P L D 1967 Lahore 1087 (PLP)

This Regular Second Appeal is directed against the judgment and decree of the District Judge, Gujranwala, dated the 3rd of September 1957, whereby he dismissed the plaintiff appellant's appeal against the judgment and decree of the Senior Civil Judge, Gujranwala, dated the 23rd of May 1957, dismissing the plaintiff appellant's suit for possession in respect of 3/8th share of 66 Kanals 18 Marlas of agricultural land detailed in the plaint.

2. The brief facts, giving rise to the case are that the suit land was the self‑acquired property of one Muhammad Din, an Awan by caste and resident of Wazirabad, District Gujranwala, who had no male issue. His daughter Mst. Wazir Begum defendant‑respondent was married to one Abdul Aziz who was his resident son‑in‑law (Khans Damad) managed his agricultural land and lived with him in Wazirabad till the time of his (Muhammad Din's) death on 10th February 1956, vide Exh. D. 2, a certified copy of the death entry in the municipal record. About four and a half months prior to his death on 21st September 1955, Muhammad Din executed gift deed Exh. D. 1, in favour of his daughter Mst. Wazir Begum respondent, in respect of the suit land which was duly registered. It is not clear from the record whether a mutation in this regard was entered during the lifetime of Muhammad Din donor or not. However, one thing is clear from Exh. P. 3, a copy of the appellate order of the Collector dated the 30th of June, 1956, that the mutation in this regard bad been rejected on 5th of June 1956, by the Assistant Collector on the ground that the donor had died and there was no proof of the delivery of possession. The fact, however, remains, that the Collector accepted an appeal filed by Mst. Wazir B'egum, respondent on the ground that the transaction of gift had been duly registered and there was documentary evidence of the transfer of possession. It may be pointed out that Muhammad Yusuf son of Ahmad Din was impleaded as a respondent in this appeal, who is not a party to the instant suit, but conceded the respondent's claim to the suit land before the Collector.

3. It was on 21st of November 1956, that the suit giving rise to the present appeal was filed by Ibrahim, plaintiff‑appellant who claimed to be a nephew of Muhammad Din donor being the only son of his brother Balanda. The validity of the gift was challenged by the plaintiff‑appellant on the ground that there had been no acceptance on the part of the donee, as she did not appear before the Sub‑Registrar at the time of the‑registra tion of the deed, that the actual delivery of possession had not been effected and that Muhammad Din donor was a senile invalid of 85 years of age not being of sound disposing mind at the time of the execution of the gift deed.

4. Besides, raising some preliminary objections to the valuation of the .suit and the plaintiff's locus stand to file the same not admitting his relationship with the deceased donor, the defendant‑respondent traversed the allegations and asserted that the defendant being a purdahnashin lady, the acceptance of gift by her husband on her behalf was quite valid and that the delivery of possession had also taken place. It was categorically denied that the donor was not in possession of his full senses at the time of the execution of the gift deed.

5. On the pleadings of the parties, the following issues were struck: "(1) Was the gift in dispute completed by delivery of possession and valid acceptance? (2) On non‑proof of issue No. 1, is plaintiff bound by the gift in suit? (3) Is plaintiff not competent to question the gift on the ground of non‑completion? (4) Was the donor of unsound mind at the time of making the gift, and what is its effect? (5) Was the gift obtained by misrepresentation and what is the effect? (6) Is plaintiff estopped from suing? (7) Is the plaint defective? (8) Is the value for Court‑fee and jurisdiction incorrect? . (9) What share, if any, has plaintiff in the land in suit? (l0) Relief.

6. Since there was a recital in the gift deed itself of the delivery of possession, the learned trial Judge took the view on the basis of Ghulam Hassan v. Sarfraz Khan (P L D 1956 S C 309) that the recital raised a rebuttable presumption of fact. It was further held that the failure on the part of the donor to get the mutation attested during his lifetime could not be treated as material evidence of the alleged non‑delivery of possession, so as to be deemed sufficient rebuttal of the presumption. The learned trial Judge took the view that since donor was an old blind man of about 80 years, and the donee being his daughter having all along lived with the donor, no formality for the change of possession of the land which had already been under the Management of his son‑in‑law was called for. A reference in this regard was also made to paragraphs 152 and 153 of Mulla's Muhammadan Law (Fourteenth Edition). On the point of acceptance it was held that acceptance by itself was something quite distinguishable from the subsequent steps such as the registration of the deed or the attestation of the mutation, and that acceptance could be either express or implied, and its validity could not be questioned on account of the non‑appearance of the donee before the Sub‑Registrar or Revenue Officer. Regarding the state of mind of the donor at the relevant time, the plaintiff had no personal knowledge as he had permanently shifted to Lahore since long and could not adduce any evidence in support of his allegations that the donor was not possessed of sound disposing mind when he made the gift. His old age and blindness per se were, however, not a sufficient proof of his impaired understand ing or unsoundness of mind. In view of the above findings, the learned trial Judge dismissed the plaintiff's suit. His appeal was dismissed in limme by the learned District Judge on 3rd of September 1957 in an elaborate judgment in which he concurred with the findings of the learned trial Judge‑ on all the issues.

7. The learned counsel for the appellant has raised the following contentions before me: (1) That a bona fide intention on the part of the donor to make the gift could not be spelt out from the circumstances of the case, inasmuch as the donor did not get the mutation entered or attested during his lifetime; (2) that the delivery of possession which was an essential ingredient of a valid gift had not been legally proved; (3) that the gift bad been made during Marzul Maut when the donor was of unsound mind; and (4) that serious prejudice had been caused to the appellant because of the non‑appearance of his counsel before the lower appellate Court which dismissed his appeal in limine.

8. Taking the last point first, the learned counsel has not been able to produce any authority to show that the order of dismissal in limine was open to a legal objection when the Court, after having given full consideration to the issues involved had come to the conclusion that the appeal did not qualify for admission. The contention is, therefore, patently devoid of force and is over‑ruled.

9. Coming now to the contention that the gift had been made during Marzul Maut. it may be observed that the plaintiff seems to have concentrated more on the unsoundness of the donor's mind, rather than on his Marzul Maut, to which there is no specific reference in the grounds of appeal either before the lower appellate Court or before this Court. The relevant issue No. 4 in this regard is as follows: "(4) Was the donor of unsound mind at the time of making the gift, and what is its effect?" However, it was contended by the learned counsel for the appellant that since admittedly the donor was more than 80 years of age, and on his own showing in Exh. D. 1, was blind and ailing, it should; therefore, be inferred that the gift had been made during Marzul Maut, when he was not in his full senses. In the absence of any specific allegation in this regard, or an issue on this point, it does not appear to be proper to allow the learned counsel to raise this issue for the first time, particularly when no such ground was taken even in the memorandum of appeal. As such, the contention would be considered only in so far as it relates to the alleged unsoundness of the donor's mind, which is obviously a question of fact, and on which a concurrent finding has been given by the Courts below after a careful and elaborate consideration of the evidence adduced by the parties. It cannot, therefore, be permitted to be challenged in second appeal. Even otherwise, the authority relied upon by the learned counsel, namely, Shamshad Ali Shah and others v. Syed Hassan Shah and others (P L D 1964 S C 143), is not helpful to him, inasmuch as it proceeds on entirely different facts. In the case before their Lordships, the donor Mst. Hassan Bano was found to be seriously ill, at the time of the execution of the gift deed, and besides being old in age was suffering from Pneumonia and was clearly under an imminent apprehension of death and died within two hours of the registration of the deed. On the contrary, it can safely be held in the instant case that the donor did not make the gift "under the pressure of the apprehension of imminence of death". In Safi Ullah's case (P L D 1955 Lah. 191) learned Judges repelled the plea of Marzul Maut on the basis of the following quotations from Ibrahim Ghulam Arif v. Saiboo (I L R 35 Cal. 1.). "Ghulam Ariff was an elderly man, who had not led a careful life; he suffered and he knew that he suffered from degenera tion of the arteries and of the liver and he had been sharply ill. His life, therefore was an old and bad one. It is highly probable that the execution of the disputed deeds was suggested by his realising the prudence of setting his home in order, but this is the motive of all wills and specially of the wills of the old and ailing."

10. In support of his first contention that a bona fide intention for making a gift could not be spelt out from the circumstances of the case, the learned counsel mainly relied on the failure on the part of the donors to get the mutation entered and attested during the lifetime. In the first instance, a reference has already been made earlier to Ghulam Hassan v. Sarfraz Khan in which their Lordships of the Supreme Court took the view that a recital in the deed itself regarding the delivery of possession raises only a rebuttable presumption of fact. Here their Lordships did not approve of the view taken by Akhlaq Husain, J. in Safi Ullah's case when it was observed by his Lordship as follows: "The declaration, however, of a Muslim donor that he has divested himself of the ownership and possession of the gifted property and conveyed the title and delivered the possession to the donee cannot be displaced or rebutted by showing that it is false or untrue. Its untruth or falsity can be demonstrated only by a proving that in fact the physical posses sion was not delivered to the donee but was retained by the donor. But it is well established that the Muslim Law does not insist upon the delivery of physical possession; constructive possession or a change in the character of the donor's possession is deemed quite sufficient. Therefore, the moment a donor solemnly declares that he gives, or has given, the possession to the donee, the character of his possession would change in the eye of law, and thenceforth his possession of the property would be deemed to be on behalf of the donee, who would be considered juridically to be in constructive possession." These observations of Akhlaq Husain, J. were characterised by their Lordships of the Supreme Court to be "an extreme view which could not be upheld" However there can be hardly any doubt as to the proposition that the question of the delivery of possession is esssentially one of facts. It was observed by Muhammad Munir, C. J. Nadir Shah v. Lal Shah (P L D 1954 Lah. 447) as follows: "There is no warrant for the argument that a conclusion or inference to be drawn from the evidence is a matter of law the correctness of which can be called in question in second appeal. An inference as to a fact, drawn from the evidence direct or circumstantial, remains an inference of fact which cannot be questioned in second appeal but where the question is whether the facts found do or do not constitute a legal transaction of a particular kind, e.g., a sale mortgage, servitude or tort, such question is clearly one of law." Judging the present case on the standard laid down by their Lordships of the Supreme Court, the rebuttable presumption regarding the delivery of possession in the instant case does not stand rebutted according to a concurrent finding given by the two Courts below.

11. In Ghulam Hassan v. Sarfaraz Khan referred to earlier, their Lordships after reviewing considerable case law on the proposition brought out a clear distinction in the category of cases in which a genuine intention on the part of the donor to make a gift had been spelt out. These cases, namely, Raja v. Mst. Jannat (40 P R 1912), Nazir Din v. Muhammad Shah (A I R 1936 Lah. 92) and Shaikh Muhammad Mumtaz Ahmad v. Zubaida Jan (161 L R 205) were cited by the learned counsel before their Lordships in support of the contention that it was not always necessary for the donor to physically part with the possession but mere intention on his part and the donees was sufficient. In this regard the following observation of their Lordships having a direct bearing on the instant case may be reproduced with advantage: "All these cases 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."

12. In the instant case, the donee being the daughter of the donor and the wife of his resident‑son‑in‑law (Khans damad) had been living with the donor in the same house and was looking after him. In these circumstances, there is nothing to discredit the assertion made by the donor in the gift deed that in lieu of the services rendered by the donee, he had genuinely and with a bona fide intention made the gift in question. Secondly, there is nothing to indicate that the land was under the cultivation of the tenants who should have been called upon by the donor to attorn henceforth to the donee. On the contrary, the land had all along been under the Management and control of Abdul Aziz, the husband of the donee, who is a purdahnashin lady. In these circumstances, no formality of an actual delivery of possession of the suit land would be called for, and as such, Ghulam Hassan v. Sarfaraz Khan on which both sides have tried to place reliance fully supports the case of the defendant respondent.

13. The upshot of the discussion is that the gift was a perfectly valid gift, satisfying all the essential elements of a gift under the Muhammadan law, namely, the declaration by the donor intending to transfer the land to the donee by way of gift, the acceptance of the gift by or on behalf of the donee, and the delivery of possession. Furthermore, it is not hit by the invalidat ing exceptions of a gift made during death‑bed illness (Marzul Maut). In consequence, the appeal fails and is hereby dismissed with costs. K. B. A. Appeal dismissed.