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Regular First Appeal No. 169 of 1956, decided on 2nd February 1960.
Statement‑Part accepted and part rejected.
Intricate question of law‑Need not be gone into by Revenue Officer‑Punjab Land Revenue Act (XVII of 1887), S.35.
Gift by registered deed‑Revenue Officer may grant mutation and leave parties to get dispute settled by Civil Court‑Punjab Land Revenue Act (XVII of 1887), S. 35.
Gift‑Marz‑ul‑Maut‑Donor of 65 years of age, suffering from pneumonia‑Apprehension of death Dying within an hour or two of making gift‑Gift made during Marz‑ul‑Maut.
Jahan Khan and others v. Feroze P L D 1951 Lah. 433 ; Fatima Bibi and others v. Sheikh Ahmad Bakhsh 35 I A 67 ; Abdul Ahad Khan and others v. Ahmad Nawaz Khan and others I L R 12 Lah. 683: Khurshid Hussain v. Faiyaz Hussain I L R (1914) 36 All. 289 and Musi Imran v. Than Hasan 147 I C 835 ref.
Gift‑Marz‑ul‑Maut‑Valid to extent of one‑third of property‑Gift not to, be treated as twill.
Gift‑Essentials.
Under the Muhammadan Law it is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift by the donee, express or implied, and (3) it should be accompanied by such' delivery of possession as the gifted property is susceptible of.
Gift‑Shia Law‑Possession necessary to complete gift.
Sadik Husain Khan v. Hashim Ali Khan 43 I A 212 rel.
Chaudhri Mehdi Hasan v. Muhammad Hasan L R 33 I A 68 ref.
Possession‑Mere recital in deed that possession has been given not sufficient to prove delivery of possession.
Namdar v. Muhammad Saddiq 20 I C 900 ref.
O. XLI, r. 33 Court may, in a proper case, decline to make use of power under r. 33.
Art. 91‑Gift void‑Not necessary to set aside by suit‑Art. 91 inapplicable.
Ramchandra Jivaji Kanogo and another v. Laxman Shrinivas Naik and another A I R 1945 P C 54 rel.
Karam Elahi Chohan and Kamal Mustafa Bokhari for Appellants.
Rafiq Ahmad Sheikh and Mahmud Ali for Respondents.
Dates of hearing : 16th and 17th December 1959 and 26th, 27th and 28th January 1960.
This first appeal by Shamshad Ali Shah, Iqbal Hussain Shah, Mst. Iqbal Fatima Bibi, Mst. Ata Fatima Bibi and Mst. Makhduma Bibi, defendants Nos. 1 to 5, is directed against the judgment and decree dated the 26th of November 1956, passed by the. Senior Civil Judge, Multan, by which the plaintiffs' suit for possession to the extent of 4/15th share in the land in dispute was decreed.
2. The following pedigree‑table will be helpful in under‑ standing the facts of the case :---
________________________ ______________________________
Wazir Ahmad Shah Munir Ahmad Shah Mst. Makhduma
Mst. Safdar Bano Deft. No. 6 Bibi, Deft. No. 5
(wife) Plff. No. 3
______________________________
____________ __________________________________________
Syyed Hassan Sayyed Murid Mst. Jafari Mst. Haidri
Shah, Plaintiff Hussain Shah Begum Plff. Begum Plff.
No. 1 Plff. No. 2 No. 4 No. 5
______________________________________________________
Shamsbad Ali Shah Iqbal Hussain Shah,
Defendant No. 1 Defendant No. 2,
Mst. Iqbal Fatima Bibi Mst. Ata Fatima Bibi
(wife) Defendant No. 3 (wife) Defendant No. 4
3. The land in dispute is situated in village Korri Tummak, Tehsil and District Multan, and originally belonged to Sayed Amir Ahmad Shah. On his death in 027, it was inherited by Mst. Husan Bano, his widow, on the basis of a registered will, dated the 21st of January 1926. On the 18th December 1939, she executed a deed of gift in favour of her son, Munir Ahmad Shah and got the document registered on the 21st December 1939. On the strength of this deed of gift, mutation was entered on the 1st of March 1940, and was sanctioned by the Assistant Collector on the 22nd of September 1942 in favour of Munir Ahmad Shah. By this time Wazir Ahmad Shah, brother of Munir Ahmad Shah had died. His sons, Sayyed Hassan Shah and Murid Hussain Shah, preferred an appeal before the Collector, who, by his order dated the 11th of January 1943, set aside the mutation and dir ected that the gift may. be ignored and mutation be sanctioned in the name of all the heirs of Mst. Husan Bano. The mutation was accordingly sanctioned in favour of Munir Ahmad Shah, Syyed Hassan Shah and Sayyed Murid Husain Shah. From the decision of the Collector, Munir Ahmad Shah went up in appeal before the Commissioner who accepted his appeal by his order dated the 9th of August 1 43, and setting aside the Collector's order restored the original mutation sanctioned by the Assistant Collector on the 22nd of September 1942. On the 6th of August 1955, the plaintiffs, who are the heirs of Wazir Ahmad Shah, filed this suit for possession of 2/5th share in the land in dispute. Sayyed Hassan Shah and* Sayyed Murid Husain Shah plaintiffs are the sons of Sayyed Wazir Ahmad Shah, Mst. Safdar Bano is his widow and Mst. Jafari Begum and Hst. Haidri Begum are his daughters. Shamshad Ali Shah and Iqbal Hussain Shah defendants Nos. 1 and 2 are the sons of Muni ‑ Ahmad Shah. Mst. Iqbal Fatima defendant No. 3 is the wife of Shamshad Ali Shah defendant and Mst. Ata Fatima Bibi defendant No. 4 is the wife of lqbal Hussain defendant. Mst. Makhdilma Bibi defendant No. 5 is the daughter of Mst. Husan Bano and Munir Ahmad Shah defendant No. 6 is the son of Mst. Husan Bano.
4. It was alleged in the plaint that the deed of gift in favour of Munir Ahmad Shah defendant was void and ineffective inasmuch as it was obtained by fraud and was executed during mara‑ul-maut. and that possession of the gifted property was not given to Munir Ahmad Shah. It was also alleged that Mst. Husan Bano had died on the 21st of December 1939, about two hours after the deed had been registered. It was further alleged that the parties were governed by Shia Law of inheritance and that the plaintiffs were entitled to 2/5th share in the suit land. Defendants Nos. 3 and 4 were impleaded because it was alleged that Munir Ahmad Shah had transferred the land in their favour. The suit was contested by all the defendants. Defendant No. 6 in his separate written statement pleaded that the gift was valid, and that it was not obtained by fraud. He also alleged that Mst. Hu3an Bano was not ill at the time of the execution of the deed of gift. 11‑le, however, admitted that Mst. Husan Bano had died on the 21st of December 1939. Defendants Nos. 1 to 5 raised a number of objections and pleaded, inter ali,7, that Mst. Husan Bano did not die on the 21st of December 1939 and that the gift was not obtained by fraud and that it was a valid gift. They also pleaded that the suit was time‑barred. An objection to the valuation of the suit was also taken and the same was decided at an earlier stage. On the pleadings of the parties, the following issues were framed:
(1) Was the gift made by Mst. Husan Bano void, because, firstly, it was executed through fraud, secondly, the donor was lying on death‑bed and died on the very day on which the gift deed was registered and, thirdly, that no possession was given to the donee
(2) Is the suit time‑barred, because the defendants are in possession of the property exceeding twelve years
(3) If the gift is proved to be voidable due to fraud, is the suit within time
(4) Relief.
5. On issue No. 1, the learned Senior Civil Judge held that the deed of gift was not obtained by fraud but it was a death‑bed gift. He accordingly treated it as a will and held that it was valid to the extent of 1/3rd share in the property and was void to the extent of the remaining 2/3rd share. He, however, did not decide the question of possession as he thought that in view of his decision that the gift was to be treated as a will, the conditions attaching to a gift were not applicable. Issue No. 2 was decided against the defendants. As regards issue No. 3, he held that it did not arise, because the allegation of fraud had not been established. He accordingly decreed the plaintiff's suit for possession to the extent of 4/15th share in the land in suit and dismissed the rest of their claim. The parties were left to bear their own costs. Dissatisfied with this decision, defendants Nos. 1 to 5 have come up in appeal before this Court.
6. Learned counsel for the appellants contended that the suit was barred by limitation inasmuch as Article 91 of the Limitation Act applied to the case. Article 91 provides a period of three years for the institution of a suit to cancel or set aside an instru ment not otherwise provided for. The limitation begins to run from the time the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. The plaintiff's in the present case have not asked for the cancellation of the deed of gift, but have based their claim on their right to inherit the property of Mst. Husan Bano. It is, however, common ground that Mst. Husan Bano could have made a valid gift of the land in suit in favour of anyone, and she did execute the deed of gift in favour of Munir Ahmad Shah. Although the plaintiffs have not prayed fur the cancellation of the deed of gift, but if the deed of gift was valid then in that case it was necessary for the plaintiffs to get the deed of gift set aside before they could obtain the other relief claimed by them. In support of his contention the learned counsel for the appellants cited a number of authorities, but we do not propose to refer to all those authorities, because, in our opinion, the facts of the present case are governed by the rule laid down by their Lordships of the Privy Council in Ramchandra Jivaji Kanogo and another v. Laxman Shrinivas Naik and another (AIR 1945 PC 54). In that case the question was whether the plaintiffs' suit for recovery of possession of the suit property was barred by Article 91 of the Limitation Act. The defendants in that case had pleaded that the owner of the said property had made a gift of it to his sister by a dead of gift. While dealing with the question whether Article 91 was applicable to the suit, their Lordships observed as follows:--
"If the deed of gift is a void transaction no question of can celing, or setting it aside, would arise, but if it is only a voidable transaction, that is, a transaction valid until rescinded, then the necessity to set it aside is obvious before possession of the property can be claimed."
7. In view of the rule laid down by their Lordships in the above ruling, the question which arises in the present case is whether the deed of gift executed by Mst. Husan Bano was void or voidable. This depends upon the determination of the question whether the gift was a death‑bed gift and was otherwise complete. It is, therefore, necessary to determine the question whether Mst. Husan Bano had executed the deed of gift during marz‑ul -maut and whether the gift had been otherwise completed.
8. Learned counsel for the appellants maintained that in fact Mst. Husan Bano had died on the 19th January 1943. He invited our attention to Exh. D. 3 which is a copy of the entry from the register of deaths. This copy undoubtedly supports the contention of the appellants that Mst. Husan Bano had died on the 19th January 1943 and not on the 21st December 1939, as alleged by the plaintiffs. The learned Senior Civil Judge has, however, held that the entry in the death register was a bogus entry made subsequent to the event at the time when litigation was going on between the parties over the mutation of the land'. After going through the entire evidence on the record, we have no hesitation in endorsing the finding of the learned Senior Civil Judge that this entry on which reliance had been placed by the appellant is a bogus entry. The entry is falsified by a very important document which has been placed on the file by the plaintiffs. It is Exh. P. 2. It is a copy of the mutation in respect of some other land owned by Mst. Husan. Bano. It appears that during the course of checking, the Naib Tahsildar of the Ilaqa concerned came to know in June or July 1940 that Mst. Husan Bano had died. On that information, the mutation was entered by the Patwari on the 30th of July 1940 and it was ultimately attested in the presence of Munir Ahmad Shah defendant on the 4th of June 1941. If Mst. Husan Bano was alive at that time, this mutation would never have been entered and we do not think that Munir Ahmad Shah, her son, who was present at the time of attestation before the Revenue Officer, would have stated that his mother had died. We have, therefore, no doubt in our mind that someone interest in the defendants got this bogus entry made in the death register and consequently no reliance can be placed on it. In addition to the production of the death entry, the defendants examined Sayyed Majid Ali Shah (D. W. 2), Babadur Ali (D. W. 3) Muhammad Jawwad Shah (D. W. 5) and Shamshad Ali Shah (D. W. 6) who came forward to testify that Mst. Husan Bano had died in the year 1943. For the reasons given above, their evidence is demonstrably false.
9. The plaintiffs, on the other hand, claimed that Mst. Husan Bano was suffering from pneumonia at the time when the deed of gift was executed and that she had died only one or two hours after the deed had been registered on the 21st of December 1939. In support of this, they produced Rukan Abdullah Shah (P. W. 1), Sher Ali Shah (P. W. 2), Inayat Husain Shah (P. W. 4) and Syyed Hassan Shah (P. W. 7). Rukan Abdullah Shah, Sher All Shah and Inayat Husain Shah bore testimony to the fact that Mst. Husan Bano had died on the 21st of December 1939, one or two hours after the gift had been registered. These witnesses are near relations of Mst. Husan Bano and lived in close proximity to the house where Mst. Husan Bano leved. Although they are also related to the plaintiffs, but in view of the circumstances of the case we have no doubt that these witnesses have told the truth. Inayat Husain Shah (P. W. 4) is one of the attesting witnesses of the deed of gift and was also present at the time of the registration. Sayyed Hassan Shah plaintiff, however, stated that Mst. Husan Bano had died in the year 1940, but a perusal of his statement clearly goes to show that he himself was not present at the time of the death of Mst. Husan Bano. He has clearly stated that he came to know about the gift when the mutation had been sanc tioned in favour of Munir Ahmad Shah, and it was then that he learnt that Mst. Husan Bano had died about an hour or so after getting the deed of gift registered. Learned counsel for the appellants tried to make capital out of this statement of Sayyed Hassan Shah and maintained that he being one of the plaintiffs was bound by his statement and, therefore, it should be held that Mst. Husan Bano had not died on the 21st of December 1939. We see no force in this contention. As pointed out earlier, Sayyed Hassan Shah was in all probability not present at the time of the death of his grandmother. He made this statement on the 12th of November 1956 after a lapse of about 16 years, and as Mst. Husan Bano had died on the 21st of December 1939, i.e., only ten days before the commencement of the year 1940, he, by mistake, stated that she had died in the year 1940. Munir Ahmad Shah defendant also appeared as his own witness and supported the case of the plaintiffs. Learned counsel for the appellants has taken us through his evidence and in view of the fact that in. his written statement he had pleaded that Mst. Husan Bano was in good health at the time when she had executed the deed of gift in his favour, we are not prepared to place reliance on this part of his testimony that she was ill and was on her death‑bed when she had executed the deed of gift in his favour. The very fact that he appeared to make a statement against the interest of his own sons, clearly goes to show that his relations with his sons were not good at the time when he appeared before the Court as a witness. But his admission in the written statement that Mst. Husan Bano had died on the 21st of December 1939 is indeed very significant: He had filed the written statement on the 14th March 1956. In his written statement he supported the claim of the remaining defen dants and pleaded that Mst. Husan Bano had executed the deed of gift when she was in good health, and that it was a valid gift. Under the circumstances we accept his statement in so far that Mst. Husan Bano had died on the very day when the deed was registered. Learned counsel for the appellants further contended that in Exh. P. 2 it is stated that Mst. Husan Bano bad died on the 2nd of June 1940 and, therefore, the claim of the plaintiffs that she had died on the 21st of December 1939 is falsified. We have carefully examined this document and we agree with the contention of the learned counsel for the respondents that the date given in column No. 13 of the copy of the mutation as 2nd June 1940 does not necessarily refer to the death of Mst. Husan Bano. It may be the date when the Naib Tehsildar had made the report. In any case, even if this date refers to the date of the death of Mst. Husan Bano, there is nothing to show that the Naib Tehstldar had learnt this date from one of the parties to this suit or from some other reliable source. The Naib Tehsildar was not examined by the defendants and, therefore, it cannot be assumed that this date really refers to the4ate of the death of Mst. Husan Bano. The Revenue Officer while attesting the mutation did not give the date of the death of Mst. Husan Bano. It, however, contains a note to the effect that Munir Ahmad Shah stated that his mother had died. In our opinion the date mentioned in column No. 13 of Exh. P. 2, does not, in any manner, discredit the plaintiffs' case. Learned counsel for the appellants also drew our attention to the order of the Commissioner Exh. P. 7 and argued that if Mst. Husan Bano had made the gift during marz‑ul‑maut this point would have been agitated by Sayyed Hassan Shah and Sayyed Murid Husain Shah before the Commissioner, but as the order does not make any reference to it, therefore, it 'should be presumed that Mst. Husan Bano had not made the deed of gift during marz‑ul -maut. It is true that this order does not refer to this point, but the original mutation has not been placed on the record, and it may be that an objection to that effect had been raised by the plaintiffs, but in view of the fact that the deed of gift was a regis tered document this objection was overruled. The Revenue Officers are not expected to go into intricate questions of law. It is common knowledge that when a registered document is pro duced before the revenue authorities they act in accordance with it and leave the parties to get their dispute settled in a Civil Court. It was also contended that the Registrar at the time of the registration of the deed of gift did not mention in his note that Mst. Husan Bano was lying ill. But this he could not have done, because Mst. Husan Bano was in parda at the time when the deed was registered and further the Registrar was not expected to go into this question. The learned counsel further contended that even if the testimony of the witnesses produced by the plaintiffs is accepted that Mst. Husan Bano was suffering from pneumonia and was lying ill at the time when she had executed the deed of gift, yet it cannot be held that the deed was executed in mortal illness. The question, therefore, arises what is marz‑ul‑maut. In the Explanation appended to para. 135 of Mulla's Mahomedan Law it is stated that a marz‑ul‑maut is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death. In Jahan Khan and others v. Feroze (P L D 1951 Lah.433), it was held by a Division Bench of the Lahore High Court that the crux in all these cases is to find out the state of mind of the deceased in order to ascertain whether there was such a preponderance of apprehension of death at the time of the exe cution of the deed in question that the death seemed to him more probable than life. In Fatima Bibi and others v. Sheikh Ahmad Bakhsh (35 I A 67), their Lordships of the Privy Council laid down that the right test is whether the deed of gift was executed by the donor under apprehension of death.' In Abdul Ahad Khan and others v. Ahmad Nawaz Khan and others (I L R 12 Lah. 683), a Division Bench of the Lahore High Court laid down the following tests for determining whether a donor was suffering from marz‑ul‑maut :‑
(1) that the donor was suffering at the time of the disposition from a disease which was the immediate cause of his death ;
(2) That the disease was such as to engender in him the apprehension of death ; and
(3) that the illness incapacitated him from the pursuit of his ordinary avocations and prevented him from saying his prayers while standing.
10. In the light of the principles laid down in the above rulings; we now proceed to examine the facts of the present case. It is common ground that Mst. Husan Bano was an elderly lady of about 65 years of age. We have also accepted the D evidence that she was suffering from pneumonia at the time of the execution of the deed of gift. Inayat Hussain Shah (P. W. 4) has also stated that she was very weak and was lying on a cot. The very fact that it occurred to the lady that she should discharge her debt of obligation to her son Munir Ahmad Shah to the exclusion of her other son Wazir Ahmad Shah, clearly indicates that it was under an apprehension of death that she executed the deed of gift in favour of Munir Ahmad Shah. And above all it is important to note that she died within an hour or two of the registration of the deed of gift. Having regard to all the circumstances of the case, the conclusion is, therefore, irresistible that Mst. Husan Bano had executed the deed of gift in favour of Munir Ahmad Shah during marz‑ul‑maut. Mst. Husan Bano was admittedly a Shia. The Shia Law as to what c6nstitutes marz‑ul‑maut is the same. It was so held in Khurshid Hussain v. Faiyaz Hussain (I L R (1914) 36 All. 289) and Musi Imran v. Ibn Hasan (147 I C 835). It was also held in these cases that under the Shia Law, a gift made in marz‑ul‑maut holds good to the extent of only one‑third of the donor's estate in spite of the delivery of possession prior to his death. We see no reason to differ from the views expressed in these authorities. In Khurshid Hussain v. Faiyaz Hussain the learned Judges examined the views of eminent Shia jurists exhaustively and endorsed the above view. We have, therefore, no hesitation in holding that the gift having been made during marz‑ul‑maut was valid only to the extent of one‑third of the property. It was obviously void in respect of the remaining 2/3rd because it was made in violation of the law.
11. We would, however, like to make it clear that our finding that the gift was valid to the extent of 1/3rd depends on the condition that the gift had been otherwise completed. In this connection it is important to note that a death‑bed gift is not converted into a will, but remains essentially a gift. It is true that the limits of the donor's power to dispose of his property in marz‑ul‑maut by means of a gift are the same as the limits of his testamentary power, but this does not mean that it loses its characteristics of a gift. Such a gift becomes operative immediately and is not deferred till the death of H the donor. It is laid down in para. 136 of Mulla's Muhammadan Law that a gift made during marz‑ul‑maut is subject to all the con ditions necessary for the validity of a hiba or gift, including delivery of possession by the donor to the donee. Under tie Muhammadan Law it is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift by the donee, express or implied, and (3) it should to be accompanied by such delivery of possession as the gifted property is susceptible of. Learned counsel for the appellants, however, maintained that under the Shia Law delivery of possession is not necessary. He was, however, unable to cite any authority in support of this bald assertion. On the con trary, we, find that in Baillie's Digest of Muhammadan Law, Part 2nd (Second Edition), in which the doctrines of the Imameea Code of Jurisprudence (Shia Law) are incorporated, it is stated at page 203 that a contract' of gift requires declaration and acceptance, with seizing or taking possession. At page 204, it is laid down that if the donor should did after the contract and before possession has been taken of the gift, it falls back into his inheritance.' In Sadik Hussain Khan v. Hashim Ali Khan (43 I A 212) one of the questions involved was whether the deed of gift executed by Nawab Zaigham‑ud‑Daula, a Shia, was valid or not. While dealing with this question their Lordships of the Privy Council held as follows:--
" The Muhammadan Law in their view, therefore, applies to this deed ; and the gift made by it, being voluntary; is void under that law, unless it was accompanied by a delivery of such possession as the subject of gift is susceptible of. In Chaudhri Mehdi Hasan v. Muhammad Hasan (L R 33 Ind. Ap. 68, 76) it is laid down by this Board that, according to Muhammadan Law, a holder of property may in his lifetime give away the whole or part of it if he complies with certain forms, but that it is incumbent on those who seek to set up such a transaction to prove that those forms have been complied with, and this will be so whether the gift be made with or without consideration. If the latter, then unless it be accompanied by delivery of the thing given, so far as it is capable of. delivery, it will be invalid. If the former, delivery of possession is not necessary but actual payment of the consideration must be proved, and the bona fide intention of the donor to divest himself in praesenti of the property and to confer it upon the donee must also be proved. The case of Ranee Khujoorooniya v. Roushun Jehan (L R Ind. Ap. 291) supports this statement of the law ".
In view of the above, we have clearly of the opinion that delivery of possession of the gifted property was absolutely necessary to complete the gift. Under the circumstances, the learned Senior Civil Judge, should have decided the question whether the donor had delivered possession of the property to the donee. He, however, contended by making the following observations on this point:
" As regards the question of possession, it is immaterial in this case because the conditions attaching to a gift would not be recognised in this case, because this transaction is not a gift, but is treated as a will ".
For the reasons already given, we cannot endorse this view of the learned Senior Civil Judge. It is, therefore, necessary to find out whether possession of the gifted property had been given by the donor to the donee. We have carefully examined the evidence on the record. It appears that no evidence was led by the appellants to prove that the donor had delivered possession of the property to the donee. Munir Ahmad Shah, the donee, stated unequivocally that he and his brother had jointly possessed the land in dispute after the death of their mother, and after the death of his brother, Hassan Shah plaintiff got joint possession of the property with him. Inayat Husain Shah (P. W. 4) stated as follows:--
" After the death of Mst. Husan Bano Bibi, her two sons, Wazir Ahmad Shah and Munir Ahmad Shah continued taking the produce of the land in dispute. Two and a , half years after the death of his mother Wazir Ahmad Shah also died. After that, quarrel ensued between Hassan Shah plaintiff and Shamshad Ali and Munir Ahmad Shah defendants, regarding this land. The matter was reported to the police. I and others, intervened and persuaded the parties not to quarrel in that manner. It was decided by us that both Munir Ahmad Shah defendant and Hassan Shah plaintiff should retain the possession of the land and take the produce till the matter is decided by the Commissioner; in whose Court the appeal of the parties was pending. Consequently, the plaintiff and defendant No. 6 jointly remained in possession‑ of the land till the appeal was decided by the Commissioner ".
Allah Yar (P. W. 6), who is the Lambardar of the village where the land is situate, stated that after the death of Mst. Husan Bano, her sons Wazir Ahmad Shah and Munir Ahmad Shah, occupied the land and after the death of Wazir Ahmad Shah, the plaintiffs came into possession of the land. Muhammad Baqar (P. W. 5) who had been appointed Sapurdar of the produce of this land by the Colony Officer has also supported the plaintiff's case. It appears from his statement that when he had gone to take possession of the crops, he was obstructed by Munir Ahmad Shah and Shamshad Ali Shah defendants and they were challaned at his instance. Exhibit P. 1 is a copy of the judgment of Mr. Bhalla, Magistrate 1st Class, Multan, dated the 29th February 1944, by which Munir Ahmad Shah was convicted under section 379, I. P. C. and sentenced to pay a fine of Rs. 200. It is significant that the defendants did not produce the relevant Khasra Girdawaris of the period immediately after the death of Mst. Husan Bano. There is nothing to show that before her death the donor had asked the revenue authorities to enter the mutation in favour of the donee. The land was admittedly in the possession of the tenants. No attempt was made by the appellants to prove that the donor had asked the tenants to attorney to the donee. In view of the evidence led by the plaintiffs‑respondents, we have reached the conclusion that Mst. Husan Bano had not delivered possession of the land to the donee. Learned counsel for the appellants maintained that the recital in the deed of I gift that possession had been given to the donee was sufficient to prove that in fact possession had been delivered to him. In support of this proposition he cited the case of Namdar v. Muhammad Saddiq (20 I C 900) A where Mr. Justice Lyle observed as follows:-----
" Now in this case the donor expressly recites that she had given proprietary possession of the property to the donee and that she will register the deed and obtain mutation of names in the revenue papers. She did in fact registered the deed, but was unable to obtain mutation of names owing to her death which the lower Courts have found to have occurred four or five days after. It is difficult to‑ see what more she could have done in order to deliver possession of the property. On behalf of the appellant it is suggested that she ought to have given directions to her tenants to pay rent in future to the donee. The illustrations in the first edition of Sir Roland Wilson's book on Muhammadan Law page 249 are relied on, but it is significant that these illus trations have disappeared from 'the later editions of the same book. It is also difficult to see how any such directions could be given to the tenants at the time of making the gift unless they happened to be present. It is also suggested that directions should have been given to persons who collected rent to collect it in future on behalf of the donee, instead of the donor. Shahzad Khan was admittedly the agent both of the donor and of the donee's mother and natural guardian. He was present both at the execution and the registration of the deed and in fact took an active part in bringing it about. It cannot be contended that he did not know that in the future he was to collect the rent on behalf of the donee, instead of on behalf of the donor. I am certainly not prepared to hold that there was no delivery of possession, so far as such delivery was possible merely because there is no evidence that express 'and specific directions were given to Shahzad Khan to collect rent in future on behalf of the donee . . . . . . It seems to me that the donor could not possibly have done more than she did to indicate actual delivery of possession ".
This case is clearly distinguishable from the facts of the present case. There the learned Judge relied on the fact that Shahzad Khan was admittedly the agent both of the donor and of the donee's mother and he was present both at the execution and the registration of the deed and had taken an active part in bringing at about and it could not be contended that he did not know that in the future he was to collect the rent on behalf of the donee instead of on behalf of the donor. This was indeed a very important factor in that case. Shahzad Khan was the person who used to collect rent on behalf of the donor. It appears that the learned Judge was greatly influenced by this fact. In the present case there is nothing to show that Munir Ahmad Shah had been realising rent from the tenants on behalf of the donor. We are, therefore, not prepared to accept the contention that a mere recital in the deed that possession had been given was sufficient in the eye of law to prove delivery of possession. We have already referred to the evidence which clearly establishes that possession had not been delivered to the donee. In the circumstances of the case, the recital in the deed of gift does not carry any evidentiary value.
12. Learned counsel for the appellants also argued that the gift being of an undivided share of the property, delivery of possession was not necessary. He has not been able to cite any authority in support of this contention. In Wilson's Anglo‑Muhammadan Law, Sixth Edition, while dealing with the peculiarities of the Shia Law it is stated in para. 481 that a gift of an undivided share in property capable of partition' is valid, and so is a gift to two persons jointly, whether or not the conditions imposed by Hanafi Law are satisfied. But such a peculiarity is not mentioned that a gift of an undivided share in property can be completed without delivery of possession In Baillie's Digest of Muhanmmadan Law, Part 2nd (Second Edition) at page 204 it is stated that a gift of mooshaa or a share in joint and undivided property is lawful, and seizing of it is to be taken in the same way as seizing in sale. In the footnote it is stated that surrender or vacating by the donor is sufficient in all cases of gift where the subject is immovable'. In view of the above, we see no merit in this contention.
13. In view of the aforesaid findings, we hold that as the gift was not completed by the delivery of possession of the property, the gift was void in its entirety. Learned counsel for the respondents pleaded that in view of the provisions of Order XLI, rule 33, Civil Procedure Code, this Court should set aside the order of the lower Court whereby the rest of the claim of the plaintiffs was dismissed and should grant a decree for the possession of the 2/5th share of the land as prayed for in the suit. We are, however, not prepared to accede to this request. The plaintiffs‑respondents did not file any appeal nor did they file any cross‑objections. In the circumstances of the case, although there can be no doubt that we have got the power to grant a decree to the plaintiffs by virtue of Order XLI, rule 33, Civil Procedure Code, yet we do not regard it a fit and proper case for the exercise of that power. In view of our finding that the gift was void in its entirety and, in any case, was void to the extent of 2/3rds, Article 91 of the Limitation Act had no application to the facts of the case as it was not necessary for the plaintiffs to get ‑the deed of gift set aside, the suit was, therefore, not barred by limitation.
14. The result is that this appeal is dismissed with costs.
K.M.A. Appeal dismissed.
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