entitled to transfer the proprietary rights in a particular property and if in the gift deed something more than the rights of the donor is mentioned to have been transferred by way of gift, the gift deed will be valid to the extent of the rights actually vesting in the donor anti it would not be rendered invalid for the reason that the donor has gifted that what he did not possess. There cannot be two opinions about the proposition that it is essential to the validity of a gift that there should be declaration of gift by the donor, an acceptance of the gift express or implied on behalf of the donee and delivery of possession of the subject of the gift by the donor to the donee as the subject of the gift is susceptible of. Sadik Husain Khan v. Hashim Ali Khan and others (43IA212) refers. It is well settled that when a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no condition were attached to it. In the instant case, admittedly' the land was under mortgage. All that the donor could gift was the equity of redemption and it is now an established proposition of law that a gift; may be made by a mortgagor of his equity of redemption and if it can be shown that the donor has divested himself completely of ownership and dominion over the equity of redemption, no valid exception can be I taken to such a gift. Now what is the nature of delivery of possession oft equity of redemption is a question of fact in each case and no hard and' fast rule can be laid down. There is opinion expressed in Tyabji's Muhammadan Law, Third Edition, para. 370, that if a mortgagor is without possession and the mortgagee is in possession, in order to complete the gift of equity of redemption the donor has to deliver possession to the donee and in case the donor is not-in possession and the mortgage is with possession or is a usufructuary mortgage, gift of equity of redemption can be considered to be complete when the donor has served a notice on the mortgagee as having gifted the equity of redemption to the donee and in the judgment of the learned Single Judge this view has been adopted. In para. 145 of Mulla's Muhammadan Law, 17th Edn., it has been observed that when the mortgagor himself is in possession of the mortgaged property, a gift of the equity of redemption is not valid unless he delivers possession of the property to the donee, but where the mortgagee is in possession, the mortgagor cannot deliver possession to the dance, and the gift may in that event be completed by some other appropriate method. Now does that appropriate method essentially contemplate notice to the mortgagee? It is suggested by the respondent that analogy may be drawn from cases of constructive possession because in case of gift of property in possession of tenants, it has been held that constructive possession will be considered sufficient in the circumstances of the case. In Mullick Abdool Guofoor v. Muleka (I L R 10 Cal. 1112) their Lordships have held that attornment in favour of the dances will be sufficient to complete the possession in the case. Whether in the instant case when the donor was in possession of the land as a tenant of the mortgagee, the possession could have been delivered by him to the donees. Certainly not because the donor was not in possession of the property in his own right. He was a tenant under the mortgagee and as such he could not have transferred the possession of the subject of the gift to the dances. But differently in being an agent he could not have divested the principal of his right of possession of the land. What other appropriate steps could have been adopted by him? On the facts proved, the document was executed and got registered by the donor and his plea that the document had been got executed or had been got registered through fraud or undue influence by his sons, the donees, has been disbelieved by the two Courts below. Even the factum of the gift of equity of redemption having been complete, as found by the trial Court, was not challenge before the lower appellate Court. There is nothing on the record to show that the deed of gift is not 'accompanied by delivery of the thing given so far as it is capable of delivery' (see Chaudhri Mehdi Hasan and others v. Muhammad Hasan (33 I A 68). Suherwardy, J., in Tara Prasanna Sen v. Shandi Bibi (I L R 49 Cal. 68) after review of original texts on the subject has brought out distinction between possession and possessory rights and has observed that "

Mohomedan text-writers deal chiefly with the former, on the ground that the donor must divest himself of all rights he has in the subject of the gift, including whatever possession is in him". . Further, it has been held at page 81 of the report ; " . we are of opinion that the right of the equity of redemption which is under consideration in this case and such similar rights which are termed in some of the decided cases as incorporeal rights, as distinguished from the corpus, may, in view of the exigencies and necessities of modern conditions and conceptions of legal rights of property, be subjects of a valid gift, the mode of delivery of possession: varying according to the nature of the right conveyed." A similar opinion has been expressed in Anwari Begam v. Nizam‑ud‑Din Shah (I LR21Al1.165). In the peculiar circumstances of the case, while applying the principles above, we respectfully differ from the view expressed by the learned Single Judge that because notice had not been served on the mortgagee of transfer of the equity of redemption to the donees, the gift of equity of redemption will not be considered to be complete. On this view of the matter we hold that the gift of equity of redemption having been complete and the appellants donees being related to the respondent donor within the prohibited degree because had either of them been of opposite sex marriage in 1 between them would have been void, the exception contained in para. 167(2(6) of Muhammadan Law by Mulla is fully applicable and even the revocation of the gift is of no avail to the respondent. The appeal succeeds and is allowed and the judgment and decree of the lower appellate Court restored. There will be no order as to costs, because the point of law involved required further consideration. A. M. A. Appeal accepted.