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

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.].

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].

Transfer of possession Constructive possession by getting tenants to attorn to donee Regarded as transfer of possession.

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.

Qazi Muhammad Ashraf for Respondent No 2.

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

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 alter native 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. Preli minary objections regarding the maintainability of the suits and its valuation were also raised.

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 invali dated 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:

"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 para graphs 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 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 con struction 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 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 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 com mercial 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.

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