P L D 1956 Supreme Court (Pak (PLP)

AMIRUDDIN AHMAD, J.--‑ These two appeals are by leave of the High Court of Judicature at Lahore and arise out of two suits, Suit No. 101 of 1948 and Suit No. 45 of 1949 of the Court of the Subordinate Judge First Class, Bhakkar, Suit No. 101 was filed earlier and was one for possession of a 2/3rd share of the plaintiff's in shamilat lands left by the deceased Anwar Khan. Suit No. 45 was in the nature of a cross‑suit by the defendants in the earlier suit and was for a declaration that a deed of gift executed on. 31st May 1146, by the said Anwar Khan covering the lands in suit was valid and that the plaintiffs were the lawful owners of the lands and for perpetual injunction and other reliefs. Suit No. 101 was decreed by the trial Court and Suit No. 45 was dismissed and the decrees in both the suits were upheld, on appeal by the District Judge of Mianwali, and also on Second Appeal by the High Court. , The trial Court disposed of the two cases by different judgments, the same date, namely, the 25th July 1949. The District Judge disposed of the two appeals by one judgment dated the 3rd December 1949, and the High Court did likewise by one judgment, dated the 16th Aril 1952. The present appellants, who lost the gases in all the Courts, then applied for leave to appeal to the Federal Court and the petition ,was granted by the High Court by its order dated the 27th October 1952, which runs thus :‑ "The valuation of the subject‑matter in both the relevant times is stated to be over Rs. 10,000 and no one appears on behalf of the respondents to contest that valuation. It is certified that this is a fit case for appeal to the Federal Court." and the certificate, which was tented, bras in the following terms :‑ "On the application of the petitioners above‑named it is hereby certified that the case above set forth fulfills in our opinion the requirements of section I 10/109 of the Code of Civil Procedure (V of 1908) as regards its fitness for appeal to the Federal Court of Pakistan for reasons stated in our order dated the 27th October 1952, a copy of which Is attached" So the only reasons given in support of the certificate are that the valuation of the subject matter was over Rs. 10,000 and that no one appeared on behalf of the respondents. It is evident that another test under section 110 of the Code, of Civil Procedure, which should have been applied to this'" case in addition to the evaluation test, namely, that there should be a substantial question of law involved in the case, as it arose from a judgment of affirmance, was wholly overlooked by the High Court. However, now that the matter is before us we propose, to go into the appeals and dispose of them on their merits. The facts of the case on which this litigation arose may be briefly stated as follows :‑‑ One Anwar Khan inhabitant of Mauza Hetu, Tehsil Bhakkar in the District of Mianwali who held considerable lands, both shamilat and adna malikiat, had three sons, Shahnawaz, Sarfaraz and Mumtaz. Shahnawaz had two sons, Sarfaraz had four sons and Mumtaz bad no child at the relevant time. In the early part of 1946 Shahnawaz was murdered and his father Anwar Khan and two brothers Sarfaraz and Mumtaz were accused of his murder and were sent up for trial. Anwar Khan was released on bail and his sons were also later similarly released. While he was on bail on the 31st May 1946, Anwar Khan executed a deed of gift with regard to both his shamilat and adna malikiat lands, which are the subject‑matter of the two suits, out of which these appeals arise, in favour of the four sons of Sarfaraz all of whom were then minors. In the deed Anwar Khan stated that he had given those lands for their maintenance to his grandsons in equal shares and made a declaration as follows :‑ Declared that I had delivered possession of the said gifted land to my above‑mentioned paternal grand‑sons Ghulam Hassan Khan and others. They shall enjoy all the rights in respect of the above‑mentioned gifted land as hereto enjoyed by me Anwar Khan waited for some months and when the case against him ended in his conviction under section' 325 of the P. P. C., and was under appeal, he got the document registered on the 2nd August 1946. After the registration of the document Anwar Khan took no further steps to get the minors' names mutated in his place in the revenue records. He made no report to the revenue authorities for that purpose, but on the other hand when on getting information from the registration office with regard to 5 out of 29 Khasras covered by the d6cument, the Patwari suggested mutation in favour of the minors, but the revenue authorities rejected the mutation in the absence of the donor, he took no steps to appear or support the gift. Anwar Khan retained possession of the properties after the registration of the document up to the time of his death in September, 1947; and according to the revenue records he possessed the lands in Kharif 1946 and Rabi 1947. It was later that the donees were recorded as cultivators of only 5 fields in Kharif 1947 and Rabi 1948. It may be stated here that after the registration of the document Anwar Khan and his sons were acquitted by the appellate Court and their conviction under section 325 of the P. P. C. was set aside, after which Anwar Khan lived for some time. All the three Courts held that the gift was not valid for want of delivery of possession and that the donor never really intended to make a gift. Dealing with the question of intention, the District Judge found as follows :‑ The sons of Shahnawaz were prosecution witnesses and evidence Anwar Khan wanted to oust them thinking that he and his sons Sarfaraz and Mumtaz might be sentenced to death. He was, however, fortunate enough to secure an acquittal and hence he gave up the idea of carrying out his wishes as expressed in the deed of gift. There was no genuine desire to part with the property. With regard to the delivery of possession the District Judge hold as follows:‑ "The most important question for consideration is whether the donor ever divested himself of the interest in the land after the gift. The reply to this question is an emphatic `No', notwithstanding that the gift was made by him, be retained possession of no less than 16 fields for at least one year after the gift .The deed of gift was executed on 31st May 1946, but be made no, attempt to have it registered till 2nd August 1946. His silence for two months, cannot be lightly taken into consideration. Thirdly, he made no report to the revenue authorities about the gift. The mutation was entered up by the Patwari on the basis of the information furnished by the Sub‑Registrar's office, but it was rejected on 3rd March 1947. The donor did not raise his little, finger against the order of the revenue officer and slept quietly over his right until his death The donor did not relinquish his dominion on the property and that he did not deliver possession thereof to the donees". The High Court relied upon these findings of fact and holding that the case was governed by the Customary Law applicable to agricultural tribes in the Mianwall District, under which relinquishment by the donors of all rights of property is essential and the validity of the gift depends essentially on the transfer of actual possession to the donees, found that the transaction did not take effect as a gift under custom. The trial Court applied the Muhammadan Law of gift to the case and held that no delivery of possession had been given, while the District Judge took the same view by applying the Customary Law and the High Court upheld this view. On appeal before us on behalf of the donees, the four sons of Sarfaraz, son of Anwar Khan, it was urged that the High Court had misread and mis‑interpreted the Khasra Girdawarls. Although the Girdawaris showed the possession of .the donee for the first time in respect of 5 fields after the death of Anwar Khan, they must be taken backwards to relate to the time of sowing of the crops and not several months after when the Patwaris usually go to the land to prepare materials for the Khasras, when the crops are ripe for harvesting ; and that if this view is taken, the possession would be at a date when Anwar Khan was alive. We are unable to accept this contention. In the first place these facts were not placed before the Courts below. There is no evidence to show, and there is no finding, as to when the Patwari went to the land and this point also does not appear to have been canvassed before the lower Courts of fact. Besides, it is clear that with regard to the revenue records they are presumed to relate to the state of, things prevailing at the date on which they are prepared. There is, therefore, no substance in this point. The second point taken was that under the principles of Muhammadan Law when the donor is the father or the guardian of the minor donee, no change of actual possession was necessary and the principle must also be deemed to cover the case of a gift by the grand‑father in favour of his grandsons, as he also stands in loco parentis to the donees. In support of this point reliance was made on the case of Khaliq Bux v. Mahabir Prasad (I L R VI Luck. 403) which was a case of a gift by a father in favour of his minor sons and daughter and it. was held that no delivery of possession was necessary to complete the gift. Reference is also made to the case of Ghulam Muhammad v. Muhammad Amin (86 P R 1882) in which it was held that in case of gift by father or guardian in favour D of a minor, if a real and bona fide intention to make a gift is proved, law will be satisfied without a change of possession ; the case of Faujdar v. Bhamma (91 P R 1883) which was a case under Customary Law, to which the principles of Muhammadan Law were also applied, was cited along with some other cases ; in this case in which a grand father bad in favour of his minor daughter's sons who along with their mother were living with the grand‑father under his care, it was held that delivery of possession was not necessary; the case of Raja v. Mst. Jannat (40 P R 1912) was a case of gift made in favour of a minor daughter, for whom the donor acted as guardian, and in which it was held that delivery of possession to her husband, who was also living with the donor as khana damad, was not necessary; the case of Nazir Din v. Muhammad Shah (A I R 1936 Lah. 92) was particularly relied upon as being the case of a gift by a grand‑father in favour of his minor grand‑sons, and as being on all fours with the present case, in which it was held that the donor need not physically part with the possession, but mere intention on his part to treat property as that of donee and to divest himself of his ownership is sufficient. It may be stated here at once that this was a case in which the gift was made at a time when the father of the donees was dead and under the Muhammadan Law the grand‑father (the donor) was the guardian of the minors' property. All these case are clearly distinguishable. In the first place in all these cases the findings are that there was a genuine intention on the part of the donor to make a gift, and secondly the donors were either the father or guardian or persons actually In charge of the minors, and therefore, these cases are not applicable to the facts of the present case. Under the Muhammadan Law even if this case be taken E to be covered purely by the principles of Muhammadan Law formal delivery of possession to a minor donee is not required only when the father or guardian or the person in charge of the minor makes a gift in the minor's favour. It does not apply to a grand‑father as such merely on the basis of the blood relationship with the grandson. 1n the present case the father of the minors was alive and living with them and there is absolutely no evidence to show that Anwar Khan was in charge of the minors. In such a case delivery should have been made to the father (who is guardian of the property of the minors) under the Muhammadan Law to complete the gift. Lastly it was urged that the mere recital in the document that possession was delivered should be taken as evidence of possession, and could not be questioned by the heirs of the donor. 1n support of this proposition reliance was placed on the headnote in the case of Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan (L R 16 I A 205) which runs thus :‑ "A declaration by the donor in the deed of gift that possession has been given binds the heirs of the donor; and possession once taken cannot be invalidated by any subsequent change of possession". What their Lordships purported to hold in this case was that possession once given in pursuance of the declara tion in the deed was binding on the heirs of the donor and Subsequent ouster by them of the donee of will be no avail. This will be clear from the findings recorded by their Lord ships in the last paragraph of their judgment at page 220 of the Report :‑‑ "That a finding be entered for the defendants .upon the second issue that the deed of gift in favour of Zahur Fatma was executed with the authority of Himayat Fatma, that possession was taken under it, and held in accordance therewith and that the possession taken under it transferred the property". The case relating to gift was really disposed of on the basis of this finding. This case, therefore, does not help the appellants. Lastly we were referred to the headnote in the case of Safi Ullah v. Ghulam Jabbar (P L R 1955 Lah. 57=P L D 1955 Lah. 191) in which Akhlaque Husain, J. is reported to have held that A solemn declaration by tote donor, contained in a registered deed that the possession had been delivered to the donee, should be considered as sufficient and indeed conclusive of the delivery of cons tructive possession". But the other learned Judge Kaikaus, J. held a different view namely, "that the question whether there was delivery of possession by the donor to the donee should be decided as the question of transfer of possession would be decided in any other case, and that the recital as to delivery of possession in a deed has two aspects. It may be evidence of delivery of possession and it may by its own force transfer possession. As evidence its value may be practically nil if it is otherwise clear that the donor did nothing further to transfer possession, but though it has no value as evidence, it may, in some cases be effective by itself in transferring possession". The view on this point held by Akhlaque Husain, J. appears to us to be an extreme view, as at best the recital raises only a rebuttable presump tion of fact, which can be proved to be incorrect by evidence in cases in which delivery of possession is questioned as in the present case. Besides, in the case before him the learned Judge held at page 85 of the Report that even if the onus lay on the donees to affirmatively prove that possession had been delivered to them I would, in the circumstances of this case, have no hesitation in holding that the donees have satisfactorily discharged that onus. In the present case in the document it is stated that the donor gave delivery to the donees themselves, who were minors and could only act or accept the gift through their guardian (the father) who was live. Even if he had said that he retained possession on behalf of the minors after divesting himself of the ownership, the appellants could have something to say in the matter, but, as it is, we do not think that, the argument that a mere recital is conclusive evidence of the delivery of possession in, the present case, is tenable. Both the appeals are, therefore, dismissed. A. H. Appeals dismissed.