P L D 1967 Lahore 336 (PLP)

This is a regular second appeal by the defendant `against the decree passed by the Additional District Judge, Multan at Muzaffargarh on 30th March 1961.

2. Ashiq Ali (previously Asa Ram), a resident of Muzaffargarh, embraced Islam and did not migrate to India on Partition. He was a blind old man about 70/80 years in age and had nobody to look after him. He appointed Ashiq Hussain respondent No. I as his Mukhtar to help him in the management of his landed property at Muzaffargarh. On 17th February 1955 he made a gift of the land in dispute, in favour of Ashiq Hussain and Muhammad Aslam respondents by a registered deed (Exh. P. 20). Later on he appears to have revoked the gift. On 17‑11‑1955 he by a registered deed (Exh. D. 2), dedicated the land to wakf and appointed Anjuman Islamia, Muzaffargarh as, the Mutwalli to manage the property and to, pay to him Rs. 50 per month for maintenance out of the income. The rest of. the income from the land was reserved for religious and charitable purposes.

3. Thereupon the two respondents filed the suit, out of which this second appeal has arisen, against Ashiq Ali and Anjuman Islamia, Muzaffargarh on 10th September, 1958 in the Civil Court at Muzaffargarh for a declaration that they were the owners in possession of the land in suit by virtue of the gift in their favour and for a permanent injunction restraining the defendants from interfering in their possession. They have asserted that the gift in their favour was perfected by the delivery of the possession of the land given to them by the donor. The suit was resisted by both the defendants who filed a joint written statement controverting the allegations of the plaintiffs. They denied that the plaintiffs were in possession of the land in dispute and alleged that their suit for a mere declaration was not competent. They pleaded that the registered deed dated l7th February 1955 was obtained by the plaintiffs from Ashiq Ali defendant No. 1 by fraudulent misrepresentation to the effect that it was merely a general power of attorney. They have denied that the alleged gift was completed 'by the delivery of possession given by defendant No. 1 to the plaintiffs. The defendants have further averred that the deed of gift was later on revoked by the donor who lawfully dedicated the properties for religious and charitable purpose by the registered wakf deed dated 17th November 1955 and gave the possession of the land to defendant No. 2, the Anjuman Islamia, Muzaffargarh. The plaintiffs have put in their replication denying these allegations,

4. The trial Court framed the following issues in the case arising out of the pleadings of the parties:‑ (1) Are the plaintiffs in possession of the land in dispute ? (2) Whether defendant No. 1 made the gift in question? (3) If issue No. 2 is proved, is the gift invalid on account of having been made under fraud or by misrepresentation? (4) Whether defendant No. 1 could revoke the gift in favour of the plaintiffs. If so, whether he revoked it and what is its effect? (5) Relief.

5. On 14th January'1961, the Senior Civil Judge, Muzaffar garh, decreed the suit of the plaintiffs finding all these issues in their favour. He has held that admittedly the land in suit was in the cultivating possession of the tenants and none of the parties to the suit, was in its possession and that as such it was unnecessary for the plaintiffs to have sued the defendants for the possession of the land and their suit for declaration, in the present form, was maintainable. The registered gift deed Exh. P. 20 was found to have been executed by Ashiq Ali in favour of the plaintiffs voluntarily. It was not procured by any fraud practiced on him. The plaintiffs produced rent deed executed by the tenants of the land in their favour to show that the gift was completed by delivery of the possession of the land to them. In the opinion of the learned Senior Civil Judge the defendant's conduct clearly showed that he gave the possession of the property to the donees and changed his mind afterwards. The Court has further held that the gift could not be revoked by the donor after its completion by the delivery of possession to the donees.

6. Dissatisfied with this decision the two defendants went up in appeal, which was rejected by the learned Additional District Judge, Multan at Muzaffargarh on 30th March 1961. He agreed with the trial Court in holding that defendant No. 1 has failed to establish that the gift deed in question was obtained from him by misrepresentation or fraud; that gift was completed by the delivery of possession to the donees and that nothing short of a decree of a Court was necessary to cancel the gift. Therefore, the subsequent transfer of the land by defendant No. 1 to defen dant No. 2 was found to be of no legal effect.

7. Ashiq Ali, donor, appears to have died by the time of this second appeal filed by the Anjuman Islamia, Muzaffargarh. The learned counsel for the parties addressed arguments before me in this case and I heard them at length. 8. (Both the Courts below have concurred in holding that defendant No. 1 knowingly executed the gift‑deed of the land in suit favour of the plaintiffs‑respondents, without any fraud or misrepre sentation practiced on him. The recitals in the gift‑deed Exh. P. 20 go to show that the donor was an old man 70/80 years in age. He was blind and dependant upon Ashiq Hussain, who bad been serving him for the past 8 years. It is nobody's case before me that the document was obtained from the old man by undue influence practised on him by respondent No.

1. The execution of the document is admitted by the defendants. The donor gave three different versions for its execution. In the Waqf Nama, dated 17th November 1955 (Exh. D. 2), it is mentioned that the gift‑deed was obtained by the donees by undue influence. But in the written statement the only plea raised was that it was obtained from the doner by fraud by misrepresenting to him that this was merely a power of attorney given to the plaintiffs. In his evidence as a witness in the suit the donor has deposed that he executed the deed in the belief that it was a general power of attorney given to the plaintiffs. However, he further added in his statement that in the registered deed executed by him he had wished to insert that the land would become the property of respondent No. 1 only after his death. In these circumstances the two Courts below found issues Nos. 2 and 3 in favour of the plaintiffs against the defendants and I do not see any good ground to interfere with these findings of fact in this second appeal.

9. However, the main question to be considered in this appeal is as to whether the impugned gift was perfected by the delivery of possession of the land given by the donor to the donees as required by Mohammedan Law. Admittedly the three essentials of a valid gift under Mohammedan Law are: (f) a declara tion of gifted by the donor; (ii) an express or implied acceptance of the gift by the donee and (iii) seisin, the delivery of the possession of the gift property by the .donor to the donee. It is of the essence of a gift that it should be completed by the delivery of possession. The Holy Prophet has said. "A gift is not valid unless possessed" (Inayah, Vol. IV, page 24). The law contemplates that the possession required to be given to the donee must be such as the nature of the property permits. If the donor has done all that he could do to complete the contem plated gift the transfer is valid. The mode by which the possession is delivered to the donee depends upon the nature and character of the property and the question has to be considered keeping in mind all the facts and circumstances of the case. The delivery of possession by the donor as a conscious, unequi vocal and distinct act on his' part is necessary to perfect the gift made by him. Hedaya Book XXX at page 482 says: "Gifts are rendered valid by tender, acceptance and seisin -tender and acceptance are necessary, because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right 'of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin." Again in another place it is mentioned:‑ "A gift may be taken possession of on the spot where it is tendered, without the express order of the donor; but not after wards:‑If the donee takes possession of the gift, in the meeting of the deed of gift without the order of the giver, it is lawful, upon a favourable construction.‑If, on the contrary, he should take possession of the gift after the breaking up of the meeting, it' is not lawful, unless he have had the consent of the giver so to do." Similarly, B. E. Baillie in his Digest of Mohammedan Law (pages 520‑521) has observed: "Legal effect of a gift is not complete until possession is taken of the thing given; . . The possession on which the completion of the gift and the establishment of its legal effect are dependent, is possession taken with the permission of owner‑a permission which is some times express, but, at others; has to be established by evidence. . When the donee is neither expressly permitted nor forbidden to take possession, and does so at the meeting, the possession is valid on a favourable construction of law, though not so by analogy. But if possession is not taken till after separation from the meeting, the possession is not valid, either by analogy or on a favourable construction."

10. In Sharifa Bibi v. Golam Muhammad Dastagir Khan (I L R 16 Mad. 43), it was held that when the gifted land is occupied by the tenants or raiyats as in a zamindari or mitta, a request to them to attorn to the donee is a sufficient delivery to complete the gift and a formal entry on the land is not indispensable, the principle being that the intention to transfer possession and to divest himself of all control over the subject of the gift must be unequivocally manifested by some overt act done towards the execution of such intention. This principle of law is well established. Sheikh Ibrahim v. Suleman and others (I L R 9 Bom. 149), Muhammad Mumtaz Ahmad and others v. Zubaida Jan (I L R 11 All. 460 (P C)), Hassanalli Degumiya v. Ruhulla Hamad (A I R 1925 Bom. 305), Abdul Haque and others v. Mst. Tamizan and others (A I R 1927 Pat. 20) and Bibi Khaver Sultan v. Bibi Rukhia Sultan (I L R 29 Bom. 408), are some of the cases in which it has been held that in case the land is occupied by tenants, a request to them by the donor to attorn to the donee is the only possession that the donor can give of the land in order to complete a proposed gift and such possession would be sufficient. A mere recital in the gift deed that the possession has been delivered to the donee is not enough. The Supreme Court of Pakistan in a recent case Shamshad Ali Shah and others v. Syed Hassan Shah and others (PLD1964SC143), has observed: "Even in the case of an ordinary donor it has never been that a simple declaration as to delivery of possession in the deed of gift would effect a transfer of possession if land was in possession of tenants and in a case like the present where the donor was in the hands of the donee any recitals at her instance would obviously be of less weight." The Supreme Court has further added: "A declaration in a deed of gift as to delivery of possession has two aspects. It may be evidence of delivery of possession and it may or its own force transfer or held in transferring possession. So far as the first aspect is concerned if it be otherwise known that the donor did nothing beyond making a statement as to delivery of possession the recital is of no value. In its second aspect the making of the declaration is a circum stance to be taken into consideration for determining whether delivery has taken' place. But in neither aspect is such a declaration conclusive." In the same connection the Supreme Court has further added:--"Taking of possession by the donee without the permission of the donor is of no effect."

11. But the learned counsel for respondents made an unsuccessful attempt in an apparent endeavour to whittle down the rigour of the law in this respect. He read ' out certain disjointed passages torn ' out of their context from Fatawa Alamgiri, Vol. VII, Book on Gifts, to convince me that delivery of possession of the property is not necessary in cases in which the donor himself is not in physical possession and according to him a mere recital as to the delivery of possession should suffice. But even a casual reading of the second chapter (dealing with the validity of gifts), Book on Gifts, Volume, Seventh, Fatawa‑i‑Alamgiri (Naval Kishore Press, Lucknow), will belie this contention of the learned counsel. In Mullick Abdul Ghuffoor and another (ILR 10 Ca1.1112), it was found on facts that possession was transferred to the two donees, in the only way in which it could be transferred under the circumstances. In Muhammad Hamid Ullah Khan v. Muhammad Majid Khan (AIR 1917Lah.181), cited by the learned counsel it was observed that the possession of the property in the occupation of a tenant can be delivered by "allowing" the donee to collect rents and profits or by requesting the tenant to attorn to the donee. In that case certain shops in Chandni Chowk, Delhi, were in possession of the tenants at the time of the gift and several leases were produced to shoo that after the registration of the deed of gift the lessees had attorned to the donee. This was presumably with the express or implied permission of the donor although report does not clearly say so. The learned counsel also relied on Muhammad Mumtaz Ahmed and another v. Zubaida Jan and others and Nawab Mirza Muhammad Sadiq Ali Khan an ‑J others v. Nawab Fakr Jahan Begum and another (AIR 1932PC13). But it is not necessary for me to go into the facts of these two cases. Suffice to say that they were considered and distinguished by the Supreme Court in Shamshad Ali Shah v. Syed Hassan Ali Shah, quoted above.

12. Turning now to the facts of the present case. The impugned deed of gift was executed and registered by the donor in favour of, the respondents on 17th February 1955. It is recited in this document that the donor has delivered the posses sion of the lands in question to the donees. At the time of the gift the land was in the cultivating possession of the tenants. Some of these tenants Faizullah (D. W. 1), Sardar Khan (D. W. 2), Allah Wasaya (D. W. 3), Ghulam Qadir (D. W. 4) and Faiz Bakhsh (D. W. 5) were produced by the defendants to depose that they were sharing the produce of the land with the Anjuman Islamia, Muzaffargarh, for the past 3/4 years. But in their cross‑examination it was elicited from them that after the date of the gift they have executed lease deeds in respect of the land under their cultivation in favour of the donees. D. W. 1 Faizullah executed on unregistered deed of lease dated 3rd March 1955 (Exh. P. 11). This was followed by a registered lease deed dated 30th August 1956.(Exh. P. 6), executed by him in favour of the donees. Sardar Khan (D. W. 2) thumb marked the lease deed Exh. P. 10 in their names on the 13th April 1955 Allah Wasaya (D. W. 3) has denied the execution of the lease deed (Exh. P. 16) dated 13th April 1955, attributed to him D. W. 4 Ghulam Qadir admits have executed the lease deed dated 27th February 1955 (Exh. P. 7) and then the registered deed of lease dated 3rd July 1956 (Exh. P. 4) in favour of the respondents. Similarly D. W. 5 Faiz Bakhsh executed two lease deeds in favour of the respondents; the first one Exh. P. 8 on 27th February 1955, and thereafter a registered. deed Exh. P. 5 on 2nd of July 1956, in their favour. All these witnesses have deposed that they executed these deeds and were dealing with the respondent No. 1 in his capacity as the Mukhtar of the donor. But this version was not accepted by the two Courts below inasmuch as these documents were executed by the respec tive tenants in the names of the respondents as owners of the property in suit. He as it may, there is no evidence to show that the tenants of the land in dispute had attorned to the donees with the permission of the donor. The record is. altogether silent on this vital aspect of the case. Ashiq Hussain respondent No. 1 (O. W. 12) has said nothing about it. Ashiq Ali, the donor (D. W. 7) entered into the witness‑box to deny that he gave the possession of the land to the donees but no question was put to him to demonstrate that those lease‑deeds were executed by the respective tenants in favour of the donees with his permission. This question was not even put to the tenants when they were in the witness‑box. Respondent No. 1 as admittedly the Mukhtar of the donor and was collecting rent for him before the date of the gift. The donor was himself much advanced in age, weak and had lost his eye sight. He was depending upon the donor to help him in the Management of his properties. . There is no overt and unequivocal act on the part of the donor to show that apart from the solitary statement in the deed of gift, he did anything to perfect the gift either by asking the tenants to attorn 1 to the donees or gave any express or implied permission to them to collect the rents from those tenants, in their own right as owners. He did no more than merely executing the gift‑deed in favour of the donees. The fact that soon after the date of the gift the donees obtained the lease‑deeds in their names from the tenants donees not necessarily lead to the inference under the circumstances of this case that this must have been done with the permission or consent of the donor. The learned Additional District Judge appears to be influenced with the admission of Ashiq Ali to the, effect that after the execution of Exh. P. 20 the plaintiffs did not give any share of the produce to him. The failure of the donee to take any prompt action against his attorney may be more due to his helplessness in this matter. On the very first opportunity he revoked the gift and created the wakf on 17‑11‑1955. He also appeared before the Revenue Officer on 5th December 1955, to deny that he had given the possession of gifted land to the donees.

13. It is settled law that mere registration of the deed of gift does not cure the defect in the delivery of possession to the donee Moghal v. Muhammad‑Saheb and others (I L R Bom. 517) and Vahaz‑ullah Saheb v. Sovapati Nagayya and others (I L R 30 Mad. 519). Similarly in Shamshad Ali Shah and others v. Syed Hassan Shah and others, it is explained that declaration in the deed of gift as to delivery of possession .ic not conclusive. This carries more or less weight depending on the circumstances in each case. In a case like the present when the doner was under the influence of the donee such a recital in the deed of gift cannot carry much weight.

14. The judgment of the learned Additional District Judge is based on the following conclusion reached by him:‑ (i) That the declaration of the donor in the gift‑deed to the effect that he had transferred the possession of the land in disputes to the donees, though not conclusive in itself, is a relevant circumstances to be considered. (ii) That the land in dispute was in the possession of the tenants and not in the possession of the donor and, therefore, the declaration by the donor that he had transferred the possession to the donees would amount to notice to the tenants so far as they were concerned because the document was registered at a public office and the gift‑deed was delivered to the donees and was not. retained to the donor. The donor in the present case by making a declaration at the time of the execution of the gift‑deed that he had delivered the possession of the land in dispute to the donees and by delivering the title deed after registration to the donees, completed the gift by transferring the possession to the donees under gift. (iii) That for all practical purposes the land in dispute was already under the control of Ashiq Hussain the donees who was acting as Mukhtar of the donor before this gift. He was already Managing the property by realising rents from the tenants and was in a way in constructive possession of the property in dispute. Therefore nothing more was needed except a declaration on the part of the donor to complete the gift. (iv) That the donees had brought on the record various lease‑deeds which were executed by the tenants in their favour immediately after the execution of the gift‑deed. (v) That the conduct of the parties would also show that the possession had been transferred to the donees. It is admitted by Ashiq Ali that after the execution of the gift‑deed defendant No. 1 who was his Mukhtar stopped paying rent to him. In this connection the learned Additional District Judge relied on clause (2) of Article 152 of the Principles of Mohammedan Law, by Mulla (Fourteenth Edition) to the effect that "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 the delivery of title‑deed of mutation in the revenue Register of the landlord's Sherista". This statement of law in Mulla is based on Gani Mia and others v. Majid Ali (A I R 1935 Cal. 393). The facts of this case do not at all support the proposition so broadly stated by Mulla. The facts of that case are dis tinguishable. The plaintiff in that case was the grandson of the donor, the gifted property was in the possession of tenants, who had wrongly denied the title of their landlord. The grand father made the gift of the property in favour of his grandson who was at the time living with him. He delivered the docu ments of title and other documentary evidence to the donee and also asked the tenants to make over the possession to the donee. In the suit for possession by the donee against the tenants they denied his title under the gift. The donor who was also a party to the suit did not appear or contest the suit. It was in these circumstances that the Court held that these acts amounted to such a delivery of possession as the subject‑matter of the gift was capable of and that the gift was valid. In the present case the learned Additional District Judge has erred in law in relying upon the above passage from Mulla, which if I may say so with respect is likely to mislead: Moreover, in the present case the gift‑deed Exh. P. 20 was presented for registration by Ashiq Hussain, plaintiff. There is no evidence to show that after registration the gift‑deed was received by the donor from the Sub‑Registrar and then delivered to the donees. The mutation was ultimately sanctioned by the' Revenue Officers in favour of the donees on 22nd November 1955 in spite of the opposition by the donor after the property had been dedicated by him to wakf. Therefore,, all these circumstances are of little help to establish the delivery of possession of the land by the donor to the donee.

15. The learned Additional District Judge was not right in holding that the registration of the gift‑deed would amount to a notice to the tenants to effect the delivery of the possession of the land to the donees as required under Muhammadan Law. No doubt, Ashiq Hussain was working as an attorney for the donor but all the same the possession of the land remained with the principal and the learned Additional District Judge was in error in observing that the donee was already in constructive possession of the land in a way and nothing more was needed beyond the declaration made by the donor to deliver the possession to the donee. As already discussed there is nothing to show that the tenants had executed the lease‑deeds in favour of the donees with the consent of the donor. There was*nothing wrong in the conduct of the donor to draw any inference against him in this respect. Nor was the declaration by the donor about the delivery of possession to the donees in the registered gift‑deed singly or coupled with other circumstances sufficient to complete the gift in the present case. , The judg ment of the learned Additional District Judge is vitiated by the errors of law in arriving at these conclusions and is not binding in this second appeal.

16. Another question which arose for determination in this case is whether the gift was lawfully revoked by the donor. On the above finding that donor did not deliver possession of land to the donee, the gift remained incomplete and ineffective. It was always open to the donor to revoke it before the delivery of possession. This question, therefore, does not present any difficulty.

17. For the reasons discussed above, I accept the appeal and dismiss the suit of the respondents with costs throughout. K. M. A. Appeal accepted.