P L D 2022 Supreme Court 395 (PLP)

MUHAMMAD ALI MAZHAR, J.

This Civil Petition for leave to appeal is directed against the judgment passed by learned Single Judge of Lahore High Court, Multan Bench, in Regular Second Appeal No.18 of 2004 which was dismissed vide judgment dated 26.03.2018.

2. The ephemeral features of the lawsuit are as under:- The deceased respondent No.1 instituted a suit for declaration with the plea that his father Makhdoom Haider Bakhsh in the year 1952 gifted him land measuring 859 Kanals 01 Marla, Khewat Nos.336, 355 and 364, situated at Ghair Musaqil Gharbi Tehsil Kot Addu District Muzaffargarh vide Mutation No.1306, when the plaintiff was five years old and possession was also delivered to his mother namely Iqbal Begum. After death of his father in the year 1992, the respondent No.1 (deceased) came to know that his father executed a document of revocation of gift on 25.7.1970, thereafter, gifted the same piece of land to the petitioners (defendants Nos. 2 to 6 in suit) and mutation entry No.2189 dated 20.04.1971 was also recorded in their favour. He accordingly sought declaration, cancellation of impugned documents and also sought relief of delivery of possession of suit land. That petitioners/defendants Nos.2 to 6 mainly controverted that the possession was never handed over to the plaintiff, therefore Makhdoom Haider Bakhsh rightly revoked the gift on 25.07.1970. The learned Trial Court decreed the suit. The petitioners filed an appeal which was dismissed thereafter a Regular Second Appeal was filed in the Lahore High Court which was also dismissed.

3. The learned counsel for the petitioners argued that the findings recorded by the Trial Court on issues Nos. 1, 2, 5 and 6 are against the evidence available on the record. The revocation deed was executed by Makhdoom Haider Bakhsh on 25.07.1970 which was a registered document and, under the proviso attached to section 3 of the Transfer of Property Act, 1882, it was a notice to public at large including respondent No.1. After revocation, deceased Makhdoom Haider Bakhsh had transferred suit land in favour of petitioners and physical possession was also delivered. The respondent No.1/plaintiff filed the suit to challenge the registered deed of revocation of gift on 21.07.1992 which was time barred. It was further averred that the onus to prove was on respondent No.1/plaintiff to state the date, time and place of making of oral gift, independent of attestation of mutation Ex.P-1 but also to assert three main ingredients of valid gift, namely, declaration, acceptance and delivery of possession. It was further contended by the learned counsel for the petitioners that, in order to establish possession over the suit land from the year 1952 till 1970 and from 1970 till filing of suit, respondent No.1/plaintiff though made a statement on oath, but failed to produce any evidence to establish his possession over the suit land. He further averred that reliance made by learned High Court on Para 167 of the principles of Muhammadan Law by D.F. Mulla has not been properly considered which is not codified law and such principles can only be taken into consideration for convenience.

4. The learned counsel for the legal heirs of deceased respondent No.1 vigorously defended the impugned judgments and decrees and argued that the land gifted to the respondent No.1 by his father could not be revoked. The petitioners failed to lead any cogent evidence in support of their claim. He further contended that all the courts below decided the lis against the petitioners which judgments are in consonance with law and require no interference by this Court.

5. Heard the arguments. The defendants in the Trial Court took the plea that the suit was time barred, while the plaintiff maintained that cause of action accrued to him for filing the suit in the year 1992 when it came into his knowledge that the gift was revoked by his father and suit was filed accordingly in the year 1992 which was not time barred. The D.W-5, Sabir Hussain, who was one of the defendants, appeared in evidence and admitted during cross-examination that they never informed the plaintiff with regard to cancellation deed of gift executed in their favour with further admission that the plaintiff was not present at the time of execution of impugned documents. After considering the evidence, the learned Trial Court reached to the conclusion that the suit was not time barred. It was not disputed that the father of the plaintiff/deceased respondent No.1 had gifted the property in question in the year 1952 in favour of plaintiff when he was five years old, however, their main contention was that the possession of the suit property was not delivered to the plaintiff, therefore the gift was incomplete. On the contrary, the record reflects that the mother of plaintiff, Mst. Iqbal Begum, accepted the gift and possession of the suit land on behalf of her minor son (deceased respondent) and Makhdoom Haider Bakhsh also got sanctioned the mutation Entry No.1306 in favour of his minor son. The father passed away in January 1992, thereafter plaintiff came to know that his deceased father executed a document in the year 1970 for cancellation of gift.

6. Presenting a gift whether grand or tiny is an act of kindness and compassion, and between the parents and children it is somewhat out of love and affection. According to Hedaya, "Hiba", in its literal sense, signifies the donation of a thing from which the donee may derive a benefit; in the language of the Law it means a transfer of property, made immediately, and without any exchange." While according to Ameer Ali, "A hiba, pure and simple, is the voluntary transfer, without consideration, of some specific property (whether existing in substance or as a chose in action)". According to Mulla, "A hiba or gift is "a transfer of property, made immediately and without any exchange," by one person to another, and accepted by or on behalf of the latter". Whereas according to Fyzee, "Hiba" is the immediate and unqualified transfer of the corpus of the property without any return". According to Sir Abdul Raheem, "The Muhammadan law defines hiba or a simple gift inter vivos as a transfer of a determinate property without an exchange". A similar definition is provided by Baillie "Gift (hibut.), as it is defined in law, is the conferring of a right of property in something specific, without an exchange". Similarly, according to Sahih Muslim, "A Hiba is defined as the transfer of possession of property, movable and immovable, from one person to the other willingly and without reward".

7. The Transfer of Property Act, 1882, has no application to the hiba/gift envisioned and encapsulated under the Muslim Law and for this reason, sections 123 and 129 of the Transfer of Property Act can neither surpass nor outweigh or preponderate the matters of oral gifts contemplated under the Muslim Law for which a registered instrument or indenture is not mandatory. All orthodox and unequivocal annotations and explications based on Islamic Jurisprudence vis- -vis "Hiba" have unambiguously emphasized and underlined the fact that the donor should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making gift and he must be major and the owner of the property which is intended to be gifted; the thing gifted should be in existence at the time of hiba; the thing gifted should be such to benefit from which is lawful under the Shariat; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come in the possession of the donee himself or through his representative/guardian for an effective hiba. Under the Muslim law, the constituents and components of a valid gift are tender, acceptance and possession of property. A Muslim can devolve his property under Muslim law by means of inter vivos (gift) or through testamentary dispositions (will). Islamic law does not make any distinction between movable or immovable property with regard to the conception of hiba, rather any property may be gifted by any person having ownership and dominion over the property intended to be gifted on fulfilling requisite formalities. It is also obligatory that the donor divest and dissociate himself downrightly from the dominion and ownership over the property of gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with delivery of possession of the property and ensure that donee has secured physical ascendency over the property in order to constitute the delivery of possession.

8. Indeed, the bone of contention between the parties and/or the point for determination is as follows:- Whether a gift of immovable property conveyed by a donor (father/natural guardian) under the Muhammadan Law in favour of minor child (donee) in the year 1952 could have been revoked by the father in 1970 (almost after 18 years) despite handing over the possession of the property which was accepted by the real mother on behalf of such minor?

9. In order to thrash out the controversy in a logical and judicious manner, we have scanned the different books of renowned scholars on Islamic jurisprudence vis- -vis the doctrine or topic of revocation of gift under Muhammadan Law which as follows:-- Principles of Muhammadan Law by D. F. Mulla (Pg. 503; 517-518)

155. Gift to a minor by father or other guardian.

No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish bona fide intention to give.

167. Revocation of gifts.

(1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all. (2) Subject to the provision of subsection (4), a gift may be revoked even after delivery of possession except in the following cases- (a) when the gift is made by a husband to his wife or by wife to her husband; (b) when the donee is related to the donor within the prohibited degree; (c) when the donee is dead; (d) when the thing given has passed out of the donee's possession by sale, gift or otherwise; (e) when the thing given is lost or destroyed; (f) when the thing given has increased in value, whatever be the cause of the increase; (g) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; (h) when the donor has received something in exchange (iwaz) for the gift [see sections 168 and 169]. (3) A gift may be revoked by the donor, but not by his heirs after his death. It is the donor's law that will apply to a revocation and not of the donee. (4) Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift. Muhammadan Jurisprudence by Sir Abdul Raheem (Pg. 301 - 302). According to the Hanafis a gift being a disposition of property without consideration it can be revoked by the donor even after possession has been delivered to the donee, who however until such revocation may lawfully exercise proprietary rights over it. The right to revoke a gift is called raja't. The position of the Hanafi jurists on this point seems to be inconsistent but it is insisted on, in spite of a tradition which condemns revocation of a gift. This tradition they construe as having the effect merely of making such revocation abominable or improper. They at the same time allow numerous exceptions which deprive the general rule of all effective operation. A gift cannot be revoked under the following circumstances:-- (1) If the gift is to any of the donor's ascendants or descendants, brothers or sisters or their children uncle or aunt; (2) When the gift is made during coverture to the husband or wife of the donor as the case may be; (3) If the subject-matter of gift be land, and the donee erects a building on it or plants a tree in it, or if the property be so improved that the increase cannot be separated, for example, when the subject-matter of the gift is an animal and the donee fattens it by feeding, or if the thing given has been so altered that a different name would be applied to the new substance, for example, when wheat is turned into flour; (4) If the donee has sold the property subject of the gift to another or parted with it by gift followed by delivery of the property; (5) When the thing given has perished in the hands of the donee; (6) If either the donor or the donee has died; (7) If the gift be to charity or Sadaqa; (8) If the donee or somebody on his behalf has given to the donor something in exchange for the gift and the donor has taken possession of it. Again the revocation must be explicit and confirmed by the order of a Judge, because, the law on the question being one on which jurists have held different opinions, the declaration of it by a Qadi is necessary to remove the doubt." Outlines of Muhammadan Law (Fourth Edition) by Asaf A. A. Fyzee (Pg. 264 - 266) A tradition of the Prophet Muhammad shows that he was entirely against the revocation of gifts; and this is understandable, for in early times as nowadays the making of mutual gifts improves the relations between men and leads to cordiality and affection. In Hanafi law, although the revocation of a gift its abominable from the moral point of view, it is nevertheless legal in certain cases and in this respect it resembles the equally reprehensible institution of talaq. (Pg. 264-265) The following gifts are irrevocable:

1. When a gift is made to a person who is so closely related by consanguinity that if the parties differed in sex, a marriage between them would be unlawful.

2. By a wife to the husband or by the husband to the wife.

3. When the donor or donee dies.

4. When the thing given is lost or destroyed.

5. When the thing has been transferred by the donee by gift, sale or otherwise.

6. When the thing has increased in value, whatever be the cause of such increase.

7. When the donor has accepted a return ('iwad) for the gift.

8. Where the motive for the gift is religious or spiritual, for in this case the gift amounts to sadaqa." (Pg. 266) The Hidaya (Volume II) by Sheikh Burhanuddin Abi Al Hasan Ali Marghinani (Pg. 194) A gift to a kinsman cannot be resumed. If a person makes a gift of anything to his relation within the prohibited degrees, it is not lawful for him to resume it, because the Prophet (S) has said. "When a gift is made to a prohibited relation, it must not be resumed; "and also because the object of the gift is an increase of the ties of affinity, which is thereby obtained." Digest of Muhammadan Law (Second Edition) by Neil B. E. Baillie (Pg. 533 - 535) The revocation of a gift is abominable in any circumstances; but it is valid nevertheless. Gifts are of several kinds, some being to relations within the prohibited degrees, and some to persons who are prohibited but not relatives. All may be revoked before delivery to the donee, whether he was present or absent at the time of the gift, and whether he were permitted to take possession or not. But after delivery, the donor has no right of revocation when the gift is to a relation within the prohibited degrees. With regard to all others besides these he has the right of revocation, except that after delivery he cannot revoke of himself, and the revocation requires the decree of a judge or the consent of the donee. Previous to delivery, however, the donee can revoke the gift of himself either in whole or in part." (Pg. 533) 8th. Relationship between the forbidden degrees prevents the revocation of a gift, whether the relative be a Muslim or an infidel; and there is, consequently, no revocation of gifts to fathers and mother, how high so ever, or children, how low so ever; the children of sons and the children of daughters being in this respect alike. In the same manner there is no revocation of gifts to brothers and sisters, and paternal uncles and aunts. But where the prohibition is for some other cause than consanguinity it does not prevent revocation; as in the case of fathers and mothers, or brothers and sisters by fosterage, and of mothers of wives, step-sons, and the wives of sons, and husbands of daughters who are prohibited by affinity. (Pg. 534 - 535) Muhammadan Law (Volume I) by Syed Ameer Ali (Pg. 150 - 151) According to Hanafi law, though the revocation of a gift is worthy of reprobation from a moral point of view, yet it is not illegal. The revocation of a gift, says the Fatawai-Alamgiri, "is abominable under any circumstance, but is valid nevertheless." The consequence of this principle is that in every instance a gift may be revoked before delivery of possession, but after a transmutation of possession has been effected, certain kinds of gifts cannot be revoked, whilst the others may be revoked under the decree of the Judge or with the consent of the donee. When a gift is made to a blood-relation within the prohibited degrees and delivery of possession has taken place, the donor has no right of revocation. (1) In order to make a gift irrevocable, it will be seen that not only must it be to a blood-relation but such relation must be within the prohibited degrees. A gift to a cousin is not irrevocable, inasmuch as a cousin is not within the prohibited degrees. Similarly, a gift to the mother of one's wife is revocable as she, though within the prohibited degrees, is not a relation. In the case of gifts to persons other than relations within the prohibited degrees, previous to delivery the donor can revoke the gift of his own motion either in whole or in part. After delivery, he must obtain either the consent of the donee or the decree of the Judge to validate the revocation. E.G., where the gift has been completed by delivery of the property to the donee, and the donor seeks to revoke it on grounds apart from fraud, misrepresentation or undue influence, such revocation can only be effectuated by the decree of the Court, unless the donee consents to return it to the donor without recourse to the Judge. Gifts obtained by fraud or compulsion are voidable in all cases. Principles and Precedents of Muhammadan Law by William Hay McNaghten (Pg. 51)

13. A gift cannot be resumed where the donee is a relation, nor where anything has been received in return, nor where it has received any accession, nor where it has come into the possession of a second donee, or into that of the heirs of the first.

10. If at the time of conveying a gift the donee was minor, the acceptance of gift could be made by his or her guardian and predominantly for the reason of minority of donee alone, the factum of gift made by his natural guardian does not cease to exist but remains valid on fulfillment of all ingredients of valid gift. A minor donee may not have the capacity to understand the legal consequences as in this case where the donee was only five years of age when his father put into words the gift but minor was a person in existence and thus he was a competent donee. According to all schools of thoughts under the Muslim law, a father has been recognized and acknowledged as the natural guardian of his child though, in the case in hand, the donor was father and gift was accepted by real mother of donee on his behalf. Even if the gift was not accepted by the mother, it would not have any adverse impact or effect on the gift made by a father in favour of his minor son. In case a guardian makes a gifts in favour of his ward, he declares the gift as donor and accepts the gift on the part of the donee, the delivery of possession is not compulsory provided that there must be a bona fide intention on the part of the guardian/real father to divest and part from his ownership and pass on it to the donee out of love and affection. According to authoritative and trustworthy texts on Muslim Law, if the donee is minor son of the donor, then delivery of possession itself is not de rigueur or compulsory, as it is foreseeable in case of other donees under a hiba. The possession of the guardian amounts to possession of minor and separately no aliunde evidence is required to prove that the guardian handed over possession of the property to the minor. In this regard, a lucid exposition has been divulged by D. F. Mulla in his book "Principles of Muhammadan Law" in the annotation No.155, that no transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish bona fide intention to give. In the case of Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others (PLD 1991 Supreme Court 466) this Court held on the question of the delivery of possession in cases like the present one: when the husband is the donor for a wife living with him, when the father is the donor for a daughter and/or a minor living with him or a father-in-law for a daughter-in-law and/or her husband living with him, was not at all noticed. It may be straightaway remarked that in such cases strict proof by the donee of transfer of physical possession, as in other type of cases, is not insisted upon. To cite only one example the Privy Council, three quarters of a century ago in the case of Ma Mai and another v. Kallandar Ammal (AIR 1927 Privy Council 22) had observed that in the case of gift of immovable property by such a close relation of the female as are mentioned above, once mutation of names has been proved the natural presumption arising from the relationship existing between the donor and the donee, the donor's subsequent acts with reference to the property would be deemed to have been done on behalf of the donee and not on his own behalf. Whereas in the case of Bahadur Khan v. Mst. Niamat Khatoon and another (1987 SCMR 1492), this Court held that under the provision of section 167(2)(b) of the Muhammadan Law by D.F. Mulla, when the donor and the donee are related within the prohibited degree, a gift made cannot be revoked. While discussing the dictums laid down in the case of Muhammad Latif v. Muhammad Nawaz (PLD 1960 Lahore 130) and Daud Khan v. Aurangzeb (PLD 1968 SC 54), it was further held that the basis on which the learned Judges have differed with Imam Shafei on the retractability of a gift in favour of a son or a ward has also considerable merit. As reasoned by them, the exception in case of a son appears to be based more on the authority of the father as a natural guardian to deal with the property of his minor son than on the concept of retractability of a gift, for a father is responsible for the maintenance of only his minor children and not adults. This view is in conformity with Shia Law that a gift to ones descendants and accepted by them is irrevocable and finds support from the tradition 'when a gift is made to a prohibited relation it must not be resumed', the term prohibited in this context being construed as and not the persons with whom marriage is prohibited.

11. It is a matter of record and an undisputed fact that Makhdoom Haider Bakhsh (decd.) had two wives, Mst. Iqbal Begum and Mst. Dolat Begum. From Mst. Iqbal Begum he has one daughter, Zahida Parveen, and one son, Muhammad Yousaf (the beneficiary of the gift mutation in the present lis). Whereas from Mst. Dolat Begum he has two daughters, namely Sajida Parveen and Khalida Parveen, and five sons, namely Alamdar Hussain, Sajid Hussain, Shoukat Hussain, Abid Hussain and Sabir Hussain. The present petitioners are from second wife (Mst. Dolat Begum), but only three of seven legal heirs from second wife have challenged the order of learned High Court passed in Second Appeal. The second marriage was contracted after making the gift on 19.1.1952 and the gift was revoked by a registered indenture on 25.1.1970, after almost 18 years without any consent of the donee and without any decree of the Court. The revocation, made on the pretext of non-handing over of possession, was unlawful, while in the mutation recorded on 19.1.1952, the donor specifically got recorded his statement that he has handed over the possession to donee, who at that time was obviously a minor so, on his behalf, the possession was accepted by his real mother, therefore, all subsequent proceedings or steps taken under the garb or guise of revocation of gift were unlawful as the cancellation deed was non est. in the eye of law and a void one.

12. The learned counsel for the petitioners relied on the case of Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153) in which this Court held that the words of Section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of Sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. While in the case of Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417), this Court held that the petitioner was under an obligation to establish the ingredients of the gift claimed by him under the impugned mutations. However, no particulars whatsoever of the time, date, place and witnesses of the declaration of the gift made by Ghulam Muhammad deceased in favour of the petitioner have been provided in his pleadings nor any evidence could be produced by him in this behalf. It was further held that limitation does not run against a void transaction nor efflux of time extinguishes the right of inherence. Equally a mutation is not a proof of title and a beneficiary thereunder must prove the original transaction. Reference is made to the cases of Muhammad Iqbal v. Mukhtar Ahmad (2008 SCMR 855), Hakim Khan v. Nazeer Ahmad Lughmani (1992 SCMR 1832). In the case of Muhammad Bakhsh v. Ellahi Bukhsh and others (2003 SCMR 286) this Court, while referring to the dictum laid down in the case of Ashiq Hussain and another v. Ashiq Ali (1972 SCMR 50), held that mere recital in the gift deed that possession has been delivered to the donee would not be enough.

13. The judicial precedents quoted by the learned counsel for the petitioners are found to be distinguishable from the instant lis. No doubt it is an onerous duty of the court to examine the question of limitation in the context and framework of section 3 of the Limitation Act and if the suit is found to be barred, the same may be dismissed or the plaint may be rejected under Order VII, Rule 11, C.P.C., but in the present case, the deceased respondent in the plaint clearly pleaded that he came to know about the act of revocation after the death of his father in the year 1992, which statement was also supported by D.W-5, Sabir Hussain who was one of the defendants that appeared in the evidence and admitted during cross-examination that they never informed the plaintiff with regard to cancellation deed of gift executed in their favour with further admission that the plaintiff was not present at the time of execution of impugned documents. After establishing the case with regard to the accrual of cause of action pleaded in the plaint, the suit was not time barred. So far as the challenge to the gift on the point of handing over no possession, detailed discussion has been made supra. The factum of gift was never in dispute but the revocation was defended with the plea that possession was not handed over to minor, which plea was not based on correct exposition of Rules defined for the gifts contemplated under the jurisprudence of Muhammadan Law.

14. According to Mishkat-ul-Masabih, Vol. II by Faziul Karim (An English Translation with Arabic Text of Selection of Ahadis from Highly Voluminous Works of Bokhari, Muslim and other Traditionists of Repute), "

18. Ibn Abbas reported that the Messenger of Allah said: He who takes his gift back is like a dog which takes back its vomitings. There is no other evil simile for us.967- Bukhari. While in Al-Shari'a [Sunni and Imamiyah Code], Vol. II, by S. C. Sircar (deduced from Fatawa-i-Alamgiri; Fatawa-i-Sirajiyyah; Sharifiyyah; Sirajiyyah; Durr-ul-Mukhtar; Hidaya; Sharh-ul-Vikayah; Jami'ur Ramuz; Sharaya-ul-Islam; Rouzat-ul-Ahkam; Mufatih; Irshad and Tahrir-ul-Ahkam) as per annotations regarding the revocation of gifts, it is stated at page 30: "If a person make a gift of anything to his relation within prohibited degrees, it is not lawful for him to resume it, because the Prophet has said, "When a gift is made to a prohibited relation, it must not be resumed;" and also because the object of the gift is an increase of the ties of affinity, which is thereby obtained". (Hidayah, Vol. iii, p.302).

15. In the wake of above discussion, no case for interference in the impugned judgment is made out. Consequently, this Civil Petition is dismissed and leave is refused. MWA/A-14/SC Petition dismissed.