P L D 1964 Supreme Court 143 (PLP)

"Possession of the whole is necessary ; without possession it is not valid ." "If the donor dies before possession, the gift is void, unless the donee is an infant and the donor is his guardian, for the possession of the guardian is tantamount to the posses sion of the minor and separate possession is not necessary. Possession of a portion is not effectual with reference to the whole." In the same book the learned author refers to the Shia doctrine as given in Sharaya‑ul‑Islam as follows at page 56 :‑ "In Sharaya, the principle is laid down thus:- When a person has made a gift being dangerously ill at the time, but afterwards recovers, the gift is valid. If, however, he should die of the disease, and the heirs refuse their assent to the gift, it is valid only to the extent of a third of his estate, according to the best traditional authority.' This evidently assumes that possession was delivered to the donee before the donor's death, for in another place it is stated that if the donor dies after the and (i.e. the contract of gift) but before delivery of possession, the property falls into the inheritance." In the case of Khurshid Hussain v. Faiyaz Hussain (I L R 36 All. 289), the Court after referring to numerous authorities including Jamaa ush‑Shittat and Sharaya, and fully discussing the diversity of opinion of the Shia jurists on this point held: "that the opinion of the learned author of the Sharaya must carry greater weight than the opinion of other Shia jurists as he has been held by the Courts in this country from early times as the chief authority on the law of the Shias." Mr. Said Akbar has asked us to re‑assess the comparative value of these traditional sources, but in my opinion that is not either necessary or advisable when the law has been settled, among the Muslims of the Indo‑Pakistan subcontinent, by the learned and careful judgment of the Allahabad High Court, delivered nearly 50 years ago, after full examination of all avail able juristic guidance from the most ancient times. I now come to the main point in the case namely : Whether the donor made over possession of the gifted property to the donee. The rule of Muhammadan Law on the subject is perfectly clear. Under the Muhammadan Law the delivery of possession to the donee is a condition precedent to the validity of the gift for, to use the language of Hedaya in Vol. III, Second Edition, Page 482. "the Prophet has said, "A gift is not valid without seizin," It is further stated at Page 482 of the same book‑ "Tender and acceptance are necessary, because a gift is a contract, and tender and acceptance are requisite in the form ation of all contracts ; and seizin 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 seizin." The Shia doctrines in respect of gifts have been set out in detail in Amir Ali's Muhammadan Law Vol. I, Chapter V, a perusal of which will show that the traditional sources, as inter preted by the Courts of the Indo‑Pakistan sub‑continent, exhibit m respect of the necessity for delivery of possession to complete a gift, no material difference between the law applicable to Shias and the Hanafi law. In Baillie's Digest of Muhammadan Law in the Chapter of Gift the learned author at page 203 says: "A contract of gift requires declaration and acceptance with seizin or taking possession." At page 204 it is further laid down that: "if the donor should die after the contract and before possession has been taken of the gift it falls back into his inheritance." It may also be mentioned that the passages which have already been quoted from Jamaa‑ush‑Shittat and Sharaya‑ul- Islam, are also to the same effect. This rule of Muhammadan Law has therefore not been challenged before us. Mr. Said Akbar has however, contended that the plaintiffs would be bound by the donor's declaration in the instrument that she had given possession of the gifted property. This Court while dealing with a similar question in the case of Ghulam Hassan and others v. Sarfaraz Khan and others ((1956) P S C R 107=P L D 1956 S C (Pak,.) 309) observed as follows :‑ "We do not think that the argument that a mere recital (in the deed of gift) is conclusive evidence of the delivery of possession in the present case, is tenable." The parties to that case were Sunnis, but as has been said above, the rule of possession applies equally in Shia Law. Possession was with the donor, and donees were minors, whose natural and legal guardian, namely their father, was alive, and there was no proof that the donor had transferred possession to anyone, in implementation of the gift. A number of relevant cases are cited in the judgment which will show that a recital of delivery in the deed of gift has been held to effectuate delivery only where the donors were either the fathers or guardians of minor donees. The facts here are entirely different. In this case the plaintiffs led evidence that after the death of Mst. Husan Bano the donor, her sons Munir Ahmad Shah and Wazir Ahmad Shah jointly possessed the gifted property, and after the death of Wazir Ahmad Shah, his sons jointly possessed the said property with Munir Ahmad Shah. This fact which is admitted by Munir Ahmad in his evidence is also supported by the judgment in a criminal case in which Munir Ahmad Shah was convicted under section 379, I. P. C. and sentenced to pay a fine of Rs.

200. On the other hand no evidence worth the name was adduced on this point by the defendants. Hence the presumption arising from the recitals in the instrument namely that possession had been delivered to the donee has been completely rebutted by the plaintiffs. Mr. Said Akbar realising his difficulty attempted to argue that the gift was accompanied by such physical possession as was capable of being delivered. In this case the subject‑matter of gift was agricultural land. There were also tenants in part of the land. No evidence was however, led to show that the tenants had been asked to pay the rent to the donee. There was also no other act from which it could be gathered that the donor had `done all that was possible for her to do to complete the gift.' Thus it is clear that the gift was not accompanied by possession and that the donor died before giving possession to the donee. Mr. Said Akbar's contention that the gift being of an undivided property delivery of possession was not necessary, has equally no substance in it. The High Court while overruling this contention rightly relied on the following observations in Baillie's Digest of Muhammadan Law, Part 2, Second Edition, Page 214 wherein it is stated. "that a gift of mooshaa or a share in joint and undivided property is lawful, and seizin of it is to be taken in the same way as seizin in sale." For the reasons stated above I entirely agree with the finding of the High Court that this gift not being accompanied by possession was void ab initio. Lastly Mr. Said Akbar contended that the plaintiffs' suit was barred by limitation. According to him the suit in fact was for cancellation of the deed of gift and as such Article 91 of the Limitation Act was applicable to this case. A similar question arose in the case of Ramchandra Jivaji Kanago and another v. Laxman Shrinivas Naik and another (A I R 1945 P C 54) and the Privy Council observed: "Having regard to the findings of the High Court which their Lordships find no reason to reject, the main question for determination before the Board as stated already, is whether the suit is barred by Article 91, Limitation Act. If the deed of gift is a void transaction no question of cancelling, or setting it aside, would arise, but if it is only a voidable transaction, that is, a transaction valid until rescinded, then the necessity to set it aside is obvious before possession of the property can be claimed." No doubt if the deed was merely invalid and not void, it would have been necessary for the plaintiffs to have it set aside as a preliminary to their taking possession of the property, and Article 91 would be attracted to the case. See Pethermal Chatty v. Muniandy Servai (35 Cal. 55 (P C)). In order to get the benefit of the above decision Mr. Said Akba attempted to argue that the gift was merely invalid and not void ab Initio. I have already referred to various authorities to show that when a gift is not accompanied by possession, it is void ab initio. If further authority is needed, it will be found in the case of Sadik Hussain Khan v. Hashim Ali Khan (L R 43 I A 212), in which their Lordships observed: "The Muhammadan Law in their view, therefore, applied to this deed ; and the gift made by it, being voluntary, is void under that law unless it was accompanied by a delivery of such possession as the subject of gift is susceptible of." I am therefore, unable to accept the contention that this suit was barred by Article 91 of Limitation Act. For the reasons given above I see no force in this appeal and would therefore, dismiss it with costs. B. Z. KAIKAUS, J.‑The following pedigree table will explain the relationship of the parties to this dispute SAYYED AMIR AHMAD SHAH Mst. Husan Bano (wife) |

| | | Wazir Ahmad Shah Munir Ahmad Shah Mst. Makhduma Bibi Mst. Safdar Bano (wife). | | | | | |

| | | | Shamshaad Ali Shah Iqbal Husain Shah | Mst. Iqbal Fatima Bibi Mst. Ata Fatima Bibi | (wife) (wife)

|

| | | | Sayyed Hassan Sayyed Murid Mst. Jafari Mst. Haidri Shah Hussain Shah Begum Begum Amir Ahmad Shah the ancestor of the parties died in 1927. On 21st of January 1926, he had made a will in respect of some land in favour of his wife Mst. Husan Bano. The extent of the property covered by this will is not known, but it included the property in dispute. On the 18th December, 1939, Mst. Husan Bano executed a deed of gift of 455 kanals of land in favour of Munir Ahmad Shah. This deed was registered on the 21st December 1939. A mutation was sanctioned on the basis of this gift in favour of Munir Ahmad Shah by the Assistant Collector. The order of the Assistant Collector was set aside on appeal by the Collector, but on further appeal the Commissioner by an order dated the 9th August 1943, set aside the order of the Collector and restored that of the Assistant Collector. Wazir Ahmad Shah died in 1942 leaving behind two sons, two daughters and a widow. Munir Ahmad Shah, at different times, transferred the property which he received by gift in favour of his sons and sons' wives. The present suit was filed by the heirs of Wazir Ahmad Shah on the 6th August 1955, for possession of their share of the property which was the subject‑matter of the gift. They alleged n the plaint that the gift was void and ineffective because :‑ (i) no possession had been delivered to the donee ; (ii) the gift was the result of fraud practised on the donor ; and (iii) the gift was made during marzul maut that is death illness, Mst. Husan Bano having died on the 21st December, the day on which the gift deed was registered. They claimed two‑fifths of the gifted property in accordance with Shiah Law which admittedly governs the parties. The defendants to the suit were Munir Ahmad Shah and the transferees from him, that is, his sons and sons' wives. The sons and sons' wives of Munir Ahmad Shah who were defendants I to 5 in the suit did not accept that Mst. Husan Bano had died on the 21st December 1939, though they did not specify the date of her death and simply stated that she had died long after 21st December 1939. They denied that any ground invalidating the gift existed. According to them Mst. Husan Bano was in health when she made the gift and possession of the gifted property had been delivered. Munir Ahmad Shah who was defendant No. 6 in the suit filed a separate written statement. He accepted that Mst. Husan Bano had died on the 21st December 1939, but alleged that she was in health when she made the gift and that the gift was not liable to any attack. (Later in the witness box he admitted she was dangerously ill when she made the gift). The following issues were framed:‑ (i) was the gift made by Mst. Husan Bano void, because firstly it was executed through fraud, and secondly, the donor was lying on death bed and died on the very day on which the gift decd was registered and thirdly that no possession was given to the donee? (ii) Is the suit time‑barred, because the defendants are in possession of the property exceeding twelve years? (iii) If the gift is proved to be voidable due to fraud, is the suit within time? (iv) Relief. On the question of fraud the Senior Civil Judge who tried the suit found against the plaintiffs. He found however that gift was made during marzul maut. He did not give any finding on the question of delivery of possession because according to him a gift during marzul maut was to be. treated as a will. Defendants 1 to 5 had when they led evidence put forward the 19th January 1940, as the date of death of Mst. Husan Bano, and had also produced a copy of an entry in the Municipal register of deaths wherein Mst. Husan Bano was entered as having died on 19th January 1943. The Senior Civil Judge found the entry to be forged and held that Mst. Husan Bano had died on 21st December 1939. He found the suit to be within limitation. As a will was to be effective with respect to one‑third of the property, the Senior Civil Judge decreed the suit for two‑thirds of what had been claimed. Against this decision only defendants 1 to 5 appealed. The learned Judges of the High Court agreed with the Senior Civil Judge as to the date of death of Mst. Husan Bano and as to the gift having been made during marzul maut. They went also into the question of delivery of possession and held that possession had not been delivered and the gift was incomplete and ineffective. The plea of limitation too was rejected. This is an appeal by defendants 1 to 5, Munir Ahmad Shah defendant No. 6 having been made a pro forma respondent. Learned counsel for the appellants has challenged the findings of the High Court on all the three points decided by it, that is marzul maut, delivery of possession and limitation. I will take up first the question of marzul maut, because the finding with respect to the condition of Mst. Husan Bano at the time of the gift will have a bearing on the question of delivery of possession. Learned counsel for the appellants strongly contended before us that the finding of the High Court as to Mst. Husan Bano being subject to an attack of pneumonia and being under apprehension of death at the time when she executed the gift deed or got it registered is not justified by the record. No doctor had been produced and learned counsel for the appellants challenges the competence of witnesses who are laymen to say that the deceased was suffering from pneumonia. Learned counsel also relied on the fact that every one of the witnesses who deposed to the illness of Mst. Husan Bano was connected with the plaintiffs. So far as Munir Ahmad Shah is concerned he was according to learned counsel obviously siding with the plaintiffs and also his statement was of no value for according to his written statement Mst. Husan Bano was in health when she made the gift. After going through the record I do not find any good ground for interfering with the concurrent finding of the Courts below with respect to marzul maut. An important circumstance that affects the decision of this matter is the date of death of Mst. Husan Bano. According to the plaintiffs she died on the 21st December 1939, only two hours after the deed had been registered and if this date of death be accepted there is a good deal of support for the plea of marzul maut. According to the case put forward by the appellants in the trial Court she had died on the 19th January 1943. This case of the appellants has been found by both Courts to be untrue and it is no longer contended before us that the witnesses who deposed to the death of Mst. Husan Bano on the 19th January 1943, were making true state ments. It may be observed that even the mutation relating to the death of Mst. Husan Bano had been entered on the 30th July 1940. However, though learned counsel for the appellants is unable now to say that the date of death put forward by the appellants was true, he still maintains that the story as to her death on the 21st December 1939, is untrue and that she had died on 2nd June 1940. There is a concurrent finding by the Courts below as to death of Mst. Husan Bano on 21st December 1939. Learned counsel attacks this finding on three grounds : (i) that the High Court has not properly interpreted the mutation regarding the death of Mst. Husan Bano ; (ii) that the admission made in the witness box by Hassan Shah plaintiff as to the death of Mst. Husain Bano in the year 1940 has been ignored ; and (iii) that the High Court failed to give due weight to the failure of the defendants to raise the plea of marzul maut before the revenue authorities during mutation proceedings. To take up the first of these grounds the facts relating to the mutation of inheritance are that on the 30th July 1940, the Naib Tahsildar while attesting some revenue records came to know of the death of Mst. Husan Bano. He directed on the same day that a mutation be entered in respect of her death and on the same day a mutation was in fact entered. Column 13 of every mutation entered under the Punjab Land Revenue Act states "the class and the date of transfer" and in the mutation relating to the death of Mst. Husan Bano there appears in this column the fol lowing entry: "Inheritance dated 2‑6‑1940, in accordance with Badr No. 1 by the Naib Tahsildar, the attesting officer, dated 30th July 1940." "Badr" means a slip or omission and a mutation on the basis of badr is entered when a revenue officer himself discovers some slip or omission in the record. In the entry which has been reproduced above the date 30th July relates to the discovery of the badr by the Naib Tahsildar and 2nd June 1940, does purport to be the date of death. The interpretation which the learned Judges of the High Court put on this entry is contained in the following passage: "We have carefully examined this document and we agree with the contention of the learned counsel for the respondents that the date given in column No. 13 of the copy of the mutation as 2nd June 1940, does not necessarily refer to the death of Mst. Husan Bano. It may be the date when the Naib Tahsildar had made the report. In any case, even if this date refers to the date of the death of Mst. Husan Bano, there is nothing to show that the Naib Tahsildar had learnt this date from one of the parties to this suit or from some other reliable source. The Naib Tahsildar was not examined by the defendants and, therefore, it cannot be assumed that this date really refers to the date of the death of Mst. Husan Bano. The Revenue Officer while attesting the mutation did not give the date of the death of Mst. Husan Bano. It, however, contains a note to the effect that Munir Ahmad Shah stated that his mother had died. In our opinion the date mentioned in column No. 13 of Exh. P. 2, does not, in any manner, discredit the plaintiff's case." I am not inclined to agree with the learned Judges that 2nd June 1940, may be the date of the badr. The date of the badr was clearly stated to be the 30th July 1940, and in column 13 "the date of transfer" has also to be mentioned. The 2nd June therefore would be the date of the "transfer". The word used in the Urdu form is inteqal which can mean transfer or mutation, but in column 13 it means transfer as the English form provided by the rules will show. Every mutation implies a transfer for even if it be a case of inheritance rights standing in the name of one person are by the mutation transferred to another. It will be observed, however, that the learned Judges did not base their finding on this interpretation and they were of the opinion even if the 2nd June 1940, referred to the date of death of Mst. Husan Bano it was not sufficient for discrediting the case of the plaintiffs for there was nothing to show the source of information of the Naib Tahsildar. This criticism of the learned Judges was justified. Unless we know the source of information of the Naib Tahsildar his statement as to the date of death based on hearsay is not of much weight. It may be noted that in spite of this criticism by the High Court the appel lants have made no effort to produce before this Court a copy of the order of the Naib Tahsildar by which he directed that a mutation be entered. If the order was really in favour of the defendants‑appellants it could, in order to clear up matters, have been produced in this Court. In fact during the course of the argument I questioned learned counsel for the appellants as to why he had not taken steps to secure a copy of the fard badr if it really helped his case. I received no satisfactory reply and this question I had put long before the arguments were concluded so that the appellants had an opportunity of producing the document even after I put the question. So far as admission of Hassan Shah in the witness box is concerned, it has been fully considered by the High Court. The statement had been made about sixteen years after the death of Mst. Husan Bano and Hassan Shah was admittedly not present at the time of her death. He was relying upon memory alone and, therefore, could easily have made a mistake of a few days. Mst. Husan Bano had died on 21st December 1939, and if she had died only twelve days later the statement of Hassan Shah would be correct. The alleged omission of the plaintiffs to put forward the plea of marzul maut in the mutation proceedings relating to the gift has been dealt with by the High Court. The learned Judges have pointed out that no copy of the mutation of gift has been placed on the record. In fact even a copy of the order of the Collector is not on record, the only document produced being the order of the Commissioner In second appeal. We do not, therefore, know the objections originally taken by the father of the plaintiffs. At the same time the father of the plaintiffs may not have taken the objection of marzul maut because such a question, was not a fit one for decision by the revenue authorities who would give effect to a registered document leaving it to the parties to have the question of marzul maut decided by a civil Court. I would not be prepared in view of what is stated above to upset the finding of the High Court as to the date of death of Mst. Husan Bano. I am affected by the consideration that the appel lants have deliberately put forward 19th January 1943, as the date of death of Mst. Husan Bano. If in fact she had died in June 1940, there would be no need for the appellant to fabricate false evidence in order to prove that Mst. Husan Bano died on 19th January 1943. It is to be remembered that a death entry had been fabricated showing the death of Mst. Husan Bano on 19th January 1943. I am also influenced by the statement of Munir Ahmad Shah the father of some of the appellants as to the death of Mst. Husan Bano on the 21st December 1939. It is true that he is supporting the plaintiffs, but I do not think that is a sufficient reason for excluding his statement. He is not shown to be inimical to the appellants and he may be supporting the plaintiffs because after the death of his brother Wazir Ahmad Shah whom he tried to deprive of property he feels penitent and wants to give to his nephews the property to which they are in fact entitled. At the same time it is to be remembered that the appellants are putting forward a new case. This was not their case in the trial Court. If the finding as to the date of death of Mst. Husan Bano is not interfered with no ground remains for interference with the finding of marzul maut in spite of the fact that no doctor bad been produced. Mst. Husan Bano was old and ailing and if she died only two hours after the registration of the gift it is easy to accept that she was suffering from some disease which caused serious apprehension of death. So far as the legal aspect of marzul maut is concerned, what is really needed is, as pointed out in Ibrahim Goolam Ariff. Saiboo and others that the gift should be made "under the pressure of the sense of imminence of death". The rest of the matters which are generally stated in commentaries on Muslim Law as matters requiring investigation in a case of marzul maut are really matters relating to evidence. If the gift had in fact been made "on account of pressure of the sense of imminence of death" the gift would be affected by doctrine of marzul maut. There is one point which may be clarified here. It is stated in some commentaries and judgments that death should in fact result from a disease if the doctrine of marzul maut is to be invoked. I am unable to agree with this proposition. If a person was suffering from galloping tuberculosis and was therefore under apprehension of death when he made the gift, but he was shot dead by some person or died of an accident, or of cholera or some other epidemic a short time after the gift I do not see why the doctrine of marzul maut should not be applicable. Truly speaking even the fact that a person survives and does not die at all should not validate a gift which he made under apprehension of death. The validity of the gift is to be determined with reference to the circumstances as they exist at the time of making the gift. Sub‑sequent failure to die cannot have a retrospective effect, so as to validate an invalid transaction. The true reason for the invalidity of the gift is the state of the mind of the donor who believes that he Is going to die. As he believes that he is going to die he has no intention of making a transfer inter vivos and his only intention is to make a transfer which will take effect after his death. A transfer takes effect according to the intention of the, transferor. If the transferor has no intention of making a gift during his life time no such gift will result. The reason why a gift in marzul maut operates as a will is that the intention is to make a testamentary alienation only. This doctrine is not confined to Muslim Law. In Roman Law it is called donatio mortis causa and it also appears in section 191 of our Succession Act. In accordance with section 191 gifts "made in contemplation of death" are resumable by the donor if he survives and the power, to make such gifts is co‑extensive with the power of testamentary, disposition. It is true that gifts "in contemplation of death are gifts which are to take effect in case the donor dies, but authority can be found in any commentary for the proposition that although the donor does not say so the presumption in the case of gifts made during apprehension of death is that they are to take effect only in case of death. In Jarman On Wills (1951 Edition) at p. 46 it is stated that "the conditional nature of the gift need not be expressed, it is implied in the absence of evidence to the con trary", and that "if the circumstances authorise the supposition that the gift was made in contemplation of death mortis causa is presumed." On the finding that Mst. Husan Bano was suffering from pneumonia at the time when she made the gift there is a clear case for the application of the principle of marzul maut. The effect of a gift in marzul maut is that it operates as a will. However, in order to operate as a will it is necessary that there should in the first place be a completed gift. Learned counsel for the appellants has not argued, probably in view of what is said in some of the very authorities on which he relies for other legal propositions, that a gift without delivery of possession would also operate as a will. It may be stated here, that the trial Court accepted, without going into the question of delivery of possession, that the gift in dispute would operate as a will and It dismissed the suit with respect to one‑third of the property in suit. The plaintiffs did not file any appeal against this decree, with the result that to this extent the decree of the trial Court became unassailable. I come now to the question of delivery of possession. Learned counsel for the appellants contends (i) that there is a declaration in the deed of gift relating to delivery of possession and this declaration binds the heirs of the donor and is at the same time sufficient for effecting transfer of possession under the circumstances ; (ii) that the donee was already in possession as he was managing the estate of the deceased on her behalf ; (iii) that the donor was not in possession at all and there was no need of delivery of possession ; and (iv) that the donee had in fact come into possession of the land and therefore the gift was in any case validated. The ground may be cleared by stating that according to the finding of the High Court the land left by Mst. Husan Bano had been in the joint possession of both the brothers after the death of Mst. Husan Bano. On this point there are on the record the statements of Munir Ahmad Shah the donee, Allah Yar, P. W. 6, the Lambardar of the village of the parties, and one Muhammad Baqar who had been appointed a Superdar of the gifted land by the Colony Officer when there was a dispute with respect to the produce of this land between the donee and his brother Wazir Ahmad Shah, father of the plaintiffs. A copy of the judgment of a Magistrate 1st Class convicting Munir Ahmad Shah under section 379, I. P. C. for taking away the produce of land had also been placed on the record. The appellants did not produce any revenue record to show that the land was in the exclusive possession of Munir Ahmad Shah after the death of Mst. Husan Bano. The land was admittedly in the possession of tenants. Under the circumstances the finding of the High Court appears to have been justified. To take up the first of the four contentions it is not contended on behalf of the appellants that Mst. Husan Bano did anything towards delivery of possession beyond making a declaration as to such delivery in the gift deed, but it is urged that the land being, as already stated, in the possession of tenants, the declaration was by itself sufficient delivery of possession, particularly when it is coupled with the fact that Munir Ahmad Shah was already in possession of the land on behalf of his old and ailing mother. It is also contended that the declaration as to delivery of possession should at least be sufficient delivery in the case of a gift of mooshaa. On behalf of the respondents it is urged that when land is in the possession of tenants a simple declaration by the donor that possession is delivered to the donee is insufficient for transfer of possession and there should at the same time be a direction by the donor to the tenants to attorn to the donee. While I would accept that a declaration simpliciter will not effect delivery of possession I would not subscribe to the extreme proposition that such a direction by the donor is essential. It may be that there are other circumstances which coupled with the declaration are sufficient for transfer of possession. I may refer as an illustration to the Privy Council case Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others (I L R 11 All. 460) wherein the donor had made a declaration of delivery of possession to the donee who was her daughter and the gift was followed by mutation of names. The donor had signed a power‑of‑attorney in favour' of the husband of the daughter empowering him to present a petition for mutation of names. The husband of the donee had been managing the property of the donor. Under the circum. stances the Judicial Committee was of the opinion that there was sufficient delivery of possession. There had been no direction by the donor to the tenants to deliver the produce to the donee. The question of possession in a case of gift governed by Muslim Law is to be determined as it would be determined in any other case. We have to consider the nature of possession of the donor and then determine with reference to all the attending circumstances whether that possession was transferred to the donee. In the present case the great difficulty in the way of the appellants is that the donor was an old and ailing woman and the gift deed was registered only two hours before her death. Even in the case of an ordinary donor it has never been held that a simple declaration as to delivery of possession in the deed of gift would effect a transfer of possession if land was in posses sion 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. Even consideration relating to pardahnashin ladies would apply to a case like the present and would have to be proved that the donor fully comprehended what she was doing. Delivery of possession depends on the intention of the donor and that intention is not sufficiently proved in a case where she is old, ailing, under apprehension of death and in the hands of the donee by a formal recital of delivery of possession in the gift deed. Great reliance was placed by learned counsel for the appel lants on the observations of the Privy Council in two judgment i.e. Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others and Nawab Mirza Muhammad Sadiq Ali Khan and others v. Nawab Fakr Jahan Begum and another (A I R 1932 P C 13) to the effect that a declaration as to delivery of possession was binding on the heirs of the donor. It was contended that the plaintiffs were claiming as heirs of the donor and the declaration is conclusive as against them. 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 of its own force transfer or help 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 circumstance to be taken into consideration for determining whether delivery has taken place. But in nether aspect is such a declaration conclusive and learned counsel for the appellant is unable to offer any argument as to why such a declaration should be conclusive. He only places reliance on observations in the two Privy Council cases mentioned above. A close study of the first of these cases (and the second simply follows the first) will show that there was no intention to hold the declaration to be something which is conclusive of the matter. It would be proper to reproduce here the relevant portion of the judgment. It runs: "The lady had merely proprietary, not actual, possession of the greater portion of the property, that is to say, she was merely in receipt of the rents and profits. In the deed of gift she declared (an admission by which Usman as her heir and all persons claiming through him were bound) that she had made the donee possessor of all properties given by the deed ; that she had abandoned all connection with them ; and that the donee was to have complete control of every kind in respect thereof. Ahmad Husain, the daughter's husband, was the general manager of both mother and daughter, and would doubtless take care that the deed of gift should be carried into effect. Their Lordships have no doubt that sufficient possession was taken on behalf of the daughter to render the gift effectual. If possession were once taken and the deed of gift took effect, no subsequent change of possession would invalidate it. On the 24th April 1879, Himayat Fatma by special power -of‑attornery appointed Sheikh Himayat Ali as her general agent to present and verify a petition for mutation of names, and on the 28th a petition was accordingly presented on her behalf by Himayat Ali, by which, after reciting the deed of gift and that Zahur Fatma had been put into proprietary possession of the property, she prayed that after expunging her name from the Collectorate papers the name of Zahur Fatma, the daughter, might be entered therein. The usual proceedings were adopted, and on the 5th June 1879, a parwana was issued by the Assis tant Collector to the Tahsildar, by which he was requested amongst other things to have the petition proclaimed and to cause an inquiry as to possession to be made. This was done, and on the 27th July the village Patwari reported that Himayat Fatma had made a deed of gift of her own rights to her daughter, Zahur, and that the latter had obtained possession of the same in the place of Himayat Fatma, her mother. On the 28th July the Tahsildar reported that he had caused the notification to be proclaimed, and that it was evident from the report of the Patwari that Zahur Fatma had obtained posses sion of the property specified in the gift in the place of Himayat Fatma. If the mere recital was conclusive evidence there was no need to discuss the various matters relating to delivery of posses sion. The observation that the declaration was binding on the heirs of the donor may have meant only that the declaration was relevant as an admission against the heirs. There is no discussion of the question as to why it should be binding and the observation that it is binding appears only within brackets. In the present case the recital as to delivery of possession has little value as evidence of delivery of possession for there is no plea that the donor did anything towards delivery of possession beyond making this declaration and of its own force the declara tion as already discussed is insufficient for effecting a transfer of possession. Learned counsel for the appellants contends that this declaration would be sufficient delivery at least in case of gift of mooshaa. He relies in support of his contention on Baillie's Imameea p. 204 where it is stated : "The gift of mooshaa or a share in joint and undivided property is lawful, and seizin of it is to be taken in the same way as seizin in sale." The footnote to this sentence says : "That is by mere surrender or vacating by the donor." Learned counsel argues that "surrender" means 8 Symbolical delivery which may be effected by a declaration. For this interpretation of "surrender" learned counsel cites no authority and this is not the ordinary meaning of surrender. On the other hand the words used in the footnote seem to indicate that "surrender" was used in the sense of "vacating" or was similar to vacating. The plea that Munir Ahmad Shah was already in possession was not raised in any of the Courts below. Munir Ahmad Shah when he entered the witness‑box was not questioned with respect to it. At the same time there is no evidence on the record to show that Munir Ahmad Shah had been realizing rent from the tenants on behalf of his mother. Similarly the plea that the donor was at the time she made the gift not in possession at all had not been raised in the Courts below and is unsupported by any material on the record. In fact this plea is inconsistent with the main plea of the appellants that the donor had delivered possession. The contention that the gift was validated because Munir Ahmad Shah did take possession of the gifted property even though possession was not properly delivered by the donor fails on facts as well as in law. There is a clear finding by the High Court amply justified by the record that after the death of Mst. Husan Bano the two brothers continued in joint possession of the property. At the same time the legal requirement is that there should be delivery of possession by the donor. Taking of possession by the donee without the permission of the donor is of no effect. According to the Hedaya, "If the donee takes posses sion of the gift in the meeting of the contract 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." (P. 114 of Amir Ali, Vol. 1). Similarly in Baillie's Imameea it is said (P. 204) that "permission of the donor is a condition of valid seizin". It is also stated in Baillie's Imameea (P. 204) that "if the donor should die after the contract, and before possession has been taken of the gift, it falls back into his inheritance." There remains, the plea of limitation. The suit is said to be time‑barred on two grounds, the first being that the gift deed not having been challenged within three years the suit was barred under Article 91 of the Limitation Act and the second that the plaintiffs have failed to prove dispossession within twelve years and the suit is barred under Article

142. Article 91 of the Limitation Act provides a limitation of three years for a suit "to cancel or set aside an instrument, not other wise provided for" and the terminus a quo is the date "when the facts entitling the plaintiffs to have the instrument cancelled or set aside become known to him." The suit with which we are dealing is a suit for possession of land but it cannot be doubted that if to order to get the relief of possession it be necessary for the plaintiffs to have an instrument set aside, Article 91 will be applicable. The criterion, however, for the application of Article 91 will be whether the instrument is effective till it is set aside. If an instrument be such that it has produced legal effects but some person has the option to have it set aside so that it will be rendered without effect a suit has to be filed for setting it aside and a suit for any other relief which relief cannot be granted unless the instrument is set aside will also be governed by Article

91. On the other hand if the instrument has not produced any legal effect at all, it does not stand in need of being set aside and Article 91 will not be attracted by the mere facts that reliefs asked for cannot be granted unless the instrument is found to be ineffective or void. No person is bound to sue for a declaration that an instrument is void from its inception though it should be explained here that a suit for cancellation of even a void instru ment does lie. Between cancellation and setting aside there is a distinction though it is not always kept in view. An instrument that produces no effect does not stand in need of being set aside and the use of the expression setting aside is inappropriate in respect of a void instrument. Cancellation of an instrument has however a different meaning. According to section 39 of the Specific Relief Act a person may sue for cancellation of an instru ment which is "void or voidable". The relief granted by the section is that the instrument will be "delivered up and cancelled." The reason why even in respect of void instruments a person is granted the relief of cancellation is, as appears from section 39 itself, that such instrument "if left outstanding may cause him serious injury." However, if in respect of a void instrument no suit for cancellation is brought within three years it does not acquire any validity and remains ineffective as before. In the present case three attacks were made on the gift (i) that it was procured by fraud ; (ii) that it was made during death illness ; and (iii) that it was not completed by delivery of possession. The effect of the finding on the question of delivery of possession is that there was never any completed gift and no title ever passed to the donee. In accordance with Muslim Law a gift is complete only where possession is delivered. The Prophet has said : "A gift is not valid without seizin." As we are dealing with a case of Shias it will be sufficient to refer Baillie's Imameea (P. 207) where it is said : "If there has been any delay after the contract in giving possession of the gift but possession is at length given the transfer of property is to be decreed as having taken effect from the time of seizin not from the date of the contract." I have already quoted from Baillie's Imameea the passage where it is said that "if the donor dies before delivering possession the gifted property will be a part of his inheritance." There is one point which has to be stressed in view of observations in certain judgments which were produced before us. Article 91 is not attracted just because the onus of proving that a deed is ineffective lies on the person who makes this allegation. If for instance, a deed of sale be alleged to be a forgery and in a suit brought by the person who is shown in the deed as the vendor against the purchaser for recovery of possession of property mentioned in the deed, onus of proving be cast on the plaintiff because the deed has been registered Article 91 will not become applicable because the plaintiff has to prove that the deed is a forgery before he can succeed in the suit. A person who claims that a deed which purports to be executed by him is a forgery is not asking that the deed be set aside and is not bound to sue within three years. Similarly even in the case of a gift deed which is old the Court may place onus of invalidity of the deed on the ground of want of delivery of possession on the person alleging invalidity if it finds that the donee is at the time when the suit is brought in possession of the gifted property. But this does not mean that the suit would be governed by Article

91. The sole criterion for the applicability of Article 91 is whether the deed affects rights till some person entitled to have it set aside does so. If the deed as a matter of fact never affected rights the need for its being set aside would never arise. In so far then as the attack on the gift deed was based on want of delivery of possession Article 91 was not attracted. The position with respect to the attack on the ground of death‑illness is similar. A gift deed in death‑illness takes effect as a will and affects one‑third of the property of the deceased, and there is no need to have it set aside in so far as it relates to the remaining two‑thirds. The position however with respect to the attack on the ground of fraud is different. As provided in section 19 of the Contract Act a contract affected by fraud is voidable and not void. A gift is not a contract (though in Muslim Law it is called a contract) but the principle of section 19 may be applic able even to a gift. However it is not necessary to discuss the matter further for the attack on the ground of fraud has failed. Even the attack on the ground of death illness has become unnecessary because there being no delivery of possession there was no completed gift and no title passed. The plea that the suit is barred by Article 142 is negatived by the findings of the Courts below as to possession which findings I have in another connection already accepted. I have already found while dealing with the question of validity of the gift that after the death of the donor both Munir Ahmad and his brother Wazir Ahmad Shah (and after Wazir Ahmad Shah his heirs) remained in joint possession of the property. I have already referred to the material on record in support of the finding. There is little force in this plea too. As a result this appeal fails and I would dismiss it with costs. A. H. Appeal dismissed.