Delivery of possession

2020 CLC 31 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.10Horse Breeding Scheme, 1983, Clauses 3(2) & (5)Extension of leaseFresh allotmentDelivery of possession

Petitioners were allotted lease under Horse Breeding Scheme, 1934 which was subsequently extended by Horse Breeding Scheme, 1983 for a period of 10 years from Rabi 2004 to Kharif 2014

Department, on completion of lease, refused to renew same and transferred land in favour of new lessees

Validity

Tenancy was non-renewable under clauses 3(2) and 3(5) of Horse Breeding Scheme, 1983 and if any illegal extension/renewal in lease was obtained from incompetent authority, such renewal could not be cited as condition precedent for commission of another violation of law and policy

Petitioners could not claim for getting tenancy under condition of Horse Breeding Scheme, 1934 which was already superseded through Statement of Conditions/Scheme dated 09-08-1983

Order in question and resumption of stud land did not suffer from any jurisdictional defect

Lease period of petitioners had already expired and suit land was allotted on recommendations of District Remount Officer by District Collector to different persons who had already got possession of land before institution of petitions

High Court declined to interfere in order passed by department as same fell under Horse Breeding Scheme, 1983 and observed that there was no need to discuss clause 16 of Horse Breeding Conditions, 1934

Constitutional petition was dismissed in circumstances.

2018 CLC 1838 KARACHI-HIGH-COURT-SINDH Judicial Precedent

GiftGift to family memberDelivery of possessionOvert actScope

Islamic Law, in order to make a valid gift required donor to perform any of the overt acts to disassociate himself from the property in order to let the surviving legal heirs know that the property would solely rest with the donee.

2018 CLC 1838 KARACHI-HIGH-COURT-SINDH Judicial Precedent

GiftValid giftRequisitesDelivery of possessionOvert actScopeIn order to constitute a valid gift, there must be an offer (ijab), an acceptance (qabul) and transfer (qabza)Public depiction of ijab and qabul was not required

Pivotal requirement was the markable delivery of possession by the donor and taking of the possession by the donee.

2018 CLC 1838 KARACHI-HIGH-COURT-SINDH Judicial Precedent

GiftDelivery of possessionOvert actScopeReal test of the delivery of possession was to determine as to who reaped the benefits of the property after the gift

If the donor had not handed over the possession or if he was still reaping the benefits from the property, then the delivery conditionality was not met and gift remained invalid

Requirement of delivery of possession was so critical that gift could only take effect from the date on which possession was delivered and not from the date on which the declaration of gift was actually made

Delivery of possession was concomitant of the gift and without delivery of possession to the donee, the gift was void even if it was made through a registered document.

2017 CLCN 57 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

GiftEssential ingredientsDelivery of possession

Gift by a Muslim would be complete, if three necessary and inseparable ingredients were proved (offer by donor; acceptance of offer by donee and delivery of possession under the gift)

Delivery of possession was an essential ingredient to constitute a valid gift and gift without possession was void ab initio.

2016 CLCN 68 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 42, 39 & 54Suit for declaration, cancellation of instrument and perpetual injunctionGift, validity ofDelivery of possessionRequirementDonor being illiterate personProof

Plaintiff filed suit claiming that he was owner-in-possession of suit land and defendant, his brother, had fraudulently got transferred same in name of his minor son by way of invalid gift

Both trial court and appellate court dismissed the suit

Validity

Plaintiff had not examined any witness in support of his case and confined himself to his own testimony

Defendant witnesses deposed that father of donee had undertaken that plaintiff would remain in possession of suit land and continue to cultivate the same

Party was bound by evidence of witness produced by it

As per statements of defendant witnesses, possession was never delivered to defendants, donee or his father

Delivery of possession was most important constituent for a valid gift

Plaintiff-donor was illiterate person, which fact was also borne out from his thumb impression on mutation of gift

Defendants had failed to prove delivery of possession under alleged gift

Findings of courts below, which were not in consonance with record or which were recorded in disregard to law, were not sacrosanct

High Court, setting aside impugned judgments and decrees of courts below, declared gift as invalid, void and ineffective upon rights of plaintiff

Revision petition was allowed in circumstances.

2015 MLD 296 PESHAWAR-HIGH-COURT Judicial Precedent

GiftDelivery of possessionExemptionScopeUnregistered gift deedEffect/validity

In case of gift from parents to minors, or husband to wife or from father in law to daughter-in-law, requirement of delivery of possession could be dispensed with

Gift in question was neither challenged by the donor nor his widow but by a third party

Valid gift could be effected even orally and through an unregistered instrument

Under Islamic law, written instrument (for gift) was not the requirement of law

Gift deed was not compulsorily registerable document

Written instrument in any case would not create a gift but was merely evidence of the gift and as such would not require registration

Impugned judgments did not suffer any illegality

Revision was dismissed.