DOST MUHAMMAD KHAN vs IMAM BAKHSH

ORDER

SHAH ZAMAN KHAN BABAR, J.--Malik Muhammad Ashiq and Malik Muhammad Ashraf, sons of Malik Haji Muhammad Hussain sold the suit house to Imam Bakhsh for a sale consideration of Rs, 2,500 by a registered sale-deed dated 23-3-1967. Dost Muhammad pre-empted this sale by a suit instituted on 4-5-67. Imam Bakhsh contested the suit on the ground that he had been gifted a portion of a house contiguous to the suit house by Ghulam Rasul by a deed executed on 27-4-67 and registered on 5-5-67. The pleas of the parties gave rise to as many as eight issues, including issues Nos, 2 and 5, which are assailed. Issue No, 2 is "whether the plaintiff has superior right of pre- emption?". Issue No, 5 is "Whether the defendant has improved his position, if so, with what effect?"

2. The suit was tried by Civil Judge, D. I. Khan, who by his judgment dated 30-4-68 on his finding on issues Nos, 2 and 5 dismissed the plaintiff's suit.

3. The plaintiff's appeal was also dismissed by the District Judge, Derajat by his judgment dated 4- 7-1970.

4. Dost Muhammad plaintiff has come up on second appeal. The learned counsel for the appellant argued that the gift in favour of Imam Bakhsh vendee by Ghulam Rasul donor was a gift of a portion of a house, of which possessiodn was not delivered to the donee and as such the gift was void. Secondly, that the deed of gift was registered on 5-5-67 and, therefore, the title of Imam Bakhsh vendee was not complete and he has not improved his status of the right of pre-emption to the suit house before the institution of the suit on 4-5-67. The contentions of the learned counsel do not appear to be well-founded. Section 160 of the Mahomedan Law by D. F. Mulla. 15th Edition lays : "A gift of an undivided share (mushaa) in property which is capable of division is irregular ( fasid), but not void (basil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated. "Thus a gift of a portion of property is not void in law. In Kairum Bi and others v. Mariam Bi and another , also, it was held : "Where the donor gives away by way of gift the entirety of her undivided share in an estate to two persons jointly, the gift is not bad."

The argument of the learned counsel for the appellant that possession of the gifted property has not been delivered to the vendee and as such the gift is not complete was repelled by the learned lower Appellate Court on the grounds that the donor Ghulam Rasul and the donee Imam Bakhsh have both stated that possession of the gifted portion of the contiguous house had been delivered to Imam Bakhsh donee and that the plaintiff had no locus standi to challenge the gift on the ground of non-delivery of possession to the vendee by the donor. Section 150 of Mahomedan Law by D. F. Mulla deals with delivery of possession. At page 133 (15th Edn ) under the caption "who can challenge the validity of the gift?", it is stated :-- "The question whether possession has been delivered is relevant only when an issue is raised between the donor or those claiming under him on one side, and the donee or those claiming under him on the other. A stranger cannot invoke the rule that the gift is bad because there has been no delivery of possession."

In Kula Beg Afzalbeg and others v. Gulzarbeg Lal Beg and others it has been held :- "In cases of gifts under Mohamedan Law, the question of delivery of possession is only relevant as between the donor and those who claim under him and the donee. Consequently where the donor upholds the gift and the donee accepts it, it is a valid gift, and the strangers cannot question its validity on the ground of want of delivery of possession."

In Fazal Ahmad v. Mst. Rakhi it is ruled :- "As an ordinary rule of Muslim Law a gift is to be followed by delivery of possession, that is, the donor is to deliver to the donee whatever possession he has, but the objection as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in a case where the donor is himself supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both donor and the donee."

Again in AIR 1960 Mad. 447 it has been held :- "The question whether possession has been delivered is relevant only when an issue is raised between the donee or those claiming under him on the one side and the donor or those claiming under him on the other. Where a gift is otherwise proper, a stranger cannot invoke the rule that the gift is bad because there has been no delivery of possession."

5. The next argument is that the gift deed was registered on 5-5-67 and as such it can have effect only from the date of registration. This argument is also repelable in view of section 47 of the Registration Act, which is reproduced below :- "S. 47. A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration."

In is held Singh and others v. Jamuna Prasad Singh and others its held : "A sale is complete when a sale deed is executed by the vendor and the vendor has no right in law to rescind or revoke the sale, registration or no registration. After a sale is completed by execution of a deed, registration comes as a matter of course Section 47 of the Registration Act does not purport to create a new title, but only affirms the title which was created by the sale-deed. The title, is complete and the effect of registration is only to make it absolute and unquestionable". The right of pre-emption can be defeated by all legitimate devices. In the present case the vendee has gained a superior right equal to that of the pre-emptor by dint of the gift deed executed before the Institution of the suit, and as such the gift of a portion of a house contiguous to the suit house makes the right of preemption of the vendee at par with the right of pre-emptor. The pre-emptor has, therefore, no1 2 3 4 superior right of pre-emption to the suit house. In conclusion this appeal merits dismissal in limine.

It is, therefore, dismissed. AIR 1960 Mad. 447 AIR 1946 Nag. 357 PLD 1958 Lab. 218 AIR 1958 Pat. 193