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(On Petition for Special leave to Appeal Nor. 196‑R of 1975, decided on 7th January 1976.
(On appeal from the judgment and order of the Lahore High Court Lahore, dated 20‑6‑1975 in R. S. A. No. 63 of 1963).
----------Mushaa, doctrine of ‑Renders gift only irregular and not void‑ Gift accompanied by physical possession‑Not hit by doctrine of mushaa for being made without partition of joint khata‑‑Very fact of petitioner's predecessors having been obliged to sue for pos session of land‑‑‑Indicated donor having parted with land.‑‑‑[Gift]
Muhammad Afzal Lone, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.
Memo for Respondents.
Date of hearing : 7th January 1976.
By means of a registered deed dated 21‑9‑1956 Mst. Ha6zau Bibi gifted land measuring 50 kanals, 13 marlas situate in Mohra Sheikhan, Tehsil Gujar Khan to the three respondents herein describing them as her grand‑sons (being sons of donor's predeceased son Sardar Khan). The land formed part of a khata jointly owned by the donor and others. The donor died on 1‑7‑1957. After her death Noor Ali and Fatah Ali sued for the avoidance of the gift and for joint possession of the land on the allegation that being collaterals of the donor's husband, the gift was ineffective as against their right of inheritance to the donor's deceased husband. They denied that the donor was possessed of disposing mind at 'the time of the gift: they also denied that the donees were grand‑sons of the donor. All these allegations were contested and denied by the respondents.
The learned trial Judge vide judgment dated 13‑2‑1962 held that the donees were grand‑sons of the donor and as such were her lawful heirs and that therefore the two plaintiffs had no locus stands to sue. On merits the trial Court held that the donor was possessed of full disposing mind. The above findings were upheld by the learned District Judge on appeal by the two plaintiffs and by the High Court in second appeal vide judgment dated 20‑6‑1975 against which the petitioners now seek leave to appeal.
During the pendency of the appeal in the High Court, the two plaintiffs died and their legal representatives, the petitioners herein were brought on the record.
Mr. Muhammad Afzal Lone, learned counsel for the petitioners did not question the finding of the Courts below about the relationship of the respondent‑donees with the donor, there being concurrent finding on what essentially was a question of fact. That being so the inevitable corollary is that the respondents were the legal heirs of the donor and the gift was in the nature of acceleration of Succession. This also places the petitioner's right out of Court.
Learned counsel however argued that the gift was hit by doctrine of mushaa because the land being part of joint khata could not have beer A made subject matter of gift without partition of the khata. The argument is wholly devoid of substance, It is nobody's, case that the gift was not accompanied by physical possession of land to the donees. Indeed, as rightly pointed out by the learned Judge in the High Court, the very fact that the petitioners' predecessors were obliged to sue for possession of the land plainly showed that the donor had parted with the possession. Even otherwise, the view taken by the learned Judge in the High Court that even if the doctrine of mushaa is attracted, the gift would be irregular and not void, is unexceptionable.
There is no merit in this petition which is hereby dismissed.
Petition dismissed.
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