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‑‑‑ Gift‑‑General rule of Muhammadan Law that delivery of possession is necessary for validity of gift‑‑Exceptions to the rule.

No doubt, Muhammadan Law prescribes that for validity of gift delivery of possession is necessary as a general rule. But the law prescribes an exception to the general rule in a case where gift is made by a father to his minor son or by a guardian to his ward. In such a case change of possession is not necessary and the possession of the father or guardian after declaration of gift is presumed to be on behalf of the minor.

When donee is a minor the right to take possession on his behalf in respect of gifted property belongs first to his father as guardian and then to his grandfather.

When father is dead or is at such distance as to preclude the possibility of his presence to take possession, in that case the right to take possession devolves upon his next guardian i.e. grandfather.

Right of guardian to take possession is coupled with a duty to do so in order to perfect the gift for the benefit of minor.

In the present case the minor's father had an interest hostile to the minor (donee) in the matter of gift which was calculated to operate to his disadvantage and which was unsuccessfully challenged by him in a suit, he could not be expected to perfect the gift by taking possession. As such, in principle, the position of donee's father is not dissimilar to that of a father who is at such a distance as precludes the possibility of his presence to take possession. On this score the right to take possession would devolve upon the grandfather .in . the instant case. Considering that the latter himself was donor, no change of possession was called for in order to complete the gift and his possession shall be deemed to be on behalf of the minor. The instant case was covered by exception and the grandfather (donor) would be bound by the gift. The same conclusion could be arrived at on the ground that the minor was under the care and custody of grandfather who consequently occupied the position of de facto guardian.

The principle of "precluding distance" as valid excuse for minor's father not taking possession of gifted property extended to the case of a minor who was under the care and custody of adoptive father and whose natural father had shown disinterest towards him.

Baillic page 539; Muhammadan Law by Amir Ali 4th Edition Vol. 1 Page 135; 2 I.A. 87, 98 and Rabia Khatoon v. Aziz‑ud‑Din Biswas etc. P L D 1965 S C 665 ref.

‑‑‑0. XLI, R. 2‑‑Ground of limitation having not been taken in the memorandum of appeal, appellant was not entitled to urge the same.‑ [Limitation].

‑‑‑Art. 91‑‑Civil Procedure Code (V of 1908), S. 9 & 0. XLI, R. 1‑‑Muhammadan Law‑‑Gift to minor‑‑Suit challenging validity of gift‑ Limitation‑‑Permission for fresh suit on withdrawal of earlier suit was granted to be filed on the same cause of action‑‑Fresh suit could not

be made relatable to a cause of action allegedly arising subsequent to the said permission‑‑On the premises that gift had been held to be valid, possession of plaintiff as from date of gift deed was to be treated as held on behalf of minor‑‑In order that plaintiff may successfully claim a declaration that he is in possession of land in question in his own right as owner thereof as sought in the suit, a prerequisite is that he should obtain declaration as to the invalidity of gift or should secure cancellation thereof‑‑Article 91, Limitation Act would be applicable under which period of limitation for such relief is three years from the date of gift deed.

‑‑‑ Gift‑‑"Musha"‑‑Definition‑‑Property gifted by donor constituted his / entire holding and not an undivided share therein‑‑Donee divested himself of ownership of his entire land and retained to himself no share or part out of it while making gift‑‑Objection regarding Musha, held, could not in the nature of things be applied to the gift‑‑Valid could be made of an undivided share (Musha) in property which was not capable of partition.

‑‑O.I, R. 10‑‑Muhammadan Law‑‑Gift‑‑Necessary party‑‑Suit challenging validity of gift‑‑Donee claiming title thereunder is a necessary party, for controversy cannot be effectually adjudicated upon at his back and in his absence‑‑Non‑joinder of such a party in appeal is fatal to its competency.‑‑[ Muhammadan Law].

Sh. Zia‑ud‑Din Qamar for Appellants.

M.Z.Khan Burki for Respondent.

Date of hearing: 30th June, 1987.

This second appeal arises out of a suit filed by the appellant/ plaintiff for declaration to the effect that he is the owner in possession of the suit property comprising land measuring 47 kanals 6 marlas situated in Mauza Rangilpur Tehsil and District Multan, by denying the validity of gift claimed to have been made by the plaintiff in favour of defendants and for injunction restraining them from interfering with his possession. The suit was decreed by the trial Court by judgment dated 9‑6‑1971 which was reversed in appeal by the learned Additional District Judge by judgment dated 23‑11‑1973 whereby the suit was dismissed; hence this appeal.

2. The material facts necessary for disposal of this appeal may be briefly stated as follows:‑

The plaintiff /appellant was transferred suit land by the Settlement Department. He has two sons namely Abdul Latif and Jan Muhammad and a grandson Maqbool Ahmad son of Jan Muhammad. Jan Muhammad was married to the daughter of brother of plaintiff's wife. He divorced his wife. This embittered the feelings between Jan Muhammad and his father i.e. the plaintiff. The plaintiff made gift of the suit land in favour of his son Abdul Latif and grandson Maqbool Ahmad in equal share to the exclusion of Jan Muhammad, through gift deed dated 24‑8‑1960 which was duly registered. Jan Muhammad brought a civil suit to challenge the validity of the said gift but without success. In this suit the plaintiff appeared as a witness and made statement a certified copy of which has been produced as EXh.D.l in which he admitted that Maqbool Ahmad one of the donees who was minor was being supported by him and that he was also living with him. Thereafter the plaintiff himself brought a suit challenging the validity of the said gift but withdrew the said suit with permission to file a fresh one on the same cause of action. Certified copy of the plaint in the said suit has been placed on record as Exh.D.2. Accordingly he filed the present suit on 8‑4‑1969 with the result already indicated. The plaintiff's plea taken in the suit as to invalidity of gift in question was based mainly on the ground that the gift was not accompanied by delivery of possession as required by Muhammadan Law. This plea was controverted by respondent and it was further pleaded by him in defence that the suit was hit by bar of limitation. In substance, the above statement as to pleadings denotes the scope of controversy in the lower Courts. On both the abovementioned points, the trial Court recorded findings in favour of the plaintiff. But on appeal the lower appellate Court reversed the said finding for the reasons recorded in the impugned judgment.

3. Learned counsel for the appellant in support of this appeal has raised the following contentions:‑

(i) That the gift in question is void on account of non‑delivery of possession which according to Muhammadan Law is essential for the perfection of gift;

(Il) That the suit was within time and the findings recorded by the lower, appellate Court to the contrary are unsustainable.

4. As regards the contention regarding invalidity of gift on the ground of non‑delivery of possession, it may be observed that, no doubt, Muhammadan Law prescribes that for validity of gift delivery of possession is necessary as a general rule. But the law prescribes' an exception to the general rule in a case where gift is made by a father to his minor son or by a guardian to his ward. In such a case change of possession is not necessary and the possession of the father or guardian after declaration of gift is presumed to be on behalf of the minor (para. 155 Mulla). The question emerges whether the instant case, in which the gift was made by the grandfather (appellant) in favour of his grand son, is covered by the exception . I think, Yes. My reasons for the view are that when donee is 'I minor the right to take possession on his behalf in respect of gifted property belongs first to his father as guardian and then his grandfather (Para 156 Mulla). But when father is dead or is at such distance as to preclude the possibility of his presence to take possession, in that case the right to take possession devolves upon his next guardian i.e. grandfather (Baillie page 539; Muhammadan Law by Amir Ali 4th Edition Vol. I Page 135). It may be pertinently mentioned that right of guardian ,to take possession is coupled with a duty to do so in order to perfect the gift for the benefit of minor. (2 I.A. 87, 98).

5. Since in the present case the minor's father had an interest hostile to the minor. (donee) in the matter of gift which was calculated E to operate to his disadvantage and which was unsuccessfully challenged by him in a suit, he could not be expected to perfect the gift by taking possession. As such, in principle, the position of donee's father is not dissimilar to that of a father who is at such distance as l precludes the possibility of his presence to take possession as noted above. On this score the right to take possession would devolve upon the grandfather in the instant case. Considering that the latter himself is the donor, no change of possession was called for in order to complete the gift and his possession shall be deemed to be on behalf of the minor. That being so, the instant case is covered by exception, and the grandfather (donor) will be bound by the gift. The same conclusion can be arrived at on the ground that the minor was under the care and custody of grandfather who consequently occupied the position of de facto guardian as held in Rabia Khatoon v. Aziz‑ud‑Din Biswas etc. P L D 1965 SC 665. Before parting with the discussion on the subject it may be added that in P L D 1965 SC 665 the principle of "precluding distance" as valid excuse for minor's father not taking possession of gifted property was extended to the case of a ‑minor who was under the care and custody of adoptive father and whose natural father had shows disinterest towards him. I thus feel fortified in extending the said principle to the present case for reasons already stated.

6. Incidentally, the conclusion arrived as to the validity of gift is also in accord with the result of suit filed by Jan Muhammad in which he unsuccessfully challenged the validity of the gift. The decision therein could even be invoked as res judicata, if the same had been made available on the present record.

7. As to the question of limitation urged by the learned counsel for the appellant, it may in the first place be observed that the . ground of limitation is not taken in the memo: of appeal and as such the appellant is not entitled to urge the same (Order XLI, Rule 2, C . P. C .) . Without prejudice, however, to the above observation it may be stated that it is a common ground between the parties that the provisions, of law governing the subject is contained in Article 120 of the Limitation Act which prescribes a period of six years for institution of suit. The controversy between the parties as raised appertains to terminus a quo. According to the appellant the cause of action arose seven days prior to the institution of suit and calculated from that date the suit is within limitation. As against this, it is urged on behalf of the respondent that starting point for limitation is the date of gift‑deed i.e. 26‑8‑1960, as was mentioned even by the plaintiff himself in the earlier suit. The lower Appellate Court has accepted the latter view as to terminus a quo on the ground that it is "illegal" on the part of the plaintiff to alter the date of cause of action as earlier stated in the previous suit. I agree with the lower Appellate Court in its conclusion that the suit is time‑barred especially in view of the fact that permission for a fresh suit on withdrawal of earlier suit was granted to be filed on the same cause of action and a fresh suit carnet be made relatable to a cause of action allegedly arising subsequent to the said permission. It may additionally be mentioned that on the premises that gift has been 1 held to be valid, the possession of plaintiff as from date of gift deed is to be treated as held on behalf of minor. In order that the plaintiff may successfully claim a declaration that he is in possession of land in question in his own right as owner thereof as sought in the suit, a prerequisite is that he should obtain declaration as to the

invalidity of gift or should secure cancellation thereof. On that view of the matter, Article 91 of the Limitation Act may well be applicable under which period of limitation for suit for such relief is three years from the date of gift deed. Thus, on either view, the suit is time screened and liable to dismissal.

8. An objection has also been taken to the validity cf gift on the ground of "Musha" although there is no express ground to that effect in the memo: of appeal. As is manifest the plea, as raised in the plaint is in highest degree vague. "Musha" is defines' as follows:‑

"Musha is undivided share in the property either movable or immovable (Para 158 Mulla's Muhammadan Law)."

It may in the first place be stated that the property gifted by the plaintiff in the instant case constituted his entire holding andl not an undivided share therein. To elaborate, the plaintiff divested. himself of ownership of his entire land measuring 47 Kanals 6 Marlas and retained to himself no share or part out of it while making the gift. As such the objection regarding Musha cannot in the nature of things be applied to the gift in suit. That being so, the objection as taken on behalf of the appellant is untenable and is liable to rejection' as such. It may, however, be added that even if it be assured, without granting the same, that the gift in suit is covered by doctrine of Musha even then, the validity of the same is not adversely affected because by virtue of provisions of Martial Law Regulation No. 64. the land in question was not capable of partition and division, and according to Para. 159 of Mulla's Muhammadan Law a valid gift may be made of an undivided share (Musha) in property which is nct capable of partition.".

9. Lastly, the present appeal is not properly constituted inasmuchl as Abdul Latif defendant No.l has not been impleaded as a party therein. In a suit involving controversy as to the validity or otherwise J of a gift, the donee claiming title thereunder is a necessary party; for the controversy cannot be effectually adjudicated upon at his back and in his absence. Thus, non‑joinder of such a party in appeal is fatal to its competency. Consequently, the present appeal is liable to be dismissed on that score also.

10. In view of the foregoing reasons, the appeal is without merit and is hereby dismissed with costs.

M.B.A./N‑70/L Appeal dismissed.

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