AZIM KHAN vs Malik MOBEEN KHAN and others

ORDER

' ABDUR REHMAN KHAN, J.---Mst. Bhari Jan, predecessor-in= interest of respondents Nos.1 to 4, brought a suit to be declared as owner in possession of the house in suit and for cancellation of gift deed dated 21-8-1978, executed by her in favour of the defendant. It was alleged in the plaint that the defendant persuaded the plaintiff to execute a gift deed in his favour on the ground that he would serve the plaintiff during her lifetime. However, the defendant resiled from his commitment and, therefore, the possession all along remained with the plaintiff as she never parted with the possession. It was, therefore, averred that the defendant was not justified to declare himself as owner of the house in question, because the plaintiff has never parted with the possession and she continued in possession as before. Defendant in his written statement termed the gift in his favour as genuine and asserted that the possession of the disputed house has been given to him in pursuance of the sale-deed.

2. The learned trial Court held that suit to be time-barred and declared the gift to be genuine and, accordingly, dismissed the suit: The learned Appellate Court disagreed with the judgment of the trial Court and held:-- ' "In PLD 1964 SC 143 it has been held that mere recital of delivery of possession in the deed of gift is not enough except when the donor is the 'father and guardian of the donee. In the present case no such relationship exists between the donor and donee. D.W.3 Ramzan the special attorney of the defendant/respondent has also admitted in cross-examination that plaintiff Mst. Bhari Jan used to live in the suit house till her death and that she died in the same house. The above admission of the attorney of the defendant/respondent is sufficient proof of the fact that possession was not delivered, to the respondent/donee in terms of the gift deed. It is well-settled that if possession is not delivered the gift would be void even if it is conceded that the formalities for making the gift were completed (PLD 1964 SC 143, 1968 SCM R 859 and PLD 1965 SC 665). In the above circumstances the donor was entitled to revoke her gift under section 167(1) of Muhammadan Law, therefore, she was well within her right to institute the suit for revocation of gift which she had instituted before delivery of possession and the appellants being her legal heirs are entitled to the decree prayed for (1980 CLC 2209)."

' Consequently, while accepting the appeal the judgment and decree of the trial Court Were set aside and the suit of the plaintiff was decreed. The learned Judge in the, High Court by the impugned judgment dated 23-11-1998 affirmed the judgment of the Appellate Court. The legality of the said judgment is challenged in this petition and leave to appeal is sought against it.

3. The learned counsel for the petitioner argued that possession of the disputed house was delivered to the defendant and, therefore, reliance on PLD 1964 SC 143 was misplaced. He referred to 1988 SCM R 485, to support his stand.

4. The learned counsel was, however, unable to controvert the factual position about the possession as stated in the above reproduced para. From the Appellate Court judgment. It is by now settled law that mere recital in the "deed about the delivery of possession would not be sufficient to prove possession unless delivery of possession is positively proved by cogent reason.

The rule laid down in '1988 SCM R. 485' is distinguishable as in that case the gift was by the grandfather in favour of his minor grandson who was residing with him at the time of gift. We, therefore, find no legal flaw in the impugned judgment and, accordingly , refuse to grant leave and dismiss the petition.