' JAWWAD S. KHAWAJA, J.---Tahir Umar petitioner-plaintiff impugns the appellate judgment and decree, dated 29-10-2001 whereby the decree of the learned trial Court, dated 25-11-2000 was set aside and, as a result, the suit filed by the petitioner seeking mandatory injunction was dismissed.
2. The dispute in this case relates to Property No,190-C Model Town, Lahore, measuring 2 kanals. The suit property was originally owned by Mst. Tahira Umar mother of the petitioner. She made an oral gift of the property to the petitioner in January, 2000. This oral gift was confirmed through a memorandum of gift (Exh.P-1), dated 3-5-2000. Since the property was situated in Model Town, the petitioner approached the Cooperative Model Town Society (1962) Ltd., (Respondent No,1) for giving effect to the gift made by his mother and for transferring her interest in the property and in the Society to his name. The respondent Society, however, refused this request.
3. It is in the above background that the petitioner filed a suitagainst the respondent-Society seeking a mandatory injunction to compel it to recognize the transfer in his favour and to give effect to the same in its records. He also impleaded his mother Mst. Tahira Umar as a pro forma defendant in the suit. Although the Society filed a written statement contesting the suit, it thereafter was proceeded against ex parte. Mst. Tahira Umar did not contest the suit. On the contrary she appeared in Court as P.W.3 and deposed categorically that she had orally gifted the suit property to the petitioner and had also delivered possession thereof to him. The petitioner himself appeared as P.W.1 while Latif Ahmad Qureshi, Advocate, who was one of the witnesses to, the memorandum of gift (Exh.P-1) appeared as P.W.2. The testimony of the P.Ws. Clearly and unambiguously established the factum of the gift made in favour of the petitioner by his mother. Considering the saidevidence, which was in any event unrebutted, the learned trial Court decreed the petitioner's suit and directed the respondent-Society by way of a mandatory injunction to give effect to the transfer of ownership in its record.
4. The respondent-Society preferred an appeal against the decree of the learned trial Court. This appeal has been allowed by the learned trial Court vide judgment and decree, dated 29-10-2001 impugned in this petition. I have considered the reasons which have prevailed with the learned Appellate Court and find the same to be legally untenable. It was, firstly, observed by the Court that the petitioner-plaintiff did not have valid title to the suit property. There is no basis for this conclusion because title stood vested in the petitioner through an oral gift made in January, 2000.
The gift, it may be noted, was acknowledged and confirmed by Mst. Tahira Umar when she testified in Court as P.W.3. According to the learned appellate Court, the petitioner should have filed a suit seeking declaration of title and paid Rs,15,000 as court-fee. This finding is wholly misconceived because the previous owner of the property, namely, Mst. Tahira Umar as donor and the petitioner as donee were not in contention as to the passing of title and the validity of gift in question.
5. The learned Appellate Court first observed that a simple memorandum did not create any right, title or interest in favour of the petitioner. It is true that the memorandum (Exh.P-1) does not convey title. The document, however, was not meant to be a conveyance. It has been clearly recorded in the memorandum that the oral gift was made four months prior to the date of the memorandum (Exh.P-1). The purpose of Exh.P-1 was merely to record the gift earlier made whereby the suit property stood conveyed to the petitioner. It is by now well- settled that under Islamic Law a gift can validly be made orally. If any authority for this legal proposition is required, reference can be made to the case titled Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others (1977 SCM R 154).
Only the donor Mst. Tahira Umar could have disputed the gift and not the respondent Society.
6. Faced with this situation, learned counsel for the respondent Society referred to the grounds of appeal filed by it before the lower appellate Court wherein objections were taken to the memorandum (Exh.P-1) on the grounds that the same was not duly stamped in accordance with the provisions of Article 33 of the Schedule to the Stamp Act and that the same was not registered.
Considering that the memorandum, as noted above, does not constitute a conveyance in praesenti, the objection as to registration of the same was given up by learned counsel for the Society. He, however, stated that the document should not have been admitted in evidence because of the deficiency instamp duty. For two reasons this submission must be repelled. Firstly, the respondent Society absented itself before the learned trial Court and did not raise any objection when the memorandum (Exh.P-1) was admitted in evidence. Once the said' document was admitted in evidence, it was proper for the learned trial Court to rely on the same. More importantly, however, it may be noted that even if the memorandum (Exh.P-1) is excluded from evidence, the oral gift stood fully proved through the testimony of the donor herself. Here it is reiterated that the validity of the oral gift was not dependent upon proof of the memorandum (Exh.P-1). The conveyance by way of gift stood completed when the three essential elements.Of a valid gift under Islamic Law, were met four months prior to the making of the memorandum (Exh.P- l). There can be no dispute' as to the requisite essentials of the gift in question as the same stood proved by the testimony of the donor and the donee. As such, nothing in this case turns on the memorandum (Exh.P-1).
7. At this juncture, I need to touch upon another aspect of this case. The donor Mst. Tahira Umar died during the pendency of this revision petition. As a result, her daughter Mst. Farida Umar and another son, namely, Tariq Umar were brought on record as her L.Rs along with the petitioner Tahir Umar. Tariq Umar has chosen not to appear and has been proceeded against ex parte. Mst. Farida Umar, however, has retained two learned counsel to represent her. They assailed the validity of the gift. It was argued that the memorandum (Exh.P-1) was required to be compulsorily registered. To support this contention, learned counsel for Mst. Farida Umar referred to the cases titled Faheem alias Faheema and 2 others v. The state (1990 ALD 457(1) and Shabnam Ashraf v. Muhammad M.
Iqbal (2003 YLR 495). These precedents only require that a document, which operates, inter alia, to create or transfer rights in immovable property, is compulsorily registrable under section 17 of the Registration Act. For the reasons already discussed above, these precedents do not apply in the present case, because the memorandum (Exh.P-1) does not purport or operate to create or transfer any rights in immovable property. It is merely a memorandum of an earlier oral transaction whereby the gift was completed. Secondly, it is necessary to bear in mind that Mst.
Farida Umar is merely on record as the legal representative of her mother Mst. Tahira Umar. She cannot adopt any stance which is at variance with the position taken by Mst. Tahira Umar herself.
8. Before parting with this judgment, I consider it appropriate to refer to an admitted document referred to by learned counsel for both sides, which purports to be an affidavit. The document, a copy of which was submitted in Court, has been signed by Mst. Tahira Umar as deponent and under her signatures, her three children Farida Umar,Tariq Umar and Tahir Umar have put their respective signatures. Learned counsel for Mst. Farida Umar conceded that the document had been signed by her. Indeed, in a suit filed by Farida Umar seeking partition of properties and rendition of accounts, she has acknowledged that Mst. Tahira Umar and her three children had signed the same. In the document, Mst. Tahira Umar has confirmed that she has been able to distribute all her properties amongst her three children. The details of the distribution have also been given in the document, whereby all three children of Mst. Tahira Umar are shown as recipients of gifs made to them by her. The property, which is subject of the present lis, is clearly shown as having been gifted to the petitioner Tahir Umar. This document further confirms the inter vivos transfer of the suit property by Mst. Tahira Umar to the present petitioner.
9. In view of the foregoing discussion, this petition is allowed and the impugned appellate decree, dated 29-10-2001 is set aside. As a consequence, the decree of the learned trial Court, dated 25-11- 2000 is affirmed.