2003 PLP 301 (CLC)

However, the learned Judge observed that the gift was genuine and in fact was executed by Mst. Noor Nishan.. Feeling aggrieved by the aforesaid judgment and decree of the trial Court, the petitioners filed two separate appeals, which came up for hearing before the learned Additional District Judge, Okara, who dismissed both the appeals on 28‑11‑1994 by observing:‑‑ " .... in the presence of such overwhelming evidence, I .am obliged to concur with the trial Court that gift deed was genuinely drawn with donor's free consent." However, the learned Additional. District Judge also endorsed the finding recorded by the Civil' Court on non‑delivery of possession by the donor to the donee by observing:‑‑ "Regarding lack of delivery of possession under the gift deed, I have no reason to differ with the findings of the learned trial Court." The learned Appellate Court interpreted the doctrine of "Mushaa" by observing:‑‑ "In the present case, since the delivery of possession under the gift deed is held to have not yet been made in favour of donee; Mst. Zohran, nor subsequent partition of joint Khata was ever effected on the move from any quarter, the gift remained imperfect and invalidated. It was yet irregular (Fasid), invalidated and conveyed no interest or title under it; neither to the donee nor to her successors‑in‑interest (the appellants plaintiffs Muhammad Akram etc.;)." The learned counsel for the petitioners contends that both the Courts below have misinterpreted the doctrine of "Mushaa" under the Muhammadan Law as contemplated in paras. 158 to 160 of the Muhammadan Law by D.F. Mulla. Further contends that Mst. Noor Nishan, donor, was co‑sharer alongwith respondent Haji Muhammad Ali and in the suit property the possession was with said Haji Muhammad Ali regarding the land owned by Mst. Noor Nishan at the time of execution of gift deed dated 26‑5‑1976 and sanctioning of Mutation No.272 in favour of Mst. Zohran Bibi dated 28‑6‑1976, therefore, the non‑delivery of physical possession to Mst. Zohran Bibi was immaterial. The gift was valid in all respects. The learned counsel further contends that both the Courts below misread Jamabandi EXh.P.I to Exh.P.3, Khasra Girdawari Exh.P.4, sale‑deed Exh.P.5 and Mutation No.272, dated 28‑6‑1976 Exh.P.9. Wali Muhammad and Noor Muhammad sons of Bakhsha and Ali Muhammad son of Muhammad Din alongwith Mst. Noor Nishan have been recorded in Register Haqdaran Zamin for the year 1973‑74 Exhs.P.2 and P.3 as co‑owners to the extent of 13 Kanals, 10 Marlas in total land measuring 216 Kanals, 7 Marlas. Conversely, the learned counsel for the respondent contends that both the Courts below have rightly interpreted the doctrine of "Mushaa" as contemplated in paras. 158 to 160 of Muhammadan Law by D.F. Mulla. Further contends that delivery of possession in this case was sine qua non and, therefore, there was no conception of valid gift in favour of Mst. Zohran Bibi. Reliance has been placed on: PLD 1960 (W.P.) Kar.

745. Before I advert to the question of law regarding the doctrine "Mushaa" under the Muhammadan Law as contemplated in paras.158 to 160 of the said Muhammadan Law by D.F. Mulla, it is necessary to advert to the facts of the present case first. Admittedly Mst. Noor Nishan was the owner of the land measuring 19 Kanals, 3 Marlas situated in village Kohla, Tehsil and District Okara according to Register Haqdaran Zamin for the year 1973‑74, in Khewat No.3, 1 / 16 share of land measuring 216 Kanals, 7 Marlas to the extent 13 Kanals, 10 Marlas, and Khewat No.4, Khatooni No.34, 1/23 share measuring 5 Marlas in total land of 8 Kanals‑ and then in Khatooni Nos.61 to 74, 1/64 share which is 5 Kanals, 5 Marlas in total land measuring 337 Kanals, 12 Marlas and Khewat No.36, Khatooni Nos.277 to 279, 1/256 share to the extent of land measuring 3 Marlas in 42 Kanals, her total land measuring 19 Kanals, 3 Marlas. The above stated Khewat Numbers and Khatooni Numbers were in possession of Manzoor Ali son of Muhammad Din on the basis of Exh.P.4 from Kharif 29‑10‑1976 to 4‑4‑1977 up to Rabi If ‑3‑1978. According to gift deed executed by Mst. Noor Nishan in favour of Mst. Zohran Bibi, which was registered at No. 1798, Bahi No.616, executed on 26‑5‑1976, Exh.P.5, possession was delivered to Mst. Zohran Bibi. Mutation No.272 was sanctioned regarding the abvoesaid land in favour of Mst. Zohran daughter of Bakhsha, vide Rapt Roznamcha Waqiati No.457 dated 9‑6‑1976 on the basis of registered gift deed No. 1798 Exh.6. It shows shares of Mst. Noor Nishan I /6, 1 /34, 1 /64, 1 /456, land measuring 13 Kanals, 10 Marlas, 5 Marlas, 5 Kanals, 5 Marlas and 3 Marlas respectively has been transferred in favour of Mst. Zohran Bibi. Learned Civil Judge as well as the learned Additional District Judge held that the gift deed dated 26‑5‑1976 was validly executed by Mst. Noor Nishan in favour of Mst. Zohran Bibi. From the above‑stated facts and documentary evidence it has been proved that the land which was jointly owned by Mst. Noor Nishan was transferred in favour of Mst. Zohran Bibi and constructive A possession was delivered to her and the gift was legally complete in all respects as all the three ingredients, i.e. declaration, acceptance and delivery of possession were fulfilled. To appreciate the doctrine of "Mushaa", it is appropriate to reproduce paras.158 to 160 of the Muhammadan Law by D. F. Mulla, which are as under:‑‑ "

158. Mushaa defined.‑‑‑ Mushaa is an undivided share in property either movable or immovable.

159. Gift of Mushaa where property indivisible.‑‑‑ A valid gift may be made of an undivided share (Mushaa) in property which is not capable of partition.

160. Gift of Mushaa where property divisible.‑A gift of an undivided share (Mushaa) in property which is capable of division is irregular (Fasid), but not void (Batil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated. Exceptions.‑‑‑ A gift of an undivided share (Mushaa), though it be a share on property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases:‑‑ (1) where the gift is made by one co‑heir to another; (2) where the gift is of a share in a Zamindari or Taluka; (3) where the gift is of a share in freehold 'property in a large commercial town; (4) where the gift is of shares in a land company." It has been argued while relying on the paras. 160, 161 and 167 of Muhammadan Law by D.F. Mulla with, reference to non‑delivery of possession that since the gift in question was,of undivided share (Mushaa) in the property and since the physical possession of the same was never delivered to the predecessor‑ of the petitioner, Mst. Zohran Bibi, therefore, the same was void as it was never made. According for Mulla in his Book on Muhammadan Law (7th Edition), gift of undivided share (Mushaa), though it may be of share in the property capable of division, is valid from the moment the gift is made even if the share is not divided and delivered to the donee, as reproduced above. Mr. Tayyab Gi, a famous Jurist, in his Book Muhammadan Law (Third Edition) has discussed gift of Mushaa in paras.374 to 382 by giving the above‑stated four conditions. According to him, in the Hanfi Law the gift of Mushaa for undivided part of a thing capable of division is not complete and valid unless the part of which the gift is made is divided and separated from the rest and the possession of the separate part given to the donee, provided that a gift of undivided property is valid. An undivided part of a property capable of division may form the subject‑matter of gift where the donor and the donee are joint owners of the said property. A gift of two or more persons jointly is valid notwithstanding that the donor has not divided the `shares of the donee nor given separate possession of his respective shares provided that the interests of each donee defined in the declaration of gift. Baillie in his Digest of Muhammadan Law has dealt with the gift of Mushaa at page

523. It has been stated that the gift of Mushaa or undivided part of the property which is capable of division is not lawful. According to him, it is irregular and the irregularity can be cured by delivery of possession or define part of ‑the property. It is, however, mentioned that according to two disciples of Imam Abu Hanifa the gift of Mushaa in property which is capable of division between the two men or to a group is valid. Hamilton in Hedaya at page 486 has expressed similar view with regard to gift of Mushaa. However, according. to Imam Shafi, gift of Mushaa or otherwise is valid because it is relationship to a property as it cannot be said that undivided part does not constitute a property. Mr. Justice M.R. Kiani has held in Aurangzeb and others v Daud Khan and others PLD 1957 Pesh. 85 that:‑‑ "It is true that delivery of possession is one of the three essentials of a valid gift, but it is now an established law that no transfer of possession is required in case of gift by a father to his minor child or by a guardian to his ward. All that is necessary to establish is a bona fide intention to gift.". It has been ruled in case of Nazir Din and others v. Muhammad Shafi AIR 1936 Lah. 1992 that the Muslim Law does not contemplate actual delivery of possession by the donor. This view was followed in Saif Shafiullah v. Ghulam PLD 1955 Lah. 191 where it has been ruled that in case the donor and the donee are related to each other in that case, it is unnecessary that the donor should physically part with the possession of the property as mere intention on his part to treat the property as that of the donee and to divest himself of his own ownership is sufficient to constitute a valid gift. In case of Hamidullah v. Ahmadullah AIR 1936 All. 473 where parts of land being undivided share of 37/32 in six houses of which the donor was not in physical possession though the property was capable of division it was held that the gift was valid as donor had done practically all she was able, to do in the way of divesting herself of possession and giving to the donee the possession which she herself had. In Kanij Fatima v. Jai Narain (1944) 23 Pat. 216, 218 IC 443, (44) AP 334, the subject of gift was one Anna share in the land as heir of her first husband and also one Ana as heir of second husband: it was observed that donee of Mushaa who had taken possession of the subject of gift and she found it confined and practicable to continue to hold that property without partition should be allowed to do so. In the present case, as the facts of the case show that the donee Mst. Zohran Bibi was the daughter of Mst. Noor Nishan, the property was jointly owned by said Mst. Noor Nishan with respondent Haji Muhammad Ali when the property was gifted in favour of Mst. Zohran Bibi. As such, according to law, there was need for formal delivery of possession to her by donor being mother. Further the gift in the present case was of a share of. 1 / 16, 1 /34, 1 / 164 and 1 /456 in Khata Nos. 3, 4, 7 and 26 of land 216 Kanals, 7 Marlas to the extent of 13 Kanals, 10 Marlas, 5 Marlas from 8 Kanals, 5 Kanals, 5 Marlas and 3 Marlas, total land of her share measuring 19 Kanals, 3 Marlas. According to Example No. 2 of para. 160 of Muhammadan Law by D. F. Mulla (7th Edition, it is valid in spite of the fact that it is Hibba Bil Mushaa. In case Bahadur Khan v. Jan Muhammad PLD 1960 Kar. 742 the subject of the gift was 1/2 share out of 2 Annas share consisting of 16 acres of agricultural land belonging to the donor. It, was argued in that case that two Annas share was separated from the other co‑sharers and at that time of gift 16 acres of land was in his possession. It was found that it was out of those 16 acres of land that the donor gifted 1 /2 share to the donee. Thus, the gifted property was not a gift of undivided property and could not be considered to form within the four corners of doctrine of Mushaa recognized under the Muslim Law. From the above discussion, it is proved that out of total land of more than 100 Kanals, land measuring 19 Kanals. 3 Marlas was the subject‑matter of the gift, as such the gift made in favour of the donee is not hit by the principle of Mushaa. While interpreting gift of Mushaa it has been held in case reported as Hakam Khan v. Aurangzeb and others P1.D 1975 Lah. 1170:‑‑ "The purpose behind the principle of Mushaa is that the donee should not be put to inconvenience or difficulty in case of undivided share of the property. If that difficulty or inconvenience is not felt by the donee then the question of invalidity of the gift on that basis would not arise." The upshot of the above discussion is that both the learned Courts below have misread the gift deed dated 26‑5‑1976 Exh.P.5, Jamabandis Exhs.P.1 to P.3, Khasra Girdawari Exh.P.4, gift deed Exh.P.5 and mutation in favour of Mst. Zohran Bibi, and misinterpreted the law of Mushaa as contemplated in paras.158 to 160 of Muhammadan Law by D.F. Mulla and fell in error and committed material irregularity and illegality in non‑suiting the petitioners. Though there is concurrent I finding of fact, yet the same are not correct interpretation of law. Therefore, I by exercising revisional jurisdiction under section 115, C.P.C. accept this revision petition, set aside the judgment and decree of the learned Additional District Judge, dated 28‑11‑1994 and of the Civil Judge dated 31‑7‑1991. Resultantly, Suit No.1038 of 1991 filed by the petitioners is decreed and Suit No.1039 of 2001 filed by the respondent shall stand dismissed with costs. Q.M.H./M.A.K./M‑1373/L Revision allowed.