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2007 SCMR 614

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Jamshed Ali, JJ

MUHAMMAD AMIR and others----Appellants

Versus

Mst. BEEVI and others----Respondents

Civil Appeal No.1654 of 2003, decided on 30th October, 2006.

(On appeal from the order, dated 28-11-2002 passed by Lahore High Court,
Lahore in C.R. No.1528 of 1998).

(a) Specific Relief Act (I of 1877)---

----S.42---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was


granted by Supreme Court to consider; whether Lower Appellate Court and
High Court had committed gross error of law by reversing well-considered
findings of Trial Court and in doing so, they had misread and ignored material
piece of evidence.

(b) Specific Relief Act (I of 1877)---

----S. 42---Gift---Onus to prove---Donor enjoying usufruct of gifted land---Donor


gifted suit-land to his nephew, almost 24 years before his death---Plaintiffs
assailed the gift being a result of fraud and forgery and asserted that donor had
been enjoying the usufruct of suit-land during his life-time---Trial Court
dismissed the suit but Lower Appellate Court setting aside the judgment and
decree passed by Trial Court, decreed the suit---Judgment and decree passed by
Lower Appellate Court was maintained by High Court in exercise of revisional
jurisdiction---Validity---If during his lifetime, donor was enjoying usufruct of
land in dispute, it was not unusual nor it detracted from completeness of the gift
in any manner---Plaintiffs in their plaint had never raised the plea that gift was
bad for non-delivery of possession---Gift made in favour of defendant could not
be condemned on the basis of plea of enjoying usufruct of suit-land by donor---
Tenant on the suit-land stated that he had been paying produce to donee,
therefore, findings of two Courts that gift was not complete, was arrived at by
ignoring or misreading of material evidence---Once transaction of gift and
mutation in question were shown to have been duly proved it was for plaintiffs
to lead satisfactory evidence to establish the contention that it was an outcome of
fraud---No evidence was available in support of such plea, therefore, judgments
and decrees passed by two Courts were set aside and suit was dismissed---
Appeal was allowed.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Mutation---Presumption---


Mutation entries when incorporated in record of rights carry presumption of
truth.

Hakim Khan v. Aurangzeb and another 1979 SCMR 625 rel.

(d) Qanun-e-Shahadat (10 of 1984)---

Page No. 1 of 6
----Art.46---Previous statement of deceased---Effect---Such statement in writing,
under Art.46 of Qanun-e-Shahadat, 1984, is admissible in evidence.

(e) Islamic Law---

----Gift---Doctrine of Musha---Applicability---Making gift of share in un-


partitioned Khata---Validity---Such share can be lawfully alienated by way of gift
and doctrine of Musha is not attracted.

Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890 rel.

(f) Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Gift---Mutation


of gift, assailing of---Plea of fraud and forgery---Ignorance of owner about
mutation of gift---Owner gifted suit-land to his nephew, almost 24 years before
his death and mutation of gift was attested---Plaintiff assailed the mutation being
a result of fraud and forgery and also asserted that the owner did not have
knowledge about the mutation---Trial Court dismissed the suit but Lower
Appellate Court decreed the same---Judgment and decree passed by Lower
Appellate Court was maintained by High Court in exercise of revisional
jurisdiction---Validity---Plea that the owner did not know about disputed
mutation was not believable for the reason that land owner was required to pay a
number of government dues on each crop and it was not possible that till his
death which occurred almost 24 years after the gift, the owner remained unaware
of attestation of mutation---Tenant over suit-land stated that one year after the
gift, the donee took back the suit-land from him but after two years, it was again
given to him for cultivation and at that time consolidation had already taken
place---Consolidation had taken place during the lifetime of the owner; since in
consolidation, Wands (division of land) were made afresh, it was not possible for
a land owner not to come to know of a transaction in which his property stood
alienated in favour of somebody else-Judgments and decrees of Lower Appellate
Court as well of High Court were set aside and the suit was dismissed---Appeal
was allowed.

Ch. Khurshid Ahmed, Advocate Supreme Court for Appellants.

M. Munir Paracha, Advocate Supreme Court for Respondents.

Date of hearing: 30th October, 2006.

JUDGMENT

SYED JAMSHED ALL, J.---This appeal by leave of this Court is directed against
the order dated 28-11-2002 of the learned Lahore High Court, whereby Revision
Petition No.1528 of 1998 of the appellants was dismissed. Leave was granted by
this Court vide order dated 25-11-2003, inter alia, in the following terms:-

"Leave is granted to reappraise the evidence to determine whether the first


appellate Court and the High Court have committed gross error of law by
reversing well considered findings of the trial Court and in doing so, they have
misread and ignored the material piece of evidence."

The facts of the case are noted hereunder.

2. Lala deceased maternal uncle (Mamoon) of Amir Ali, appellant No.1, owned
land measuring 277 Kanals in unpartitioned Khatas which he orally gifted in
latter's favour on which Mutation No.1329 was attested on 31-8-1966. The
aforesaid Lala died on 1-8-1990. Mst. Beevi and Mst. Fazlan, respondents Nos.1

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and 2, the two daughters of Lala from Mst. Jallan, filed a suit assailing the said
mutation on the ground that the deceased was suffering from multiple diseases
and that the mutation in question was the outcome of fraud and forgery. The
donee, Muhammad Amir, Mst. Aisha widow of Lala and her two real daughters
namely Mst. Naziran and Mst. Manzooran (wife of Muhammad Amir), filed a
joint written statement affirming the factum of gift and denying that Lala, the
donor, was suffering from any disease.

3. The parties led evidence in support of their respective pleas. The learned trial
Court, vide judgment dated 18-12-1994, dismissed the suit. It was found that Lala
deceased had validly made gift of his land in favour of Muhammad Amir and
that the mutation was rightly attested. The suit was held to be barred by time.
The learned trial Court, in reaching this conclusion, not only relied upon the
evidence of D.W.2, Bashir, Lumberdar, of the concerned Revenue Estate, who
had identified Lala deceased before the Revenue Officer but also took into
consideration testimony of D.W.3, Gahara, a tenant in possession of the land in
dispute who had attorned to Muhammad Amir, the donee. The statements of
Muhammad Amir, D.W.1, and Bakhsha, (D.W.4), real elder brother of
Muhammad Amir, were also relied upon Exh.D.5 to D.10 Jamabandies for the
years 1966-67 to 1986-87 were also taken note of. The evidence produced by the
plaintiffs-respondents Nos.1 and 2, was also considered and it was noted that
there was hardly any evidence to prove their case.

4. Respondents Nos.1 and 2, filed an appeal before the learned District Court
which was allowed with the observation that Lala deceased had been fulfilling
all his needs from the income of the land. Therefore, delivery of possession was
not proved nor any valid gift was proved by any independent evidence and that
the mutation was not thumb-marked, or signed by Lala deceased. Bakhsha
D.W.4, was noted but he was not expressly disbelieved. Evidence of D.W.2, and
Exh.D. 5 to D.10 the Jamabandies were, however, not considered.

5. The appellants filed a revision petition before the learned High Court which
was dismissed vide the impugned order with the observations that the D.W.4
Bakhsha, was the real brother of Muhammad Amir, the donee and was thus, an
interested witness. It was not proved that Lala had appeared before the Collector
at the time of attestation of mutation and that the person identifying Lala before
the Revenue Officer was not produced. There were no signature or thumb-
impression of Lala deceased on the disputed mutation, that while the gift was
statedly made in 1966 marriage of Manzooran was solemnized with the donee in
1971. Lala lived on the income of the said land, mutation by itself was not
evidence of title and that although in the earlier suit filed by the two collaterals of
Lala, he had admitted the factum of gift but the written statement in that case
was not duly proved.

6. The learned counsel for the appellants contends that the learned High Court
misread the evidence. He particularly relied on the statements of D.W.2, D.W.3
and D.W.4 with a grievance that the learned High Court altogether omitted from
consideration the statement of D.W.2 and rejection of testimony of D.W.4 on the
ground of mere relationship, was totally arbitrary. He also contended that in the
previous suit filed by Nabi Bakhsh and Muhammad Ali, Lala deceased had
admitted having made the disputed gift and since he was dead, his statement
was admissible in evidence by virtue of Article 46 of the Qanun-e-Shahadat
Order, and could not have been excluded. He also relied on Exhs.D.5 to D.10
with the grievance that these were altogether ignored from consideration by the
learned High Court. He submits that the disputed mutation had been
implemented in six Jamabandies and therefore, presumption of truth was
attached to the entries therein. In support of his submissions, he placed reliance
on Hakim Khan v. Aurangzeb and another 1979 SCMR 625; Abdul Ahad and

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others v. Roshan Din and 36 others PLD 1979 SC 890 and Ahmad Ali and others
v. Muhammad Iqbal and another 1986 SCMR 244.

7. The learned counsel for the respondents Nos.1 and 2, defended the impugned
order. His contention is that the question whether the evidence of one party
should or should not have been believed is not a fit subject matter for
examination by this Court. He relied on the statement of D.W.1 (Appellant No.1)
to contend that the deceased Lala had been enjoying the usufruct of the gifted
land and, thus, he had no bona fide intention to make a gift. He submits that the
gift was from unpartitioned Khata and was, thus, hit by doctrine of Musha and
that the only evidence of the transaction was furnished by Bakhsha (D.W.4), real
brother of Muhammad Amir and he was rightly disbelieved by learned High
Court.

8. We have considered the submissions made by the learned counsel for the
parties. The case of Muhammad Amir was that oral gift was made in presence of
Mst. Manzooran, his wife, Mst. Naziran and Bakhsha when the latter had gone to
ask for the hand of Mst. Manzooran for the donee. They were close relatives of
the deceased and their presence in the house was not unnatural. While the
learned first appellate Court did not expressly disbelieve Bakhsha, D.W.4, the
learned High Court disbelieved him on the ground of mere relationship with
Muhammad Amir which could hardly be a ground to reject the evidence of a
natural witness. We will also like to observe that the evidence of the transaction,
as furnished by D.W.4, and Muhammad Amir appellant No. 1, was to be viewed
in the context of totality of the facts and circumstances of the case brought out on
the record.

9. The learned High Court while observing that no evidence was produced that
Lala appeared before the Collector (perhaps Assistant Collector was meant) at
the time of attestation, of the mutation ignored the evidence of D.W.2,
Lamberdar of the concerned revenue estate, who stated that he had identified
Lila deceased before the Revenue Officer before whom, the donor, had affirmed
having made the disputed gift. Omission to consider the evidence of D.W.2, by
learned High Court, in our view, had material bearing on the fate of this case.
The learned High Court observed that the donor did not sign the mutation
register. It was omitted from consideration that paragraph 7.4 of the Land Record
Manual prohibits taking of signature on the mutation sheet by the Patwari or the
Revenue Officer. Even according to section 34 of the Punjab Land Revenue Act,
1887, (which was in force on 31-8-1966 when the disputed mutation was attested)
did not require signature of the parties on the mutation sheet. The other
consideration which weighed with the learned two Courts in setting aside the
judgment of the trial Court was that the donor lived on the income of the said
land with the result that possession of the land was not delivered to the donee. It
has come on the record that Lala had no male issue, the donee lived with his
donor right from his childhood and was looking after his Mamoon, the donor.
Therefore, in the circumstances if during his lifetime, the donor was enjoying
usufruct of the land in dispute it was not unusual nor it detracted from
completeness of the gift in any manner whatsoever. Moreover, the plaintiffs in
their plaint had never raised the plea that gift was bad for non-delivery of
possession. Thus, the gift made in favour of appellant No. 1, could not be
condemned on the basis of this plea.

10. The learned first appellate Court and the learned High Court ignored from
consideration that mutation entries when incorporated in the record of rights
carry presumption of truth. In this case the entries of mutation were given effect
to in the Jamabandies of 1966-67 (Exh.D.5), 1969-70 (Exh.D.6), 1974-75 (Exh.D.7),
1978-89 (Exh.D.8), 1982-83 (Exh.D.9) and 1986-87 (Exh.D.10). the following
observations of this Court in Abdul Ahad and others v. Roshan Din and 36
others PLD 1979 SC 890, illustrate the principle.

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“When a mutation gets incorporated in Jamabandi (i.e. annual record) then as
held in Bhagwan Das v. Mangal Said (1), Jamabandi carries a presumption of
truth and the learned District Judge in the circumstances was not justified to
ignore the said Jamabandi and its corresponding supporting mutation.”

11. Another important feature of the case which escaped attention of the learned
two Courts was that Lala died on 1-8-1990, almost 24 years, after having made
the gift. No explanation whatsoever has been brought on the record as to why
Lala did not, in his lifetime, challenge the said transaction, except the submission
of the learned counsel for respondents Nos.1 and 2, before us that may be Lala
did not know about the gift. This explanation is not at all acceptable for the
reasons that one Muhammad Ali and Nabi Bakhsh, had on 26-3-1969, filed a suit
challenging the disputed gift against Lala the donor and Muhammad Amir the
donee. In this suit the donor had affirmed having made the disputed gift in
favour of the donee. The learned High Court also did not consider the said
written statement (Exh.D.2) on the ground that it ought to have been proved.
This view, we cannot subscribe in view of Article 46 of the Qanun-e-Shahadat
Order, according to which, the statement in writing was admissible in evidence
and secondly it was a document forming part of judicial record and was
exhibited without any objection. The position taken in the written statement in
the said suit was consistent with the conduct of Lala deceased by not challenging
the mutation in his lifetime. The learned two Courts also ignored from
consideration that in this suit (out of which the present litigation has arisen),
Muhammad Ainir the donee, wife of Lala, Mst. Aisha and the two daughters,
Mst. Manzooran and Mst. Naziraan had submitted a joint written statement in
which they had admitted the factum of gift. In admitting the factum of gill, Mst.
Aisha, widow of Lala, and Mst. Naziraan the (laughter of Lala were giving up
their claim to inherit the estate of Lala deceased. This admission may not be
binding on respondents Nos. l and 2, but furnished strong evidence of factum of
gift.

12. D.W.3, Gahara, who was a tenant on the land in dispute, clearly stated that he
has been paying produce to the donee Muhammad Amir. Therefore, the findings
of the learned two Courts that gift was not complete, was arrived at by ignoring
or misreading of material evidence. Once the transaction of gift and the mutation
in question were shown to have been duly proved it was for the plaintiffs-
respondents to lead satisfactory evidence to establish the contention that it was
the outcome of fraud. There was no evidence in support of this plea.

13. We have considered the submissions of the learned counsel for respondents
Nos.1 and 2, i.e., that there was no bona fide intention to make a gift, or that it
was hit by doctrine of Musha. We are not impressed because although none of
the aforesaid two pleas was raised by the respondents as they had totally denied
the gift and dubbed it as the outcome of fraud and forgery yet we will like to
observe that donor's long silence for 24 years, was a sufficient circumstance
establishing his bona fide intention to make a gift. As to the second contention
suffice it to say that a share in un-partitioned Khata could be lawfully alienated
by way of gift and the doctrine of Musha was not attracted. A similar argument
was raised in Hakim Khan v. Aurangzeb and another 1979 SCMR 625 but was
repelled with the following observations:--

“The entries in Jamabandis, as is obvious, carried a statutory presumption of


truth under section 44 of the Punjab Land Revenue Act XV of 1887 and section
52, West Pakistan Land Revenue Act XVII of 1967. As against the aforesaid bald
statements of the kind mentioned above can hardly cut any ice. In this state of
affairs the objection of invalidity of Musha gift on ground of non-delivery of
possession factually goes away as was held in Sanaullah Fakir v. Alam Fakir and

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others (1) and Sahib Dad v. Muhammad Ajaib and another (2) approving Sheikh
Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others (3)”.

14. We will like to add that the contention that the donor perhaps did not know
the mutation is, in the circumstance, not believable for the reason that a
landowner is required to pay a number of Government dues on each crop and it
is not possible that till his death which occurred after almost 24 years of the gift
Lala remained unaware of attestation of the mutation. D.W.3 had stated that after
one year after the gift Muhammad Amir had taken back the land from him but
after two years it was again given to him for cultivation and at that time
consolidation had already taken place. Thus, according to his evidence,
consolidation had taken place somewhere in 1969-70. Since in the consolidation,
wands are made afresh it is not possible for a land owner not to come to know of
a transaction in which his property stands alienated in favour of somebody else.

15. For the reasons stated above, this appeal is allowed, the judgments and
decree of the learned first appellate Court and the learned High Court are set
aside and that the learned trial Court dismissing the suit restored. No order as to
costs.

M.H./M-207/SC Appeal allowed.

Page No. 6 of 6
P L D 2007 Supreme Court 319

Present: Faqir Muhammad Khokhar, Syed Jamshed Ali and Ghulam Rabbani, JJ

Haji MUHAMMAD ALI---Petitioner

Versus

MUHAMMAD AKRAM and others---Respondents

Civil Petitions Nos.2221-L & 2222-L of 2002, decided on 12th January, 2007.

(On appeal from order dated 9-4-2002 passed by the Lahore High Court, Lahore
in C.R.Nos.137 and 121/1995).

Islamic Law---

----Gift---Doctrine of Mushaa---Applicability---Exceptions to rule of Mushaa---


Scope---Deceased owner, during her life time, gifted suit land in favour of her
daughter vide registered gift deed and mutation was also sanctioned---After the
death of donee, a son of deceased donor from her second husband assailed the
gift deed being illegal---Trial Court as well as Lower Appellate Court decreed the
suit of the son of donor but High Court in exercise of revisional jurisdiction set
aside the judgments and decrees passed by both the courts below---Plea raised
by the son of deceased donor was that gift was invalid as the land was
agricultural in nature and was divisible thus doctrine of Mushaa was not
applicable---Validity---Gift of undivided share (Mushaa) in a property capable of
division was irregular but not void---Such gift could be perfected and rendered
valid by subsequent partition and delivery to donee of the share given to him
and once possession was taken, gift become valid---Exceptions were there to the
rule of Mushaa, firstly, where the gift was made by one co-heir to another and
the other where gift was of a share in a Zamindari or Taluka---It was a gift by
mother to a daughter, who was a legal heir and was entitled to inherit property
of mother---Gift in joint holdings/Khata of agricultural land being divisible was
of the share in a Zamindari and in a Taluka, therefore, gift was valid---High
Court had rightly set aside the judgments and decrees passed by the Courts
below and decreed the suit instituted by legal heirs of deceased donee---
Judgment and decree passed by High Court was unexceptional warranting no
interference of Supreme Court---Leave to appeal was refused.

Muhammadan Law by D.F. Mulla rel.

Mian Israr-ul-Haq, Advocate Supreme Court and Mahmood A. Qureshi,


Advocate-on-Record for Petitioner (in both petitions).

Saif-ul-Maluk, Advocate Supreme Court for Respondents (in both petitions).

ORDER

GHULAM RABBANI, J.---Both these petitions seeking leave to appeal involve


identical questions of law and facts and are disposed of by this single order.

2. Late Noor Nishan was owner of land measuring 19 Kanals and 3 Marlas in
joint Khata situated in Mauza Kohla, Tehsil and District Okara. She gifted out to
her daughter Mst. Zohra Bibi (daughter from previous husband Bakhshia), the
above share of land by way of registered deed No.1798 executed on 26-5-1976.
Mutation No.272 was sanctioned on 28-6-1976 in favour of donee vide
Roznamcha Waqiati (Exh.P.6). Palpably, Mst. Zohra died thereafter. On 28-8-
1988, respondents Nos. 1 to 6, her successors-in-interest instituted suit seeking

Page No. 1 of 3
permanent injunction to restrain the petitioner Haji Muhammad Ali son of late
Mst. Noor Nishan from her second husband from transferring land in dispute till
its partition. During the pendency of the above suit, petitioner also instituted on
22-12-1988 another suit bearing No.1039 seeking declaration to the effect that the
gift in question made by Mst. Noor Nishan in favour of Mst. Zohra was illegal
and was liable to cancellation. Learned Civil Judge, Okara consolidated both the
suits and ultimately vide consolidated judgment and decree dated 31-7-1991,
dismissed the suits of the respondents Nos. 1-6 and decreed the suit of petitioner.
Respondents' appeals bearing Nos.430 and 431-ADJ/91 preferred thereagainst
were also dismissed by learned Additional District Judge, Okara vide his
consolidated judgment dated 28-11-1994. Feeling aggrieved, respondents Nos. 1
to 6 made two separate Revision Applications bearing Nos. 137 and 121 of 1995.
The same have been accepted and the judgments/decrees of two Courts below
set aside vide judgment and decree dated 9-4-2002 respectively passed by
learned Single Judge of Lahore High Court, Lahore, impugned herein.

3. Mian Israr-ul- Haq, Advocate Supreme Court, learned counsel for the
petitioners contended that the gift by late Mst. Noor Nishan in favour of donee
qua the land in question jointly held was invalid since the requisite ingredient
viz. delivery of possession, necessary to complete the gift, was absent. To
support his contentions, learned counsel referred to paragraphs 158 to 160 of the
Muhammadan Law by D.F. Mulla. Learned counsel, next, argued that learned
Trial Court rightly decreed the suit of petitioner and dismissed the suit of
respondents Nos. 1 to 6 by holding that since the land being agricultural was
divisible and the third ingredient such, as delivery of possession was missing;
doctrine of mushaa in the instant case was not applicable and the gift was not
valid. He submitted that learned Appellate Court was, therefore, justified in
affirming the above view and dismissing the appeals of respondents while
learned Single Judge of Lahore High Court misconceived the legal position and
wrongly held that the gift was valid.

4. On the other hand, Mr. Saif-ul-Maluk, Advocate, Supreme Court learned


counsel for the respondents refuted the above submissions and supported the
impugned judgment of the High Court. He contended that learned Single Judge
of High Court passed the impugned judgment/order on correct appreciation of
law and the material available before him. He, next, submitted that paragraphs
158 to 160 of Muhammadan Law by D.F. Mulla referred to by Mr. Haque were
not supportive to the plea taken by petitioners' side and prayed that the petitions
be dismissed.

5. We have given due attention to oral submissions of both the learned counsel
for parties and with their assistance, we have gone through the available record.
The ownership and the registered gift deed qua the suit land are not disputed.
The gift was, however, challenged on the sole ground that since there was no
delivery of possession of the land in joint holding, the same was hit by
paragraphs 158 to 160 of Muhammadan Law by D.F. Mulla. The same are
reproduced as follows:-

"158. Mushaa defined.---Mushaa is an undivided share in property either


movable or immovable.

159. Gift of mushaa where property indivisible.-- A valid gift may be made of an
undivided share [mushaaj in property which is not capable of partition.

160. Gift of mushaa where property divisible.---A gift of an undivided share


(mushaa) in property which is capable of division is irregular (fasid), but not
void (batil). The gift being irregular, and not void, it may be perfected and
rendered valid by subsequent partition and delivery to the donee of the share
given to him. If possession is once taken gift is validated.

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Exceptions.--A gift of an undivided share (mushaa), though it be a share on
property capable of division, is valid from the moment of the gift, even if the
share is not divided off and delivered to the donee, in the following cases:

(1) where the gift is made by one co-heir to another;

(2) where the gift is of a share in a zemindari or taluka;

(3) where the gift is of a share in freehold property in a large commercial town;

(4) where the gift is of shares in a land company.

6. Perusal of the above provision of law reflects that a gift of undivided share
(mushaa) in a property which is capable of division is irregular, but not void.
However, the same may be perfected and rendered valid by subsequent partition
and delivery to the donee of the A share given to him and once possession is
taken the gift is valid. Notwithstanding the aforesaid, there are exceptions to that
rule as noted supra, firstly, where the gift is made by one co-heir to another and
the other where the gift is of a share in a zemindari or taluka. In the instant case
the admitted fact is that it is a gift by mother to a daughter.

Needless to say that a mother is a legal heir and is entitled to inherit the property
of a daughter, like Mst. Zohra in this case, to the extent of 1/6th as described in
Table of Shares--Sunni Law, available in Muhammadan Law by D.F. Mulla. The
gift of 19 Kanals and 3 marlas in joint holding/khatas of agricultural land
measuring about 561 kanals, being divisible as mentioned by Civil Judge Okara,
is of the share in the zemindari and in a Taluka (Tehsil). Therefore in our opinion
the gift in question seen in the light of above provision of a law was valid.

7. Learned Single Judge of Lahore High Court, Lahore, therefore, rightly set aside
the judgments and decrees passed by both the Courts below and decreed the suit
instituted by respondents Nos. 1 to 6 and dismissed the suit of petitioner under
the impugned judgment and order which are simply correct and un-exceptional
warranting no interference.

8. For the fore going reasons, these petitions fail and are dismissed accordingly.
Leave refused.

M.H./M-9/S Petition dismissed.

Page No. 3 of 3
2006 C L C 842

[Lahore]

Before Sardar Muhammad Aslam, J

Mst. FATEH BEGUM through Special Attorney----Petitioner

Versus

GHULAM SARWAR through L.Rs.----Respondent

Civil Revision No.252-D of 1998, heard on 21st December, 2004.

(a) Civil Procedure Code (V of 1908)---

----S. 11---Qanun-e-Shahadat (10 of 1984), Art.114---Dismissal of first suit up to


Supreme Court---Second suit challenging validity of same gift on same
allegation---Plaintiff's plea was that he was not bound by decision in first suit
filed by another person as his next friend branding him a person of unsound
mind---Validity---Plaintiff in earlier suit had stated to be of sound mind and
admitted making of gift without coercion---Institution of second suit was earlier
than decision of Supreme Court rendered in plaintiff's petition arising out of his
first suit, but his counsel had not disclosed pendency of second suit before
Supreme Court---Plaintiff could not turn round to assert such plea as he was
estopped by his words and conduct---Second suit was dismissed in
circumstances.

(b) Islamic Law---

----Gift of Musha in favour of an existing co-sharer---Delivery of possession---


Donee co-sharer in possession would not be obliged to seek possession of gifted
land---Principles.

According to Register Haqdaran Zamin, donor was not the sole owner of suit-
land. Donee was also one of the co-sharers in suit-land even before making of gift
in his favour. Donee being co-sharer in possession was not obliged to seek
possession of suit-land. A co-sharer in possession of any portion of land would
be deemed to be in possession of each inch of the property jointly owned by the
parties.

(c) Islamic Law---

----Gift---Allegation of securing gift deed through coercion---Nonappearance of


donor in witness-box though living a healthy life---Effect---Onus to prove such
facts would lie on donor---Inference would be drawn against donor for his non-
appearance in wiriness-box---Objection was overruled in circumstances.

Muhammad Afzal Wahla for Petitioner.

Mehdi Khan Chowhan for Respondents.

Date of hearing: 21st December, 2004.

JUDGMENT

SARDAR MUHAMMAD ASLAM, J.---The petitioner in this civil revision is


defendant in a suit filed by the respondent/plaintiff for declaration in respect of
the land fully detailed and described in the head note of the plaint with the

Page No. 1 of 4
averments that the plaintiff was married with defendant's daughter which ended
in divorce at the instance of the defendant and her sons. Relations between them
were strained. The plaintiff was kept under duress, detained and was made to
execute registered gift deed in respect of the suit-land on 28-1-1991. He claimed
that the gift deed was liable to be cancelled on account of its execution without
his consent and for non-delivery of possession; the suit property was divisible
and, thus, the gift could not have been made without its partition. It was stated
that Shah Muhammad son of Mian Muhammad had earlier filed a suit on his
behalf as next friend, branding him as a person of unsound mind. Hence, he was
not bound by the result in the said suit. The defendant entered appearance and
filed written statement. Issues were framed. Evidence was produced. Suit was
dismissed on 9-10-1997. Appeal was allowed and the suit was decreed on 3-2-
1998 which judgment is being assailed.

2. The learned counsel for the petitioner contends that the plaintiff made a
statement of his own accord firstly, at the time of attestation of mutation and
secondly before the trial Court which statement was held to have been made by
him before this Court as well as before the Honourable Supreme Court of
Pakistan (as contained in the judgment of Honourable Supreme Court of
Pakistan Exh.D.6).

3. Conversely, the learned counsel for the respondent-plaintiff, in opposition,


supported the judgment of the learned Appellate Court and argued that the
judgment of the Honourable Supreme Court of Pakistan (Exh.D.6) has no bearing
qua his right in the suit-land; gift was bad for non-delivery of physical
possession; gift was not proved as required under Article 79 of Qanun-e-
Shahadat Order, 1984; and that the gift was obtained per force which has been
revoked by him.

4. Heard. Record perused.

5. Muhammad Akram was examined as P.W. He stated that he was informed by


the plaintiff that the land in dispute was obtained by way of fraud and under life
threats. In cross-examination, he admitted that a case for abduction of Sarwar
was registered against Mian Arif and Nawaz including two other persons.
Muhammad Hussain and Hafiz Shah Muhammad were also named in the said
case. It was false case. He conceded that Muhammad Hussain has filed a suit for
specific performance of an agreement alleged to have been made in his favour in
respect of the disputed property. He tendered in evidence copy of Khasra
Girdawari from Rabee, 1996 to Kharif 1996 Exh.P.1, copy of Record of Rights for
the year 1988-89, Exh.P.2, copy of Record of Rights for the year 1992-93 Exh.P.3,
copy of Khasra Girdawari from Kharif, 1989 to Rabee, 1994 Exh.P.4, copy of
Khasra Girdawari for Kharif, 1994 Exh.P.5, copy of Khasra Girdawari for Rabee,
1995 Exh.P.6, and copy of gift deed Exh.P.7. In rebuttal, Munir Hussain Shah was
examined. He claimed to be the attorney of the plaintiff and produced power of
attorney Exh.P.8. He stated that the gift was obtained under life threats and
duress. This P.W. is statedly "Peer" and plaintiff is one of his "Aqeedatmand". He
was appointed attorney for the first time on 16-7-1997 and is unaware of what
happened earlier to this. Sarwar plaintiff disclosed issuance of threats of life to
him. P.W.3 is Muhammad Sharif. He is Lamberdar of Deh. He stated that he is
receiving land revenue from Sarwar. He stated that Fateh Begum petitioner-
defendant is owner in this Khata, in addition to the land given to her in gift. In
cross-examination, he admitted that he was witness in a suit instituted by
Muhammad Hussain. Mutation has been attested in favour of Mst. Fateh Begum.
He admits that the plaintiff was living with the defendant who was his real
paternal-aunt. Muhammad Sharif son of Haji Muhammad examined as P.W.3.
Another Muhammad Sharif son of Akbar Ali has been examined as P.W.3. This
appears to be an inadvertent mistake. He stated that Muhammad Khan P.W. is
the person of ill character. He had stopped him from appearing as witness.

Page No. 2 of 4
Sarwar is gentle natured person. Asghar is P.W.4 he stated that 6/7 years before,
he had seen plaintiff in the house of the defendant. He also witnessed the arms
lying on cot. In cross-examination, he stated that the said Ghulam Sarwar lived
in the house of Fateh Begum even two and half years after he had seen him.

6. Muhammad son of Karam Din appeared as D.W.1. He stated that the property
in dispute was transferred by way of gift deed Exh.D.1 to the defendant. He is
one of the marginal witness. Sadaq was another witness. He had thumb-marked
on the gift deed. It was authored by Ch. Basharat Ahmad, Advocate at the
instance of Sarwar and Mst. Fateh Begum plaintiff and defendant respectively.
The gift was made by the plaintiff in favour, of the defendant. She had accepted
the gift. It was read over. He appeared before the Tehsildar. He stated before the
Tehsildar of having transferred the property by way of gift. He stated that Sadaq
was Lamberdar of the village. He was cultivating the land of Sarwar as tenant.
Ch. Basharat Ahmad, Advocate appeared as D.W.2. He stated that he authored
the gift deed at the instance of Ghulam Sarwar donor. It was read over to him,
who thumb-marked the same in token of its correctness. Sadaq also signed the
same. Ashraf D.W.3 is son of Mst. Fateh Begum, defendant. He is also her
attorney. He stated that the gift deed was executed in their favour after 15/16
years of divorce pronounced on his sister by the plaintiff. Documentary evidence
in the form of judgments and decrees Exh.D.3 to Exh.D.6, were produced.

7. Plaintiff's suit against the petitioner in respect of the same suit property
challenging the same gift deed dated 28-1-1991, filed through next friend Hafiz
Shah Muhammad was decided by the learned trial Court, wherein Ghulam
Sarwar made a statement that he of his own accord transferred the disputed
property in favour of the defendant. His suit was dismissed on recording of this
statement. Notwithstanding the dismissal of the suit on his own statement an
appeal was filed. The plaintiff appeared before the learned Additional District
Judge on 17-6-1992 and stated that he had not preferred this appeal, which was
dismissed. Another application for review of this order passed in appeal was
preferred. It was allowed and case was remanded. This order in review was
challenged before this Court. It was allowed and the order of remand was set at
naught. The order of dismissal passed by the Appellate Court in appeal
remained in the field. The plaintiff challenged order of this Court in C.P.S.L.A.
No.117-L of 1994, which was dismissed on 19-6-1995. Paragraph No.5 is relevant
and is reproduced for facility of reference:--

"It is difficult to accept the contention of the learned counsel. The learned Single
Judge who heard the revision petition examined Ghulam Sarwar and found that
he was of perfectly sound mind. The allegation that he was under the influence
of Mst. Fateh Begum when he made the statements regarding withdrawal of the
suit and appeal before the Civil Judge and the Additional District Judge are
without any foundation. It is to be noticed that on both occasions his counsel
(two different gentlemen) were present in Court. The learned Single Judge was,
therefore, right in setting aside the order of the learned District Judge. Leave is
accordingly refused."

Exh.D.6, the judgment of the Honourable Supreme Court of Pakistan, had


clinched the controversy. The plaintiff himself appeared not only before the trial
Court but also before this Court and stated that he was of sound mind. He stated
before the trial Court that he transferred the property in favour of the defendant
of his own accord without any coercion.

8. The plaint in this suit was presented on 27-1-1994. The civil petition for leave
to appeal was decided on 19-6-1995. No mention was made by the learned
counsel appearing for Ghulam Sarwar, plaintiff before the Honourable Supreme
Court of Pakistan of institution of the present suit.

Page No. 3 of 4
9. The plaintiff, therefore, cannot turn round later on to claim, that C he is not
bound by result of the proceedings taken in the earlier suit. He is estopped by his
words and conduct.

10. The contention of the learned counsel for the respondent that the gift is bad
by non-delivery of physical possession as well as on the basis of "Musho" is
devoid of any force for the reason that Exh.P.3; Register Haqdaran Zamin clearly
indicates that the plaintiff was not the sole owner in this land. The defendant was
also one of the co-sharers in the suit-land, even before making of gift in her
favour. She being co-sharer in possession was not obliged to seek possession of
the suit property. A co-sharer in possession of any portion of the suit property is
deemed to be in possession of each inch of the property jointly owned by the
parties.

11. As far as contention of the learned counsel for the respondent that the
provision of Article 79 of Qanun-e-Shahadat Order, 1984 has not been kept in
view as the gift deed was not proved through two attesting witnesses are
concerned, suffice to say that the author of the gift deed Mr. Muhammad
Basharat Ch. Advocate appeared as D.W.2. Muhammad Khan son of Karam Dad
appeared as D.W.I. Both stated that Ghulam Sarwar plaintiff thumb-marked it in
their presence and it was authored at his instance. Even otherwise, the case of the
plaintiff is not that he had not executed the gift deed but that it was secured
through coercion, on issuance of threats of life. In that eventuality, the onus lay
upon him to prove the above fact. He has elected not to appear in the witness-
box in spite of the fact that he was living a healthy life. Inference is to be drawn
against him. Had he appeared before the Court he would have been confronted
with his statement made before the trial Court. This contention of the learned
counsel for the respondent is also without force and, is, thus, rejected.

12. The last contention on respondent's behalf that the gift deed was obtained per
force is not substantiated by evidence on record. P.W. and P.W.2 stated that it
was plaintiff who told them that the gift was obtained from him by exerting
undue pressure. P.W.3 Muhammad Sharif son of Akbar Ali and P.W.3
Muhammad Sharif son of Haji Muhammad stated nothing so far this controversy
is concerned. P.W.4's statement of having seen the plaintiff in the house of the
defendant 6/7 years before, when arms were lying on the cot, renders no
assistance to the plaintiff's case. This contention of the learned counsel, therefore,
is not entertainable and is hereby rejected.

13. In view of what has been discussed above, this civil revision is allowed, the
impugned judgment and decree passed by the Appellate Court is set aside and
that of trial Court is restored.

S.A.K./F-114/L Revision accepted

Page No. 4 of 4
P L D 2005 Lahore 286

Before Muhammad Sayeed Akhtar, J

SHER MUHAMMAD and 7 others---Petitioners

Versus

Mst. SUGHRAN BIBI through Representatives and another---Respondents

Civil Revision No. 2001 of 1997, and Regular Second Appeal No.528 of 1980,
heard on 27th January, 2005.

(a) Specific Relief Act (I of 1877)---

----Ss. 42 & 55---Suit for declaration to the effect that plaintiffs were owners-in-
possession of a shop through a registered sale-deed and that registered gift-deed
regarding that shop was illegal and ineffective upon the rights of the plaintiffs
and was liable to be cancelled---Plaintiffs further stated that one SK was the
owner of the shop, and after his death 1/4th share devolved upon his widow
who sold her share to the plaintiffs vide registered sale-deed and the gift-deed
was illegal on the ground that the same was made during the pendency of the
suit and that the possession of the shop had not been delivered and, there was no
declaration and acceptance of the said gift---Validity---Held, plaintiffs had no
locus standi to challenge the gift on the ground that the possession of the
property was not delivered as it was for the donor to challenge the gift and not
for the tenant or the co-sharer--Donor/defendant had accepted the gift-deed and
had reiterated the same in her written statement and in her testimony---Alleged
sale of share in shop in favour of the plaintiffs by a person who was no more its
owner, even if made by the defendant, in the presence of gift-deed, was void
Principles.

Muhamedan Law, para.1 52(2), Chap. XI by D.F. Mullah ref.

(b) Islamic law---

----Gift---Delivery of possession of the subject-matter of gift to the donee, either


actually or constructively is necessary to complete a gift--Donor must divest
herself/himself completely of all the ownership and dominion over the subject of
the gift.

(c) Islamic law--

---- Gift-Property gifted in possession of tenant---Gift of immovable property


which was in the occupation of tenants could be completed by a request by the
donor to the tenants to attorn to the donee or by delivery of the title deed or by
mutation in the Revenue Register or the landlord's Sherista.

Muhammadan Law, by D.F. Mullah, para. 152(2), Chap. XI ref.

(d) Islamic law---

----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.

Page No. 1 of 3
Date of hearing: 27th January, 2005.

JUDGMENT

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

Page No. 2 of 3
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.

Page No. 3 of 3
1995 M L D 1606

[Peshawar]

Before Mrs. Khalida Rashid, J

ZAIR WALI and others Petitioners

versus

Mst. RANGINA and others Respondents

Civil Revision No.91 of 1988, decided on 13th October, 1994.

(a) Muhammadan Law

---Gift---Share in "Shamilat" (Musha) can be gifted --- Hujra having been


constructed on "Shamilat", share therein, could be validly gifted.

PLD 1994 SC 653 rel.

AIR 1934 Pesh. 57; PLD 1993 Kar. 805 and Civil Judicial Record (1901-1924) Case
No.22, p. 80 ref.

(b) Transfer of Property Act (IV of 1882)---

---S.123---Provision of S.123, Transfer of Property Act---Applicability to gift


under Muhammadan Law---Essentials to validity of gift---Provision of S.123,
Transfer of Property Act, 1882. whereby gift of immovable property must be
effected by registered deed was not applicable to gifts under Muhammadan
Law---Gift under Muhammadan Law, in order to be valid, would require
declaration of gift by donor; acceptance of gift, express or implied by or on behalf
of donee and delivery of possession of subject of gift by donor to donee: ----
[Muhammadan Law].

Sh. Wazir Muhammad for Petitioners.

Taslim Hussain for Respondents.

Date of hearing: 29th September, 1994.

JUDGMENT

This revision is directed against the judgment and decree of the learned
Additional District Judge-I, Swabi, dated 14-11-1987, whereby the appeal filed by
petitioners herein was dismissed with costs and judgment and decree of the
learned trial Court, dated 27-7-1983 were maintained.

2. Concise facts relevant for the disposal of this revision are that the
petitioners/plaintiffs instituted a representative suit under Order 1, Rule 8,
C.P.C. for a declaration to the effect that suit Hujra constructed over an area
measuring 8 Marlas known as "Hujra Tall Balar Khel" was owned and possessed
by the people of Tall Balar Khel since time immemorial and respondents-
defendants Nos.16 to 18 were not competent to gift their share in Hujra in favour
of respondents-defendants Nos.1 to 15 who were residents of Tall Zakria Khel.
The petitioners-plaintiffs also prayed for the issuance of a permanent injunction
restraining defendants Nos.1 to 15 from the use of `Hujra' in question. The suit
was contested by the respondents-defendants. The pleadings of. the parties were
reduced into the following issues:---

Page No. 1 of 5
(1) Whether the suit is res judicata?

(2) Whether the plaintiffs are estopped to bring the present suit?

(3) Whether the suit is bad in the present form?

(4) Whether the suit is bad for non-joinder of necessary parties?

(5) Whether the suit is bad for conflicting and contradicting reliefs?

(6) Whether the plaintiffs have validly instituted the present representative suit
under Order 1, Rules 87.

(7) Whether suit Hujra is owned and possessed by the owners of Tal Balar Khel
and defendants 1 to 15 have got no right to use the said Hujra.

(8) Whether the order of EA.C. Swabi dated 2-9-1978 and that of Sessions Court,
dated 15-6-1980 during proceeding under section 145, Cr.P.C. are wrong, illegal
and not binding on the plaintiffs?

(9) Whether the unregistered deed if any, executed by defendants 16 - 18 in


favour of defendants is admissible in evidence?

(10) Whether no possession has been delivered under the alleged gift deed, if so
to what effect?

(11) Whether possession of an insignificant area in the suit Hujra cannot be


transferred in case gift deed is held to be valid?

(12) Whether alleged gift deed has not been acted upon and the defendants Nos.1
to 15 have never used the suit Hujra, if so to what effect?

(13) Whether defendents 1 to 15 are bent upon using the suit Hujra illegally and
as such are liable to be restrained from using it through permanent injunction?

(14) Whether the plaintiffs have a cause of action?

(15) Whether the plaintiffs are entitled to the decree prayed for?

(16) Relief.

The evidence of the parties as they wished to produce in respect of their claims
was recorded. The learned trial Court vide its judgment dated 27-7-1983
dismissed the suit primarily on the ground that gift of their share by respondents
Nos.16 to 18 in suit Hujra in favour of respondents-defendants 1 to 15 was valid
and respondents Nos.1 to 15 had every right to use the said Hujra. On appeal the
learned Additional District Judge, Swabi, maintaining the order of the Court
below dismissed the appeal by his order, dated 14-11-1987 under the same
grounds. Feeling aggrieved, the petitioners plaintiffs have come up in revision to
this Court.

3. I have heard the arguments in depth addressed by Sheikh Wazir Muhammad,


Advocate, for the petitioners and Mr. Tasleem Hussain, counsel for the
respondents and examined the record of the case thoroughly.

The learned counsel for the petitioners argued that Hujra in question belonged to
the people of Tall Balar Khel who are in possession of the same for the last 120
years and gift on the basis of deed dated 4-8-1977 of their share by respondents-

Page No. 2 of 5
defendants Nos.16 to 18 in favour of respondents-defendants Nos.1 to 15 who
are outsiders being the inhabitants of Tall Zakria Khel was illegal and, therefore,
does not confer any right upon the respondents Nos.1 to 15, the alleged donees.
He further assailed the judgment of the learned lower Courts being erroneous on
the ground that Mosque and Hujra of village Tall Balar Khel, the subject of the
gift deed, dated 4-8-1977, was impartible which could not be alienated under any
law. Regarding the gift in respect of the Mosque the learned counsel for the
petitioners placed reliance on AIR 1934 Pesh. 57 wherein it is held, "In
Muhammadan Law there cannot be any private Mosque. When once a place is
dedicated to be a Mosque, it becomes public property; it is a property of God.
Therefore, where the person in charge of such a mosque claims the property as
his private estate, he is removable under section 92." The learned counsel also
referred to PLD 1993 Kar. 805 which reads:---

"(a) Once a building was set apart as mosque and prayers were offered therein,
itself would become Waqf by use under Muhammadan Law. In such cases
property in Waqf vests in Allah and nobody can claim ownership of that
property."

4. It may be mentioned here that the learned counsel for the respondents at the
very outset submitted that respondents did not claim the ownership of the
Mosque but since it was situated inside the Hujra, therefore, the same was
mentioned in the deed dated 4-8-1977. Coming now to the question whether
Hujra is liable.to partition? Hujra in general terminology is a common sitting
guests, visitors and strangers are received, entertained and lace where
ceremonial functions are held. It is also an institution which advances religion,
commerce, health safety or otherwise beneficial to mankind and public-at-large.
Generally we come across two types of Hujras; first is family/private Hujra
which is established by the head of the family on his own account. It is
maintained and controlled by the elder of the family; and, second is `Kandi
Hujra' or community Hujra which is established by a section of the village
community headed and controlled by `Lumbardar' of the village. The learned
counsel for the petitioners is of the view that the private or family Hujra is
partible as every co-sharer of the family Hujra can ask for his share by partition
whereas Kandi or Tall Hujra being a local Parliament of Pathans is not liable to
partition as by doing so its sanctity and privacy would be violated which is
against the custom of the locality. In support of his contention the learned
counsel for the petitioners referred to Civil Judicial Record (1901 - 1924) Case
No.22 page 80, wherein C.E.F. Bunbury, Judicial Commissioner, N: W.F.P., held
as under:

"In both these suits the Munsif held that it would be inexpedient to allow
partition of a Hujra: and on appeal the Divisional Judge (Mr. Maude), upheld the
Munsif s decision, and remarked `the Hujra is an institution used by the
inhabitants' of the section of the village in which it is situated for `the common
purposes of themselves and for the entertainment of strangers, and if such an
institution were' liable to partitioned according to the whim of each `proprietor',
the essential character of the Hujra would `very soon be utterly destroyed'"

I may mention here that question/dispute in this case is not regarding the
partition of Hujra but only alienation or transfer of share by the donors in favour
of the donees through gift. Question which requires to be determined is whether
defendants Nos.16 to 18, admitted share-holders in Tall Hujra Balar Khel, could
transfer their respective shares in the suit property through gift deed in favour of
defendants Nos.1 to 15 who are inhabitants of an adjacent `Tall' of the same
village. (`Tall' in the rural area connotes as `Mohallah' in the urban area).
Respondents-defendants Nos.16 to 18 had no male issue, therefore, they
transferred their shares in the Hujra in dispute which, according to them, was

Page No. 3 of 5
constructed by their grandfather, to their daughters and their-in-laws, i.e.,
respondents Nos.1 to 15 who are the inhabitants of adjacent `Tall' Zakria Khel of
the same village who remained no more strangers as matrimonial wedlock vow
them together and also entitled them to sh inheritance. Moreover, Hujra in
dispute is constructed on the village `Shamilat' which means joint property.
Under Muhammadan Law share in the `Shamilat' (Musha) can be gifted. In this
respect I am fortified by PLD 1994 SC 653 wherein it is observed, "A gift of land
made jointly to two or more persons in specified shares is valid. Such gift may be
irregular but not void".

5. I would now revert to next contention that gift deed was not registered,
therefore, not admissible in evidence. Under the provisions of section 123 of the
Transfer of Property Act, 1882, gift of immovable property must be effected by a
registered instrument signed by the donor and attested by two witnesses. But
these provisions (section 123) do . not apply to Muhammadan gifts. A gift under
Muhammadan Law is to be effected in the manner prescribed by section 149 of
Muhammadan Law which reads as follows:---

"149. The three essentials of a gift.---It is essential to the validity of a gift that
there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift,
express or implied, by or on behalf of the donee, and (3) delivery of possession of
the subject of the gift by the donor to the donee as mentioned in section 150. If
these conditions are complied with, the gift is complete (1)."

It is, therefore, clearly enunciated that if the formalities as required under the
Muhammadan Law are complied with the gift is complete and valid, The gift
deed Exh.DW.2/1 has been duly proved by marginal witnesses P.W. Shah
Bahadur and D.W. Mir Muhammad. It may be mentioned here that a complaint
under section 145, Cr.P.C. was filed by respondents-defendants in the Court of
MIC. After recording the evidence of the parties the learned trial Magistrate
apprehending breach of peace attached the Hujra under section 146, Cr.P.C.
However, the parties compromised before the learned Additional Sessions
Judge, Swabi, and they were allowed to use the Hujra till settlement of its title by
the competent Court.

6. Looking at the positive and social aspect of the issue, Hujra, as mentioned
above, is a place commonly used by the section of community or villagers to sit
together for the purpose of social and ceremonial gatherings and thus including
the inhabitants from, adjacent `Tall' will help m strengthening the social and
cultural bondage among themselves. The act of social gathering always enhances
the spirit of care and affection for each other. Not only the gift was genuine in
legal terms but it will also have far reaching benefits for the generations to come.
In a Muslim society where global brotherhood is preached for, putting
restrictions between `Talls' is not adorned especially in the case of
Mosque/Hujra which are considered places of solidarity, protection and
sanctuary.

In view of the above discussion I see no justification for interference in the


findings of the learned lower Courts below. The revision being without any
merits is dismissed accordingly. No order as to costs.

AA./1796/P Revision dismissed.

Page No. 4 of 5
1 990 C L C 533

[Lahore

Before Gul Zarin Kiani and Muhammad Sharif, JJ

MUHAMMAD SADIQ and 2 others---Appellants

versus

BARKAT ALI and 4 others---Respondents

Regular First Appeal No.15/BWP of 1983 and Civil Revisions Nos.175-D and
245-D of 1984, decided on 16th December, 1989.

(a) Punjab Pre-emption Act (1 of 1913)---

---S. 4---Civil Procedure Code (V of 1908), S.96---Where the question was about
the nature of transaction as to whether it was a gift or a sale, decision would
depend upon scrutiny of evidence led by the parties---Survey of evidence, oral
and documentary would thus be necessary, more so, when Courts of fact had
differed in their conclusions.

(b) Punjab Pre-emption Act (I of 1913)--

---S. 4---Qanun-e-Shahadat (10 of 1984), Art.102---Right of pre-emption ---Nature


of transaction---Determination---Court can discover true nature of transaction
though it was disguised in different form by parties to it---Onus of proof that a
particular transaction which looked differently than what in reality it was, is
upon the pre-emptor who is not bound by its ouster from---Provisions of Qanun-
eShahadat, 1984 neither restrict nor impair the right of the pre-emptor to give
evidence for establishing true nature of transaction to show that it does not
represent the real mind of the parties or contract concluded between them--
Plaintiff has unrestricted right to prove real nature of transaction by giving direct
and circumstantial evidence and no fetter or embargo is placed upon jurisdiction
of the Court to consider and pronounce upon the true nature and kind of
transaction.

Tara Chand v. Baldeo 117 PR 1890; Gul Muhammad v. Sabz Ali Khan AIR 1919
Lah. 127 and Than Singh and others v. Nandu Kirpa Jat and others AIR 1978
Punj. and Har. 94 ref.

(c) Punjab Pre-emption Act (1 of 1913)---

---S. 4---Civil Procedure Code (V of 1908), S.100---Right of pre-emption ---Nature


of transaction---Second appeal---Scope---Plaintiffs right to establish that
transaction is in reality a sale---Where Courts below had arrived at a finding that
a certain transaction was a sale, exchange, or gift, as the case may be, such
finding of fact was not open to scrutiny in the second appeal.

It is open to the plaintiff (pre-emptor) to establish that the transaction in suit is in


reality a sale and not an exchange or gift and Courts can enquire into the true
nature of such a transaction. Under the Evidence Act now Oanun-e-Shahadat
also, there is no to lead evidence to prove certain transaction as a sale;

The vendor can defeat the right of the pre-emptor by all legitimate means;

1f two views are possible, then the one which defeats the right of the pre emptor
has to be accepted; and

Page No. 1 of 11
If the Courts below have arrived at a finding that a certain transaction is a sale,
exchange or gift, as the case may be, then this finding is not open to scrutiny in
the second appeal.

(d) Punjab Pre-emption Act (I of 1913)—

---S. 4, Explanation---Right of pre-emption ---Contention that petitioner could not


attack the validity of gift on ground of non-delivery of possession for proving it
to be a sale and thus restricting his right to give required evidence as also the
power of the Court to decide the nature of transaction was absolutely untenable
---Ahmad Yar and another v. Muhammad Aslam 1981 CLC 527 and Sardar Khan
v. Ghulam Sarwar PLD 1982 Azad J&K 128 dissented from].

Tara Chand v. Baldeo 177 PR 1890; Gul Muhammad v. Sabz Ali Khan AIR 1919
Lah. 127 and Than Singh and others v. Nandu Kirpa Jat and others AIR 1978
Punj. and Har. 94 ref.

Ahmad Yar and another v. Muhammad Aslam 1981 CLC 527 and Sardar Khan v.
Ghulam Sarwar PLD 1982 Azad J&K 128 dissented from.

Para.150 of Mahomedan Law by D.F. Mulla, para. 150 distinguished.

(e) Punjab Pre-emption Act (1 of 1913)---

---S. 4---Right of pre-emption --- Nature of transaction---Determination---Gift---


Pre-emptor cannot be precluded to attack validity of gift on ground of
nondelivery-of possession---If pre-emptor was once precluded to challege
validity on ground of non-delivery of possession a fortiori, he could not be
permitted to challenge its validity or the non-fulfilment of its other two essentials
i.e. declaration by the donor and the acceptance by the donee --- Neither
principle nor authority could permit such a distinction.

(f) Punjab Pre-emption Act (1 of 1913)---

---5. 4---Qanun-e-Shahadat (10 of 1984), Art.102---Right of pre-emption---


Character of transaction --- Pre-emptor, subject to rules of relevance and
admissibility laid in Oanun-e-Shahadat was not precluded from giving evidence
of his choice to prove the true character of the alienation---Right of plaintiff to
give evidence of his choice to prove true nature of transaction was unrestricted
as he was free to show that the form of the transaction did not represent its true
inner self---Court was also free to remove the outer veil to discover true reality
beneath it.

(g) Punjab Pre-emption Act (I of 1913)---

---S. 4---Right of pre-emption ---Nature of transaction---Proof---Plaintiff has to


bring evidence direct or circumstantial from which it could be reasonably held
that the transaction was what the plaintiff claimed it to be---Difficulty of plaintiff
in procuring required evidence would not lessen his basic burden of proof---
Mere hearsay and incredible evidence was not sufficient to prove the nature of
transaction---When both parties had led evidence, Court must examine it and
base its decision upon it---No part of evidence could be excluded from
consideration.

(h) Punjab Pre-emption Act (I of 1913)---

---S. 4---Right of pre-emption ---Gift---Certified copy of deed of gift was


exhibited---No objection was raised to admissibility or mode of proof of gift by

Page No. 2 of 11
the opposite party---Such circumstances would preclude subsequent objection
about the manner and mode of proof of the deed.

(i) Qanun-e-Shahadat (10 of 1984)---

--Art. 129(e)---Mutation---A public document---Forgery or fabrication cannot be


presumed---All official acts are presumed to have been properly and regularly
performed.--[Mutation].

(j) Punjab Pre-emption Act (I of 1913)--

---S. 4---Right of pre-emption ---Gift---Where the clear motive behind the gift was
an unequivocal intention on part of the transferor to give a title to the transferees
which would act as a safeguard against any claim for pre-emption in respect of
other property intended to be sold, the transaction for that reason alone could
not be called sale.

Hari Singh and others v. Kallu and others AIR 1952 All. 149 ref.

(k) Muhammadan Law--

---Gift---Musha---Evidence to establish transfer of possession under gift to donee


was present---Gifted land was part of a jointly owned land---Possession required
to be given was such possession as the nature of property admitted---Musha was
not attracted to invalidate the transaction of gift which otherwise was complete
in all respects and fulfilled the essentials of a valid gift under Muslim Law.

Aurangzeb and others v. Daud Khan and others PLD 1957 (W.P.) Pesh. 85 ref.

(1) Punjab Pre-emption Act (I of 1913)---

---S. 4---Civil Procedure Code (V of 1908), Ss.1.00 & 115---Second appeal---


Revision---Right of pre-emption ---Nature of transaction ---Pre-emptor could
only create a doubt about the nature of transaction but mere doubt was not a
substitute for proof which alone was the criterion for decision of the civil cases---
Findings or, nature of transaction, whether it was a gift or a sale, being, findings
of fact and though the Courts below had differed on the kind of transaction yet
in the absence of grounds specified in Ss.100 & 115, C.P.C. it was the finding of
the lower appellate Court that shall be held binding and conclusive.

Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38; Haji Muhammad
Zaman v. Zafar Ali Khan and others PLD 1986 SC 88 and Nasir Abbas v.
Manzoor Haider Shah PLD 1989 SC 568 ref.

Ch. Ashraf Ali Bhatti for Appellants.

M.M. Bhatti for Respondents.

Dates of hearing: 5th and 6th November, 1989.

JUDGMENT

GUL ZARIN KIANI, J.-These three connected matters, two petitions for civil
revision and a first appeal which emerge from identical facts and involve a
common question of law for decision are proposed to be dealt with in a single
judgment. By deed registered on 17-2-1980, one Mukhtar Ali sold 200 kanals of
land situated in Chak No.24/A Liaqatpur to Mohammad Sadiq, Mohammad
Jamil and Jamal-ud-Din at the sale price of Rs.4,25,000. Barkat Ali, Khurshid
Ahmad, Umar Din and Sabir Ali sons of Ch. Jan Mohammad as owners of the

Page No. 3 of 11
estate claimed pre-emption in respect of the above sale and brought civil suit to
recover possession of the land sold on 6-5-1980 in the civil Court at Liaqatpur.
Price paid for the land was disputed. It was alleged that it was sold for
Rs.3,25,000 only and an exaggerated sale price was stated to have been fixed and
paid merely to stave off pre-emption. Vendees submitted their defence and
resisted the suit. It was pleaded that plaintiffs had no cause of action; that
valuation for purposes of payment of court-fee was under-assessed and
consequently, less court-fee was paid on the plaint; that plaintiffs had no
preference and vendees in the matter of ownership of land in the estate were at
par with them, gift deed dated 17-4-1980, report Rozenamcha No.402 dated 1-5-
1980 and gift Mutation No.237 sanctioned on 2-5-1980 was relied upon that;land
was purchased for Rs.4,25,000 and sale price was fixed in good faith and was
actually paid; that quality of land in dispute was improved upon with an
expenditure of Rs.20,000 which the vendees were entitled to be reimbursed.

On 5-11-1980, the trial Court settled necessary issues for determination and
postponed the suit for the evidence of parties. On 15-4-1981, plaintiffs' counsel
produced copies of sale-deed Ext.Pl, jamabandi for the suit land Ext. P2,
Jamabandi showing plaintiffs' ownership of land in the estate Ext. P3 and closed
affirmative evidence except for the statement of one of the plaintiffs to be
recorded both in affirmative and rebuttal after close of the defendants' evidence.
Vendees produced Khurshid Ahmad Patwari Chak No.18 DW.1 to prov- report
Rozenamcha No.402 of 1-5-1980 Ext. Dl, Haji Mohammad Ibrahim, Fazal
Mohammad, Mohammad Akram D.Ws 2 to 4 to establish payment of stated sale
price and improvements upon the land in suit, Mohammad Sharif DW5 to prove
donation of 2 kanals of land to the vendees vide Ext. D6 in addition to recording
statement of Haji Mohammad Sadiq D.W. 6 who deposed about donation of 2
kanals of land from Mohammad Sharif and payment of sale price. In support of
the oral evidence, copy of gift Mutation No.237 Ext.D.7 press publication Ext. D8,
an extract from crops inspection register Ext. D9 were tendered in evidence and
defence was closed on 28-10-1981. In rebuttal, Mukhtar Ali vendor P.W.1
Mohammad Hassan P.W.2 were examined on the point of actual payment of sale
price of the land in suit. Barkat Ali one of the plaintiffs as PW.3 deposed about
their preferential right of pre-emption and price paid for the land in suit. Upon
examination of the recorded evidence, the trial Court concluded that plaintiffs
had cause of action; that they had not waived their right; that valuation for
purposes of court-fee was correct; that transaction in question was pre-emptible;
that gift from Mohammad Sharif was in essence a pre-emptible sale and that two
pre-emption suits having been decreed in respect thereof, vendees were bereft of
necessary qualification to resist plaintiffs' superiority as owners of the estate; that
stated sale price of Rs.4,25,000 was actually paid and the same was the market
value of the land in suit; that improvements on the land in suit were not proved
to have been made and vendees were not entitled to claim compensation; that
there was no defect in the plaint. Consequent upon the above conclusions, pre-
emption suit was decreed on 2-3-1983 to the plaintiffs subject to their paying
Rs.4,25,000 to the vendees as sale price of the land by or before 2-51983 and in
default, it was observed that suit shall be deemed to have been dismissed with
costs. Aggrieved by judgment and decree of the trial Court, vendees have
appealed to this Court. Their appeal is registered as R.FA. 15 of 1983. As said
above, in defence to the pre-emption suit filed against them, vendees had relied
upon gift of 2 kanals of land from Mohammad Sharif which had placed them at
par with the pre-emptors in the matter of ownership of land in the revenue
estate. This transaction of gift in Mutation 237 sanctioned on 2-51980 was also
subjected to two pre-emption suits by Irshad-ud-Haq who claimed preference as
real brother of Mohammad Sharif and the other by Barkat Ali, Khurshid Ahmad,
Umar Din and Sabir Ali as owners of the estate. Latter suit was instituted on 11-
10-1980 and the former on 2-5-1981. In the plaints in both the pre-emption suits,
pre-emptors had alleged that apparent transaction of gift was a disguised sale for
Rs.2,000 intended to defeat their pre-emption. As the suits arose from a single

Page No. 4 of 11
sale, rival pre-emptors were added as defendants in each other's suit. Both suits
were consolidated for a joint trial, on 10-12-1981. Further proceedings were taken
in Civil Suit No.605/1981 brought by Irshad-ul-Haq. It may be observed that
Mohammad Sharif was also impleaded as defendant in the above pre-emption
suits. Defendants 1 to 4 (Mohammad Sharif exclusive) in a joint written
statement submitted that transaction was in fact a donation simpliciter and not a
pre-emptible sale, and, therefore, plaintiffs had no cause of action. Defendants 5
to 6 submitted that Irshad-ul-Haq's suit was collusive with the alleged donees.

Respective pleadings gave rise to following issues settled by the trial Court on
31-1-1982.

(1) Whether Suit No.605/81 is time-barred? OPD

(2) Whether Suit No.605/81 was not presented in proper court, if so, its
effect? OPD

(3) Whether Suit No.605/81 is benami and collusive with defendants 1 to 3?

(O.P. Rival Pre-emptors)

(4) Whether pre-emptors in Suit No.585/81 have waived their right of pre
emption?O.P.D 1 to 3.

(5) Whether Suit No:585/81 is collusive with defendants Nos.l to 3?

(6) Whether the plaint in Suit No.585/81 is not properly valued for purposes
of court-fee, if so, what is correct valuation and its effect? O P D 1 to 3.

(7) Whether the pre-emptors have no cause of action and suits are bad for
non-joinder of necessary party Mst. Jamila Bibi and also bad for partial pre-
emption? O P D 1 to 3.

(8) Whether contesting defendants are entitled to get special costs?

(9) Whether the impugned transaction is in fact a sale? O P P, O P D 5 to 8.

(10) If issue No.9 is proved whether pre-emptors have superior right of


preemption against defendants Nos.l to 3 and who among the pre-emptors has
superior pre-emptive right? OPP, OPD 5 to 8.

(11) What was the market value of the suit land at time of transaction?

(12) Relief.

Rival parties gave evidence in support of the issues, burden of proof whereof
rested upon them. Upon its review, learned Civil Judge Liaquatpur found that
suit instituted by Irshad-ul-Haq was filed in time and the plaint was presented to
the proper officer; his suit was neither benami nor suffered from defect of
collusion; that he had not waived his right; that connected Suit No.585/81 was
not collusive with defendants 1 to 3; that plaints in the preemption suits were
correctly assessed and proper court-fee was paid; that suit was not defective for
non-joinder of necessary party as transaction in Mutation No.237 in favour of
defendants 1 to 3 and wife of Muhammad Sharif were divisible; that the
transaction though shown as gift was in reality a sale; that both sets of
preemptors had superior right, Irshad-ul-Haq as real brother and Barkat Ali and
his brothers as owners of the estate; that market value of the land in. suit was
Rs.2,000. Upon above findings, the trial Court decreed both the pre-emption
suits. It gave first decree to lrshad-ul-Haq and second to the inferior pre-emptors,

Page No. 5 of 11
Barkat Ali etc conditional upon paying Rs.2,000. First decree-holder was directed
to deposit the decretal amount till 2-4-1985. In default, second decree in favour of
Barkat Ali etc. was to operate who were directed to deposit the sale price by
extended date on 2-5-1983 and in default their suit was also to be dismissed with
costs. Against this judgment and decree of the trial Court, three appeals were
preferred to the District Court, two by transferees and one by the second
decreeholders Barkat Ali etc. By a common judgment, on 24-3-1984, learned
District Judge Rahim Yar Khan, on nature of the transaction in Mutation No.237
differed with the learned trial Court and held that it was a gift and pre-emption
could not be claimed in regard thereto. Consequently, upon reversing finding on
issue No.9, he accepted appeals No.67, 68/1983 filed by the transferees and pre-
emption suits filed against them were dismissed. Appeal of Barkat Ali etc. 90/13
of 1983 was also dismissed. Aggrieved by the consolidated judgment, Irshad-ul-
Haq filed a petition for civil revision registered as C.R. 245-D/1984/BWP. Barkat
Ali etc. also challenged the above decision in Civil Revision 175-D/1984/BWP.

Seen from the above, only point of material consequence decisive of the whole
controversy is about nature of the transaction in Mutation 237, whether it was a
sale as held by the trial Court or a gift as found in appeal by the lower appellate
Court. In case, it is held to be a gift, it shall prove fatal to the petitions for civil
revision and a boon for transferees in first appeal--R.FA. 15/1983. On behalf of
Barkat Ali etc., Mr. M.M. Bhatti their learned counsel submitted that the
transaction in Mutation 237 dated 2-5-1980 was an out and out sale but was given
a false exterior of gift merely to defeat pre-emption. Learned counsel argued that
donor Mohammad Sharif was not related to the donees; he was not an affluent
person but was a small peasant owning a holding of 20 kanals only and there
was no good reason for him to make a gift to the transferees; possession under
the alleged donation was not transferred; donation of two kanals from out of
joint holding was hit by doctrine of `Musha', there are strong indications on
record to prove that land in suit was sold for Rs.2,000 but was shown a gift to
avoid pre-emption; it was not a case of simple device but was a clear disguise
which the Court was entitled to look through to discover its true character; that
execution of gift deed--certified copy Ext.D6 was not proved and total absence of
its reference in gift Mutation 237 indicated its supurious nature; that finding on
nature of transaction suffered from misreading of record as also misapplication
of true legal principles applicable thereto and therefore it could be reviewed and
upset in revisional jurisdiction. In support of the above contentions, learned
counsel relied upon the cases of Chiragh Din v. Allah Din and .another--70
Punjab Record 1916, Nar Singh Narain v. Sant Ram and others A.I.R. 1931 Oudh
424, Haji Said Muhammad Karam Shah v. Noor Tlahi Khan and another--P L D
1962 (W.P.) Peshawar 44, Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub
and 2 others P L D 1973 S.C. 100, Hayat Ali and another v. Ghazan (represented
by his heirs)--1981 C L C 456, Ghazan and others v. Havat Ali and another--1981
S.C.M.R. 492, Muhammad Ismail v. Taj Din--1982 C.L.C. 717, Fateh Muhammad
and 3 others v. Abdul Majeed and another--P L D 1985 Lahore 650. Mr. Behram
Khan learned counsel appearing for Irshad-ul-Haq petitioner adopted arguments
advanced by Mr. M.M. Bhatti, Advocate and added that there were sharp and
pointed discrepancies in the evidence of the transferees which had escaped
notice of the lower appellate Court and that without adverting to and
commenting upon the circumstances relied upon by the trial Court, judgment
was erroneously reversed upon a superficial reading of record.

Ch. Asghar Ali Bhatti, Advocate, learned counsel for the transferees respondents
in Civil Revisions and appellants in R.FA. 15/1983 argued that onus to prove
that transaction was different from its apparent character lay upon the pre-
emptors and it was for them to establish affirmatively that it was not a gift but a
sale. Evidence led by them failed to sufficiently discharge the burden of proof
and any alleged weakness appearing in defence evidence shall not materially
avail them; that the transaction could not have been concluded under public gaze

Page No. 6 of 11
in presence of rank strangers to create evidence; witnesses for the pre-emptors
were not reliable and they spoke about improbable events; that hearsay evidence
besides being inadmissible was insufficient to. dislodge the real character of
transaction which was a gift; that strangers to the gift could not attack its validity
on the ground of absence of transfer of possession and Musha; that there was no
evidence to establish passing of sale price which is sine qua non for its existence;
that certified copy of hiba Ext. D6 was a properly proved document and in
absence of any objection as to its mode of proof taken at the appropriate time of
its tender in evidence, objection in revisional jurisdiction could not be urged; that
finding of fact recorded on nature of transaction by the lower appellate Court
was not reviewable in revision. In support of the above contentions, reliance was
placed upon Dost Muhammad Khan v. Imam Bakhsh--PLD 1971 Peshawar 150,
Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977--SCMR 154,
Reham Ali and another v. Abdul and 3 others--1980 CLC 1110 SC (A J & K),
Ahmad Yar and another v. Muhammad Aslam--1981 CLC 527, Sardar Khan v.
Ghulam Sarwar--P L D 1982 A J & K 128, Ghulam Muhammad v. Kh.
Nazimuddin and another--1983 CLC 117 (Rawalpindi Bench). Furthermore, to
support the contention that finding of fact though erroneous unless perverse and
suffers from an error of jurisdiction or material illegality or irregularity on
account of breach of procedural law, could not be upset or reviewed in revisional
jurisdiction, learned counsel placed reliance upon N.$. Venkatagiri Ayyangar
and another versus The Hindu Religious Endowments Board, Madras--A.I.R.
1949 Privy Council 156, Abdul Majid and others v. Khalik Ahmad--P L D 1955
Federal Court 38, Kanwal Nain and 3 others v. Fateh Khan and others--PLD 1983
SC 53, Haji Mohammad Zaman v. War Ali Khan and others--PLD 1986 SC 88,
Nasar Abbas v. Manzoor Haider Shah--PLD 1989 SC 568.

As observed elsewhere in the judgment, sole question surviving for decision is


about the nature of transaction, whether it was a gift or a sale. Obviously, its
decision depends upon scrutiny of evidence led by the parties. Therefore, survey
of the evidence, oral and documentary appears necessary, more so, because
Courts of fact had differed in their conclusions. In this view, I shall attempt a
review of the evidence to the extent of its relevance to discover the nature of
transaction and its effect upon the rights of the parties. This course shall also
assist, whether record was correctly read. But before I embark upon the above
exercise, it is necessary to state certain legal principles and provisions .in statute
law bearing upon the decision of the issue. It is well-settled that preemption is a
right of substitution. Preference is its essence. It is a right to acquire three kinds
of properties in preference to less favoured persons. It arises on sales or
foreclosure of right to redeem as the case may be. Section 4 of the Punjab
Preemption Act, 1913 provides "Nothing in this section shall prevent a. Court
from holding that an alienation purporting to be other than a sale is in effect a
sale". There is no dearth of authorities that the Court can discover true nature of
transaction though it was disguised in different form by parties to it. However,
onus of proof that a particular transaction which looked differently than what in
reality it was, is upon the pre-emptor who is not bound by its outer form. Section
92 of Evidence Act since repealed/Article 102 of Oanun-e-Shahadat, 1984 neither
restricted nor impaired the right of the pre-emptor to give evidence for
establishing true nature of the transaction to show that it did not represent the
real mind of the parties or contract concluded between them. Amplitude of
language in section 4 of the Pre-emotion Act gave unrestricted right to the
plaintiff to prove real nature of transaction by giving direct and circumstantial
evidence and also did not place any fetter or embargo upon jurisdiction of the
Court to consider and pronounce upon the true nature and kind of transaction.
Refer Tara Chand v. Baldeo--117 Punjab Record 1890, Gul Muhammad v. Sabz
Ali Khan A.I.R. 1919 Lahore 127. In Than Singh and others v. Nandu Kirpa Jat
and others--A.I.R. 1978, Punjab and Haryana 94, Full Bench of the Court upon
extensive survey of the existing case-law observed:

Page No. 7 of 11
"(1) That it is open to the plaintiff (pre-emptor) to establish that the transaction
in suit is in reality a sale and not an exchange or gift and that the Courts can
enquire into the true nature of such a transaction. Under the Evidence Act also,
there is no bar to lead evidence to prove certain transaction as a sale;

(2) that the vendor can defeat the right of the pre-emptor by all legitimate
means;

(3) If two views are possible, then the one which defeats the right of the pre-
emptor has to be accepted; and

(4) If the Courts below have arrived at a finding that a certain transaction is a
sale, exchange or gift, as the case may be, then this finding is not open to scrutiny
in the second appeal."

In our judgment, above statement correctly sums up the law and we agree with
it. Therefore, the contention that pre-emptor could not attack the validity of gift
on grounds of non-delivery of possession for proving it to be a sale restricting his
d right to give required evidence as also the power of the Court to decide on the
nature of transaction was totally unsound. The contention disregards and runs
contrary to plain language of Explanation to section 4 of Punjab Pre-emotion Act.
Accordingly, we express our inability to accept it. Decisions in Ahmad Yar and
another v. Mohammad Aslam--1981 C.L.C. 527, Sardar Khan v. Ghulam Sarwar-
P L D 1982 A J & K 128, in which it was ruled that pre-emptor had no locus to
challenge the gift on ground of non-delivery of possession, in our considered
opinion, does not represent the correct statement of law and we express our
respectful dissent with it. Two decisions relied upon in case of ahmad yer (supra)
did not pertain to pre-emotion. Also, statement in para 150 of Mahomedan Law
by D. F. Mulla did not attract itself to pre-emption which had its own peculiar
features. Likewise, decision from Azad Jammu and Kashmir in case of Sardar
Khan, to speak with respects, did not notice the above distinction. Also, there is
no independent discussion on this point in the judgment. If preemptor is once
precluded to attack validity of gift on ground of non-delivery of possession, a
fortiori, he could not be permitted to challenge its validity on the non-fulfilment
of its other two essentials i.e. declaration by the donor and the E acceptance by
the donee. Neither principle. nor authority could permit such a distinction.
Confronted with this legal position, Mr. Asghar Ali Bhatti did not pursue his line
of arguments on this point. Subject to rules of relevance and admissibility laid in
the law of evidence, pre-emptor was not precluded from giving evidence of his
choice to prove the true character of the alienation. His right to give evidence
was unrestricted. He could not be inhibited by the restraints spelt out in the
afore-noted judgments. He was free to show that the form of the transaction did
not represent its true innerself. Similarly, Court was also free to remove the outer
veil to discover true reality beneath it. Having stated law, stage is now set for us
to advert to the moot point. Evidence led at the trial on the nature of impugned
transaction consisted of two kinds, oral and documentary. First, we shall advert
to the oral evidence. Barkat Ali etc.--rival pre-emptors produced Mukhtar
Ahmad DW.1 who deposed that his shop was contiguous to the shop of
Mohammad Sharif. At 11/12 o'clock about two years ago, Mohammad Sadiq,
Wajid Ali (not produced) and Abdullah were sitting at the shop of Mohammad
Sharif. He overheard their talk about sale of the land by Mohammad Sharif to
Mohammad Sadiq etc. for avoiding pre-emotion by Barkat Ali etc. Contract was
settled at Rs.2,000 which, amount was brought by Wajid Ali and paid in his
presence to Mohammad Sharif. Abdullah DW.2 deposed that Sadiq Ali etc. had
approached him for sale of his land to them to save them from the pre-emotion
suit. Since he did not own land, he took them to Mohammad Sharif who agreed
to sell his two kanals of land to them at the sale price of Rs.2,000. Bargain was
made in his presence. Wajid Ali brought the money and paid it to Mohammad
Sharif. Oral statement of Barkat Ali was mere hearsay and being self-interested

Page No. 8 of 11
was not of much avail. On behalf of Irshad-ul-Haq preemptor, Mohammad
Rashid, his Special Attorney and one Mohammad Haroon appeared. Their oral
testimony was also hearsay and was of not material consequence to assist
decision of the point in dispute. As far the direct testimony furnished by
Mukhtar Ahmad and Abdullah D.Ws. it suffered from the inherent
improbability. Sadiq Ali etc. could not have confided in Abdullah DW.2 to
enable him to turn adverse to them and give evidence against them. It also looks
rather improbable that Mohammad Sharif and Sadiq Ali etc. should settle the
deal in open and invite strangers to witness its making when the deal was
expected to be secret. It is true that direct evidence in such cases is rarely
forthcoming because parties take all conceivable precautions to hide their intent
and conceal the true nature of transaction. Nonetheless, pre-emptor must bring
evidence direct or circumstantial on the file from which it could be reasonably
held that the transaction was what the plaintiff claims it to be. Difficulty of the
pre-emptor in procuring required evidence does not. lessen his basic burden of
proof. Upon mere hearsay and incredible evidence as was led in the suit which
could only raise a doubt on the kind of alienation, it could not be held that the
transaction was ale for Rs.2,000. As said above, it was for the pre-emptors to
prove that ansaction was a pre-emptible sale. Transferees were on defence. Any
weakness existing in their defence could not improve upon the plaintiffs'
evidence which ad to stand scrutiny on its own merits. Nonetheless, when both
parties had led evidence, Court must examine it and base its decision upon it. No
part of evidence could be excluded from consideration. It is in this view that we
propose to examine the defendants' evidence also. It consisted of the statements
of :hurshid Mohammad Patwari who proved extract from daily diary Ext. I)1 and
that it was either ante-dated or forged, Rana Riaz Ahmad Ahlmad attached to
Civil Court Liaquatpur who produced original file of Civil Suit fo.207/7-5-1980
containing original gift deed dated 17-4-1980 (marked Ext. D6),Mohammad
Sharif who stated on execution of the gift decd, owned its correctness and
donation of two kanals to the transferees, entry of gift mutation t his instance and
subsequent attestation of mutation, Mohammad Sadiq who deposed that they
had received two kanals from Mohammad Sharif as gift to save gem from the
pre-emption suit brought by Barkat Ali etc. Transferees are settled t Quetta but
they are not strangers to Liaquatpur. Mohammad Sadiq was carried to a lady
from Liaquatpur. His cousin also resided at Liaquatpur. It was also in evidence
that Mohammad Sharif had friendly relations with them and was indebted to
them because on his visit to Quetta, he was entertained and accommodated by
them, therefore, there was some reason for him to donate his end which saved
the transferees from the aggression of the pre-emptors. It was of correct to
suggest that Mohammad Sharif was an impecunious person. He ran shop in the
town and earned good income. Therefore, if he chose to assist the friends in
need, his action could not be described an improbable. Original deed is available
on suit file No.207/1980. 1n this suit, Mohammad Sharif had appeared DW.5 on
28-10-1981 and proved its execution. Deed was marked as Ext. D6. suit file
207/1980 with original deed was summoned for proving certified copy of the gift
in the pre-emption suit brought by Irshad-ul-Haq, Mohammad Sharif pin
appeared as DW.6 and subscribed to its execution and correctness. This me,
certified copy of deed of gift was marked Ext. D.9 No objection was raised there
to its admissibility or mode of proof, by the opposite party. This circumstance
precludes subsequent objection about the manner and mode of i roof of the deed.
It was nobody's case that gift deed was inherently inadmissible. abjection was as
to the mode of its proof. There is authority for the view that H here objection as
to the mode of proof of a document is not taken at the time ie document is sought
to be put in evidence, parties are precluded to raise ejection on this score
subsequently. Original gift deed is written on a four-rupee amp paper. Stamp
paper was purchased on 13-4-1980 by Mohammad Sharif. reverse of the stamp
paper bears signatures of Mohammad Sharif. Gift deed was written on 17-4-1980.
It was signed by Mohammad Sharif and bore signatures of Fazal Mohammad
and thumb-impression of Mohammad Ismail as its marginal witnesses. Neither

Page No. 9 of 11
stamp vendor nor marginal witnesses were produced in evidence but this factor
shall not substantially assist the opposite party for the simple reason that
objection was not raised about the mode of proof when the document was
tendered in evidence by Mohammad Sharif who also deposed to its execution by
him. There was no evidence to cast doubts upon its genuineness. A circumstance
was much highlighted by Mr. M.M. Bhatti, Advocate and it was that Mutation
No.237-Ext.D7 was based on an oral gift and deed of gift was not referred to in it.
It was submitted that had the deed gift been in existence, there was no acceptable
explanation for withholding it from the Revenue Authorities. Reply by Mr.
Asghar Bhatti was that as the deed of gift was unregistered the transferees may
have thought it to be ineffective for creating rights in the land because of bar
contained in section 17 of the Registration Act, and preferred to effectuate the gift
of land through a mutation. Extract from roznamcha records report of gift by
Mohammad Sharif on 1-5-1980. Khushi Mohammad Patwari D.W who recorded
the above report at the instance of Mohammad Sharif gave evidence in support
of its correctness at the trial. Mohammad Sharif also supported. Pursuant to the
report, mutation No.237 was entered and sanctioned on 2-5-1980 by the Revenue
Officer. It is a public document. Forgery or I fabrication ought not to be
presumed. All official acts are presumed to have been properly and regularly
performed. There is no evidence to cast doubts upon correctness of the
sanctioned mutation. Also when the clear motive behind the gift was an
unequivocal intention on part of the transferor to give a title to the transferees
which would act as a safeguard against any claim for pre-emption in respect of
other property intended to be sold, the transaction for that reason f alone cannot
be called sale--Per Sapru, J. in Hari Singh and others v. Kallu and others ---A.I.R.
(39) 1952 Allahabad 149. There is also evidence to establish transfer of possession
under the gift to the donees. Gifted land was part of a jointly owned land.
Possession required to be given is such possession as the nature of the property
admits. Musha was not attracted to invalidate the K transaction of gift which
otherwise was complete in all respects and fulfilled the essentials of a valid gift
under Muslim Law. See Aurangzeb and others v. Daud Khan and others--P.L.D.
1957 (W.P.) Peshawar 85. Additionally, finding on the nature of transaction
whether it was a gift or a sale was essentially a finding of fact and though the
Courts below had differed on the kind of transaction yet in the absence of
grounds specified in section 100 or 115, Civil Procedure Code, it is L the finding
of the lower appellate Court that shall be held binding and conclusive. Cases of
Abdul Majid and others v. Khalil Ahmad--P.L.D. 1955 Federal .Court 38, Haji
Mohammad Zaman v. Zafar Ali Khan and others--P.L.D. 1986 S.C. 88, Nasir
Abbas v. Manzoor Haider Shah--P.L.D. 1989 S.C. 568 support the above view. At
best, pre-emptor could only create a doubt about the nature of transaction but
mere doubt was not a substitute for proof which alone is the criterion for
decision of the civil cases.

Having regard to the aforesaid, we would accept the appeal--R.FA. 15 of


1983/BWP, set aside impugned judgment and decree dated 2-3-1983 of the trial
Court and dismiss the pre-emption suit brought by plaintiffs-respondents. As a
natural corollary of the above, Petitions for Civil Revisions Nos.175/D-
1984/BWP and 245/D-1984/BWP are dismissed, judgments and decrees dated
24-3-1984 of District Judge Rahim Yar Khan are affirmed. However, in view of
the peculiar nature of the facts we leave the parties to bear their own costs.

M.B.A./M-180/L Order accordingly.

Page No. 10 of 11
1989 M L D 1732

[Karachi]

Before Saleem Akhtar and Imam Ali G. Kazi, JJ

Mst. AFROZE and 3 others---Petitioners

versus

SENIOR MEMBER, FEDERAL LAND COMMISSION and another----


Respondents

Constitutional Petition No. D/1275 of 1979, decided on 24th December; 1988.

(a) Land Reforms Regulation, 1972 [M.L.R. 115]----

---Paras. 7 & 12--Transfer of land held on restricted tenure--Land held on


restricted tenure, transferred after repeal of Sind Government Occupant Act,
1899--Collector had no- power either to grant or refuse the permission for
transfer of land--Prior permission of Collector to transfer of land, held, on
restricted tenure was no more necessary.

(b) Land Reforms Regulation, 1972 [M.L.R. 115]--

---Paras 7 & 12--Village Account Manual, Form VIII-A--Form VIII-A is


basically .a form that keeps the track of crops cultivated in each season and
assessment of land revenue is made on the basis of crops recorded therein--Form
is primarily meant for the use of village staff of Revenue Department for purpose
of collection of land revenue, other charges, cess and rates--Land owners are
hardly directly concerned with this Form--Held, invalidation of alienations
because transfer of possession of land was not reflected in Village Form VIII----A,
was not justified.

(c) Muhammadan Law---

---Gift of an individual share (Mushaa) though same be a share of property


capable of division, was valid from the moment of gift, even if the share was not
divided off and delivered to the donee.

According to the, exceptions provided a gift of an undivided share (Mushaa)


though it be a share of property capable of division, is valid from the moment of
the gift, even if the share is not divided off and delivered to the donee, in the
following cases:

(i) Where the gift is made by one co-heir to another.

(ii) Where the gift is of a share in a zamendari;

(iii) Whether the gift is of a share in freehold property in a large commercial


town; and

(iv) Where the gift is of a share in a land company.

Paragraph 149 of the Principles of Mohammendan Law by Mulla ref.

(d) Land Reforms Regulation, 1972 [M.L.R. 115]--

Page No. 1 of 6
---Para. 7 (1) (b)--Land Reforms Act (II of 1977), para. 25-Federal Government
Notification No. 11-1977/LC/1-78 dated 23-9-1978--Transfer of land under para.
7 of the Regulation 1972--Jurisdiction of all authorities created by Land Reforms
Regulation, 1972, from examining transfers of lands by any means, to heirs of
land-owners was barred under proviso to para. 7(1) (b) of Regulation in 1972-
Where case had abated Federal Government could not by issuing a Notification
generally revive such a case--Member, Federal Land Commission, held, acted
beyond his jurisdiction by declaring transfer of lands to heirs of land owner, as
not bona fide under para. 7 of Land Reforms Regulation, 1972.

PLD- 1974 Lah 456; PLD 1977. Lah. 461; PLD 1979 Lah. 375; 1981 CLC 1200; 1982
CLC 1472; 1982 CLC 1945 and PLD 1985 Kar. 572 ref.

Mushtaq Memon for Petitioners.

Nemo for Respondents.

Date of hearing: 11th October, 1988.

JUDGMENT

IMAM ALI G. KAZI J .--The petitioners Mst. Afroz, Mst: Inayat Khatoon and
Mst. Lal Khatoon respectively being the daughter, wife and mother of the fourth
petitioner Amir Hamzo have all made a grievance of the order dated 20-31979
passed by the Senior Member, Federal Land Commission, Rawalpindi in Case
No. SMR 847/60/ELC/75. By the said order certain transfers made by Amir
Hamzo in favour of the three ladies have been declared to be void for the
purposes of Land Reforms Regulation, 1972. These transfers have been declared
void on the following grounds

(1) As the agricultural land in Delis 11-Dad and 14-Dad were held by Amir
Hamzo on restricted tenure, under Sinn Act III of 1899 and he had transferred
the same to the three ladies without first' obtaining permission of the Collector to
do so as required by that law.

(ii) Gifts made on 16-9-1971 in village Lakha in favour of the ladies did not
reflect consequential change, in village Form VIII-A or. B thereby indicating that
the transfer of actual possession of the land did not take place. Exception on this
score was taken only in respect of 1/3rd share gifted to Mst. Lal Khatoon the
mother of Amir Hamzo.

(iii) That the gift of 30 paisa share being divided share out of total 50 paisa
share in village Kazi Ahmed in favour of the ladies was held to be not
permissible under Muslim Law.

2. Amir Hamzo, the fourth petitioner in this case had out of his holding of
agricultural lands made certain transfers during the period between 1-3-1967 and
19-12-1971 in favour of certain persons, both heirs and non-heirs. He was,
therefore, required to disclose all such alienations of agricultural lands Made by
him under para 12 of the Land Reforms Regulation, 1972 (M.L.R.115). The Land
Commissioner, Sind as the delegatee of the authority of the Sind Land
Commission for the purpose of para 7 of the Regulation scrutinized such
transfers out of which he declared the transfers in favour of the afore-mentioned
three ladies as bona fide. Thereafter, the case of declarant Amir Hamzo was dealt
with by the Deputy Land Commissioner for the purpose of its paragraph 8. His
case for all the practical purposes of the said Regulation was thus finalised by his
order-dated 6-6-1973. Subsequently, in 1976 the then Chairman, Federal Land
Commission, Rawalpindi purporting-to exercise his suo motu powers of revision
under para 29 of the said Regulation, issued notice to the petitioners requiring

Page No. 2 of 6
them to show cause why such alienations be not declared as void. Before the
Chairman, Federal Land Commission could exercise his powers, a Constitutional
Petition being C.P.No. D-136 of 1976 was fled in this Court and injunction
obtained by the petitioners. The proceedings thus initiated remained
inconclusive till the enactment and enforcement of Law Reforms Act, 1977.
Section 25 of the said Act (Act I4 of 1977) provided that all proceedings pending
before the Federal Land Commission shall on its commencement stand abated. In
view of such provision of law having been made, petitioners considered 'futile
`to pursue C.P. No: D-316 of 1976 and withdrew the same. It appears that the
Federal Government on 23-0-1978 issued a notification bearing too. II-1977/-
LRtl-78 under section 25 of Act-II of 1977 whereby all such pending proceedings
were revived and brought within the competence of the Federal Land
Commission. The Federal Land Commission then issued a notice to the
petitioners and re started the proceedings. The petitioners filed another
constitutional Petition No. D-86 of, 1979 and obtained interim relief in the matter.
During the pendency- of this petition, the Senior Member, Federal Land
Commission took up the case and passed an order referred to hereiRabv6e,
which has been impugned in this petition.

3. Mr. Mushtaq Memon, learned Advocate appearing for the petitioners has
assailed the impugned order on the following grounds;.

(i) That tie alienations in village. 11-Dad and 14-Dad have been invalidated
on the sole ground that Amir Hamzo had transferred the land held by him under
restricted tenure without obtaining permission of the Collector of the District as
required by Sind Act-III of 1899. This Act was repealed by the West Pakistan
Ordinance XXXVI of 1969, on 3-111969. The transfers in, question were made
after the repeal of the said enactment and there was no authority 4ccording to
law which could grant or refuse such permission and by, the repeal of such
enactment permission to transfer agricultural land held on restricted tenure was
no more necessary.

(ii) Gift in village Lakha has been declared void to the extent of 1/3rd share
gifted to Mst. Lal Khatoon, the mother of declarant Amir Hamzo, on the ground
that possession. of the land alienated had not passed to her as consequential
entry in the village form VIII-A was not changed in her favour. In this respect he
stated that alienation of land by way of gift in equal share was made in favour of
the daughter, wife and mother of the declarant through a common statement and
the Senior Member himself has accepted validity of the gift in respect of the other
two donees. He has further urged that mother is a specified heir in terms of
Explanation 1 to para 7 of the Regulation and such gift cannot be questioned by
any authority under the Regulation according to the second proviso to paragraph
7.

(iii) The third alienation by way of gift in village Kazi Ahmed in favour of the
three ladies has been declared as not bona fide on the ground that undivided
share of laced could not be gifted under the Muslim Law. According to him gift
of Musha' in a Zamiudari is valid.

(iv) That notification issued by the Federal Government in 19,78 whereby all
such cases pending before the Federal Land Commission were revived in spite of
the same having abated is beyond the scope of section 25 of Act II of 1977.

4. The transfer of lands in villages 11-Dad and 14-Dad have been declared as not
bona fide transfers for the purposes of the Regulation as permission of the
Collector to transfer the same was not first obtained by the transferor, the land
being field by him on restricted tenure. Such a' proposition came under
consideration of a Division Bench of this Court in C.P.No.D-122 of 1977 (Jaffer
Khan and 2 others v. O.S.D. Federal Land Commission, and others) and the

Page No. 3 of 6
objection to that effect was repelled and petition accepted. On the repeal of Sind
Act-III of 1899 as stated above, prior permission of the Collector to transfer land
held on restricted tenure under that Act was no more, necessary. Further on
account of repeal the Collector did not have power to either grant or refuse such
permission.

5. The alienations in village Lakha in favour of Mst. LAI Khatoon, the mother of
declarant Amir Hamzo were invalidated as according to the Senior Member,
Federal Land Commission transfer of possession of land.. was not reflected in
village Form VIII-A. Village Form VIII-A- is a prescribed form in the Village
Account Manual kept under the Sind Land Revenue Code. This form is basically
a form that keeps the track of crops cultivated in each season and the
assessments of Land Revenue made an the basis of crops are recorded therein.
Form VIII-A is primarily meant for the use of the village staff of the revenue
department for the purpose of collection of land revenue, other charges, cess and
rates. The land owners are hardly directly concerned with this form. Similar
objection was taken in another case by the O.S.D. Federal Land Commission,
which was the subject-matter of the petition decided by this Court and reported
in 1980 CLC 1395 (Sain Bux and 4 others v. OSD Federal Land Commission,
Rawalpindi), The relevant observation in- that case is reproduced as under;

"As to the other ground assigned by the OSD regarding no change having been
made: in the Village Form VIII-A in the names of the donees, mutation entries
having been duly recorded in their names in the Dakhil Kharij Register, which is
the register for recording such mutations, and the genuineness of the said entries
not being Shown to have been doubted, mere absence of change of their names in
Village Form VIII-A was not material in the circumstances and could not operate
in law to invalidate the entries in the Dakhil Kharij Register and the making of
the gift. Further, the donor petitioner No.l had, admittedly, retained 25 paisas
share in the land with himself and his name continued to remain in Village Form
VIII-A as `Mukh Khatedar.' Such being the case, this was yet another reason
which rendered immaterial the absence of change of the names of the donees in
the Form VIII-A, apart from the fact that Village Form VIII-A is maintained by
the Revenue Department as harvest inspecting register primarily for enabling
them to levy land revenue etc. on the basis of the crops cultivated.

6. The alienation in village Kazi Ahmed has been declared invalid by the Senior
Member, Federal Land commission as the subject----matter of gift was out of a
share of undivided property on the basis of principle of Mushaa under the
Muslim Law contained in paragraph 149 of the Principles of Muhammadan Law
by Mulla which is reproduced below;

A gift of an undivided share (Mushaa) in property which is capable of division is


irregular, but not void, it may be perfected and rendered valid by subsequent
partition and delivery to the donee of the share given to him. If possession is
once taken, the gift is validated:

According to the exceptions provided therein a gift of an undivided share


Mushaa) though it be a share of property capable of division, is valid from the
moment of the gift, even if the share is not divided off and delivered to the
donee, in the following cases,

(i) Where the gift is made by one co-heir to another.

(ii) Where the gift is of a share in a zamindari;

(iii) Where: the gift is of a share in freehold property in a large commercial


town; and

Page No. 4 of 6
(iv) Where the gift is of share in a land, company.

It will thus be seen that the learned Member, Federal Land Commission
committed an error of his jurisdiction by not accepting the accepted proposition
that gift of share (Mushaa) in a zamindari is valid under the Muslrm Law.

7. In addition to the reasons mentioned above the Senior Member, Federal Land
Commission also fell in- error by exercising jurisdiction due to following
reasons:--

(i) The first three petitioners being daughter, wife and mother of the
declarant/transferor Amir Hamzo arc the heirs specified in Explanation I to para
7 of the said Regulation. According to the second proviso to para 7(i) (b) of the
Regulation, nothing in that clause shall apply to "any transfer of land or creation
of any right or interest in encumbrance on any land by way of gift or otherwise
made by a person in favour of heirs". This completely bars the jurisdiction of all
authorities created by the Land Reforms Regulation, 1972 from examining
transfers of lands by any means to the heirs of a land owner. Such a view has
been taken in case: reported in PLD 1974 Lah 456, PLD 1977,Lah 401, PLD 1979
Lah 375. 1981 CLC 1200,1982 CLC 1472 and 1945 which we respectfully follow.

(ii) This, case was taken as revived by virtue of the Notification No. II of 1977
LR-I of 78 of 23-9-1978 issued by the Federal Government under section 25 of the
Act II of 1977 by the Senior Member, Federal Lang Commission. The Federal
Government was competent to revive a case or class of cases pending before the
Federal Land Commission at the, commencement of that and could not by
issuing a notification all the pending cases and thereby nullify the effect of
abatement of cases. The Notification is, therefore, to be struck down as ultra vires
of the Act, itself. Similar language was used in selecting cases for detailed
security under the Income-Tax Ordinance, 1979 and became the subject-matter of
the case reported in PLD 1985 Kar. 572 (Cannon Products Ltd v, Income-Tax
Officer and 2 others) and it was held that by phrase "any case" or "classes of
cases" employed in subsection (2) of section 5 of the Income-Tax Act, 1922 does
not warrant the assignment of cases by the Central Government person wise.
Similarly, the Federal Government could not by issuing a Notification generally
revive all cases which in fact had abated by provision made in section 25 of the
Land Reforms, Act, 1977. On this ground too the Senior Member, Federal Land
Commission clearly, acted without any jurisdiction.

8. In view of tire reasons mentioned hereinabove, the order impugned in this


petition cannot be allowed, to be maintained. The Senior Member, Federal Land
Commission by passing the impugned order has acted beyond his jurisdiction
by, declaring such transfers as not bona fide under para 7 of the Land Reforms
Regulation, 1972. The impugned order, therefore, is hereby declared to have been
passed without any lawful authority and to be of no legal effect and is quashed.

9. As a result 'of this order, gift in favour of Mst. Lai Khatoon in village Lakha
will also be treated as vaid with the result that the holding of declarant Amir
Hamzo in that village will be reduced below the minimum ceiling of 16 acres and
will come within the mischief of para 24 of the Regulation and the area of the
gifts of land in this village in favour of the three ladies will be reduced
proportionately so as to make a balance of 16 acres available with the declarant
to avoid the gifts from being void. The Deputy Land Commissioner, Nawabshah,
will, therefore, be free to re-determine the holding of declarant Amir Hamzo
under para 8 of the Regulation after adding the increased area to his holding due
to such modification.

Page No. 5 of 6
10. The petition is accepted with no order as to costs.

By a short order we had allowed the petition earlier and above are the reasons
for the same.

M.A.K./A.569/K. Petition accepted.

Page No. 6 of 6
1986 M L D 1264

[Karachi]

Before Sajjad Ali Shah and Mamoon Kazi,

RASOOL BUX and 12 others--Petitioners

Versus

OFFICER ON SPECIAL DUTY, FEDERAL LAND, COMMISSION AND JOINT


SECRETARY, GOVERNMENT OF PAKISTAN, ISLAMABAD—Respondent

Constitutional Petition No. D-322 of 1977, heard on 7th May 1986.

(a) Muhammadan Law

---Gift--Mushaa, doctrine of--Applicability--Doctrine of "Mushaa", held, would-


not be applicable where gift is of a share in Zamindari/Taluka.

Principles of Muhammadan Law by Mulls. ref.

Bahadur v. Jan Muhammad P L D 1960 Kar: 745 rel.

(b) Land Reforms Regulation, 1972 (M.L.R. 115)--

---Para. 29--Gift of land--Member Land Commission declaring gift of land void


because a portion of land being on restricted tenure and could not thus be gifted
without requisite permission--Order vague and neither particularising gifted
land which was on restricted tenure nor maintaining relevant law--Order, held,
was not sustainable.

(c) Land Reforms Regulation, 1972 (M.L.R. 115)—

---Para. 29--Constitution of Pakistan (1973), Art.199--Where order of Land


Commission relating to restricted land tenure was not specific and could not be
pin-pointed in relation to land to which order applied, High Court in
constitutional jurisdiction set aside order of Land Commission remanding same
for fresh and definite finding on restricted tenure.

Jhamat Jethanand for Petitioners.

Nemo for Respondent.

Date of hearing: 7th May 1986.

JUDGMENT

SAJJAD ALI SHAH, J.--This Constitutional Petition calls in question impugned


order, dated 20-12-1976 passed by O.S.D/Joint Secretary as Member, Federal
Land Commission, whereby he has exercised suo motu revisional jurisdiction as
contemplated in paragraph 29 of .

Martial Law Regulation No.115, on the report of Inspection Team of the Federal
Land Commission. By the impugned order he has set aside the order of the Land
Commissioner validating the alienation of gift in favour of donee by the
petitioner and further directed that such alienation should` be treated as non-
existent and void for the purpose of land reforms. Furthermore, Deputy Land
Commissioner is directed by the impugned order to re-determine the holding of

Page No. 1 of 3
the petitioner and to resume the excess area and distribute the same among the
deserving tenants.

Briefly stated the relevant facts giving rise to this petitioner are that Arz
Muhammad father of the petitioner Rasool Bux died leaving behind agricultural
land which was in-herited jointly by petitioner Rasool Bux and his father
Muhammad Bux. Subsequently Muhammad Bux also died and his share was
inherited by his daughter Mst. Saleh, his wife Mst. Bambo and his brother Rasool
Bux. Agricultural lands left behind by father of the petitioner were situated in
Deh Larh in Taluka Tando Allahyar and in Deh Kabaho and also in Deh
Agamano in Taluka Matli. Now so far the land situated in Deh Larh is
concerned, total area left by the father of the petitioner was about 172 plus 550
Acres which comes to 722 Acres. It was inherited by petitioner Rasool Bux and
his brother Muhammad Bux so the equal shares were 361 Acres each. From the
share of Muhammad Bux, who died, 8 annas went t0 Mst. Saleh, 2 annas went' to
Mst. Bambo daughter and wife of Muhammad Bux respectively and 6 annas to
Rasool Bux petitioner. In this land belonging to Muhammad Bux share of
petitioner Rasool Bux, which is 6 annas equal to 37 paisas area-wise comes to
135-136 Acres. When this share is added to the original share of Rasool Bux then
area-wise total agricultural land owned by him comes to 497 Acres from which
361 Acres belong to him plus 135 Acres which he inherited from the share of
Muhammad Bux. Rasool Bux petitioner and heirs of Muhamamd Bux mentioned
above arrived at settlement among themselves in respect of the whole
agricultural land inherited by them and in the light of such settlement with full
consensus both ladies got one rupee share in Deh Larh in 172 Acres, in Deh
Kabaho they got 7 Acres and 6 Ghuntas (full one rupee) and in Deh Agamano
they got 111-13 Acres (full one rupee). In Deh Agamano Rasool Bux got 29-30
Ghuntas (full one rupee). So far Deh Larh is concerned, Rasool Bux got 539 Acres
(full one rupee). In this area of 539 Acres there is absolutely no joint holding and
this land belongs exclusively to Rasool Bux. Additionally in Deh Larh Rasool Bux
has in Block No.44/124 18 paisas and in Blocks Nos.508 and 509 he has 82 paisas,
with co-sharers who are not ladies mentioned above but are some other persons
who are unascertainable for the reason that their names do not appear in the
records of rights.

Record further shows that while on 28-6-1971 petitioner and ladies namely Mst.
Saleh and Mst. Bambo made settlement which has been entered in the record of
rights partitioning the property, as described above. On the same day from his
own share of agricultural land in Deh Larh, petitioner Rasool Bux gifted away 75
paisas to his three sons Muhammad Ramzan, Saindad and Ghulam Ali.
Petitioner further gifted 13 paisas from his share of 18 paisas in the joint holding
in Block No.444/I to 4 to his three sons and the gifted area comes to about one
acre. Petitioner also from the joint holding in Block Nos. 508-509 gifted away 61
paisas to his sons from his share of 82 paisas an-d the area so gifted comes to 6
Acres and some Ghuntas.

Mr. Jhamat Jethanand-, Advocate for the petitioner has assailed the impugned
order on two grounds. Firstly that the learned Member of Federal Land
Commission has erred in his finding that the petitioner could not give the land to
his three sons for the reason that it was a joint holding in which petitioner was
co-sharer and this could not be done without partitioning the joint Khatas as gift
of share in undivided property capable of division is not permissible. Learned
counsel in this context has submitted before us that this finding has been arrived
at by the learned Member in the impugned order on the basis of doctrine of
Mushaa as enunciated in the book of principles of Muhammadan Law authored
by Mulla. Paragraph 160 thereof envisages that a gift of an undivided share in
property which is capable of division is irregular but not void. It is further stated
therein that such gift being irregular, and not void, may be perfected and of valid
by subsequent partition and delivery to the donee of the share given to him. It

Page No. 2 of 3
possession is once taken the gift is validated. Then there are exceptions provided
in which Mushaa will not apply. Exception (I) is where the gift is made by one
co-heir to another and exception (2) is where the gift is of a share in a Zamindari
or Taluka. Learned counsel for the petitioner relies upon both these exceptions
and has contended before us that in the instant case the land in question was a
share in Zamindari and also that gift was made by one co-heir to another.
According to the learned counsel petitioner is also co-heir in the sense that he has
inherited the property and further that if one of the donees dies. Petitioner also
becomes co-heir-- virtue of Muslim inheritance. In support of the contention
learned counsel has relied upon the case of Bahadur v. Jan Muhammad P L D
1960 Kar. 745 in which it is held at page 752 that doctrine of Mushaa is not
applicable where the gift is of a share in Zamindari or taluka.

In this context the learned counsel has further submitted that on 28-6-1971 first
the settlement took place between Rasool Bux petitioner and ladies heirs of
deceased Muhammad Bux in consequence of which property was partitioned
and subsequently from his own share Rasool Bux gifted away portions as
mentioned above to his sons. Further, that such gift was made from the share of
land of petitioner situated in Deh Larh which belong to him exclusively and
fraction of which was joint holding from which also gift was made but that is
fully covered for the reason that doctrine of Mushaa will not apply in the
instance case as stated above. To this extent we accept the contention of the
learned counsel.

Another contention raised by the learned counsel is that he assails the impugned
order on the ground that observation made in the impugned order is vague and
it does not specifically and clearly describe as to what is that portion of the gifted
land which was on restricted tenure which could not be validly gifted without
obtaining required permission. We also find that in the impugned order no
particulars are given for describing that portion, which has been found to be on
restricted tenure. Mr. Jhamat Jethanand has submitted in this context that this
observation is vague in nature and is not specific at all. Further, he is not in a
position to ascertain under what provisions of law this objection is taken. He has
submitted some documents in this but we would not like to consider them for
the reason that first very vague in nature and the portion of the land which is
stated to be on restricted tenure is not pin-pointed and further provision of law is
also not quoted under which this objection is taken as such the same should be
done first and then the petitioned can produce the documents to explain the
same.

For the facts and reasons mentioned above, we set aside the impugned order and
remand the case to the Federal land Commission or the purpose of fresh and
definite finding on the point of restricted tenure only in the light of what is stated
above after giving proper opportunity of hearing to the parties concerned. In the
result they petition is allowed with no order as to costs.

A.A. Petition accepted.

Page No. 3 of 3
1986 C L C 118

[Karachi]

Before Abdur Rehman, J

Mrs. RAZIA--Plaintiff

versus

WAJID ALI and 10 others--Defendants

Suit No. 24 of 1984, decided on 7th August, 1985.

(a) Civil Procedure Code (V of 1908)--

---0. I, r. 10--Joining as necessary party to suit--Entitlement-Intervenor claiming


as donee of portion of suit property but having no title deeds-- Intervenor, held,
was not required to prima facie establish title before becoming party to suit--
Intervenor was made party in earlier administration suit on claim of his being
donee of deceased in that suit--Claim of intervenor to be made party to suit was,
therefore, not frivolous in circumstances.

L R 14 All. 553; A I R 1940 All. 399 and P L D 1967 Kar. 439 ref.

(b) Muhammadan Law--

---Gift--Requirements--Fact that gift was not in writing or that possession was


not transferred under gift, held, was of no consequence, writing being not
necessary in gift by a Musfiim and delivery of possession in gift of Musha was
not necessary as all parties of undivided share were presumed to be in
constructive possession. Present : Hassan Akbar, Sami Ahmad Syed and Abdul
Sattar Lakhani.

ORDER

Civil Miscellaneous Application No. 4074 of 1984.

This application under Order I , rule 10, C . P . C . has been made by Aftab son of
Rajab Ali an intervenor for being joined as a party in a suit for partition on the
ground that he was gifted a share of the property by deceased Wajid Ali,
defendant No.l. The intervenor is represented by Mr. Abdul Sattar Lakhani.

The application has been contested by the plaintiff who was represented by Mr.
Hassan Akbar as well as certain defendants who were represented by Mr. Sami
Ahmad Syed respectively. I have heard all the three Advocates at length and
have gone through the R&P of the case. The contention of intervenor's Advocate
Mr. Abdul Sattar Lakhani, in brief was that he being the donee of one of the heirs
namely Wajid Ali, was entitled to be joined as a necessary party in this suit
which was for partition. He has relied upon a number of rulings, the material
ones are I L R 14 All. 553, A I R 1940 All. 399 and P L D 1967 Kar. 439. The ratio
decidendi of all these rulings is that in a suit for partition all the heirs and other
persons claiming a right or interest in the property of the deceased were
necessarily and properly to be joined as party. The Advocates of the other side,
though argued to the contrary, had to concede that this proposition of law was
sound. They however, tried to distinguish the present case, by arguing that it
was the duty of the intervenor to show that he had prima facie evidence of his
title or right in the property, which he has not shown. They have alleged that
claim of the intervenor is frivolous and mala fide. It was pointed out by them

Page No. 1 of 2
that the intervenor had not alleged about the gift in the earlier administration
suit between the parties.

The above argument is not legally sound. In P L D 1974 Kar. the application for
impleading the daughter of the deceased was opposed on the ground that she
was not the daughter of the deceased. Mr. Justice Qadeeruddin, J. (as he then
was) left over the consideration A of objection for the trial and ordered that she
be impleaded as the party. Hence it is not correct to argue the intervenor has to
prima facie establish his title before becoming a party.

Apart from that it would appear from the record that intervenor was made party
in the earlier administration suit and that he had raised the claim of being donee
of the deceased in that suit. The intervenor's claim, therefore, does not seem to
be frivolous. The mere fact that the gift is not in writing or that it is claimed by
the other side that the possession is not given is of no consequence because
writing is not compulsory in a gift by a Muslim. Similarly in case of a gift of
Mushaa, that is undivided share delivery of possession is not necessary as all the
parties are presumed to be in constructive possession.

I, therefore, allow the application of the intervenor and direct that he be joined as
a defendant. Let amended plaint be filed on or before the next date of hearing (to
be given in office).

A.A. Application allowed.

Page No. 2 of 2
P L D 1971 Peshawar 150

Before Shah Zaman Khan Babar and Qaiser Khan, JJ

DOST MUHAMMAD KHAN-Plaintiff-Appellant

Versus

IMAM. BAKHSH-Defendant-Respondent

Regular Second Appeal No. 443 of 1970, decided on 3rd June 1971.

(a) Pre-emption---

Right of pre-emption could be defeated by all legitimate devices---Vendee


gaining right equal to that of pre-emptor by virtue of gift deed executed before
institution of suit, in respect of portion of a house, contiguous to suit house---
Right of pre-emption of vendee at par with that of pre-emptor.

(b) Muhammadan Law---

Gift---Mushaa---Gift of undivided share in property, capable of division-Gift


although fasid (irregular) but not batil (void)-Such irregular gift could be
perfected by subsequent partition and delivery to donee of share given to him----
Possession, delivery of-Could not be questioned by stranger to gift deed-Gift
deed effective from date of execution and not from time of its registration---
Registration Act (XVI of 1908), S. 47.

Muhammadan Law by D. F. Mulla, 15th Edn., Ss. 150-160, p. 133; Kairum Bi and
others v. Mariam Bi and another A I R 1960 Mal. 447; Kalu Beg Afzal beg and
others v. Gulzar beg Lal Beg and others A I R 1946 Nag. 357; Fazal Ahmad v.
Mst. Rakhi P L D 1958 Lah. 218 and Chander Singh and others v. Jamuna Prasad
Singh and others A I R 1958 Pat. 193 ref.

D. M. Kamil for Appellant.

ORDER

SHAH ZAMAN KHAN BABAR, J.-Malik Muhammad Ashiq and Malik


Muhammad Ashraf, sons of Malik Haji Muhammad Hussain sold the suit house
to Imam Bakhsh for a sale consideration of Rs. 2,500 by a registered sale-deed
dated 23-3-1967. Dost Muhammad pre-empted this sale by a suit instituted on 4-
5-67. Imam Bakhsh contested the suit on the ground that he had been gifted a
portion of a house contiguous to the suit house by Ghulam Rasool by a deed
executed on 27-4-67 and registered on 5-5-67. The pleas of the parties gave rise to
as many as eight issues, including issues Nos. 2 and 5, which are assailed. Issue
No. 2 is "whether the plaintiff has superior right of pre-emption?". Issue No. 5 is
"Whether the defendant has improved his position, if so, with what effect?"

2. The suit was tried by Civil Judge, D. 1. Khan, who by his judgment dated 30-4-
68 on his finding on issues Nos. 2 and 5 dismissed the plaintiff's suit.

3. The plaintiff's appeal was also dismissed by the District Judge, Derajat by his
judgment dated 4-7-1970.

4. Dost Muhammad plaintiff has come up on second appeal. The learned counsel
for the appellant argued that the gift in favour of Imam Bakhsh vendee by
Ghulam Rasool donor was a gift of a portion of a house, of which possession was
not delivered to the donee and as such the gift was void. Secondly, that the deed

Page No. 1 of 3
of gift was registered on 5-5-67 and, therefore, the title of Imam Bakhsh vendee
was not complete and he has not improved his status of the right of pre-emption
to the suit house before the institution of the suit on 4-5-67. The contentions of
the learned counsel do not appear to be well-founded. Section 160 of the
Mahomedan Law by D. F. Mulla. 15th Edition lays: "A gift of an undivided share
(mushaa) in property which is capable of division is irregular (fasid), but not
void (batil). The gift being irregular, and not void, it may be perfected and
rendered valid by subsequent partition and delivery to the dones of the share
given to him. If possession is once taken the gift is validated. "Thus a gift of a
portion of property is not void in law. In Kairum Bi and others v. Mariam Bi and
another (A I R 1960 Mad. 447), also, it was held: "Where the donor gives away by
way of gift the entirety of her undivided share in an estate to two persons jointly,
the gift is not bad."

The argument of the learned counsel for the appellant that possession of the
gifted property has not been delivered to the vendee and as such the gift is not
complete was repelled by the learned lower Appellate Court on the grounds that
the donor Ghulam Rasool and the donee Imam Bakhsh have both stated that
possession of the gifted portion of the contiguous house had been delivered to
Imam Bakhsh donee and that the plaintiff had no locus standi to challenge the
gift on the ground of non-delivery of possession to the vendee by the donor.
Section 150 of Mahomedan Law by D. F. Mulla deals with delivery of possession.
At page 133 (15th Edn.) under the caption "who can challenge the validity of the
gift?", it is stated:-

"The question whether possession has been delivered is relevant only when an
issue is raised between the donor or those claiming under him on one side, and
the donee or those claiming under him on the other. A stranger cannot invoke
the rule that the gift is bad because there has been no delivery of possession."

In Kalu Beg Afzal beg and others v. Gulzar beg Lal Beg and others (A I R 1946
Nag. 357) it has been held:-

"In cases of gifts under Mohammadan Law, the question of delivery of


possession is only relevant as between the donor and those who claim under him
and the donee. Consequently where the donor upholds the gift and the donee
accepts it, it is a valid gift, and the strangers cannot question its validity on the
ground of want of delivery of possession."

In Fazal Ahmad v. Mst. Rakhi (P L D 1958 Lah. 218) it is ruled:--

"As an ordinary rule of Muslim Law a gift is to be followed by delivery of


possession, that is, the donor is to deliver to the donee whatever possession he
has, but the objection as to delivery of possession is one which can be taken
either by the donor himself or by his heirs and in a case where the donor is
himself supporting the gift no effect can be given to an objection by a third party
who is in possession and claims adversely to both donor and the donee."

Again in A I R 1960 Mad. 447 it has been held:-

"The question whether possession has been delivered is relevant only when an
issue is raised between the donee or those claiming under him on the one side
and the donor or those claiming under him on the other. Where a gift is
otherwise proper, a stranger cannot invoke the rule that the gift is bad because
there has been no delivery of possession."

5. The next argument is that the gift deed was registered on 5-5-67 and as such it
can have effect only from the date of registration. This argument is also repelable
in view of section 47 of the Registration Act, which is reproduced below:-

Page No. 2 of 3
"S.47. A registered document shall operate from the time from which it would
have commenced to operate if no registration thereof had been required or made
and not from the time of its registration."

In Chander Singh and others v. Jamuna Prasad Singh and others (A I R 1958 Pat.
193) it is held: "A sale is complete when a sale deed is executed by the vendor
and the vendor has no right in law to rescind or revoke the sale, registration or
no registration. After a sale is completed by execution of a deed, registration
comes as a matter of course . . . . . . Section 47 of the Registration Act does not
purport to create a new title, but only affirms the title which was created by the
sale-deed. The title, is complete and the effect of registration is only to make it
absolute and unquestionable". The right of pre-emption can be defeated by all
legitimate devices. In the present case the vendee has gained a superior right
equal to that of the pre-emptor by dint of the gift deed executed before t the
Institution of the suit, and as such the gift of a portion of a house contiguous to
the suit house makes the right of pre-emption of the vendee at par with the right
of pre-emptor. The pre-emptor has, therefore, no superior right of pre-emption to
the suit house. In conclusion this appeal merits dismissal in limine. It is,
therefore, dismissed.

K. B. A. Appeal dismissed.

Page No. 3 of 3
P L D 1968 Lahore 372

Before Anwarul Haq, J

Shahzada MUZAFFAR ALI-Defendant-Appellant

Versus

(1) Mst. AGHA BEGUM AND

(2) GAULAM HUSSAIN AND OTHERS-Plaintiff-Respondents

Regular Second Appeal No. 400 of 1961, decided on 21st July 1967.

(a) Civil Procedure Code (V of 1908)----S. 100-Second appeal finding of fact-No


misreading or ignoring of evidence by lower appellate Court, no question of
admission of admissible evidence Finding must hold good in second appeal-Case
of oral (gift) [Nadir Shah v. Lal Shah and another P L D 1954 Lah. 417; Abdul
Majid and others v. Khalil Ahmad P L D 1955 F C 38 and Mst. Fatima v. Khuda
Bakhsh and others P L D 1959 Lah. 826 ref.].

(b) Practice-(New point)----Pure point of law may be allowed to be raised in


second or Letters Patent Appeal for first tune if no prejudice is caused to other
party-(Question involved; validity of gift as to part which is undivided)-[Nadir
Shah v. Lai Shah and another P L D 1954 Lab. 447 ; Mongal Much; v. Abu Musa
Mustafa and others P L D 1958 Dacca 26 ref. ; Shugan Chand and others v. Shiker
Chand and others A I R 1925 Lah. 192 ; Basheshar Das v. Diwan Chand and
others A I R 1933 Lab. 615 and Thakur Modhu Singh and another v. Lieut James
R. R. Skinner and others A I R 1942 Lab. 243 distinguished ; Jandoo Khan v.
Hakim Muhammad Ishaq P L D 1964 Kar. 61 Subhani alias Sobho v. Mst. Satbai
P L D 1964 Kar. 206 ref. and Muhammad Hussain v. Messrs Pakistan Boot House
P L n 1959 Kar. 360 considered].

(c) Muhammadan Law- Gift----Transfer of possession Constructive possession by


getting tenants to attorn to donee Regarded as transfer of possession.

(d) Muhammadan Law-Gift-----Musha'a -Property capable of division-Gift of


part ordinarily invalid -Exceptions, e.g. gift of property in large commercial
town-Lahore regarded as such town Evidence Act (I of 1871), S. 57-Judicial notice
taken of Lahore having assumed and added importance as a "commercial town".

Ordinarily the gift of an undivided share in property which is capable of division


would be invalid, but there are certain exceptions to this rule, one of these being
related to property situated in a large commercial town.

Hedaya, 2nd Edn., p. 483.

Mulla's "Principles of Muhammadan Law" 14th Edn., para. 160.

Ibrahim Goolam Ariff v. Saiboo I L R 35 Cal. 1 ; Mst. Natho v. Mst. Hidayat


Begum P L R 1947 Lah. 197 ; Mst. Begum v. Kazbanoo and others P L D 1957 Kar.
884 and Muhammad Ibrahim and others v. Muhammad Shah and others P L D
1963 B J1 rel.

Said Hassan v. Shah Hussain A I R 1947 Lab. 272 considered.

Sh. Abdur Rashid for Appellant.

Syed Amjad All Indrabi for Respondent No. 1.

Page No. 1 of 8
Qazi Muhammad Ashraf for Respondent No 2.

Dates of hearing : 27th February and 1st May 1967.

JUDGMENT

This second appeal by one of the defendants Shahzada Muzaffar Ali has arisen
out of a suit instituted by his sister Mst. Agha Begum seeking a permanent
injunction for restraining the defendants from describing themselves as owners
of the property in dispute and from interfering with the possession of her tenants
occupying this property, which is described as Katri Shahzada Sultan Jamal alias
Shahzada Gul, bearing No. 2412 and two houses adjacent to it bearing Nos. 2413
and 2254. The property is situated in Mohallah Khizri inside Sheranwala Gate,
Lahore, and was owned by Shahzada Sultan Ali who died in 1935, leaving
behind a son named Shahzada Sultan Hussain and a widow Mst. Aziz Bibi.
Sultan Hussain died issueless in 1947, leaving behind him as his widow the
plaintiff-respondent Mst. Agha Begum, Mst. Aziz Bibi was the step-mother of
Sultan Hussain and she also died in 1958 and the defendant Ghulam Hussain has
been brought on the record as her only legal representative, being her chachazad
brother. The appellant Muzaffar Ali as well as the plaintiff Mst. Agha Begum are
the children of one Mst. Sardar Begum who was a cousin of Mst. Aziz Bibi. The
latter claimed to have adopted Muzaffar Ali as her son and to have gifted in his
favour the property in dispute by means of a written deed (Exh. D. 37) executed
on the 26th of March 1954 registered on the 10th of April 1954.

2. The case set up by the plaintiff-respondent was that after the death of her
father-in-law Shahzada Sultan Ali there were only two heirs to the property,
namely, his son Shahzada Sultan Hussain and his widow Mst. Aziz Bibi, who
succeeded to the Haveli in the ratio of 7/8 and 1/8, respectively, and that after
the death of Shahzada Sultan Hussain she succeeded him as his sole heir to the
extent of 7/8 in the entire property. She asserted that she and her husband's step-
mother Mst. Aziz Bibi remained in joint possession of the Haveli to the extent of
their respective shares, but then her brother Muzaffar Ali started claiming the
entire Haveli on the ground that he was the adopted son of Shahzada Sultan Ali
and that Mst. Aziz Bibi had gifted the entire Haveli in his favour. She stated
further that the assertions made by her brother Shahzada Muzaffar Ali were
incorrect and that, in any case, the gift made by Mst. Aziz Bibi in favour of the
appellant was invalid for the reason that possession was not delivered to the
donee. Moreover, it was added, that Mst. Aziz Bibi being the owner of only
1/8th share in the Haveli, which had not yet been partitioned, could not make a
valid gift of an undivided share in the property.

3. The present appellant as defendant No. 1 asserted that the late Shahzada
Sultan Ali had made a gift of the entire property in suit in favour of his wife Mst.
Aziz Bibi in 1927 in lieu of her dower, and he delivered its possession to her, and
got his tenants to execute rent deeds in her favour. Thus Shahzada Sultan Ali did
not leave any property at the time of his death, and accordingly there was no
question of his son Sultan Hussain succeeding him and for this very reason the
plaintiff-respondent did not inherit any share in the dispute property. In the
alternative it was asserted that the plaintiff could succeed only to 1/4th share in
the property. The appellant further claimed that Mst. Aziz Bibi had gifted the
entire property in his favour through a registered gift dated 10th April 1954.
Finally, it was averred that even if the two gifts, i.e. the one in favour of Mst.
Aziz Bibi by Sultan Ali, and the second in favour of the appellant by Mst. Aziz
Bibi, were not established, Mst. Aziz Bibi and after her the appellant had been in
adverse possession for over 12 years. Preliminary objections regarding the
maintainability of the suits and its valuation were also raised.

Page No. 2 of 8
4. The second contesting defendant Ghulam Hussain supported Shahzada
Muzaffar Ali in so far as the oral gift by Shahzada Sultan Ali in favour of Mst.
Aziz Bibi was concerned but he denied the second gift by Mst. Aziz Bibi in
favour of Muzaffar Ali. He further averred that if Mst. Aziz Bibi had made any
such gift in favour of Muzaffar Ali the same stood invalidated on the ground that
at the time of making the gift Mst. Aziz Bibi was of unsound mind. On these
assertions Ghulam Hussain claimed the entire Haveli for himself as being the
sole heir of Mst. Aziz Bibi.

5. The learned trial Judge found that Mst. Agha Begum was in possession of the
property and there was no question of adverse possession by Mst. Aziz Bibi or
by the appellant Muzaffar Ali. He further held that the alleged oral gift by
Shahzada Sultan Ali in favour of his wife Mst. Aziz Bibi was not proved and,
therefore, the property was inherited by Sultan Ali's son Sultan Hussain to the
extent of 7/8th share and by his widow Mst. Aziz Bibi to the extent of 1/8th
share, that after the death of Sultan Hussain his share descended in its entirety to
his widow Mst. Agha Begum and on Mst. Aziz Bibi's death her 1/8th share came
to defendant Ghulam Hussain. Lastly, the learned trial Judge held that the
registered gift deed dated the 10th of April 1954 by Mst. Aziz Bibi in favour of
appellant Muzaffar Ali was proved, but possession was not delivered under the
gift and, therefore, the gift was void for that reason as well as for the reason that
Mst. Aziz Bibi was not the owner of the entire property. On these findings the
respondent's suit was decreed with costs.

6. In appeal the findings of the learned trial Judge were upheld by Mr. Saad
Saood Jan, Additional District Judge of Lahore, and Muzaffar Ali's appeal was
dismissed. Hence the present second appeal.

7. The main contentions put forward by Sheikh Abdur Rashid, the learned
counsel for the appellant, are :---

(a) That the two Courts below have not properly appreciated the evidence
brought on the record in coming to the conclusion that the oral gift of the entire
property by Shahzada Sultan Ali in favour of his wife Mst. Aziz Bibi was not
proved; and

(b) that, in any case, Mst. Aziz Bibi having inherited 1/8th share in the property
on the death of her husband Shahzada Sultan Ali, the gift made by her in favour
of the appellant Muzaffar Ali was valid at least to this extent, but the Courts
below have failed to appreciate this aspect of the case.

7. On behalf of the contesting respondents, namely, the plaintiff Mst. Agha


Begum and the defendant Ghulam Hussain, it is submitted that the first
contention raised by the learned counsel for the appellant touches a question of
fact which cannot ordinarily be permitted to be re-opened in second appeal, and
that the conditions which would justify re-examination of a finding of fact are
not present in the instant case. It is further submitted that the second point
regarding the validity of the gift to the extent of 1/8th share in the property is a
completely new point which cannot be permitted to be raised in second appeal;
and that, in any case, it would be hit by the doctrine of Musha'a.

8. The first point raised by Shaikh Abdur Rashid is undoubtedly a question of


fact and as held in Nadir Shah v. Lal Shah and another (P L D 1954 Lah.447),
Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38) and Mst. Fatima v.
Khuda Bakhsh and others (P L D 1959 Lah. 826) the High Court has no power to
re-open a finding of fact while acting in second appeal. In the first-mentioned
case it was observed as under:

Page No. 3 of 8
"A second appeal under subsection (1) of section 100 of the Code of Civil
Procedure lies, inter alia, on the ground that the decision of the lower appellate
Court is contrary to law or to some usage having the force of law. The necessary
implication of this subsection is that questions of fact cannot be agitated before
the High Court in second appeal unless their decision raises some questions of
the kind mentioned in clause (c) of that subsection.

However gross or inexecusable the error in coming to a finding of fact may be,
there is no jurisdiction in the High Court to question that finding unless the error
is an error in the procedure provided by law, which may possibly have produced
error or defect in the decision of the case on merits.

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, for example, a sale, mortgage,
servitude or tort, such question is clearly one of law."

9. This view was approved by the Federal Court in Abdul Majid's case and
reiterated in the case of Mst. Ghulam Fatima. It was explained that if there be no
proper evidence in support of a finding by the first Court of Appeal or tile
evidence is misread or misrepresented, the finding, though one of fact, is vitiated
and a Court of Second Appeal is entitled to review it.

10. Now, in the present case the learned counsel for the appellant has pains
taking reviewed the entire evidence brought on the record and having a bearing
on the question. of the alleged oral gift made by Shahzada Sultan Ali in favour of
his wife Mst. Aziz Bibi, in an effort to show that the two Courts below have the
erred in holding that the gift was not proved. his evidence is of the following
types:---

(a) Statements of persons who were present at the time the oral gift was made,
namely, Ghulam Mohy-ud-Din (D. W. 17), Muhammad Ali (P. W. 3) and the a
appellant himself as D. W. 18. Two more persons, namely, Shahabuddin and
Merajuddin, were also said to be present, but they were not produced,

(b) statement of persons like Fateh Ali Shah (P. W. 12) who deposed that
Shahzada Sultan Ali had told them a number of times that he had gifted the
Haveli to Mst. Aziz Bibi,

(c) the evidence of certain tenants and (if rent deeds executed by them
purporting to attorn to the donee Mst. Aziz Bibi during the lifetime of her
husband Shahzada Sultan Ali, and

(d) evidence of the conduct of Shahzada Sultan Ali and his son Shahzada Sultan
Hussain indicating that they regarded Mst. Aziz Bibi as full owner of the entire
property.

11. A perusal of the judgment under appeal shows that all these pieces of
evidence have been examined at length in paragraphs 9 to 14 thereof anal the
conclusion reached is that the alleged oral gift by Shahzada Sultan Ali in favour
of Mst. Aziz Bibi is not proved on the record. After hearing Sheikh Abdur Rashid
at some length, I have not been able to discover any misreading or ignoring of
the relevant evidence, nor is there any question of admission of inadmissible
evidence. Such being the case, I do not think it necessary to discus the question
any further except to say that the finding of fact arrived at by the lower appellate
Court must hold good in the present second appeal. It follows, therefore, that

Page No. 4 of 8
Mst. Aziz Bibi became the owner of only 1/8th share in the property on the death
of her husband Shahzada Sultan Ali, and it is only with regard to this share that
the question of the validity of the gift made by her on the 10th of April 1951, in
favour of the appellant Muzaffar Ali needs to be examined.

12. On this question notice may first be taken of the objection raised by Qazi
Muhammad Ashraf, the learned counsel for the respondent Ghulam Hussain,
that this is a new point and should not be permitted to be raised in second
appeal. In support of this objection the learned counsel has referred to Shugan
Chand and others v. Shiker Chand and others (A I R 1925 Lah. 192), Basheshar
Das v. Diwan Chand and others (A I R 1933 Lah. 615), Thakur Modhu Singh and
another v. Lieut. James R. R. Skinner and others (A I R 1942 Lah. 243),
Muhammad Hussain v. Messrs Pakistan Boot Hoarse (P L D 1959 Kar. 360),
Jandoo Khan v. Hakim Muhammad Ishaq (P L D 1964 Kar. 61) and Subhani alias
Sobho v. Mst. Satbai (P L D 1964 Kar. 206).

13. In the first of the cases cited by Qazi Muhammad Ashraf there is no
discussion of the question involved and it is simply observed that "a defendant
cannot raise for the first time in second appeal a point which he did not raise in
the written statement and as to which no issue was framed." In the second case
the learned Judge observed that "as to this point it would be sufficient to say that
this contention which involves questions of fact does not appear to have been
ever raised in the Courts below . . . . . . In the circumstances, I see no adequate
grounds for allowing this point to be raised at this stage." It will be seen that the
new plea was ruled out of order on the ground that it raised a new factual
controversy which had not been examined by the Courts below, the implication
being that a plea involving a pure question of law could be permitted to be
raised. The same view was expressed in the third case mentioned above.
However, in the case of Muhammad Hussain the learned Judges appear to have
taken the view that even a question of law not raised in the trial Court should not
be allowed to be raised in appeal. A different view was expressed in the cases of
Jandoo Khan and Subhani alias Sabhu in which a question of law was permitted
to be raised in second appeal. Again, in Mongal Much! v. Abu Musa Mustafa and
others (P L D 1958 Dacca 26) the view was expressed that "when a question of
law is raised for the first time in a Court of last resort, upon the construction of a
document, or upon facts either admitted or proved beyond controversy, it is not
only competent, but expedient, in the interest of justice, to entertain the plea."

14. Besides the cases relied upon by Qazi Muhammad Ashraf, it will be useful to
refer to an observation made by Muhammad Munir, C. J., in the case of Nadir
Shah to which reference has already been made in another context. While dealing
with a new point sought to be raised on behalf of the respondent the learned
Chief Justice expressed himself as under:---

"This point was neither taken at the trial nor at the hearing of the first or the
second appeal. Though a pure question of law may be permitted to be taken in
second appeal, including a Letters Patent Appeal, if no prejudice is caused to the
other side, where the decision on the question of law depends upon the
determination of a question of fact it cannot be permitted to be raised for the first
time in appeal."

It seems to me that, if I may say so with respect, this observation of the learned
Chief Justice represents the consensus of judicial opinion and accordingly I
would permit the appellant to agitate the question of the validity of the gift with
regard to the 1/8th share of Mst. Aziz Bibi provided it can be decided without a
fresh investigation into fact.

15. It is common ground between the parties that the 1/8th share of Mst. Aziz
Bibi has not been divided off from the 7/8th share of Mst. Agha Begum, and

Page No. 5 of 8
accordingly the question is whether the gift of this undivided 1/8th share would
be hit by the doctrine of Musha'a as understood in Muslim Law.

16. In the first place, it has to be stated that in the registered gift deed executed
by Mst. Aziz Bibi in favour of the appellant Shahaada Muzaffar Ali it is narrated
that possession ha been delivered. This position is supported by a number of rent
notes executed by several tenants in favour of the donee and it would suffice to
refer to some of them, namely Exhs. D. 38 to c D. 47. It appears, therefore, that as
far as the donor was concerned she completely divested herself of the subject-
matter of the gift and delivered constructive possession to the donee with the
result that the tenants physically occupying the property started attorning to
him.

17. It was, however, submitted by Qazi Muhammad Ashraf, the learned counsel
appearing for the respondent Ghulam Hussain that even though it be held that
constructive possession of the property had been delivered by the donor to the
donee, yet the property being capable of division, the gift of an undivided share
would be invalid as stated in Hedaya, Second Edition, page 483. The relevant
observations are as under--

"A gift of part of a thing which is capable of division is not valid unless the said
part be divided off and separated from the property of the donor, but a gift of
part of an indivisible thing is valid. Shafei maintains that the gift is valid in either
case, because the gift is a deed conveying property and valid as such, with
regard either to things that are connected or separated, in the same manner as in
sale. The ground of this is that as an indefinite share has the capacity to
constitute property, it is consequently a fit subject of gift ; nor is a voluntary deed
rendered null by the indefiniteness of the subject of it."

There then follows a discussion, the object of which appears to be to show that
the view adopted by Shafei was not maintainable.

18. The learned counsel then referred to Said Hassan v. Shah Hussain (A I R 1947
Lah. 272) in which the view has been expressed that "a gift of undivided share in
a plot of land in favour of a person who is not a co-sharer with the donor is
invalid. Such a gift could have been validated if the donor bad partitioned the
land and then delivered possession of one-half share to the donee. But a mere
statement in the gift deed that possession had been delivered of the undivided
share does not validate the gift."

19. On behalf of the appellant, Sheikh Abdur Rashid has placed reliance on
Ibrahim Goolam Arif v. Saiboo (I L R 35 Cal. 1), Mst. Natho v. Mst. Nidayat
Begum (P L D 1947 Lah. 197), Mst. Begum v. Kazbanoo and others (P L D 1957
Kar. 884) and Muhammad Ibrahim and others v. Muhammad Shah and others
(PLD1963BJ1). In the first case their Lordships of the Judicial Committee referred
with approval to the principles laid down in Muhammad Mumtaz Ahmad v.
Mst. Zubaida Jan (ILR 11 All.460), to the effect that the doctrine relating to the
invalidity of gifts of Musha'a is wholly un adapted to a progressive state of
society, and ought to be confined within the strictest bounds, and held that "the
doctrine was not applicable to shares in companies nor to shares in freehold
property in a large commercial town". This view was followed by Cornelius, J.
(as he then was) in Mst. Natho's case. His Lordship observed that "the conditions
of a valid gift under Muhammadan Law are that there should be a declaration of
gift by the donor, and acceptance whether express or implied by the donee and
delivery of possession of the subject-matter of the gift by the donor to the donee.
The possession may be such as the subject of the gift is susceptible of . . . . . . .
And that, in any case, the doctrine of Musha'a did not apply to the gift of an
undivided share in a house situated in a large commercial town like Lahore and,
therefore, the gift in question was not invalid". Again, a Division Bench of this

Page No. 6 of 8
Court observed in Mst. Begum's case that "the doctrine of Musha'a was in the
nature of a restraint on freedom to transfer one's property and should be limited
to properties to which it had been actually applied in the past and that the Court
should have refused to apply the rule of Musha'a to gifts in respect of properties
in commercial towns". In this case as well reliance was placed on the
observations of the Judicial Committee in Ibrahim Goolam Ariff's case.

20. The question was again discussed at great length in Muhammad Ibrahim and
others v. Muhammad Shah and others and several authorities were noticed in
detail. J. H. Rizvi, J. who delivered the judgment of the Court, quoted at length
from Mulla's Principles of Muhammadan Law to the effect that "a gift of an
undivided share, though it be a share in property capable of division, is valid
from the moment of the gift even if the share is not divided off and delivered to
the donee in the following cases: (1) where the gift, is made by one co-heir to
another, (2) where the gift is of a share in a Zamindari or Taluka, (3) where the
gift is of a share in freehold property in a lager commercial town, and (4) where
the gift is of shares in a land company." The conclusion reached by the learned
Judges in this case was that "the principle of Musha'a, according to the strict
Muhammadan Law, is that the gift of an undivided share in property capable of
division is invalid (fasid), but if subsequent to the gift the property gifted is
specifically earmarked or partitioned and handed over to the donees, and they
remain in actual physical possession of the property, the gift becomes valid." In
the case before the Division Bench the question of considering any of the
exceptions enumerated by Mulla to the general rule of Musha'a did not arise.

21. From a perusal of the authorities cited at the Bar it is clear that ordinarily the
gift of an undivided share in property which is capable of division would be
invalid, but there are certain exceptions to this rule, as enumerated by Mulla in
paragraph 160 of the 14th Edition of his book, and one of these exceptions relates
to property situated in a large commercial town. I see no reason why I should not
give effect to this exception in the present case.

22. It was submitted by Qazi Muhammad Ashraf that there is no material on the
record to hold that Lahore is a big commercial town, and that this question as
well as the question regarding the divisibility of the property would need factual
investigation, and for these reasons I should refrain from deciding whether the
gift of 1/8th property would be valid or not in the circumstances of this case.

23. I do not see much substance in this submission, for the reason that the whole
argument on behalf of the appellant has proceeded on the assumption that the
property is capable of division, for if it were not so capable, then the question of
considering exceptions to the rule of Musha'a would not arise. No factual
investigation, therefore, is needed on this account. As regards the commercial
nature of Lahore town, suffice it to say that it was so regarded by Cornelius, J. in
the case to which reference has already been made; and then judicial notice can
be taken of the fact that since then Lahore has assumed and added importance as
a commercial town.

24. For the foregoing reasons, the appeal fails in so far as it concerns?/8th share
of the property which belongs to the plaintiff respondent Mst. Agha Begum, and
is accordingly dismissed with costs to that extent; but it is accepted with costs as
against respondent No. 2 Ghulam Hussain in respect of 1/8th share of the
property which had come to Mst. Aziz Bibi by way of inheritance and which
could be gifted away by her in favour of the appellant.

A.H. Order accordingly.

Page No. 7 of 8
P L D 1963 (W. P.) Baghdad- ul-Jadid 1

Before S. A. Mahmood and Jamil Hussain Rizvi, JJ

MUHAMMAD IBRAHIM AND OTHERS-Appellants

versus

MUHAMMAD SHAH AND OTHERS-Respondents

Regular Second Appeal No. 7 of 1962, decided on 23rd October, 1962.

(a) Muhammadan Law-----

----Mushaa-Suit challenging validity of gift by heirs of donor after his death-


Maintainable.

Maqbool Ahmad v. M. Manzoor Ahmad P L D 1959 B J 3 rel.

(b) Muhammadan Law---

---Mushaa-Principle as enunciated under strict Hanafi law-Gift of undivided


share (mushaa) in property capable of division-Irregular (fasid) but not void
(batil)-Mushaa gift though invalid in inception may be validated by delivery of
possession-Case-law fully discussed.

Nazir Din and others v. Muhammad Shah and others A I R 1935 Lah. 92 ;
Safiullah v. Abdul Jabbar P L D 1955 Lab. 199 ; Muhammad Mumtaz Ahmad v.
Zubeida Jan 16 1 A 206 ; Ibrahim Goolam Arif v. Saiboo 34 I A 167 ; Fayyazuddin
v. Kutbuddin 10 Lah. 761 ; Rahmat All v. Mst. Daulat Bibi A I R 1925 Lah. 501 ;
Ma Mi v. Mallander Animal I L R 5 Rang. 7 Muhammad Sadiq Ali v. Fakhar
Jehan Begum 6 Luck. 556 ; Hamid Ullah v. Ahmad Ullah A I R 1936 All. 473 ;
Ebrahim Alibhai Akuji v. Bai Asi and others A I R 1934 Bom. 21 ; Bibi Kanij
Fatima v. Jai Narain Ram and others A I R (1944) 31 Pat. 334 ; 7 Pat. 118 15 I A
51 ; 16 1 A 205 ; 35 Cal. 1 (P C) 58 Bom. 164 ; Abdul Aziz v. Fateh Muhammad
Haji 38 Cal. 518 ; Jafar Ali Khan and others v. Nasimannessa Bibi A I R 1937 Cal.
500 ; Zahuran and others v. Abdus Salam and others A I R 1930 Oudh 71 ;
Nirman Singh and others v. Thakur Lal Rudra Partob Narain Singh and others A
I R 1926 P C 100 ; Ahmad Hussain and others v. Qadar-ul-Zaman A I R (1927)
Lah. 413 and Bibi Balkis v. Sh. Wahid Ali and others A I R 1928 Pat. 183 ref.

Tayabji : "Muhammadan Law," III Ed. paras. 426, 374 and S. 381 p. 404; "Mulla" :
"Principles of Muhammadan Law," 15th Ed. p. 139 and para 160 Syed Amir Ali :
“Muhammadan Law pp. 38, 42 and 55 ; "Fatawa-i-Alamgiri," Vol. 7, 1932 Ed. p.
76, "Majmuaul Fatawa" by Maulana Abdul Hayee, p. 26 ; "Fatawa Darul Alum,
Deoband," p. 175 and Baillies' : "Digest of Muhammadan Law," 1957 Ed. p. 523
ref.

Perzada M. Saleem Aslam for Appellants.

Ch. Farzand Ali for Respondents.

JUDGMENT

JAMIL HUSSAIN RIZVI, J.-This regular second appeal was heard by my learned
brother S. A. Mahmood, J., who by his order dated the 21st of June, 1962, referred
the case to my Lord the Chief Justice for being entrusted to a larger Bench
preferably to a Full Bench. It has, therefore, come up before us. It has been
remarked in para. 16 of the judgment of reference as follows:-

Page No. 1 of 8
"In view of what has been stated above, it is obvious that there is divergence
between the Shariat and the decided cases. The question of law involved is of
considerable importance and needs to be authoritatively decided. I, therefore,
suggest that this case be referred to a larger Bench preferably a Full Bench, to go
into the question of Mushaa under the Shariat, so far as it affects the validity of
gifts of undivided property."

2. The relevant facts are as follows. Major Saif Khan owned 139 kanals of land in
Sadiqgarh Palace in Dera Nawab. He gifted orally to Muhammad Shah and
Ahmad Shah 48 kanals of land entered in Khata No. 67 and one-fourth share in a
well in Khata No. 26, along with the share in the Shamilat. Mutation No. 16
entered on the 19th of March 1937, was sanctioned on the 25th of April 1937
Major Saif Khan died in the year 1944 and his sons Muhammad Ibrahim and Ata
Muhammad appellants brought a suit on the 5th of November, 1944 for
possession of the gifted land against Muhammad Shah and Ahmad Shah. The
basis of the suit was that the gift was invalid and the possession of the donees on
the land was illegal. The respondents contested the suit and the trial Court
framed the following issues :-

(1) Does the gift of the land in dispute amount to mushaa and, therefore, invalid
under Sharaa ?

(2) Was the registration of the alleged gift dated 28-3-1937 compulsory under
section 17 of the Registration Act and the document was not registered ?

(3) Was the mutation attested on 24-3-1937 invalid under Sharaa and law and,
therefore, ineffective on the plaintiff's rights of inheritance ?

(4) Are the defendants in adverse possession of the land in dispute for more than
12 years ?

(5) Are the defendants not governed by Sharaa and, therefore, not entitled to the
decree prayed for ?

(6) Had the plaintiff's father disinherited them and, therefore, they are not
entitled under Sharaa to the property left by him ?

(7) Is the suit by the donor's heirs for the return of the property gifted not
maintainable after his death and, therefore, the present suit is liable to dismissal ?

(8) Is the land in suit a specified share of the Zamindari and its gift is valid
according to Sharaa and is not covered by the definition of mushaa ?

9. To what relief are the plaintiffs entitled ?

The suit was decreed by the trial Court, which decided issue No. 2 in favour of
the defendants, while all the issues were decided in favour of the plaintiffs. The
learned District Judge, Rahimyarkhan accepted the appeal on two grounds.
Firstly, that the doctrine of mushaa did not apply to the case facts of this case as
the land gifted by the plaintiff's father was an undivided share in a joint Khata,
and it was well established that such a share could be validly gifted under
Muhammadan Law, it being a definite share which could be got partitioned at
the instance of the donees. The learned District Judge relied on Nazir Din and
others v. Muhammad Shah and others (A I R 1936 Lah. 92) which was followed
in Safiullah v. Abdul Jabbar (P L D 1955 Lah. 199). The learned District Judge also
came to the conclusion that the gift made by Major Saif Khan which had been
completed during his lifetime become irrevocable on his death as stated in

Page No. 2 of 8
paragragh 426 of the Tayabji's Muhammadan Law, III Edition. This would
amount to upsetting the findings of the trial Judge on issues 1, 7 and 8.

3. The learned counsel for the appellants contended that according to the
principle of mushaa, as envisaged by Muslim Law, the gift was invalid as it was
of an unspecified area out of a joint Khata of which the possession had not been
given to the donee. The authorities that were relied by the learned District Judge
and also by the learned counsel for the respondents before us are attacked by the
learned counsel for the appellants on two grounds. That the authorities did not
apply to the facts of the present case and secondly that there was a slight
departure from the strict Muslim Law in these authorities as those
pronouncements were made under the influence of the Anglo-Muhammadan
Law as prevalent in India during the British regime. , The present case was to be
decided according to strict Shariat Law. The authorities cited by the learned
District Judge and the learned counsel for the respondents are as follows :-

I. Nazir Din and others v. Muhammad Shah and others.

The learned Judge has remarked in this authority that Muhammadan Law
neither contemplated actual delivery of the possession by the donors to his
grandsons for the gift to be valid, nor prohibited gifts of one-half share out of 576
acres of land and three-fourth share in the house. It has been further remarked
that "it is no doubt true that according to strict Hanfi Law, the general
proposition as laid down by some of its exponents is to the effect that an
undivided part of a thing capable of division cannot be the subject of a gift. But,
to my mind, it means something else than what is imported into it by the learned
counsel for the appellants. The Muhammadan law of gift has been interpreted on
several occasions by their Lordships of the Privy Council as well as by the High
Court in India, and the general principal deducible from those authorities is that,
in case the donor and the donee are related to each other in the manner in which
they are related in the present case, it is unnecessary that the donor should
physically part with the possession of the property, and that a mere intention on
his part to treat the property as that of the donee and to divest himself of his own
ownership, is enough to constitute a valid gift". The learned Judge after
considering Muhammad Mumtaz Ahmad v. Zubeida Jan (16 I A 206), Ibrahim
Goolam Arif v. Saiboo (34 I A 167), Abdul Aziz v. Fateh Muhammad (38 Cal.
518), Fayyazuddin v. Kutbuddin (10 Lah. 761), Rahmat Ali v. Mst. Daulat Bibi (A
I R 1925 Lah. 501), Ma Mi v. Mallander Ammal (I L R 5 Rang. 7) and Muhammad
Sadik Ali v. Fakhar Jehan Begum (6 Luck. 556) remarked "it, was manifest from
these authorities that the original rigidity of the rule of mushaa has been
considerably relaxed in its application to British India and in almost all cases.
Which have come up before the Courts, an effort has been made to adopt the rule
to its environments and to interpret it so as to make it consistent with the
principles of justice, equity and good conscience. The Courts in this country have
given effect rather to the spirit of the rule than to its letter and have upheld gifts
in all cases in which the intention to give on the part of the donor had been
expressed in most unequivocal terms, and had further been attended by all
honest efforts on his part to complete the gift by divesting himself of the control
over the property in such a manner as would clearly imply his divestiture in the
eye of the law of the land. The raisen d'etre of this rule was the avoidance of gifts
that were vague, indefinite or incomplete, and the only test that should be
applied in such cases is whether the gift in question is open to any of these
objections, or in other words, whether the donor has still reserved to himself a
loop-hole of escape or not. If this is not so and if the donor has done all that the
law of the land requires to be done to separate himself from the property, a gift
of mushaa will be as valid as that of property which can be physically handed
over to the donee. Transfer of possession is no doubt the main thing in the whole
affair, and in every case this is the only thing to be seen".

Page No. 3 of 8
II. Hamid Ullah v. Ahmad Ullah (A I R 1936 All. 473).

The gifted property of undivided share of 7/32 in six houses were parcels of land
of which the donor was not in physical possession of the property was capable of
division was held to be valid, the gift was by a registered deed and the donor
stated that she had given up all her proprietary rights in the gifted property and
the donee was at liberty to transfer it in any way he chose. It was remarked that
the gift of the undivided share of the property which was capable of partition
was invalid but not void, and it could be perfected and rendered valid by
subsequent partition and delivery to the donee of the share given by him, and
that the gift was valid as the donor had done practically all that she was able to
do in the way of divesting herself of possession and giving to the donee the
possession which she herself had.

III. Ebrahim Alibhai Akuji v. Bai Asi and others (A I R 1934 Bom. 21).

This is a case in which the donor, a Muslim, gifted his land to his two daughters
and directed the tenants to pay the rent to his daughters, the tenants complied.
This was followed by a regular deed of gift. It was held that although the
possession had not been given to the two donees after dividing the property, the
gift was valid. It has been remarked that on the question whether a gift under
Muslim Law had been completed the more satisfactory method of dealing with
the question was to direct attention to the conduct of the donor and the donee
after the time when the gift was completed.

IV. Bibi Kanij Fatima v. Jai Narain Ram and others (A I R (1944) 31 Pat. 334).

The donor was in possession of one anna share in the land as the heir of her
deceased husband Muraduddin and also one anna share as the heir of her
deceased second husband Muhammad Din, she executed a deed of gift in favour
of respondent No. 7. The learned Judge supporting 7 Patna 118 and 15 I A 51 ; 16
I A 205, 35 Cal. 1 P C and 58 Bom. 164, held that a gift of an undivided share in
kaimi raivati lands was valid and the doctrine of mushaa was inapplicable to
such a case. Abdul Aziz v. Fateh Muhammad Haji (38 Cal. 518), was also relied.
It was remarked that a donee of mushaa who had taken joint possession of the
subject of gift, and who finds it convenient and practicable to continue to hold
that property without partition, should be allowed to do so. All that the law is
concerned is that before the validity of such a gift is declared, the donor must
have parted with complete possession in favour of the donee, and then it is the
look out of the donee as to whether he wants a partition or not. If the donor has
partitioned the property and given it to the donee in a definite share, the donee
could still hold the property as a tenant in common with his co-sharers, and no
question can be raised regarding the validity of the gift. Possession of a co-owner
or a co-tenant is a possession which has to be recognised by the law.

V. Jafar Ali Khan and others v. Nasimannessa Bibi (A I R 1937 Cal. 500).

It was held that a gift of mushaa of an undivided property is valid, if the


property is of a such a nature that its enjoyment in an undivided condition is
more profitable and advantageous than its enjoyment after division. The doctrine
of mushaa cannot apply to a specific share in landed property, which must be
looked upon as a separate property.

VI. Zahuran and others v. Abdus Salam and others (A I R 1930 Oudh 71).

It was held that a definite share in immovable property consisting of zamindari


houses or shops, is a separate estate with separate and defined rents. The rule of
mushaa, therefore, which aims at prohibiting confusion between estates gifted
and not gifted is wholly inapplicable to such an estate. It was further remarked

Page No. 4 of 8
that if the subject-matter of gift was only capable of constructive possession and
such possession accompanied the gift, the gift must be held to be valid.

4. The learned counsel for the appellants argued that the authorities referred to
above were a departure from the strict Muslim Law and consequently these
should not be followed. He has relied on Nirman Singh and others v. Thakur Lal
Rudra Partab Narain Singh and others (A I R 1926 P C 100), which lays down
that it was an error to suppose that proceedings for the mutation of names were
judicial proceedings in which title to add proprietary rights in immovable
property were determined. These were nothing of the kind and were much more
in the nature of fiscal enquiries instituted in the interest of the State for the
purposes of ascertaining which of the several claimants' for the occupation of
certain denominations of immovable property may be put into occupation of it
with greater confidence that the revenue for it will be paid. Orders in mutation
proceedings were not evidence that the successful applicant was in possession as
sole legal owner in a proprietary sense, to the exclusion, for example, of all
claims of the other members of the family as co-owners or for maintenance or
otherwise, as revenue authorities had no jurisdiction to pronounce upon the
validity of such a claim. The learned counsel urged that the entry of the mutation
in favour of defendants could neither be treated as evidence of good title nor that
of possession. The property in dispute being capable of partition was never
partitioned either before or after the gift, consequently, with the application of
the principle of mushaa the gift was invalid. As regards the second point on
which the learned District Judge decided against the appellants, the learned
counsel has contended that the plaintiffs did not base their case on the right of
the revocation of the gift but they attacked the legality of the gift under shariat,
and if the gift was held to be illegal, the donees will have nor title to the property
and consequently they were not entitled to retain the possession of the property
in dispute. The second contention of the learned counsel for the appellants is
supported by Maqbool Ahmad v. M. Manzoor Ahmad (P L D 1959 B J 3) that the
right to sue on the basis of the invalidity of the gift arose to the heirs of the donor
after his death and that they could challenge the gift after his death. I am inclined
to agree with this contention of the learned counsel for the appellants that the
suit of the plaintiffs challenging the validity of the gift was maintainable by the
sons of the donor after his death. As regards the first contention of the learned
counsel for the appellants, 'it is necessary to examine as to what is the principle
of mushaa as enunciated under strict Hanafi Law.

Tayabi has discussed this principle in his book on Muhammadan Law, III Edition
paragraph 374. It is stated that under the text of Hanafi Law the gift of mushaa is
not to be valid unlese the part of which gift is made is divided off and separated
from the rest and the possession of the separated part given to the donee;
provided that the gift of the undivided part is valid where one of the donees is a
minor son of the donor. At page 401, mushaa has been explained to mean
"undistributed or common". According to him the underlying principle is that
the subject of gift must be transferred as completely as possible and that when it
is capable of division from other property (provided that by division no
advantage is lost) the transfer of possession is not complete unless it is divided
off.

6. Baillie, in his Digest of Muhammadan Law, has dealt with the gift of a mushaa
at page 523, 1957 Edition. It has been stated that the gift of mushaa or undivided
part, of what does not admit of partition is lawful to a partner or to a stranger,
while the gift of mushaa, in what does admit of partition is not lawful either to a
partner or one who is not a partner. According to him and Tayabji, the gift of a
mushaa in property that admits of partition to two men or to a group, is valid
according to the two disciples, and invalid according to Abu Hanifa. But it is not
void so that it avails to the establishment of property by possession.

Page No. 5 of 8
7. Hamilton in Hedaya at page 483 states that a gift of part of a thing which is
capable of division is not valid unless the said part be divided off and separated
from the property from the donor, but a gift of part of an indivisible thing is
valid. Shafei maintains that the gift is valid in either case; because a gift is a deed
conveying property, and valid, as such, with regard to other things that are
connected or separated in the same manner as in same. The ground of this is that
as an indefinite share has the capacity to constitute property, it is consequently a
fit subject of gift nor is a voluntary deed rendered null by the indefiniteness of
the subject of it.

8. Mulla in his book, Principles of Muhammadan Law, 15th Edition, dealt with
the gift of mushaa where the property is indivisible in paragraph 160, at page
139, he says that a gift of an undivided share mushaa in property which is
capable of division is irregular (fasid) but not void (batil). The gift being irregular
and not void, it may be perfected and rendered valid by subsequent partition
and delivery to the donee of the share given to him. If possession is once taken
the gift is validated. There are some Exceptions to this rule; firstly that a gift of an
undivided share, though it be a share in property capable of division, is valid
from the moment of the gift, even if the share is not divided off and delivered to
the donee in the following cases:-

(1) Where the gift is made by one co-heir to another;

(2) Where the gift is of a share in a Zamindari or Taluka.

(3) Where the gift is of a share in freehold property in a large commercial town.

(4) Where the gift is of shares in a land company.

9. The learned counsel for the appellants has also relied on Ahmad Hussain and
others v. Qadar-ul-Zaman (A I R 1927 Lah. 413). In support of his contention he
stated that a mushaa or an undivided share does not admit of actual possession,
consequently it cannot form the subject-matter of a valid gift. It has been laid
down in this authority that the admission as to delivery of possession by the
donor in the deed of gift before the Sub-Registrar in the mutation proceedings
and in the written statement filed by him in a subsequent suit between the co -
sharers of the holding, cannot have the effect of putting the donees in actual
possession of the undivided share. He has also relied on Bibi Balkis v. Sk. Wahid
Ali and others (A I R 1928 Pat. 183) which lays down that according to the
doctrine actually in force, the original strictness of the technical rule relating to
mushaa has been considerably cut down, yet where the donor after the deed of
gift remained in joint possession until after his death and administered the
property and subsequent to his death one of his sons, one of the donees,
remained joint with the rest and administered the property, held that the gift
offended against the rule and Muhammadan Law as to mushaa and as to transfer
of possession.

9. The learned counsel for the respondents has drawn my attention to Baillie'
Digest of Muhammadan Law, 1957 Edition, page 523 and has argued that the gift
of an undivided share is not void, but is only fasid and it can be validated by
actual delivery of possession. If a person makes a gift to another of an undefined
land (such as half or one-fourth), such gift is invalid for the reasons already set
forth. If, however, he afterwards divides it off and makes delivery of it, the gift
becomes valid, because a gift required completion by seisin, and in this case
nothing else remains indefinitely invalid with the gift at the time of seisin. He
supported his contention by citing Tayabji's Muhammadan Law section 381 page
404, Third Edition, wherein it has been laid down that a gift invalid in its
inception because of its subject not being divided off, may be validated by its
subject being subsequently divided off from the rest of the property of which it

Page No. 6 of 8
forms part, and by possession being given to the donee of the divided part. He
has also cited para. 160 of Mulla's Muhammadan Law, 15th Edition which lays
down that a gift of an undivided share (mushaa) in property which is capable of
division is irregular (fasid), but not void (battil). The gift being irregular, and not
void, it may be perfected and rendered valid by subsequent partition and
delivery to the donee of the share given to him. If possession is once taken the
gift is validated. The same principle has been laid down by Syed Amir Ali, in his
book, Muhammadan Law, page 38, that the gift of a mushaa is not void so that it
avails to the establishment of the property by possession. At page 42, it has been
stated that a Haba-bil-mushaa or a gift of an undivided joint property is not void
but only invalid, and possession remedies the defect. The same principle has
been laid down at page 55 of the same book. The learned counsel has also invited
my attention to Fatawa-i-Alamgiri, Vol. 7, 1932 Edition, page 76, Majmuaul
Fatawa, Maulana Abdul Hayee, page 26, Fatawa Darul Alum, Deuband; page
175, in which the same principle has been laid down that the gift of a mushaa
even if invalid at its inception is validated by the delivery of possession.

10. The learned counsel for the respondents after relying on the strict Muslim
Hanafi Law, has urged that the evidence in the present case clearly proved that
the donor at the time of making the gift delivered possession of the land in
dispute to the donees and the donees continued in possession of the same till the
present suit for possession was filed against them. Consequently, he has urged
that the gift was valid. Mutation No. 16 clearly shows that the gift was of 48
kanals of land. The plaintiff-appellants sued for the possession of the same which
would, show that the donees came into possession of 48 kanals of land which
was gifted to them and remained in their possession till the present suit was
filed. Bahawal Bakhsh (P. W . 6) admitted that during the lifetime of the donor
the land in dispute was being cultivated by the donees and they were receiving
its produce, that the donees paid the land revenue for the property in dispute
and that the receipts relating to the land revenue were issued by him which bore
his signatures; and that the donees were in possession of the land in dispute even
on the day the witness made his statement. Allahdad (P. W. 2) and Khuda
Bakhsh (P. W. 3) also admitted that since after the gift the donees have been
continuously-in cultivating possession of the land gifted to them by Major Saif
Khan, the donor. The produce of the land which was in possession of the donees
was being taken by them and that the produce of the rest of the land was being
taken by Major Saif Khan. The entries in the revenue papers shows the land to be
jointly held by the donor and the donees. This depends on the manner in which
the records are maintained by the revenue authorities but the fact remains that
from the day of the gift, the gifted property i.e., 48 kanals of land had always
been in exclusive possession of the donees and their possession on that land
started during the lifetime of the donor. Khasra Girdawari Exh. P. J. further
supports the contention of the learned counsel for the respondents that the
donees have been in actual cultivating possession of the land gifted to them.

11. In view of what has been said above, I am clearly of, the view that the
principle of mushaa, according to the strict Muhammadan Law, is that the gift of
an undivided share in property capable of division is invalid (fasid), but if
subsequent to the gift, the property gifted, is specifically earmarked or
partitioned and handed over to the donees, and they remain in actual physical
possession of the property, the gift becomes valid. The evidence in the present
case, clearly established that the donees came into possession of 48 kanals of land
either at the time of gift or immediately after the gift and they remained in
possession of the gifted property during the lifetime of the donor and even after
that uptil now. In these circumstances, the gift is valid and the plaintiff-
appellants' suit has been rightly dismissed by the learned District Judge. The
appeal fails, and is dismissed with costs.

Page No. 7 of 8
K. B. A. Appeal dismissed.

Page No. 8 of 8
P L D 1957 (W. P.) Karachi 884

Before G. B. Constantine and Z. H. Lari, JJ

BEGUN-Appellant

versus

Mst. KAZBANOO and others-Respondents

First Appeal No. 16 of 1949, decided on 18th September 1957.

(a) Appeal-Practice-Plea of undue influence not raised in suit-Cannot be allowed


to be raised in appeal-Civil Procedure (7ode (V of 1908), S. 96.

(b) Muhammadan Law, - Gift - Mushaa - Doctrine of mushaa must be confined


within strictest rules-Not to be applied to gifts in 7espect of properties in
commercial towns.

The doctrine of mushaa is wholly unadapted to a progressive state of society and


must he confined within the strictest rules.

The rule of mushaa is in the nature of restraint on freedom to transfer one's


property and should be limited to properties to which it had been actually
applied in the past.

The Courts should have refused to apply the rule of mushaa to gifts in respect of
properties in commercial towns.

Ibrahim Goolam Aiiff v. Satboo and others 34 Ind. App. 167, Ahmad Hussain
and others v. Qamar-ul-Zaman A I R 1927 Lah. 413 and Nazir Din and another v.
Muhammad Shah and others A I R 1936 Lah.92 foil.

(c) Muhammadan Law-Gift- Mushaa-Actual possession not necessary-Donor


however should wipe him self off and put donee in same kind of possession as
donor himself had or which property gifted is susceptible of.

The delivery of actual possession of the gifted property is not at all necessary. It
is however necessary that the donor should wipe himself off and put donee in
the same kind of possession as lie him self had or which the property gifted is
susceptible of.

Where the donor executed a registered gift deed reciting therein that possession
had been delivered to the donees and got the gifted property mutated in favour
of the donees, and some tenants paid rent to the donees held, that there was an
effective transfer of possession.

Nawab Mirza Mohammad Sadiq Ali Khan and others v. Nawab Fakr Jahan
Begam and another A I R 1932 P C 13, Sheikh Gausi and others v. Mohammad
Sharif and others A I R 1930 All. 793 and Nazir Din and another v. Mohammad
Shah and others A I R 1936 Lab. 92 rel.

(d) Muhammadan Law-Gift-Principles of Marz-ul-maut when attracted.

Every human being much less an old man has an apprehension that he might die
any time suddenly but this is not the same thing as pressure of the sense of
imminence of death.

Page No. 1 of 3
To attract the application of the principle of marz-ul-maut the gift must have
been made under pressure of the sense of imminence of death.

Mst. Kammon and others v. Allah Bakhsh and others A I R 1941 Lab. 36 rel.

Muhammad Shafi for Appellant.

H. K, Mahmood for Respondents.

JUDGMENT

LARI, J.---The suit giving rise to this appeal was filed by e respondents and
Muhammad Saleh deceased for partition and separate possession of eight annas
share in a few freehold properties situate in the Town of Hyderabad (Sind) on
the ground that Muhammad Saleh husband of respondent No. 1 and father of
respondents Nos. 2-4 owned this share and had gifted the same to the
respondents. The trial Court held that the gift in favour of the respondents was
valid and decreed the suit.

It is the alleged invalidity of the gift which is the corner stone of the present
appeal and it has to be seen whether any of the contentions raised on behalf of
Begun defendant-appellant is sustainable.

The first contention of the learned counsel for the appellant was that the gift
deed in question had been obtained by undue influence. No such plea was raised
in the suit and cannot be entertained at the appellate stage. The same is the case
with the second objection that the donor had not the benefit of any independent
advice. No such objection was or could be taken.

It was argued that the finding, of the trial Court that the defendant-appellant had
failed to establish that Muhammad Saleh was of unsound mind at the time of the
execution of the deed is not justified by the evidence on the record. We have been
taken through the evidence and find that apart from the bare statement of Begun
there is nothing to show that Muhammad Saleh was of unsound mind. All that
Begun deposed was that Muhammad Saleh had no mind. By this he apparently
meant chat Muhammad Saleh had no will of his own. There is no evidence oral
or circumstantial to show that Muhammad Saleh was not in a position to
understand the nature of transaction. On the other hand the deposition of
Muhammad Saleh before the City Survey Officer and evidence of Mst. Kazbano
establish to the contrary. The finding of the trial Court was therefore fully
justified.

It was contended that the gift was invalidated by the doctrine of mushaa. It is
well established that this doctrine is wholly unadapted to a progressive state of
society and mus E be confined within the strictest rules. The Privy Council
refused to apply the principle in case of shares in companies and freehold
properties in a commercial town vide Ibrahim Goolam Ariff v. Saiboo and others
(34 Ind. App. 167). Following this decision the Courts have refused to apply the
rule of mushaa to gifts in respect of properties in commercial towns and
Hyderabad is undoubtedly a commercial town. The learned counsel relied on a
case Ahmad Hussain and others v. Qamar-ul-Zaman (A I R 1927 Lah. 413). This
case no doubt supports the contention of the appellant but cannot be followed in
view of the Privy Council decision quoted above and a Division Bench decision
of the same Court Nazir Din and another v. Mohammad Shah and others (A I R
1936 Lah. 92). The rule of mushaa is in the nature of restraint on freedom to p
transfer ones property and should be limited to properties to which it had been
actually applied in the past.

Page No. 2 of 3
It was further contended that actual possession of the gifted property was not
delivered to the donees. This was not at all necessary. What is required is that a
donor should wipe himself off and put donee in the same kind of possession as
he himself had or which the property gifted is susceptible of. This was done. A
reference may be made to the cases in Nawab Mirza Mohammad Sadiq Ali Khan
and others v. Nawab Fakr dahan Begam and another (A I R 1932 P C 13) and
Sheikh Gausi and others v. Mohammad Sharif and others (A I R 1930 All. 793)
and Nazir Din and another v. Mohammad Shah and others (A I R 1936 Lah. 92).
Muhammad Saleh executed a registered gift deed reciting therein that possession
had been delivered to the donees and got the gifted property mutated in favour
of the donees. There is also evidence that some tenants paid rent to the donees.
There was therefore an effective transfer of possession.

It was lastly argued that the gift deed was executed during the course of marz-ul-
maut and as such was void. All that has been established in the case is that
Muhammad Saleh was old, infirm, blind and died because of old age. To attract
the application of the principle of marz-ul-maut the gift must haven been made
under pressure of the sense of imminence of death. Our attention has been
drawn to a statement made by the donor before the City Survey Officer in the
following words :-

"I am afraid I might die any time suddenly and then there might be some dispute
about the heirship to my property, hence I give away as a gift to the following
heirs . . . . ."

This is not enough to establish marz-ul-maut. Every human being much less an
old man has an apprehension that he might die any time suddenly but this is not
the same thing' as pressure of the sense of imminence of death. It was held in
Mst. Kammon and others v. Allah Bakhsh and others (A I R 1941 Lah. 36) that
general debility due to old age is not marz-ul-maut. There must be some specific
mortal malady which creates a sense of imminence of death. Nothing of the kind
has been established in this case.

None of the grounds advanced for invalidity of the gift is established. There is
therefore no force in the appeal and it is dismissed with costs.

K. M. A. Appeal dismissed.

Page No. 3 of 3
P L D 1952 Lahore 230

Before Muhammad Khurshid Zaman, J

Mst. MUNI-Defendant-Appellant

versus

Mst. KHAN BIBI-Plaintiff and another, Defendant-Respondents

Second Appeal No. 6 of 1951, decided on 5th February, 1952, from the order of
Sheikh Bashir Ahmed, District Judge, Mianwali, dated the 12th May 1951,
reversing that' of Sardar Ata Ullah, Senior Subordinate Judge, Mianwali, dated
the 19th March, 1951.

(a) Civil Procedure Code (V of 1908)-----

----O. XLIII. r. (1) cl. (u)-Order of remand ostensibly under S. 151 C. P. C. Order
appealable if conditions mentioned in O. XLI, r. 23 fulfilled in substance.

Where the District judge mentioned section 151 of the Code of Civil Procedure in
his order as the provision of law under which he remanded the case for enquiry
into the additional issues but in substance the order was clearly one under Order
XLI, rule 23 of the Code of Civil Procedure the remand order was appealable
under Order XLIII, rule (1) clause (u).

(b) Civil Procedure Code (V of 1908)------

----S. 96-Right of appeal-Suit under custom for declaration that sale shall not
affect plaintiff's reversionary rights-Issue whether vendor had absolute or life-
estate in property sold decided against vendor --Whether vendor did not have a
right of appeal.

The decisive issue in the case was whether Mst. Munni appellant was only a life
tenant of the property in suit. It cannot be seriously urged that Mst. Munni
would not be adversely affected if this issue is answered, as it has been in the
affirmative. The finding of the lower appellate Court that she holds only a life
interest in the property in dispute is an attack on her legal character which she is
entitled to repel and she can only do so by preferring an appeal.

Analogy from pre-emption cases in which the vendor is not regarded as


necessary party to the suit is not opposite because in pre-emption cases the
power of the vendor to alienate the property is never in question.

Allahabad Bank Ltd., Delhi v. Mrs. Lena MacDonald of Delhi, A I R 1921 Lah.
349; Shamas-ud-Din v. Allah Dad Khan, A I R 1925 Lah. 65, Nand Lal Pal v.
Naresh Chandra Deb Goswami and others, A I R 1917 Pat. 585 and Seshayyar v.
Pappuvaradayyangar, I L R (1883) 6 Mad. 185, distinguishable on facts.

Krishna Chandra Goldur v. Mohesh Chandra Saha, 9 C W N 584, ref.

(c) Custom-Succession-----

----Self-acquired property-Daughters succeed as absolute owners in absence of


collaterals up to sixth degree -Pathans of Kamar Mushani in Isa Khel Tehsil of
Mianwali District-Customary Law of Mianwali District Answers to Questions 16
and 19-Onus to prove contrary on one contesting absolute estate of daughters.

Page No. 1 of 1
Among Pathans of Kamar Mushani in the Tehsil of Isa Khel, District Mianwali,
according to the rule of custom as laid down in answer to Question No. 16
(Customary Law of Mianwali District) the daughters inherit the estate of their
father absolutely in the absence of collaterals up to sixth degree.

In the case of self-acquired property the general custom of the Province favours
the succession of daughters in preference to collaterals. It is true that answer to
Question No. 17 Customary Law of Mianwali District states that there is no
distinction between ancestral and self-acquired property so far as succession of
daughters is concerned, but the value of this rule of custom, which is to be found
in the riwaj-i-ams of almost all the districts of this Province, has been completely
destroyed by a number of judicial decisions in which, notwithstanding the rule
of custom stated above, daughters have been held to be preferential heirs in
respect of self-acquired property of their father.

Syed Jamil Hussain, for Appellant.

Sheikh Chiragh Din, for Respondent No. 1.

JUDGMENT

M. KHURSHID ZAMAN, J.-The suit out of which this second appeal has arisen
was instituted by Mst. Khan Bibi to challenge the sale effected by her sister Mst.
Munni in favour of Mst. Zado their third sister.

The last male holder of the land in dispute was Ranjha, father of the parties. He
died leaving surviving him his widow Mst. Bakhtan and four daughters Mst.
Munni, Mst. Khan Bibi, Mst. Zado and Mst. Gullan. On his death his widow Mst.
Bakhtan succeeded to his estate and on her remarriage the land was mutated in
the names of Mst. Munni, Mst. Khan Bibi and Mts. Zado in equal shares. There is
no explanation on the record as to how Mst. Gullan was excluded from
succession, but this fact is not material to the disposal of this appeal. On the
marriage of Mst. Khan Bibi, which took place in 1924, her share was also mutated
in the name of Mst. Munni. Mst Munni transferred land measuring 107 kanals 3
marlas by oral sale in favour of her sister Mst. Zado for Rs. 4,000. The mutation
relating to this transaction was sanctioned on the 28th September, 1950. On the
29th October, 1950 Mst. Khan Bibi instituted a suit for a declaration to the effect
that the sale effected by her sister Mst. Munni in favour of Mst. Zado should not
affect her reversionary rights after the death of Mst. Munni. The plaintiff alleged
in the plaint that under the custom governing the parties Mst. Munni was not
competent to alienate the land which was inherited from their father without
consideration and, necessity, as she was only a life tenant, and that there was no
consideration and necessity for the sale in question. Mst. Munni and Mst. Zado
defendants filed written statements denying the allegation of the plaintiff that
Mst. Munni was not competent to alienate the land inherited from their father or
that Mst. Munni was only a life tenant. In the alternative it was pleaded that even
if Mst. Munni did not inherit the land as absolute owner she had become owner
of it by reason of her adverse possession for over 12 years. The allegation of the
plaintiff that the sale was without necessity and consideration was also denied. It
was further pleaded by the defendants that the plaintiff had no locus standi to
ask for the declaration sought. The learned Judge framed the following two
issues :--

1. Is Mst. Munni defendant only a life tenant over the property in suit?

2. If the first issue is proved has the plaintiff any locus standi to seek for the
declaration in suit?

Page No. 2 of 1
Issue No. 1 was decided against the defendants. The learned trial Judge held that
the property in suit being self-acquired of the father of the parties, the daughters
succeeded to it as absolute owners and not as life tenants. On issue No. 2 his
finding was that since Mst. Khan Bibi was not the presumptive heir under
custom she was not competent to challenge the alienation made by her sister.
Having come to these conclusions he dismissed the plaintiff's suit with costs. On
appeal by the plaintiff the learned District judge reversed the finding of the
learned trial judge on both the issues and came to the conclusion that Mst. Munni
was only a life tenant and not an absolute owner, and that the plaintiff was
competent to sue for a declaration under custom. He accepted the appeal and set
aside the judgment and decree of the lower Court and remanded the case for the
trial on the following issues :-

1. Whether the defendant has been in adverse possession of the land in suit for
over 12 years?

2. Whether the sale was made for necessity and, consideration?

Against this order of remand Mst. Munni alone has filed an appeal in this Court.

The learned counsel for the respondents has raised a preliminary objection that
no appeal is competent against the remand order of the District Judge. The
objection is based on two grounds, firstly, that the order purports to have been
made under section 151 of the Code of Civil Procedure and an order made under
that section is not appealable, and secondly, that Mst. Munni was only a
proforma defendant and had no interest in the subject-matter of the suit and,
therefore, she had ho locus standi to maintain the appeal.

So far as the first objection is concerned it is true that the learned District Judge
has mentioned section 151 of the Code of Civil Procedure in his order as the
provision of law under which he remanded the case for enquiry into the
additional issues. In substance, however, the order is clearly one under Order
XLI, rule 23 of the Code of Civil Procedure which reads as follows :-

"Where the Court from whose decree an appeal is preferred has disposed of the
suit upon a preliminary point and the decree is reversed in appeal, the Appellate
Court may, if it thinks fit, by order remand the case, and may further direct what
issue or issues shall be tried in the case so remanded and shall send a copy of its
judgment and order to the Court from whose decree the appeal is preferred, with
directions to re-admit the suit under its original number in the register of civil
suits, and proceed to determine the suit ; and the evidence (if any) recorded
during the original trial shall, subject to all just exceptions, be evidence during
the trial after remand."

To bring a case within the scope of the rule the following conditions must exist :-

(1) The disposal of the suit, i.e., the entire suit and not a portion of it by the lower
Court ;

(2) the disposal must be on a preliminary point ; and

(3) the reversal of the decree by the appellate Court. In my opinion all these three
conditions are present in this case. The learned trial Court disposed of the entire
suit on a preliminary point, namely, whether Mst. Munni defendant had only life
tenancy in the property in suit. Lastly the appellate Court has reversed the decree
of the trial Judge. I, therefore hold that the remand order is governed by Order
XLI, rule 23 of the Code of Civil Procedure and is appealable under Order XLIII
(1) (u) of that Code.

Page No. 3 of 1
Coming now to the second objection, the learned counsel for the respondents
cited the following authorities in support of his proposition that a person who is
not adversely affected by a decree cannot appeal against it Allahabad Bank Ltd
Delhi v. Mrs. Lena MacDonald of Delhi, A I R 1921 Lah. 349, Shamasud-Din v.
Allah Dad Khan, A I R 1925 Lah. 65, Nand Lal Pal v. Naresh Chandra Deb
Goswami and others, A I R 1917 Pal-. 585 and Seshayyar v.
Pappuvaradayyangar, I L R (1883) 6 Mad. 185. In the first case the facts were
these : Mr. J. deposited Rs. 52,000 with the Allahabad Bank Limited, Delhi, for
two years in the joint names of himself and one Mrs. D. About a year later he
made a will devising the whole of his property of every description to his
daughter Mrs. M. Shortly afterwards he died and probate of the will was granted
to Mrs. M. Mrs. M. sued Mrs. D. and the Bank for a declaration that the amount
of the deposit, Rs. 52,000 belonged exclusively to Mr. J. and that she was entitled
to receive it on maturity. Mrs. D. did not appear and the suit was heard against
here parte. The Bank resisted the suit, but Mrs. M. was granted the declaration
sought. The Bank appealed. In the course of the judgment the learned judge, who
decided that case, observed:

"The decree binds no one but the parties to it, and adjudicates on nothing but the
rights of Mrs. MacDonald and Mrs. Davis in the Rs. 52,000 deposit made by Mr.
Jackson. The Allahabad Bank would have had to pay the money to one or other
of these persons, and it cannot matter to it directly which of the two receives the
Rs. 52,000' by order of a competent Court."

In coming to the conclusion that the Bank was not entitled to appeal, their
Lordships relied on Seshayyar v. Pappuvaradayyangar, I L R (1883) 6 Mad. 185.
In that case S. sued to redeem land mortgaged to N. joining P. as a defendant
because he was in possession of the land in suit. P. disclaimed all personal
interests and stated that he was in possession on behalf of N. and asserted the
mortgage to be a forgery. N. did not appear. P. was not authorised to defend the
suit on behalf of N. nor did he claim to do so. The plaintiff's suit was decreed and
P. appealed in his own name and on his own account. It held that P. had no locus
standi to appeal. In the second case one A. D. executed a deed of sale in respect
of 26 kanals 5 marlas in favour of A. K. for Rs. 500. Subsequently A. K. brought a
suit for possession impleading A. D. the vendor and his brother F. D. who was
joint owner in that khata, as defendants. A. D. did not put in appearance and ex
parte proceedings were taken against him. F. D. appeared and pleaded that the
sale was without consideration and necessity and asserted that the sale was void,
being in contravention of the Punjab Alienation of Land Act. On these facts it
was held that F. D. was not a necessary party nor was he entitled to contest the
suit. It was pointed out that the land sold belonged exclusively to A. D. and- that
the only question which arose for the determination of the Court was whether
the sale deed had or had not been duly executed by the latter in favour of the
plaintiff. In the third case it was held that a person, who was impleaded as a
defendant in a suit for a declaration of title to and recovery of possession of
certain landed property, on the ground that he had in his favour a contract to sell
the property in consideration of a sum of money, which was alleged to have been
received by the plaintiffs, had no such interest in the property in suit as to entitle
him to maintain an appeal.

The facts of the cases cited by the learned counsel for the respondents in support
of the proposition he contended for are clearly distinguishable from the facts of
the present case. In each of those cases the party, who was held not to possess the
right of appeal, had no personal interest either in the property, in dispute or in
the result of the suit. In Krishna Chandra' Goldur v. Mohesh Chandra Saha, 9 C
W N 584, Woodroffe, J.J who delivered the judgment, observed that the question
whether a party is aggrieved by a decree is a question of fact to be determined in
each case according to peculiar circumstances. In the case before us the decisive
issue was whether Mst. Munni appellant was only a life tenant of the property in

Page No. 4 of 1
suit, and it cannot be seriously urged that Mst. Munni would not be adversely
affected if this issue is answered, as it has been in the affirmative. The finding of
the lower appellate Court that she holds only a life interest in the property in
dispute is, an attack on her legal character which she is entitled to repel and she
can only do so by preferring an appeal to this Court. The learned counsel for the
respondent also referred to pre-emption cases in which the vendor is not
regarded as necessary party to the suit. But in preemption cases the power of the
vendor to alienate the property is never in question. The learned counsel for the
respondent was unable to cite any authority of this Court in which the vendor in
the usual declaratory suits under custom has been denied the right of appeal.
There is no force in the preliminary objection and I overrule it.

On the merits, the learned counsel for the appellant contended that in coming to
the conclusion that Mst. Munni was only a life tenant, the learned District judge
ignored the answers to Questions Nos. 16 and 19 of the Customary Law of the
Mianwali District. Question No. 16 is in the following terms :-

"Under what circumstances are daughters entitled to inherit? Are they excluded
by the sons or by the widow, or by the near male kindred of the deceased? If they
are excluded by the near male kindred, is there any fixed limit of relationship
within which such near kindred must stand towards the deceased in order to
exclude his daughters? If so, how is the limit ascertained? If it depends on
descent from a common ancestor, state within how many generations relatively
to the deceased such common ancestor must come?

Answer: All tribes-

In the presence of sons or their male descendants through males or of a widow or


widows, daughters do not inherit any share. Collaterals up to 6 (among Pathans
and Awans), 4 (among Jats and Biloches) and 5 (among Sayyads and Hindus)
generations upwards exclude daughters, except for tenure till marriage. In the
absence of collaterals within the above mentioned degrees the daughters and
their descendants inherit the property absolutely."

Question No. 19 reads as follows :-

"What is the nature of the interest taken by a daughter in the property she
inherits?

Define her rights of alienations, if any, by sale gift mortgage or bequest.

Answer: All tribes-

When a daughter inherits her father's property-she has full powers of alienation
over it. The Hindus impose the restriction of the daughter obtaining her
guardian's consent to alienation made by her."

The parties are Pathans of Kamar Mushani in the tahsil of Isa Khel, District
Mianwali. According to the rule of custom as laid down in answer to question
No. 16 the daughters inherit the estate of their father absolutely in the absence of
collaterals up to sixth degree.

The learned counsel for the respondents objected to the frame of issue No. 1. He
urged that the general custom in this Province being that females generally
succeed as life tenants, the pups of issue No. 1 ought to have been placed on the
defendants to prove that Mst. Munni was absolute owner of the property in
dispute. The learned counsel, however, has overlooked the fact that the land in
suit has been found to be self-acquired property of Ranjha, and in the case of self-
acquired property the general custom of the Province favours the succession of

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daughters in preference to collaterals. It is true that answer to Question No. 17
states that there is no distinction between ancestral and self-acquired property so
far as succession of daughters is concerned, but the value of this rule of custom,
which is to be found in the riwaj-i-ams of almost all the districts of this -Province,
has been completely destroyed by a number of judicial decisions in which,
notwithstanding the rule of custom stated above, daughters have been held to be
preferential heirs in respect of self-acquired property of their father. I am,
therefore, of the opinion that the onus of issue No. 1 was rightly placed on the
plaintiff. Moreover it is not open to the respondent to object to the frame of the
issue at this late stage.

The learned counsel for the respondent also laid stress on the fact that on the
marriage of Mst. Khan Bibi plaintiff the land standing in her name was mutated
in favour of Mst. Munni, vide mutation (Exhibit P. 2). He relied on this
circumstance as showing that the sisters succeeded to the land of their father on
the usual life tenure; but in my opinion if the rule of custom regarding the
succession of daughters is correctly stated in answers to Questions Nos. 16 and
19, and there is no material on the record that it is not, then the fact that Mst.
Khan Bibi in ignorance of her rights allowed her share to be mutated in the name
of her sister on her marriage does not affect the legal position. The only thing
that stands in the way of succession of daughters to the estate of their fathers as
absolute owners is the existence of collaterals within the sixth degree. In the
absence of any evidence to show that any such collaterals existed the daughters
of Ranjha succeeded to his estate as absolute owners with unrestricted powers of
alienation on the remarriage of their mother.

It may be stated here that Mst. Munni is shown to be in possession of 321 kanals
8 marlas out of which she has sold only 107 kanals 3 marlas which represents
her, own share in her father's estate.

The plaintiff has, in my opinion, failed to prove that Mst. Munni was only a life
tenant. I, therefore, hold that Mst. Munni appellant was absolute owner of the
property in dispute and enjoyed unrestricted powers of alienation over it. In this
view of the matter I accept the appeal, set aside the order of remand of the
learned District Judge and restore the judgment and decree of the learned trial
Court dismissing the plaintiff's suit. In the circumstances of the case the parties
are left to bear their own costs throughout.

A. H. Appeal accepted.

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