Law:

Section:

Limitation Act (IX of 1908), Arts. 91 & 120-Suit for declaration that gift deed purported to have been executed and registered was fictitious and without consideration-Possession of property nave, delivered to donee-Gift, in circumstances, void ab initio and limitation governed by Art. 120 and not Art. 91. Shamshad Ali Shah and others v. Syed Hassan Shah and other: PLD 1964SC143rel. ORDER ANWARUL HAQ, J.-The petitioner, Mst. Makhmuran, and the respondent No. 1, Mst. Arzumana, are sisters. On the 18th of July 1960, the respondent, Mst. Arzumana, instituted a suit in the Court of the learned Senior Civil Judge at Mardan for a declaration to the effect that she was the owner of a house situated in village Takkar and land measuring 34 kanals and 17 marlas in village Fazal Abad of the Mardan district, and that a gilt deed purported to have been executed by her and registered on 17-2-55, gifting away the whole of her property to her sister Mst. Makhmuran was fictitious, without consideration and a result of fraud and undue influence. In the alternative she claimed possession of the land. The suit was dismissed by the trial Court on 1-5-62 on the ground of limitation as well as on the ending that the gift was valid. Thereupon the respondent No. 1 filed an appeal which was, however, dismissed by the learned Additional District Judge at Mardan on 6-11-63, holding that although the gift was invalid, having been made under undue influence, yet the suit was barred by time as it had not been brought within three years of the registration of the gift deed as required by Article 91 of the Schedule to the Limitation Act. Aggrieved by the judgment of the lower appellate Court, the respondent filed a second appeal which was accepted by a Division Bench of the Peshawar High Court by its order dated the 11th of June 1971. The High Court held that the gift deed was void and not merely invalid, as possession of the property had not been delivered to the donee under the gift, and that the execution of the gift deed by the donor was not proved. It further observed that, in these circumstances, the limitation was governed by Article 120 and not by Article 91 and, therefore, the…

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