MUHAMMAD EJAZ and 2 others vs Mst. KHALIDA AWAN and another

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, C J.---This petition has been filed against the judgment dated 2- 4-2009 passed by a learned Single Judge of the Lahore High Court, Lahore, whereby Civil Revision No,368 of 2008, filed by the respondents, was allowed and the judgment and decree dated 10-12- 2007 of the Additional District Judge, Shorkot, District Jhang were set aside.

2. Precisely, facts of the case are that respondent No,1 Mst.Khalida Awan instituted a suit in the Court of Civil Judge, Shorkot for a declaration to the effect that she was owner in possession of the suit property on the basis of gift deed dated 15-8-2002 executed by her father Ahmed Bakhsh in her favour. She also sought a direction that the petitioners/defendants be restrained from interfering with her possession. On the pleadings of the parties, the learned trial Court framed issues, recorded evidence and decreed the suit of the respondent by, his judgment and decree dated 22-1-2007, inter alia, holding as under:-- "...... It is proved on record that Ahmed Bakhsh deceased issued Aaq Nama to Muhammad Ijaz defendant No,1 and gifted the suit property to the plaintiff as a reward of her services vide gift deed dated 15-2-2002. The plaintiff has also proved the offer of gift by the deceased and acceptance of said gift by her. She is owner in possession of the suit property measuring 1 Kanal, 10 Marlas and she is entitled to get the suit-land transferred in her hand. It is also proved on the record that Mutation No,12979 dated 8-5-2004 is result of fraud and is liable to be cancelled. In these circumstances, both these issues are answered in favour of the plaintiff and against the defendants."

3. The petitioners-defendants went in appeal and an Additional District Judge, Shorkot, District Jhang, by his judgment and decree dated 10-12-2007 accepted the appeal and set aside the judgment and decree passed by the learned trial Court. Aggrieved by the aforesaid judgment and decree, the respondent filed a civil revision before the Lahore High Court. A learned Single Judge, by his order dated 2-4-2009 allowed the same, set aside the judgment and decree passed by the learned Additional District Judge and resorted that of the learned Civil Judge, hence the present petition.

4. The learned counsel for the petitioners contended that the learned Single Judge of the Lahore High Court erred in law as well as on facts in holding that a valid gift deed had been executed in favour of the respondent by her father. On the other hand, the learned counsel for the respondent No,1 supported the impugned judgment of the learned Single Judge. He argued that a valid gift deed was executed by the father of the respondent on account of love and affection and to compensate her for the services rendered by her to her father in whose care he remained up till his death. Petitioner Muhammad Ijaz was declared aaq by the father, while Mst. Safia Sultana, respondent No,2, a sister of the contesting parties, to her own determent had supported the factum of execution of gift deed in favour of the respondent No,

1. The learned Single Judge as well as the learned Civil Judge, therefore, rightly attached weight to the written statement of respondent No,2 and also found that a proper gift deed was executed in favour of the respondent No,1.

5., We have heard the learned counsel for the parties and have gone through the record. The decision of the present petition turns upon the true construction of gift-deed Exh.P.1. Whether it fulfilled the requirements of law so as to bestow upon the respondent No,1 the property rights over the subject of gift to the exclusion of every other person. We have examined the gift deed and have perused the evidence adduced by the respondent-plaintiff to prove the same.

6. Under the Mahommedan Law, a gift, in order to be valid and binding upon the parties, must fulfil the following three conditions:-

(a) a declaration of gift by the donor;

(b) acceptance of gift by the donee; and

(c) delivery of possession of corpus.

' On the fulfilment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the pre requisites are complied with. Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registrable under the Registration Act, 1908.

7. In Umar Bibi v. Bashir Ahmad (1977 SCM R 154), it was held that the formalities prescribed by Muslim Law having been completed, a valid gift could be effected even orally or under an unregistered instrument. The possession of gifted land having been delivered by the donor to the donee and the donee having accepted the same, the gift was valid and suggestion of majority award being vitiated by error of law apparent of face of record was miscounted. It was also held that the gifts made under the Muslim Law were expressly excluded from operation of the Transfer of Property Act, 1882 by virtue of section 129, which provided that nothing in the Chapter in which section 123 fell, would affect any rule of Muslim Law. In Abdullah v. Abdul Aziz (1987 SCM R 1403), it was held that gift of immovable property made under the Mahommedan Law was expressly excluded from operation of section 123 of the Transfer of the Property Act, 1882. What was important was the completion of the three conditions enumerated above and registration of the document would not be helpful if any of the aforementioned conditions were not satisfied. A written instrument in any case would not create a gift but was a mere evidence of the gift and as such would not in the case of a Muslim require registration. In case, the case of Ismail v. Commissioner of Karachi (1968 SCM R 509) was also considered where it was held that no right, title or interest in a property of value of more than Rs,100 could be conveyed to a person except by deed in writing duly registered under section 17 of the Registration Act, 1908. It was held that the rule laid down in Ismail (supra), which had arisen out of a tenancy matter in Karachi would not in any way detract from the force of the rule enunciated in Umar Bibi (supra). The tenant in the said case was facing ejectment proceedings on the ground that he had built his own house in Karachi. He resisted the plea of ejectment by the transferee on the ground that he had made an oral gift of the house so constructed by him in favour of his son. In that context, it was held that the gift not having been made through a registered instrument was of no avail to the tenant.

8. In the instant case, the parties are brother and sisters inter se. Exh.P.1 (gift-deed) recites that the donor (father) made a gift of the property in question in favour of respondent No,1 (one of his daughters). The onus to prove the gift deed Exh. P.1 in all its three facets, namely, the declaration of gift by the donor, acceptance of the gift by the donee and delivery of possession of the corpus of gift lay on the plaintiff-respondent. An appraisal of evidence adduced by her does not prove the fulfilment of the requirements regarding acceptance of gift by the donee and delivery of possession to her. While appearing as P.W.1, she did not state that she had accepted the gift or possession of the property was given to her. On the other hand, she merely stated that the possession of the property was with her. Similarly, P.W.3 Muhammad Zaman and P.W.4 Muhammad Nawaz stated that the possession of the property was with the plaintiff. The gift-deed was executed on 15-2-2002 while the donor died on 23-5-2002. During this period, the respondent-plaintiff did not get the property mutated in her favour. The failure to clearly establish the twin requirement of acceptance of gift and delivery of possession was fatal to the claim of the respondent-plaintiff.

However, none of the Courts below adverted to this aspect of the matter. Consequently, it could not be said that a valid gift was made by the father of the respondent-plaintiff in her favour. In a chain of authorities, the gift of property were not held to be valid where any of the three essential ingredients of gift was lacking. Reference may usefully be made to the cases of Ghulam Haider v.

Ghulam Rasool (2003 SCM R 1829), Zafare Muhammad v. Anwar Bibi (2004 SCM R 559), Muhammad Idrees v. Zeenat Bibi (2005 SCM R 1690) and Rasheeda Bibi v. Mukhtar Ahmad (2008 SCM R 1384). In Ashiq Hussain v. Ashiq Ali (1972 SCM R 50) it was held that a mere recital in the gift deed that possession had been delivered to the donee was not enough. The delivery of possession by the donor as a conscious, unequivocal and distinct act on his part was necessary to perfect the gift made by him. Indeed, in a gift to a female within the prohibited degrees delivery of possession is not sine qua none, but the fact remains that where the subject-matter of the gift is a portion of certain property, the donor must indicate the specific portion gifted to such a female. In the instant case, the donee did not specify as to which portion of the property was gifted to her. Therefore, it could not be said that the donor had acted consciously.

9. In view of the above discussion, we convert this petition into appeal and allow the same. The order dated 2-4-2009 passed by the learned single Judge of the Lahore High Court as also the judgment and decree of the learned Civil Judge dated 22-1-2007 are set aside. Consequently, the suit of the respondent-plaintiff is dismissed with no order as to costs.

(Sd.) ,Iftikhar Muhammad Chaudhry, C.J.

(Sd.)

Ch. Ijaz Ahmad, J I agree with the judgment but have added a separate note.

(Sd).

Jawwad S. Khawaja, J

10. JAWWAD S. KHAWAJA, J.---I have gone through the judgment delivered by Honourable the Chief Justice and agree that the validity of the gift claimed by Mst. Khalida Awan, respondent/plaintiff, has not been established in accordance with law. As a consequence, I respectfully concur in the conclusion that the impugned judgment and decree passed by the High Court dated 2-4-2009 be set aside. I would, however, wish to make an additional note for doing so.

11. The facts of the case have been set out in the above referred judgment and have also been elaborately discussed by the learned Addl. District Judge, Shorkot in his judgment dated 10-12- 2007. I would only recapitulate some of the circumstances relevant to this note. The parties in this case are, the children of Ahmad Bakhsh deceased, who admittedly was the original owner of the disputed property. Muhammad Ejaz (petitioner No,1) is the son of the said Ahmad Bakhsh while petitioners No,2 and 3 namely, Mst. Munawar Sultana and Mst. Anwar Sultana, together with Mst.

Khalida Awan (respondent/plaintiff) and Mst. Safia Sultana (respondent No,2) are his daughters.

The respondent/plaintiff claims that the suit property was gifted to her by-her father, to the exclusion of her brother and three sisters named above. For the present purposes it is significant that the plaintiffs bases her claim on a gift deed (Exh.P/1) dated 15-2-2002 and not on any oral gift made prior to or in addition to this instrument. In the event, issue No,1, which is dispositive of the controversy before us, was framed by the learned trial Court in the following terms: "1. Whether the plaintiff is entitled to a declaratory decree to the effect that the plaintiff is owner in possession of land measuring 1 Kanal, 10 Marlas on the basis of gift-deed executed on 15-2-2002 and is entitled to get the suit-land incorporated in the land record with perpetual injunction against the defendant as prayed for? OPP" (The underlining of emphasis is mine).

12. The learned trial Court decided this issue in favour of the respondent/plaintiff based on reasoning which is recorded in paragraphs 5 to 10 of its judgment. On appeal filed by the present petitioners, the learned Additional District Judge, Shorkot appraised the entire evidence on record while holding that the aforesaid issue was not.. Proved. The judgment and decree of the trial Court, as a consequence was set aside and the suit filed by the respondent/plaintiff was dismissed.

13. It is in exercise of revisional jurisdiction that a learned Judge in the High Court set aside the appellate judgment passed by the learned Additional District Judge and resorted the trial Court's decree passed in favour of the respondent/plaintiff. As discussed below, the learned Judge in Chambers did not advert to the various legal and factual aspects of the case which had prevailed with the learned Additional District Judge in appeal. These weighty considerations and discussion of the relevant facts and law are set out in paragraph 9 onwards of the appellate judgment.

14. It is clear both from the contents of the plaint and the wording of issue No,1 as also the plaintiff's testimony that she places reliance on the gift-deed (Exh.P-1) as the instrument whereby title in the suit property was purportedly conveyed to her by way of gift. In this context D paragraph 7 of the plaint is most relevant. It has been averred therein that the respondent/plaintiff was desirous of getting the gift deed registered but it was only on account of want of funds that this was not done.

It may be noted that where a donee claims transfer of immovable property by way of gift through an instrument purporting to transfer rights in praesenti, the instrument is compulsorily registrable under section 17 of the Registration Act. Failing registration, the provisions of section 49 of the Registration Act come into play and, as a consequence, the document does not operate to create any right, title or interest, whether vested or contingent in the property.

15. It is not the respondent's case that the gift of the suit property was made orally. The witnesses produced by her namely, Muhammad Tufail P. W.1 (scribe) and the two marginal witnesses to the gift deed namely, Muhammad Zaman P.W.3 and Muhammad Nawaz P.W.4 also deposed in relation to the gift-deed. Moreover, they do not profess to be witnesses to any oral gift. Their testimony is also to the effect that the respondent/plaintiff was not present when the alleged gift-deed was reduced into writing by the scribe. In these circumstances, neither an oral gift nor a valid gift deed has been proved on record.

16. The law which has been laid down in the cases titled Umar Bibi v. Bashir Ahmad (1997 SCMR 154) and Maulvi Abdullah and others v. Abdul Aziz and others (1987 SCM R 1403) is to the effect that even if the donor executes and registers a gift deed in favour of the donee, the gift under Islamic Law, is only effective if all three essential elements of a gift viz, declaration by the donor, acceptance by the donee and delivery of possession are proved. These precedents do not hold that where a donor choses to make a gift through a written instrument (rather than orally) that such written instrument does not require registration. The case of Umar Bibi, supra arose from a declaratory suit based on an oral gift. In the case of Maulvi Abdullah, supra, likewise, the gift was made orally but was subsequently recorded in a memorandum of gift. Such memorandum being a record of the earlier gift made orally, cannot be equated with a gift-deed which is meant to be the instrument conveying title to the donee.

17. The learned Judge in the High Court has not taken note of the above factual and legal aspects nor has he, it is stated with aspect, addressed the reasoning of the appellant Court. The limited jurisdiction under section 115 of the Code of Civil Procedure has been invoked while setting aside the well reasoned appellate judgment passed by the learned Additional District Judge. This has been done without adverting to any jurisdictional defect or material irregularity in the appellate judgment.

18. I would now like to comment on the impugned revisional judgment. It is correctly noted by the High Court that the respondent being plaintiff was required to prove the gift deed, Exh.P-1. However, the essential aspect of this document viz. That it was unregistered even though purporting to make a transfer of immovable property in praesenti, has not been taken note of. The learned Judge in Chamber has merely proceeded to hold that the marginal witnesses, Muhammad Zaman and Muhammad Nawaz together with the scribe, Muhammad Tufail, had proved execution of the document by Ahrnad Bakhsh. On account of the wording of the gift deed (Exh.P-1) read with section 49 of the Registration Act, it is clear that the document cannot be given legal effect as a conveyance nor does mere proof of execution of Exh.P-1 fulfil the essentials of a valid gift.

19. It has been observed by the High Court that under Muslim Law a gift may be made by a Muslim donor through a declaration to this effect, followed by acceptance by the donee and delivery of possession. These are the requisite elements of a valid oral gift under Muslim Law and there can be no cavil with the general proposition stated by the High Court. In the present case, however, as noted above, there were no witnesses of the acceptance of the gift or delivery of possession. The scribe Tufail (P.W.2) in clear terms, deposed that the respondent/ plaintiff was not present at the time of the alleged gift. Statements to the same effect have been made by Muhammad Zaman P.W.3 and Muhammad Nawaz P.W.4. Zaman expressly deposed that only three persons namely Ahmad Bakhsh, Muhammad Nawaz P.W.4 and Zaman himself were present at the time when the gift-deed was made. Muhammad Nawaz P.W.4 testified that the respondent /plaintiff Mst. Khalida Awan was not present at the time. From the testimony of these witnesses, the only conclusion which can be drawn is that there is no evidence of acceptance of the gift by the plaintiff even if the gift-deed Exh.P/1 was treated as a declaration of gift.

20. Coming next to the question of delivery of possession, the evidence once again does not support the respondent/plaintiff. She has acknowledged in her own statement that her brother, Muhammad Ejaz (petitioner No,1) has one room in the disputed house which is under his lock and key and he resided in the said room when he visits Shorkot Muhammad Zaman P.W.3 has made a similar statement while Muhammad Nawaz P.W.4 has stated that Muhammad Ejaz has retained two rooms in the disputed property. From these statements and in the absence of any explanation for this material circumstance, it is abundantly clear that possession of the disputed property was not delivered to the respondent/plaintiff by her father. On the contrary, the most logical inference to be drawn from this circumstance was that the portion of the disputed property (be it two rooms or one) was in the use and occupation of Ejaz even during his father's lifetime and possession was never handed over to the respondent/plaintiff. Had it been otherwise, the plaintiff and her witnesses would have explained in their testimony, the events whereby Ejaz came into possession of such portion of the property after it had been gifted:

21. The High Court has also relied upon a consenting written statement filed by Mst. Safia Sultana (respondent No,2), wherein she purportedly conceded the case of the respondent /plaintiff. What, however, has been missed out is that Mst. Safia Sultana was not a witness to the gift nor was she produced at the trial to testify on oath and submit to cross-examination. In the circumstances, the mere fact that she filed a conceding written statement, cannot be taken as proof of the disputed gift which is the basis of plaintiff's claim.

22. The High Court next relied on evidence that Muhammad Ejaz petitioner/defendant was not on good terms with his father. What has not been noted is that there is no evidence whatsoever that the three daughters of Ahmad Bakhsh who were defendants in the case namely, Mst. Munawar Sultana, Mst. Anwar Sultana and Mst. Safia Sultana, were not on good terms with their father. No reason whatsoever for the exclusion of these three daughters has been brought on record. On the contrary, even the plaintiff's own witnesses have proved that from 1968 onwards until the death of Ahmad Bakhsh on 23-5-2002, Mst. Munawar Sultana was living in her house adjacent to the disputed property where Ahmad Bakhsh was residing. The P. Ws. Have further deposed that there was a door connecting the houses of Mst. Munawar Sultana and Ahmad Bakhsh and also that while the respondent/plaintiff was a school teacher and was performing her duties during the day, it was Mst. Munawar Sultana who was taking care of Ahmad Bakhsh deceased.

23. At this point, I would like to advert to another important aspect of the case. The respondent/plaintiff has testified that her father Ahmad Bakhsh was an affluent and rich person having retired from the Police service as S.H.O. It, therefore, does not stand to reason that he would not have obtained registration of the gift deed, had he wished to convey the suit property to the plaintiff. Interestingly, the scribe Muhammad Tufail (P.W.2) has stated in his testimony that the Sub- Registrar's office was only 25 yards from his place of work. This fact has also been noted by the learned appellant Court and the logical inference from the same has been drawn.

24. The above circumstances clearly show that the factual and legal aspect of the case elaborately discussed in the appellant judgment, have not been commented upon by the High Court, nor has the High Court identified any aspects of the appellant judgment which could show the same to be suffering from any legal or jurisdictional defect justifying interference therein in exercise of the Court's revisional jurisdiction. For this reason also, in my humble view, the impugned judgment cannot be sustained.

25. The above are my reasons in support of the acceptance of the appeal.