P L D 1960 (W (PLP)

Sardar Khan of Chak No. 79/N. B., Tehsil Sargodha, was holding some Government land as a horse‑breeding tenant under the Colonisation of Government Lands (Punjab) Act, 1912. He died leaving behind three sons, Muhammad Latif from the first wife and Muhammad Nawaz and Ghulam Rasul from the second, namely, Mst. Rahmat Bibi. Under the law laid down in the aforementioned Act, the whole of the Government land in the possession of Sardar Khan was inherited by his eldest son Muhammad Latif, because the rule of primogeniture governs such holdings. The Collector, however, gave 12 killas out of this land to Mst. Rahmat Bibi for maintenance till death or remarriage.

2. By an arrangement arrived at between Muhammad Latif on one side and the stepmother and two stepbrothers on the other, the former gifted away 19 killas of land in favour of his stepbrothers by a deed, dated the 4th of November 1949. In lieu thereof, by a separate deed, Mst. Rahmat Bibi relinquished her maintenance rights in 12 killas of land and surrendered the possession thereof to Muhammad Latif. The gift deed by Muhammad Latif was in writing. It was produced before the Sub‑Registrar for registration on the 7th of November 1949 and registered on the same date. A mutation on the basis of this deed, No. 198, was entered on the 9th of December 1949 and attested in the presence of Muhammad Latif and his two step brothers, the donees, on the 26th of December 1949. In July 1953, Muhammad Latif instituted a suit that the gift deed executed by him in favour of his two stepbrothers was a verbal transaction and should, therefore, be cancelled. He further demanded the possession of the gifted killas. In the body of the plaint he mentioned that a family settlement had been arrived at as a result of which he had undertaken to give 12 killas of land to his stepbrothers, but by some fraud played upon him, 19 killas were mentioned in the deed instead of the 12 killas. He further stated that he had given 12 killas of land to his brothers on the express condition that they would keep good relations with him, but they had violated that condition by not only making the relations strained, but actually giving a beating to him and to his wife. The learned trial Court framed four issues in the case besides the issue of relief. They were as under :‑ (1) Whether the defendants have extracted the gift in dispute by way of fraud or by exercising undue influence ? (2) Whether the gift in dispute has not been perfected by the delivery of possession to the defendants ? (3) Whether the defendants have not accepted the gift of the land in dispute ? (4) Whether the defendants have refused to fulfil the obliga tions attached to the gift, if any, and what is its effect ? Issues Nos. 2 and 3 were found against the plaintiff by the learned trial Court, because there was no evidence on the record in support thereof. While discussing issues Nos. 1 and 4, the learned trial Court, on some sentimental ground, held that Sube Khan, the attesting witness, who was very closely related to Mst. Rahmat Bibi, had actually committed the fraud and had 19 killas of land inserted in the gift deed. The learned trial Court, therefore, granted declaration to the plaintiff to this extent only that the plaintiff had gifted 12 killas of land in favour of his stepbrothers and not of 19 killas. On appeal, the learned Additional District Judge set aside the finding of the learned trial Court and dismissed the plaintiff's suit, but left the parties to bear their own costs throughout. The plaintiff has come up on second appeal to this Court.

3. The first question which has been argued before me by the learned counsel for the appellant is that the plaintiff was within his right under the Muslim Law to revoke the gift which had been made by him in favour of his stepbrothers. Paragraph 167 of the principles of Mahomedan Law by D. F. Mulla. Fourteenth Edition, would show that a gift which is accompanied by the delivery of possession when made in favour of a person related to the donor within the prohibited degree, it cannot be revoked. His contention is that a brother, by no stretch o imagination, be said to be related to his stepbrother within a prohibited degree. According to him only those persons can be said to be related inter se within the prohibited degree who belong to the opposite sexes. In support of his contention he has relies upon a Division Bench ruling of the Peshawar Judicial Commissioner's Court Ghulam Muhammad and others v. Muhammad Din reported in (156 I C 230). In this case, the gift made in favour o sister's son was allowed to be revoked because in the opinion o the learned Judges the sister's son cannot be said to be relate within the prohibited degree to his maternal uncle. On the other hand, there is a Single Bench case of the Lucknow Bench of the Allahabad High Court which has a direct bearing on this question. It is Tajju Khan v. Mazhar Khan reported in (AIR 1952 All. 614). It was held in this case that under the Mahomedan Law a gift by one person to another who is so closely related (e.g., brothers) that the marriage A between the two, if it could physically take place (i.e., if the two belonged to opposite sexes), would be illegal, cannot be revoked. It was further held that it was not necessary that the donor and the donee should be of the opposite sex so as to come within the B prohibited degrees of relationship for purposes of revocation of the gift. In my opinion the view taken in the Allahabad case is more sound and must be followed. It will be ridiculous to say that if a person makes a gift in favour of his son it can be revoked, but if he makes it in favour of his daughter, it cannot be revoked. The dictum that a gift in favour of a person related to the donor within the prohibited degree cannot be revoked is based on several authorities. In Hamilton's Translation of the Hadaya it is stated that if a person makes a gift of anything to his relation within the prohibited degree, it was not lawful for him to resume it because the Prophet had said that when a gift was made to a prohibited relation it must not be resumed, and also because the object of the gift was an increase of the ties of affinity, which was thereby obtained. In Baillie's Digest of Moohummudun Law, Book VIII, Chapter IV, the following appears :‑ "Gifts are of several kinds, some being to relations within the prohibited degrees, some to strangers, and some to relatives who are not within the prohibited degrees and some to persons who are prohibited, but are not relations. All may be revoked before delivery to the donee, whether he were present or absent at the time of the gift, and whether he were permitted to take possession or not. But after delivery, the donor has no right of revocation when the gift is to a relation within the prohibited degrees." The Durrul Mukhtar in relation to the Chapter relating to the revocation of the gifts and the Fatawa‑i‑Alamgiri also mention the same fact. Now, the words "prohibited degree" must be given artificial meaning as describing the degree of relationship which should be such as to exclude the legality of marriage between the " two wore such a marriage physically possible. These words cannot be given the literary meaning. This is apparent from the following quotation in the Baillie's Digest of Moohummudun Law :‑ "Relationship within the forbidden degrees prevents the revoca tion of a gift, whether the relative be a Mooslim or an infidel; and there is consequently, no revocation of gifts to fathers and mothers, how high soever, of children how low soever ; the children of sons and the children of daughters being in this respect alike. In the same manner there is no revocation of gifts to brothers and sisters, and paternal uncles and aunts." The above proposition of law can also be derived from the follow ing passage occurring in Durrul Mukhtar: "A man makes a gift, to his brother and a stranger, of an object which cannot be divided, and delivers the same to them. The donor can revoke the gift so far as the stranger is concerned, because there is no impediment." The inference is obvious that there can be no revocation so far as the brother is concerned. In this view of the matter where a gift is made and the donor and donee belong to the same sex, then in order to know whether they are related to each other within the prohibited degree or not, the sex of one party should artificially be changed and then decided whether the gift can be revoked or not. In this view of the matter, since Muhammad Latif and his two stepbrothers were related to each other within the prohibited degree, the gift by the former in favour of the latter is irrevocable.

4. The learned counsel for the appellant then entered into the facts of the case and submitted that it was proved from the evidence upon the record that Sube Khan D. W. had taken undue advantage of the simplicity of the plaintiff and by some fraud played upon the plaintiff had 19 killas of land included in the deed instead of

12. Apart from the fact that this is a pure question of fact which cannot be entertained by me in second appeal, I am confidently of the opinion that on the evidence pro duced the judgment of the lower Appellate Court is perfectly correct. The deed, as has already been mentioned, was written on the 4th of November 1949. It was presented for registration three days later and at the time of the presentation of the deed for registration Sube Khan was not present. Thereafter the mutation was attested in the presence of Muhammad Latif about 1 # months later. It is incredible that during all this time the plaintiff, however simple and illiterate he may be, was not able to know that he had gifted 19 killas of land although he intended to gift only

12. The fact that he must have gifted 19 killas of land is also clear from his having taken from his stepmother the 12 killas which, in all probability, was superior land to the land which he had gifted in favour of his stepbrothers, otherwise it was really not necessary for him to take back 12 killas of land and to give his stepbrothers 19 or 12 killas, whatever the case may be, because he could have very well said that the 12 killas of land which was being enjoyed by the donee's mother should be retained by them in absolute proprietorship. It is not necessary to go into the oral evidence produced by the parties because the circumstances of the case fully make it out that the gift was made by the plaintiff with open eyes and without any fraud having been played upon him. Sube Khan, who is stated to be the chief actor in the fraud, is not very closely related to Mst. Rahmat Bibi because he happens to be only the father‑in‑law of one of the children of Mst. Rahmat Bibi's brothers. The relationship is so remote that it will be difficult to say that he was so much interested in Mst. Rahmat Bibi's sons that he was prepared to go to the extent of playing fraud on Muhammad Latif plaintiff so that he might give mode land to his stepbrothers than he actually intended to do. I have thus no hesitation in upholding the judgment of the learned lower‑Appellate Courts and dismiss this appeal with costs throughout. K.M.A. Appeal dismissed.