' YAHYA AFRIDI, J.---This revision is directed against the judgment and decree of the learned Additional District Judge-III, Mardan dated 16.08.2008, vide which the judgment and decree dated 30.5.2007 of the learned Civil Judge-XII, Mardan, through which the declaratory suit of the petitioners was decreed, was set aside and suit of the petitioners was dismissed.
2. The petitioners-plaintiffs instituted a declaratory suit against the respondents-defendants, in the Court of Civil Judge-XII, Mardan, to the effect that the property measuring 1600 kanals, fully detailed in the heading of the plaint, situated in Mauza Babini, Tehsil and District, Mardan ("disputed property"), is the ownership-inpossession of the petitioners-plaintiffs according to Jamabandi for the year 1991-92. And mutation No,901 dated 9.10.1973, mutation Nos.939, 940 and 941 dated 24.5.1975, mutation No,1074 dated 20.6.1978, mutation No, 1191 dated 10.1.1980, mutation No, 1224 dated 10.9.1980, mutation 1248 dated 16.4.1980, mutation No,1249 and 1257 dated 16.4 .1981 , mutation No .1355 dated 30.12.1982, mutation Nos.1542 and 1543 dated 24.11.1985, mutation No,1573 dated 21.4.1986, mutation 1601 dated 5.1.1987 and mutation No, 1843 dated 18.7.1990, by Mst.Mahboob Sultana, or her attorney in favour of respondents-defendants are illegal having no legal effect upon the rights of the petitioners-plaintiffs; and that petitioners-plaintiffs also sought permanent injunction and possession of the disputed property, if they failed to prove possession of the disputed property.
3. The averments made in the plaint are that the disputed property was initially the ownership of Fateh Muhammad Khan, the predecessor-in-interest (grand father) of the petitioners-plaintiffs, who transferred the same to his daughter-in-law, Mst. Mahboob Sultana (step mother of the petitioners) through a registered dower deed/Kabinnamadated 09.09.1927 ("Kabinnama"), with a condition that Mst. Mahboob Sultana could use the disputed property in her life time or her second marriage, but she had no right of mortgage or sale and after her death the property would be devolved upon her male children; that the transaction was vide mutation No,23 dated 28.11.1927 incorporated in the revenue record by Fateh Muhammad Khan, in favour of Mst.Mahboob Sultana; that thereafter, the same was incorporated in Jamabandi for the year 1929-32 and mistakenly, the revenue staff showed Mst.Mahboob Sultana as 'full owner' instead of 'limited owner'; that Mst.Mahboob Sultana and her attorney/defendant No, 1, sold part of the disputed property through the impugned mutations, mentioned hereinabove; that husband of Mst.Mahboob Sultana, namely, Muhammad Ayub Khan and his father, Fateh Muhammad Khan, are dead; that Mst. Mahboob Sultana died issueless, while her husband Muhammad Ayub Khan has two sons (plaintiffs- petitioners) from his second wife; that the mutation and power of attorney in favour of defendant No, 1 by Mst.Mahboob Sultana are liable to be set aside on the ground that father-in-law could not give dower to his daughter-in-law; that according to Kabinnama, Mst.Mahboob Sultana was limited owner and not full owner; that mutations and power of attorney are based on fraud and collusion; and finally that Mst.Mahboob Sultana was ill and remained in coma for some ten years before her death.
4. The defendants were summoned, those who appeared in Court filed their written statement, while the rest were placed ex parte. The divergent pleadings of the appearing parties were reduced into the following issues:-
1. Whether the plaintiff has got the cause of action?
2. Whether the suit is within time?
3. Whether the plaintiffs are estopped from suing?
4. Whether the plaintiff is owner in possession ofthe suit land?
5. Whether mutation Nos.901 dated 9.10.1973, 939 to 941 dated 24.5.1975,1074 dated 20.6.1978, 1191 dated 10.1.1980, 1224 dated 10.9.1980, 1248 and 1249 dated 16.4.1980, 1257 dated 16.4.1981, 1355 dated 30.12.1982, 1542 and 1543 dated 24.11.1985, 1573 dated 21.4.1986, 1601 dated 5.1.1987, 1843 dated 18.7.1990 and registered power of attorney document No, 108 attested on 23.7.1960 on behalf of Mahboob Sultana in favour of defdt: No,1 are wrong, fraudulent, collusive, without consideration and against the law, and ineffective upon the rights of the plaintiffs?
6.Whether the plaintiff is entitled to the decree for declaration/:-- perpetual injunction and possession for? 7.Relief.
ADDITIONAL ISSUE.
8. Whether kabeennama dated 20.11.1927 was stipulated with the condition of life estate in fabour of Mst. Mahboob Sultana. If so, its effect?
5. Aftet recording evidence adduced by the parties in support of their respective claims,and hearing the lerned consed for the parties, the learned Civil judge-XII Mardan vide judgment and decree dated 30.05.2007 decreed the suit in favour of the petitioners-laintidds in terms:- " As sequal to my above discussion and discussion undder issues Nos. 5 and 8 the sadi deed is sllegal and void and the sidputed property as asmitted by he parties ws the ownership of one Fateh Muhammad Khan the predecessorinintertest of the plaintidds. Therefore, plauntidds are entitled to the decree as prayer for in paras os.1, 2 and 3 of the head note of the plaint.
Relief. The suit of the plaintiffs is decreed. There is no order as to costs. File be consigned to SRR, Mradan after its completion.
6.Feeling aggrieved from the said judgment and dectee of the learned Civil Judge-XII, Mardan, the respondents- defendants filed appeal before the learned which was accepted in the following words.
"During the course of arguments learned counsel for the appellants while, placing reliance on PLD 1972 (Peshawar) page 37, 2008 CLC page 803 and SCMR 2007 page 800 coupied with section 84 of Muhammadan Law to substantiate the contention about the fact that the transfer by way of dower favour of a particular woman cannot be subjected to any clog nor can the same be termed life estate alleging the transference to enjoy the fructose alone. The capability of father in law to effect transfer of property in favour of his daughter-in-law in lieu of her dower, nothing being available in rebuttal, therefore, while deriving wisdom from the aforesaid case law, it is held that transfer in ' favour of Mst. Mehboob Sultana by the grandfather of respondents/ plaintiffs could not ' be termed creation of limited estate and was transfer of complete ownership in her favour, hence, subsequent sale and gift transactions by Mst. Mehboob Sultana herself or on her behalf are genuine, which also remained unchallenged from the father of respondents/ plaintiffs, who was no one else but husband of Mst.Mehboob Sultana and the said transactions took place during his lifetime.' Similarly, the remaining portion of the suit property not disposed of by Mst. Mehboob Sultana is declared as her legacy and appellants Muhammad Riaz Khan and Yagoob Khan being her real brothers besides other brother and sisters if any shall succeed to the same as Mst. Mehboob Sultana was admittedly issueless and her husband is also admittedly dead, therefore, her inheritance shall devolve upon her two brothers i.e, appellants besides other brothers and sisters if any more and not imp leaded in the present its.
For the foregoing reasons both the appeals are accepted and consequently, the suit filed by the respondents/plaintiffs is hereby dismissed. Parties to bear their own costs. Requisitioned record be returned, while file of the court be consigned to record room."
Hence, the revision petition in hand.
7. The main thrust of the worthy counsel for the petitioners was that the ratio decided of the judgment rendered by this Court in Saranjam Khan's case (PLD 1972 Peshawar 37), has not been correctly appreciated by the appellate Court. The gift in the present case was regarding fructose of the disputed property and not its corpus, which can be clearly ascertained from the Kabinnama and the incorporation thereof in the revenue record, especially, the findings of the revenue officer and the Registrar; it was further contended that successive entries in the revenue record in favour of Mst.Mahboob Sultana, did not confer any title upon her, and in fact, the gift was duly inked, which was thereafter registered and hence would. have precedence over any other evidence, and in particular the entries in the revenue record; that despite the clear stipulation in. the Kabinnama for non-alienation of the disputed property, and in particular the endorsement so made by the Sub- Registrar at the time of registration of the Kabinnama, would expose all transfers made by or on behalf of Mst.Mahboob Sultana without lawful authority and a nullity in the eyes of law; that the purchaser of the .said property could not claim any rights or protection under sectidn 41 of the Transfer of Property Act, 1882; and that Kabinnama clearly stipulated that the legal heirs of Fateh Muhammad Khan, being the present petitioners, would inherit the disputed property after Mst.Mahboob Sultana was to expire and thus the gift of the usufruct of the disputed property terminated. In support of his contentions, the worthy counsel for the petitioners placed reliance on Mst. Bibi Alam Taj and other's case (PLD 1963 (W.P) Pesh 199), Sar Anjam Khan's case (PLD 1972
(Pesh) 37)(Para 10), Hamida's case (PLD 1975 (SC) 624), Suba's case (1992 SCMR 1721), Muhammad Ali's case (PLD 1994 (SC) 245), Mool Chand's case (PLD 1994 (SC) 462), Abdul Hameed's case (PLD 1997 (SC) 730), Fateh Muhammad's case (1982 CLC 2082), Ali Akbar Khan's case (PLD 1986 (Pesh)-01), Ismail's case (1990 SCMR 1667), Muhammad Nawaz and others's case (2005 SCMR 710), Abdul Hamed's case (PLD 2008 (SC) 140), and Mosam Khan's case (2012 CLC 1944)10).
8. In rebuttal, the worthy counsel for respondents Nos. 1 and 2 vehemently opposed the contentions of the worthy counsel for the petitioners and asserted that the Kabinnama clearly gifted the corpus of the property to Mst.Mahboob Sultana and thus, any stipulation provided therein barring her from alienation or impairing her right as a complete owner was void, as was clearly enunciated by this Court in Saranjam Khan's case (supra); that the Kabinnama was not a gift deed, but in fact a dower deed; and that the same provided for a contingency, which according to Muhammadan Law was not permissible, as provided under sections 163 and 164; that there is presumption of truth attached to the successive and long standing' revenue entries, which cannot be agitated by the petitioners at a belated stage, especially when their father during his life time did not oppose or resist the action of Mst.Mahboob Sultana, when the contested alienation were being made. The worthy counsel for respondents 1 and 2 placed reliance on Farid (represented by legal heir's case (PLD 1970 Lahore 502), Sar Anjam Khan's case (PLD 1972 (Pesh) 37), Muhammad Shabir Ahmad Khan's case (PLD 2001 SC 18), Muhammad Zubair and others's case (2005 SCMR 1217), Anjum Mahmood and 5 others's case (2006 CLC 876), Ch. Muhammad Ashraf's case (2008 YLR 650), and Maj. Rifat Nawaz's case (2008 CLC 803).
9. Valuable arguments of the learned counsel for the parties heard and the record perused with their able assistance.
10.This is a very interesting case. Both parties are seeking reliance upon the law laid down by this Court in Saranjam Khan's case (supra). They also agree that the true intent of the donor regarding the nature of the transfer can be ascertained from the terms stipulated in the Kabinnama. And finally, the parties are also in accord that in case the transfer intended was that of the corpus of the disputed property, then the clog on the authority of the done, limiting the same only to her life time would be void. Whereas, in case the intent of the donor was to transfer only the fructose of the gifted property, then the donee would have limited interest in the disputed property and condition barring her from authority thereon during her life time would be valid.
11. Now, before this Court proceeds any further in reviewing the terms of the Kabeennama, it would be very pertinent to understand the legal purport of a gift, and that too made to a woman on her marriage in lieu of her dower.
' Let us start with some of the illustrating verses of the Holy Quran, as translated in english by A.Yusuf Ali, they are as under:- "And give the women (On marriage) their dower as a free gift; but if they, Of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer (IV: Q)."
' "O ye who believe! You are forbidden to inherit Women against their will. Nor should ye treat them with harshness, that ye may take away part of the dower ye have given them,-except where they have been guilty of open lewdness, on the contrary live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and Allah brings about through it a great deal of good. (IV:19)."
' "But if ye decide to take one wife in place of another, even if ye had given their latter a whole treasure for dower take not the least bit of it back; would ye take by slander and a manifest wrong? (IV:20)."
"And how could ye take it when he have gone in unto each other; and they have taken from you a solemn covenant? (IV:21)."
' The matter of gift to a woman, and her rights of receiving dower, has been a matter of great attention of the Holy Prophet, as recorded in the Ahadiths compiled and recorded by eminent jurists. Let us review some of the illuminating Ahadiths on the matter, as recorded by Sahih Muslim; "3972.Jabir b. 'Abdullah (Allah be pleased with them) reported Allah's Messenger (may peace be upon him) as saying: whoever a person is gifted a life grant, then it is for him (belongs to him and to his posterity), for it belongs to him who has been given it. It would not return to him who gave it for he conferred it as a gift (it becomes the property of the donee and as such) rules of inheritance will apply to it.
3973.Jabir b. 'Abdullah (Allah be pleased with them) reported Allah's Messenger (may peace be upon him) as saying: He who conferred a life grant upon person, it becomes his possession and that of his successors, for he surrendered his right in that by his declaration. (This property) now belongs to one to whom this life long grant has been made, and to his successors. Yahya narrated in the beginning of his narration. Whatever, man is given a life grant, then it belongs to him and his posterity.
3977. Jabir b. 'Abdullah (Allah be pleased with him) reported Allah's Messenger (may peace be upon him) say saying: Life grant is for one upon whom it is bestowed".
' Gift has also been commented upon in "Hedaya" by Charles Hamilton (1975 Edn) at pages 488 and 489 in terms that:-- "If a person makes a gift a house to another, on condition that the donee give back a part of it, - - or, if a person make a gift of his house in charity to another on condition that the receiver of the charity give him something in exchange for part of the house,--such gift or charity be valid: but the condition annexed is invalid, because it is contrary to the spirit or internment of the contract: and neither gifts nor charities are affected by being accompanied with an invalid condition because the Prophet approved of Amrees (gifts for life), but held the conditions annexed, to them by the granter (namely, the condition of restoration upon the demise of the grantee) to be void Case of life grants, - An Amree: or life grant, is lawful to the grantee during his life, and descends to his heirs, because of the tradition before quoted... Besides, the meaning of Amree in a gift of a house (for example) during the life of the donee, on condition of its being returned upon his death:-The conveyance of the house, therefore, is valid without any return: and the condition annexed is null, because the Prophet has sanctioned the gift in this instance, and annulled the condition, as before mentioned. An Amree, moreover, is nothing but a gift and a condition: and the condition is invalid: but a gift is not rendered null by involving an invalid condition, as has been already demonstrated.
' Similarly, Digest on Muhammadan Law by B.E. Bailie, describes and explains the concept of "Gift" in Islamic Jurisprudence in terms that:-- "All 'our' masters are agreed that when one has made a gift and stipulated for a condition that is fasid, or invalid, the gift is valid and the 'condition void; as if one should give another a female slave, and stipulate 'that shall not sell her, or 'shall make her an com-i-wulud', 'shall sell her to such an one' or 'restore her to the giver after a month,' the gift would be valid, and all the conditions void. Or . if one should give a mansion, or bestow it in alms, on condition 'that the donee shall restore some part of it,' or 'give some part of it in lieu, or exchange,' the gift would be lawful and the condition void. It is general rule with regard to all contracts which require seisin, such as gift and pledge, that they are not invalidated by vitiating conditions."
' We can also seek guidance from the treatise on Muhammadan Law by D.F.Mulla, wherein in paragragh-164, a gift with an condition is described in terms:-- ' "When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no conditions were attached to it. "
12. During the pre-partition era, it is noted that gift has also been a matter of extensive legal discourse in various judgments handed down by the superior Court. The first authoritative decision, which was brought to the attention of this Court was of Nawab Umjad Ali Khan's case (1867 Moores Indian Appeal cases 517). In this case, the gift of government promissory notes by a father to his son was a matter of dispute. There was a stipulation for the interest on the said securities to be applied for religious and charitable purposes. The worthy Privy Council concluded that the arrangement between the father and son constituted a valid gift, as the corpus of the securities was handed over to the son and thus, the gift was complete. As far as, the stipulation of payment of interest for charitable purposes, it was held to be valid, being temporary, and enforceable against the son during his life time. This view was followed by Privy Council in Wazir Hassan 's case (AIR 1925 Oudh 568), Amjad Khan's case (AIR 1929 PC 149) and finally, explained in Nawazish Ali Khan's case (AIR 1948 PC 139). It is in this case that, the Privy Council very clearly elaborated upon the concepts of gifts in Islamic Jurisprudence. The relevant extract is absorbed in para-19, as under:-- "What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the fructose in the property (manafi). Over the corpus of property the law recognizes only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interest limited in point of time can be Created in the fructose of the property and the dominion over the corpus takes effect subject to any such limited interests' Their Lordships feel no doubt that in dealing with a gift under Muslim law, the first duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the fructose, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest." (emphasis provided)
13. After partition, the legal facets of Hiba, as formulated by Privy Counsel in Nawazish All Khan's case (supra), were further developed by the superior Courts of our country. Some of the celebrated decisions in this regard are Mst.Inayat Begum's case (PLD 1953 Peshawar 1), Dana Meah Choudhury's case (PLD 1955 Dacca 39), Wall Muhammad's case (PLD 1958 (WP) Lahore 198), Mst.Bibi Alam Tars case (PLD 1963 Peshawar 199), Khuda Bakhsh's case (PLD 1968 Lahore 1001), Mst.Khan Bibi's case (PLD 1969 Lahore 339), Farid's case (PLD 1970 Lah 502), Saranjam Khan's case (PLD 1972 Peshawar 37) Said Akbar's case (PLD 1975 SC 37), Ch.Zahur Bahl's case (PLD 1975 SC 383), Fateh Muhammad's case (1982 CLC 2080), Mst.Kaneez Bibi's case (PLD 1991 SC 466), Abdul Hameed's case (PLD 1997 SC 730), Mst.Samia Naz's case (2002 SCMR 164), and Mst.Bibi Alam's case (2005 SCMR 714).
14. Interestingly, the concept of corpus., despite being most crucial in determining the true nature of the Gift, has no definite legal definition. This being the position, we will have to resort to the ordinarily dictionary meaning of the said term, which include; The Oxford English Reference Dictionary "1. A body or collection of writings, texts, spoken material etc. 2. A distinctive structure in an animal body."
The Australian Oxford Dictionary (Second Edition)
"1. A body or collection of writings, texts spoken material etc. 2. A structure of a special character in the animal body."
Oxford Thesaurus of English-Third Edition ' "collection, compilation, body, entity, whole, aggregation, mass".
Blacks Law Dictionary (Eight Edition) (Latin "Body") "the property for which a trustee is responsible; the trust principal, Also termed res; trust estate; trust fund; trust property; trust res; trust".
Legal and Commercial Dictionary (The Law Lexicon).
"A body; human body; an artificial body created by law, as a corporation; a body or collection of laws; a material substance; something visible and tangible, as the subject of a right; something having local position as distinguished from an incorporeal physical substance as distinguished from intellectual conception; the body of an estate, or the capital of an estate."
Corpus Juris Secunia (Volume Twenty)
' "Latin, literally a "body" hence a human body; something having local position, as distinguished from an incorporeal right; also an artificial body created by law; and also a body or collection of laws; an aggregate or mass (of men, laws, or articles); physical substance, as distinguished from intellectual conception. In a derived but somewhat different sense, the body, or the capital of an estate; the body of the estate, devise, or bequest from which the income is derived; the principal as distinguished from the income derived therefrom; also the original principal plus those increases which legally attach thereto.
' The word occurs frequently in the civil law in the sense of a substantial or positive fact, as distinguished from what is equivocal and ambiguous; a corporeal act of any kind, as distinguished from animus or mere intention, on the part of him who wishes to acquire a thing; whereby he obtains the physical ability to exercise his power over it whenever he pleases."
Thus, keeping in view the above definitions, corpus in relation to a gift of an immovable property would be constituted, on the delivery of the entire body of the gifted property to the donee and on him having complete authority thereon and that B too, to the exclusion of any other person including the donor. However, it would also be important to note that delivery of possession, being the essential ingredient of gift, has been viewed rather liberally in favour of a donee-wife. In this regard, the Apex Court in Mst. Kaneez Bibi's case (supra), while discussing gift made by a father-in- law to his daughter-in-law in lieu of marriage has discussed the requirements of delivery of possession observed that:-- "The plethora of case-law on the question of the delivery of possession in cases like the present one; when the husband is the donor for a wife living with him, when the father is the donor for a daughter and/or a minor living with him or a father-in-law for a daughter-in-law and/or her husband living with him, was not at all noticed. It may, be straightaway remarked that in such like cases strict proof by the donee of transfer of physical possession, as in other type of cases, is not insisted upon. To cite only one example; the Privy Council three quarters of a century ago in the case of Ma Mai and another v. Kallandar Ammal AIR 1927 Privy Council 22 had observed that in the case of gift of immovable property by such a close relation of the female as are mentioned above, once mutation of names has been proved the natural presumption arising from the relationship existing between the donor and the donee, the donor's subsequent acts with reference to the property would be deemed to have been done on behalf of the donee and not on his own behalf. This line of authority is so woven in a chain which is very rarely broken.
The obvious consensus has to be followed and adopted in this case also, there is absolutely no reason for departure. Whatever, Atta Muhammad, the father-in-law of Mst. Kaneez Bibi did either for cultivation of the gifted land or for collecting the share/produce from the tenants or even changing the tenants would be presumed as acts done or steps taken on behalf of the donee, daughter-in-law. In extremely rare cases where the donee lady is a very active member of the society, may be an urbanized educated one, managing her affairs effectively herself the position might be different;but there is nothing in this case to suggest such a position of the donee and/or her conduct. From the appearance of the parties also the above supposition gets strengthened, although it is not necessary as a proof."
(emphasis provided)
15. While going through the precedents on the issue, it was noted that there was a difference of opinion regarding gift being made in lieu of dower or marriage to be Hiba-bil-Ewaz or otherwise.
The Lahore High Court in its judgment rendered in Khuda Bakhsh's case (supra), explained the various types of Hiba-bil-Ewaz and regarded gift in lieu of dower or marriage to even come within the purview of a false Hiba-bil-Ewaz. While, this Court in Saranjam Khan's case (supra) differed with this view and opined the same not to a Hiba-bil-Ewaz. However, this matter has now been settled by the Apex Court in Kaneez Bibi's case (supra), wherein it was finally resolved and settled that:-- "This controversy was examined by Mr.. Justice Karam Elahi Chauhan in the context of the two types of gifts in cases like the present one, those in lieu of dower simplicity and those in lieu of marriage. It appears that at one stage the learned Judge though as if both these cases might be covered by fake Hiba-bil-Ewaz, but at another stage it was treated as real true Hiba-bil-Ewaz, parti-cularly one in lieu of marriage. In the changed circum-stances since 1969, vis-a-vis, our Constitutional set up and thrust towards Islamic principles for guidance, would lead us towards thinking that it would be true Hiba-bil-Ewaz. That being so, we reiterate the view already taken in the case of Murid Hussain that in cases of Hiba-bilEwaz in lieu of dower and/or marriage, physical delivery of possession would not be necessary so as to complete the gift." (emphasis provided) 16.One other very important aspect, which this Court would like to highlight, is that, whenever a gift is being made to a bride, the sanctity attributed to the said transfer has been held and placed at a much higher legal pedestal than a gift made to any other person. In this regard, we have the injunctions of the Holy Quran, and the consistently narrated Ahadiths, which have been duly narrated herein above. This special protection and sanctity rendered to a gift to a bride has been clearly explained in Saranjam Khan's case and elaborated in detail by the Apex Court in Kaneez Bibi's case, (supra). Their lordships of the Apex Court were of the view that; "The condition under attack in cases of gift to a bride or bride to be or a wife, would be against public policy, as envisaged in Islam. As an illustration; in this very case it appears the lady and/or her parents had agreed to the marriage only on the assurance of making of the gift. After making the gift if she is deprived of its real worth, then she would be deemed to have been inveigled into an agreement/ contract of marriage, under a representation about a gift which could not be treated as real."
17.In view of the above legal discourse, it may be appropriate to summarize the same in terms:- I. In view of Article 2A read with Article 227 of the Islamic Republic C of Pakistan, 1973, it is but a command of the Constitution, that not only are the existing laws required to be brought in conformity with the injunction of Islam as laid down in Holy Quran-and Sunnah, the same have to be applied in interpreting all laws <u>and instruments,</u> II. That besides a gift of the corpus, the Islamic Law also recognizes a gift of the usufruct of the property; III. That if it was found that what had been gifted was the corpus of the property then any condition D attached to such a gift would be illegal while the gift itself would be perfectly valid.
IV. If corpus of the gifted property is not transferred to the donee by the donor, then any condition E limiting the authority of the donee over the gifted property can validly be restricted or time bound.
V. Property transferred in lieu of dower and or marriage is by now F settled to be "Hiba bil ewaz".
VI. The property transferred in lieu of dower and or marriage, the physical delivery of possession G thereof would not be necessary so as to complete the gift.
VII.Any condition on a gift to a bride or a bride to be or a wife would be against a public policy and injunctions of Islam.
VIII. That the mere' fact that the gift was till life time or till Nikah would not be sufficient by itself to I hold that the gift was only of the usufruct and not of the corpus.
IX. That in cases of gift to close family members including wife, once the gift is proved to be officially recorded in the revenue record or with the registering authority, then the natural presumption arising from the relationship existing between the j donor and the donee, would be that the donor's subsequent acts with reference to the gifted property would be to have been done on behalf of the donee and not on his own behalf.
X. In order to determine whether corpus or the usufruct of the gifted property has been transferred to the donee would depend upon the true intent of the donor discernible from the oral and documentary evidence produced by the parties.
XI. That no strict rule can be fixed for determination as to whether corpus of the gifted, property has been transferred or otherwise. The factors to be considered to decide the same would include; -the title of the document, -the terms stipulated in the instrument transferring the gifted property, -the incorporation of the gift in the revenue record, -the entries following the transfer as reflected in the revenue record, -the actions and inactions of the donor and the donee, -the authority exercised over the gifted property i.e, the receiving of rent, payment of utilities and taxes.
18. The above being the legal position, it would now be appropriate to review the contents of the Kabinnama (Exh. PW2/1). The english translation of the same, as recorded by the Draftsman of this Court, is as under:- Kabeen Nama "I Fateh Muhammad Khan son of Khan Shad Muhammad Khan, caste Afghan Khankhel, Profession landlord, declare that, the Nikah of Mst. Mehboob Sultan d/o Khan Bahader Saad Ullah Khan rio Umarzai, is solemnized in accordance with "Shariah" with my son Muhammad Ayub Khan, therefore, in lieu of dower of lady named above of landed property measuring 400 "Jerab" Shahnehri (irrigated) situated in revenue estate Babani, on which a separate "Banda" known as Fatima Koroona alias Noshali Kallay with the boundaries as, North other landed property of the deponent, South, land of revenue estate of "Taoos Banda" ownership of Nawab Muhammad Akbar Khan Sahib Hoti, East, metal road of District Board known as road "Sudham"
West, Canal Shakh No,3 middle Kalpani Lower Swat, <u>which is cultivated through tenant and occupancy tenant, and ownership in possession of the deponent, transferred along with all rights except the rights of "Khani" along with following conditions; that transferee will enjoy the benefit of the property in her life time, while on her death her male issue will be entitled to receive the benefits of the above mentioned landed property. Apart from above mentioned landed property, entire golden ornaments and clothes which were prepared and given to her are also in lieu of her dower and her ownership. Further for residence one "Pakka" and "Kham" constructed house, wherein mother of Muhammad Ayub Khan is residing, with the boundaries as, North, orchard of the deponent, South thoroughfare, East, houses of the tenants of the deponent, West "Pakka" residential house of the deponent is also given in lieu of Haq-e - Mehr to the above named lady. Apart from the above Rs, 100/- as monthly maintenance will be paid by me to the above named lady.Therefore this document as"Kabeen Nama" is scribed and I the death of Mst. Mehboob am bound to register the same. Copy of the document is retained by the deponent.
(14th July, 1927)" (Emphasis provided)
The careful reading of Kabinnama reveals that Fateh Muhammad Khan, father- in-law of Mst.Mehboob Sultana, had transferred to her four different properties; firstly, 400 Jareeb (1600 kanals) of Shah Nehri land in revenue estate Babani Mardan, Secondly, gold clothes, thirdly, residential house and ornaments and finally, Rs,100/- per month to be paid for maintenance of her day to day expenses. The first three properties were gifted in lieu of her dower. While, the dispute in hand Mst.Mehboob Sultana was being impaired only relates to the interest transferred in the immoveable property measuring 400 Jareeb. The essential particulars of the stipulations relating thereto, as stated in the Kabinnama, were in terms:--
(i) "Immoveable property transferred to Mst. Mehboob Sultana in lieu of dower.
(ii) The immoveable property comprising of 400 Jareeb Shah Nehri irrigated, which was cultivated through tenants and occupancy tenants.
(iii) The ownership, possession and all rights arising there from were transferred to Mst.
Mehboob Sultana excepts the rights of "Khani".
(iv) Mst. Mehboob Sultana was to enjoy the benefit of the property in her life time.
(v) The benefits of the property after Sultana was to be inherited by her male issue."
19. Now, keeping in mind the aforementioned terms of the gift, what is crucial to determine is whether the transfer of interest in the gifted property by Fateh Muhammad Khan, the donor was intended to convey the entire corpus of the gifted property or only its fructose.
As stated earlier, this crucial issue would have the ultimate deciding effect upon the outcome of the present petition. In case, this Court comes to the conclusion that the transfer of the gifted property was for the entire that case any restricting condition contained in the Kabinnama, whereby the authority of would have to be declared as void.
20. Let us first, consider the stipulations of the Kabeennama rendering authority to the donee. The same reads:- not mortgaging or further transferring the stipulations of the Kabeennama rendering enjoyment of the benefits of the said authority to the done. The same reads:-- propertyduring her life time. "ownership in possession of the deponent, transferred along with all rights except the rights of khani ".
' Through this stipulation, Fateh Muhammad Khan has transferred to Mst. Mehboob Sultana, all his interest in and arising from the gifted property except his customary status of a Khan, which he retained for himself. Thus, from the language of the Kabinnama, the intention of the donor was to convey to the donee, all interests and rights arising therefrom. Coupled with this clear stipulation, the entries in the Jamabandees, which immediately followed the registration of the Kabeennama, and thereafter consistently recorded has entered Mst.Mehboob Sultana, as the full owner of the disputed property. Her title in the revenue record remained unchallenged by the donor, his son Ayub Khan or any other person during their and her entire life. The effect of this silence on their part is more deafening, as admittedly'' Mst. Mehboob Sultana has during her life time transferred part of the gifted property to others, and that too without any protest or challenge by any one including the donor and his legal heirs during their or her life time.
21. No doubt, the Kabinnama contains stipulations, which restricts the authority of the donee over the gifted property and to enjoy the benefits therefrom during her life time. This transfer of interest in the gifted property, at least during the life time of the donee was complete, and that too, without any reservation or inclusion of another. Moreover, what is also interesting to note is that, there is no express stipulation for not mortgaging or further transferring the enjoyment of the benefits of the said property during her life time.
22. This would take us to another restricting stipulation of the Kabeennama; which reads:-- ' "While on her death, her male issue will be entitled to inherit the same".
' This condition is also very crucial in determining the true intention of the donor. By doing so, the donor has expressed his intention of constituting a fresh stock of decent in respect of the gifted property, which would be different from the one, had there been no such stipulation or gift. This stipulation clearly mitigates the intended transfer being temporary, and that too being restricted to its usufruct. In similar circumstances, the apex Court in Said Akbar's case (PLD 1975 SC 377), has considered such a stipulation to be crucial in determining the gift to be that of the corpus, and not of the usufruct of gifted property. The apex Court explained the same in terms that:-- "Not only that the word is followed by a declaration by the expectant that henceforward he and his heirs will be completely divested of any right whatever in the land and then follows a statement as to the real motivation for making the gift namely the impending marriage of the donee with Said Afzal. The further provision which also goes a long way to demonstrate that the intention was to create a gift of the corpus and not of mere usufruct of the property is that Mst. Totia Begum was constituted fresh stock of decent in respect of the property which clearly militates against life estate. The instrument expressly provides that on her death the property will devolve upon her husband and any children born out of the wedlock who were the persons entirely different from the line of heirs of the donor, under the Muslim Law of inheritance.
Therefore, upon proper construction of the instrument we have no doubt whatsoever that the learned Judge in the High Court came to the right conclusion that the gift in favour of Mst. Totia Begum was corpus of the property, which constituted her to bean absolute owner of the property, and, there-fore, the condition prohibiting the sale or mortgage of property by her during her lifetime became void.
(emphasis provided)
23.This Court is also alive to the remarks recorded by the Sub-Registrar at the time of registration of the Kabinnama. However, the same are attributed to certain letters, which were not produced in evidence. Hence, the veracity thereof and its effect in the face of the consistent and long standing entries of complete owner in favour of Mst. Mehboob Sultana in the Jamabandees, and that too without any protest by Fateh Muhammad Khan or any other person, during the life time of the donor and the donee, would be crucial and of no legal avail to the present petitioners.
24.Thus, the accumulative effect of the stipulations regarding the transfer of interest arising from the disputed property being complete except that of Khani; no evidence produced by the petitioners denying the possession or ownership of the donee; the long standing consistent entries of ownership and possession in favour of Mst. Mehboob Sultana, in the revenue record, without any protest or challenge made by the donor or any other person on his behalf, during his life time; and the fact that part of the disputed property was transferred through mutations, and that too without any protest by the donor or any person on his behalf and that too during his life time; the stipulation of male lineage to inherit, would all surely constitute the clear intention of the donor to pass on the complete and absolute corpus of the disputed property to Mst. Mehboob Sultana. This being so, the stipulation of her enjoying such benefits during her life time would be vioid, while transfer being valid and lawful.
Accordingly, for the reasons stated herein above, this Court is in accord with the conclusion reached by the Appellate Court in accepting the claim of the present respondents. Thus, the findings of the Appellate Court warrants no interference by this Court in its revision jurisdiction. This revision petition is thus, dismissed with no order as to costs.