2018 PLP 1838 (CLC)

ZULFIQAR AHMAD KHAN, J.

This revision has been filed against the concurrent findings of the Courts below, where it was alleged before the trial Court that the gift in favour of the grand-son of the deceased Soomar was a managed document through which other legal heirs namely, widow and two daughters of the deceased were deprived of their respective shares. Admittedly, deceased Soomar had no male legal heir and was only survived by his widow and three daughters. The beneficiary of the alleged gift is son of one of the daughter namely Mst. Haleeman. The trial Court dismissed the suit on the ground that the gift was a duly registered documents and no fraud or malafide was shown to the Court. The appellate Court maintained the findings of the trial Court.

2. Learned counsel for the applicant submitted that the plaintiff No.1 Luqman is nephew of late Soomar and plaintiff No.2 Bashir Ahmed is grand-son of deceased Soomar through his daughter Mst. Kariman. It is alleged that the gift was a managed document as neither the widow nor the remaining daughters were informed about the execution of the said gift till land records were changed to bring Ramzan as beneficiary of the subject land, which led to the filing of the instant suit in 2011. It was also contended by the learned counsel for the applicants that as soon as they came to know about the change of entries in the records, they made an appeal against the mutation order of Mukhtiarkar (Revenue) before the D.D.O. (Revenue) Tando Bago, who after hearing the parties declared the said gift as illegal and the appropriate entry No.308 was cancelled with directions to maintain the original entry in the name of late Soomar. It was next contended that the said D.D.O. Revenue) (defendant No.5) without giving any further notice changed his mind and vide his judicial order dated 09.12.2004 restored the entry No.308. Plaintiff No.2 filed appeal against the said order, however, the same was dismissed on 30.10.2007 and through the instant suit the said order was also impugned. It was contended that the gift deed which took away legitimate shares of the other legal heirs of deceased Soomar was a fake document, never brought to surface in the life time of the deceased, be declared as null and void and the trail Court has made error in deciding the matter otherwise, which error was also committed the appellate Court.

3. Learned counsel for the respondent No.7, to the contrary, submitted that the gift deed, a copy of which is available on pages-159 to 165 of the Court file, is a registered document entered in the year 1985 and since the challenge was only posed in the year 2011, therefore, the action was time barred. He next submitted that since the donor has expired, the donee himself appeared before the trial Court as well as the marginal witnesses who supported the contention of the donee. He also submitted that all legal requirements have been complied with. The possession of the land in question was already with the said respondent thus it satisfied all three requisites of the gift being declaration, offer and acceptance. He relied upon 2009 SCMR 623 in support of his contentions that the instant revision which is against concurrent findings of the Courts below, be dismissed.

4. Heard counsel and reviewed the material available on record.

5. The controversy at hand emanates from the alleged gift deed, which acted as an instrument depriving other legal heirs of their respective share in the inheritance of the deceased. It is pertinent to mention that no independent corroboration as to the legitimacy of the said gift deed has come forwarded. The concerned Mukhtiarkar who appeared before the trial Court and filed a statement, a copy of which is available on page-185 of the Court file, merely stated that he has no record of the subject gift deed since the record was burnt on 15th August, 1986, when a political mob attacked the Sub-Registrar's office and set the record on fire. The trial Court had gone at length through the controversy at hand, however, did not consider this vital aspect that neither the said gift has been signed by the remaining legal heirs of deceased Soomar, whose valuable legal rights were affected by it, nor any independent corroboration came on surface. By merely holding possession of the land in question which even otherwise was in the possession of the beneficiary before the signing of the said gift, cannot be construed to have satisfied the third requisite of a valid gift, which required an overt act from the donor.

6. While the appellate Court has touched the ingredients of a valid gift but seemingly did not expound on the issue, which I hereby do by pointing out that in the instant case where the possession of the land was already with the beneficiary i.e. donee, Islamic law in order to make it a valid gift requires donor to perform any of the overt acts to disassociate himself from the property in order to let the surviving legal heirs know that the property would now solely rest with the donee. In the case in hand no such overt act was done by the parents to inform the remaining legal heirs that they have in fact gifted out the lands to their son and had thus deprived the daughters from their share. In the absence of such overt act, offer/acceptance of possession of the lands did not take place, therefore, the gift itself had become invalid and no rights could be claimed on the basis of that void gift, once assuming that the gift deed was in fact a legit document.

7. In order to constitute a valid gift under Islamic law, there must be an offer (ijab), an acceptance (qabul), and transfer (qabza), while there is no requirement of public depiction of ijab and qabul, the pivotal requirement is the mark-able delivery of possession by the donor and taking of the possession by the donee. It is important to point out that under Islamic law 'gift' is considered to be a contract, however under the English law this at best could of the nature defined in section 2(d) of the Contract Act, 1872. Since the term possession means only such possession as the nature of the subject is capable of, the real test of the delivery of possession is to determine as to who (donor or the donee) reaps the benefits of the property after the gift. If the donor has not handed over the possession or if he is still reaping the benefit, then the delivery conditionality is not met and the gift remains invalid. Infact this requirement is so critical that gift is said to only takes effect from the date on which the requisite possession of the property is delivered to the donee; not from the date on which the declaration was actually made. Delivery of possession hence becomes concomitant of the gift and so serious that that without delivery of possession to the donee, the gift is held void even if it was made through a registered document.

8. A study of the applicable jurisprudential standards could start from paragraph 152(3) of the Principles of Mahomedan Law by D.F. Mulla. Full text of the said para is reproduced in the following: 152: Delivery of possession of immovable property.-- (3) Where donor and donee both reside in the property.- No physical departures or formal entry is necessary in the case of a gift of immovable property in which the donor and the done are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. [underlining is our] Paragraph 153 is spot on this point which is reproduced in the following: 153: Gift of immovable property by husband to wife.

The rule laid down in Sec. 152(3) applies to gifts of immovable property by a wife to the husband, and by a husband to the wife, whether the property is used by them for their joint residence or is let out to tenants.

9. As it could be seen from a combined reading of above two paragraphs that in case of father/mother and son (being donor and donee) both in possession of the property being gifted, while there is no need of physical departures or handing over of the possession, however to make such a gift complete, donor has to perform some overt act through which he indicates his clear intention to transfer possession and to divest himself of all control over the gifted property. The overt act conditionality becomes critical in such cases since the very essence of a gift (or hiba) is to achieve the delivery of possession in this manner when the matter is between family members. Guidance in this regard could be taken from the case of Muhammad Javed v. Nisar Ahmed (2012 YLR 1021) where Court dilated upon this aspect of overt act and held that the act of making a gift was a prerogative of an owner and it should not have been a covert exercise but an overt recital on the beat of a drum. In the case of Ghulam Rasool v. Rasheeda Bibi (2006 CLC 531) Court set aside judgments and decrees of Courts below holding them suffering from infirmity of misreading and non-reading of evidence since the possession of alleged gifted land was not shown to have ever changed hands on the basis of alleged gift, as neither there was any independent proof on the record nor change of possession having been established on account of any overt act of petitioner. Such transfer of possession is so critical that paragraph 150(2)of DF Mulla (supra) even nullifies the effect of registration of a gift deed where the possession was not delivered. The emphasis on such divestment via an overt act becomes more important since most of the deliberations between husband and wife are usually taken to be kept private and are given the classical example of things given by one hand and received by another. That's why the overt act becomes vital so that public at large could get to know the details of the private agreement entered into between the family members, since such act of hiba would affect (for example) other legal heirs' rights in the property being gifted. In this regards guidance could also be sought from the case of Maqbool Alam v. Khodaija (66 ASC 1194) where it was held that a gift of property is not established by mere declaration by the donor and acceptance by the done, there must also be either delivery of possession or some overt act by the donor to put it within the power of the donee to obtain possession. Example of such over act could be seen from the case of Ibrahim Haji Musa Haji Rasul Samol v. Sugra Bibi (1978 G.L.R. 19) where after the declaration of the gift, and handing over of the possession by the donor to the donee, an application was made on the same day to the Land Records Authority, for mutation of the property from the name of the donor to the name of the donee and that the statements of both the parties were recorded in factum of delivery of possession was admitted and in consequence, the Land Records Authority actually mutated the property from the name of the donor to the done and Court held that this overt act by the donor and the donee establishes compliance with the requisite condition of the delivery of possession of the property. In the case of S.M.S. Saleem Hashmi v. Syed Abdul Fateh (72 Pat. 279) where the donor and donee used to reside together in a house, the overt act was done by handing over of the papers related to the property by the donor and Court held that the said act of handing over of the original documents regarding the gifted property satisfied the requisite condition about delivery of possession. In the case of Abdul Razzak v. Zainab Bi (1933) 63 Mad. LJ. 887 the overt action was shown from the fact that after the execution of the deed, the donee started paying all municipal taxes and Court held that the gift was complete although there was no physical departure or formal entry.

10. In the case of Haji Muhammad Yaqoob Khan v. Muhammad Riaz Khan reported as 2016 YLR 2492, the Court gave important finding that "if corpus of gifted property was not transferred then any condition limiting the authority of donee over the gifted property could validly be restricted". Court also held that "the intention of donor would be relevant to determine whether corpus or usufruct of gifted property had been transferred to the donee which could be determined by title of document; terms related in the instrument; incorporation of gift in the revenue record; entries showing the transfer as reflected in the revenue record". The said judgment further holds that "once the gift, in cases to the family members, was proved to be officially recorded in the revenue record or with the registering authority, it would be presumed that donor's subsequent act with regard to gifted property was done on behalf of donee and not on his own behalf". In the case reported as 2010 MLD 352 of Muhammad Nawaz v. Abida Bibi who were family members and dispute arose as to gifted property. Court held that in order to be a valid gift, "donor had to relinquish all rights and dominion over the gift and had to divest himself totally of all ownership over the subject of the gift, whether implied or for the completeness of the grant."

11. The fact that gift is dated 1985 and the donor expired in the year 1997 and land records changed in the year 2004 creates serious doubts as to the legitimacy of the gift. The result being that the other legal heirs immediately upon coming to know of the change of the relevant land record started knocking Courts' doors, as they did not have any knowledge of the said gift which remained an inside arrangement between the beneficiary with whom the donor was spending his last days.

12. The above gives a reason to believe that the allegations made about the said gift deed have serious weight, as it clearly even otherwise suggested that the said gift deed was made to circumvent the rights of the lady legal heirs, has no respect of law.

13. In the given circumstances, in my humble view both the Courts have failed to apply a judicial mind to the controversy, this revision is allowed. Judgments of the Courts below are set aside. Official respondents to cancel the entry made in records on the basis of the alleged gift, which is declared void. Parties to proceed seeking declaration of their respective legitimate rights/shares in accordance with Sharia through a competent Court of law. SA/L-7/Sindh Revision accepted.