Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 18.3.2003 passed by the Lahore High Court, Lahore, whereby the Civil Revision preferred on behalf of petitioner assailing the judgment and decree dated 16.1.1995 passed by the learned District Judge, Mandi Baha-ud-Din whereby the appeal of Mst. Azhra Bibi (respondent) has been accepted and judgment/decree passed by learned Civil Judge dated 4.3.1992 whereby the suit of petitioner was decreed, has been dismissed.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that the dispute relates to the property owned by Khair Muhammad Respondent No, 3, who was also defendant in the suit. The land is situated in the area of village Chhani Jawai Shah, Thathi Bawa and Leadher. Nusrat Zohra petitioner-plaintiff and Azra Bibi and Sughran Bibi respondents- defendants are daughters of Khair Muhammad. Khair Muhammad married twice. Mother of petitioner Nusrat Zohra is different from the mother of other two sisters namely Azra. Bibi and Sughran Bibi. The father of the parties namely Khair Muhammad had transferred his entire land in the above stated villages by way of gift to his two daughter respondent/defendants from his second wife. The petitioner was deprived from her share in the land. She feeling aggrieved challenged the Mutation Nos, 109, 807 and 1453 by contending that these mutations of gift in favour of Respondents Nos, 1 & 2 on behalf of the Respondent No, 3 are illegal, void, ineffective and unoperative upon her rights. It was contended by Mst. Nusrat Zohra petitioner in her plaint that in fact the land was given to all the three daughters by Khair Muhammad in equal share by virtue of verbal gift in presence of witnesses, the possession was handed over to the donees and that mutation in favour of the respondents/defendants was result of undue-influence. It is further contested that . the impugned mutations are in violation of shariat and that Khair Muhammad has deprived the petitioner, his daughter without any legal justification and she is entitled to claim share of the property according to the Muslim Law." The said suit was contested by filing written statement by raising various legal and factual objections. The learned trial Court, after completion of necessary formalities, framing of issues and recording of evidence pro and contra decreed the suit of Mst. Nusrat Zohra. Being aggrieved an appeal was preferred by Mst. Azhra Bibi (respondent) which was accepted by the learned District Judge. The petitioner assailed the said order by way of revision petition which has been dismissed, hence this petition.
3. Hafiz Saeed Ahmad Sheikh, learned ASC entered appearance on behalf of petitioner and mainly contended that in the Hadees narrated through Hazrat Luman Bin Bashir on a gift in favour of some heirs depriving the others but the Holy Prophet (PBUH) refused to be witness of such gift, therefore, no Muslim donor could gift his entire property in favour of a few legal heirs by excluding the others.
It is next contended that the above quoted Hadees was never contradicted and therefore, a gift based on `Zulm cannot be declared as valid. It is urged with vehemence that an authoritative judgment would be needed to reconsider the dictum as laid down in case of Noor Muhammad Khan v. Habibullah Khan (PLD 1994 SC 650) whereby such a gift was declared as valid and lawful.
4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of Muhammadan Law, scanned the entire evidence and perused the judgment/decree dated 4.3.1992 passed by learned Civil Judge, Mandi Baha-ud-Din, judgment and decree dated 16.1.1995 passed by learned District Judge, Mandi Baha-ud-Din as well as the judgment impugned. It is worth mentioning that the above mentioned contention was never raised before the learned High court while arguing the revision petition and more so, memo of petition is also silent in this regard. The case of petitioner before the learned High Court was that the petitioner was entitled to 2/9 shares out of the property in question and the validity of gift was never challenged. The learned ASC has portraited altogether a new case by challenging the validity of gift. The learned ASC, as mentioned therein above, has mainly based his case on a Hadees and therefore, we consider it necessary to dilate upon the said contention and decide the matter in order to remove any confusion. After having gone through the entire record we are of the considered view that the factum of gift has been proved beyond shadow of doubt. We need not discuss the entire evidence in detail adduced to substantiate the factum of gift for the simple reason that the donor namely Khair Muhammad had appeared in the Court and stated in a crystal clear manner that no gift was ever made in favour of Mst. Nusrat Zohra (petitioner). It was further elaborated that the land in question was gifted to Mst. Sughran and Mst. Azhra Bibi and more so, pursuant to the said gift, which was accepted by the donees, the possession of land in question was also handed over to them. The controversy qua the factum of gift, if any, was removed by the donor namely Khair Muhammad. The authenticity and genuineness of his statement cannot be questioned because the gift was neither vague nor uncertain.
5. The pivotal question which needs determination is whether a Muslim donor can gift the property in favour of some heirs to the exclusion of others as has been done by Khair Muhammad. It is well entrenched legal proposition that a Muslim donor has vast powers to alienate his property by way of gift during his life time subject to one condition that he should be in proper state of health and the gift is made at his own without any coercion or inducement. In this regard reference can be made to Muhammad Bashir v. Allah Ditta (1994 SCMR 1870).
6. It worth mentioning that "the Durr-ul-Mukhtar, quoting the Fatawai Kazi Khan under its usual designation of Khanies, says "there is no objection to being more fond of one child than another for it is an act of the heart; similarly in the matter of gifts so long as there is no intention of injury to the others; and if there is an intention to detract (i,e, to reduce their shares) then he should make their shares equal, that is, give to a daughter, the same as to a son. This is according to the second [Abu Yusuf and on this the Fatwa. And if a man were to give in health all his property to one child it would be operative, but he would be incurring a sin". The same rule is given in the Fatawai Alamgiri, "if a man in health makes a gift to his children and desires to prefer some to others, there is no tradition with reference to this in the As from our masters. But it is stated from Abu Hanifa that he may give more to the child, who is superior to the others in religion, but when it is not so it is reprehensible.
And it is stated in al-M'ualla from Abu Yusuf, that an unequal distribution may lawfully be made when there is no intention of injuring [any of the children] and as much should be given to a daughter as to a son. And on this is the fatwa, so in the Fatawai Kazim Khan and it is the approved doctrine according to the Zahiria." "A man in health gives the whole of his property to one child, it is lawful judicially, though he is sinful for so doing according to the Fatawai Kazi Khan." (Durr- ulMukhtar, p. 636, Fatawai Almagiri, IV, p. 545).
7. It, thus, becomes clear that no prohibition whatsoever has been laid down under the Islamic Law that a preferential gift cannot be made though a few jurists are of the view that it was not prohibited yet the said act can be considered as "sinful". In this regard reference can be made to the following authorities:-- Noor Muhammad Khan v. Habibullah Khan (PLD 1994 SC 650), Shamshad Ali Shah v. Hassan Shah (PLD 1964 SC 143), Muhammad Mumtaz Ahmad v. Zubaida Jan & Nawab Mirza Muhammad Sadiq Ali Khan J. Nawab Fakr Allan Begum (AIR 1932 PC 13).
8. The said proposition was also examined at length by this Court in case of Noor Muhammad Khan v. Habibullah Khan (PLD 1994 SC 650), relevant portion whereof is reproduced herein below for ready reference:-- "This knotty question has been agitating the minds of Muslim Jurists from the early days of Islam and in this sub-continent it has come up for consideration by the judges of the superior Courts.
Now it is well-settled that a gift of immovable property otherwise validly made in favour of an heir completely excluding other heirs is not void. The Jurists against this view have sought support from Hadith (saying of Holy Prophet) and the views expressed by some Jurists and Scholars. All jurists and judges agree that the Holy Qur'an does not prohibit a gift in favour of an heir excluding other heirs. Analogy is sought against this view by interpreting the verses of the Holy Qu'ran in which general principles regulating the conduct and dealings with the heirs and relations have been stated. Reference was made to Surah Al-Nisa relating to the law of inheritance. The Holy Qur'an has laid down rules for spending money on individual and collective rights. Particular reference has been made to Surah Al Araaf, Ayah 31, Surah Asra, Aya 26, Surah Furqan, Ayah 67 and Surah Baqar, Ayah 219. From a deep and concentrated study of these Ayats, it is clear that the Holy Qur'an enjoins upon the Muslims and the entire world to spend money in a proper, judicious and beneficial manner. It prohibits Asraaf (wasteful) expenses and also enjoins to spend money not only on oneself alone, but on one's relations, neighbours, orphans, slaves, travellers, destitudes and needy persons. The manner for spending the money as laid down cuts the root of wasteful expenditure and expenses made on luxuries, lavishness, pomp and show. The main criterion laid down by the Holy Qur'an is that a man should remain within the limits of justice and fairness. Adl-o-Insaf and Ehsan (justice and equity) are the cornerstone of Islamic jurisprudence and daily life. On the basis of these broad principles laid down by the Holy Qur'an some of the jurists are of the opinion that any gift made with the intention to exclude an heir would not be doing justice amongst the heirs. It will create dissension, heart-burning and rivalry amongst heirs which should be avoided. In Majmooa-e-Qawaneen-e-Islam, Vol. III by Dr. Tanzil-ur-Rehman, the views of the Jurists of all Muslim sects have been stated in an analytical and detailed manner. The view expressed by Hanfi sect as stated in Bady-al-Sanae by Imam Qasani published in Egypt, 1910, Vol. VI, page 127, referred in Majmooa-e-Qawaneen-e-Islam, Vol. III is that maintaining equality amongst the children brings peace and to give preference to one over the other creates disturbance and therefore the principle of equality should be practised. But if any person gifts the property to one heir thereby depriving the other, then irrespective of the fact that the heir deprived is a pious and religious person or illiterate and characterless, such gift will not be void. The reason given is that the donor disposes of the property of which he is the sole owner and no other person has a right in it.
Although such a gift will not do justice amongst the heirs, it will not be void. While referring to Kitabul Mizan al-Kubra by Imam Shirani Shafii, published in Egypt, Vol. II, page 100 it has been stated that the three Imams (Imam Abu Hanifa, Imam Malik and Imam Shafii) have stated that the father must observe equality amongst his sons (heirs). According to these Imams if a father gives preference to one heir, then such preferential gift will not be void. For further details and a useful study on the subject reference can be made to Majmooa-e-Qawaneen-e-Islam, Vol. III, referred to above.
The superior Courts have also noted this controversy in their judgments. The earliest judgment seems to be of Nawab Amjad Ali Khan v. Mst. Muhammadi Begum (11 Moore's I.A. 517) in which the contention that preferential gift excluding other heirs is void was rejected. This question came up for consideration in Ahmad Khan v. Mst. Zamroot Jan (AIR 1950 Pesh. 11) where it was observed as follows:-- "The only restraint upon a Muslim in the matter of alienating his property imposed by the Muslim Law relates to wills and gifts on death-bed. In other cases the power of alienation of a Muslim qua his property is, apart from the conditions laid down by the law for completing a transfer, unfettered.
A misapprehension appears to have arisen in the last century in the Court of Judicial Commissioner of Oudh and nearly a century afterwards in the Peshawar Judicial Commissioner's Court-on account of certain observations of old Muslim jurists that the making of such gift is sinful.
But every transaction which is sinful or impious is not ipso facto a nullity and the Holy Qur'an does not confer the authority upon temporal powers to punish every act which may savour of sin or impiety. Great stress was laid by the learned counsel for the appellant on the verses of the Holy Qur'an in Sura IV, Al-Nisa relating to the law of inheritance. After the shares of the children, parents, wives, brothers and sisters have been laid down in the 11th and 12th verses, the thirteenth verse opens with the words "
This and the following verse, as translated by the late Allama Yusuf Ali, run thus:-- `(13) Those are limits Set by God those who Obey God and His Apostle Will be admitted to Gardens With rivers flowing beneath, To abide therein (for ever)
And that will be The Supreme achievement.
(14) But those who disobey God and His Apostle And transgress His limits Will be admitted To a Fire, to abide therein: And they shall have A humiliating punishment.'
The appellant's learned counsel has strenuously contended that these verses show that God has commanded the observance of the `limits set by God' and their transgression cannot be permitted `especially' as the learned counsel put it, 'in a Muslim country by an Islamic Court.' The argument can shortly be disposed of by pointing out that the 'limits set by God' in these verses relate to intestate succession alone and not to gifts inervivos. It may be impious for a Muslim to deprive some or all of his children of his property by alienating it in his lifetime--and it would be obviously so in all good sense if done without just cause---; but there is nothing anywhere in the Holy Qur'an to forbid such gifts when made by a person not suffering from Maraz-ul-Maut.
Reliance has also been placed upon a Hadees reported in Saheeh Bokhari in the 12th Chapter of the Book on Gifts. One Noman-bin-Bashir, whose father apparently had children from more than one wife, has related that his father gave him something; but his mother objected to the gift unless the Holy Prophet (May God's Peace Be Upon Him) was made a witness to the gift. When the father, Bashir, went to the Holy Prophet and reported the incident, the latter enquired from him whether he had given similarly to his other children. On Bashir's replying in the negative the Prophet exclaimed `Fear God and observe equality (justice) amongst your children'. There is nothing in this report to suggest that' the Holy Prophet ruled the gift in question to be void or that by his conduct or words he meant anything more than to advise, the father that he should deal with all his children with justice. Learned counsel also relied upon certain books in which it has been stated that such gifts are sinful or obnoxious; but there is no decided case, apart from the ruling of the learned Judicial Commissioner of Peshawar, or textbook on Muslim Law in which it has been laid down that a gift which deprives the heirs of the shares to which they would be entitled in the inheritance of the donor is void. In any case, I am bound by the ruling of their Lordships of the Judicial Committee of the Privy Council in Nawab Amjad Ali Khan's. case."
This question was again considered in Safiullah v. Ghulam Jabbar (PLD 1955 Lah. 191) by a Division Bench consisting of B.Z. Kaikaus and Akhlaque Hussain, JJ. Akhlaque Hussain, J. speaking for the Court noted Verses of the Holy Qur'an, Hadith and the aforestated judgments and concluded that a preferential gift is not void. After due consideration of all the authorities referred to above we are of the opinion that under Islamic Law a preferential gift is not void. It may be, as described by some jurists, sinful, but as it is not prohibited, it cannot be declared to be void."
9. As mentioned herein above, a preferential gift made in favour of one or two by the donor in his life time can, by no stretch of imagination, be termed as 'void' and the Hadees as quoted by Hafiz Saeed Ahmad Sheikh learned ASC hardly renders any assistance to the claim of petitioner. The learned ASC was pointedly asked that how during the life time of the ancestor, the validity of gift can be challenged by a legal heir, but no satisfactory answer could be given and rightly so because there is no answer to it as the act of donor cannot be challenged subject to certain exceptions which are lacking in this case. There is no question of any 'Zulm' as pressed time and again because it transpired from evidence that Khair Muhammad (donor) had divorced the mother of Mst. Nusrat Zohra who, after abduction, had contracted second marriage .with Sikandar which prompted Khair Muhammad (donor) to deprive Mst. Nusrat Zohra from his property. One may not be agreed with the reasoning of Khair Muhammad but it cannot be questioned by anybody including the legal heirs. It is enough that Kahir Muhammad himself was satisfied.
10.It is well settled by now that "the powers of a Muslim to dispose of the property by way of gift are unfettered. A gift cannot be invalidated only because the heirs are deprived of their shares. But where the material facts are concealed by the donee, such a gift can be declared invalid on such account. The policy of the Mahomedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving in his life time the whole or any part of his property to one of his sons, provided he complies with certain forms." (Zahida Khanum v. Rifat Ullah Khan 1986 MLD 1462, Muhammad Bashir v. Allah Ditta 1994 SCMR 1870, Hussain Bibi v. Aisha Bibi 1981 CLC 962, Saima Khatoon v. Manzar Hussain 1993 MLD 1542, Sardar Ahmad Khan v. Zamroot Jan PLD 1950 Pesh. 45, Khojooroonissa v. Rowshan Jehan (1986) 2 Cal. 184, 197, 3 IA. 291, 307, Choudhry Mehdi Hassan v. Muhammad Hasan (1905) 28 All. 439, 449, 33 IA 68, 75, Sadik Husain v. Hashim Ali (1916) 43 IA 212, 221, 38 AIL 627, 645646, 36 IC 104, Lala v. Rasula (`57) A. J & K 3).
11.In the light of what has been discussed above, it can safely be inferred that a donor is entitled to gift whole of his property to one of his legal heirs and no bar whatsoever has been imposed under Islamic law.
In sequel to above mentioned discussion, the judgment impugned being well based does not call for inference. The petition being devoid of merits and barred by time is dismissed and leave refused.