P L D 2005 Lahore 286 (PLP)

‑‑‑‑Gift‑‑‑Valid gift can be made of an undivided share (Musha) in the property which is not capable of partition. Muhammad Nazir Janjua for Petitioners. Saleem Akram Chaudhry for Respondents. Date of hearing: 27th January, 2005. The plaintiffs/petitioners filed a suit on 6‑12‑1978 for declaration to the effect that they were owners‑in‑possession of Shop, No.6/14‑B, known as Punjab, Medical Store situate in Sadar Bazar Mandi‑Baha‑ud‑Din through a registered sale‑deed dated 21‑5‑1974 and that the registered "Hibanama" dated 12‑9‑1974 regarding the suit shop was illegal and ineffective upon the rights of the plaintiffs and was, liable to be cancelled. It was averred that one Shabbir Khan was the owner of the shop, after his death 1/4th share devolved upon his widow Mst. Sughran Bibi/defendant No.1/respondent No.1. She sold her share to plaintiffs 1 and 2 and Manzoor Ali (predecessor‑in‑interest of plaintiffs 3 to 8) vide registered sale‑deed dated 21‑5‑1978. The registered "Hibanama" dated 12‑9‑1974 was illegal on the ground that the same was made during the pendency of a suit and that the possession of the shop had not been delivered and there was no declaration and acceptance of the gift. The suit was resisted denying all the allegations. It was alleged that the plaintiffs have no locus standi to challenge the "Hiba" and that the registered sale‑deed in favour of the plaintiffs was based upon fraud and misrepresentation and was also without consideration. The donor specifically stated that the "Hiba" was in accordance with law and she accepts the same. Out of the pleadings of the parties following issues were framed. The learned trial Court after recording the evidence of the parties decreed the suit vide judgment dated 3‑4‑1979 and declared the gift-deed dated 12‑9‑1974 as void. The defendants/respondents preferred an appeal before the District Judge, Gujrat which came up for hearing before the learned Additional District Judge, Gujrat who vide his judgment dated 16‑3‑1980 allowed the same, reversed the judgment of the learned trial Court and dismissed the suit of the plaintiffs/petitioners.

2. Learned counsel for the petitioners contended that the possession of 1/4th share in the shop was not delivered to the donee, defendant/respondent No.2. It was still with the petitioners. Mst. Sughran Bibi has been receiving the rent of the shop from the petitioner till 17‑1‑1977. The gift in favour of respondent No.2 was incomplete. Learned counsel referred to Ext. P.10 in support of his contention. He further contended that Mst. Sughran Bibi appeared as D.W.3 and admitted in cross‑examination that respondent was to pay Rs.200 per month during her life time failing which the "Hiba" shall stand cancelled. Learned counsel argued that since the gift stood revoked the sale‑deed in favour of the plaintiffs was rightly registered. He also urged that the petitioners had filed a suit against the respondent No. 1 in which the parties had reached a compromise and the suit was disposed of in terms of the compromise on 17‑1‑1977 vide Exh.P.3/1. According to the said agreement the respondent No. 1 undertook not to alienate the share in the shop in favour of respondent No.

2. Conversely the learned counsel for the respondent submitted that the plaintiffs/petitioners had no locus standi to challenge the gift. Only Mst. Sughran Bibi could do so. She in the written statement filed by her accepted the gift and reiterated it: It was further stated in the written statement that the alleged sale‑deed dated 21‑5‑1978, Ext. P. 1 was based upon fraud and misrepresentation. The petitioners earlier claimed themselves as tenants as such could not challenge the, "Hiba".

3. I have gone through the impugned judgments, perused the record and considered the arguments of the learned counsel for the parties. I tend to agree with the learned counsel 'for the respondent that the petitioners could not challenge the "Hiba" on the ground that the possession of the property was not delivered. It is for the donor to challenge the gift and not for the tenant or co‑sharer. The defendant/respondent has accepted the gift‑deed and has reiterated the same in her written statement and in her testimony as D.W.

3. The suit filed by donor/defendant No.1 against defendant No.2/respondent No.2 was withdrawn. The claim of the petitioners is that Mst. Sughran Bibi has been receiving the rent from them as her tenants till 17‑1‑1977. The delivery of the possession of the subject matter of the gift to the donee, either actually or constructively is necessary to complete a gift: The donor must divest herself completely of all the ownership and dominion over the subject of the gift Para. 152(2) of Chapter XI on gifts of Mahomedan Law by D.F. Mulla reads as under:‑‑ "(2) Where property is in the Occupation of tenants.‑‑‑A gift of immoveable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee (f) or by delivery of the title deed or by mutation in the Revenue Register or the landlord's sherista (g). But if the husband reserves to himself the right to receive rents during his lifetime and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete (h)." It is thus clear that mere request to the tenant to attorn to the donee or delivery, of title deed or by mutation is sufficient. Mst. Sughran Bibi, D.W. 3 deposed that she gifted the suit shop in favour of defendant No.2, the donee and it has been receiving the rent of shop and that the alleged sale in favour of the plaintiffs is based upon fraud. The alleged documents Exh.P.10 are only the receipts about sending the money order. There is nothing on the record to show that the same were received by Mst. Sughran Bibi, donor nor the said receipts have been proved according to the Law of Evidence. The alleged sale of share in shop in favour of petitioners vide sale‑deed Exh.P.1 of which she was no more the owner, even if made by the defendant, in the presence of the "Hiba" deed; Ext, D.1 is void. As far as the contention of the learned counsel for the petitioner that the petitioners and respondent No. 1 had reached a compromise, suffice to say that the "Hiba" was made on 21‑5‑1974 vide Ext. D.1. She was no more the owner of the said share as such could not make a statement on 17‑1‑1977 for not alienating her share in the shop in favour of respondent No.2. There is another aspect of this case that a valid gift can be made of .an undivided share ‑ (Musha) in the property which is not capable of partition. There is nothing on the record to show the dimension of the shop and it is not the case of the petitioners that the shop in question is capable of division.

4. For what has been stated above this petition has no merit and is dismissed leaving the parties to bear their own costs. M.B.A./S‑302/L Petition dismissed.