P L D 1975 Karachi 491 (PLP)

(4) Is the suit barred under Martial Law Regulation No. 64? (5) If the gift alleged to have been made by late Pir Mohammed Moosa Jan in favour of defendant was valid. If yes, what is the effect? (6) Has defendant No. 1 failed to give account of produce of the suit land to plaintiffs. (7) Relief." The learned Civil Judge found that the suit was in proper form, parties were properly represented and the suit was not barred under Martial Law Regulation No.

64. The trial Judge also found that the gift relied upon by the respondents was valid. On the issue in regard to accounts, the trial Court held that the respondents had not given accounts to the appellants. In accordance with such findings, a decree followed. The appellants thereafter, filed a First Appeal before the District Judge, Tharparkar which was also dismissed. The appellants have now filed the present Second Appeal.

2. I have heard Mr. Umar Khan Tank for the appellant, and Mr. Sabir Hussain Rahmani for the respondents. No other issue has been canvassed before me by any party except the issue relating to validity of gift in favour of the respondents.

3. In regard to the validity of the gift, the case of the respondents is that on 16‑7‑1956, the deceased Pir Moose Jan made an oral gift in presence of Muhammad Yacoob Jan, Ziaul Haq and Moula Bux. The evidence of the respondent Pir Muhammad Ishaq as of witnesses Ziaul Haq and Moula Bux (D. Ws. 4 and 5) is to the effect that Pir Moose Jan made an oral gift of a portion of his land in favour of the two respondents. Khalifa Ismail (D. W. 3) gave evidence that after the making of this gift deceased Pir Moose .Ian asked him to write an application to the Mukhtiarkar for mutation of Revenue Records. A copy of this application has been produced by respon dent Muhammad Ishaq. In regard to the original of this application, the case of the respondents is that the same was delivered by Pir Moose Jan in the office of the Mukhtiarkar. Such original application has not been traced and it is admitted case that mutation was not carried out by the Mukhtiarkar during the life time of Pir Moose Jan. In addition the respondents Pir Mohammad Ishaq also produced a diary maintained by Pir Moose Jan containing a writing of the deceased to the effect that the application for mutation of the Revenue Record had been delivered by the deceased to the Mukhtiarkar. On the other hand appellant Taj Bibi was examined who stated that prior to the death of deceased Pir Moose Jan, respondent Pir Mohammed Ishaq never claimed to be the exclusive owner of any portion of the land.

4. In regard to the gift which is the basis of the rights of the respondents, the learned District Judge recorded the contentions of the rival parties in para. 3 of the judgment. It seems that the contention on behalf of the appellants was that a gift had been made in favour of the respondents but the same was incomplete because the possession had not been delivered to the donees. On the other hand the learned District Judge recorded in the same para of his judgment that there was no evidence in regard to delivery of possession to the respondents who are the donees. It would be of interest to reproduce para. 3 of the judgment in order to fully appreciate the stand adopted by the rival parties before the District Judge: "Mr. Rochiram on behalf of the plaintiffs‑appellants has not disputed the fact that late Pir Moose Jan Sarhandi has made a gift of this property during his life time in favour of the defendants‑.respondents. He has, however. argued that the gift was incomplete because the possession of the gifted property was not delivered to the donees and also because the gift was irregular being in respect of undivided shares in immovable property. It has, on the other hand, been argued by Mr. Mohammad Aslam on behalf of the respondents that there was a clear intention on the part of the donor to divest himself of the property and he had done all that he could to deliver possession of the property as far as the property was capable of being separated from the rest of the land. He has also pointed out that under such cir cumstances where the gift is made by the father to his son and daughter it is not necessary that the land should actually be partitioned for the purpose of delivering its possession. That the father was looking after the entire land as his daughter respondent No. 2 was a minor and his son respondent No 1 was staying out as he was employ ed as a teacher. The only question for determination in the course of this appeal, therefore, is whether the gift could be given effect to or not in view of the fact that the entire land had remained undelivered as was being looked after by the late Pir Moose Jan and there was no evidence regarding delivery of possession"

5. The established position in the case is that the record was not mutated in favour of the respondents, deceased Pir Moose Jan continued to cultivate the entire land and that from 1956 until 1962 when Pir Moose Jan died, the respondents took no steps to obtain possession of the land or mutation of the Revenue Record. In regard to the gift deed itself, the patent position is that the original is not available but the respondents have produced a copy, which of course bears the signatures of deceased Pir Moose Jan. Besides, the respondent Pir Mohammed Ishaque as well as witnesses Khalifa Ismail. Ziaul Haq and Moula Bux also spoke about an oral gift being made and an application being written to the Mukhtiarkar about mutation in favour of the respondents on the basis of the gift. In fact the appellants had not set up a case in the Court of the District Judge to the effect that a declaration of gift was not made. The appellants have however, contested the case of the res pondents on the point of delivery of possession which is a requisite for a valid deed of a gift. On that aspect, the respondents' case before the District Judge was that the property had remained undivided, that the property was being looked after by deceased Pir Moose Jan and there was no evidence regarding delivery of possession. In such view of the matter, the compass of enquiry is very narrow and the only point that requires consideration is whether the gift was perfected by delivery of possession. The learned District Judge was of the view that gift of undivided share of agricultural estate was valid if the donor declared an intention of divesting himself of the ownership without transferring the subject‑matter of the gift to the donees. According to the learned District Judge the gift of Mushaa is valid if the donor had done all that was required by law to separate himself from the property. In my view that was not the correct version of law in so far as transfer of possession is concerned. The law relating to gifts has been stated by the Supreme Court with clarity. In the case of Ghulam Hasson v. Sarfaraz Khan (PLD1956SC309) their Lordships held that mere recital in the deed of gift in regard to delivery of possession was not conclusive of gift but transfer of possession bad to be established as any other fact. In that case their Lord ships accepted only one exception to the doctrine of transfer of possession and such exception was only in cases where the gift was made by father in favour of his minor children. The reason for such exception is obvious because the father being the natural guardian of the minor children would be entitled to hold possession on behalf of his minor children. In the present case the donees were not minors. In the other case decided by the Supreme Court viz. Shamshad Ali Shah v. Hassan Shah (PLD1964SC143). Fazle‑Akbar, J. stated that delivery of possession to the donee is a condition precedent to the validity of a gift. The learned Judge stated the point as follows: "Possession was with the donor, and donees were minors, whose natural and legal guardian, namely their father, was alive, and there was no proof that the donor had transferred possession to anyone, in imple mentation of the gift. A number of relevant cases are cited in the judgment which will show that a recital of delivery in the deed of gift has been held to effectuate delivery only where the donors were either the fathers or guardians of minor donees." It would seem that in cases of gifts by father to his children, delivery on possession is as necessary as in any other case. The only exception which the! law recognises is in cases of gifts made in favour of minor children. Addi tionally, I may state, that in order to perfect a gift, delivery of possession is, necessary and in case of undivided agricultural land the intention of the donor can be manifest only by mutation of record, delivery of possession, delivery of produce or attornment of tenants. In the present case I find that no! step was taken by the deceased to have the mutation effected in favour of the respondents. All that is stated in the evidence is that an application was given to the Mukhtiarkar but even such application is not forthcoming. Admittedly actual physical possession of the land was not given to the respondents. It is not the case of the respondents that any tenancy was attorned in their favour. It is, however, stated in the evidence led by the respondents in the trial Court that deceased Pir Moosa Jan used to give 1/:3 share of the produce to the respondents. Such statement was made by Moula Bux (D. W. 5) who was Kamdar of Pir Moosa Jan, while he was examined in chief. The same witness in cross‑examination stated that he had never seen Pir Moosa Jan giving shares to the respondents and he even went on the say that Pir Moosa Jan used to get the accounts himself and used to pay the land revenue for all the land. He has further gone on to state that respondent Pir Muhammad Ishaq used to visit the land during the life time of Pir Moosa Jan but this circumstance by itself does not indicate or establish that the respondents had obtained possession. This witness has again stated that after the making of the gift respondent Pir Muhammad Ishaq paid the land revenue but to such extent the evidence of this witness root true because receipts have not been produced on record. To sum up, there is no evidence either of partition or mutation, deceased Pir Moosa Jan or the respondents had taken no steps to have the mutation in their favour. There its no evidence that the respondents were managing or cultivating the land, there is no evidence that any tenancy was attorned in favour of Vie respon dents; and for such reason I am of the view that this deed of gift (if ever made) was not perfected by delivery of possession.

7. For all such reasons I am of the view that this appeal should be allowed and I hereby allow the same. The judgment and decree of the Civil Judge and the District Judge is hereby set aside and the suit of appellants is decreed in full. The respondents shall bear the costs of the appellants throughout the proceedings in this suit and appeals. K. B. A. Appeal accepted.