Mian Hamid Farooq, J.--Instant direct appeal, under Article 185 (2)(d) of the Constitution of Islamic Republic of Pakistan, proceeds against the judgment dated 13.03.2007, whereby the learned Peshawar High Court, Abbottabad Bench partially allowed the appeal (RFA No, 48 of 2005) filed by Tahzim Akhtar and others.
2. The facts of the case comprehensively capitulated in the impugned judgment are reproduced below:-- "2. The controversy relates to a house measuring 7 marlas and a piece of land adjacent thereto which also measures 7 marlas. This property being 14 marlas was owned by Abdur Razaq Defendant No,
1. The plaintiffs/appellants and the proforma Defendant/Respondent No, 3 are the legal heirs of the said Abdur Razaq. The plaintiffs instituted a suit on 5.9.2002 for the declaration that they were the owners in possession of the said house on the basis of a gift deed dated 2.9.1998 and that the registered Deed No, 596 whereby the said Abdur Razaq (Defendant No, 1) allegedly transferred the suit property to the Defendant No, 2 Mst. Nageena Bibi was wrong, fictitious, fraudulent, illegal and ineffective on the rights of plaintiffs. There was also a prayer for the cancellation of the said registered deed. In the alternative a prayer for possession of the house by the cancellation of the said deed dated 3.8.2002 was made, if during the pendency of the case the defendants dispossess the plaintiffs of the said house. This suit was contested by a written statement of the Defendant No, 2 dated 11.11.2002 and subsequently the said Defendant No, 2 (now Respondent No, 1) instituted a suit for restoration of the possession under Section 9 of the Specific Relief Act on 21.2.2003 and consequential thereto the suit for possession on the basis of the said registered documents and in the alternative the suit for recovery of the said transaction with damages was moved. In the body of the said plaint it was alleged that the Defendant No, 1 Abdur Razaq had sold the suit property by a registered deed attested on 6.8.2002 on receipt of the sale consideration of Rs,5,00,000/- and he inducted the plaintiff Mst. Nageena Bibi into possession of the house but the defendant allegedly took forceful possession by breaking the lock on 3.9.2002 and, therefore, a criminal case vide F.I.R. No, 144 dated 3.9.2002 has been registered against them.
Hence it was prayed that the possession be restored. If the dispossession was not made a decree for possession be granted and in the alternative the relief as stated hereinabove be granted. Both the suits were consolidated by the learned trial Court and consolidated issues were framed. After recording the evidence the learned Civil Judge passed the impugned decree on 16.4.2005."
The learned trial Court dismissed the suit (Suit No, 96/1 of 2002) filed by Mst. Tahzim Akhtar & others and decreed appellant's suit (Suit No, 17/1 of 2003) only to the extent of reliefs Alaf {{URDU TEXT}} and Bai {{URDU TEXT}} while rest of the claims of the appellant/plaintiff were rejected, vide consolidated judgment and decrees dated 16.04.2005. Mst. Tahzim Akhtar & others filed the appeal (RFA No, 48 of 2005) and the learned single Judge in Chambers decided it in the following manner:-- "12. Hence this appeal is partly allowed. The impugned judgment and decree of the learned trial Court is set aside and instead of decree for possession, the decree of the alternative prayer of recovery of sale consideration and cost of sale to the extent of Rs,5,32,500/- is granted in favour of Mst. Nageena Bibi respondent/plaintiff of Suit No, 17/1 of 2003 against Abdul Razaq Defendant- Respondent No,
2. No order as to costs.
Hence the present appeal.
3. Learned counsel for the appellant, while referring to Article 79 of the Qanun-e-Shahadat Order, 1984, stated that Respondents No, 1 to 6, in order to prove the gift deed, were required to produce two witnesses, but they only produced one of the marginal witnesses (Muhammad Manzoor) and failed to adduce in evidence the other marginal witness (Sadiq Shah) and the scribe. He, in view of Section 123 of the Transfer of Property Act, 1882, submitted that the gift deed was compulsorily registerable under Section 17 of the Registration Act, 1908 and as it was not registered, therefore, it did not confer any right and title upon the donees. He referred to "Allah Diwaya v. Ghulam Fatima (PLD 2008 Supreme Court 73). His next contention was that Mst. Tahzim Akhtar & others in their suit did not challenge the sale-deed dated 06.08.2002 in appellant's favour, which will go to show that the respondents acknowledged the correctness of the sale-deed. He added that the appellant, as an alternative relief, claimed the consideration price of the sale-deed, expenses and a sum of Rs,5,00,000/- as damages, but the learned High Court only awarded sale consideration and costs of sale to the extent of Rs,5,32,500/-, and the amount of damages was not granted to the appellant, for which she is entitled. Conversely, learned counsel representing Respondents No, 1 to 6, submitted that Section 79 of the Qanun-e-Shahadat Order, 1984 is not applicable in this case, as declaration of gift does not require to be attested by two witnesses and the respondents/plaintiffs proved execution of declaration of gift by producing one of the witnesses, which was supported by the statement of the plaintiff, and the other witness namely Sadiq Shah had already died. She, while relying upon 'Maulvi Abdullah v. Abdul Aziz (1987 SCMR 1403)", contended that gift under the Islamic Law is recognized and the plaintiffs proved that Abdul Razaq validly gifted the property to Respondents No, 1 to 6. As regards the alternative claim of the appellant, her stance is that the claim of damages was neither pleaded, in detail, in the plaint by the appellant, nor substantiated by evidence, therefore, it was rightly declined by the learned High Court.
4. We have heard the learned counsel and examined the available record. Section 79 of the Qanun-e-Shahadat Order, 1984 prescribes that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses have been called for the purpose of proving its execution, if there be two attesting witnesses alive. A bare examination of the contents and title of the said document (Exh:PW.3/1), amply manifests that the said document is not a gift deed but a declaration of gift evidencing the factum of gift. A declaration of gift cannot be equated with a gift deed, which has different dimensions and parameters as compared to the former. It is true that gift deed is a document, which is compulsorily required by law to be attested by two witnesses, but it is equally true that in the instant case the declaration of gift cannot be termed as gift deed. According to the showings of Respondents No, 1 to 6, Respondent No, 7 gifted the property to his wife, sons and daughters under the Muhammaden Law and the said declaration of gift only established that in fact the gift was made. There is no cavil to the proposition that under the Muhammaden Law a gift by a Muslim would be complete, if a person proved the three necessary and inseparable ingredients i,e, (i) declaration/offer by the donor; (ii) acceptance of gift by the donee; and (iii) delivery of possession under the gift. It has been held by this Court in the case of Maulvi Abdullah (ibid), relied upon by the learned counsel for the respondents, that a gift by a Muslim would be complete, even if there is no writing and three ingredients i,e, (i) declaration of gift by the donor; (ii) acceptance of gift expressly or impliedly by or on behalf of the donee; and
(iii) delivery of possession of the subject-matter by the donor to the donee are proved. Declaration of gift (Ex.PW.3/1) shows that Respondent No, 7 out of love and affection offered his wife and children to gift the property to them, which offer was accepted by Respondents No, 1 to 6, inasmuch as, the possession was transferred under the gift. Not only this but all the donees also in token of acceptance of the offer of gift- and taking over the possession of the questioned property affixed their signatures on the declaration of gift. Besides, the said document was witnessed by Sadiq Shah and Muhammad Manzoor. Thus, all the ingredients necessary for completion of a valid gift under the Muhammaden Law were fulfilled and it cannot be argued that no valid gift was made. In view whereof, the gift under the Muhammaden Law was complete in favour of Respondents No, 1 to
6. Assuming, as per the contention of the learned counsel, that declaration of gift (Ex.PW.3/1) was necessarily required to be attested by two witnesses, we have noticed that the said document is witnessed by two witnesses namely Sadiq Shah and Muhammad Manzoor, out of whom Muhammad Manzoor appeared as PW.4 and supported the claim of Respondents No, 1 to 6. The other witness Sadiq Shah could not be produced in evidence, as he was dead at the time of recording of the evidence. It has been proved on record, through the statements of Respondent No, 1 (PW.3) and Muhammad Manzoor (PW.4) that Sadiq Shah had already died, which fact was not disputed by the appellant, who failed to bring on record any evidence to rebut the statements of PW.3 & PW.4 on this material point. PW.4, who is one of the witnesses of the document, has fully supported the claim of Respondents No, 1 to 6. According to Section 79 of the Qanun-e-Shahadat Order, 1984, a litigant in order to prove a document is required to produce two attesting witnesses, if they are alive. It flows therefrom that if two attesting witnesses are not alive, then execution of a document could be proved by producing other admissible evidence. Even if it be taken that Section 79 of the Qanun-e-Shahadat Order, 1984 is applicable in the case in view of demise of Sadiq Shah, one of the witnesses of the document, it was not possible for the respondents to produce the second witness. Respondents No, 1 to 6 by producing one of the witnesses of the document coupled with the statement of Respondent No, 1, under the circumstances of the case in hand, have proved the execution of declaration of gift.
5. Now adverting to the next contention of the learned counsel. Although, Section 123 of the Transfer of Property Act, 1882, referred to by learned counsel for the appellant, does provide that for the purposes of making a gift of an immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses, yet Section 129 of the Act provides that this Chapter relating to gifts (Sections 122 to 128) shall not affect any rule of Muhammaden Law, which provision of law is a complete answer to the contention raised by learned counsel for the appellant. This Court in Maulvi Abdullah's case (ibid), while dealing with Sections 123 and 129 of the Transfer of Property Act, 1882 has held that a gift by a Muslim can be completed even without any writing and such gifts are expressly excluded from the operation of the Transfer of Property Act. It appears appropriate to reproduce the relevant portion of the judgment which reads as under:-- "An objection based on Section 123 of the Transfer of Property Act to the effect that a gift of an immovable property cannot be made except through a registered instrument was raised but it was repelled with reference to Section 129 of the Act which provided that nothing in the chapter in which Section 123 fell would affect any rule of Muslim Law. It was held that according to Muslim Law an oral gift of an immovable property could be made provided other conditions for a Muslim gift were satisfied."
In view of Section 129 of the Transfer of Property Act, 1882, as interpreted by this Court in the case of Maulvi Abdullah (ibid), the contention of the learned counsel is devoid of any consideration.
6. As regards the case of Allah Diwaya (ibid) relied upon by the learned counsel for the appellant, to contend that gift deed was compulsorily registerable under Section 17 of the Registration Act, 1908, suffice it to say that in that case this Court has held that, The dictum as laid down in Maulvi Abdullah's case (supra) cannot be made applicable in this case because the facts in both the cases are quite distinguishable'. We have observed that in the case of Allah Diwaya (ibid) the gift could not be proved, while in the case in hand Respondents No, 1 to 6 proved the gift and execution of declaration of gift. In view whereof, the case of Allah Diwaya (ibid) is of no help to the appellant.
7. Now coming to the next contention of the learned counsel. It has been alleged that Respondents No, 1 to 6, the donees, in their suit did not challenge the sale-deed dated 06.08.2002 in appellant's favour. We have examined the contents of the plaint and find that Respondents No, 1 to 6/plaintiffs specifically sought declaration qua sale-deed dated 03.08.2002, labeling it as illegal, forged, fictitious and mala-fide. The said contention appears to have been raised without perusing the contents of the plaint.
8. As regards the claim of damages, although the appellant, as an alternative relief, claimed damages amounting to Rs,5,00,000/-, yet no details regarding the amount of damages were given in the plaint. We have examined the evidence on record and found that the appellant could not prove that she has sustained any sort of damages. No evidence was led by the appellant to prove the quantum of damages and thus her claim for damages was rightly rejected by both the Courts.
It may be noted that the learned trial Court also disallowed appellant's claim of damages and the appellant did not file any appeal or cross-objection against the judgment dated 16.04.2005 or challenged the findings on the issues, which were decided against her. We noticed that no issue on the question of damages was framed by the learned trial Court.
9. In the above perspective, we have examined the impugned judgment and find that the same does not suffer from any legal infirmity. The learned single Judge in Chambers rightly reversed the findings of the learned trial Court and while striking a balance between the parties on the one hand decreed the suit filed by Respondents No, 1 to 6, and on the other hand granted the alternative relief to the appellant for refund of sale consideration of Rs,5,00,000/-, alongwith the amount incurred on transfer thereof amounting to Rs,32,500/-. No misreading or non-reading of evidence on record has been pointed out by the learned counsel for the "appellant, which could persuade us to interfere in the impugned judgment, which is hereby maintained.
10.For the foregoing reasons, the present appeal, being devoid of merits, stands dismissed with no order as to costs.