1980 PLP 765 (SCMR)

NASIM HASAN SHAH, J.‑The dispute in this case is between a father and a son and the facts relevant thereto are briefly as follows:‑ Khuda Bakhsh made a gift of land in favour of the petitioner, Lai Hussain Shah, who was his Pir and he was his Pir and he was his disciple to this was given by Mutation No. 14 sanctioned on 11‑11‑1958. On 23‑1‑1961. however, Khuda Bakhsh filed a suit claiming that the above‑mentioned gift made in favour of the petitioner was obtained by fraud and was void and prayed for its cancellation. During the pendency of the suit Lal Hussain Shah, petitioner, made a gift of the same land in favour of his son , (vide Mutation No. 16 sanctioned on 30‑11‑61). This gift, it is alleged, was made s; as to successfully put an end to the earlier suit filed on 23‑1‑1961 by khuda Bakhsh against the petitioner. Shortly, thereafter, the petitioner filed a suit on 16‑11‑1962 against the respondent Kausar Hussain Shah (his own son) for a declaration that he was the owner in possession of the gifted land and with a prayer for consequential relief that the respondent be restrained from interfering with the possession of the petitioner. It was alleged in this suit that a fictitious gift had been made in favour of the defendant by means of Mutation No. 16 sanctioned .on 30‑11‑1961 with a view to successfully defeating the suit filed on 23‑11‑1961 by Khuda Bakhsh against the petitioner and Kausar Hussain Shah. The exact allegation was that during the pendency of his suit on the advice of his (petitioner's) counsel and on the fraudulent permission of Kausar Hussain Shah (respondent herein) that Khuda Bakhsh would withdraw his suit against the petitioner; case the gift was made in favour of the former (Kausar Hussain Shah) and that after withdrawal of the suit the land would continue to remain in possession of the petitioner he had made the gift. According to the compromise, respondent (Kausar Hussain Shah) was to pay a sum of Rs. 1,000, to the aforesaid Khuda Bakhsh. Accordingly, Khuda Bakhsh made a statement in Court that he would withdraw the suit against the defendants and that the land would be gifted by Lai Hussain Shah to Kausar Hussain Shah. This device was adopted to facilitate the suit filed by Khuda Bakhsh. Accordingly, the suit was withdrawn on 15‑11‑1962. So far as the suit filed by Lal Hussain Shah on 16‑11‑1962 is concerned, both the trial Court and the learned Additional District Judge held that the petitioner had failed to prove any fraud or that he had been duped by his counsel in making a gift in favour of his son the respondent. In these circumstances, the High Court has also held that no justification existed on the factual side for up setting the concurrent finding of fact by the two Courts below. The main question that was debated before the High Court was whether the gift made by the petitioner in favour of Kausar Hussain Shat; was valid in law. It was submitted that the essential ingredient of a valid gift was that it should be perfected by the delivery of the possession of the land in favour of the donee, This condition was not fulfilled as at the time when the gift was made the land was in cultivating possession of the tenant and there was no evidence to show that the tenants of the land in dispute had attorned to the donees with the permission of the donor. The solitary statement in the gift deed that the possession had been delivered was no, sufficient to prove the delivery of possession. The learned Judge in the High Court held that in view of the fact that the petitioner had claimed himself to be in possession and made statement, regarding delivery of the possession in favour of the respondent he was now; estopped under the law to take up the position that the gift was invalid on account of non‑delivery of possession. Mr. Iftikharul Haq Khan, again re‑agitated before us the same submi?ssion as was urged in the High Court, but after hearing the learned counsel and perusing the available record we have reached the conclusion that the view expressed by the learned Judge that in the circumstances the petitioner should be held as estopped from challenging the factum of gift in favour of his own son requires no interference and that this is not a fit case fore grant of leave to appeal. This petition, therefore, fails and is dismissed hereby. Petition dismissed.