' ABDUL LATIF KHAN, J.---This civil revision has been filed against the judgment and decree dated 24-4-2012 passed by the learned Additional District Judge/Izafi Zilla-II Qazi, Swat, whereby he dismissed the appeal of plaintiff-petitioner and maintained the judgment and decree dated 30-6- 2011, passed by learned Civil Judge/Illaqa Qazi-II, Swat.
2. Learned counsel for petitioner contended that the Courts below have passed the impugned orders totally in disregard of the law applicable to the instant matter and have not appreciated the evidence in accordance with law. It is contended that the Courts below have not scrutinized the available evidence in true perspective and the application moved by the petitioner before the Court of appeal for recording of additional evidence as required under Order XLI, Rule 27 of C.P.C.
Was wrongly rejected the same, despite the fact that it was submitted that the marginal witnesses were not available at the time of recording of evidence in the trial Court, as were abroad and when they returned back, the "Us" was before the appellate Court and being a Court of appeal had ample powers to let the petitioner for recording of additional evidence to arrive at to just and correct conclusion in accordance with law. It is added that application was not decided separately rather the same was turned down in the impugned judgment without assigning any reasons in a slipshod manner and, as such, findings being bad in law are not maintainable.
3. As against that learned counsel for respondents contended that the Courts below have rightly decided the "Us" with reasons and not committed any illegality and passed the impugned judgments in accordance with law. He added that inheritance mutation was attested in accordance with law and claim of the petitioner that the property was the share of husband of the petitioner was not correct rather her husband was owner to the extent of 1/3 share out of 31-kanals 2-marlas in Khasras Nos.1407, 2553 and 2740 whereas to the extent of 1/4 share out of 1/12 share she is not exclusive owner of the property and plaintiff failed to prove her entitlement as claimed in her plaint.
4. I have heard learned counsel for the parties and perused the record with their able assistance.
5. The perusal of record reveals that plaintiff have filed a suit to the effect that she is owner of the property measuring 11-1/2 marlas by dint of deed dated 30-6-2004 and defendants have got no concern with the suit property and also sought for cancellation of inheritance mutation No,777 attested on 11-9-2006. It was averred that the property was given to her in lieu of dower by Muhammad Sher Ali Jan and was partitioned with other owners/brothers of the husband of the plaintiff. The defendants were summoned and only the defendant No, 16 filed written statement, while rest of the defendants did not contested the suit. It is averred in the written statement by defendant No, 16 that husband of the plaintiff was owner in Khasras Nos. 1407, 2553 and 2740 out of total property measuring 31-kanals 2-marlas to the extent of 1/4 share out of 1/12 share. It was further averred that the property was originally owned by Miangul Bacha son Said Ahmad Shah and through private partition, it was devolved in favour of his four sons namely Said Mahmood Shah, Abdullah Shah, Muhammad Sher Ali Jan and Muhammad Zahir Shah.
6. The plaintiff produced Hazrat Younas, A.D.K, Swat as PW-1, who has produced mutation deed No,777 dated 11-9-2006. Halqa Patwari was examined as PW-2, who has produced revenue record.
Ali Muhammad attorney of the plaintiff/petitioner has deposed as PW-3, who has reiterated the averments made in the plaint and stated that the property was owned and possessed by Muhammad Sher Ali Jan, who had transferred it to the plaintiff in lieu of dower amount vide deed dated 30-6-2004 and since then she is owner in possession of the property. He was subjected to lengthy cross-examination but nothing adverse to the stance of plaintiff has been brought on record. Muhammad Usman, appeared as PW-4, who has posted "lqrar-Nama" dated 30-4-2004 as Exh.PW-4/1, he was witness to the "lqrar-Nama" and has verified his signature on it, who was also scriber of the said document, this witness too was subjected to taxing and searching examination but of no avail to the defence. Usman All was examined as P.W.5, who fortified the stance of the plaintiff/petitioner. The perusal of the deed reveals that Muhammad Sher Ali Jan son of Miangul Bacha has transferred his share of the property in the name of his wife (plaintiff/petitioner) in lieu of dower. A look of the same reveals that it was grant/gift on behalf of husband in favour of his wife after the marriage as dower was outstanding against him as it is not a sale, therefore 'stricto sensu' examination of the witnesses was not necessary and matter being between the spouses, the husband has given his own share in favour of her wife excluding the shares of others i,e, defendants, which neither required scribing of any document nor it is to be registered, as the gift can be given even orally as per "Muhammadan Law". In fact gift is transfer of the property by one person to another without any exchange or consideration and accepted by or on behalf of the latter. The intention of the donor must be specified and clear, looked into. No specific form is required for a valid gift and writing is not necessary to validate the gift. Though word "gift" has not been mentioned in the document, however, in peculiar circumstances of the case, the use of specific language/form is not to be seen, as not required rather intention of the donor has to be looked into. The recital of the document has to be seen, which, in the instant case constitute a valid gift. Grant of land by husband in lieu of dower requires no documentary formalities and the widow for practical purposes would be the owner of property given to her in lieu of her dower. In the instant case, husband of the petitioner had given the property in her favour in lieu of dower, as they were issueless and the respondents are the brothers and legal heirs of deceased brother and have not contested the matter except defendant No, 16 Muhammad Zahir Shah alias Kharoni, he is brother of the deceased and got inheritance mutation attested in his favour out of the legacy of his brother, as he was issueless and deprived the petitioner from the property, which was transferred in her favour by her husband vide dated 30-4-2004 as dower deed and keeping in view the peculiar circumstances of the matter DW-1, Rahat Shah son Zahir Shah, who happens to be attorney of defendant No,16 deposed that no property was transferred in the name of petitioner by his uncle.
The question is that why this witness has deposed contrary to the stance of the petitioner, which relates to the matter between her and her husband, which is an indoor issue and the husband was under obligation to transfer the property in lieu of dower to his wife, so this witness is not in position to deny the existence of document or termed it as factitious and irrelevant. The reason is obvious that the defendant who is refuting the deed, the brother of deceased/husband of the petitioner i,e, defendant No,16 would become entitled to get share out of the legacy of his brother and would otherwise not entitled to get it if the deed prevails. DW-2, Saleem Ahmad was examined, who is not related to the parties and would not be in position to fortify or deny the deed executed between husband and wife. Similarly Amir Zarin, .DW-3, is also not related to the parties and has no "locus standi' to depose against the relationship of husband and wife qua execution of document in lieu of dower.
7. It was submitted by the counsel for petitioner that an application was moved for production of additional evidence before the Court of appeal, which was turned down in slipshod manner by dint of impugned order and not disposed of prior to passing the impugned order and claimed it as illegality, an application to this extent has also been moved before this Court on the ground that the witnesses of the deed were abroad and not available at the jurisdiction of Court, therefore could not be examined before the trial Court, however during the course of appeal, they were available but not let to be examined by the Court of appeal and even today they are ready to be examined and to this extent an application has been moved before this Court. The scriber and witness of the document was examined and other two witnesses, though had not put their signatures on the document, were also examined, who have fully fortified the claim of plaintiff/petitioner and in peculiar circumstances of the case the document stands proved and .Application becomes infructuous.
8. The Courts blow have not considered the matter with conscious application of independent mind with special reference to the peculiar circumstances of the case that too when all other brothers and legal heirs have not turned up nor contested the case except defendant No,16 whereas inheritance mutation has been attested in the name of all of the brothers of the deceased, husband of the petitioner, which shows that only defendant No,16 remained interested in denying her claim and got attested inheritance mutation' in their favour, which is not in line with law, the same is hereby annulled.
' For the aforementioned reasons, the instant petition is allowed, judgments and decrees of Courts below are set aside and the suit of plaintiff- petitioner is decreed only to the extent of share of her husband Muhammad Sher Ali Jan in terms of deed, EX-PW-4/ J. Order accordingly.