2016 PLP 70 (YLRN)

Gift

Valid gift

Ingredients

Contention of plaintiff was that gift was not a valid and complete gift as the same was executed without possession and delivery of title document

Validity

Entry in the record of rights was simply a reference to certain events/facts and did not create title but title would be created with reference to which such entry was made

Court should resolve a material proposition of fact or law in dispute

Writing was not essential to the validity of a gift either of movable or of immovable property

Gift should always be with bona fide intention and object

Bona fide was also required to be proved to claim a valid gift which could not be established unless and until it was established that donor stood divested himself completely from all ownership and dominion over the subject of gift

Conduct and behaviour of donor after making the statement of gift would be relevant for determination of valid gift

Burden to prove validity of gift would lay upon its beneficiary

Donor, in the present case, did not divest himself from the right of ownership of subject matter or dominion thereof who continued to receive rent as owner

Mere recital/statement of gift was not sufficient to constitute a valid gift even if donee had claimed to have accepted the same

Defendants had got the title of subject matter in their names after more than two years of death of donor

Donor continued ownership of subject matter which act of donor had not been challenged/questioned by the defendants during his life time or even subsequently

Defendants were in knowledge and notice of the will made by the alleged donor

Deceased was claiming ownership of suit property by himself but defendants had not questioned such claim of the donor

Defendants had failed to establish that impugned gift was bona fide; donor had divested himself from all rights of ownership and dominion over the subject matter and delivery of possession

Mere recital of gift statement would not be sufficient to deprive other legal heirs from their rights of ownership with regard to subject matter

Impugned gift was never a complete, legal and bona fide gift

Mere non-objection to a gift should not dress a gift statement as a complete gift unless and until required formalities to constitute a valid gift were established/proved. [Paras. 12, 14, 18, 20, 21, 23 and 24 of the judgment] Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403; Muhammad Boota v. Mst. Rashidan Bibi and others 2008 CLC 343; Manzoor v. Mst. Bakhan Mai Khokhar and others 2010 CLC 328; Rahimullah and 8 others v. Muhammad Sidduqe and 9 others 2011 CLC 275 and Syed Muhammad Ali Shah v. Syeda Kalsoom Hassan and 2 others 2012 MLD 23 ref. Noor Muhammad v. Azmat-e-Bibi 2012 SCMR 1373 rel.

O. I, R. 10 (2)

Necessary party

Scope

Custodian of record of rights could not be termed to be a party in whose absence a legal and effective judgment could be passed when dispute/questions were in between the private parties without any specific allegation of fraud or illegality in maintaining the record of rights. [Para. 13 of the judgment]

O. I, R. 9

Mis-joinder and non-joinder of party

Effect

Mis-joinder and non-joinder of a party should not result in defeating the suit. [Para. 13 of the judgment]

O. XIV, R. 1

Issue, framing of

Scope

Purpose and object of framing of the issue would arise only where a material proposition of fact or law was disputed. [Para. 14 of the judgment] Mrs. Kausar Anwar for Plaintiff. Ms. Tabbasum Khan for Defendants Nos.1 and

2. Nemo for Defendants Nos.3 and

4. JUDGMENT SALAHUDDIN PANHWAR, J.

This judgment will dispose of the captioned suit, whereby plaintiff seeks Declaration, Cancellation, Partition and Permanent Injunction on following prayer (s): a) To declare that property bearing No.63/1, 7th Commercial Street, Phase IV, situated at Defence Housing Authority, Karachi is the joint property of plaintiff and defendants as agreed by the legal heirs of deceased Syed Hamid Ali in Will dated 15.01.2005. b) To cancel the Hiba-Zabani-Bila-Ewaz which was executed by deceased Syed Hamid Ali for the purpose of income tax and some administrative purpose which was a sham and fake document and declared null and void; c) To partition the property bearing No.63/1, 7th Commercial Street, Phase IV, situated at Defence Housing 'Authority, Karachi with meters and bounds between the plaintiff and defendants as per the will dated 15.01.2005 d) To restrain defendant. No.1, his agents, employees, relatives, workman from altering, selling, disposing off, transferring, pleading, parting the possession and interfering with peaceful possession of property bearing No.63/1, 7th Commercial Street, Phase IV, situated at Defence Housing Authority, Karachi; e) Cost of the suit; f) Any other relief this Hon'ble court deem fit and proper as per the circumstances of the case;

2. Succinctly, relevant facts are that plaintiffs and defendants are the sons and daughters of late Syed Hamid Ali who was the exclusive owner of immovable property bearing No.63/1, 7th Commercial street, Phase IV, situated at Defence Housing Authority Karachi who died at Karachi on 20.02.2005. During the lifetime Syed Hamid Ali for the purpose of Income Tax and some administrative reasons executed "Hiba-Zabani-Bila-Ewaz, in favour of defendants Nos.1 and

2. Although, deceased Syed Hamid Ali executed un-registered Hiba- Zabani-Bila-Ewaz without any consideration but retained the title document and physical possession of the property with him. Apart from the above properties deceased got another immovable property bearing No.4-C, 1st Gizri Lane, Phase IV, admeasuring 6752 Sq. Yds (single storey) situated in Defence Housing Authority, Special Saving Certificates, Regular Saving Certificates and Gold Ornaments. Syed Hamid Ali deceased father of the parties in order to avoid any future dispute about inheritance between his children executed 'WILL' on 15.01.2005 in presence of all the parties to the present suit and all of them accepted the Will and were signatory of the Will. Plaintiff and defendant No.2 were appointed as managers of the WILL by deceased Syed Hamid Ali for the purpose of distribution of the assets and after the death of Syed Hamid Ali all the children (plaintiffs and defendants) were agreed to act according to the WILL dated 15.01.2005. In first phase plaintiff and defendant, distributed the gold ornaments, saving certificates, regular saving certificates, defence saving certificates and in second phase vacated immovable property bearing No.4-C, 1st Gizri lane, Phase IV D.H Karachi from tenant and after sell the property, sale proceed was distributed between all legal heirs of Syed Hamid Ali. All the work of distribution of assets of the deceased Syed Hamid Ali was done in smooth way with the cooperation and assistance of all legal heirs of Syed Hamid Ali and all of them had executed NO Objection Certificate on 13.5.2006 in respect of immovable property bearing No.4 -C, 1st Gizri Lane Phase IV D.H. Karachi.

3. It is further pleaded that after disposal of the immovable property 4-C, 1st Gizri Lane Phase. IV, DHA Karachi all legal heirs agreed in meeting held in April, 2006 that property 673/1, 7th Commercial street Phase IV, DHA will be vacated from the tenants afterwards it will be sold out and in the same manner and sale proceed will be distributed between all legal heirs. It was agreed that all matters of assets of deceased will be settled and carried out with the consent of all legal heirs but defendants Nos.1 and 2 violated agreed terms and filed Rent Case No.63 of 2007 against the tenant in occupation of the suit property before the Rent Controller, Clifton Cantonment and the same is pending there. Tenant of suit property in last week of July 2007 met plaintiff and defendant No.4 and disclosed that an ejectment case was filed against him by defendants Nos.1 and 2; according to his knowledge, it was a joint property but defendants Nos.1 and 2 were posing themselves as exclusive owners of the property. After knowledge of rent case, plaintiff, defendants Nos.3 and 4 admonished defendants Nos.1 and 2 for violating the trust, defendant No.2 apologizes for his act but defendant No.1 justified that his act was right and refused to act as per the WILL dated 15.01.2005 and stated that plaintiff has nothing to do with the property in question. Plaintiff having no option sent legal notice on 15.8.2007 through her lawyer to defendant No.1 which was duly served and was replied by defendant No.1 on 29.8.2007; that deceased Syed Hamid Ali throughout his life managed and controlled the alleged property and received the rent till his death which was in the knowledge of all the legal heirs; he never divested himself from the property in his life time to this fact goes to prove that Hiba-Zabani-Bila-Ewaz was a false document which was prepared for the sake of income tax actually no transfer was made out in favour of the defendants Nos.1 and 2, but defendant No.1 became dishonest, greedy and turned out from his commitment, undertaking as per WILL dated 15.01.2005:

4. The defendants Nos.3 and 4 in their individually filed written statement(s) supported the claim and assertion of the plaintiff but added that at time of execution of WILL the defendant No.3 was at Saudi Arabia but had full knowledge and had consented. It was pleaded that deceased made declaration of his WILL on 15.01.2005, which was signed by all. Further, it was pleaded that property No.4-C 1st Gizri Lane Phase IV DHA Karachi was gifted in favour of plaintiff; they also supported the plaintiff towards plea of defendants Nos.1 and 2, having become dishonest and backing out of the WILL and also supported that title in favour of defendants Nos.1 and 2 was for administrative and income Tax purpose.

5. The defendants Nos. 1 and 2 in their joint written statement denying the assertions of the plaintiff, pleaded that gift of subject matter in their favour was out of love and affection which they accepted and transfer was complete. The deceased Syed Hamid Ali did make statement on Oath before the Military Estate Officer of the cantonment in presence of two witnesses and filed declaration of gift on basis thereof mutation in record of rights was effected in their names. They pleaded that at time of death of deceased i.e. on 20.2.2005 the deceased was not owner of the subject matter. They further asserted that despite of transfer of title in their favour the demand for payment of taxes was being raised in name of deceased Syed Hamid Ali, however, on his death they wrote a letter to concerned authorities to raise demand of all taxes, charges or dues in their names being owner; since change of title they have been paying all taxes charges and dues. Regarding the WILL they pleaded that it was executed on 15.01.2005 and deceased died on 20.02.2005 therefore, deceased, being very old and suffering with serious illness was not sound mind and even otherwise was on death bed. The WILL was written in hand of Mst. Khalida Hamid and its some of the contents are self contradictory. They denied that all legal heirs put their signatures on the WILL. So far as the signature(s) of defendants Nos.1 and 2 on the WILL, the same were put in good faith on the persuasion of their sister. They admitted that rests of properties were distributed among legal heirs according to their share except 200 tola gold' which was misappropriated by plaintiff. They denied holding of any meeting for distribution of subject matter. It was asserted that plot No.63 was already divided by deceased out of which plot No.63/I was transferred in name of defendants Nos.1 and 2 where plot No.63/II was transferred in name of plaintiff by Hiba-Zabani-Bila-Ewaz for consideration of love and affection which by itself belies the contention on behalf of plaintiff and defendants Nos.3 and 4 to the effect that plot No.63/ 1 was transferred for either saving taxes or for the purpose of some administration. They admitted that they had executed a power of attorney to their father to act on their behalf in term of the power of attorney, so executed and any thing stated to the contrary are false.

6. Out of the pleadings of the respective parties, the following issues were framed:

1. Whether the deceased father of the parties to suit executed Hiba Zabani Bila Ewaz dated: 23.09.1981, in respect of property bearing No.63/1, 7th Commercial Street, Phase-IV, D.H.A Karachi in favour of defendants Nos.1 and 2 as a Sham document having no legal effect?

2. Whether the deceased father of the parties to suit through out his life managed/controlled the immovable property i.e. 63/1, 7th Commercial Street, Phase-IV D.H.A Karachi as owner till his death?

3. Whether physical possession of property in question was handed over to defendants Nos.1 and 2 by deceased Syed Hamid Ali by virtue of Hiba Zabani Bila Ewaz dated: 23.9.1981?

4. Whether the plot bearing No.63 was originally measuring about 620 Sq. yards and it was bifurcated into two equal parts by the deceased father of the parties, who was the owner of this plot?

5. Whether the half of this plot bearing No.63/1 measuring about 310 Sq yards was gifted to defendants Nos.1 and 2 by the deceased father due to love and affection in the year 1981?

6. Whether the rest of the half portion bearing No.63/II measuring about 310(sic.) was gifted to his daughter who is plaintiff in this case?

7. Whether any legal heir, more so the plaintiff herself raised any objection during life time of his father or not regarding the plot bearing No.63/1, in possession of the defendants Nos.1 and 2, if not what consequences?

8. Whether the record maintained by the Military Estates Officer Cantonment does confirm this position or not?

9. Whether the Military Estates Officer is the necessary or proper party, because of the reason for full and final adjudication for this suit, if so, the suit is liable to be dismissed on this ground alone?

10. Whether the gold ornaments which was kept by the deceased father with the plaintiff was distributed among the legal heirs or not if not what are the consequences?

11. What should the decree be?

7. The matter was referred to Commissioner for recording the evidence. Accordingly, in order to prove the issues, the plaintiff Mrs. Zeenat Hanif filed her affidavit-in-evidence and photo copies of documents attached therewith i.e. allotment order, death Certificate of deceased Syed Hamid Ali, Hiba Zabani Bila-Ewaz, NOC dated 13.5.2006, legal notice dated 15.8.2007 and reply dated 29.8.2007 were produced as Ex.P/1 to P/6. She was cross examined, thereafter, side was closed.

8. On the other hand the defendant No.2 namely Syed Rashid Ali filed his affidavit-in-evidence. During his examination he produced the same and documents, attached therewith, same were allowed to be marked/exhibited as Ex.D/1 to Ex.D/10. Photo Copies were marked as X-1 to X-6. He was also cross-examined and thus side was closed.

9. The learned counsel for the plaintiff has argued that the gift was never a valid and complete one because it was executed without possession and delivery of the title document(s). It was further argued that mere execution of gift statement is not sufficient to complete a 'gift' therefore, title in name of the defendants Nos.1 and 2 was only sham. The status of the gift to be so was further confirmed from execution of the WILL by the deceased. The arguments were lasted while arguing that since title in name of the defendants Nos.1 and 2 is not legal, valid and bona fide hence the same is liable to be declared so. In support of his contentions, he has relied upon the cases of Maulvi Abdullah and others v. Abdul Aziz and others (1987 SCMR 1403), Muhammad Boota v. Mst. Rashidan Bibi and others (2008 SCMR 343), Manzoor v. Mst. Bakhan Mai Khokhar and others (2010 CLC 328), Rahimullah and 8 others v. Muhammad Siddique and 9 others (2011 CLC 275), Syed Muhammad Ali Shah v. Syeda Kalsoom Hassan and 2 others (2012 MLD 23).

10. On the other hand, the learned counsel for the defendants Nos.1 and 2 has argued that title of the defendants Nos.1 and 2 was always complete, legal, valid and bona fide one; such title was always within notice and knowledge of all legal heirs but was never questioned/challenged. The deceased himself appeared before the quarter concern and made a legal, valid bona fide statement hence such subsequent and belated objection by the plaintiff is not sustainable. It was further argued that a complete gift cannot be revoked even by the executor, himself; therefore, the suit of the plaintiff is liable to be dismissed with costs. FINDINGS Issue No.1 'Affirmative' Issue No.2 'affirmative' Issue No.3 'not proved' Issue No.4 'As discussed' Issue No.5 Negative Issue No.6 Affirmative Issue No.7 As discussed Issue No.8 As discussed Issue No.9 As discussed Issue No.10 Affirmative Issue No.11 Suit decreed.

12. It would be conducive to address issue No.8 in first instance as same relates to the title document of suit property. ISSUE NO.8

8. Whether the record maintained by the Military Estates Officer Cantonment does confirm this position or not? With regard to this issue, it would suffice to say that this was never disputed by the plaintiff herself even that there was a gift by her deceased father but question was with regard to validity thereof. An entry in the record of the rights is simply a reference to certain events/facts therefore, it is said that an entry in record of the rights does not create the title but the title is created with reference to which such entry is made. What legally matters is the act or document which is done/made for creating title and the legality whereof can well be examined by the Civil Court. Needless to add here that it is not the simple statement under title of 'gift' which would exempt the parties (Donor and Donee) from completing necessary legal formalities to constitute a legal, valid and lawful 'gift'. Thus the entry in the record of the rights, at the most, can establish statement of the gift but not the completion of the formalities which would require independent evidence to establish. I am guided in reaching to such a conclusion with judgment of Honourable Supreme Court of Pakistan passed in case of 'Noor Muhammad v. Azmat-e-Bibi' (2012 SCMR 1373) wherein it was held that: "

9. It has consistently been held by this Court that mutation by itself does not create a title and the person deriving title thereunder has to prove that the transfer did part with the ownership of the property voluntarily. The onus lay on the beneficiaries to prove that it was bona fide transaction'. Thus it is pertinent to mention here that mere entry in the record of the rights does not create a title nor an entry can be said to have dressed up the referred event/fact a decree of legality.

13. ISSUE NO.9 9 "Whether the Military Estates Officer is the necessary or proper party, because of the reason for full and final adjudication for this suit, if so, the suit is liable to be dismissed on this ground alone? The above issue appears to have been framed unnecessarily for the simple reason that status of a party as 'necessary, just and proper' is to be examined by the Court itself and the Court has never been left dependant upon the parties to examine and decide question of necessary just and proper parties as is evident from the Order I, R 10(2) which read as under:. 'Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.' The sole criterion is that appearance of the party should appear to the Court as necessary for enabling to adjudicate upon and settle all the questions effectually and completely. Even otherwise, the custodian of the Record of the Rights cannot be termed to be a party in whose absence a legal and effective judgment could be passed particularly when the disputes/questions are in between the private parties without any specific allegation against custodian of the record of the rights of fraud or illegality in maintaining record of the rights. In such like situation, it is the private parties who are to bear the consequences/effects of the judgment and the custodian of the record could at the most be a witness to that entry or manner thereof. Even otherwise, the Order I, R 9 of the Code is clear to the effect that 'mere misjoinder and non-joinder' shall not result in defeating the suit. Thus, I am clear in view that there was no need to frame this issue, thus this is answered as redundant.

14. ISSUE NO.4 4. "Whether the plot bearing No.63 was originally measuring about 620 Sq. yards and it was bifurcated into two equal parts by the deceased father of the parties, who was the owner of this plot? `Framing issues. (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other' (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.' In the instant suit the status of the Plot No.63 and its original area as 620 Sq. yards was not disputed. Both parties have come with clear stand while defining the properties as 63/1 and 63/2. Therefore, I feel myself quite safe in saying that with reference to original number and area of the plot No.63 there was no material proposition of fact or law which was requiring settlement and determination by the Court, therefore, this issue was framed unnecessarily, accordingly same is answered as "redundant".

15. ISSUE NO.6 6. "Whether the rest of the half portion bearing No.63/II measuring about 310(sic.) was gifted to his daughter who is plaintiff in this case?' The gift in favour of the plaintiff was not a disputed fact but on the other hand the defendants Nos.1 and 2 in their written statement had stated that 'plot No.63 was already divided by deceased out of which plot No.63/1 was transferred in name of defendants Nos.1 and 2 where plot No.63/II was transferred in name of plaintiff by Hiba-Zabani-Bila-Ewaz for consideration of love and affection'. Such admission was sufficient to show that gift in favour of the plaintiff was not denied nor it was ever alleged by the defendants Nos.1 and 2 that it was either incomplete, invalid or illegal one. The defendants Nos.1 and 2 did not question the legality of such gift in favour of the plaintiff rather it was admitted by the defendants Nos.1 and 2 in cross-examination that: "It is correct that we have not given any notice to plaintiff in respect of gift of property No.63/2 in favour of plaintiff. It is correct that after the gift in 1981 the plaintiff made the construction on this property. It is correct that the rent in respect of the gift property is being received by the plaintiff". Accordingly, I answer this issue in affirmative.

16. ISSUE NO.10. 10. "Whether the gold ornaments [-] which was kept by the deceased father with the plaintiff was distributed among the legal heirs or not if not what are the consequences? With regard to this issue it is relevant to mention here that they were the defendants Nos.1 and 2 alone who were claiming that there was no distribution of gold ornaments among legal heirs hence the burden was upon them to prove this fact. The defendants Nos.1 and 2 produced no independent evidence to prove their claim rather a reproduction of the relevant portion of the cross-examination of defendant No.2 which is as under: "It is correct that the ornaments referred to in the WILL were also distributed amongst the legal heirs." From the above admission it becomes quite clear that gold ornaments were also distributed amongst the legal heirs hence this issue is also answered in 'affirmative'.

17. ISSUES NOS.1 TO 3 and 5

1. Whether the deceased father of the parties to suit executed Hiba Zabani Bila Ewaz dated 23.09.1981, in respect of property bearing No.63/1, 7th Commercial Street, Phase-IV, D.H.A Karachi in favour of defendants Nos.1 and 2, as a Sham document having no legal effect?

2. Whether the deceased father of the parties to suit through out his life managed/controlled the immovable property i.e. 63/1, 7th Commercial Street, Phase-IV D.H.A Karachi as owner till his death?

3. Whether physical possession of property in question was handed over to defendants Nos.1 and 2 by deceased Syed Hamid Ali by virtue of Hiba Zabani Bila Ewaz dated 23.9.1981?

4. Whether the half of this plot bearing No.63/1 measuring about 310 Sq. yards was gifted to defendants Nos.1 and 2 by the deceased father due to love and affection in the year 1981? These all issues are strongly interlinked with each other and cannot be effectively discussed in isolation as all relate and revolve round the 'legality of the gift or a condition thereof' hence are discussed jointly.

18. While dilating upon the above issues, it would be necessary and essential to refer the relevant provisions of Muhammadan Law which, either directly or indirectly, are necessary to be kept in mind for proper adjudication.

147. Writing not necessary.

Writing is not essential to the validity of a gift either of movable or of immovable property. From the above provision it is clear that it is not the necessary requirement of law that it is not the writing of gift (gift statement) alone which would validate the gift or earn a decree in that respect.

148. Relinquishment by donor of ownership and dominion.

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. 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 when he continues to exercise any act of ownership over it'. Bare perusal of above, it becomes quite obvious that since the gift should always be with bona fide intention and object therefore, to claim a valid gift 'bona fide' thereof is also required to be proved which could not be established unless and until it is established that the donor stood divested himself completely from all ownership and dominion over the subject of the gift. This would require examination of the conduct and behaviour of the `donor' after making the statement of the 'gift'.

149. The Three essentials of a gift. i) a declaration of a gift by the donor; ii) an acceptance of the gift; iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Sect. 150;

152. Delivery of possession of immovable property.

(1) Where donor is in possession.-A gift of.... unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. A recital in the deed of gift that the donor has divested himself and put the donees in possession binds the donor's heirs even if one of the heirs is later found in possession. Such a gift is valid. (2) Where property is in the occupation of tenants.-A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee, or by delivery of the title deed or by mutation in the Revenue Register or the landlord's Sherista. But if the husband reserves to himself the right to receive rents during his lifetime and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete. The above speaks how a 'donor' would divest himself from all the rights of ownership and dominion to constitute a 'complete gift' in respect of a subject of 'gift' which is under occupation of a tenant.

19. From the reading substantive ingredients to constitute a valid and complete gift are us under: i) writing is not necessary; ii) the gift should be with bona fide; iii) donor (owner) should completely divest himself from ownership and dominion over subject of gift; iv) offer, acceptance and delivery of possession should stand proved; v) subject of gift, if is in occupation of tenant, then owner (donor) should divest himself either by asking tenant to take donee as owner or by mutation in record of the rights couple with divesting himself from all rights of ownership and dominion which includes receiving of rent and paying tax etc. "It is correct that our late father had gifted the property through this affidavit Ex.D/1 in favour of defendants Nos.1 and

2. It is correct that the physical possession of property was not delivered to defendants Nos.1 and 2 and the property was rented out to Dr. Abdul Rasheed since 1994. It is correct that our late father expired on 20.02.2005. It is correct that till the death of our father, the property was not mutated in favour of defendants Nos.1 and

2. It is correct that the mutation was made on 12.10.2007. It is correct that the tax bills produced by me are all in the name of our late father. It is correct that our father during his life time, used to collect the rent of the suit premises himself. The above admissions on part of the defendants Nos. 1 and 2 are sufficient to show that though gift statement was made but the deceased father (donor) did not divest himself from ownership of the subject matter or dominion thereof. The deceased (donor) continued remained receiving the rent as 'owner'; he never asked the tenant to take and consider the defendants Nos.1 and 2 as 'owners' and even remained paying all the dues/taxes under his own name. Where the donor does not divest himself from all rights of ownership and dominion over subject of gift a mere recital statement of gift is not sufficient to constitute a valid gift even if the donee claims to have accepted the gift. From above admissions of the defendants Nos.1 and 2 it also stood proved that they got the title of the subject matter in their names on 12.10.2007 i.e. after more than two years of the death of the deceased (donor).

21. Not only this, but it also stood established that the deceased (donor) continued ownership in respect of the subject matter which act of the deceased (donor) was not challenged/questioned by the defendants Nos.1 and 2 (donees) during life time of deceased or even subsequently as is evident from the cross-examination of the defendant No.2 wherein he admitted that: "I see the WILL where it is stated that the gift was executed due to some administrative problems. Voluntarily stated that we had not filed the suit for declaration as the property has been mutated in our favour. It is correct that the mutation was made in the year 2007 and before that we had not challenged the statement made in the will that the gift was made due to administration problems" The will was signed during the life time of our father. I had signed the WILL because of the loan, taken by me from my father. Voluntarily stated that I had not gone through the contents of the WILL at the time of signing the WILL. "It is correct that except Mr. Shahid all other legal heirs have signed the WILL" The above admissions are prima facie sufficient to show that the defendants Nos.1 and 2 were very much in knowledge and notice of the `WILL' and that as per such 'WILL' the deceased was claiming ownership in respect of 'the property for which there was a gift statement by deceased himself but the defendants Nos.1 and 2 did not question such claim of the deceased (donor) rather by signing the same endorsed to what the deceased claimed. Further, defendant No.2 also endorsed the validity of the "WILL" by admitting in his cross-examination that: "It is correct that the property 4/C/1 was sold out in compliance of the 'WILL' Ex. P/7". "It is correct that the ornaments referred to in the WILL were also distributed amongst the legal heirs." It is correct that the saving certificate referred to in Ex.P/7 were also encashed and the amount was distributed.

22. The defendants Nos.1 and 2 cannot be allowed to blow hot and cold at the same time. The defendants Nos.1 and 2 at one hand admit the legality of the 'WILL' but at the same time question a portion thereof which cannot be accepted legally. The defendant No.2 in his cross-examination even did not stick strongly with claim of absolute ownership in respect of subject matter while saying that: "Voluntarily state that there was a family settlement where it was decided that the suit property 63/1 and 63/2 and 4-C shall be sold out and the sale proceeds shall be distributed amongst the legal heirs, according to sharia. It is correct that this family settlement were oral and not in writing. I have not filed any affidavit of witness to certify the family settlement made orally. The above admission of the defendants Nos.1 and 2 to the effect that they agreed (per some unproved family settlement) for distribution of subject matter among all legal heirs is also one of the circumstances which proves that gift of subject matter was never a complete one.

23. The above discussion has brought me of the considered conclusion that the defendants Nos.1 and 2 failed to establish that gift in their favour in respect of subject matter was: i) bona fide one; ii) donor divested himself from all rights of ownership and dominion over subject matter; iii) delivery of possession (physically or even by conduct and attitude of donor) hence in absence thereof it cannot be legally said that mere recital of gift (gift statement) would be sufficient to deprive other legal heirs from their rights of ownership in respect of subject matter. Thus, issues Nos.1 and 2 are answered as "affirmative", while 3 and 5 are "negative and not proved".

24. ISSUE NO.7.

7. Whether any legal heir, more so the plaintiff herself raised any objection during life, time of his father or not regarding the plot bearing No.63/1, in possession of the defendants Nos.1 and 2, if not what consequences? Since from the discussion made above, it became quite clear and obvious that deceased (donor) never divested himself from ownership and dominion of subject matter and continued claiming ownership hence mere non-objection to such a gift would not change the position that gift in respect of subject matter was never "a complete, legal and bona fide gift' when the plaintiff has/had claimed the gift to be for administrative purpose only. Even otherwise, a mere non-objection to a gift shall not dress a 'gift, statement' as a 'complete gift' unless and until the required formalities to constitute a valid gift are established/proved.

25. ISSUE NO.11 "

11. What should the decree be?' In view of the above discussion and findings, the suit of the plaintiff is hereby decreed as prayed. Let such decree be drawn. ZC/Z-24/Sindh Suit decreed.