' SHEZADA MAZHAR, J. --- The instant revisior petition has been filed against the judgment and decree dated 29.01.1983 whereby the judgment and decree passe( by the learned Civil Court dated 09.09.1975 was upheld.
2. Necessary facts leading to the filing of present civil revision petition are that Mst. Bhirawan Bibi was widow of Syed Habib Ullah Shah who vide mutation No, 1007, dated 23.01.1954 gifted the land measuring 146 Kanals, 1-Marla situated in Mouza Thath Ghalwan, Chah Machhiwala, Tehsil Shujabad. Said Habib Ullah Shah died in April, 1968 and on his death his legal heirs got mutation of inheritance No, 237, dated 05.06.1968 attested in their favour. This mutation was challenged by Mst.
Bhirawan Bibi in the Court of C.A. As Collector Shujaabad who vide order dated 06.10.1969 accepted the appeal of Mst. Bhirawan Bibi and mutation No, 1007, dated 23.01.1954 was kept intact and Mst.
Bhirawan Bibi was declared full owner of the land in dispute. The said order of Collector dated 06.10.1969 was challenged by the legal heirs of Habib Ullah Shah deceased by way of appeal which was heard by Addl. Commissioner (Consolidation) with the powers of Commissioner (Revenue) on 26.05.1971 who accepted the same and declared Mst. Bhirawan Bibi as limited owner of the land in dispute. This order of Commissioner (Revenue) dated 26.05.1971 was challenged by Mst. Bhirawan Bibi through a declaratory-suit in Civil Court. The said suit was contested by the respondents on legal as well as factual grounds by filing written statement.
3. The learned Trial Court framed following issues out of divergent pleadings of the parties:- ISSUES:
(1) Whether the suit is not maintainable in its present form?
(2) Whether the suit has been incorrectly valued for the purposes of Court-fee and jurisdiction? If so what is correct valuation?
(3) Whether Muhammad Farooq and Shafiq-urRahman are necessary parties to the suit?
(4) Whether the plaintiff is owner in possession of the suit property through a written gift and the defendants have nothing to do with it?
(5) Relief ' Issues No, 1 to 3 were not pressed by the learned counsel for defendants/respondents and issue No, 4 was decided by the learned lower Court against the petitioner/plaintiff and the suit was dismissed on 09.09.1975. Against which an appeal was filed which too decree dated 29.01.1983.
Against the said judgment and decree, the present civil revision was filed which came up for hearing before this Court on 25.10.1999 when this Court allowed the civil revision and judgments and decrees of both the Courts below were set aside and suit of Mst. Bhirawan Bibi was decreed.
The said order was challenged by the respondents by filing Civil Petition No, 1374-L of 2006 which was later on converted into ,civil appeal No, 1689 of 2006 and vide judgment dated 14.02.2013, the Honourable Supreme Court of Pakistan remanded the matter with the following observation:--- "We have heard learned counsel for the parties at some length. On Court query as to whether is it not be fair to allow this appeal as also C.M. No,,141-C/2006 and C.M.A. No, 142-C/2006 and direct re-hearing of the Civil Revision No, 406 of 1983 since appellants/defendants were not personally served for the date on which the civil revision was allowed, learned counsel for the respondents in all fairness did not join issue and conceded. In view of fair stand take by the respondents' learned counsel this appeal is allowed, the impugned order dated 29.06.2006 is set aside, C.M. No, 141-C of 2006 and C.M. No, 142-C of 2006 are allowed and thereby ex parte judgment dated 25.10.1999 passed in civil revision No, 406 of 1983 is set aside. The afore-mentioned civil revision shall be deemed to be pending before the. High Court be decided afresh preferably within a period of five months on the receipt of this order.
' Needless to observe the learned High Court while deciding this civil revision shall also advert to the question as to whether the facts in the instant appeal are distinguishable from the case Abdul Hameed v. Muhammad Mohiyuddin Siddique Raja (PLD 1997 SC 730) and so what is its effect".
4. After remand of the case, the matter was once again fixed before this Court and came up for hearing today. Learned counsel for the petitioners relied upon Para No, 55, 146 and 153 of Mohammodan Law and submits that Islamic law recognized both the gifts of corpus of land as well as usufruct of the land. Further submits that the wording used by Habib Ullah Shah deceased clearly indicates that he intend to transfer the corpus of land and not usufruct of the land. Learned counsel for the petitioner relied upon Abdul Hamid and 23 others v. Muhammad Mohy-ud-Din Siddique Raja and 3 others (PLD 1997 SC 730) as well as Muhammad Nawaz & others v. Muhammad Khan & others (2005 SCM R 710) and submits that the transfer was of the corpus and not usufruct of the land and therefore the present civil revision may kindly be accepted and the orders passed by the Courts below may be set aside.
5. On the other hand, learned counsel for the respondents submits that in the Rupt No, 155, dated 01.01.1954 it was clearly mentioned that Mst. Bhirawan Bibi shall have no right to sell or mortgage the land and therefore it is clear from the said statement that Syed Habib Ullah Shah had not transferred the corpus of the, land instead only the usufruct of the land. Further,sub4mitsArlat ,the, transfer was for {{URDU TEXT}} Learned counsel for the respondents has also relied upon Muhammad Nawaz & others v. Muhammad Khan and others (2005 SCM R 710) and submits that the gift was of usufruct and not of corpus of land and in this view of the matter the order passed by the Courts below were in accordance with law as well as facts of the case and therefore liable to be upheld by this Court.
6. Arguments heard. Record perused.
7. Before dealing with the present civil revision, it is necessary to mention that under Islamic law gift of corpus of land as well as gift of usufruct of land are recognized. Where gift of usufruct is made the same is called "Ariyat". It was held by the Hon'ble Supreme Court in Abdul Hamid and 23 others v. Muhammad Mohy-ud-Din Siddique Raja and 3 others (PLD 1997 SC 730) that it is crystal clear that Muslim Law recognizes, permits and sanctifies the gift of usufruct as well. In the same judgment the Hon'ble Supreme Court hold that if the words uttered negate i,e,making the other owner of the thing gifted, it will be a gift but if the words indicate making the donee owner of the usufruct of the thing gifted then it will be "Ariyat" and if from the words used both things can be construed, in that case decision will base on the intention of the donor. In order to ascertain the intension of the donor the Hon'ble Supreme Court held that in each case the intention of the donor will have to be construed for determining the question whether the gift of corpus of the property was intended to be made or it was only gift of usufruct of the property. The Hon'ble Supreme Court also held in the said judgment that (L5,11) means life grant and not life tenancy. It was further held in the said judgment that if the transaction is of the nature of "Umra ", it will be a case of transfer of property absolutely to the donee as the Holy Prophet (peace be upon him) had disapproved the "Umra" of the period of Jahlia (pre-Islamic period), and of taking back the property gifted under "Umra" grants. It was also held in the said judgment that a gift of property for life made by a person to any person, who may be his issueless wife, where intention is to transfer and convey corpus of the property is to be construed as an outright and absolute gift of property and any condition attached derogatory to the transfer of corpus in that case would be void. In other words, any derogatory condition sought to be attached on the "Umra" gift will be void and shall not be recognized. After holding the above, the Hon'ble Supreme Court while dealing with the case in hand and while analysing the statement given by the Jamal Din before the revenue authorities held that:--- The statement made by Jamal Din before Patwari and Revenue Officer, the order attesting the mutation as well as the contents of the plaint and statement made during trial re-produced above, clearly show that it was the "land itself'. The corpus of land which Jamal Din gifted in favour of his wife Mst. Karam Noor though he added the condition of till life therewith and not the mere enjoyment of usufruct thereof. The case of the appellants throughout was that land in dispute was gifted to Mst. Karam Noor and that she was limited owner of the land which after her death reverted back to the appellants as heirs of late Jamal Din. This stand was deviated to some extent before us as learned counsel submitted that the gift made was not of corpus but of usufruct only.
However, this deviation in the stand is not possible because of the admitted position noted above.
The appellants nowhere pleaded that late Jamal Din had only transferred the usufruct of the land and retained ownership over the corpus of the land. The first statement made before the Patwari indicated that Jamal din transferred the disputed land for life in favour of his wife and to give effect to the disposition as aforesaid he had delivered possession of the land to her.
' In the instant case, the words {{URDU TEXT}}used clearly indicate that Jamal Din intended to make 'Umra' gift.
' The gift of the corpus of the land as such was complete and absolute and the condition of {{URDU TEXT}} sought to be attached is to be held as invalid and ineffective and it was so rightly held by all the learned Courts below. Further statement of Jamal Din recorded by Revenue Officer on 4.7.1948, which was emphasized upon by the learned counsel for the appellants was as follows:- {{URDU TEXT}} ' This statement was just a step to give effect to the original disposition of the property reflected in the statement before the Patwari on 25-6-1948. This statement was explanatory in nature, disclosing the reason which prompted him to make the gift and, therefore, the same could not alter the nature of the disposition of the property. From this explanation, it cannot be inferred that the disposition related only to the usufruct of the land and not its corpus as the words appearing in both the statements unambiguously referred to the corpus of the property and not to the usufruct. Even the appellants/plaintiffs, as has been shown from the contents of the plaint and statement of Muhammad Ashraf, one of the plaintiffs, never treated the gift ask the gift of usufruct and not of the land. The admitted facts emerging from the record leave no room for any doubt that Mst. Karam Noor was accepted ask an owner of the disputed land though it was pleaded that she was a limited owner of the property and after her death the land reverted back to the appellant as heirs of late Jamal Din. This plea is without merit as the gift made was 'Umra' gift which, according to the principles of Muslim Law deduced from the Tradition of the Holy Prophet (Peace be Upon Him), is a complete gift and condition derogatory to the absoluteness of the gift is invalid, and the property so gifted does not revert to the donor after the life of the donee.
8. In the present case, it is to be established whether the gift was of corpus or only of usufruct of property? As explained above, the said determination depend upon the facts of each case to be inferred from relevant evidence after discovering real intention of donor, but no hard and fast rule could be laid down for said purpose. It is also explained above that if the gift was found to be of corpus of property, then any condition attached to such gift would be illegal while gift itself would be perfectly valid.
9. The examination of record reveals that Habib-ullah Shah deceased appeared before Patwari Halqa and reported to him transaction pertaining to his land on the basis of which mutation No, 1007 was entered by the Patwari in the Mutation Register. The statement recorded being Rupt No, 155, dated 01.01.1954 in respect of transfer reads as under:--- {{URDU TEXT}}
10. The above mutation came up before the Revenue Officer on 23.01.1954 and was sanctioned by recording the appropriate order. The order reads as under:- {{URDU TEXT}}
11. From the reading of the above statement it reveals that the Habib Ullah Shah gifted his property to Mst. Bhirawan Bibi for {{URDU TEXT}} Nowhere in the statement of Habib Ullah Shah any reference to the "Paidawar" of the land was made and therefore use of words {{URDU TEXT}} are sufficient to show that the gift was a "Umra" gift.
12. The examination of facts of the present case reveal that they are almost similar to the facts of the case cited judgment (PLD 1997 SC 710) the Hon'ble Supreme Court interpreted the words{{URDU TEXT}}as "Umra" gift and condition attached to the said gift was held void. It is also confirmed from the above statement in the present case that all the ingredients of gift have beeh completed i,e, he had gifted the land and had handed over the same land to her and she has accepted the said gift and have taken possession of the land gifted. Therefore for'all purposes a complete gift was made by Habib Ullah Shah in favour of Mst. Bhirawan Bibi. Thus the conditions of {{URDU TEXT}}and {{URDU TEXT}}would be void and cannot take effect while the gift will remain effective.
13. As a result of above discussion, the instant revision petition is accepted and judgments/decrees of both the learned lower Courts are set aside and the suit of Mst. Bhirawan Bibi stands decreed.
Civil revision .