MUHAMMAD YAKUB KHAN Vs. MUSAMMAT NAZIRAN

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiffs sued to obtain possession of, and a declaration of their title to, certain property which had belonged to Musammat Sughra. The plaintiffs alleged that they were the heirs of Musammat Sughra and that the deed of gift which the Musammat had executed in favour of the defendant Yakub Khan, the brother of the donor, was invalid. The Court of first instance found against the plaintiffs and dismissed the suit. The lower Appellate Court reversed the first Court and gave the plaintiffs a decree. The deed of gift is produced. It is a registered deed and in the most express terms declared that the donor had made over the property by way of gift to her brother and had withdrawn her possession. The property was zemindari property and the defendant Yakub Khan was and is in possession of it in so far as the nature of the property is capable of being possessed" by any one. We think that under the Muharamadan Law as soon the deed of gift was executed and registered the gift was complete, the donee being already in possession. We do not think that it was necessary (although it would have been wise) that the donee should have had mutation of names. The lower Appellate Court states that the deed of gift remained a "dead letter", that it was never handed over to the donee. It is somewhat difficult: to say that the document remained a "dead letter" when we find that after its execution it was duly registered. If it were shown that after execution the donor had intentionally abstained from ever allowing the document to come out of her possession, possibly the Court might have had to arrive at some conclusion as to why the document was retained. We find, however, in the present case that it was never alleged by the defendant that the donor had retained the deed of gift after its execution. On the contrary, the fourth paragraph of the plaint shows that the document was in the possession of the donee, though it is alleged that he gave it buck for the reascns we have stated above we think the gift was complete and that the decree of the Court of first instance should be restored. We allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs in all Courts.