1993 PLP 1084 (CLC)

Date of hearing: 6th February, 1993. SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment and decree of the High Court, whereby the appeal filed by the respondents, herein, was accepted and the judgment and decree of the District Judge were set aside and that of the trial Court were restored in favour of respondents, herein. The brief facts giving rise to the present appeal are that one Mst. Bago executed a gift‑deed in favour of her son, Gulla, on 2‑11‑1968 whereby she transferred the land measuring 13 Kanals and 2 Marlas, comprising `Khewat' Nos. 4, 5, 6, 7 and 13 to him. Subsequently, Gulla, donee, transferred the land measuring 7 Kanals 4 Marlas and 4 Sersais to Muhammad Yaqoob and Ali Zaman through a registered sale‑deed on 18‑1‑1969; the said land comprised Survey Nos. 5, 6. 14, 70 and

17. Alif Din, plaintiff, brought a declaratory suit in the Court of Additional Sub‑Judge, Muzaffarabad, praying that the gift‑deed in favour of Gulla and subsequent sale‑deed in favour of Muhammad Yaqoob and Ali Zaman, might be declared gas null and void against his interest. According to Alif Din, the gift‑deed executed by Mst. Bago in favour of Gulla, her son, was not followed by the delivery of possession to the donee and that the same being out of undivided property (Musha`) was void and of no legal consequence. It was also alleged in the plaint that even otherwise, the gift made by Mst. Bago was in excess of her fractional share in the joint property and was thus partly void. A cross‑suit was filed by Muhammad Yaqoob, respondent, and Ali Zaman (since dead), seeking possession of the land which they had purchased from Gulia through the aforesaid registered sale‑deed. The trial Court dismissed the declamatory suit filed by Alif Din and passed a decree for `Khas' possession of land''m asuring 7 Kanals 4 Marlas and 4 Sersais in favour of Muhammad Yaqoob and Ali Zaman, vendees. An appeal was preferred by Alif Din to the District Judge which teas accepted and the suit filed by Muhammad Yaqoob and Ali Zaman was dismissed whereas that filed by Alif Din was decreed in terms that the gift‑decd in favour of Gulla being without possession and out of undivided joint property was void and inoperative against the interest of Alif Din, plaintiff. Consequently, an appeal was filed by Muhammad . Yaqoob and the legal representatives of Ali Zaman in the High Court which was accepted and the judgment and decree of the District Judge were reversed and that of the trial Court restored. We have heard t e arguments and perused the tile. The learned counsel for the appellants, Mr. M. Tabassum Aftab Alvi, Advocate, has argued that the High Court has committed an error in passing the decree in favour of respondents because Mst. Bago had never been in possession of the land which she had gifted to her son, Gulla, and, thus the gift‑decd without the delivery of possession was void and even otherwise, the same being out of undivided joint property was not valid. Thus, he has contended that subsequent sale‑deed executed in favour of Muhammad Yaqoob and Ali Zaman by Gulla was also of no legal consequence. The learned counsel has also contended that even otherwise, the gift‑deed executed by Mst. Bago was in excess of her fractional share in the joint holding and was partly void. In reply, Syed Azad Hussain Naqvi, Advocate, appearing an behalf of the respondents, has controverted the arguments advanced by the learned counsel for the appellants and has maintained that the delivery of possession is condition precedent for the validity of the gift only if the donor is in possession of the property gifted; if the possession was not delivered because it was not with the donor, but the donor did all that he could do to divest himself of the ownership of property and put the donee in his shoes, it would be sufficient for making a valid gift. Thus, according to the learned counsel for the respondents, the symbolic or constructive possession of the donee in the present case was sufficient for the validity of gift because Mst. Bago was not in possession of the suit land on the date of the execution of the gift‑deed in favour of Gulla. The learned counsel has also advanced lengthy arguments to rebut the contentions of the learned counsel for the appellants that the gift deed executed by Mst. Bago was within her fractional sharp . in the joint holding. . A number of authorities has been cited from both the sides but most of them are not relevant to the points involved in the case. We have given due consideration to the arguments raised at the bar. First coming to the question as to whether the gift‑deed executed by Mst. Bago in favour of Gulla is not valid because the same was not followed by the delivery of possession, it may be stated that it is well‑settled principle of law that the objection regarding non‑delivery of possession can only be raised either by the donor or his heirs and not by a third person. There is no dispute in the instant case that the plaintiff, Alif Din or for that matter his legal representatives are not legal heirs of Mst. Bago. Thus, the gift‑deed in question could not be challenged on the ground of non‑delivery of the possession. We find support in our view from the cases reported as Muhammad Lal v. Mohko (PLD 1979 SC (AJ&K) 27), Kalu Beg Afzalbeg v. Gulzarbeg Lal Beg (AIR 1946 Nag. 357), Fazal Ahmad v. Mst. Rokhi (PLD 1958 Lah. 218) and Saida v. Pinnu PLD 1979 SC(AJ&K)

245. Therefore, we are of the view that the argument that the gift was invalid on account of non‑delivery of possession is not tenable and is devoid of any merits. Even otherwise, the delivery of possession by donor to donee is not prerequisite for the validity of the gift in all cases. If the possession could not be delivered because the same was not with the donor at the time of the execution of, gift‑deed or for any other reason but the donor did all that he e could do to divest himself of the ownership of the property gifted, non‑delivery of possession would not render the gift as invalid. We find support in our view from the following authorities. In Shamshad Ali Shah v. Syed Hassan Shah (PLD 1964 SC 143), it was held that delivery of possession in case of a gift is necessary and where the donor was admitted in possession he should deliver the possession to donee. It was further observed .that as the possession at the time of gift was with tenant, it was not necessary to give specific ,direction .to tenant' to hand over the possession for the completion of gift. In Reham Ali v. Abdul (1980 CLC 1110) (Supreme Court AJ&K), it was observed that the gift cannot be held as invalid for non‑delivery of possession; and that the constructive possession, as corpus is susceptible, accompanied by the acts of the donor showing that he parted with the ownership of the property would suffice for the validity of the gift. In Khursheedul Islam v. Mgrs. Oamar Jahan (1989 CLC 1467), it was observed that where the property was in possession of tenant, the gift can validly be made by him without formal delivery of possession provided the donor did all that he could do to complete the gift and enabled the donee to acquire the possession of subject‑matter of gift. In such a case constructive delivery of possession by getting the name of donee recorded in the revenue record or by publishing the transaction in newspaper would suffice. In Zahuran v. Abdus Salam (AIR 1930 Oudh 71), it was observed that delivery of actual possession is not necessary in all cases to make a valid gift. If the circumstances so warrant a constructive delivery of. possession would suffice. In Saida v. Pinnu (PLD 1979 SC (AJ&K) 245), it was observed that delivery of `Khas' possession by the donor in pursuance of a gift is not necessary in all cases. If a donor puts the donee in possession, which may enable him to get the possession, it would suffice, besides, the objection of non‑delivery of possession can only be raised by the donor and not by third person. I In Sakhi Muhammad v. Mst. Rasool Begum (PLD 1971 Azad J&K 55), it was held that if the property was mortgaged, the delivery of possession is not necessary for making a valid gift valid and in such cases, the gift cannot be held invalid for non‑delivery of possession. It is evident from what has been stated above that the, delivery of possession is not condition precedent for the validity of a gift in all cases and the condition is subject to all just exceptions. If the possession, as is in the: instant case, was not with the donor at the relevant time 'but he makes his intention to divest himself of the ownership of the property clear by doing all that he could do, the validity of the gift is not open to challenge on the basis of non‑delivery of possession. In the instant case Mst. E3ago, donor, was co‑owner with Alif Din, plaintiff, and was related to him as his sister. Although she gifted land to her son, Gulla, by a registered gift‑deed yet she could not deliver possession of land to donee because subject of the gift‑deed was in possession of Alif Din as co‑sharer. Thus, the factum of non‑delivery of possession in the instant case would not invalidate the gift. Next it has been argued by the learned counsel for the appellant that as the gift was out of the undivided property, the same was void ab initio. It may be stated that the gift of undivided property (musha') is only invalid and not ab initio void. A gift out of undivided property can be perfected after getting the land partitioned. We are supported in our view by the following authorities: In case reported as Sonaullah Fakir v. Alam Fakir (1968 SCMR 311(2)), it was held that gift of a share of undivided property under Muslim Law is valid. It was, further observed that the doctrine of `musha' should not be applied strictly. In case reported as Hamid Ullah v. Ahmad Ullah (AIR 1936 All. 473), it was observed that the gift of property of `musha' which is capable of partition is only invalid and not void and the same can be perfected by subsequent partition. As the gift was made of definite share and property is capable of partition, the gift is not void. Thus, the contention of the learned counsel for the appellants that as the gift was out of undivided property, it was void is not tenable and is hereby repelled. The next point urged by the learned counsel for the appellants is that the gift‑deed executed by Mst. Bago was in excess of her fractional share in the joint estate. It may be stated that at one stage, the case was. remanded by the District Judge after framing some additional issues and one of the issues was as to whether Mst. Bago executed the gift deed in excess of her fractional share; the onus to prove the issue was on Alif Din, plaintiff. The trial Court decided the issue against the plaintiff. The judgment given by the District Judge in the appeal filed by Alif Din does not contain any finding on the aforesaid issue. Thus, it can be safely assumed that the issue was not pressed before the District Judge. When the appeal was preferred to the High Court by the respondents, the point was not agitated by the appellants by filing cross objections or otherwise, consequently, there are also no findings of the High Court on the point. The findings have also not been challenged in this Court in the petition for leave to appeal or in the concise statement. Thus, it was too late in the day for the appellants to raise the objection during the course of the arguments. As the onus of the issue as to whether the gift was made in excess, of the share of the donor was on Alif Din, it was for him to prove the same but he failed to bring on record any evidence, oral or documentary, in support of the issue. Hence the contention of the learned counsel for the appellants that the gift‑decd was made in excess of the share of the donor has no merits. It may be stated that the trial Court had passed the decree for `Khas' possession in favour of Muhammad Yaqoob and Ali Zaman. It is on the record that after the execution of the sale‑deed in their favour, Muhammad Yaqoob and Ali Zaman became co‑sharers with Alif Din, the plaintiff, and after his death with his heirs. Thus, only a decree for joint possession, in favour of Muhammad Yaqoob and others, could be passed and not a decree of `Khas' possession. The High Court has restored the decree of the trial Court in favour of the respondents and, thus, the judgment and decree of `Khan' possession against the appellants stand. Therefore, we modify the judgments and decrees of the trial Court and the High Court in terms that the decree for possession in favour of plaintiffs, Muhammad Yaqoob and others, respondents, would be deemed to be a decree for joint possession; they would be entitled to get `Khan' possession only after regular partition. Except the above modification, the appeal is dismissed with no order as to the costs. A.A./373/S.C.A. Appeal dismissed.