Ghulam Mustafa Mengel, J.--This appeal under Section 96 C.P.C. is directed against the judgment and decree dated 30-10-2003 passed by Senior Civil Judge, Sibi, whereby the suit filed by Respondent No. 1 was decreed.
Briefly stated. the facts of the case are that the predecessor-ininterest of the parties namely Aziz Khan alias Abdul Aziz Khan had five sons namely Ahmed Khan, Muhammad Khan, Dawood Khan (father of the Plaintiff/Respondent No. 1), Hassan Khan and Misri Khan. All five are since dead.
Dawood Khan had three daughters namely Khan Bibi, (Plaintiff/Respondent No. 1), Lal Bibi, Razia Bibi and a son namely Mustafa Khan, (Appellant No. 1 is the son of Mustafa Khan) Lal Bibi and Razia Bibi were not married and died issueless; whereas, the Plaintiff/Respondent No. 1 was married with Abdul Raheem. A suit for declaration, partition and injunction was filed by the Respondent No. 1 against the appellants in the Court of Senior Civil Judge, Sibi on 23.11.2002 claiming her share of inheritance in the following properties left behind by her father late Dawat Khan alias Dawood Khan:--
(1) Lands falling under Khewat/Khatooni No. 127/305-Min, Mohal Mouza Khshkaba Khajak, Tappa Khajak, Tehsil and District Sibi.
(2) Lands falling under Khewat/Khatooni No. 137/305, Mohal Mouza Khshkaba Khajak, Tappa Khajak, Tehsil and District Sibi.
(3) Lands falling under Khewat/Khatooni No. 125/293-Min, Mohal Mouza Khshkaba. Khajak, Tappa Khajak, Tehsil and District Sibi.
(4) Lands falling under Khewat/Khatooni No. 93/103, Mohal Mouza Viala Khajak, Tehsil and District Sibi alongwith canal water of Khajak.
(5) Lands falling under Khewat/Khatooni No. 55/62, Mohal Viala Khajak, Tehsil and. District Sibi, alongwith canal water of Khajak.
(6) Lands falling under Khewat/Khatooni No. 3/3, Mouza Loni, Tappa Khajak Tehsil and District Sibi, alongwith canal water of Looni.
(7) Lands falling under Khewat/Khatooni No. 8/8, Mouza Loni, Tappa Khajak, Tehsil and District Sibi, alongwith canal water of Looni.
(8) Lands falling under Khewat/Khatooni No. 10/ 10-Min, Mouza Looni, Tappa Khajak, Tehsil and District Sibi, alongwith canal water of Looni.
(9) Lands falling under Khewat/Khatooni No. 17/17-Min, Mouza Loni, Tappa Khajak Tehsil and District Sibi, alongwith canal water of Looni.
(10) Lands falling under Khewat/Khatooni No. 18/18-Min, Mouza Looni, Tappa Khajak, Tehsil and District Sibi, alongwith canal water of Looni. Shamilat lands of Mouza Looni, measuring 132 acres, 3 rod, 29 poles.
(11) Lands falling under Khewat/Khatooni No. 8/8 Mohal Mouza Safi Abdul Wahab, Tappa Karak, Tehsil and District Sibi.
It was averred in the plaint that after 2 1/2 years of death of Mustafa Khan, Dawat Khan alias Dawood Khan died and he was survived by plaintiff being real daughter and Defendant No. 1 being his grandson. It was further averred in the plaint that after death of Dawood Khan mutation of inheritance was not effected and properties in dispute were managed and looked after by Mst.
Hoor Bibi, widow of Dawood. Khan, mother of plaintiff and Ahmad Khan, brother of Dawood Khan and Plaintiff/Respondent No. 1 had been receiving her share of produce from Defendant/Appellant No. 1 and after attaining majority the properties belonging to Dawood Khan were managed and looked after by Defendant/Appellant No. 1 and plaintiff was getting her share from the produce from Defendant/Appellant No. 1. It was also averred that in the year 2001 the Plaintiff/Respondent No. 1 insisted to enhance the share of the plaintiff from the produce of the lands, which demand was declined by the Appellant No. 1, upon which the plaintiff demanded physical partition of the properties in dispute but the same was declined. Prayer in the following terms was made by the Plaintiff/Respondent No. 1:-- "(a) declaration be made that the plaintiff is shareholder in the disputed property mentioned in para-7 of the plaint being legal heir/real daughter of Dawat Khan alias Dawood Khan and by way of inheritance the plaintiff is entitled to get the mutation and physical possession of her Sharia share of the disputed property; (b)declaration be made that the entries effected by the Defendant No. 1 in the revenue record upon his name as well as upon the names of Defendants No. 3 to 6 vide Mutation Nos. 199, 206, 277, 320, 342 and 493 in deprivation to the plaintiff are null, void and of no legal effect, as the same have been entered by committing forgery, fraud and suppression of facts with intention to frustrate the claim of the plaintiff being legal heirs of Dawat Khan alias Dawood Khan; (c)by way of passing decree for injunction the defendants be directed to cancel the revenue entries existing upon the names of Defendants No.. 1, 3 to 6 and further to mutate the share of the disputed property upon the name of the plaintiff as inheritance being legal heir of late Dawat Khan alias Dawood Khan in the revenue record according to her Sharia share; (d)by way of passing decree for rendition of accounts, the defendants be directed to render the accounts of the produce of the lands and share of the plaintiff be directed to be paid along with mesne profit at the prevalent bank rate; (e)by way of passing preliminary decree for partition, directions be issued to Defendant No. 7 for partitioning the disputed property between the parties and after partition the physical possession of the share of the plaintiff be delivered and thereafter final decree for partition be passed; (f)any other relief deemed fit and proper in the circumstances of the case may also be awarded; (g)cost of the suit may also be awarded, in the interest of justice, equity and fairplay.
The suit was contested by the appellants by way of filing the written statement. Out of pleading of the parties, following issues were framed by the trial Court for determination of dispute:-- "1. Whether the plaintiff is entitled and owner of her share in the suit land on the basis of her rights of inheritance as legal heir of late Dawat Khan alias Dawood Khan, being his real daughter? O.P.P.
2. Whether the inheritance Mutation No. 199, 206, 277, 220, 324 and 493 entered in the name of Defendant No. 1 and Defendants No. 3 to 6 are wrongful, illegal against the Sharia, void and in effective, to the extent of share of plaintiff? O.P.P.
3. Whether the plaintiff had been received her share from the produce of the suit land till in the year 2001? O.P.P.
4. Whether the late Dawat Khan alias Dawood Khan (father of plaintiff) has gifted the entire his properties/suit lands to his grandson/Defendant No. 1, in his life time by way of executing "HIBA", if so what its legal effect? OPD.
5. Whether the plaintiff has no any cause of action and locus standi to file the suit against the defendants? O.P.D.
6. Whether the suit is barred by time? O.P.D.
7. Whether the plaintiff is estopped from filing the suit by her own Act and conduct? O.P.D.
8. Whether the suit is bad for misjoinder of Defendant No. 2, who has no concerned with the disputed properties? O.P.D.
Whether the suit is not maintainable under Section 42 of the Specific Relief Act? O.P.D.
10.Whether the plaintiff is entitled for relief claimed for?
11.Relief ?."
After framing of issues, the Plaintiff/Respondent No. 1 produced P.Ws. Ghulam Qadir, Patwari, who produced documents Ex.P/1 to Ex; P/13 and Qaiser Khan. Thereafter the statement of Plaintiff/Respondent No. 1 was recorded. In rebuttal, appellants/defendants produced D.Ws.
Ghulam Qadir, Patwari, who produced document Ex; DA, Muhammad Amin, Haji Muhammad Khan, Issa Khan, Obaidullah and lastly statement of Defendant/Appellant No. 1 was recorded.
After hearing the argument of the parties learned counsel, learned Senior Civil Judge, Sibi decreed the suit vide impugned judgment and decree dated 30-10-2003, hence, this appeal.
We have heard learned counsel for the parties at length and perused the record. The learned counsel for appellants Mr. Basharatullah, contended that Senior Civil Judge, Sibi failed to appreciate the law and the evidence available on record and reached the conclusion, which is contrary to fact and law. He further contended that the property was orally gifted to the Appellant No. 1 by the grandfather of Appellant No. 1 in his life time and thereafter the possession of the property was delivered and accepted by the appellant through Haji Hassan Khan and thereafter the Gift was complete in all respect and this fact was proved by the Appellants No. 1 through reliable and confidence inspiring evidence. He referred to case laws reported, in. PLD-1949Lahore- 116, PLD-1947-PC-73, 1987-SCM R-1403, 1977-SCM R-154, PLD2006-SC-15, PLD-1949-W/P-Statute-152 and PLD 1963 W/P-107.
On the other hand the learned counsel Mr. Naeem Akhtar Afghan, Advocate for the Respondent No. 1 argued that the Respondent No. 1 is real daughter of late Dawood Khan while Appellant No. 1 is the grandson of deceased Dawood Khan, thus she could not be legally deprived of her right of inheritance. He further contended that the appellants have failed to prove the factum of gift.
Neither the acceptance was made nor possession of the property was delivered to the Appellant No. 1. He also contended that the judgment of the trial Court is well reasoned and the issues have been attended to, therefore, there exist no ground to interfere in the same. He relied upon the case laws reported in PLD-1990-SC-1, PLD-2002-SC-677, 1997-CLC-659, 2002-CLC-Lahore587 and 1999-MLD-1146.
We have considered the respective contentions put forth by the parties' learned counsel and examined the available record. It is not disputed that the Respondent No. 1 being daughter of late Dawood Khan is his legal heir. It is also not disputed that late Dawood Khan left behind properties, detail whereof has been given in the plaint. Respondent No. 1 being sole daughter of late Dawood Khan claimed her share in properties left by her father. Her claim was denied by the appellants on the ground that the father of Respondent No. 1 in his life time openly declared before the family members in presence of the plaintiff gifted the entire immovable properties belonging to him to the Appellant No. 1.
From the evidence of the witnesses of the appellants, it is not established that the offer of gift was made to the Appellant No. 1 by the late Dawood Khan nor it is established from the record that it was accepted by the Appellant No. 1 himself or his guardian on his behalf. Even the delivery of possession of the property to the Appellant No. 1 is not proved. The exact date, place and time of the declaration of gift is highly doubtful. Muhammad Amin, DW-2, has stated that he along with Abdul Sattar S/o Muhammad Khan went to see Dawood Khan in his Garden, where Dawood Khan told them that since his son has been died; therefore, he has given his property to his grandson Abdul Rashed Khan as Bakhshish, while Haji Muhammad Khan appeared as D.W-3 and stated that the land in dispute belonged to Dawood Khan, who in his life time declared before his family members that he has gifted his entire lands to his grandson Abdul Rashid Khan, as there is no other male member in his family. He further stated that thereafter the lands were looked after by Haji Hassan Khan, brother of late Dawood Khan and wife of Dawood Khan for Abdul Rashid and after his attaining majority he managed and looked after the property. He also admitted in cross- examination that at the time of death of Dawood Khan, Abdul Rashid was minor. Similarly, Obaidullah appeared as D.W-5 and stated that the land in dispute basically belonged to late Dawood Khan, grandfather of Abdul Rashid, who in his life time gifted the said property to him because the father of Abdul Rashid had died and Abdul Rashid was minor at that time. After death of Dawood Khan, his brother Haji Hassan Khan and his widow looked after and managed the property on behalf of Abdul Rashid. He admitted in cross-examination that his date of birth is 1964; whereas, the story of gift is prior to his birth. He voluntarily stated that he heard the fact of Gift from his father and grandfather. Lastly Abdul Rashid appeared for himself and as attorney for others in the witness box and deposed that the disputed lands belonged to his grandfather Dawood Khan.
His father Mustafa Khan has been died in the year 1939, at that time his grandfather Dawood Khan was alive. He further deposed that since after the death of grandfather there was no male member in the family, therefore, his grandfather gifted the entire disputed land in his favour. He further deposed that his grandfather declared the factum of Gift before the family and he also declared the same in the Mosque and after declaration of Gift he delivered the possession of properties to him through his grandmother and Haji Hassan Khan, who managed and looked after the same till his attaining the majority. All the witnesses contradicted each other with regard to place of gift made by late Dawood Khan. Such major contradictions in the statement of witnesses negate and nullify the story of gift cooked up by the Appellant No. 1. Specific evidence of ingredients of gift regarding declaration of gift, acceptance of gift and delivery of possession are lacking in the instant case. All this establishes that the Appellant No. 1 has cooked up the story of gift so as to deprive the Respondent No. 1 from the inheritance of her father Dawood Khan.
In case of Moulvi Abdullah & others v. Abdul Aziz & others (1987-SCM R 1403) the Hon'ble Apex Court held that a gift by a Muslim would be complete even if there is no written; and, it depends, for its validity, upon: (1) a declaration of gift by the donor; (2) acceptance of gift expressly or impliedly by or on behalf of donee, and (3) delivery of possession of the subject-matter by the donor to the donee. If these three conditions are complied with the gift is complete. Registration of the document will not be helpful if either of the aforementioned conditions are not satisfied. A written instrument in any case would not create a gift but is a mere evidence of the gift and as such would not in the case of Musalman require registration.
In the instant case the burden of proof was on the shoulder of appellants to prove the offer, acceptance and delivery of possession of property, which they failed to do so. In absence of such evidence it cannot be presumed that declaration of gift was ever made by late Dawood Khan in favour of Appellant No. 1. Moreover, no evidence on the record was referred to by the learned counsel for the appellants, which could reflect that the same was misread or misinterpreted by the trial Court.
For the above reasons, there is no substance in this appeal, which is dismissed, leaving the parties to bear their own costs.