2006 PLP 53 (YLR)

MAULVI ANWARUL HAQ, J.--On 3-10-1983, Muhammad Yaqoob, predecessor-in-interest of the petitioner, filed a suit against the respondent; in the plaint it was stated that he is owner of the suit-land mentioned in detail, in the plaint. It was stated that defendant represented that there is no Madrissa in the village Bhatta Pur and that he should give one Kanal of land for the purpose. Consequently, he gave 1 Kanal of land and Rs.70,000 in cash for the construction of the Madrissa. Only two rooms were got constructed and remaining amount was embezzled. He only got mutated 1 Kanal of land. It was then stated that by fraud and misrepresentation the entire suit-land had been got mutated in favour of the respondent. It was then asserted that the deceased plaintiff never gifted away the land to the respondent, and he never delivered any possession. With these averments, he sought a declaration that he is the owner in possession of the suit-land and the gift Mutation No.3905 of village Bhatta Pur attested on 7-9-1981 and196 of Chak Taleeri attested on 7-9-1981, Tehsil Muzaffargarh, are illegal and void. In the written statement filed on behalf of the respondent by Hafiz Abaidur Rehman, it was asserted that Yaqoob had either gifted or made a Waqf of the entire suit land out of his own free-will. I may note here that Yaqoob died on 6-10-1983, petitioner who is his sister was impleaded as L.R. Issues were framed, evidence of the parties was recorded. The learned trial Court dismissed the suit on 24-7-1989. The first appeal was also dismissed by a learned Additional District Judge on 25-3-1990.

2. Mr. Muhammad Ameer Bhatti, Advocate, for the petitioner contends that the learned Courts below were so much overwhelmed by the contents of the documents Exh.P.1, that they completely failed to adhere to the concept and requirement of a valid gift under the Mohamedan Law. Learned counsel contends with reference to paras. 138, 151 and 152 of the book of D.F. Mulla's that a gift could not at all be made in favour of the respondent Madrissa, which was not capable to take over the possession and for that matter to accept the gift. He relies on the case of (1) Azim Khan v. Malik Mobeen Khan and others 2001 SCMR 34 and (2) Hashim v. M.A. K. Baig, Administrator-General, Auqaf of Pakistan, Islamabad and 15 others PLD 1978 Lahore 1013. Further contends that notwithstanding the fact that the document Exh.P.1 was not only produced but proved by the petitioner, its contents were to be read as a whole and not piece-meals, particularly when the learned Courts below opted to treat the same as an admission of Yaqoob, the deceased plaintiff. Refers to the evidence in the case to assert that possession was neither delivered nor could be delivered to the respondent under the alleged gift.

3. Mian Abbas Ahmad, Advocate, learned counsel for the respondent on the other hand, relies on the said document Exh.P.1 to urge that the gift not only stood proved but admitted.

4. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. Copy of Mutation No.3905 is Exh.P.2, while that of 196 is Exh.P.3. The Patwari's note on both the mutations narrates that Yaqoob had stated that he has gifted away the land to Madrissa Arabia Yaqub-u1-Uloom Brailvi. The Tehsildar in his order recorded on both the mutations on 7-9-1981 had noted that Yaqoob was identified by the persons mentioned in the mutations and had admitted the gift and delivery of possession. I may note here that there is nothing in this order as to who had accepted the gift and to whom the possession had been delivered. Now the copy of Khasra Girdawari for the period Kharif 1982 to Rabi 1983 Exh.P.5 records Muhammad Yaqoob to be in possession of the suit land. As per death entry Exh.P.6, he died on 6-10-1983. It is to be safely assumed on the basis of the said evidence that Yaqoob remained in possession till his death.

5. Now Exh.D.2 is the copy of Roznamcha pertaining to mutation Exh.P.2, while Exh.D.4 is the copy of Roznamcha pertaining to mutation Exh.P.3. In these documents as well there is nothing as to who accepted the gift and to whom the possession was delivered. So far as Khasra Girdawari pertaining to Rabi 1984, produced by the respondent is concerned, nothing turns on the same. In the first instance the Madrissa was entered into possession w.e.f. Rabi 1984 i.e. long after the death of Yaqoob, and of course, during the pendency of the suit and the interpolation is apparent. The reason being that in the following crop i.e. Kharif 1984, Shamshad Ali, is recorded to be a tenant in Khasra Nos.3660 and 3662 under Muhammad Yaqoob and the entries in respect of the remaining Khasra numbers are with reference to entry against Khasra No.3660. This pertains to village Bhatta Pur. I may further note here that the transaction having been effected by means of a mutation, the requisite evidence is not available of a valid gift. Consequently, both the learned Courts below have placed implicit reliance upon document Exh.P.1, which is a Will deed stated to have been executed by Muhammad Yaqoob, in favour of Shamshad, the son of the petitioner. Needless to state, that he is the same Shamshad, who continued to be in possession of the land throughout, after the death of Yaqoob. Now this document does narrate that vide mutations Exh.P.2 and Exh.P.3 Yaqoob made a gift of the suit-land in favour of Madrissa Arabia Yaqub?ul-Uloom Brailvi, Bhatta Pur, but the Madrissa has not been started and there is no hope of its being started and consequently he is making the Will that after his death, the said land shall vest in the said Shamshad. Further contents of the document are rather curious, as the executant authorized the legatee to get the mutation cancelled whereupon the land would vest in the legatee. Now to my mind, it is true that this document can be read as an admission only to the extent of the said mutations having been got attested but it cannot be considered to be an admission of a valid gift by any stretch. I have already referred to the other evidence on the record, which shows that possession was never delivered and in fact it could not have been delivered as held in the said case i.e. Hashim v. M.A. K. Baig, Administrator-General, Auqaf of Pakistan, Islamabad and 15 others PLD 1978 Lahore 1013 being relied upon by the learned counsel. The reason being that the Madrissa was not at all capable to take over the possession and the land remained in possession of Yaqoob, till his death and thereafter in possession of the son of the petitioner. Thus even upon the general principles governing a gift under the Islamic Law, it was never completed and the said document can even be read as revocation of the gift and the deceased was, of course, entitled to revoke the gift at any time before delivery of possession. The reason being that a gift in any case is never completed and valid without delivery of possession.

6. For the reasons stated above, I do find that the learned Courts below have acted with material irregularity in exercise of their respective jurisdictions, while passing the impugned judgments and decrees. This C.R. is accordingly allowed, both the impugned judgments and decrees passed by the learned Courts below are set aside and the suit filed by the petitioner is decreed in her favour and against the respondents, without any order as to costs. M.A.W./S-475/L???????????????????????????????????????????????????????????????????????????????? Petition allowed.