2014 Y L R 1244
2014 Y L R 1244
[Sindh]
Before Farooq Ali Channa, J
Mst. BAI and 3 others---Applicants
Versus
PROVINCE OF SINDH through District Co-ordination Officer, Badin and 3 others---Respondents
Civil Revision Application No.10 of 2010, decided on 20th January, 2014.
(a) Islamic Law---
----Gift, essentials of---Constructive possession--- Scope--- Contention of plaintiffs was that possession was not delivered to the defendant---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Donee had accepted the gift declared by the donor and possession of suit land was delivered to him---Donor and donee signed the gift deed in presence of witnesses and all the three essentials of gift were complied with in accordance with law---Neither any land revenue receipt nor corroborative evidence was produced by the parties to prove possession on the suit land---Taking of possession of the subject-matter of gift by the donee either actually or constructively was necessary to complete the same---Registered gift deed and mutation of suit land existed in the name of donee in the revenue record---Constructive possession of donee over the gifted property was proved in circumstances---No illegal assumption or non-exercise or irregular exercise of jurisdiction by the courts below had been pointed out---Revision was dismissed in circumstances.
Muhammad Law quoted.
(b) Words and phrases---
----"Constructive possession"---Meaning---Possession which was not actual but assumed to exist where one had claimed to hold by virtue of some title without having the actual occupancy.
Black's Law Dictionary quoted.
Ishaq Khoso for Applicants.
Jhamat Jethanand for Respondents.
Date of hearing: 23rd December, 2013.
JUDGMENT
FAROOQ ALI CHANNA, J.---By this Civil Revision, the applicants have called in question the judgment and decree dated 23-12-2009 passed by learned IInd Additional District Judge, Badin (hereinafter referred to as Appellate Court) in Civil Appeal No. 59 of 2005 (Muhammad Khan v. Province of Sindh and others) whereby the Appellate Court set aside the judgment and decree dated 29-11-2005 and 5-12-2005 respectively passed by learned Senior Civil Judge (hereinafter referred to as trial Court) in F.C. Suit No.41 of 2003 and dismissed the suit filed by the applicants Mst. Bai and others against the respondents.
2. Briefly the facts of the case are that the applicants filed Suit No. 41 of 2013 for declaration, cancellation of gift deed and permanent injunction against the respondents. As per the averments of plaint, Haji Jumo, the late husband of applicant No.1 allegedly had gifted agricultural land admeasuring 23-20 acre, out of Survey No. 320 (2,3,4), 335, 336 (1,2,3), 326 (1,2), 317 (3), 318 (1,2) situated in Deh Mithi-II, Taluka and District Badin (hereinafter referred to as suit-land) to Muhammad Khan, the respondent No. 4 and executed such registered gift deed dated 29-4-1998. Haji Jumo has expired on 28-3-2003 leaving behind the applicants and Mst. Fatima who was made defendant No.6 in suit, to be his surviving legal heirs, they were entitled to inherit the property left by deceased Haji Jumo. The applicants approached the concerned Mukhtiarkar for mutation of property left by deceased Haji Jumo in their favour but they were informed that the suit-land, on the basis of registered gift deed has already been mutated in favour of respondent No.4, therefore they filed the above civil suit.
3. Pursuant to the notice the respondents appeared before the trial Court. The respondent No.4 filed the written-statement denying the averments of the plaint and contended that deceased Haji Jumo had gifted the suit-land to him due to love and affection and executed such gift deed before the concerned Sub-Registrar duly attested by the witnesses.
4. The trial court framed the issues, both the parties led pro and contra evidence, the trial court after affording an opportunity of hearing to the counsel for both the parties decreed the suit vide judgment and decree dated 29-11-2005 and 5-12-2005 respectively. The respondent No.4 Muhammad Khan assailed the aforesaid judgment and decree in Civil Appeal No. 59 of 2005, the Appellate Court allowed the appeal vide judgment and decree dated 23-12-2009 whereby set aside the judgment and decree passed by the trial court.
5. Before parting with the merits of the instant civil revision I may mention that the gift deed sought to be cancelled is a registered document. The Sub-Registrar, Badin in his evidence before the trial Court has admitted its execution and entries in the relevant record so also obtaining the signature and thumb-impression of executant Haji Jumo on the registers maintained in the office, mere some minor contradictions in the evidence of respondent No.4 and his witnesses regarding their arrival along with Bond Writer in the office of Sub-Registrar by foot or by car or Tanga are not sufficient to discredit the inviolability of a registered document. The applicant No.1 in her evidence before the trial Court has also admitted the execution of gift deed, however, however, her contention was that the respondent No.3 at the instance of respondent No.4 has registered a forged gift deed.
6. Learned counsel for the applicants in his arguments mainly has emphasized the incomplete essentials of a valid gift. Learned counsel has contended that under Muhammadan Law, three essentials i.e. 1) declaration of gift by the donor, 2) acceptance of gift by or on behalf of donee and 3) delivery of possession of the subject gift by the donor to donee are mandatory requirements for a valid gift. According to the learned counsel the deceased Haji Jumo has made no specific statement declaring the gift of suit-land nor the respondent No.4 has made such acceptance of the gift. The main contention of learned counsel was that the possession of subject gift was not delivered to the respondent No.4 at any stage after the execution of alleged gift deed. Per learned counsel the applicants are in possession and cultivating the suit land peacefully without any hindrance by the respondent No.4 as such the gift if any being incomplete is invalid and has created no ownership right or title of respondent No.4 over the suit-land and on the basis of such invalid gift, mutation of suit-land in favour of respondent No.4 in the Revenue Record of rights was illegal and liable to be cancelled therefore the trial court had decreed the suit correctly. Further the Appellate court has not given due consideration to the above legal aspect of the case nor applied judicial mind and has passed the impugned judgment on mere presumptions and assumptions, the findings of the appellate court are the outcome of mis reading and non-reading of evidence, the appellate court also erred in setting aside the judgment and decree passed by the trial Court, the impugned judgment and decree, are suffering from glaring infirmities and illegalities, the same are liable to be set aside and the Judgment and decree passed by the trial Court be restored.
7. Conversely, learned counsel for the respondents has contended that the impugned judgment is based upon the facts and circumstances brought on record by both the parties during trial before the trial Court. The appellate court has considered and discussed each factual and legal aspect of the case, the findings of the appellate court are based upon the cogent reasons supported by the dictum laid down by the Apex courts. Learned counsel has further contended that the perusal of gift deed manifest that it bears all the three essential for a valid gift, the possession of suit-land was delivered to the respondent No.4 as such there appears no illegality or infirmity in the impugned judgment passed by the Appellate Court, hence the civil revision is liable to be dismissed.
8. I have considered the arguments and perused the record. The main question before this court is that whether all the three essentials of a valid gift are complied with or the gift is lacking in any mandatory requirement. For deciding the aforesaid questions/controversies, it would be appropriate to mention that the trial court in its judgment has reproduced the Provisions 149 and 150 of the principles of Muhammadan Law, which are as under:--
"S.149. The three essentials of gift.---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, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with the gift is complete."
"S.150. Delivery of possession.---(1) it is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, "the taking of possession of the subject-matter of the gift by the donee, either actually or constructively is necessary to complete a gift. See sections 145, 146, 152 and 154."
9. I have perused the contents of gift deed in the light of provisions referred to hereinabove. No doubt, the scribe of the gift deed has not prepared separate statements of donor regarding declaration of gift and of donee regarding the acceptance of gift. However in the gift deed the scribe has shown Haji Jumo as party No.1 to be "DONOR" and Muhammad Khan as Party No.2 to be "DONEE". In the body of gift deed it is clearly mentioned on behalf of Haji Jumo, the donor that since he was issueless and his nephew Muhammad Khan during his ailment has devoted his best services, therefore due to love and affection he made gift of his 23-20 acres agriculture land to him. Likewise it is mentioned on behalf of Muhammad Khan the donee that he accepts the gift declared by Haji Jumo the donor. The scribe has also mentioned in the gift deed categorically that the possession of land under gift has been delivered by the donor to donee. The above contents were admitted by both the parties, and thereafter the donor and donee signed the gift deed in presence of witnesses Mian Bux and Abdul Karim as such all the three essentials of gift were complied with in accordance with law. So far the plea of learned counsel for the applicants regarding the delivery of possession of gifted property is concerned; both the parties in their evidence before the trial court have claimed their possession over the suit-land. However, neither they have produced any land revenue receipt nor led corroborative evidence regarding possession. The trial court also examined the Tapedars of the concerned area. Tapedar Ali Nawaz was cross-examined by the counsel for both the parties but they did not suggest any question regarding the possession of either party over the suit-land. In these circumstances, I will refer to section 150 reproduced in the preceding paras along with the observation of Judicial Committee that "the taking of possession of the subject-matter of the gift by the donee either actually or constructively is necessary to complete a gift. In Black's Law Dictionary, 6th Edition the constructive possession has been defined to be the possession not actual but assumed to exit, where one claims to hold by virtue of some title, without having the actual occupancy. In this case if there is any ambiguity in delivery of the actual possession of the gifted property by the donor to the donee, even then on the basis of title created by the gift and on the basis of registered gift deed mutation of suit-land exists in the name of the donee in the revenue record of rights, the constructive possession of the donee over the gifted property is proved, such possession in view of Judicial committee's observation referred to in section 150 satisfy the condition of delivery of possession of gifted property as such all the three essentials for a valid gift have been complied with which squarely make the gift complete in all respect.
10. Besides, section 115, C.P.C. will apply only to the cases involving the illegal assumption, non-exercise or the irregular exercise of jurisdiction by the courts below such essentials are not pointed out in the instant case.
11. For the reasons and discussions mentioned above, the Civil Revision is dismissed with no order as to costs.
AG/B-5/Sindh Revision dismissed.
[Sindh]
Before Farooq Ali Channa, J
Mst. BAI and 3 others---Applicants
Versus
PROVINCE OF SINDH through District Co-ordination Officer, Badin and 3 others---Respondents
Civil Revision Application No.10 of 2010, decided on 20th January, 2014.
(a) Islamic Law---
----Gift, essentials of---Constructive possession--- Scope--- Contention of plaintiffs was that possession was not delivered to the defendant---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Donee had accepted the gift declared by the donor and possession of suit land was delivered to him---Donor and donee signed the gift deed in presence of witnesses and all the three essentials of gift were complied with in accordance with law---Neither any land revenue receipt nor corroborative evidence was produced by the parties to prove possession on the suit land---Taking of possession of the subject-matter of gift by the donee either actually or constructively was necessary to complete the same---Registered gift deed and mutation of suit land existed in the name of donee in the revenue record---Constructive possession of donee over the gifted property was proved in circumstances---No illegal assumption or non-exercise or irregular exercise of jurisdiction by the courts below had been pointed out---Revision was dismissed in circumstances.
Muhammad Law quoted.
(b) Words and phrases---
----"Constructive possession"---Meaning---Possession which was not actual but assumed to exist where one had claimed to hold by virtue of some title without having the actual occupancy.
Black's Law Dictionary quoted.
Ishaq Khoso for Applicants.
Jhamat Jethanand for Respondents.
Date of hearing: 23rd December, 2013.
JUDGMENT
FAROOQ ALI CHANNA, J.---By this Civil Revision, the applicants have called in question the judgment and decree dated 23-12-2009 passed by learned IInd Additional District Judge, Badin (hereinafter referred to as Appellate Court) in Civil Appeal No. 59 of 2005 (Muhammad Khan v. Province of Sindh and others) whereby the Appellate Court set aside the judgment and decree dated 29-11-2005 and 5-12-2005 respectively passed by learned Senior Civil Judge (hereinafter referred to as trial Court) in F.C. Suit No.41 of 2003 and dismissed the suit filed by the applicants Mst. Bai and others against the respondents.
2. Briefly the facts of the case are that the applicants filed Suit No. 41 of 2013 for declaration, cancellation of gift deed and permanent injunction against the respondents. As per the averments of plaint, Haji Jumo, the late husband of applicant No.1 allegedly had gifted agricultural land admeasuring 23-20 acre, out of Survey No. 320 (2,3,4), 335, 336 (1,2,3), 326 (1,2), 317 (3), 318 (1,2) situated in Deh Mithi-II, Taluka and District Badin (hereinafter referred to as suit-land) to Muhammad Khan, the respondent No. 4 and executed such registered gift deed dated 29-4-1998. Haji Jumo has expired on 28-3-2003 leaving behind the applicants and Mst. Fatima who was made defendant No.6 in suit, to be his surviving legal heirs, they were entitled to inherit the property left by deceased Haji Jumo. The applicants approached the concerned Mukhtiarkar for mutation of property left by deceased Haji Jumo in their favour but they were informed that the suit-land, on the basis of registered gift deed has already been mutated in favour of respondent No.4, therefore they filed the above civil suit.
3. Pursuant to the notice the respondents appeared before the trial Court. The respondent No.4 filed the written-statement denying the averments of the plaint and contended that deceased Haji Jumo had gifted the suit-land to him due to love and affection and executed such gift deed before the concerned Sub-Registrar duly attested by the witnesses.
4. The trial court framed the issues, both the parties led pro and contra evidence, the trial court after affording an opportunity of hearing to the counsel for both the parties decreed the suit vide judgment and decree dated 29-11-2005 and 5-12-2005 respectively. The respondent No.4 Muhammad Khan assailed the aforesaid judgment and decree in Civil Appeal No. 59 of 2005, the Appellate Court allowed the appeal vide judgment and decree dated 23-12-2009 whereby set aside the judgment and decree passed by the trial court.
5. Before parting with the merits of the instant civil revision I may mention that the gift deed sought to be cancelled is a registered document. The Sub-Registrar, Badin in his evidence before the trial Court has admitted its execution and entries in the relevant record so also obtaining the signature and thumb-impression of executant Haji Jumo on the registers maintained in the office, mere some minor contradictions in the evidence of respondent No.4 and his witnesses regarding their arrival along with Bond Writer in the office of Sub-Registrar by foot or by car or Tanga are not sufficient to discredit the inviolability of a registered document. The applicant No.1 in her evidence before the trial Court has also admitted the execution of gift deed, however, however, her contention was that the respondent No.3 at the instance of respondent No.4 has registered a forged gift deed.
6. Learned counsel for the applicants in his arguments mainly has emphasized the incomplete essentials of a valid gift. Learned counsel has contended that under Muhammadan Law, three essentials i.e. 1) declaration of gift by the donor, 2) acceptance of gift by or on behalf of donee and 3) delivery of possession of the subject gift by the donor to donee are mandatory requirements for a valid gift. According to the learned counsel the deceased Haji Jumo has made no specific statement declaring the gift of suit-land nor the respondent No.4 has made such acceptance of the gift. The main contention of learned counsel was that the possession of subject gift was not delivered to the respondent No.4 at any stage after the execution of alleged gift deed. Per learned counsel the applicants are in possession and cultivating the suit land peacefully without any hindrance by the respondent No.4 as such the gift if any being incomplete is invalid and has created no ownership right or title of respondent No.4 over the suit-land and on the basis of such invalid gift, mutation of suit-land in favour of respondent No.4 in the Revenue Record of rights was illegal and liable to be cancelled therefore the trial court had decreed the suit correctly. Further the Appellate court has not given due consideration to the above legal aspect of the case nor applied judicial mind and has passed the impugned judgment on mere presumptions and assumptions, the findings of the appellate court are the outcome of mis reading and non-reading of evidence, the appellate court also erred in setting aside the judgment and decree passed by the trial Court, the impugned judgment and decree, are suffering from glaring infirmities and illegalities, the same are liable to be set aside and the Judgment and decree passed by the trial Court be restored.
7. Conversely, learned counsel for the respondents has contended that the impugned judgment is based upon the facts and circumstances brought on record by both the parties during trial before the trial Court. The appellate court has considered and discussed each factual and legal aspect of the case, the findings of the appellate court are based upon the cogent reasons supported by the dictum laid down by the Apex courts. Learned counsel has further contended that the perusal of gift deed manifest that it bears all the three essential for a valid gift, the possession of suit-land was delivered to the respondent No.4 as such there appears no illegality or infirmity in the impugned judgment passed by the Appellate Court, hence the civil revision is liable to be dismissed.
8. I have considered the arguments and perused the record. The main question before this court is that whether all the three essentials of a valid gift are complied with or the gift is lacking in any mandatory requirement. For deciding the aforesaid questions/controversies, it would be appropriate to mention that the trial court in its judgment has reproduced the Provisions 149 and 150 of the principles of Muhammadan Law, which are as under:--
"S.149. The three essentials of gift.---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, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with the gift is complete."
"S.150. Delivery of possession.---(1) it is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, "the taking of possession of the subject-matter of the gift by the donee, either actually or constructively is necessary to complete a gift. See sections 145, 146, 152 and 154."
9. I have perused the contents of gift deed in the light of provisions referred to hereinabove. No doubt, the scribe of the gift deed has not prepared separate statements of donor regarding declaration of gift and of donee regarding the acceptance of gift. However in the gift deed the scribe has shown Haji Jumo as party No.1 to be "DONOR" and Muhammad Khan as Party No.2 to be "DONEE". In the body of gift deed it is clearly mentioned on behalf of Haji Jumo, the donor that since he was issueless and his nephew Muhammad Khan during his ailment has devoted his best services, therefore due to love and affection he made gift of his 23-20 acres agriculture land to him. Likewise it is mentioned on behalf of Muhammad Khan the donee that he accepts the gift declared by Haji Jumo the donor. The scribe has also mentioned in the gift deed categorically that the possession of land under gift has been delivered by the donor to donee. The above contents were admitted by both the parties, and thereafter the donor and donee signed the gift deed in presence of witnesses Mian Bux and Abdul Karim as such all the three essentials of gift were complied with in accordance with law. So far the plea of learned counsel for the applicants regarding the delivery of possession of gifted property is concerned; both the parties in their evidence before the trial court have claimed their possession over the suit-land. However, neither they have produced any land revenue receipt nor led corroborative evidence regarding possession. The trial court also examined the Tapedars of the concerned area. Tapedar Ali Nawaz was cross-examined by the counsel for both the parties but they did not suggest any question regarding the possession of either party over the suit-land. In these circumstances, I will refer to section 150 reproduced in the preceding paras along with the observation of Judicial Committee that "the taking of possession of the subject-matter of the gift by the donee either actually or constructively is necessary to complete a gift. In Black's Law Dictionary, 6th Edition the constructive possession has been defined to be the possession not actual but assumed to exit, where one claims to hold by virtue of some title, without having the actual occupancy. In this case if there is any ambiguity in delivery of the actual possession of the gifted property by the donor to the donee, even then on the basis of title created by the gift and on the basis of registered gift deed mutation of suit-land exists in the name of the donee in the revenue record of rights, the constructive possession of the donee over the gifted property is proved, such possession in view of Judicial committee's observation referred to in section 150 satisfy the condition of delivery of possession of gifted property as such all the three essentials for a valid gift have been complied with which squarely make the gift complete in all respect.
10. Besides, section 115, C.P.C. will apply only to the cases involving the illegal assumption, non-exercise or the irregular exercise of jurisdiction by the courts below such essentials are not pointed out in the instant case.
11. For the reasons and discussions mentioned above, the Civil Revision is dismissed with no order as to costs.
AG/B-5/Sindh Revision dismissed.
Comments
Post a Comment