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Second Appeal No. 243 of 1954 from the order of Abdus Samad Khan, District Judge, Jhelum, dated the 10th May 1954. reversing that of Mirza Bashir Ahmad, Senior Civil Judge, Jhelum, dated the 19th October 1953.
-Gift-Passing of possession-. Constructive when actual cannot be given-Whether possession had passed-Question of fact.
The donor must give actual or constructive possession of the gifted property to the donee before the gift can be said to have been duly made. If the actual possession cannot be given by the donor to the donee, but the donor has done all that he could do to divest himself of the gifted property, the gift would be considered to be complete and effective. This is a question of fact in each case and no judicial authority can bind the Court in coming to its own conclusions.
, S. 11-Res-judicata -Consent decree-Section not exhaustive. Held, that a consent decree come to between the parties in a previous suit touching matters substantially and directly in issue in the later suit between them is res-judicata. The con sent decree has to all intents and purposes the same effect for purposes of res-judicata as a decree passed per invitum; and this notwithstanding the words in section 11 of the Code of Civil Procedure " has been heard and finally decided ".
Further, that section 11 is not exhaustive and a Court in order to avoid conflicting judgments on the same question can travel beyond the limits set by that section.
Also, applicability of section 11, Civil P. C. to the facts of a particular case is a question of fact.
Re: South American and Mexican Company (1895) I Chap. 37 Kalipada De and others v. Dwijapada Das and others A I R 1930 P C 22, R. B. Seth Ganga Rawar v. Sh. Inam Ilahi 1946 Ph. L R 195, Muhammad Hayat v. Ghulam Muhammad and another AIR 1934 Lah. 758 and Abdul Rahim and others v. Abu Muhammad Barkat Ali A I R 1928 PC16 ref.
-Gift-Factum of-Transfer of possession-Questions of fact-Second appeal-Civil Procedure Code (V of 1908), S. 100.
The question whether there was at all a gift and whether possession of subject of gift had been transferred, or the donor had done everything to divest himself of possession of same, and further subsidiary matters are all questions of fact on which the decision of the lower appellate Court is binding.
Iftikhar-ul-Haq for Appellant.
Mohsin Shah for Respondents.
Dates of hearing: 23rd and 24th May 1956.
This is defendant's appeal and is directed against the decree of the learned District Judge, Jhelum, who by his order dated the 10th of May 1954, decreed the suit of the plaintiff for possession of half of the land described by Khasra Nos. 292, 293, 302, 303 and 304 in the Jamabandi for the year 1945-46, situated in village Pail Bangial.
The facts of the case, so far as they are material for pur poses of this appeal are as follows:-
Mst. Zeenat, the only contesting defendant in the suit, was first married to Adalat Khan, defendant No. 1 in the suit, but had been divorced by him long before this suit was instituted by Zaman Mehdi plaintiff Saudagar Khan, father of Adalat Khan defendant, had gifted 17 kanals 17 marlas of land to Mst. Zeenat at the time of her marriage with Adalat Khan. Some time before the divorce mentioned above, Saudagar Khan and his son Adalat Khan defendant wanted Mst. Zeenat to restore the land to the former, but as she was reluctant to do, so, Adalat, Khan divorced her. She then married another Adalat Khan, but as he too had joined hands with Saudagar khan and had started persuading her to return the land to her father-in-law, she fell out with her new husband also and came to reside with Muhammad Rafi, her brother, who is a pro forma defendant in the suit. There she met Zaman Mehdi plaintiff who is somewhat remotely related to Muhammad Rafi. Zaman Mehdi is alleged to have prevailed upon Mst. Zeenat to make a gift of the land in his favour because he would be able to obtain divorce for her from her second husband, consequently, she made a gift of the land in his favour on the 19th of Sep tember 1950. Now, it so happened that she changed her mind soon after she had made the gift in favour of Zaman Mehdi and brought a suit against him for cancellation of the same on the 11th of June 1951. Muhammad Rafi, brother of Mst. Zeenat, prosecuted this case on her behalf. During the pendency of the suit the parties entered into a compromise on the condition that Zaman Mehdi should retain half of the land gifted to him by Mst. Zeenat and return the remaining half to her brother Muhammad Rafi. According to this agreement, Mst. Zeenat made a statement (Exh. P-1) in Court withdraw ing the suit which was consequently dismissed on the 2nd of July 1951. The decree Exh. P-5 of the same date is also on the file. Zaman Mehdi then asked the revenue officer to enter the mutation of the suit land in his name on the basis of the compromise decree which had been passed on the 2nd of July 1951 as already mentioned. But Mst. Zeenat again changed her mind and objected to the mutation being sanctioned in his favour. Consequently, the mutation was refused and Zaman Mehdi went up in appeal to the Collector against that order. There, again, Mst. Zeenat entered into a compromise with the plaintiff as a result of which his appeal was accepted on the 13th of August 1951 (Exh. P-8). It is interesting to note that Mst. Zeenat made another statement before the Collector wherein she admitted having made the gift to the plaintiff of her own free will and also acknowledged having given posses sion of the land to him.
In the present suit brought by Zaman Mehdi, Mst. Zeenat again changed her mind and, repudiating all her previous statements, averred that she had never made the gift in favour of Zaman Mehdi, that if it be held that she had made the gift it was made under duress and undue influence and that the whole transaction was benami. In the end she stated that even if her statement in the previous suit dated the 2nd of July 1951 was considered to have created a new right in the suit land in favour of Zaman Mehdi, that statement required registration and in the absence of the same it could not be admitted into evidence.
The trial Court dismissed the suit on the 19th of October 1953 holding that possession had never been given to Zaman Mehdi and that the statement of Mst. Zeenat dated the 2nd of July 1951 had been secured by the plaintiff through undue influence and that there had been no consideration for the gift. On appeal the appellate Court held that the compromise decree of 2nd of July 1951 operated as res-judicata between the parties and that Mst. Zeenat was also debarred from objecting to the validity of the gift in view of her previous statement dated the 3rd of August 1951 before the Collector during the mutation proceedings. The learned District judge held further that the suit land had always remained in possession of Adalat Khan defendant No. 1 and that she having done all that lay in her power to hand over the possession to Zaman Mehdi, it was wrong to argue that possession had not been passed on to him at the time of the gift. The learned. District judge further held that as a gift could be made under the Muhammadan Law orally, the statement of Mst. Zeenat dated the 2nd of July 1951 did not require any registration. He also repelled the allega tion of Mst. Zeenat with regard to undue influence having been brought to bear upon her by the plaintiff as untenable and wholly without any substance.
The learned counsel for Mst. Zeenat appellant contended that as possession of the suit land was never handed over by his client to the plaintiff, she had the right to revoke the gift at any time she liked. He further argued that the consent decree of the 2nd of July 1951 could not operate as res-judicata between the parties, nor could she be held to have been debar red from challenging the gift on account of her previous statement dated the 3rd of August 1951 before the Collector. He has cited a number of authorities in support of his first contention, but those authorities do not lay down any new principle of law and have merely reiterated the well-established principle that the donor must give actual or constructive pos session of the gifted property to the donee before the gift can be said to have been duly made. It is unnecessary to point out that if the actual possession cannot be given by the donor to the donee, but the donor has done all that he could do to A divest himself of the gifted property, the gift would be consi dered to be complete and effective according to law. This is a question of fact in each case and no judicial authority can bind the Court in coming to its own conclusions on the facts of the particular case under investigation. After going through the entire evidence on the file and keeping in view the other cir cumstances of the case I have no hesitation in holding that she did pass the constructive possession of the suit land to Zaman Mehdi and had intended to part with the property at the time when she made the first gift as also at the time when she entered into a compromise with the plaintiff on the 2nd of July 1951.
As regards the point whether the consent decree dated the 2nd of July 1951 would operate res-judicata between the parties, the learned counsel for Mst. Zeenat contended that it did not, while the learned counsel for Zaman Mehdi maintained that it did. The matter, however, should now be deemed to have been almost settled that a consent decree come to between the parties in a previous suit touching matters now substan tially and directly in issue between them is res-judicata. The consent decree has to all intents and purposes the same effect for purposes of res-judicata as a decree passed per inviturn; and this notwithstanding the words in section 11 of the Code of Civil Procedure "has been heard and finally decided". The matter in issue is decided, indeed much more finally decided, by a consent decree than by a decree per invitum for against the consent decree there is no appeal. When a party has raised his defences and has then given them up and consented to judgment, it is the same thing as though he has abandoned his defences and admitted them to be untenable. This principle receives full support from a case in re: South American and Mexican Company ((1895) I Chapter 37). Again while considering the effect of section 11 of the Code of Civil Procedure, their Lordships of the Privy Council made the following observations in Kalipada De and others v. Dwijapada Das and others(A I R 1930 P C 22) :--
"The question as to what is to be considered to be res judicata is dealt with by section 11, Civil P. C. of 1908. In that section are given many examples of circumstances in which the rule concerning res-judicata applies; but it has often been explained by this Board that the terms of sec tion 11 are not to be regarded as exhaustive. In the case of Ram Kirpal Sukhul v. Rup Kuari (11 I A 37 (P C)), this is made clear, especially in these words of Sir Barnes Peacock (at page 41 of 11 I. A.).
"The binding force of such a judgment in such a case as the present depends not upon section 13 of Act X of 1877".
(Now replaced by section 11, Civil Procedure Code 1908) "but upon general principles of law. If it were not binding there would be no end to litigation."
This decision, and the authority of the very words used by Sir Barnes Peacock are confirmed and enhanced by the language of Lord Buckmaster in announcing the conclusion of this Board in Hook v. Administrator-General of Bengal (49 I A 138) and further in the case of Ramchandra Rao v. Ramchandra Rao (1946 Pb. L R 195)."
To the same effect is the decision of this Court in R. B. Seth Ganga Rawar v. Sh. Inam Ilahi (6) wherein their Lordships observed that "to attract the application of the rule of res judicata the identity of the subject-matter and causes of action is not necessary. It is enough if the matter in issue is the same or both the previous and the subsequent suits arise out of the same title. Section 11 is not exhaustive and a Court in order to avoid conflicting judgments on the same question can C travel beyond the limits set by that section". Even in Muhammad Hayat v. Ghulam Muhammad and another (A I R 1934 Lah. 758), though it was doubted whether consent decree could be held to be res-judicata as against any person other than those who consented to that decree, it was not doubted that such a decree would bind the persons who consented to it. To the same effect is the decision of their Lordships of the Privy Council in Abdur Rahim and others v. Abu Muhammad Barkat Ali (A I R 1928 P C 16). Hut notwithstanding the authorities cited above, the question of applicability of section 11, Civil P. C. to the facts of al particular case must, in my opinion, always remain a question of fact.
In the end the learned counsel for the respondent con tended that Mst. Zeenat was estopped from questioning the validity of the gift because of her having admitted in her pleadings in the previous suit and in the mutation proceedings relating to the suit land between herself and the respondent that she had not only made the gift in favour of the latter but had also passed possession of the land in suit to him and relied in that connection on section 115 of the Evidence Act and the various authorities in exposition of that section, including 1946 Punjab Law Reporter 195.
After a careful consideration of the whole case, in my opinion, the principal question, if not the only, which arises in this appeal, is whether Mst. Zeenat at all made a gift in favour of the respondent and, if so, whether she also made over to him the possession of the gifted property to the extent that she was capable of making over the same: the other considerations, namely whether she honestly tried to divest herself of the gifted property or that she intended to pass on the possession to the donee or that the various recital, direct as well as implied, in the gift deed, in the plaint in her previous suit, in her statement before the Civil Court which statement formed basis of the consent decree and in the mutation proceedings, are only subsidiary to the main question as propounded above. Now, it can hardly be doubted that all these questions involve findings of fact and those questions, having been answered in favour of the respondent by the lower appellate Court, cannot be re-agitated in second appeal, nor has this Court the jurisdiction to go behind those findings. This appeal is, there fore, hopeless and is hereby dismissed with costs.
A. H. Appeal dismissed.
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