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Regular Second Appeal No. 31 of 1969, decided on 10th September 1974.
----Gift to minor-Adoptive father is a de facto guardian of minor-Gift by adoptive father to minor-Delivery of possession to natural father not necessary if adoptive father takes care of minor-Gift valid in such case without delivery of possession.
If the father of an infant donee is alive and as a natural guardian the duty to take care of and manage the property of his minor son or daughter falls on him then possession should be delivered to him to perfect the gift. But if, as in the present case, the minor has been adopted by the donor and he takes entire care of his person and property, then the rule enunciated by the judicial committee will be found that the adoptive father occupies the position of a de facto guardian of the person who takes care of the infant as is the rule in the case of gifts by the father to a minor son.
Jhumman v. Husain and others A I R 1931 Oudh 7 ; Suna Meah v. S. A. S. Pillai and others A I R 1933 Rang. 155 ; Musa Miya and others v. Kadar Bux and another A I R 1928 P C 108 and Mejelle by Cr. R. Tyser, 1967 Edn., Art. 851 ref.
Rabia Khatun v. Azizuddin Biswas and others P L D 1965 S C 665 rel.
----Guardianship-De facto guardian, who is.
A person may neither be a legal guardian nor a guardian appointed by the Court but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor.
Principles of Muhammadan Law by D. F. Mulla, 15th Edn., para. 361 ref.
-- S. 100 -Muhammadan Law-Gift-Delivery of possession, a question of fact-Cannot be interfered with in second appeal.
Mst. Zeenat Bi v. Zaman Mehdi and 2 others P L D 1956 Lah. 760 ref.
Mian Muhammad Yunas Shah for Appellants.
Abdul Malik, Special Attorney with Muhammad Hussain Lughmani for Respondent No. 1.
Respondents Nos. 2 to 4 : Ex parte.
Date of hearing : 10th September 1974.
Mr. M. A. Rashid, then District Judge, Hazara partly accepted the appeal of Muhammad Afzal Khan and Muhammad Farid Khan, defendants 1 and 2 in the suit, and maintained the judgment and decree dated 31-7-1968 of Mr. Inayatullah Khan, then Civil Judge 2nd Class, Mansehra, with respect to one kanal of land in Khasra No. 2617 in the area of Mansehra further clarifying that each of the western aod eastern sides of the land being decreed was 12 Karams' in length. Muhammad Afzal Khan and Muhammad Farid Khan were not satisfied with the judgment of the learned District Judge and they preferred the present regular second appeal (Regular Second Appeal No. 31 of 1969).
2. The only point that has been vehemently urged on behalf of the appellants is that the property in suit was gifted to Mst. Khurshid Begum respondent by one of the appellants, namely, Muhammad Afzal Khan. At that time Mst. Khurshid Begum happened to be minor and her father Abdul Latif Khan was alive. The delivery of possession was not made to Abdul Latif Khan who happened to be the natural guardian of Mst. Khurshid Begum and that the view which has commended itself to the appellate Court, that is to say, Muhammad Afzal Khan being a de facto guardian of Mst. Khurshid Begum, the condition regarding delivery of possession stood satis fied no sooner he alongwith his brother Muhammad Farid Khan entered upon the property on behalf of their minor niece, was not sustainable in law. In this respect the learned counsel for the appellants placed reliance on Jhumman v. Husain and others (A I R 1931 Oudh 7) and Suna Meah v. S. A. S. Pillai and others (A 1 R 1933 Rang. 155). It may be mentioned that both these rulings are grounded on Musa Miya and others v. Kadar Bux and another (AIR 1928 P C 108).
3. Three-fold contention was raised on behalf of the respondent, Mst. Khurshid Begum. It was contended that there was concurrent finding of the two Courts below on the question that Muhammad Afzal Khan, appellant, happened to be the de facto guardian of Mst. Khurshid Begum, plaintiff respondent, and that this finding was based on the testimony of four witnesses of the plaintiff-respondent, namely, Abdul Latif; Muhammad Ayub, Yunus Khan and Abdul Malik Khan, who were admittedly members of the family and close relations of the appellants. Furthermore various admissions made by Muhammad Afzal Khan, appellant, in cross-examination will also make this conclusion inevitable. Second, delivery of possession was held to be a question of fact in Mst. Zeenat Bi v. Zaman Mehdi and 2 others (P L D 1956 Lah. 760) and the decision of the Courts below being that Mst. Khurshid Begum was put in possession was in the circumstances unassailable. In any case the authority of the Privy Council in Musa Miya and another v. Kadar Bux and another has been distinguished by our Supreme Court in Rabia Khatun v. Azizuddin Biswas and others (P L D 1965 S C 665) and their Lordships have come to the conclusion that an adoptive father was a de facto guardian and that where gift is by adoptive father of an infant, it was not necessary that possession of the subject-matter of the gift should be delivered to the actual father. The gift by adoptive father to his ward will be complete when he makes the gift.
4. Before I proceed to discuss the legal position, it will be desirable to mention that Khasra No. 2617 in suit was a part of Khasra No. 597 of the Settlement before 1946-47 which measured 15 kanals 7 marlas. One kanal Bari out of the said Khasra No. 597 was sold by Mutation No. 9112 and it was successfully pre-empted by Muhammad Afzal Khan, appellant, vide Mutation No. 9666. In the Jamabandi of 1938-39, one kanal of area sold by Ahmad Ali Khan to Ahmad Khan and later pre-empted by Muhammad Afzal Khan was given No. 3705/597/ 1 / 1 as Khasra Number. When the Jamabandi of 1940-41 was prepared, Mst. Bibi Rashida Begum, defendant respondent, was recorded as owner, who cultivated the land herself. This entry was made on the basis of mutation No. 10027 and the Khasra Number was described as 3705/597. In the Jamabandi of 1946-07 which is a 'misal-e-haqiyat' the Khasra Number was replaced by 2617 and the entry regarding the ownership remained as hitherto before. However, there was change with respect to the entry in the column of cultivation. While in the Jamabandi of 1940-41 the land was self-cultivated in the 'misal-e-haqiyat' of 1946-47, the owner was shown to be in possession through her maternal uncles, namely, Muhammad Afzal Khan and Muhammad Farid Khan. Furthermore, the area of this land was measured as one kanal and one marla Bari, that is to say, there was also accretion in the area by one marls. No other Jamabandi was prepared and the Khasra Girdawaris up to Kharif, 1965, show the same position in the column of ownership and cultivation as was noted in the 'misal-e-haqiyat' 1946-47. The entries from the Jamabandis and Khasra Girdawaris that have been relied upon are to be found in Exh. D. W. 2/1 and Exb. D. W. 1/l.
5. It is true that Mst. Khurshid Begum respondent was an infant of a little above six months when gift Mutation No. 10027 was attested in her favour on 17-12-1939 at the instance of Muhammad Afzal Khan, appellant, and that it was physically impossible for her to cultivate the land herself in 1940-41 but it cannot be overlooked that even if she was to be major, it is not the case of the respondent and it could not be, having regard to the social status of the females in that area, that the land was not being cultivated, by her through her maternal uncles, Muhammad Afzal Khan and Muhammad Farid Khan. It is noteworthy that only Muhammad Afzal Khan is the donor and Muhammad Farid Khan had nothing to do with the land prior to the gift. Rather the case of Muhammad Afzal Khan, appellant, is that he got the land by pre-emption with his own money.
6. When the learned counsel for the appellants was asked to explain the entry in favour of Muhammad Farid Khan in the column of cultivation in the 'misal-e-haqiyat' of 1946-47, he could not give a satisfactory reply. As the case stands, there was no justification for entering the name of Muhammad Farid Khan in the column of cultivation with respect to the disputed land unless of course he was holding the land on behalf of its owner, namely, Mst. Rashida Begum. It may here be mentioned that there is evidence on the record to show that Mst. Bibi Rashida Begum is no person other than Mst. Khurshid Begum, plaintiff-respondent.
7. The contention of the learned counsel for the respondent that Muhammad Afzal Khan has been found by the two Courts below to be the de facto guardian of the plaintiff-respondent has not been controverted and the learned counsel for the appellants conceded that the concurrent finding of the two Courts below on the point could not be assailed in this Court.
8. Apart from the legal point urged on behalf of the respondent I have satisfied myself that there has been no misreading of evidence by the Courts below in arriving at the conclusion that Muhammad Afzal Khan was a de facto guardian. The plaintiff-respondent was deprived of her mother within a few days of her birth and it is quite understandable that Muhammad Afzal Khan being her maternal uncle began to look after her. There is evidence on the record to show that Muhammad Afzal Khan signed the school entry form and also the progress report, Exh. P. 2, and the receipt for the certificate of Mst. Khurshid Begum, Exh. P. 3, in his capacity as guardian. Again, there is evidence to show that Muhammad Afzal Khan gave the respondent in marriage and that she lived in his house till then.
9. In this context, I would like to advert to the definition of de facto guardian and quote paragraph 361 of Principles of Muhammadan Law by D. F. Mulla, Fifteenth Edition:
361. De facto guardian.-A person may neither be a legal guardian (section 359) nor a guardian appointed by the Court (section 360) but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called de facto guardian de facto guardian is merely a custodian of the person and property of the minor.
10. Now the only point that remains to be considered in the case is as to whether Muhammad Afzal Khan, appellant, who was a de facto guardian could not make a valid gift in favour of the plaintiff-respondent who was then a little above six months old without delivering possession of the subject- matter of the gift to her father, namely, Abdul Latif, who was admittedly alive and happened to be the natural guardian. It is true that in A I R 1928 P C 108 and the two rulings of Oudh and Rangoon relied upon by the learned counsel for the appellants, gifts by maternal relations were held to be invalid for want of delivery of possession to the natural guardian, but it cannot be overlooked that the Privy Council ruling has been noticed by their Lordships of the Supreme Court in P L D 1965 S C 665 and it has been observed what follows :-
"The ratio in the case, therefore, is that if the father of an infant donee is alive and as a natural guardian the duty to take care of and manage the property of his minor son falls on him then possession should be delivered to him to perfect the gift. But if, as in the present case, the minor has been adopted by the donor and he takes entire care of his C person and property, then the rule enunciated by the judicial committee will be found that the adoptive father occupies the position of a de facto guardian of the person who takes care of the infant as is the rule in the case of gifts by the father to a minor son. We are fortified in this view by the following remarks of Amir Ali in his well known book on Muhammadan Law, Volume I, page 131, 4th Edition :-
"If the father is dead, or is at such a distance as to preclude the possibility of his presence, in that case the executor of the father takes the place of the father . . . . . . . . Besides these, who may be regarded as guardian de jure any person who happens to be the de facto guardian of the infant, that is, in whose custody the child is, may take possession of the subject-matter of the gift."
It appears to me that their Lordships of the Supreme Court have approved the above quoted remarks of Amir Ali and dispensed with the necessity of the delivery of the gifted property in case of a gift to an adopted child on the ground that gifts by de facto guardians to their wards do not require delivery of possession.
11. The view taken by the Supreme Court of Pakistan is also consistent with Article 851 of the Mejelle, translated by Cr. R. Tyser, 1967 Edition, which is to the following effect :-
851. If some one who is guardian of an infant, or his tutor, that is, the person occupied in his control and education, makes a present of his property to that infant, whether the property is in his own hands, or given for safe keeping to another, by the proposal alone, that is to say, merely by his saying "I have given" that infant becomes owner of the properly. There is no need for a receipt.
12. On the view of the matter that I take, it was not at all necessary for Muhammad Afzal Khan to deliver actual possession of the subject-matter of gift to the plaintiff respondent inasmuch as he happened to be the de facto guardian of the latter. Furthermore, there is evidence on the record to show that possession was actually delivered and that Muhammad Farid Khan, appellant, was associated by Muhammad Afzal Khan, appellant, not on account of former's title but for the reason that both of them happened to be the maternal uncles of the plaintiff-respondent.
There is no force in the appeal and it is hereby dismissed with costs.
K.B.A Appeal dismissed.
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