Through this revision petition, petitioners have impugned the judgment/decree dated 03.04.2004 passed by learned Additional District Judge-I, D.I.Khan vide which the appeal of petitioners was accepted by setting aside the judgment/decree passed by learned Senior Civil Judge, D.I.Khan dated 11.10.2003 vide which the suit of respondent/plaintiff was dismissed.
2. Facts of the instant revision are that respondent/plaintiff filed a suit for (1) declaration and permanent mandatory injunction in respect of the suit property fully described in the heading of the plaint. The plaintiff asserted in the body of the plaint that he himself is his sadar owner of suit land. He is owner of the suit property of his brother Ahmad Nawaz Khan who died issueless on the basis of gift deed dated 23.11.1992. That the brother of the plaintiff died issueless on 15.05.1994, however, during his life time he resided with plaintiff and plaintiff served him and in return of service of plaintiff, his brother gifted his whole movable and immoveable property to him vide gift deed dated 23.11.1992, while possession of land was already with plaintiff. That after the death of his brother, plaintiff approached the Revenue Officer in order to transfer the land in his favour where he came to know that inheritance Mutation No. 1143 entered on 12.09.1994 in respect of land situated at village Thatha and Mutation No. 1019 in respect of land situated at village Gara Jamal and both the mutations were attested on 22.05.1995 and 27.06.1995 respectively. That many demands were made from the defendants to accept the rights of plaintiff but they refused, hence filed a suit in the trial Court.
3. The petitioners/defendants-appeared in the trial Court and submitted their written statement.
The trial Court after framing issues, directed the parties to produce their respective evidence as they wished and after hearing the arguments from both sides the suit of respondent/plaintiff was dismissed vide judgment/decree dated 11.10.2003.
4. Respondent/plaintiff Impugned the judgment/decree of the trial Court before the learned Appellate Court, who after hearing arguments of both the sides accepted the appeal of respondent/plaintiff vide judgment/decree dated 03.04.2004 by setting aside the judgment/decree of the trial Court, hence the instant revision petition.
5. Learned counsel for the petitioners argued mainly that gift deed has not been proved. According to him the ingredients necessary for a valid gift offer, acceptance and delivery of possession have not been proved, therefore, the learned appellate Court has wrongly decreed the suit of the respondent.
6. On the other hand, the stand of learned counsel for respondent is that all the ingredients necessary for a valid gift has been established by respondent/plaintiff, therefore, the suit was rightly decreed.
7. Arguments heard and record on file perused, in the light of which my discussion is as under.
8. The gift deed is on file which reveals that Ahmad Nawaz the donor has gifted the entire property to Rab Nawaz, his brother, in lieu of service towards him. It is to be noted that said Ahmad Nawaz died issueless. The deed was scribed by Umardaraz petition writer, who was produced by respondent as PW-4. The gift deed is Ex: PW4/1. According to his examination in chief he has correctly scribed the gift deed in the presence of parties and marginal witnesses. It is also in his cross-examination that donor Ahmad Nawaz was known to him and he was his school mate. He has also stated in cross-examination that the donee is in possession before gift. Haji Mukhtiar Hussain and Muhammad Ramzan who were marginal witnesses of the gift deed appeared in the Court and they have confirmed the execution of the gift deed. For a valid gift deed, offer, acceptance and delivery of possession is necessary. All these three ingredients have been proved through evidence. The contents of the deed itself proved that offer and acceptance was made which is established from the fact that donor and donee have signed it. Regarding possession it is proved from the oral as well as revenue record that the possession is with the donee. It is settled principle of Islamic Law that a Muslim donor has ample powers to gift his property during his life time subject to the condition that he is in proper status of health. This power is unfettered. Gift cannot be invalidated only because the legal heirs are deprived of their shares. I rely on PLD 2006 Supreme Court 15. I have come across no evidence to show that gift was invalid because of lacking of any ingredient. Offer and acceptance are proved and similar is the case of delivery of possession. One of the objection of learned counsel for petitioner is that the gift deed is unregistered. This objection is of no avail because under the Muslim Law there is no mode prescribed for a gift. Gift may be made orally. A gift deed is not required to be registered. I may rely upon 1994 M LD 677, wherein it is held that a written gift deed is not required to be registered and without registration it is admissible and valid. The relevant observations are at page No. 683 & 684 which are reproduced below:-- "It is well-established legal proposition that a gift by a Muhammadan can be created even orally and even if some document is written either as gift or as an acknowledgement of gift it does not require registration and it is definitely a very strong niece of evidence in favour of the transaction of gift Above view finds support from the law declared in case cited by the learned counsel for the respondent Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCM R 154. At page 158 of the report it has been held as under:-- "The objection founded on Section 123 of the Transfer of Property Act is also misconceived. Vide Section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift if not registered. See Muslim Law by Saksena, 3rd Edn., pp. 368-369 and the precedent cases noticed at the foot of the pages. Among these formalities are, the passing of the possession from the donor and the acceptance of the same by the donee.
These are amply satisfied in the instant case. That being so, it is also wrong to suggest that the majority award is vitiated by error of law apparent on the face of the award".
In case of Maulvi Abdullah etc. v. Abdul Aziz etc. 1987 SCM R 1403 at pages 521 to 523 of the report it has been held as under:-- "The next question which arises is whether an old gift of immovable property could be made by a Muslim in favour of a Muslim son of a predeceased son. If so, whether such a gift has in any way to be effected through an instrument of writing; and lastly whether in case an instrument of writing is made whether it is ineffective without registration.
In our view all these questions stand resolved by the judgment of this Court in Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCM R 154. Though the facts in which the judgment was rendered are slightly distinguishable, yet in so far as the resolution of questions of law posed above is concerned, the answers are, of course concise but very clear. An objection based on Section 123 of the Transfer of Property Act to the effect that a gift of an immoveable 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 immoveable property could be made provided other conditions for a Muslim gift were satisfied.
The observations made at page 158 of the repot in this behalf are as follows:-- "The objection founded on Section 123 of the Transfer of Property Act in also misconceived. Vide Section 129 ibid the provisions of Transfer of Property Act, gifts made under Muslim Law are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of the gift is not registered. See Muslim Law by Saksena, 3rd Edn., pp.368- 369 and the precedent cases noticed at the foot of these pages. Among these formalities are the passing of the possession from the, donor and the acceptance of the same by the donee. There are ample satisfied, in the instant case."
It is further held at page 685 that:-- Respectfully following the dictum laid down in the aforementioned judgments, I, therefore, hold that Exh.P.1 did not require registration and is a valid piece of evidence in support of the transaction of gift."
9. The result of my above discussion is that the petitioners have failed to establish any illegality or gross miscarriage of justice and jurisdictional error in the impugned judgment/decree of the appellate Court.
10.In the light of above stated position I do not see any illegality or irregularity in the judgment/decree passed by learned lower Appellate Court. Resultantly, the instant revision petition is devoid of merits, therefore, dismissed.