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Regular Second Appeal No. 80 of 1969, decided on 25th October 1974.

----Gift-Delivery of possession, objection as to-Can be taken either by donor or his heirs-Donor himself supporting gift-Objection by third party in possession of property and claiming adversely to both donor and donee-Of no consequence-Donor himself, however, neither in actual nor constructive possession of property-Gift made by him is one without delivery of possession and cannot be enforced.

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.

Kalidas Mullick v. Kanhaya Lai Pandit and others I L R 11 Cal. 121 ; Mahomed Bakhsh and ethers v. Husseni Bibi and others I L R 15 Cal. 684 ; Hedaya & Syed Ameer Ali's Treatise on Muhammadan Law ; Fazal Ahmad v. Mst. Rakhi P L D 1958 Lah. 218 ; Mst. Halimbi v. Rahmatali Kasam Ali A I R 1940 Nag. 70 ; Kairum Bi and others v. Mariam Bi and another A I R 1960 Mad. 447 ; Kalu Beg Afzalbeg and others v. Gulzar Beg and others A I R 1946 Nag. 357 and Dost Muhammad Khan v. Imam Bakhsh P L D 1971 Pesh. 150 ref.

But where the donor is himself neither in actual nor in constructive possession of the property given as was found in this case, he is not in a position to give either actual or constructive delivery, and a gift made by him, under the circumstances without a delivery of possession of either kind, cannot be enforced.

Rahim Bakhsh v. Muhammad Hassan (1888) 11 All. 1 ; Meherali v. Tajuddia (1883) 13 Bom. 156 ; Jhumman v. Husain and others A I R 1931 Oudh 7 ; K. Pathumma Umma and others v. M. Thittu Umma and another A I R 1919 Mad. 482 and Mst. Shahida Bibi and others v. Mir Ashraf Hussain 20 I C 286 ref.

-----Art. 142-Suit for recovery of possession-Plaintiff to prove dispos session within 12 years.

Ghulam Muhammad v. Fateh Khan and others A I R 1928 Lah. 896 ref.

Haji Sher Muhammad v. Mst. Amoo and others P L D 1960 Kar. 428 distinguished.

Inayat Elahi Khan for Appellants.

Muhammad Afzal Khan Bangash for Respondent No. 1.

Respondents 6, 9 and 10 : Ex parte.

Dates of hearing : 24th and 25th September 1974.

Muhammad Azim and his wife, Mst. Surayya Begum, brought a suit for possession of house No. 3403/3034 in Mohallah Mulla Faseeh, Illaqa Dabgari, Peshawar City, against Faqir Muhammad who happened to be the brother of Muhammad Azim, plaintiff No. 1, alleging that the house in suit belonged to the two plaintiffs in equal shares and that Faqir Muhammad was permitted to occupy it 5/6 years ago because he did not have a residential house. They added that now when the house is required by them for their personal use, the defendant would not vacate it and therefore this suit. The suit was instituted on 20-4-1959. The suit was resisted by Faqir Muhammad on several grounds which appear under issues that follow:

(1) Whether the house in suit was given in gift by Ghulam Hussain to Muhammad Azim plaintiff-1 and therefore, the latter dowered away one-half of it to plaintiff-2 O. P. P.

(2) Whether Ghulam Hussain and Mst. Halima are the necessary parties to the suit O. P. Ds.

(3) Whether the plaintiffs cannot get possession of the suit house until Mst. Halima etc. are given possession of house No. 3033 O. P. Ds.

(4) Whether the suit has been correctly valued O. P. P.

(5) Are the plaintiffs estopped from bringing the present suit O. P. Ds.

(6) Whether plaintiffs have a cause of action O.P. P.

(7) Relief.

2. It may be mentioned that Faqir Muhammad died in 1960 and Mst. Halima, whose title and possession was put up by way of defence along with several children of Faqir Muhammad were brought on record as Faqir Muhammad's legal representatives.

3. Mst. Halima for whose impleadment an issue had already been settled as at No. 2 above, put up a very stout defence, as will appear from her written statement dated 6-6-1961. She inter alia contended that the gift by Ghulam Hussain in favour of Muhammad Azim was fictitious and in fact no possession passed under it; the plaintiffs were bound by the words and action of their predecessor, Ghulam Hussain and as such estopped from bringing the suit; there was a private partition 20/22 years ago and the house in dispute was given to her in lieu of her claim over house No. 3033 ; and in any case the defendant had prescribed title by adverse possession exceeding twelve years. In the circumstances, following three additional issues were framed :-

(1) Whether the suit is within time O. P. P.

(2) Whether the gift by Ghulam Hussain in favour of Muhammad Azim is fictitious

(3) Whether Mst. Halima has prescribed her title to the suit house by adverse possession for more than twelve years

3. Syed Wasiq Shah, then Civil Judge, 2nd Class, Peshawar by his order dated 31-5-1965 decreed the suit of the plaintiffs against the defendants without making any order as to costs. The learned Civil Judge answered issues 1, 3, 4, 6 and additional issue 1 in favour of the plaintiffs and the rest of the issues against the defendants. It is, however, note worthy that the learned Civil Judge found that half of house No. 3033 had been given in dower to the defendant, Mst. Halima, and that her possession of the disputed house though it was for about more than twenty years, was inconsequential inasmuch as that was in pursuance of a private family arrangement. The Civil Judge, also recorded a categorical finding that it was established beyond doubt that the plaintiffs had not remained in possession of the suit house within the last twelve years.

4. Mst. Halima was not satisfied with this order and she, therefore, preferred an appeal before the District Judge. That appeal came up before Mr. Muhammad Inam Khan the Additional District Judge, Peshawar, and he by his judgment and decree dated 30-10-1968 accepted the same and dismissed the suit of the plaintiffs, directing that the parties should bear their own costs. A perusal of the judgment of the learned appellate Judge will show that issue 1 and additional Issue 2 were the only two issues that were pressed before him. Both the issues were answered against the plaintiffs inasmuch as the lower appellate Court was of the view that one of the essentials of a valid gift, viz., delivery of possession, stood not satisfied. Ghulam Hussain did not put in possession Muhammad Azim, plaintiff No. 1, since the house was with Faqir Muhammad, deceased, and Mst. Halima and that the gift by Muhammad Azim, plaintiff No. 1, with respect to half share of the house to Mst. Halima will also fail for this reason.

5. The plaintiffs, namely, Muhammad Azim and Mst. Surayya Begum were not satisfied with the decision of the lower appellate Court and they moved the present regular second appeal. Mr. Inayat Elahi, the learned counsel for the plaintiff appellants has strenuously argued that the gift in favour of his clients could not be thrown out for non-delivery of possession, for, Ghulam Hussain, the donor, had supported the gift in Court and as such this argument could not be pressed into service by the defendant-respondents. The learned counsel further submitted that the possession of the defendants was permissive and even if there was no delivery of possession the gift would be valid. A mere declaration in the deed will be sufficient and reliance upon it by the plaintiffs was, therefore, conclusive. The learned counsel concluded that in the circum stances of the case Article 144 of the Limitation Act applied and since the defendants themselves set up a permissive possession, they cannot be said to have proved their plea of adverse possession.

6. Before I embark upon a discussion of the legal position I should like to record my finding on the all important fact; whether Mst. Halima defendant, has been able to prove that half of the house No. 3033 was given to her in dower by her husband, Faqir Muhammad, and father- in-law, Ghulam Hussain in June 1926 and that she remained in possession of that house for about fourteen years, that is to say, till 1940 when her father-in-law in a private partition gave her the disputed house which was acquired in 1930 and had been amalgamated by him with house No. 3033 soon after its purchase and that she has been in possession of the same as an owner ever-since then, that is to say, for about seventeen years on the date the suit was instituted. This contention was specifically raised in the written-statement of Mst. Halima and she reiterated her stand when she was examined by the Commissioner on 4-10-1962, the only omission being that she did not use the expression private partition: in her statement. She was, however, emphatic that pursuant to the arrangement by her father-in-law Ghulam Hussain she has been in possession of the disputed house for the last 20/22 years and that neither her father-in-law nor his son had anything to do with it. She denied that her husband got the disputed house from his father temporarily on request. She rather asserted that six of her children were born in this house and that she and her husband never lived in any house except the one in dispute and before that in 3033. It is true that the original of dower-deed in favour of the appellant, a photostat copy of which is Exh. D. W. 1/1, is torn from the place where the signatures of Ghulam Hussain should have appeared but I am satisfied that in addition to the presumption available under section 90 of the Evidence Act that the available part of the document was duly executed and attested by whom it purports to have been executed and attested notwithstanding the actual portion on which Ghulam Hussain signed or thumb-impression was torn, there is the evidence of Ghulam Muhammad who has proved that the document was entered in the Wasiqa Nawisi Register' of his father and that the copy of the same was Exh. P. W. 2/1. Again a part of the signature of Yaqoob marginal witness, had been identified by Dr. Abdul Ghani (D. W. 3) who happens to be a son of Said Yaqoob. Even if one was to overlook this evidence the admission of Ghulam Hussain in Exh. P. W. 5/131 and Exh. P. W. 5/132 which he admit to be in his hand, would show that half of the house 2211 had been given in dower by him to the wife of his son, Faqir. In Exh. P. W. 5/132 the suit house which then bore 2210 as its number, Ghulam Hussain was prepared to sell. That the disputed house bore No. 2210 as its number and that the house given to Mst. Halima in dower bore 2211 as its number will become clear on a mere reference to Exh. P. W. 2/1 whereby the disputed house was purchased by Ghulam Hussain from Sultan Muhammad. The contention of Ghulam Hussain in his statement dated 16-4-1962 that Exh. P. W. 5/131 and Exh. P. W. 5/D2 were written to save income-tax has not the ring of truth. His conduct and that of Muhammad Azim during the trial, they were examined on two occasions, does not appear to be forth-right when they say that they had no knowledge of the dower-deed in favour of Mst. Halima, appellant. The evasive statement of Ghulam Hussain on 16-4-1962 "I cannot say whether this entry (refers to Exh. P. W. 2/1) bears my signa ture or not. Similarly I cannot say whether the thumb-impression on this entry is mine or not" cannot undo the positive evidence that the defendant-appellant had brought on the record. In this context I should like to refer to the statement of Dr. Abdul Ghani wherein he stated that Ghulam Hussain had himself told him that he had given the disputed house to Mst. Halima in dower, in lieu of half portion of the other house. To further prove that she has been in possession since 1940 the appellant produced Ghulam Ali, Muhammad Din and Wazir Muhammad, who even though her relations are in a better position to say as to where she resided during all this time. The fact that a daughter was born to the appellant in the disputed house in September 1949 is supported by Exh. D. 5. Again there is the statement of P. W. 1, Haji Saifullah, Record-Keeper, Municipal Committee, Peshawar, which shows that in April 1930 soon after the purchase of the disputed house Ghulam Hussain made two applications for construction of the two houses 2210 and 2211. This will show that Ghulam Hussain after that he purchased the disputed house in March 1930 did amalgamate it with the house which he already had This is but natural that after the purchase of the two houses, he had them both reconstructed and it is also understandable that when he found that the defendant-appellant could not carry on with the rest of the family, he in private partition gave her the disputed house in lieu of the dowered house. The contention of the plaintiff -respondents that they inducted the appellant and for that matter her husband 5/6 years before the suit has not been proved to be true and on this point there is the concurrent finding of the two Courts below. In this context, I would like to mention that the defendant-appellant has asserted her own title even though she was brought as a legal representative of Faqir Muhammad defendant, on the record. The admission of her predecessor, namely, Faqir Muhammad, that he cannot be dispossessed until the possession of the house dowered to Mst. Halima is restored to them which is subject-matter of issue No. 3, cannot bind her for she took a definite stand against the plaintiff-respondents and asserted her own title on the basis of private partition and furthermore pleaded estoppel. It seems to me that the view of the trial Court that the defendant-appellant will not part with the possession of the disputed house unless the dowered house was given to her was based on some misconception and is, therefore, erroneous. Faqir Muhammad, her husband, could not bind her because he was also setting up her title at a stage when the appellant was not brought on record.

7. Kaikaus, J. on a consideration of two Privy Council authorities in Kalidas Mullick v. Kanhaya Lal Pandit and others (I L R 11 Cal. 121) and Mahomed Bakhsh and others v Hosseni Bibi and others (I L R 15 Cal. 684), Hedaya and Syed Ameer Ali's treatise on Muhammadan Law has made the following observations in Fazal Ahmad v. Mst. Rakhi (P L D 1958 Lah. 218):

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 is 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.

The view taken by his Lordship is also supported by Halimbi v. Rahmatali Kasam Ali (A I R 19 Nag. 70), Kairum Bi and others v. Mariam Bi and another (A I R 1960 Mad. 447) and Kalu Beg Afzalbeg and others v. Gulzar Beg and others (A I R 1946 Nag. 357) and has been followed by a Division Bench of this Court in Dost Muhammad Khan v. Imam Bakhsh (P L D 1971 Pesh. 150). I would not have had the slightest hesitation in following the above authorities but it seems to me that instant is not a case where the gift is being sought to be invalidated on the ground of delivery of possession alone. The precise point which can be pressed into service on behalf of the defendant-appellant is that long before the gift in favour of plaintiff No. 1 and subsequent transfer by him to plaintiff No. 2, Ghulam Hussain, the donor had transferred the disputed property in a private partition to the defendant-appellant. That is to say, long before the two transactions relied upon by the plaintiff respondents the disputed house stood transferred to the defendant-appellant and as such the question of delivery of possession to the plaintiff respondents by Ghulam Hussain in 1955 did not arise. There is no dispute that for a valid gift subject of the gift must be owned by the donor and should be -under his control at the time the gift is made. On this point I rely on Explanation II to Article 366 of the Principles of Muhammadan Law by Tyabji, 1930 Edition. The following observations of the learned author on page 277 (Ibid) which are based on Rahim Bakhsh v. Muhammad Hassan ((1888) 11 All. 1) and Meherali v. Tajuddin ((1883) 13 Bom. 156) are pertinent and will support the view that I have taken in the case :

"At common law a man could not grant what he had not Perkin's Profitable Book (translated 1642), where the doctrine is stated in all its crudity: similarly in Muhammadan Law a gift of property, not at any time in the possession of the donor, but in that of a trespasser (and consequently never delivered by the donor to the donee) is void, and the fact that the donor had brought an action to recover the lands forming the subject of the gift (pending which action, he died) does not make the gift valid, nor does the execution of a deed of gift, the subject of which are lands in the possession of a third party, who claims them adversely to the donor, give the donee a right to sue for the lands after the death of the donor'"

8. The observations of Srivastava, J. in Jhumman v. Husain and others (A I R 1931 Oudh 7) that declarations by a donor that possession has been given to the donee binds the heirs of the donor does not mean that such declaration is conclusive, further supports me in the view of the matter that I have taken. There is also an authority in K. Pathumma Umma and others v. M. Thittu Umma and another (A I R 1919 Mad. 482) wherein the following observations of Abdur Rahim, J. have been quoted with advantage:

"For instance if the thing is in the hands of a pledgee or a hirer or lessee or any other person whose possession is attributable to the existence of some right or interest of his own in the property or in the hands of a ghasib, that is, a person who has obtained possession of the property without the consent of the owner, the owner in all such cases cannot make a valid gift."

It comes to this that the moment it is discovered that the subject of the gift is in the hands of a person whose possession is attributable to some right or interest of his own in the property, the owner in all such cases cannot make a valid gift. In this view one is reinforced by the following observations of Mr. Kanhaiya Lal, A. J. C in Mst. Shahida Bibi and others v. Mir Ashraf Hussain (20 I C 286) and these will clinch the matter:

"But where the donor is himself neither in actual nor in constructive possession of the property given as was found in this case, he is not in a position to give either actual or constructive delivery, and a gift made by him, under the circumstances without a delivery of possession of either kind, cannot be enforced."

9. It also appears to me that a strong plea of estoppel is available to the appellant when she says that on the reference made by the predecessor in-interest of the plaintiff-respondents she moved out of the house given to her in dower and occupied the disputed house and changed her position to her detriment. If Ghulam Hussain in could not be successful against such a plea, it will be idle to urge that the persons who rely on a gift from him can succeed.

10. Apart from what could be said in favour of the appellant on the point of her title, the plea of limitation appears to be insurmountable. The plaintiffs alleged that they have been dispossessed 5/6 years before the suit. It comes to this that they were dispossessed either in April 1954 or April 1953. The falsity of the claim is obvious when one sees that the transfers in their favour only took place in October and November 1955. How could they induct the defendant to be in possession before that they acquired the property. Now on the basis of the allegations made in the plaint, Article 142 of the Limitation Act stood attracted and therefore it was the bounden duty of the plaintiff respondents to prove that they have been dispossessed within twelve years. Even if one was to give some advantage to the claim laid by their predecessor, namely, Ghulam Hussain on the disputed property, that would not be helpful, for, he has never asserted that he put the defendant-appellant Mst. Halima or her husband, Faqir Muhammad, in possession. I have already held that the possession of the disputed house ever since 1940 remained with the defendant-appellant, and this is consistent with the finding of the trial Court that the plaintiffs had never been in possession within twelve years of the suit. The view that Article 142 of the Limitation Act applies to such a situation is supported by Ghulam Muhammad v. Fateh Khan and others (A I R 1928 Lah. 896). The reliance of the learned counsel for the appellant on Haji Sher Muhammad v. Mst. Amoo and others (P L D 1960 Kar. 428) is out of place, for, facts of that case were quite distinguishable and it related to a vacant site.

11. On the view of the matter that I take, I dismiss the appeal with costs.

K.B.A. Appeal dismissed.

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