HAIDER ALI KHAN, J.- Through this civil revision petition under section 115, C.P.C, the petitioners herein have challenged the judgment and decree dated 30.4.2014 of the learned Additional District Judge/Izafi Zilla Qazi, Dir Lower at Chakdara whereby appeal preferred by the petitioners/plaintiffs against the judgment and decree dated 31.3.2011 of the learned Civil Judge/Illaqa Qazi, Chakdara, has been dismissed.
2. Precise and relevant facts of the case are that the petitioners/plaintiffs filed a suit against the respondents/defendants for cancellation of sale deeds (or other transactions in any form) carried out by the respondents/defendants No. 2 to 6 & 8 in favour of respondents/defendants No.10 & 12 in respect of the disputed property, being illegal and ineffective upon their rights. They also prayed for perpetual injunction against the respondents/ defendants in part "?" of the plaint.
Defendants were summoned, in response whereof the respondents/defendants No. 2, 9 & 10 appeared before the Court and submitted their written statement whereas the Respondents No.8 & 12 / defendants contested the suit by filing their separate joint written statement. The trial Court framed ten issues including an additional issue on which the parties led their respective evidence and at the conclusion of the trial, suit of the petitioners/plaintiffs was dismissed vide judgment and decree dated 31.3.2011. The petitioners/ plaintiffs preferred appeal which was dismissed by the learned appellate Court on 23.4.2012 on the point of limitation which order was further challenged before this Court in a revision petition. Regarding the point of limitation so many revision petitions were pending before this Court which were disposed through a single judgment dated 18.12.2012 delivered in C.R No. 389/2011 and the cases were remanded to the appellate Courts for deciding the same on merits. Resultantly, appeal of the petitioners/plaintiffs was also remanded which was again considered by the learned appellate Court on merits and ultimately the appeal of the petitioners/ plaintiffs was dismissed vide judgment and decree dated 30.6.2014, which is impugned herein.
3. Arguments heard and record perused.
4. According to pleadings of the parties and facts on the record, stance of the petitioners/plaintiffs is that by the dint of various decrees in their favour, the respondents/defendants No.2 to 6 and 8 are not legally empowered to alienate the disputed property or any portion thereof to respondents/defendants No.10 and 12 either through sale or gift and any such deed in this regard is liable to cancellation, being illegal and ineffective upon their rights.
On the contrary, stance of the Respondents/defendants No. 8 & 12 is that the property mentioned at Serial No.V of the list annexed with the plaint was given to Respondent No.8/defendnat by her husband as ownership with possession in lieu of her dower which she further gifted to her grandson (daughter's son) namely Muhammad Bashir (Respondent No.12) vide gift deed dated 22.10.2008.
The remaining legacy left by her husband late Muhammad Akram was partitioned by his legal heirs including late Ashfaq Khan, who was murdered by son of the Petitioner No.1/plaintiff and Respondent No.1 namely Wasim Akram (Respondent No.11). She further averred that in presence of Respondent No.1/defendant Hakim Khan, the petitioners/ plaintiffs, who are his wife and children, have no right to file any suit in respect of the disputed property.
Stance of the Respondent/defendant No.10 is that he purchased the shares of Respondents No.2 to 6 & 8 vide sale deed dated 22.10.2008 against sale consideration of Rs.43,76,350/- and the petitioners/plaintiffs have no concern whatsoever with the lands purchased by him.
5. Before proceeding with the judgment, it would be appropriate to highlight first the relationship between the parties. Petitioner No.1/plaintiff is wife of Hakim Khan (Respondent No.1/defendant) whereas the remaining petitioners including the Respondent No.11 namely Wasim Akram are their children. Respondent No.8/defendant is mother of Respondents No.1 to 7 whereas Respondent No.12/defendant is grandson (daughter's son) of the Respondent No.8. Respondent No.9/defendant has apparently no role in the present suit, however, he is husband of Respondent No.2 namely Mst.
Hamida and as well as father of Respondent No.12. Respondent No.10 is purchaser of a portion of the disputed property whereas Respondent No.11 is son of the Petitioner No.1 and Respondent No.1, who was charged for the murder of his uncle Ashfaq Khan and being absconder, was arrayed as defendant in the suit.
Record shows that the petitioners/plaintiffs have brought the present suit against the respondents/defendants on the basis of previous decrees in their favour especially a decree for permanent injunction in respect of the suit property. Copy of suit No.35/1 filed by the petitioners/plaintiffs is available on the record as Ex.PW-1/6 to 1/11 according to which the suit was ex parte decreed on 26.3.2008, however, the said ex parte proceedings were later on challenged and ultimately the same stood set aside on 10.12.2012 besides, the suit was afterwards dismissed on 19.2.2013. There are other documents available on the record as Ex.PW-1/2 to 1/4 which pertain to Family Suit No. 36/FC filed by the petitioners/plaintiffs against Respondent No.1 and his late brother for recovery of dower and a piece of land namely Banrgay which was also ex parte decreed in favour of the petitioners on 26.3.2008 but the said land namely Banrgay has not been included by the petitioners/plaintiffs in the list attached with the present suit. Hence, at present there is no order or decree of permanent injunction in the field in favour of the petitioners/plaintiffs in respect of the suit property. Moreso, the petitioners/plaintiffs within lifetime of the Repondent No.1/defendant who is the husband of Petitioner No.1 and father of rest of the petitioners/plaintiffs, have no locus standi to file any suit in respect of the entire legacy of late Muhammad Akram as his other LRs are co- sharers in the same legacy. So far claim of the petitioners/plaintiffs in respect of share of the Respondent No.1/defendant, if any, in the disputed legacy is concerned, record shows that the present suit is mainly for cancellation of deeds and the Respondent No.1/defendant has transferred no share which has been made disputed in the present suit.
6. No doubt, the disputed property is the legacy of late Muhammad Akram in respect whereof her widow i.e Respondent No.8 obtained a decree of title in her favour in Suit No. 48/1 of 2005 dated 29.6.2005 but the same has not been challenged on the grounds of collusion or fraud. Similarly, there is a partition deed available on the record as Ex.DW-5/1 in support whereof the concerned marginal witnesses have recorded their statements. The evidence available on the record shows that the property was initially partitioned between Respondent No.1 and his late brother Ashfaq Khan. It appears that due to involvement of the Respondent No.1 and his brother Ashfaq Khan in gambling and drug addiction, they were bent upon to sell the property against nominal rates and the Respondent No.8 got a decree in her favour in respect of the remaining legacy of late Muhammad Akram.
The question which needs to be resolved by this Court is whether or not the gift deed in favour of the Respondent No.12 and sale deed in favour of Respondent No.10 can legally be cancelled as prayed for by the petitioners? In the given circumstances of the case, only the co-sharers can legally challenge any deed whereby their interests in the co-ownership have been infringed and the petitioners/plaintiffs being not direct co-sharers in the legacy due to the presence of Respondent No.1 are not competent to ask for cancellation of said deeds. Therefore, the answer to the above question will definitely be in "no" because the Respondents No.2 to 6 & 8, being co- sharers in the legacy, were legally empowered to sell the same to Respondent No.10 vide sale deed dated 22.10.2008 (Ex.DW-1/4) and, similarly, the Respondent No.8 was competent to gift her land in favour of Respondent No.12. Hence, no decree can be granted in favour of the petitioners/plaintiffs for cancellation of the sale deed Ex.DW-1/4 and gift deed Ex.DW-7/3. So far as the distribution of legacy of late Muhammad Akram is concerned, there is no such question before this Court to resolve nor any issue beyond pleadings can be discussed by this Court in the present case.
7. So far as the legality or otherwise of the gift deed executed by the Respondent No.8 in favour of Respondent No.12 is concerned, record shows that the property transferred vide the gift deed Ex.DW-7/3 was the ownership in possession of Respondent No.8 on behalf of her late husband Muhammad Akram through Wasiyat Nama Ex.DW-4/1. The Respondent No.8 gifted the said property to her grandson (daughter's son) through gift deed Ex.DW-7/3 and possession thereof was also delivered on the spot. Learned counsel for the respondents/defendants produced a copy of compromise deed dated 05.5.2014 and contended that through this deed the Respondent No.8 has revoked the gift she had already effected in favour of the Respondent No.12. It is observed that introduction of an affidavit/compromise deed on behalf of Respondent No.8 Mst. Nasib Taja at the appellate stage regarding revocation of the gift has not been visualized by the precedents or the substantive law specially when she, being a donor, did not approach the competent Court for revocation thereof nor did she submitted a written statement to that effect. Record shows that the same plea was not taken by the petitioners/plaintiffs in their plaint, nor the same point was agitated before the learned trial Court nor any issue was framed in this regard, therefore, at this belated stage altogether a new case cannot be set up by the petitioners/plaintiffs at the revisional stage before this Court. Learned counsel for the petitioners placed reliance on the judgment 2010 SCM R 342 wherein the point of non-registration of gift deed has been highlighted.
He also referred to 01 -r-jA-%.A authored by Justice Tanzil-ur-Rehman and argued regarding the powers of the donor vis-a-vis revocation of the gift by the donor in his lifetime. So far registration of the gift deed in the instant case is concerned, according to Section 147 of the Muhammadan Law, the writing in respect of the gift deed is not essential, hence, there remains no question of its registration. The said section is reproduced herein below for the sake of convenience.
"147. Writing not necessary. Writing is not essential to the validity of gift either of movable or of immovable property".
This point has been enuciated by the august Supreme Court in its judgment reported as 2009 SCM R 623, the relevant portion whereof is reproduced herein below: "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 contention raised by learned counsel for the appellant. This Court in Maulvi Abdullah's case (ibid), while dealing with section 123 and 129 of the Transfer of Property Act, 1882 has held that a gift by a Muslim can be complete even without any writing and such gifts are expressly excluded from the operation of the Transfer of Property Act".
The gist of the above referred judgment wherein reliance was placed on the judgment rendered in Maulvi Abdullah's case, is that it is not necessary for Muslim donor to execute a proper deed for valid gift or to register the same.
8. Now coming to the second contention of learned counsel for the petitioners/plaintiffs that the donor in his/her lifetime can revoke the gift, no doubt a gift may be revoked even after delivery of possession, however, power of the Muslim donor in respect of revocation of a gift deed is subject to certain exceptions which have been laid down in Section 167 of the Muhammaden Law. Clause (b) to sub-section 2 of Section 167 is relevant in this regard which reads as: "167. Revocation of gift.--- (1)
(2) Subject to the provisions of subsection (4), a gift may be revoked even after delivery of possession except in the following cases--- (a)
(b) when the donee is related to the donor within the prohibited degrees; (c)
(d)
(h)
Record shows that the donor in the present case is Mst. Nasib Taja (Respondent No.8) whereas the donee is Muhammad Bashir (Respondent No.12), her grandson, and as such the donee being related to the donor within the prohibited decree, the donor Respondent No.8 cannot legally revoke the same gift. It is also observed and held that the petitioners/plaintiffs, being third party in the gift transaction, have no right to raise any objection with regard to nondelivery of possession of gifted property to donee. Reliance in this regard is placed on 2012 MLD (Lahore) 1545.
9. The upshot of the above discussion is that there is no illegality or irregularity in the impugned judgments of the learned Courts below nor any misreading or non-reading of evidence could be pointed out by learned counsel for the petitioners. Therefore, the instant revision petition is hereby dismissed being devoid of any force.
Similarly, C.Ms No. 118 and 506 of 2015 are also dismissed for having become infructuous.