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Civil Petition for Special Leave to Appeal No. 42‑P of 1971, decided on 15th December 1971.

(On appeal from the judgment of the Peshawar High Court, dated 11th June 1971, in K. S. A. No. 58 of 1964).

Limitation Act (IX of 1908),

Arts. 91 & 120‑Suit for declaration that gift deed purported to have been executed and registered was fictitious and without consideration‑Possession of property nave, delivered to donee‑Gift, in circumstances, void ab initio and limitation governed by Art. 120 and not Art. 91.

Shamshad Ali Shah and others v. Syed Hassan Shah and other: PLD 1964SC143rel.

Abdul Samad Khan, Advocate‑on‑Record for Petitioner.

Peer Bakhsh Khan, Advocate instructed by M, Tariq ,Khan, Advocate‑on‑Record for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing : 15th December 1972.

The petitioner, Mst. Makhmuran, and the respondent No. 1, Mst. Arzumana, are sisters. On the 18th of July 1960, the respondent, Mst. Arzumana, instituted a suit in the Court of the learned Senior Civil Judge at Mardan for a declaration to the effect that she was the owner of a house situated in village Takkar and land measuring 34 kanals and 17 marlas in village Fazal Abad of the Mardan district, and that a gilt deed purported to have been executed by her and registered on 17‑2‑55, gifting away the whole of her property to her sister Mst. Makhmuran was fictitious, without consideration and a result of fraud and undue influence. In the alternative she claimed possession of the land. The suit was dismissed by the trial Court on 1‑5‑62 on the ground of limitation as well as on the ending that the gift was valid.

Thereupon the respondent No. 1 filed an appeal which was, however, dismissed by the learned Additional District Judge at Mardan on 6‑11‑63, holding that although the gift was invalid, having been made under undue influence, yet the suit was barred by time as it had not been brought within three years of the registration of the gift deed as required by Article 91 of the Schedule to the Limitation Act.

Aggrieved by the judgment of the lower appellate Court, the respondent filed a second appeal which was accepted by a Division Bench of the Peshawar High Court by its order dated the 11th of June 1971. The High Court held that the gift deed was void and not merely invalid, as possession of the property had not been delivered to the donee under the gift, and that the execution of the gift deed by the donor was not proved. It further observed that, in these circumstances, the limitation was governed by Article 120 and not by Article 91 and, therefore, the suit was within time. On these findings, the High Court decreed the respondent's suit as prayed.

Mst. Makhmuran now seeks special leave to appeal on the ground that the High Court has erred in recording tee finding that the gift deed was not executed by the respondent, and that possession of the gifted property was not delivered to her under the gift. It is also submitted on her behalf that in any case the High Court was in error in drawing a distinction between an invalid and a void gift and holding that the period of limitation in this case was 12 years under Article 120 of the Limitation Act and not three years under Article 91 as found by the District Court.

After hearing the learned counsel for the petitioner, we are of the view that there is no merit in these submissions. It will be seen that a finding of fact was recorded by the first appellate Court that the gift deed had been executed by the respondent No. 1 under undue influence, as she was a Pardanashin lady and did not act of her own free will in this matter. The Court took note of the fact that after the death of the respondent's husband. her sister, Makhmuran, and her husband had started living with the respondent and managing her property. This finding was not altered by the High Court in second appeal, but it went further and held that even the execution of the deed by the respondent was not satisfactorily proved. In coming to this conclusion the High Court reviewed the evidence of the attesting witnesses and the scribe and found that the respondent had not admitted the contents of the document or thumb‑impressed the same in their presence. No justification has been shown for our interference with these findings of fact.

On the question of the delivery of possession, the High Court has examined the relevant revenue entries of the successive Jamabandies before recording its conclusion that possession of the property was not delivered to the donee under the gift until the year 1960 when the present litigation was started. It is significant that although the gift deed was executed on 17‑2‑55, and the relevant mutation had been attested on 2‑12‑55, and mentioned In the Jamabandi of 1956‑57, yet the respondent continued to be shown as the owner and the petitioner's husband as cultivating under her until 1960. In these circumstances, the High Court concluded that there was no delivery of possession, with the result that the gift remained incomplete and void.

For the purpose of drawing a distinction between an invalid and void gift the learned Judges of the High Court have, among) other authorities, placed reliance on the decision of this Court in Shamshad Ali Shah and others v. Syed Hassan Shah and others (P L D 1964 S C 143) and have rightly held that possession not having been delivered the gift was void ab inido. Such being the case, the limitation would be governed by Article 120 and not by Article 91 of the Limitation Act as no question of cancelling or setting aside the gift deed would arise.

For the foregoing reasons, we are satisfied that the matter has been correctly decided by the High Court and no justification is made out for our interference. The petition accordingly fails and is hereby dismissed.

Leave refused.

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