P L D 2014 Supreme Court 331 (PLP)

MIAN SAQIB NISAR, J.

This appeal with the leave of the Court dated 20-12-2006, entails the facts:

that the suit house was exclusively owned by Babu Khan, the father of the parties. He orally gifted the said property unto the respondent, his son, and to this effect admittedly executed a declaration of gift dated 16-8-2001, followed by a registered declaration of gift dated 21-5-2002. It may be pertinent to mention here that Babu Khan, in an earlier round of litigation initiated by the appellants against their father in connection with the suit property, had personally appeared in the court and had affirmed the gift while giving evidence in Suit No.12 of 2000. However, as the appellants, other sons of Babu Khan, were in possession of a portion of gifted property being the licensee of their father, thus in order to seek possession thereof, the respondent-donee instituted a suit bearing No.80 of 2002 for the recovery of possession, along with mesne profits for the use and occupation of the property by the appellants. This suit was dismissed by the learned trial court vide judgment and decree dated 20-3-2004, mainly on the ground that the gift was not valid as the physical possession of the entire property had not been delivered to the plaintiff-donee at the time of gift; but on appeal of the respondent, which was allowed, the learned appellate court by setting aside the aforesaid verdict, decreed the suit on 12-11-2004; the revision filed by the appellants was disallowed on 4-10-2005. Leave in this case was granted on 20-10-2006 to consider whether the gift in favour of respondent was valid or otherwise due to the lack of delivery of physical possession; it may be relevant to mention here that it has been assumed throughout that as the respondent-donee was constrained to file a. suit for possession, thus the delivery of possession pursuant to the gift was lacking.

2. Heard. Learned counsel for the appellants by relying upon the judgment reported as Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938) has only raised one point i.e. that the gift without the delivery of physical possession was invalid and, therefore, no lawful right of ownership has been acquired by the respondent on the basis of which he could initiate the suit for possession etc. However, from the written statement filed by the appellants, it transpires that the validity of the gift was not questioned by them on the ground of the lack of delivery of possession of the property to the donee, and in such a situation, they under the law are precluded to assail the validity of the gift on that account, because no one can be allowed to set out a new case beyond the scope of his pleadings. Besides, Babu Khan vide two declarations of gift (including a registered instrument) in unequivocal terms had admitted the gift; which was also affirmed by him while appearing as a witness in Suit No.12 of 2000 (the suit) filed by the appellants against him; moreover there is evidence on the record, that Babu Khan had cancelled the license of the appellants, who were living with him with the legal effect that Babu Khan shall be considered to have attained the possession, which could validly be taken to have been constructively delivered to the respondent. It is relevant to mention here, that the appellants could not claim any right of any sort or the nature in the property during the lifetime of their father Babu Khan, who admittedly was the owner and they also had no right or the locus standi to challenge the gift as being invalid for the want of delivery of possession, only for the reason that they might have inherited the property as legal heirs of Babu Khan in the eventuality of his death. The appellant's possession, at that time, at best, was in the nature of a licensee as mentioned earlier; and obviously a licensee cannot question the validity of the gift on the basis that the possession of the property was with him, especially when at the time of the making of oral gift he has no enforceable right or interest in the property. This is so because the appellants at the time of the gift, for all intents and purposes, were strangers to the gift, either being the licensee of Babu Khan or being his prospective legal heirs. It is relevant to note here that Muhammadan Law does not recognize spes successionis i.e. expectation or hope of succeeding to the property of another by survival; or in other words till the death occurs, a presumptive heir has no right at all in the property of his ancestor1 and thus (a presumptive heir) cannot challenge the validity of any transaction effected by such person from whom he might or ought to inherit, because he shall be a stranger to the gift in the context of both the situations mentioned above; more so, when the donor out of his free will has made the gift, affirmed and owned it throughout his life as having been validly made; and never questioned till he breath his last; his successors (L.Rs.) would also lose the locus standi to challenge the validity of the gift on that score. It may also be pertinent to mention here, that the case of the appellants set out throughout starting from their written statement was, that the gift was mala fide, collusive and depriving the other legal heirs from their right of inheritance and/or they had contributed towards the construction of the said property, but at no level the appellants ever have challenged the validity of the gift on the basis of lack of delivery of possession. The judgment (supra) cited by the appellants counsel is distinguishable on its own facts, in that, the donor in this case (appeal) has been admitting the gift as valid; and cancelled the license of the appellant, whereas this was not the position in the cited dictum.

3. In view of the above, this appeal has no merit and is hereby dismissed. MWA/A-1/SC Appeal dismissed.