2002 PLP 1327 (CLC)

This civil revision is directed against the judgment and decree, dated 22‑11‑1990 awarded by the District Judge, Gujranwala whereby the appeal of the petitioner was dismissed and the judgment and decree, dated 25‑6‑1989 of the trial Court was upheld and the suit of the petitioner was dismissed.

2. Brief facts of the case are that the petitioners and the respondents are real brothers and sisters. Their father Murad Ali executed a gift deed in favour of respondent No. l whereby 55 Kanals, 7 Marlas of land out of his total holding of 221 Kanals, 19 Marlas was given to respondent No. 1 through a registered gift deed, dated 2‑11‑1986. The petitioner felt aggrieved and filed a suit for declaration challenging the registered gift deed, dated 2‑11‑1986 inter alia on the‑various grounds mentioned in the plaint and also assailed the gift on the ground that the possession was never delivered to the respondents. The suit filed by the petitioners was resisted by the respondents and from the divergent pleadings of the parties as many as six issues were framed. Both the parties led their evidence and after completing the hearing of the case the trial Court dismissed the suit of the petitioners and upheld the gift of 55 Kanals, 7 Marlas of land made in favour of the respondent by his father through registered gift deed, dated 2‑11‑1986. The petitioner filed an appeal from the judgment and decree of the trial Court. The appeal was finally decided by the District Judge, Gujranwala. The First Appellate Court after re‑appraising the evidence on record upheld the judgment and decree of the trial Court and dismissed the appeal of the petitioners. However, aggrieved from the judgments and decrees of the two Courts below, the petitioners filed the present revision petition.

3. The learned counsel for the petitioners has argued that Murad Ali father of the petitioners and respondent was 98 years of age in the year 1986 and he suffered with frailties of health. He was residing with his elder son Muhammad Yar respondent No. l who has procured a gift deed in respect of 55 Kanals, 7 Marlas of land through manipulation and undue influence. Next it was argued that through the impugned gift the petitioners who were the legal heirs of Murad Ali deceased could not be deprived from their rights and any gift causing to deprive the other legal heirs was invalid. Further it was argued that the impugned gift was in respect of 55 Kanals, 7 Marlas of land which was a part of undivided estate left by their father. The possession of the same was never delivered to the respondent. On the same score the learned counsel argued that gift was not complete and the principles of. Musha were applicable. Further the gift deed was not proved according to law and both the Courts below have erroneously decided the issues against the petitioners. The counsel appearing for the respondent supported the judgments of two Courts below and also highlighted the evidence on record in support of the gift.

4. I have heard the learned counsel for the parties and examined the record. The main emphasis of the learned counsel for the petitioners during his arguments was that the gift in favour of the respondent No.1 Muhammad Yar was a Musha Gift and the possession was not delivered and it was not proved that the exclusive possession of the gifted property took place simultaneous to the gift. Firstly dealing with the question of gift of an undivided share of agricultural estate, I hold that such undivided share of agricultural estate can form subject‑matter of the gift. A Relating to Musha Gift rigidity has been considerably relaxed in Sub -Continent of India. A gift of Musha is valid if the donor has done all that law requires to do to divest himself from the property. One of the important test that is applied in cases of gift under Muslim Laws is to see the intention on the part of the donor. The delivery of possession in gift of Musha was not necessary as all parties of undivided share are presumed to be in constructive possession. Therefore, the test of delivery of possession is not rigorously applied in Musha gift. In holding this view I seek support from cases titled Nazir and others v. Muhammad Shah and others AIR 1936 Lah. 92, Sheikh Muhammad Mumtaz Ahmad v. Zubada Jan and others Indian Appeal Case Vol.XVI 205 and Mrs. Razia v. Wajid Ali 1986 CLC 118 (Karachi). As regards the argument of the learned counsel that a Muslim cannot dispose of his property by way of gift to deprive other heirs is not well‑founded argument. Under the Islamic Law a Muslim can dispose of his property in favour of a heir completely excluding other heirs and no restriction or fetter exist under the Muslim Law to prevent a person from gifting out the whole or any part of his property to one of his legal heirs. This principle was upheld by the Supreme Court of Pakistan in the case titled Noor Muhammad Khan and others v. Habib Ullah Khan reported as PLD 1994 SC

650. The Exh. D.1 is a registered gift deed which was registered in the office of the Sub- Registrar, Wazirabad. It is clear from the gift deed that the donor had every intention to make a gift in favour of the respondent No. l and he has also delivered the possession of the property to his son and donor divested himself from the gift property. The gift comprised of 55 Kanals, 7 Marlas of land out of the total holding of the donor measuring 211 Kanals, 19 Marlas. The petitioners could not produce any evidence to show that the impugned gift deed was result of fraud and forgery although the onus of Issue No.4 was on them. The petitioner examined two witnesses P.W.1 and P.W.2 in support of their case. P.W.I Muhammad Sadiq was one of the plaintiffs/petitioners while appearing as his own witness he did not utter a word about the fraud or forgery which was the main plank of the case of the petitioners. Similarly the statement of P.W.2 could not bring anything on the record to prove that gift is based on fraud or forgery. The gift deed was produced by D.W.1 as Exh.D.1 and it was never objected to. It being a registered document carried the presumption of correctness until and unless rebutted. As the petitioners could not produce any evidence to rebut the contents of the registered gift deed, therefore, both the Courts below have correctly upheld the same. As regards the plea of possession, I am of the view that the property gifted was a part of undivided joint estate and the possession of the respondent No. l as a constructive (possession hold good for the purpose of completion of gift. In view of my finding hereinbefore, I do not find any merit in the civil revision. Consequently, the judgment and decree, dated 22‑11‑1990 of District Judge, Gujranwala and judgment/decree of the trial Court, dated 25‑6‑ 1089 are upheld and the revision petition is dismissed. Q.M.H./M.A.K./M‑925/L Revision dismissed.