' MIAN SAQIB NISAR, J.---Through this single judgment, the noted RFA No,300 of 1998 and RFA. No,301 of 1998 are being decided together, as both these arise out of the two suits filed by the parties against each other, which have been decided by the trial court through the same judgment.
2. Brief facts of the cases are:-- ' that in the first suit, Muhammad Nadeem, respondent No,3 in the noted appeal, was the plaintiff and the appellants, as also the other respondents, were the defendants. It is the plaintiff's case, that his father Muhammad Rafi through attorney had gifted the property, bearing Khasra No,273 measuring 2-Kanals and 9-Marlas along with the superstructure existing thereupon, to him; for this purpose, Muhammad Rafi, vide registered power of attorney dated 10-12-1990 had appointed his wife Mst. Razia Begum, the mother of the plaintiff, as the attorney, who while acting as such, had executed the instrument of the gift in favour of the plaintiff. The suit was contested by the appellants, who are the second widow of Muhammad Rafi namely Mst. Rashida Begum and the sons and daughters of Muhammad Rafi from this wife; they denied the gift on the ground that the power of attorney dated 10-12-1990 allegedly executed by Muhammad Rafi in favour of Mst. Razia Begum is a forged and fabricated document; no valid gift on that basis could be made in favour of the plaintiff, that too through an unregistered document and particularly when the possession of the gifted property was not delivered to the plaintiff.
3. On account of the pleadings of the parties, the learned trial court was pleased to frame the following issues:--
(1) Whether the suit cannot proceed in view, of preliminary objection No,1 of defendants Nos. 3 and 10 to 12? OPD
(2) Whether Muhammad Rafi predecessor has executed power of attorney through mutation No,454 dated 10-12-1990? OPD.
(3) Whether Muhammad Rafi has gifted the land in dispute to plaintiff vide document dated 25- 09-1992 through power of attorney? OPP
(4) Whether plaintiff is entitled to get a decree as prayed for? OPP.
(5) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?
OPD.
(6) Whether the plaintiff has no cause of action? OPD.
(7) Whether the suit is false, frivolous and the defendants Nos.3 and 10 to 12 are entitled to special costs under section 35-A of CPC? OPD.
(8) Relief.
4. The facts of the other suit, filed by the appellants of the noted appeal are, that Muhammad Rafi died on 18-10-1992, admittedly leaving behind Mst. Razia Begum as his widow and appellants Nos .1 to 4 & respondents Nos.1 to 8 as his sons and daughters. Appellant No,5 Mst. Rashida Begum was also married to Muhammad Rafi and claims herself to be the widow of Muhammad Rafi, but this status of her is being denied by the respondents, who took up the stance that she was divorced by Muhammad Rafi in his lifetime. Anyhow, in the above context, the appellants/plaintiffs brought a suit for partition and rendition of accounts against the respondents, seeking the settlement of the estate left by the deceased, and is described as below:--
(i) Hotel situated at G.T. Road, Wazirabad constructed on Khasra No,273 measuring 2 Kanals and 9 Marlas and the constructions including stalls, offices and go down (described in the plaint);
(ii) Shop comprising of Khasra No,392, opposite Tehsil Office;
(iii) Open Plot bearing Khasra No,397, Wazirabad, opposite Tehsil Office;
(iv) A bungalow situated at Sialkot Road, Wazirabad, measuring 26 Marlas, constructed on Khasra No,401;
(v) Land measuring 1-Kanals and 9-Marlas situated in Revenue Estate of Nizamabad within the municipal limits of Municipal Committee, Wazirabad, consisting of Khasra No,26/7-Marlas, 28/5- Marlas, 35/5-Marlas and 42/11-Marlas;
(vi) Land measuring 6 Kanals and 2 Marlas, Wazirabad, comprising of Khasra No,1111/1-Kanal 9- Marlas, 1111/0.5-Marla, 1114/1-Marla, 412/02-Marlas, 413/6-Marlas and 9054/1122 (4-Kanals).
5. The respondents contested the suit; they, as earlier mentioned, denied, if Mst. Rashida Begum- appellant No,5 was the widow of the deceased. They also claimed that Muhammad Rafi in his lifetime had gifted the Bungalow mentioned at serial No,(iv) above in favour of Mst. Razia Begum, his widow; besides, that Muhammad Rafi had appointed Mst. Razia Begum as his general attorney through registered power of attorney dated 10-12-1990, who on the basis of the said instrument, had gifted the property mentioned at serial No,(i) above, in favour of respondent No,3; the possession of the gifted property was also handed over to the done, who was in occupation thereof as the owner and thus, property never formed part of the estate left by the deceased. The appellants had denied the gift and the delivery of the possession etc. And therefore, the learned Civil Judge was pleased to frame the following issues:--
(1) Whether Muhammad Rafi deceased had divorced Mst. Rasheeda Begum and she is not his widow? OPD.
(2) Whether the suit is not maintainable in view of preliminary objection No,3 of the written statement? OPD.
(3) Whether the dispute regarding the disputed property is sub judice before Mr. Tariq Masud, Civil Judge, Wazirabad & learned Additional District Judge, Wazirabad. OPD.
(4) Whether the plaintiffs are entitled for the decree of possession through partition against the defendants? OPP
(5) Relief.
6. The learned trial Court did not proceed to consolidate the suits, however, those were simultaneously tried and through a single judgment dated 20-07-1998, the suit of Muhammad Nadeem has been decreed declaring him to be a valid donee of the suit property mentioned at serial No,(i) i,e, for which he had sought the declaration, whereas the suit of the appellants was partly decreed for the other properties excluding the one mentioned above and also at serial No, iv, holding that this property had been gifted to Mst. Razia Begum by Muhammad Rafi during his lifetime. It was also declared that Muhammad Rafi had divorced Mst. Rasheeda Begum and thus, she was not one of his legal heirs, entitled to inherit his estate. Hence these appeals.
7. Through the instant appeal, the decree of the trial court granting declaration of the gift of the property to Muhammad Nadeem has been assailed, whereas in the other, the gift in favour of Mst.
Razia Begum of the property at serial No,(iv) and the findings of the court below about Mst.
Rasheeda Begurn being not the legal heir of Muhammad Rafi, have been challenged.
8. We first take up the noted appeal (RFA.No,300 of 1998). Learned counsel for the appellants has passingly argued that the power of attorney dated 10-12-1990 (Ex.P.l) is a forged document, which was never executed by the deceased in favour of Mst. Razia Begum and, therefore, she could not make a valid gift of the suit property in favour of Muhammad Nadeem through an unregistered document of gift (Ex. P.2 dated 25-09-1992); the possession of the property was not delivered to the donee under the gift; the findings of the court below on the relevant issues are the result of misreading and non-reading of the evidence. But, no serious submissions, attacking the judgment and decree on this account, have been made. However, by relying upon the judgments reported as Mst. Shumal Begum vs. Mst. Gulzar Begum and 3 others (1994 SCM R 818 at page 821) and Mst.
Bandi vs. Province of Punjab and others (2005 SCM R 1368), it has been emphasized and strenuously argued that the gift of a property by a donor is a personal act, which authority cannot be delegated and thus, no valid power of attorney can be given to an agent to gift the property to whosoever the agent likes; rather for a valid gift it should be either made by the owner of the property in favour of the donee and only for the purposes of execution of the relevant documents and/or the implementation of the gift, the agent can be appointed or the agent can be authorized to make the gift of the property only in the name of a specified person; if that is not so, the gift shall be invalid.
9. Learned counsel for the respondents, however, has argued that under the Muslim Law, a gift can be made by a Muhammadan through an agent and there is no prohibition or impediment in this regard, having any reflection upon the validity of such a gift; and for a valid gift, necessary requirements are, a declaration by the donor, acceptance by the donee and transfer of possession; the declaration and the delivery of possession could always be accomplished through an attorney. In the context of Islamic Law, he has made reference to number of books on the subject such as:-
(i) Ameer Ali (Vol.1-1976) p.110;
(ii) Mulla (1990) pp. 150 & 157 para.Nos. 138 & 149;
(iii) Outlines of Islamic Jurisprudence by Nayazee, p.206;
(iv) Muhammadan Jurisprudence by Abdul Rahim (1958), p.321 (Agency) (No conditions attach for delegating the authority to make a gift).
(v) Ameer Ali (Vol-2) p.455;
(vi) Mulla Para.314, p.332
(vii) General Law of Agency (Contract Act).
' It is also submitted that both the judgments of the Honourable Supreme Court reported as Mst.
Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCM R 818 and Mst. Bandi v. Province of Punjab and others 2005 SCM R 1368, do not lay down a rule of law, rather provide some guidance to be observed as a "caution" in the matters of gift in order to avoid fraudulent transfers; these judgments are thus, distinguishable on their own facts, and in no way prohibits or declare that the gift through the agency cannot be made and if so made, shall be invalid.
10. We have heard the learned counsel for the parties. As far as the question about the delegation of power by a Muhammadan to an agent is concerned, there can be no cavil that a Muhammadan, in the matters of gifts, divorce etc. Can confer the authority to an agent, but in our view where it is the personal act of the principal, which is dependent upon his own mental decision, such an authority cannot be delegated. In the category of such personal acts, obviously the decision to whom the gift should be made, cannot be left for the choice and whim of the agent, rather this is the sole prerogative of the donor, which cannot be delegated or deputized, however, when the decision is taken, a declaration is made by the donor, only thereafter an agent for the accomplishment of the object can be appointed. A Muhammadan cannot confer upon his agent a random or roving authority to make the gift of his property to any person of the attorney's choice and according to the agent's wish and the considerations. This is because a gift is a voluntarily transfer of the property to another made gratuitously and without consideration; it is a transaction not in the nature of quid pro quo, but is free of the above, therefore, why and to whom the gift should be made is based upon the very personal and self-considerations of the donor, structured upon his personal state of mind and the decision and therefore, under no rules of general law of agency, such personal decision can be delegated to an agent. We are quite clear in our view, that the donor has to make the gift himself, where after he can confer the authority upon his agent to take necessary steps for the proper implementation/execution of the transaction.
11. The argument that the judgments of the Honourable Supreme Court do not lay down a rule of law, but only provide guidance as a matter of caution, suffice it to say that the ratio of the judgments is otherwise, and under the law we are bound to follow the dictum of the Honourable Supreme Court, which has also been followed by this Court in Muhammad Aslam and another vs. Muhammad Azeem etc. (PLJ 2001 Lahore 443).
Therefore, R.F.A. No,300 of 1998 is allowed; the impugned judgment and decree declaring respondent No,3 to be the exclusive owner of the property mentioned at serial No,(i), on the basis of the document dated 25-9-1992, is declared illegal and unlawful and is set aside, which property shall form part of the estate left by the deceased Muhammad Rafi to be distributed amongst his legal heirs.
12. As regards the other appeal (RFA.No,301 of 1998), we are not convinced that the respondents have been able to prove issue No,1, involved in this case i,e, "Whether Muhammad Rafi deceased had divorced Mst. Rasheda Begum and she is not his widow." The onus of this issue was upon the respondents and they have led no evidence, except the bald statement of DW-1 Muhammad Nadeem, one of the defendants of the case. As against this, PW-1 Muhammad Zaheer, the real brother of Muhammad Rafi deceased, has been examined by the appellants, who has stated that Muhammad Rafi had never divorced Mst. Rasheeda Begum. It is an admitted fact that Mst.
Rasheeda Begum was married to Muhammad Rafi, thus, when was she divorced, was to be primarily proved by the respondents, but they have failed, therefore, the presumption, that the marriage remained intact till the death of the deceased Muhammad Rafi, can validly be raised. To this extent, the findings of the trial court on the issue cannot sustain, which are hereby set aside and Mst. Rasheeda Bibi is also declared to be one of the co-heirs of the deceased Muhammad Rafi, entitled to inherit his estate.
13. For the arguments that Muhammad Rafi had never gifted the property, mentioned at serial No, (iv), in favour of Mst. Razia Bibi, we do not find any illegality in the judgment and decree of the court below, because the said gift was made as far back as in the year 1974; Muhammad Rafi was alive till 1992 and he had never challenged the gift in his lifetime. Besides, no evidence has been produced on the record to show that the gift of the suit property in favour of Mst. Razia Begum was invalid for any reason whatsoever. Therefore, to this extent this appeal (RFA. No,301 of 1998) is dismissed.
In the light of above, RFA. No,300 of 1998 is allowed and the judgment and decree of trial court in this case is set aside, whereas RFA No,301 of 1998 is partly accepted, declaring that Mst. Rasheeda Begum is the widow of the deceased Muhammad Rafi and thus, entitled to inherit his property. The remaining part of the judgment and decree of the court below is upheld.