MUHAMMAD AMEER BHA TTI, J.--- This single judgment shall dispose of Civil Revision Nos.752 & 753 of 2012 having the same title, 'Allah Rakha and another vs. Shahnaz Bibi' , as both these revision petitions involve common question of law and facts and has also been filed against the consolid ated judgments of learned two Courts below dated 27.09.201 1 and 19.12.201 1, in which suit for declaration-cum-permanent injunction was concurrently decreed in favour of the respondent whereas the disobedience petition filed by the respondent was dismissed and suit for partition instituted by the petitioners stood dismissed by both the learned Courts below; hence, the aforesaid revision petitions.
2. The brief facts as gathered from perusal of record are that the petitioners claiming themselves' to be the legal heirs of Muhammad Iqbal deceased, who happened to be brother of the petitioners and husband of respondent, died issueless on 23.10.2007 leaving behind a house measuring five marlas (duly described in para 1 of plaint) instituted a suit on 10.12.2007 seeking partition of the property (house) with the assertion that they as well as the respondent being the only surviving legal heirs of Muhammad Iqbal are entitled to inherit the property as per the law whereas the' respondent besides filing the written statement filed a suit for declaration-cum-permanent injunction on 10.03.2008 with the reiterat ion that she had become the full owner of the property on account of gift deed dated 30.06.2007, duly executed by her husband in her favour . Both these suits were 'consolidated vide order of the learned trial Court dated 29.01.2009 and the proceedings in the suit of the petitioners were conducted, hence they were declared plaintif fs and respond ent was treated as defendant. Out of divergent pleadings of the parties as many as nine consolidated issues including the additional issues were settled and the parties led their evidence accordingly . The learned trial Court vide its consolidated judgment dated 27.09.201 1 dismissed plaintif fs/petitioners' suit for partition while respondent's suit seeking declaration was decreed in her favour holding that the transaction of gift was validly executed. Consequently inheritance mutation sanctioned in favour of the present petitioners was declared void, without lawful authority and ineffective. But petition for initiating proceedings for alleged disobedience of injunctive order:was dismissed. Appeals preferred by the petitioners were dismissed by the learned first Appellate, Court vide its impugned consolidated judgment dated 19.12.201 1; hence, these revision petitions.
3. Learned counsel for the petitioners contends that the respondent has miserably failed to prove the execution of valid gift (Exh.D- I ) i.e. the essential ingredients for a valid gift viz. offer, accepta nce and delivery of possession, which are sine qua non for valid gift. It is further contended that Exh.D-1 is an outcome of ante-dated arrangement and it ought to have been registered, without which the title of the property could not have been conferred upon the respondent donee. Reliance in this regard has been placed on Allah Diwaya vs. Ghulam Fatima and others (PLD 2008 Supreme Court 73) and Muhammad Ejaz and 2 others vs. Mst. Khalida Awan and another (2010 SCMR 342). It is lastly contended that the judgments impugned being based on misreading and non-reading of evidence as well as misconstruing the provisions of law are unsustainable in the eye of law; hence, liable to be set- aside.
4. On the other hand, learned counsel for the respondent has vehemently supported the impugned judgments by contending that the respondent had proved on record all the essential ingredients of a valid gift; that execution of gift deed in favour of the respondent was in accordance with Muhammadan Law. Additionally , oral gift by a Muslim has the same validity provided its basic ingredients' are fulfilled. In support of his arguments, the learned counsel has placed reliance on Abdul Ghaf far and 6 others (PLD 1975 Peshawar 12) and Maulvi Abdullah and others vs. Abdul Aziz and others (1987 SCMR 1403 ). Lastly , submitted that the learned Courts below have passed the decree in favour of the respondent on the basis of evidence led by the parties available on record and by exercising their power , they have not committed any illegality and irregularity amounting to wrong assumption of jurisdiction; hence the revisions petitions which are against the concurrent findings of facts are liable to be dismissed.
5. I have heard the learned counsels for the parties and gone through record of the case.
6. Admittedly , the respondent, legally wedded wife of deceased Muhammad lqbal, claimed to be owner of the property on the basis of gift deed executed by her husband, contents/narration whereof itself disclose that the donor intentionally and with his conscious mind executed the gift deed wherein he made the offer and admission of handing over the possession of the property was also reflected. On, the other hand , acceptance is also visible from the thumb impression of the respondent embossed by her at footnote of the gift deed, which is sufficient proof to declare it a valid gift. By virtue of this document, the donor has also authorized the respondent-donee to get declaration in respect of gift deed by instituting a suit in Court of law. Possession of the respondent/donee over the suit house was also established from factum of admission of the parties as the respondent was/is residing in said house. In addition, the gift deed-docume nt was proved by producing the Stamp-V endor as DW-1, Nazir Ahmad Chishti, Scriber Of the gift deed as DW-2, Muhammad Pervez and Amanat Ali, both marginal witnesses of said documents as DW-3 & DW-4, respectively , whereas the respondent herself appeared as DW-5. On the other hand, petitioner No.1 and his son, namely Riaz Ahmed, both appeared as PW-1 & PW-2 whereas, petitioner No.2-Allah Rakhi, did not appear in the witness box.
7. It may not be out of place to mention here that it was not the case of either party that Muhammad Iqbal-donor was a lunatic or a man of unsound mind or that there was any dispute regarding ownership of the donor , hence he had absolute power to alienate his property by way of gift in exercise of his independent and voluntary discretion. It is settled that burden always lies on the beneficiary to prove the authenticity and validity of gift by producing the direct confidence inspiring evidence with regard to offer, acceptance and handing over of possession, which in the case in-hand was found to have been proved/established from the testimony of DWs. In this scenario, the case law referred to by the learned counsel for the petitioners in a case of Muhammad Ejaz and 2 others (2010 SCMR 342) is rater fully applicable to the case of respondent, relevant portion whereof is reproduced hereunder:- "Under the Mahommedan law, a gift, in order to be valid and binding upon the parties, must fulfil the following three conditions:-
(a) a declaration of gift by the donor;
(b) acceptance of gift by the done; and
(c) delivery of possession of corpus.
On the fulfilment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected only, if the pre-requisites are complied with. Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registrable under the Registration Act, 1908."
As regards the case of Allah Diwaya (PLD 2008 Supreme Court 73), relied upon by the learned counsel for the petitioners, suffice it to say that the same is distinguishable on law as well as facts of the case inasmuch as in the present case the distinguishing feature was the admission of PW-1 qua delivery of possession of the disputed house by the donor-Muhammad lqbal to his wifedonee. In presence of such depositions-admissions made by PW-1 & PW-2, the dictum laid down in the case of Maulvi Abdullah and others (1987 SCMR 1403 ) is attracted wherein it has been held:- "Although no reference was made to section 129 of the Transfer of Property Act, yet it was held after discussing the other provisions of the Transfer of Property Act and Registration Act that a gift by a Muslim would be complete even if there is no writing; and, it depends, for its validity , upon: (1) a declaration of gift by the donor; (2) acceptance of gift expressly or impliedly by or on behalf of the donee, and (3) delivery of possess ion of the subject-matter by the donor to the donee. If these three conditi ons are complied with the gift is complet e. Registration of the document will not be helpful if either of the aforementioned conditions are not satisfied. A written instrument in any case would not create a gift but is a mere evidence of the gift and as such would not in the case of a Musalman require registration. The gift was, therefore, held as complete under the Muslim Law and as such operative notwithstanding the non-registration of the gift deed itself."
In the above context, on Court query as to what illegality and irregularity has been committed by the learned Courts below , learned counsels for the petitioners failed to point-out any misreading and non-reading of the evidence.
8. In such eventuality , finding no illegality or irregularity in the concurrent findings of two Courts below , it is held that the judgments, impugned herein, are in consonance with the law; hence no interference is warranted, thus, these revision petitions having no merit are dismissed. No order as to costs.