BARKAT ALI through Legal Heirs and others vs MUHAMMAD ISMAIL through Legal Heirs and others

' SARDAR MUHAMMAD RAZA KHAN, J.---This appeal is directed against the judgment dated 16-1- 1993 of the Lahore High Court, Multan Bench, Multan in Civil Revision No,1154 of 1976.

2. Brief facts of the case are that the suit land measuring 146 Kanals, 19 Marlas situated in Khata No,135, Mauza Gohar Muhammad, Tehsil Kabirwala, District Khanewal was owned by one Din Muhammad. His grandson Muhammad Ismail (whose legal heirs are respondents herein) made a Report bearing No,308 dated 6-6-1968 to the Revenue Patwari to the effect that 1/2 of the suit property was gifted in his favour by his grandfather Din Muhammad. Allegedly, on the basis of the said report, Mutation No,80 was attested on 28-7-1968 in respect of the total land measuring 146 Kanals, 19 Marlas.

3. To challenge the same, Barkat Ali son of Din Muhammad filed an appeal which was accepted by the AC/Collector, Kabirwala, vide order dated 17-9-1970, on the basis of a compromise between the parties through which land measuring 100 Kanals was given to Muhammad Ismail and the remaining 46 Kanals, 19 Marlas was left with Barkat Ali. Two counter suits were filed by the parties, wherein Barkat Ali assailed the report as well as mutation and compromise before the AC and claimed to be the owner of the whole- property by virtue of inheritance being the sole heir of Din Muhammad, whereas Muhammad Ismail asserted that the above compromise was fraudulent and that Mutation No,80 had been rightly attested in his favour. Vide consolidated judgment dated 25-10-1975, the trial Court decreed the suit of Barkat Ali to the extent of 46 Kanals, 19 Marlas and that of Muhammad Ismail to the extent of 100 Kanals.

4. On appeal, the Additional District Judge by his judgment dated 20-10-1976, held Muhammad Ismail to be the owner of the entire suit land measuring 146 Kanals, 19 Marlas, holding the same to have been lawfully gifted in his favour by his grandfather Din Muhammad. The revision petition filed against it was dismissed by a learned Single Judge of the Lahore High Court, Multan bench vide the impugned judgment dated 16-1-1993. Review filed against it was also dismissed vide order dated 2-5-1993. Against this decision a petition for special leave to appeal was filed before this Court, which was dismissed on 18-5-1994 on the sole ground that it was barred by 55 days. By order dated 17-4-1996 of this Court, the previous order of dismissal stands reviewed and so is the delay which stood condoned. Presently the original petition is converted into appeal against the judgment dated 16-1-1993 or 2-5-1993 of the Lahore High Court.

5: Leave to appeal has been granted to consider as to whether the gift in question has offended the provisions of Martial Law Regulation 64 and secondly, as to whether, the Courts below' have correctly appreciated the evidence on record. We would first take up the second question involving the factum of gift. It is an admitted principle of law that to make a valid gift three necessary ingredients thereof are to be proved. Those consist of offer by the donor, acceptance by the donee and delivery of possession. The donor Din Muhammad according to Report No,308 dated 6-6-1968 had himself appeared before Patwari Halqa to make an offer of gift. Din Muhammad was dead since prior to the institution of suit and thus, his personal appearance was out of question. The only evidence of the offer of gift was, therefore, Daily Dairy No,308. Even if it is resumed that Din Muhammad had personally appeared to make an offer, the gift at the most be construed to have been of 1/2 share in property measuring 146 Kanals, 19 Marlas. It is quite intriguing to note that Din Muhammad had been gifting away the property to his, grandson by totally disinheriting his one and the only son, namely. Barkat Ali. Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct is made without reason or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. In the wake of frivolous gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons' and justification for a gift so that no injustice is done to the rightful owners and no course of inheritance is bypassed.

6. In the instant case no reason is furnished for such gift. At the most one can import the love and affection of the grandson but the same seems to be unreasonable in the presence of one and the only son of the donor. Rather there is a negative reason for making gift, in. That, Barkat Ali had three daughters as well and it was rightly apprehended that in case of the death of Barkat Ali, property would also be inherited by his daughters, the real sisters of Muhammad Ismail. There is overwhelming reason for the grant of gift which seems to he mala fide and which is why it was assailed by the very son of the donor.

7. It is a settled principle of law that delivery of possession is the most an important ingredient of a valid gift. We are constrained to observe that two Courts below, excepting the trial. Court, have misread the evidence qua the delivery of possession. Muhammad Ismail, the donee has appeared as D.W.5 to give his statement on 28-4-1975. He categorically admitted at so many places that half of the suit property was in possession of Barkat Ali, the father. The same is evident from Khasra Girdawari as well. Muhammad Ismail has tried to give reasons of such possession and dubbed the possession of his father as tenant under him but this is not borne out from record.

8. If the grandfather had gifted away the entire property in favour of Muhammad Ismail, he admittedly was not given the possession of the entire property because half of it was provenly and admittedly under the possession of the father i.e,, the son of the donor. The gift lacks the necessary ingredient of delivery of possession.

9. There are certain gifts in which the delivery of possession is not necessary like, a gift made to a wife or to a female relation in prohibited degree which is either dependent upon the donor or living alongwith him. The delivery of possession can also be ignored when the donee is either minor or ward of the donor because in that case the donor himself would be deemed to be in possession on behalf of the minor ward. Except for the above exceptions, no gift can be valid without the delivery of possession. In the instant case the donee is the grandson of the donor. The former is neither minor nor a ward of the grandfather because his own father was alive and hence it was a case where the delivery of possession in toto was a must. It is admitted that half of the property was possessed and kept on being possessed by the father even during the lifetime of the grandfather.

10. Another important aspect of the case is that in the instant case the possession was held by Barkat Ali the son of the donor against whose interests the gift was made. When possession is with a person against whose interests the gift is made, the delivery of possession becomes all the more necessary. Viewed from any angle, it is abundantly clear that no possession of the gifted property was delivered in toto to the donee.

11. It if is presumed that the entire property was gifted away by the grandfather, the delivery of possession qua the entire property is not proved. If it is presumed that half of the property was gifted away by the donor, it clearly offends the provisions of para.25 of the Martial Law Regulation 64, which reads as under:-- "25(3). No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding: ' Provided that such a person may alienate his entire holding.

The perusal of the above provisions of law would indicate that the donor could have gifted away his entire holding and not half of it. We have observed above that the gift of entire land was bad because of non-delivery of the entire possession thereof and so is the gift of half of property' because it offended the provisions of Martial Law Regulation 64.

12. It was argued with reference to para.27 of Mania! Law Regulation 64 that the question of validity or otherwise of an alienation under the Regulation cannot be gone into because only the Commission or an officer acting under the authority of the Commission has the exclusive jurisdiction in the matter. We have not been convinced to agree with such reasoning because a Commission has exclusive jurisdiction to determine so only when the .Alienations are in connection with the aims and objectives of Martial Law Regulation 64. Whenever the validity of an alienation happens to be questioned during a civil suit -with reference to the question of title, the Civil Court has all the jurisdiction to declare as to whether the alienation is valid to confer proper title. In the circumstances of the present case, we are convinced and hold that the Civil COurt has the jurisdiction to adjudicate upon the nature of transaction with reference to Martial Law Regulation

64. The disputed question has arisen not with reference to the resumption of land but with regard to the title thereof and thus, it would not be in the fitness of things that a Civil Court be barred to give such decision.

13. Another important aspect of the case is that Din Muhammad admittedly was the owner of 149 Kanals, 6 Marlas of land in the village. It is a case of both the parties that he allegedly gifted away 146 Kanals, 19 Marlas of land even if the entire land is presumed to have been gifted. In that case K too, the alienation is bad under Martial Law Regulation 64 because 3 Kanals, 13 Marlas of land was still retained by Din Muhammad. It was half-heartedly argued before us that such 3 Kanals, 13 Marlas was a constructed property-but there is not an iota of evidence on record to substantiate this argument.

14. Looked from any angle whatsoever, we are convinced that the donor even if had gifted away 146 Kanals, 19 Marlas of land, he admittedly had not delivered the possession because half of it was under the possession of Barkat Ali the son of the donor against whose interest the gift was being made. If half of 146 Kanals, 19 Mamas is presumed to be gifted away, it glaringly violated the provisions of Martial Law Regulation 64. Even otherwise, it is bad under the Regulation because Din Muhammad happened to retain in any case 3 Kanals, 13 Marlas on land. The gift was mal.a fide and was made with the only object of disinheriting the sisters of Muhammad Ismail. The purpose of gift is also lacking because once a gift is challenged, the purpose of making thereof becomes a strong relevant fact.

15. Consequently,. The appeal is accepted, the judgment dated 16-1-1993 of the Lahore High Court, dated 20-10-1976 of the Additional District Judge and dated 25-10-1975 of the trial Court are set aside and the gift vide Mutation No,80 dated 28-7-1968 is hereby declared to be void, unlawful and ineffective against the rights of the parties to be affected by the alienation.