Meaning of Revocation of Hiba | Case laws ( when hiba can't revoke) revocation of hiba in Muslim law | revocation of hiba in family law

Meaning of revocation of hiba

"Hiba" refers to a gift given voluntarily by one person to another in Islamic law. The revocation of hiba, therefore, would mean the cancellation or withdrawal of such a gift. Revocation can occur under certain circumstances specified by Islamic law, such as the donor changing their mind before the recipient takes possession of the gifted property. After the procedure complete and donee take possession and documents, only decree of the court can revoke hiba. The process and conditions for revoking a hiba can vary, and it's advisable to consult with our legal professionals.

Case laws on revocation of hiba

Following judgement is about hiba .

Hiba kab revoke (mansokh) hu sakta hai or kab nahi

Landmark judgement main hiba ke bare main tamam books or authorities ko discuss kia gia hai

Brief facts of the case of revocation of hiba

Petitioner ne aik case file kia ke mere bap ne 1952 main mujhe land hiba ki

Or bap ke marne ke baad 1992 main petitioner ko pata chalta hai ke us ke bap ne 1970 main hiba mansookh kar ke dosre warsaan ke nam hiba kar dia tha.

Pata lagne ke baad wo declaration or cancellation of documents ka dawa file karta hai.

Petitioner ka dawa decree hu jata hai. Or respondent appeal file karte hain jin ki appeal kharaj hu jati hai na sirf district judge balke High court bhi Appeal kharaj kar deti ha.

Jiss ke baad respondent following case main Supreme Court main leave to appeal case file karte hain ju ke kharaj kar di jati hai

Supreme court ne qarar dia ke aik dafa hiba kar dene ke baad maswai court ki decree ke hiba mansookh nahi kia ja sakta.

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Judgement

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:

MR. JUSTICE SAJJAD ALI SHAH

MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI

MR. JUSTICE MUHAMMAD ALI MAZHAR

CIVIL PETITION No. 1647 OF 2018

(Against the judgment dated

26.03.2018 Lahore

High Court,

Multan Bench, in Regular Second

Appeal No.18/2004)

Abid Hussain and others

…Petitioners

VERSUS

Muhammad Yousaf and others

…Respondents

For the Petitioners:

Mr. Muhammad Ilyas Shaikh, ASC,

Chaudhry Akhtar Ali, AOR

For the legal heirs of

deceased Respondent No.1 Mr. Tahir Mehmood, ASC

Syed Rifaqat Hussain Shah, AOR

For Respondent Nos.2-4

Nemo.

Date of Hearing:

03.02.2022

JUDGMENT

MUHAMMAD ALI MAZHAR, J. This Civil Petition for leave to

appeal is directed against the judgment passed by learned Single

Judge of Lahore High Court, Multan Bench, in Regular Second

Appeal No.18/2004 which was dismissed vide judgment dated

26.03.2018.

2. The ephemeral features of the lawsuit are as under:-

The deceased respondent No.1 instituted a suit for declaration with

the plea that his father Makhdoom Haider Bakhsh in the year 1952

gifted him land measuring 859 Kanals 01 Marla, Khewat No.336,

355 and 364, situated at Ghair Musaqil Gharbi Tehsil Kot Addu

District Muzaffargarh vide Mutation No.1306, when the plaintiff

was five years old and possession was also delivered to his mother

namely Iqbal Begum. After death of his father in the year 1992, the

respondent No.1 (deceased) came to know that his father executed a

document of revocation of gift on 25.7.1970, thereafter, gifted the

same piece of land to the petitioners (defendants No.2 to 6 in suit)

and mutation entry No.2189 dated 20.04.1971 was also recorded in

their favour. He accordingly sought declaration, cancellation of

impugned documents and also sought relief of delivery of

possession of suit land. That petitioners/defendants No.2 to 6

mainly controverted that the possession was never handed over to

the plaintiff, therefore Makhdoom Haider Bakhsh rightly revoked

the gift on 25.07.1970. The learned Trial Court decreed the suit.

The petitioners filed an appeal which was dismissed thereafter a

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Regular Second Appeal was filed in the Lahore High Court which

was also dismissed.

3. The learned counsel for the petitioners argued that the findings

recorded by the Trial Court on issues No.1, 2, 5 and 6 are against

the evidence available on the record. The revocation deed was

executed by Makhdoom Haider Bakhsh on 25.07.1970 which was

a registered document and, under the proviso attached to Section

3 of the Transfer of Property Act, 1882, it was a notice to public at

large including respondent No.1. After revocation, deceased

Makhdoom Haider Bakhsh had transferred suit land in favour of

petitioners and physical possession was also delivered. The

respondent No.1/plaintiff filed the suit to challenge the registered

deed of revocation of gift on 21.07.1992 which was time barred. It

was further averred that the onus to prove was on respondent

No.1/plaintiff to state the date, time and place of making of oral

gift, independent of attestation of mutation Ex.P-1 but also to

assert three main ingredients of valid gift, namely, declaration,

acceptance and delivery of possession. It was further contended by

the learned counsel for the petitioners that, in order to establish

possession over the suit land from the year 1952 till 1970 and

from 1970 till filing of suit, respondent No.1/plaintiff though made

a statement on oath, but failed to produce any evidence to

establish his possession over the suit land. He further averred that

reliance made by learned High Court on Para 167 of the principles

of Muhammadan Law by D.F. Mulla has not been properly

considered which is not codified law and such principles can only

be taken into consideration for convenience.

4. The learned counsel for the legal heirs of deceased respondent

No.1 vigorously defended the impugned judgments and decrees

and argued that the land gifted to the respondent No.1 by his

father could not be revoked. The petitioners failed to lead any

cogent evidence in support of their claim. He further contended

that all the courts below decided the lis against the petitioners

which judgments are in consonance with law and require no

interference by this Court.

5. Heard the arguments. The defendants in the Trial Court took the

plea that the suit was time barred, while the plaintiff maintained

that cause of action accrued to him for filing the suit in the year

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1992 when it came into his knowledge that the gift was revoked by

his father and suit was filed accordingly in the year 1992 which

was not time barred. The D.W-5, Sabir Hussain, who was one of

the defendants, appeared in evidence and admitted during crossexamination that they never informed the plaintiff with regard to

cancellation deed of gift executed in their favour with further

admission that the plaintiff was not present at the time of

execution of impugned documents. After considering the evidence,

the learned Trial Court reached to the conclusion that the suit was

not time barred. It was not disputed that the father of the

plaintiff/deceased respondent No.1 had gifted the property in

question in the year 1952 in favour of plaintiff when he was five

years old, however, their main contention was that the possession

of the suit property was not delivered to the plaintiff, therefore the

gift was incomplete. On the contrary, the record reflects that the

mother of plaintiff, Mst. Iqbal Begum, accepted the gift and

possession of the suit land on behalf of her minor son (deceased

respondent) and Makhdoom Haider Bakhsh also got sanctioned

the mutation Entry No.1306 in favour of his minor son. The father

passed away in January 1992, thereafter plaintiff came to know

that his deceased father executed a document in the year 1970 for

cancellation of gift.

6. Presenting a gift whether grand or tiny is an act of kindness and

compassion, and between the parents and children it is somewhat

out of love and affection. According to Hedaya, “Hiba”, in its literal

sense, signifies the donation of a thing from which the donee may

derive a benefit; in the language of the Law it means a transfer of

property, made immediately, and without any exchange.” While

according to Ameer Ali, “A hiba, pure and simple, is the voluntary

transfer, without consideration, of some specific property (whether

existing in substance or as a chose in action)”. According to Mulla,

“A hiba or gift is “a transfer of property, made immediately and

without any exchange,” by one person to another, and accepted by

or on behalf of the latter”. Whereas according to Fyzee, “Hiba” is

the immediate and unqualified transfer of the corpus of the

property without any return”. According to Sir Abdul Raheem, “The

Muhammadan law defines hiba or a simple gift inter vivos as a

transfer of a determinate property without an exchange”. A similar

definition is provided by Baillie “Gift (hibut.), as it is defined in law,

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is the conferring of a right of property in something specific,

without an exchange”. Similarly, according to Sahih Muslim, “A

Hiba is defined as the transfer of possession of property, movable

and immovable, from one person to the other willingly and without

reward”.

7. The Transfer of Property Act, 1882, has no application to the

hiba/gift envisioned and encapsulated under the Muslim Law and

for this reason, Section 123 and 129 of the Transfer of Property Act

can neither surpass nor outweigh or preponderate the matters of

oral gifts contemplated under the Muslim Law for which a

registered instrument or indenture is not mandatory. All orthodox

and unequivocal annotations and explications based on Islamic

Jurisprudence vis-à-vis “Hiba” have unambiguously emphasized

and underlined the fact that the donor should be compos mentis,

meaning thereby a person who is of sound mind and has the

mental capacity to understand the legal implications of his act of

making gift and he must be major and the owner of the property

which is intended to be gifted; the thing gifted should be in

existence at the time of hiba; the thing gifted should be such to

benefit from which is lawful under the Shariat; the donor must be

free from any coercion/duress or undue influence while making a

gift; the thing gifted should come in the possession of the donee

himself or through his representative/guardian for an effective

hiba. Under the Muslim law, the constituents and components of a

valid gift are tender, acceptance and possession of property. A

Muslim can devolve his property under Muslim law by means of

inter vivos (gift) or through testamentary dispositions (will). Islamic

law does not make any distinction between movable or immovable

property with regard to the conception of hiba, rather any property

may be gifted by any person having ownership and dominion over

the property intended to be gifted on fulfilling requisite formalities.

It is also obligatory that the donor divest and dissociate himself

downrightly from the dominion and ownership over the property of

gift and put into words his categorical intention to convey the

ownership to the donee distinctly and unambiguously with delivery

of possession of the property and ensure that donee has secured

physical ascendency over the property in order to constitute the

delivery of possession.

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8. Indeed, the bone of contention between the parties and/or the

point for determination is as follows:-

Whether a gift of immovable property conveyed by a donor

(father/natural guardian) under the Muhammadan Law in

favour of minor child (donee) in the year 1952 could have

been revoked by the father in 1970 (almost after 18 years)

despite handing over the possession of the property which

was accepted by the real mother on behalf of such minor?

9. In order to thrash out the controversy in a logical and judicious

manner, we have scanned the different books of renowned scholars

on Islamic jurisprudence vis-à-vis the doctrine or topic of

revocation of gift under Muhammadan Law which as follows:-

Principles of Muhammadan Law by D. F. Mulla

(Pg. 503; 517-518)

155. Gift to a minor by father or other guardian.– No transfer of

possession is required in the case of a gift by a father to his minor

child or by a guardian to his ward. All that is necessary is to

establish bona fide intention to give.

167. Revocation of gifts.– (1) A gift may be revoked by the donor

at any time before delivery of possession. The reason is that before

delivery there is no completed gift at all.

(2) Subject to the provision of sub-section (4), a gift may be revoked

even after delivery of possession except in the following cases–

(a) when the gift is made by a husband to his wife or by wife to her

husband;

(b) when the donee is related to the donor within the prohibited

degree;

(d) when the thing given has passed out of the donee’s possession

by sale, gift or otherwise;

(e) when the thing given is lost or destroyed;

(f) when the thing given has increased in value, whatever be the

cause of the increase;

(g) when the thing given is so changed that it cannot be identified,

as when wheat is converted into flour by grinding;

(h) when the donor has received something in exchange (iwaz) for

the gift [see sections 168 and 169].

(3) A gift may be revoked by the donor, but not by his heirs after his

death. It is the donor’s law that will apply to a revocation and not of

the donee.

(4) Once possession is delivered, nothing short of a decree of the

Court is sufficient to revoke the gift. Neither a declaration of

revocation by the donor nor even the institution of a suit for

resuming the gift is sufficient to revoke the gift. Until a decree is

passed, the donee is entitled to use and dispose of the subject of

the gift

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Muhammadan Jurisprudence by Sir Abdul Raheem

(Pg. 301 - 302)

According to the Hanafis a gift being a disposition of property

without consideration it can be revoked by the donor even after

possession has been delivered to the donee, who however until such

revocation may lawfully exercise proprietary rights over it. The right

to revoke a gift is called raja’t. The position of the Hanafi jurists on

this point seems to be inconsistent but it is insisted on, in spite of a

tradition which condemns revocation of a gift. This tradition they

construe as having the effect merely of making such revocation

abominable or improper. They at the same time allow numerous

exceptions which deprive the general rule of all effective operation.

A gift cannot be revoked under the following circumstances:–

(1) If the gift is to any of the donor’s ascendants or descendants,

brothers or sisters or their children uncle or aunt;

(2) When the gift is made during coverture to the husband or wife of

the donor as the case may be;

(3) If the subject-matter of gift be land, and the donee erects a

building on it or plants a tree in it, or if the property be so improved

that the increase cannot be separated, for example, when the

subject-matter of the gift is an animal and the donee fattens it by

feeding, or if the thing given has been so altered that a different

name would be applied to the new substance, for example, when

wheat is turned into flour;

(4) If the donee has sold the property subject of the gift to another

or parted with it by gift followed by delivery of the property;

(5) When the thing given has perished in the hands of the donee;

(6) If either the donor or the donee has died;

(7) If the gift be to charity or Sadaqa;

(8) If the donee or somebody on his behalf has given to the donor

something in exchange for the gift and the donor has taken

possession of it.

Again the revocation must be explicit and confirmed by the order of

a Judge, because, the law on the question being one on which

jurists have held different opinions, the declaration of it by a Qadi is

necessary to remove the doubt.”

Outlines of Muhammadan Law (Fourth Edition) by Asaf A. A.

Fyzee (Pg. 264 - 266)

A tradition of the Prophet Muhammad shows that he was entirely

against the revocation of gifts; and this is understandable, for in

early times as nowadays the making of mutual gifts improves the

relations between men and leads to cordiality and affection. In

Hanafi law, although the revocation of a gift is abominable from the

moral point of view, it is nevertheless legal in certain cases and in

this respect it resembles the equally reprehensible institution of

talaq. (Pg. 264 – 265)

The following gifts are irrevocable:

1. When a gift is made to a person who is so closely related by

consanguinity that if the parties differed in sex, a marriage between

them would be unlawful.

2. By a wife to the husband or by the husband to the wife.

3. When the donor or donee dies.

4. When the thing given is lost or destroyed.

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5. When the thing has been transferred by the donee by gift, sale or

otherwise.

6. When the thing has increased in value, whatever be the cause of

such increase.

7. When the donor has accepted a return (‘iwad) for the gift.

8. Where the motive for the gift is religious or spiritual, for in this

case the gift amounts to sadaqa.” (Pg. 266)

The Hidaya (Volume II) by Sheikh Burhanuddin Abi Al Hasan Ali

Marghinani (Pg. 194)

A gift to a kinsman cannot be resumed. If a person makes a gift of

anything to his relation within the prohibited degrees, it is not

lawful for him to resume it, because the Prophet (S) has said.

“When a gift is made to a prohibited relation, it must not be

resumed; “and also because the object of the gift is an increase of

the ties of affinity, which is thereby obtained.”

Digest of Muhammadan Law (Second Edition) by Neil B. E.

Baillie (Pg. 533 - 535)

The revocation of a gift is abominable in any circumstances; but it

is valid nevertheless. Gifts are of several kinds, some being to

relations within the prohibited degrees, and some to persons who

are prohibited but not relatives. All may be revoked before delivery

to the donee, whether he was present or absent at the time of the

gift, and whether he were permitted to take possession or not. But

after delivery, the donor has no right of revocation when the gift is

to a relation within the prohibited degrees. With regard to all others

besides these he has the right of revocation, except that after

delivery he cannot revoke of himself, and the revocation requires

the decree of a judge or the consent of the donee. Previous to

delivery, however, the donee can revoke the gift of himself either in

whole or in part.” (Pg. 533)

8th. Relationship between the forbidden degrees prevents the

revocation of a gift, whether the relative be a Muslim or an infidel;

and there is, consequently, no revocation of gifts to fathers and

mother, how high so ever, or children, how low so ever; the children

of sons and the children of daughters being in this respect alike. In

the same manner there is no revocation of gifts to brothers and

sisters, and paternal uncles and aunts. But where the prohibition is

for some other cause than consanguinity it does not prevent

revocation; as in the case of fathers and mothers, or brothers and

sisters by fosterage, and of mothers of wives, step-sons, and the

wives of sons, and husbands of daughters who are prohibited by

affinity. (Pg. 534 – 535)

Muhammadan

Law (Volume I) by Syed Ameer Ali

(Pg. 150 – 151)

According to Hanafi law, though the revocation of a gift is worthy of

reprobation from a moral point of view, yet it is not illegal. The

revocation of a gift, says the Fatawai-Alamgiri, “is abominable

under any circumstance, but is valid nevertheless.” The

consequence of this principle is that in every instance a gift may be

revoked before delivery of possession, but after a transmutation of

possession has been effected, certain kinds of gifts cannot be

revoked, whilst the others may be revoked under the decree of the

Judge or with the consent of the donee.

When a gift is made to a blood-relation within the prohibited

degrees and delivery of possession has taken place, the donor has

no right of revocation. (1) In order to make a gift irrevocable, it will

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be seen that not only must it be to a blood-relation but such

relation must be within the prohibited degrees. A gift to a cousin is

not irrevocable, inasmuch as a cousin is not within the prohibited

degrees. Similarly, a gift to the mother of one’s wife is revocable as

she, though within the prohibited degrees, is not a relation.

In the case of gifts to persons other than relations within the

prohibited degrees, previous to delivery the donor can revoke the

gift of his own motion either in whole or in part. After delivery, he

must obtain either the consent of the donee or the decree of the

Judge to validate the revocation. E.G., where the gift has been

completed by delivery of the property to the donee, and the donor

seeks to revoke it on grounds apart from fraud, misrepresentation

or undue influence, such revocation can only be effectuated by the

decree of the Court, unless the donee consents to return it to the

donor without recourse to the Judge. Gifts obtained by fraud or

compulsion are voidable in all cases.

Principles and Precedents of Muhammadan Law by William Hay

McNaghten (Pg. 51)

13. A gift cannot be resumed where the donee is a relation, nor

where anything has been received in return, nor where it has

received any accession, nor where it has come into the possession

of a second donee, or into that of the heirs of the first.

10. If at the time of conveying a gift the donee was minor, the

acceptance of gift could be made by his or her guardian and

predominantly for the reason of minority of donee alone, the

factum of gift made by his natural guardian does not cease to exist

but remains valid on fulfillment of all ingredients of valid gift. A

minor donee may not have the capacity to understand the legal

consequences as in this case where the donee was only five years

of age when his father put into words the gift but minor was a

person in existence and thus he was a competent donee. According

to all schools of thoughts under the Muslim law, a father has been

recognized and acknowledged as the natural guardian of his child

though, in the case in hand, the donor was father and gift was

accepted by real mother of donee on his behalf. Even if the gift was

not accepted by the mother, it would not have any adverse impact

or effect on the gift made by a father in favour of his minor son. In

case a guardian makes a gifts in favour of his ward, he declares

the gift as donor and accepts the gift on the part of the donee, the

delivery of possession is not compulsory provided that there must

be a bona fide intention on the part of the guardian/real father to

divest and part from his ownership and pass on it to the donee out

of love and affection. According to authoritative and trustworthy

texts on Muslim Law, if the donee is minor son of the donor, then

delivery of possession itself is not de rigueur or compulsory, as it is

foreseeable in case of other donees under a hiba. The possession of

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the guardian amounts to possession of minor and separately no

aliunde evidence is required to prove that the guardian handed

over possession of the property to the minor. In this regard, a lucid

exposition has been divulged by D. F. Mulla in his book “Principles

of Muhammadan Law” in the annotation No.155, that no transfer

of possession is required in the case of a gift by a father to his

minor child or by a guardian to his ward. All that is necessary is to

establish bona fide intention to give. In the case of Mst. Kaneez Bibi

and another vs. Sher Muhammad and 2 others (PLD 1991

Supreme Court 466,) this Court held on the question of the

delivery of possession in cases like the present one: when the

husband is the donor for a wife living with him, when the father is

the donor for a daughter and/or a minor living with him or a

father-in-law for a daughter-in-law and/or her husband living with

him, was not at all noticed. It may be straightaway remarked that

in such cases strict proof by the donee of transfer of physical

possession, as in other type of cases, is not insisted upon. To cite

only one example the Privy Council, three quarters of a century ago

in the case of Ma Mai and another v. Kallandar Ammal (AIR 1927

Privy Council 22) had observed that in the case of gift of immovable

property by such a close relation of the female as are mentioned

above, once mutation of names has been proved the natural

presumption arising from the relationship existing between the

donor and the donee, the donor's subsequent acts with reference to

the property would be deemed to have been done on behalf of the

donee and not on his own behalf. Whereas in the case of Bahadur

Khan vs. Mst. Niamat Khatoon and another (1987 SCMR 1492),

this Court held that under the provision of Section 167(2)(b) of the

Muhammadan Law by D.F. Mulla, when the donor and the donee

are related within the prohibited degree, a gift made cannot be

revoked. While discussing the dictums laid down in the case of

Muhammad Latif v. Muhammad Nawaz (PLD 1960 Lahore 130)

and Daud Khan v. Aurangzeb (PLD 1968 SC 54), it was further

held that the basis on which the learned Judges have differed with

Imam Shafei on the retractability of a gift in favour of a son or a

ward has also considerable merit. As reasoned by them, the

exception in case of a son appears to be based more on the

authority of the father as a natural guardian to deal with the

property of his minor son than on the concept of retractability of a

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gift, for a father is responsible for the maintenance of only his

minor children and not adults. This view is in conformity with Shia

Law that a gift to ones descendants and accepted by them is

irrevocable and finds support from the tradition 'when a gift is

made to a prohibited relation it must not be resumed', the term

prohibited in this context being construed as (دار قرابت) and not the

persons with whom marriage is prohibited.

11. It is a matter of record and an undisputed fact that Makhdoom

Haider Bakhsh (decd.) had two wives, Mst. Iqbal Begum and Mst.

Dolat Begum. From Mst. Iqbal Begum he has one daughter, Zahida

Parveen, and one son, Muhammad Yousaf (the beneficiary of the

gift mutation in the present lis). Whereas from Mst. Dolat Begum

he has two daughters, namely Sajida Parveen and Khalida

Parveen, and five sons, namely Alamdar Hussain, Sajid Hussain,

Shoukat Hussain, Abid Hussain and Sabir Hussain. The present

petitioners are from second wife (Mst. Dolat Begum), but only three

of seven legal heirs from second wife have challenged the order of

learned High Court passed in Second Appeal. The second marriage

was contracted after making the gift on 19.1.1952 and the gift was

revoked by a registered indenture on 25.1.1970, after almost 18

years without any consent of the donee and without any decree of

the Court. The revocation, made on the pretext of non-handing

over of possession, was unlawful, while in the mutation recorded

on 19.1.1952, the donor specifically got recorded his statement

that he has handed over the possession to donee, who at that time

was obviously a minor so, on his behalf, the possession was

accepted by his real mother, therefore, all subsequent proceedings

or steps taken under the garb or guise of revocation of gift were

unlawful as the cancellation deed was non est. in the eye of law

and a void one.

12. The learned counsel for the petitioners relied on the case of

Hakim Muhammad Buta and another.vs. Habib Ahmad and others

(PLD 1985 SC 153) in which this Court held that the words of

Section 3 of the Limitation Act are mandatory in nature in that

every suit instituted after the period of limitation shall, subject to

the provision of Sections 4 to 25 of that Act, be dismissed although

limitation has not been set up as a defence. If from the statement

in the plaint the suit appears to be barred by limitation, the plaint

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shall have to be rejected also under Order VII, rule 11, C. P. C. The

law, therefore, does not leave the matter of limitation to the

pleadings of the parties. It imposes a duty in this regard upon the

Court itself. While in the case of Peer Baksh through LRs and

others. vs Mst. Khanzadi and others (2016 SCMR 1417), this

Court held that the petitioner was under an obligation to establish

the ingredients of the gift claimed by him under the impugned

mutations. However, no particulars whatsoever of the time, date,

place and witnesses of the declaration of the gift made by Ghulam

Muhammad deceased in favour of the petitioner have been

provided in his pleadings nor any evidence could be produced by

him in this behalf. It was further held that limitation does not run

against a void transaction nor efflux of time extinguishes the right

of inherence. Equally a mutation is not a proof of title and a

beneficiary thereunder must prove the original transaction.

Reference is made to the cases of Muhammad Iqbal v. Mukhtar

Ahmad (2008 SCMR 855), Hakim Khan v. Nazeer Ahmad

Lughmani (1992 SCMR 1832). In the case of Muhammad Bakhsh.

vs. Ellahi Bukhsh and others (2003 SCMR 286) this Court, while

referring to the dictum laid down in the case of Ashiq Hussain and

another v. Ashiq Ali (1972 SCMR 50), held that mere recital in the

gift deed that possession has been delivered to the donee would not

be enough.

13. The judicial precedents quoted by the learned counsel for the

petitioners are found to be distinguishable from the instant lis. No

doubt it is an onerous duty of the court to examine the question of

limitation in the context and framework of Section 3 of the

Limitation Act and if the suit is found to be barred, the same may

be dismissed or the plaint may be rejected under Order VII Rule 11

C.P.C., but in the present case, the deceased respondent in the

plaint clearly pleaded that he came to know about the act of

revocation after the death of his father in the year 1992, which

statement was also supported by D.W-5, Sabir Hussain who was

one of the defendants that appeared in the evidence and admitted

during cross-examination that they never informed the plaintiff

with regard to cancellation deed of gift executed in their favour

with further admission that the plaintiff was not present at the

time of execution of impugned documents. After establishing the

case with regard to the accrual of cause of action pleaded in the

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plaint, the suit was not time barred. So far as the challenge to the

gift on the point of handing over no possession, detailed discussion

has been made supra. The factum of gift was never in dispute but

the revocation was defended with the plea that possession was not

handed over to minor, which plea was not based on correct

exposition of Rules defined for the gifts contemplated under the

jurisprudence of Muhammadan Law.

14. According to Mishkat-ul-Masabih, Vol. II by Faziul Karim (An

English Translation with Arabic Text of Selection of Ahadis from

Highly Voluminous Works of Bokhari, Muslim and other

Traditionists of Repute), “18. Ibn Abbas reported that the

Messenger of Allah said: He who takes his gift back is like a dog

which takes back its vomitings. There is no other evil simile for

us.967- Bukhari. While in Al-Shari’a [Sunni & Imamiyah Code],

Vol. II, by S. C. Sircar (deduced from Fatawa-i-Alamgiri; Fatawa-iSirajiyyah; Sharifiyyah; Sirajiyyah; Durr-ul-Mukhtar; Hidaya;

Sharh-ul-Vikayah; Jami’ur Ramuz; Sharaya-ul-Islam; Rouzat-ulAhkam; Mufatih; Irshad and Tahrir-ul-Ahkam) as per annotations

regarding the revocation of gifts, it is stated at page 30: “If a person

make a gift of anything to his relation within prohibited degrees, it

is not lawful for him to resume it, because the Prophet has said,

“When a gift is made to a prohibited relation, it must not be

resumed;” and also because the object of the gift is an increase of

the ties of affinity, which is thereby obtained”. (Hidayah, Vol. iii, p.

302)

15. In the wake of above discussion, no case for interference in the

impugned judgment is made out. Consequently, this Civil Petition

is dismissed and leave is refused.

Judge

Islamabad the

3rd February, 2022

Approved for reporting

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