P L D 1966 W (PLP)

Mst. Fateh Khatoon Daughter‑in‑law Mutation No. 13 of village Kalia 24‑7‑57 Mst. Fateh Khatoon Mother. These mutations were sanctioned on 13th November 1958. After the imposition of Martial Law, the donor applied for the validation of these transactions. The Deputy Land Commissioner did not recommend validation. The Land Commissioner agreed with the Deputy Land Commissioner and refused validation. Hence these ten appeals by the donees concerned. I have heard the learned counsel for the appellant at great length. The main questions for consideration in these ten appeals are the following:‑

(a) whether the Mutations Nos. 10, 11, 12 and 13 were in fact, entered on 24th July 1957? (b) whether the delivery of possession was actually effected? and (c) if the delivery of possession is not proved, whether gifts are valid in respect of all or some of the donees in the absence of delivery of possession having been established? The Deputy Land Commissioner and the Land Commissioner did not hold that the mutations were, in fact, entered on 24th July 1957, on account of certain omissions on the part of the revenue staff. It was stated that there were no corresponding entries in the Patwari's Roznamcha Karguzari or Roznamcha Waqiati. I sent for the Patwaris and Kanungos concerned as well as H. V. C. of the Deputy Land Commissioner's office and examined the relevant records. It was discovered that, in a large number of cases, mutations were entered but no corresponding entries were made in the Roznamcha Karguzari and Roznamcha Waqiati. The Deputy Land Commissioner also remarked that the attestation of these four mutations, by the Kanungo alleged to have been made on 19th August 1957, was not supported by the Partal note of that date. An examination of the entries shows that there was some confusion about the Patwari's report. He was only asked to report as to which mutations were verified by the Girdawar on 19th August 1957, and it was reported that they related to Chak Musa. An objection was also raised about the mutations, having never been put up before the Tahsildar until Martial Law was imposed. The learned counsel for the appellant pointed out that mutation No. 9 which was admittedly entered in 1954 was not put up before the Tahsildar till after Martial Law. As against this negative aspect of the case, there is some positive evidence to show that the mutations were, in fact, entered on 24th‑July 1957. Mutation No. 9 was entered on 7th December 1954. On the back of this mutation there .is an entry dated 15th June 1955, that the only pending mutation was No.

9. Similar entry is repeated on 15th June 1956, and on 15ih June 1957. On 15th June 1958, there is no such entry on the back of Mutation No.

9. Such an entry would have been there if Mutations Nos. 10, 11, 12 and 13 were entered after the imposition of Martial Law. Again, there is an entry on the back of Mutation No. 13, dated 30th June 1958, which gives the list of pending Mutations Nos. 9, 10, 11, 12 and

13. Another piece of positive evidence is found on the Part Sarkar of the Jamabandi. This copy was sent to the Tehsil on 26th September 1958, several days before the imposition of Martial Law: In the remarks column of this Jamabandi there is a definite entry that Mutations Nos. 9, 10, 11, 12 and 13 were pending and had not been disposed of. I have carefully examined this entry and 'found that there was nothing which would cast suspicion thereon. In these circumstances, I have no hesitation in holding that all these four mutation's were, in fact, entered on 24th July 1957. As regards the delivery of possession, the learned counsel for the appellant has relied on the fact of delivery of possession having been mentioned by the Patwari in his report in Mutations Nos. 10, 11, 12 and

13. So far as Mutation No. 10 is concerned, the note about the change of possession is in different ink but, as regards others, there is nothing which would throw doubts on its being there. The mere entry, however, does not establish change of possession. In this connection, the learned counsel for the appellant has also referred me to the evidence of the tenants, the statements and affidavits of Raja Ghazanfar Ali Khan, Mr. Mushtaq Ahmad Gurmani, and Mr. M. Ismail Bhatti, Advocate, a memo. from Mr. Manzoor Qadir and a letter from Mr. M. S. A. Baig. As regards the tenants, their oral evidence cannot be relied upon for the simple reason that they are either under the influence of the donor or have not realised the true significance of what they are saying. If they had realized that, in case the gifts were rejected, the land would be given to them as owners, they would have not given the evidence in the manner they have done so. As regards the other corroborating pieces of evidence, they only mention what the donor and the donees stated before the persons mentioned above except Mr. M. S. A. Baig's letter which only says that Malik Nazar Hayat Khan, one of the donees, wanted leave but the leave was not granted to him. A reference was also made by the learned counsel for the appellant to the statement about assets alleged to have been filed by Malik Nazar Hayat Khan to the Cabinet Secretary. A copy has not been produced, but, even if the statement is taken to be there, it will only amount to an admission in one's favour and will not be of any real evidential value. Similar remarks would apply to the statements and the affidavits made by the donor and the donees themselves: In these circumstances, I cannot hold that the delivery of possession has been established. The next question for determination is as to whether the gifts which were mentioned in the mutations entered on 24th July 1957, are valid in respect of all or any of the donees without there being change of possession. The donees fall into the following categories: (a) major sons; (b) minor daughters; (c) wives; (d) minor grand‑children; (e) mother; and (f) daughters‑in‑law. So far as the major sons of the donor, Malik Nazar Hayat Khan and Malik Fateh Hayat Khan are concerned, the delivery or possession is a necessary condition for the completion of gifts. This has not been established and I, therefore, hold that no gift has been established in their case and, so far as the gifts of 500 acres each to Malik Nazar Hayat Khan and Malik Fateh Hayat Khan are concerned, they shall not be validated. So far as the minor children of the donor are concerned, the law is well‑established. In this case, the delivery of possession is not a necessary condition and the gifts are complete without there being any change of possession. Mst. Sahibzadi in Mutation No. 11 is the only donee who fulfils this condition and I, therefore, hold that, so far as the gift of 500 acres of land in, favour of Mst. Sahibzadi is concerned, it stands established, and shall be validated. So far as wives are concerned, the learned counsel for the appellant has referred me to the following rulings:‑

(i) AIR1927PC22. (ii) AIR 1932PC13. (iii) 8 I C 431. (iv) A I R 1931 Sind 117. (v)AIR1947All.180. He has also drawn my attention to the following Text:‑

(a) William's Anglo Muhammadan Law, 1938 Edition, para. 303. (b) Sexana's Muslim Law, p. 401. (c) Aziz Ahmad's Islamic Law in Theory and Practice, p. 336; and (d) Mulla's Principles of Muhammadan Law, para.

153. The principle enunciated in all these rulings and text is to the effect that, in the case of a gift from the husband to the wife the delivery of possession is not necessary and such gifts are those n exceptions where actually delivery of possession, is not necessary for the completion of the gifts. In view of these authorities. I hold that the gifts in favour of Mst. Sultan Bibi and Mst. Fateli ,Bibi, wives of the donor, were complete and shall be validated. In order to show that the delivery of possession was not necessary in the case of minor grand‑children either, the learned counsel for the appellant referred me to the following rulings:‑ (i) 49 I C 204. (ii) A I R 1936 Lah. 92. (iii) 2 I C 846. (iv) A I R 1938 Lah. 794. (v) A I R 1919 Mad. 669. (vi) A I R 1927 All:

414. I have carefully considered the points raised by the learned counsel for the appellant. All these rulings are distinguishable in the sense that, in this particular case, the gifts were made at one and the same time to the sons and grand‑children: There is no evidence to prove that the grand‑children were in the sole custody, of the donor (grandfather) or that he was feeding and clothing them as their guardian: In the presence of the father, the proper person to accept the gift on behalf of the minor children would be the father and the mere declaration by the grandfather would not be‑sufficient to dispense with the necessary condition of the change of possession. ' In these circumstances, I hold that the gifts made in favour of Malik Muhammad Umar Hayat Khan (grandson) and Mst. Sultan Khatoon (grand‑daughter) were not complete and are not, therefore, to be validated. So far as the gifts in favour of the mother was concerned, the learned counsel for the appellant referred me to Aziz Ahmad's Islamic Law in Theory and Practice, page 336 and to Sexana's Muslim Law, page 402 and also to A I R 1925, page

501. These rulings speak of only relations living with the donor. There is no specific mention of the mother. At any rate, there is no evidence that the mother is living with the donor. It is admitted that she has got some land of her own. In these circumstances, I am unable to hold that the gift was complete in respect of the mother either and order that the gift of 500 acres of land in favour of Mst. Fateh Khatoon, mother of the donor, shall not be validated. In respect of daughters‑in‑law, 'the learned counsel for the appellant referred me to the rulings cited in case of gifts to the mother and P L D 1958 Lah.

218. The last mentioned ruling is not on all fours with the present case nor do the principles given in the rulings in respect of the gifts made in favour of mother help the' appellants. The daughters‑in‑law have got their own husbands and it is not established that they are living with the donor. In their case also, the gift cannot be said to be complete in the absence of delivery of possession and I, therefore, order that the gifts in respect of Mst. Mumtaz Begum and Mst. Sarwar Sultana shall not be validated. To recapitulate, the position of the gifts will be as follows:‑

Gifts shall be validated in respect of:‑

(a) Minor daughter, Mst. Sahibzadi in Mutations No. 11 and (b) Mst. Sultan Bibi and Mst. Fateh Bibi, wives of the donor mentioned in Mutation No. 10:‑ The gifts shall not be validated in respect of:‑

(i) Malik Nazar Hayat Khan; (ii) Malik Fateh Hayat Khan; and (iii) Malik Muhammad Umar Hayat Khan, sons and grand‑sons of the donor mentioned in Mutation No. 10; (iv) Mst. Sultan Khatoon; and (v) Mst. Mumtaz Begum, grand‑daughter and daughter‑in‑law of the donor mentioned in Mutation No. 11 ; (vi) Mst. Sarwar Sultana, daughter‑in‑law of the donor mentioned in Mutation No. 12; and (vii) Mst. Malkani Fateh Khatoon, mother of the donor mentioned in Mutation No.

13. S. Q. Order accordingly.