1989 PLP 1274 (CLC)

This is a suit for partition.

2. Case of the plaintiff is that Mst. Fatima wife of Ali Akbar Hassanally Effendi was the owner of a plot of land with a building standing thereon bearing City Survey No.295, Block‑B/55, measuring 1,050 sq. yards situated in Sindhi Muslim Co‑operative Housing Society Limited, Karachi. This plot was acquired by her from the Society on lease. She then raised a single storey one unit bungalow thereon in 1952. Mst. Fatima died on 6‑7‑1958 and was survived by three sons (1) Wajid Ali, (2) Sikandar Ali and (3) Hamid Ali and three daughters (1) Marium, (2) Mehrunmsa and (3) Razia. Hamid Ali died on 15‑8‑1960 leaving two daughters (1) defendant No.3 Manzoorunnisa and (2) defendant No.4 Zahoorunnisa. Mehrunnisa died on 24‑12‑1974 leaving two sons (1) defendant No.5 Nazir Ahmed and (2) defendant No.6 Munnawar and two daughters (1) Defendant No.7 Dil Afroz and (2) Defendant No.8 Mafi Afroz. Marium died on 26‑11‑1982 leaving two sons (1) Defendant No.9 Rasheed and (2) Defendant No.10 Iqbal and one daughter Defendant No.ll Zubeida. During the pendency of the suit Wajid Ali died without any issue on 22‑1‑1984 survived by his brother Sikander Ali, the defendant No.2 and sister Razia, the plaintiff who became his heirs. Defendant No.2 Sikander Ali also died on 1‑1‑1985 leaving behind four daughters (1) Angelina defendant No.2(a), (2) Shaheen defendant No.2(b), (3) Rukhsana defendant No.2(c) and (4) Neelo defendant No.2(d) and a widow Sakina defendant No.2(e) as share‑holders and sister Razia the plaintiff as residuary. Thus their shares according to Muslim Law are as under:‑‑ Plaintiff Razia 2873 Defendant No.2 Angelina d/o Sikandar Ali 0676 Defendant No.2‑b Shaheen. ‑do‑ Ali 0676 Defendant No.2‑c Rukhsana. ‑do‑ 0676 Defendant No.2‑d Neelo ‑do‑ . 0676 Defendant No.2‑a Sakina. W/o 0551 Defendant No.3 Manzoorunnisa d/o Hamid Ali 0676 defendant No.4 Zahoorunnisa d/o Hamid Ali 0740 Defendant No.5 Nazir s/o Mehrunnissa 0405 Defendant No.6 Munawar s/o ‑do‑ 0405 Defendant No.7 Dil Afroz d/o ‑do‑ 0202 Defendant No.8 Mah Afroz~ , d/o ‑do‑ 0202 Defendant No.9 Rasheed s/o Marium 0486 Defendant No.10 Iqbal s/o Marium 0486 Defendant No.ll Zubeida d/o Marium 0243

3. The initial defendants Nos.l to 11 in their Written Statements admitted that the property in suit was owned by Mst. Fatima and that after her death it was inherited by defendants Nos.l to 11 in the shares shown by the plaintiff. Some of them have contended that it was the wish of late Mst. Fatima that her heirs should live together in this house and should not partition the property but no plea regarding creation of any Waqf‑ul‑Aulad has been raised. In fact no objection is raised nor could have been legally raised to the partition of the property in these circumstances.

4. An application under Order I Rule 10 C.P.C. was made by Aftab Rajab AU which was: granted by me on 7‑8‑1985 and he was impleaded as defendant No.12 on the Bole ground that he had alleged that Rajab Ali had gifted his share in the property to Aftab. Aftab son of Rajab Ali who died in 1944 i.e. 14 years before the death of his mother Fatima. Since at the time of death of Mst. Fatima i.e. on 6‑7‑1958 Family Law Ordinance had not come into force, therefore, defendant No.12 Aftab could not become an heir in spite of his being predeceased son of Mst. Fatima. In his Written Statement Aftab has pleaded that Wajid Ali had gifted his share in the house in suit to him. He has further stated that deceased Wajid Ali had also made notes of his desire in respect of his properties including his share in the subject property which was to be turned into Waqf‑ul‑Aulad according to the wish of late Mst. Fatima and that he had recited the o;al gift several times during his lifetime in his presence and that of Nisar Hnally Afandi and Hussain Ahmad Khatri and had given him constructive possession inasmuch as that Aftab, "would collect rent and otherwise manage the property and would receive and enjoy the corpus of the income of the share of late WaJid Ali in the property.

5. It would, therefore, appear the only person who was at issue with the plaintiff was defendant No.12 and consequently the only issues that were framed in this case are; ....(1) Whether the defendant No.12 is entitled to any share in the property, (2) what should the decree be. By order dated 13‑4‑1986 an additional issue of payment of court‑fee on the counter‑claim was framed but the same was resolved as the defendant No.12 applied for permission to pay the court‑fee which application was allowed and the court‑fee was paid on the tentative value of the suit property. My findings on these issues for the reasons, therefore, are as follows:‑

6. Defendant No.12 has examined himself and P.Ws Nisar Ali and Hussain Khatri. Aftab has stated that Wajid Ali had gifted his share in the property to him in presence of Nisar Ali Effendi, Shah Muhammad Menton and Hussain Khatri on 25‑4‑1980 at about 7‑00 p.m. at Banoo Villa Teerath Das Street, Karachi which is his residence. After the gift Aftab used to receive rent of the property. The statement of Aftab does not appear to be convincing. He has admitted m his cross‑examination that the tenants used to make payments by means of cheque which used to be in the name of Wajid Ali. His claim that he was recovering the rent appears to be on the face of it unbelievable on account of the above circumstance as well as on account of the fact that he was not able to give the name of the only tenant during his cross‑examination. The Written Statement does not mention any date or place on which gift was made. Hence his assertion in the deposition of the above date and place for the first time appears to be afterthought. He has also admitted in his cross‑examination that he did not inform Sindhi Muslim Housing Society that Wajid Ali had gifted his share of this property to him.

7. He has sought to corroborate his evidence by that of Nisarally Effendi Exh.ll and Hussain Ahmad Khatri Exh.12, both of whom have stated in a parrot like manner that on 25‑4‑1980 in their presence at his house Wajid Ali had gifted share in the house in suit to Aftab. Both these witnesses had been cross‑examined and could not give a good account of themselves in the cross‑examination. D.W. Nisarally had produced a document Exh.ll/1 which is a rough draft, purporting to be a will of Wajid Ali. It is neither signed nor dated. The contents thereof show that it was written in the lifetime of Mehrunnisa who had died in 1974. The only portion of this document which relates to the house in suit reads as under:‑ "Should for any reason my mother's income out of her property or the corpus itself happen to be divided in the latter case whatever may be assigned to me may be given to my nephew Aftab."

8. This document according to the witness was given to him by deceased Wajid Ali about one week after the making of declaration of gift (25‑4‑1980). This document could be of no value in 1980 as Mehrunnisa who was purported to have been appointed as an Executor therein had died in 1974 i.e. 6 years ago. It is, therefore, quite clear that this document is a draft of a will which deceased Wajid Ali had in his mind some time before the death of Mehrunnisa which had taken place in 1974 and which he did not execute for some reasons. The possibility of his having changed the mind also cannot be ruled out.

9. As against this the plaintiff has examined her husband and attorney Justice (Rtd.) Kazi Mushtaq Ali as Exh.15 who has stated that Wajid Ali used to come to him and used to give cheque of the rent of plaintiff's share and used to give statement of rent account and has produced the statement of account in respect of distribution of rent amongst the heirs and share‑holders. The statement comes from a very respectable person and is quite natural in the circumstances. These statements of accounts are in the handwriting of deceased Wajid Ali as Exh.15/4, 15/5, 15/6, 15/11 and 15/12. Exh.Nos.15/11 and 15/12 are of a period subsequent to the making of the alleged gift. Particularly Exh.15/12 is dated 15‑4‑1982 and is for tenancy year ending with 28‑2‑1983. In all these statements of account of the rent Wajid Ali has shown himself as heir of the deceased and has not shown Aftab as the donee. If he would have gifted his share to Aftab on 25‑4‑1980 as alleged by defendant 12 and his witnesses there was no reason whatsoever for Wajid Ali to have continued to have shown himself as the heir and to have shown to have appropriated the rent of Rs.4,950 in Exh.15/11 and Rs.6,693 in Exh.15/12 to himself. The originals of these statement of account of rent have been shown to be lost except statements of account of rent. Hence the objection as to production of the photostat copy is over ruled.

10. The plaintiff has also examined Wealth Tax Officer Exh.14 who has produced the Wealth Statements of Wajid Ali for the years 1979‑80, 1980‑81, 1981‑82, 1982‑83 and 1983‑

84. In each of these statements Wajid Ali has mentioned his own share in his mother's property viz. House No.55‑B, Sindhi Muslim Housing Society which is subject‑matter of this suit for calculation of wealth tax payable by him. From these statements it is quite clear that he claimed to be owner of his share in the house in suit till the time of his death. All these returns are in original and have been signed by Wajid Ali himself. Had Wajid Ali gifted his share of house to Aftab on 25‑4‑1980 there was no reason whatsoever for him to have shown this property in his own name in the wealth statement and to have paid tax thereon.

11. The plaintiff has also examined the Secretary of Sindhi Muslim Housing Society, as Exh.13 who has pi educed letter of Wajid Ali for mutation in favour of heirs of Mst. Fatima Bai. There is no mention of Aftab. The Secretary f Sindhi Muslim Housing Society has in his statement made it quite clear that Wajid Ali had never intimated him about the gift of the property nor any intimation was received by him through any other source as to the gift of the property by Wajid Ali in respect of his share. The property still stands in the name of Mst. Fatima Bai in the record of the Society.

12. The above evidence of the plaintiff is most convincing. The counsel for the defendant No.1 did not at all cross‑examine the Wealth Inspector. The cross examination of the Secretary of Sindhi Muslim Housing Society was also formal. It was not put to the witness in the cross‑examination that any intimation of the gift was sent to the Society nor any explanation for not sending the intimation of gift was brought to the notice of the witness. So much so that the cross examination of the plaintiff's husband by the counsel of the defendant No.l does not refer to the existence or ingredients of the alleged gift except the fact that other defendants had not objected to it. In fact it is not in respect of the alleged gift but it is on matters other than the gift such as the amounts invested in Khas Deposit by Wajid Ali, the cordiality of relations between the plaintiff and Wajid Ali and between the plaintiff and other heirs.

13. The burden of proof of the gift was on defendant No.12 who had set up the same. The evidence that he has led in support of the gift is not at all convincing. The plea that Wajid Ali had made an oral gift of his share in the property inherited by him from deceased Fatima Bai in favour of Aftab on 25‑4 1980 i.e. 4 years before his death at his house in Soldier Bazar in presence of Nisar Ali, Shafi Muhammad Memon and Hussain Khatri and others does not appeal to reason. This plea has been set up after 9 months of the institution of the suit and after 6 months of the expiry of the rent lease when the property was sealed by Official Receiver. Defendant No.12 has not explained why he was sleeping for all this time. The gift under the Muslim Law is an exception to the general law of inheritance. Each of the three essential elements of the gift have, therefore, to be strongly proved and are not to be presumed. These elements are (1) declaration, (2) acceptance and (3) delivery of possession. The declaration of an oral gift has to be proved by reproducing recital with utmost precision. Exact words have to be stated to enable the Court to Judge the intention of the Donor. The accurate mention of time, place and circumstances is also necessary. The earliest mention of the alleged declaration of gift in this case is made m the written statement of defendant No.12 in para 13, where it is thus stated "the late Wajid Ali was uncertain about the right of inheritance of the answering defendant, he therefore made provision and orally gifted his undivided share in the subject property to the answering defendant (copy of noting and calculations Late of Wajid Ali in this regard is annexed hereto and marked as Annexure D 12/1). The deceased Wajid Ali has also made notes of his desire in respect of his properties including his share in the subject property which was to be turned into Waqf‑ul‑Aulad according to the wish of late grandmother (the copy of the notes of his will in six pages written on both sides of the letter head by deceased Wajid Ali in his own handwriting is annexed hereto and marked as Annexure D‑12/2). It is submitted that the oral gift was recited several times during the lifetime by the deceased in presence of Nisar Hassanally Effendi and Hussain Ahmad Khatri and others. In furtherance of the gift late Wajid Ali gave the answering defendant constructive possession inasmuch as answering defendant would collect the rent and otherwise manage the property and would receive and enjoy the corpus of the income of the share of late Wajid Ali. Neither the exact words spoken nor the, occasion, time place or the circumstances in which the gift was made have been mentioned in the Written Statement. In evidence for the first time it is stated by defendant No.12 and his witnesses that Wajid Ali had gifted his share in the property to him on 25‑4‑1980 at 7‑00 p.m. at his Soldier Bazar residence. This is obviously a statement which is inconsistent with the case of the defendant No.12 set up in the written statement or at least it is an improvement on the case set up in the written statement and has to be discarded as an afterthought. It is admitted that the gift was not in writing. D.W. Nisarally as well as Hussain Ahmad have admitted that they cannot recite the exact words used by Wajid Ali. The alleged oral gift was not followed up by any declaration in writing nor did Aftab recover rent or perform any such act nor conducted himself in any such manner which would have given an impression that his share was gifted by Wajid Ali to him.

14. Acceptance of the gift by the donee is also an important factor. Neither defendant No.12 Aftab nor any one of his witnesses have stated that after Wajid Ali had declared the gift in favour of Aftab, Aftab had accepted that gift. Not even any implied acceptance of gift by Aftab has been brought on record. All that Aftab has stated is that after the gift he used to receive rent of the property. This statement has also been falsified by strong circumstances that have been admitted by Aftab himself, viz. the cheque which he used to receive from the tenants was in the name of Wajid Ali as payee and as already mentioned by me Aftab was not aware of the name of the tenant from whom he recovered the rent. Thus it is clear that there is nothing to show that defendant No.12 had expressly or impliedly accepted the gift or had received the possession.

15. The last and the most important factor in the case of gift is plea of possession. There is no evidence to show that possession of this property was delivered to Aftab either actually or constructively. Admittedly no letter of attornment had been sent to the tenant, which is also a requirement of the rent laws prevalent in the country. No intimation of gift was sent to the Secretary of Sindhi Muslim Co‑operative Society where the said house is situated. No mutation had been effected in the name of Aftab in the City Survey Records. No intimation of gift was sent to the City Survey Officer. As against this there is clear and authentic documentary evidence to show that deceased Wajid Ali continued to retain control over the property and regarded his share in the property which is subject‑matter of the suit as his own share till the time of his death. Had Wajid Ali gifted away his share of the property to Aftab, at least he would not have shown the share in the list of his personal assets in the wealth tax returns in all years subsequent to the making of the gift till his death for computation of the wealth tax liability. Even in the private rent account statements he has mentioned himself as owner and not Aftab, till the last payment of rent realized by him. There is no written nor oral corroboration confirming the claim of the oral statement of gift.

16. The law on the point is quite clear. In the well‑known book "Principles and Precedents of Mohummadan Law by W.H. Macnaughten in Chapter v. Section 8 at page 51 it is stated that:‑ "A gift cannot be implied. It must be express and un‑equivocal and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it."

17. D.F. Mulla in his book Principles of Mohammadan Law in section 148 has stated:‑ "It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift."

18. In the case of Musa Miya Walad Muhammad Shafi and another v. Kader Bux reported in AIR 1928 P.C. 108 the facts were that the maternal grandfather had allegedly made a gift of the house to his grandsons who were minors at the time of the said alleged gift. The parents of the minors lived in the house of the donor alongwith minors' grandfather and were maintained by the donor. The donor had announced to his friends at a dinner party that he had made gift of his property to his grandsons. There was no mutation to their names and no deed was executed. The grandfather continued to be in possession of the property and there was no evidence to show that the donor m any way intimated that he regarded himself as a trustee for his grandsons or that he was in possession of the property on their behalf. It was held by the Privy Council that the case did not come within the exception to the general rule and, therefore, the gift was not complete in the absence of any delivery of possession or relinquishment of control over the property by the grand‑father.

18. In the case of the K.S. Agha Mir Ahmad Shah v. K.S. Agha Mir Yaqub Shah reported in PLD 1957 (W.P.) Karachi 258 which is a D.B. decision following passage from the judgment of Constantine, J (as he then was) is self‑contained:‑ "The substance, therefore, of the defendants' case is that Ali Muhammad and Jugernath say that Nawab admitted the property belonged to his wife, and the accounts of Ali Muhammad and letters of Major Khory show that the property was called hers and the rents were paid to her. From this, we are according to the defendants, to deduce a declaration of gift, acceptance and delivery of possession. Now had there been an unequivocal declaration of intention such as a gift deed or mutation of names, then the relation of husband and wife would go far to curing any ambiguity as to possession; but the receipt of rents in the absence of any evidence as to attornment of tenants (and on this point Ali Muhammad was not questioned) does not establish by itself either an intention of gift of the corpus, or a delivery of possession of the corpus, and the admission of ownership arc ambiguous, since such words might be used to indicate only that Lady Shamas Shah was allowed to receive the rents. Taken individually and together as a whole, these items of evidence do not formally establish the defendants title, and after much hesitation I have come to the conclusion that there is not sufficient ground for me to infer such a gift." "If Sir Shamas Shah intended a gift of the property, he could have made his intention plain, but there is no admission or act of his from which the intention can be plainly inferred. The most that can be said is that he might or might not have made the gift alleged, but there is no preponderance of probability in favour of the gift." Wahiduddin, J (as he then was) also took the same view and the following extract from his judgment is very useful for the purposes of this case:‑ "Under the Muhammadan Law in order to establish a gift there are certain essential elements to be established by the party who alleges the gift. The first is that the donor makes a declaration with the intention of making a gift, that the gift was accepted by the donee and that the possession of the property was delivered to the donee. All these necessary elements arc lacking in the present case. In a matter which relates to gift made by a Mohamedan the onus of establishing the gift is on the party who relics on it, and that must be proved by cogent and convincing evidence. Where registered gift deed was not followed by delivery of possession, the deed was considered Benami and fictitious and, therefore, invalid and void. The gift under Muhammadan Law must be accompanied by such possession as the subject of the gift is susceptible of A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it. Musa Miya v. Kader Bux AIR 1928 P.C. 108 relied upon. "The policy of Muhammadan Law appears to be to prevent a testator interfering by will with the course of devolution according to law amongst the heirs, but it appears that a holder of property may to a certain extent defeat the policy of law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms. It is incumbent however, upon those who seek to set up a proceeding of this sort to show very clearly that the forms of the Muhammadan Law whereby its policy is defeated, have been complied with." (Rani Khajoorunissa v. Mst. Roshan Jehan 111 I.A. 291 Privy Council)."

19. The Supreme Court of Pakistan in the case of Shamshad Ahmad v. Sycd Hussain Shah reported in PLD 196‑1 SC 143 had held that under the Muhammadan Law delivery of possession to the donee is a condition precedent to the gift and has stressed the legal requirement of there being the delivery of possession by the donor to the donee. In the case of Asiq Hussain and another v. Ashiq Ali reported in 1972 SCMR 50 and Haji Khan and 5 others v. Fazal Hussain and 5 others reported in 1972 SCMR 276 it was reiterated by the Supreme Court that delivery of possession by the donor as a conscious, unequivocal and distinct act on his part is necessary to complete the gift made by him. An agricultural land owned by the donee was m cultivating possession of the hari from whom the donor who was Mukhtar of the donor was taking 'Batai'. It was held that mere declaration in the gift deed that possession was delivered to the donee was not sufficient to complete the gift. In the case of Ali Ahmad v. Government of Sind reported in PLD 1976 Kar. 316 it was observed as follows:‑ "It is well‑known that Muhammadan Law has prescribed just three simple but very essential requisites for a valid gift. Thcse are: (1) a declaration of gift by the donor, (2) acceptance of the gift, express or implied, by or on behalf of the donee and (3) delivery of possession of the subject‑matter of the gift by the donor to the donee. In simple words, the three acts involved are that the donee should make a declaration of gift the and give gift property to the donee, and the latter should accept it. If is not even essential that the gift should be made in writing, for a written gift, is as good as an oral one. The Privy Council upheld a verbal gift. Writing is, therefore, not essential to the validity of a gift, either of movable, or of immovable property. No mutation of names in the Record‑of‑Rights is also necessary to complete the transfer of possession of the gift property. A gift of lands in occupation of Haris may be completed by the donor asking the Haris to attorn to the donee, or by delivery of title deeds, or, by getting the mutation‑entries effected in donee's favour in the Record‑of‑Rights. A husband making a gift of the house to his wife which is in their joint occupation, may complete the delivery of possession of the corpus of the gift which is one of the essential requisites of a valid gift, by making a declaration to the effect that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammdan Law. The same procedure would be true in the case of a house let out to the tenant, or m the case of land cultivated by Haris, if the tenants or the Haris are asked by the husband to attorn to his wife. In such cases the facts that the husband continues to live in the house or receives the rents from the tenants, after the date of the gift, would not invalidate the gift, the presumption being that the rents were received by him on behalf of his wife, and not . his own account. No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is, however, necessary is to establish the bona fide intention to make the gift. The requirement of change of possession in such a case is not necessary for the father himself is the person to receive possession as the guardian of his son. Similarly, no change of possession is necessary in the case of a gift by a grandfather to his minor grandson if the father is dead for the grandfather is the lawful person to take delivery on behalf of his grandson as his guardian."

20. In a latest case Ghulam Sughra v. Aijaz Hussain reported in PLD 1986 Lah. 194 (D.B.), the question of validity of gift was thoroughly thrashed out with respect to two properties, one was an agricultural property and the other was a residential property. The donor in that case had gifted certain agricultural lands to the donee through mutation of revenue record. The donor himself appeared before the Revenue Officer and made declaration that he had transferred the said land by way of suit to the donee. At the relevant time the land was and in occupation of tenants. The donor himself visited said land and disclosed that he had gifted land to donee and directed the tenants to attorn the donee. The Revenue record showed that after the attestation of mutation, donee was recorded as owner of property. It was held that the gift was complete in all respects as the donor in order to transfer the gifted property had done all that he could do.

21. The donor had also allegedly gifted residential property to the donee but there was only statement of an interested witness and a notice published in the local weekly paper in support of gift. The statement of the witness was found to be factually incorrect and remained uncorroborated. The original of notice published in the weekly was not brought on record. The contents of the record showed that the donor had remained in possession of the property during his lifetime. It was held that since execution of notice by donor was not proved, its contents were partially incorrect, possibility that it was published at the instance of someone else than the alleged donor could not be ruled out. Therefore, in these circumstances no valid gift was made by the donor in favour of the donee. The most illustrious case on this point is that of Sardar Begum v. Iqbal Ahmad reported in 1986 CLC 1151 where my learned brother Mr. Tanzilur Rehman, J. has after referring to a number of rulings and the original text‑books of Fiqa held as follows:‑ "A gift is a transfer of movable or immovable property with immediate effect and without consideration by one person in favour of another and the acceptance of the same by that another himself or by someone authorised on his behalf is called 'gift' provided that one making the gift must totally renounce all his title and rights in the property gifted away of his independent free will. It is a covenant that is constituted by proposal and acceptance and gets completed by possession. It is thus stated in Al‑Mukhtasar Quduri (Quran Mahal Karachi, p:128) Kanz‑al Daqaiq by Al‑Nasafi Mutbai Mujtabai, Delhi) p. 332 and Hidayah by Al Marghinani, Vo1.III, p.283, that gift is constituted by proposal and acceptance and gets validity by possession. Gift is thus, not complete unless the donor delivers the possession of gifted property to the donee."

22. The facts of this case were that Mst. Sardar Begum had filed a suit against L.Rs. of her late husband Niaz Ahmad alleging that soon after her. marriage with Niaz Ahmad, her late husband purchased a plot of land and after constructing two rooms thereon orally gifted the same to her and handed over its possession to her. She started living there as owner. She thereafter got rest of the building constructed at her own expenses. After construction of the first floor it was occupied by son of Niaz Ahmad. Thereafter Niar Ahmad was attacked by paralysis and could not sign, speak nor understand. It was alleged that in furtherance of conspiracy hatched against her by L.Rs. of late Niaz Ahmed they got his thumb impression on a false Divorce Deed and a false power of attorney and tiled a suit against her. Both the suits were tried together. The suit filed by Sardar Begum was dismissed and it was held that Niaz Ahmad had not gifted the plot with two rooms to Sardar Begum.

23. From the above provisions of law and the judicial pronouncements it is quite clear that there are 3 essentials of a valid gift under Muhammadan Law i.e. (1) a declaration of the gift by the donor, (2) an expressed or implied acceptance of the gift by the donee and (3) the delivery of the possession of the subject matter of the gift by the donor to the donee. The delivery of possession by the donor must be a conscious, unequivocal and distinct act in order to complete the gift made by him. In the present case neither the evidence of the witnesses examined by the defendant No.1 is reliable nor the so‑called draft of the alleged gift is sufficient to establish that any declaration of gift was made. The evidence as to acceptance of the gift and delivery of possession is altogether lacking. Hence I have least hesitation in coming to the conclusion that no such gift of his share was ever made by Wajidali or accepted by defendant No.12 or possession delivered to defendant No.12 by Wajid Ali.

24. Hence I hold this issue in the negative.

25. On 14‑12‑1988 a preliminary decree was passed in this suit by me. The order dated 14‑12‑1988 reads as under:‑ "With the consent of the counsel of the parties it is ordered by the Court as under:‑ The property in suit, that is, Bungalow No.295 Block B/55, Sindhi Muslim Co‑operative Housing Society, Karachi measuring 1,050 sq. yds. will be auctioned by Official Assignee who is appointed Commissioner. The sale proceeds shall be deposited in Court and distributed amongst the heirs of Mst. Fatimabai according to their respective shares which are not disputed. The share of the deceased Wajid Ali shall be kept by the Nazir and will be invested in the Khas Deposit Certificates. The profits accruing from time to time shall also be invested in Khas Deposits by the Nazir of this Court. The suit shall proceed as between plaintiff and L.Rs. of the defendant No.2 and defendant No.12. The amount of share of Wajid Ali will be disposed of in accordance with the decision of the suit. The suit so far as the remaining defendants are concerned is disposed of by a preliminary decree to the effect shown above. The Official Assignee shall auction the house by inviting the sealed offers from the public through newspaper. The parties of the suit shall be allowed to bid for auction if they so desire. The suit is fixed for arguments on 15‑1‑1989."

26. Hence now there remains the question of disposal of the amount of share of Wajid Ali only. 1, therefore, decree that the share of Wajid Ali will be inherited by L.Rs. of his brother Sikandar Ali the defendant No.2 and his sister Raziz the plaintiff and their shares shall be raised as follows (1) Plaintiff Razia 2873 (2) Defendant No.2 (a) Angelina D/o Sikandar Ali 0676 (3) Defendant No.2 (b) Shaheen ‑ 0676 (4) Defendant No.2 (c) Rukhsana A 0676 (5) Defendant No.2 (d) Neelo 0676 . (6) Defendant No.2 (e) Sakina widow of Sikandar Ali 0551 A.A./R‑82/K Suit decreed.