HAKIM KHAN vs AURANGZEB AND Another

ORDER

KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about an area of 702 kanals of agricultural land situated in Mauza Khola, Tehsil and District Mianwali which was gifted by Hakim Khan-- (plaintiff/petitioner) (now represented by his legal representatives) to his grandsons (i) AurangZeb Khan and (ii) Muhammad Arif (defendants/respondents), by means of a mutation bearing No. BE/141, attested on 15-2-1952. After a period of about 14 years, from the sanction of the mutation the plaintiff on 3-2-1966 filed a suit for a declaration that he was still the owner of the suit land and that the gift aforesaid was illegal and void inasmuch as it was not completed by delivery of possession and was never acted upon, and was otherwise unlawful, because, it was a gift of an undivided share in the larger Khata No. 752 having a total area of 1900 kanals, and which was hit by the doctrine of mushaa. It was also pleaded that the gift had been made by the plaintiff due to and under coercion. The suit was dismissed by the learned Administrative Civil Judge, Mianwali, on 27- 2-1967, both on merit as well as limitation.

2. The plaintiff/petitioner filed a regular first appeal being R. F. A. No. 53 of 1967 but without any success as the same was also dismissed by a learned Division Bench of the Lahore High Court on 4-6-1975.

3. The plaintiff petitioner has come up in a petition for special leave to appeal against the same to this Court.

4. Learned counsel submitted that the gift being of an undivided share from the main khata bearing No. 752 was hit by the doctrine of Mushaa which could not be considered valid unless it had been completed by the delivery of possession. He submitted that no doubt the donees were the grandsons of the donor but being minors as they were not under his custody, control and supervision and nor was it had who was bringing them up, therefore, somebody on their behalf- (other than the donor) should have received the delivery of possession so as to complete the gift.

According to the learned counsel as, the delivery of possession never man rialised therefore the gift was invalid. Here it is to be clarified that the learned counsel was not submitting that the gift of an undivided share per se was invalid and he emphasised that though such a gift could be made but his case was that it was invalid simply due to lack of delivery of possession, which was necessary even in cases of mushaa gifts. The findings of the Courts below however, are that the donees were under active custody, control and supervision of their grandfather, namely the donor who was looking after and bringing them up, therefore, in the circumstances the plea raised had no substance. We find nothing wrong with the view taken by the Courts below on the subject both on the factual and legal planes. The donor himself being the natural guardian of the minor donees- (as their father had died much earlier)-they were under his care and control and were being brought up by him and in these circumstances the natural guardian could have by his own declaration parted with the seizen and at the same time received delivery of possession in the new context. He himself made a report before the Patwari and got the mutation entered. Then he personally appeared before the Revenue Officer and accepted the factum of making the gift and the delivery of possession. He was a big Zamindar and a lambardar of the village and very well understood the nature of his actions and statements, and their obvious consequences.

5. When confronted with the above situation learned counsel tried to refer to oral evidence of a Patwari who during those days was the Patwari Halqa and who deposed that the possession of the property remained with the donor and was never delivered to the donees. Learned counsel also wanted to refer to certain other oral evidence of similar type. However, all the oral evidence is falsified by the fact that the names of the donees were duly included as owners in the relevant column of all the various Jamabandis and the donees were shown to be in cultivating possession which shows that the transaction had duly been completed in all respects and the possession had passed on to the donees. The entries in jamabandis, as is obvious, carried a statutory presumption of truth under section 44 of the Punjab Land Revenue Act XV of 1887 and section 52, West Pakistan Land Revenue Act XVII of 1967. As against the aforesaid bald statement of the kind mentioned above can hardly cut any ice. In this state o affairs the objection of invalidity of mushaa gift on ground of non-deliver of possession factually goes away as was held in Sanaullah Fakir v.

AlamFakir and others (1968 SCMR 311) and Sahib Dad v. Muhammad Ajaib and another (1972 5 C M R 295). Approving Sheikh Muhammad Mumtaz Ahmad and others v. Zubadia Jan and others (16 I A 205).

6. Before parting with this case it is to be pointed out that the Courts below had dismissed the suit of the plaintiff also on ground of limitation. The gift was made on 15-2-1952. The declaratory suit was filed on 3-2-1966. It was obviously time barred under Article 120 of the Limitation Act IX of 1908 and the learned counsel could not successfully challenge the finding of the Courts below on this subject before us. The plea of coercion not having been established-(and not pressed) and the gift as held above having been completed by delivery of possession and entries in jamabandis etc. a suit to challenge t he same after about 14 years was clearly time barred, because as is self evident it was neither a void gift and on the findings recorded not even proved to be voidable.

7. Looked at from whatever angle the result is that this petition has no merit and is dismissed . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.