AHMAD NADEEM ARSHAD-J , Through this civil revision, the petitioners called in question the legality and validity of judgment and decree dated 27.02.2004 passed by learned appellate Court whereby , while accepting the appeal of respondents, set-aside the judgment and decree dated 12.03.2002 passed by the learned trial Court and dismissed the suit for declaration filed by Mst. Sharifan Mai, predecessor of the petitioners/plaintif fs.
2. Facts in brevity are that the predece ssor of the petitioners namely Mst. Sharifan Mai instituted a suit for declaration on 10.12.1998 and sought declaration to the effect that she is legally wedded wife of Imam Bakhsh.
Said Imam Bakhsh has given her land measuring 04 kanals as a dower through acknowledgement deed of dower dated 03.11.1998 and possession was also delivered, which is still in her possession; that she is entitled to get 1/8 share with regard to the rest of the legacy of Imam Bakhsh and inheritance mutation No.7703 dated 30.04.1999 is against facts and law and liable to be cancelled. The suit was hotly contested by the respondents/defendants collateral of Imam Bakhsh (sons and daughters of his brothers and sisters) and by raising certain legal as well as factual objections maintained that Imam Bakhsh was a cancer patient and suffering from 'Maraz-ul-Mout' and during 'Maraz-ul-Mout' he was died on 16.11.1998; that the acknowledgement deed of dower is forged and fictitious document and liable to be declared having no effect. The learned trial Court framed necessary issues and with regard to basic controversy framed issue No.1 and invited the parties to produce their respective evidence. After recording of evidence, pro and contra, the learned trial Court decreed the suit vide judgment and decree dated 12.03.2002. Feeling aggrieved, the respondents/defendants preferred an appeal which was allowed by the learned appellate Court and resultantly the suit of the predecessor of petitioners/plaintif f was dismissed vide judgment and decree dated 27.02.2004, hence, this revision petition.
3. Learned counsel appearing on behalf of the petitioners submits that the petitioners proved the execution of the acknowledgement deed of dower (Exh.P-1) through concrete, cogent and reliable evidence; that petitioners produced all the relevant witnesses in order to prove the execution of the acknowledgement deed of dower (Exh.P- 1); that the statement of DW-1 Muhammad Nawaz, marginal witness of Exh.P-1 having no effect as he was won over by the respondents; that the respondents/defendants failed to prove that Imam Bakhsh was a cancer patient and suffering from 'Maraz-ul-Mout' and also they did not produce any kind of evidence in this regard; that the dower is a debt and first lien is on the estate of the deceased Imam Bakhsh; that the deceased Imam Bakhsh, in order to avoid any controversy between his legal heirs executed acknowledgement deed of dower in favour of his two wives namely Mst. Sharifan Mai and Mst. Bhirawan; that the possession of the petitioners is proved on record through revenue record and prayed for acceptance of the revision petition and decree of the suit.
4. Conversely , learned counsel appearing on behalf of the respondents submits that the acknowledgement deed of dower (Exh.P-1) is an un-registered document and did not create any right in favour of the predecessor of petitioners; that in the last days of his life, Imam Bakhsh was cancer patient and was died while suffering from 'Maraz-ul-Mout '; that the petitioners did not produce copy of Nikah Nama in her evidence to substantiate her claim of dower with regard to the suit property; that petitioners did not produce register of petition writer , who allegedly scribed the document of dower; that one of the witness of this document (Exh.P-1) Muhammad Nawaz was not produced by the petitioners/plaintif f and was appeared as DW-1 and negated the fact of execution of acknowledgment deed of dower; that Muhammad Nawaz deposed that his signat ures on Exh.P-1 were obtained from his house at night about 09.30 p.m. and in this way he was not a marginal witness of Exh.P-1, therefore, the document was not proved ; that neither the dower amount was disclosed nor Nikah Nama was produced and in this way best evidence was withheld and lastly prayed for dismissal of the revision petition.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
6. Admittedly Imam Bakhsh was owner of land measuring 11 kanals 14 marlas and he contracted two marriages during his life time, one with petitioner Mst. Sharifan Mai and second with Mst. Bhirawan. Both the widow i.e. Mst.
Sharifan Mai and Mst. Bhirawan instituted their separate respective suits by claiming that deceased Imam Bakhsh transferred 4/4 kanals land to them separately as a dower through acknowledgment deeds of dower dated 03.11.1998 which were written in favour of his each wife. After the demise of Imam Bakhsh, inheritance mutation No.7703 dated 30.04.1999 was sanctioned in favour of his widows as well as his sisters and sons of his brother . So the controversy between the parties is only with regard to acknowledgment deed of dower to the effect that whether Imam Bakhsh transferred 4/4 kanals land to each widow or not? In order to prove her contention, the plaintif f herself appeared as PW-1. She also produced Zahoor Hussain, one of the marginal witness of Exh.P-1, as PW-2, Allah Ditta, who is cultivating the suit property as tenant, as PW-3, Muhammad Ilyas Advocate/Notary Public, who attested the acknowledgement deed of dower , as PW-4, Jamshid Khan, deed writer/scriber as PW-5 and again Zahoor Hussain in her rebuttal eviden ce as PW-6. She also produced documents Exh.P-1 to Exh.P-6 as documentary evidence. In rebuttal, respondents/defendants produced Muhammad Nawaz, one of the attesting witness of acknowledgment deed of dower as DW-1, Rana Elahi Bakhsh as DW-2 and Muhammad Bakhsh as DW-
3. They also produced Exh.D-1 and Exh.D-2 in their documentary evidence.
7. The version of the petitioners is that Imam Bakhsh transferred 4/4 kanals land to his each wife through acknowledgement deed of dower (Exh.P-1) which is disputed by the respondents. In order to prove the execution of Exh.P-1 (acknowledgment deed of dower), the plaintif f herself appeared as PW-1 and deposed that her husband offered to give her four kanal of land in lieu of dower in presence of witnesses namely Haji Zahoor , Allah Ditta and Muhammad Nawaz, she accepted that offer and then Imam Bakhsh asked Allah Ditta (tenant) that share of produce be given to her being owner of the land and from that time she is receiving the share of produce. She adds that the said offer was made in the house and after two days of the said offer, we went to Tehsil Office at the seat of Jamshid deed-writer , where Haji Imam Bakhsh got written Tamleek Nama in lieu of dower . After writing the said deed, it was read-over to Imam Bakhsh who, after understanding it, put his thumb impression upon it and thereafter , Haji Zahoor and Muhammad Nawaz put their signatures. Next day, we again came to the office of counsel at Court, where, the Notary Public/counsel, after duly identifying/verifying Imam Bakhsh, attested the document and took his thumb impression. PW-2 Zahoor Hussain deposed that Imam Bakhsh called him at his house where Imam Bakhsh, Allah Ditta and Muhammad Nawaz were sitting in the courtyard and Imam Bakhsh told that he called them to fulfil the demand of dower and offered to give four-four kanal land to Mst. Sharifan Mai and Mst. Bhirawan and narrated all the facts in the same tune as described by PW-1. PW-3 Allah Ditta also deposed in the same line and stated that he has been cultivating the land and also used to give the share of produce to Mst.
Bhirawan and Mst. Sharifan Mai. After lengthy cross examination, all the PWs remained firm and respondents/defendants could not bring on record anything contrary to their princip le stance. The evidence of PW-4 Muhammad Ilyas Advocate and PW-5 Jamshid Khan, deed writer , is very much relevant as they are independent witnesses and have no interest with the plaintif f or the suit property and there is nothing on record, to show their nexus/relations with the plaintif f. PW-4 Muhammad Ilyas while recording his statement deposed that he verified the acknowledgment deed of dower (Exh.P-1) as Notary Public on the asking of Imam Bakhsh and it bears his seal as well as signature. He also deposed that he read-over the document to Imam Bakhsh deceased who admitted it as correct. He further deposed that at the time of attestation of the document, Imam Bakhsh himself appeared before him and he was physically fit and healthy . During the course of cross examination, he stated that he incorporated Exh.P-1 in his register at serial No.370 and he collected the copy of N.I.C. of Imam Bakhsh which was pasted by him in his register . He stated that two ladies, Imam Bakhsh, Haji Zahoor , Muhamm ad Nawaz and Munshi Mukhtar came to him and he took the thumb impressions of the ladies, Imam Bakhsh and signatures of Zahoor Hussain witnesses. While answering to a question he stated that he read-over Exh.P-1 to Imam Bakhsh and he admitted it correct and also admitted his thumb impression. Jamshid Khan PW-5 while recording his statement as PW-5 stated that Exh.P-1 in favour of Mst. Sharifan Mai and Exh.P-1 in favour of Mst. Bhirawan (in another case) were scribed by him which he wrote on the instructions of Imam Bakhsh and after writing both the documents and before getting the thumb impression of the executant, read over to him and thereafter he put his thumb impression. He identified the thumb impression of Imam Bakhsh and explained that he put his thumb impression with his hand. The witnesses also put their signatures in his presence. During the course of cross-examination, he deposed that at the time of writing, Imam Bakhsh, both ladies and two witnesses were remained present. He adds that both the deeds are valid and correct documents and there is no forgery or fraud with regard to execution of these documents. Both the witnesses are independent, impartial and there exists no reason why they deposed falsely on oath for nothing.
The second marginal witness of the acknowledgment deed of dower was produced by the respondents/defendants as DW-1, who during recording his statement admitted his signature upon Exh.P-1 with the stance that the signature was obtained at his house at 09:30 p.m. He also deposed that at the time of signature, Imam Bakhsh was ill and in a bad condition. But during the course of cross examination he stated that the land of deceased was not cultivated by Allah Ditta but Imam Bakhsh himself cultivated his land and till his death he cultivated the land through tractor , meaning thereby he remained fit till his death. He also stated that he saw the land of deceased which was cultivated by the plaintif f near about last three years. He recorded his statement on 29.11.2001 and acknowledgement deed of dower was written on 03.11.1998 near about three years back. During the course of cross examination, he stated that for the last three months of his life, Imam Bakhsh was under treatment in his house and he met the deceased regularly after every 3/4 days and also talk to him about his affairs. He also stated that Imam Bakhsh deceased was happy with Mst. Sharifan Mai and Mst. Bhirawan. During cross examination he admitted that on the first date of hearing when Mst. Sharifan Mai and Mst. Bhiraw an brought their witnesses, he and Haji Zahoor witnesses accompanied with them for recording the evidence and they came at the seat of Kifayat Ullah Bodla Advocate, counsel for the petitioners, but on that date, evidence could not be recorded due to leave of the Presiding Officer. While answering to a suggestion put to him he stated that it is incorrect that he asked Mst.
Sharifan Mai and Mst. Bhirawan to give him five marla land and Rs.5000/- otherwise he will testify in favour of defendants. He suggested it incorrect that on the offer of defendants that they will give him Rs.5000/- and 5 marla land, he gave this false evidence. From the testimony of this witness, it appears that this witness was not reliable and won-over by the defendants and in this way, he is an interested witness and his deposition could not be relied upon.
8. Admittedly , the suit property was in possession of the plaintif f which was also acknowledged by the witnesses produced by the respondents. The respon dents failed to produce any kind of evidence to prove that Imam Bakhsh was a cancer patient and was suffering from 'Maraz-ul-Mout' at the time of execution of the documents and died during that period. The evidence of the respondents is mostly hearsay evidence and in a negative nature and they did not have any direct knowledge. Admittedly Imam Bakhsh died issueless and no issue was born from his two wives. He was owner of land measuring 11 kanals 14 marlas and in order to secure future of his wives, he equally distributed 4/4 kanal out of his land amongst his two wives. He also retained some land for his livelihood. The question arises if the plaintif fs/both wives of Imam Bakhsh had to usurp her husband' s property and prepared forged documents then why they did not get transferred his whole land in their names. The respondents did not plead that the acknowledgement deed of dower was anti dated or prepared after the demise of Imam Bakhsh, their only stance is that the documents were executed during 'Maraz-ul-Mout of Imam Bakhsh, which they failed to prove through any evidence.
9. The transfer of property by a Muslim to Muslim in lieu of dower , is a gift (Hiba-bil-ewaz ), it does not require registration under the Registration Act, 1908. Neither any writing would be required nor any such document acknowledging transfer of property in lieu of dower would require registration. This Court in a judgment "Mst.
ALLAH JA WAI versus ALLAH DITT A REPRESENTED (BY HEIRS)" (PLD 1975 Lahore 1399) held as under: - "It needs to be observed that in the case of Khuda Bakhsh and others, my learned brother K.E. Chuhan, J. took note of scores of rulings on the question of the nature of transaction in cases like the present one, and discussed in detail the difference between four types of hiba (gifts); pure and simple'; true hiba-bil-ewaz'; false hiba-bil-ewaz' and hiba-ba-shartul-ewaz'. While dealing with true hiba-bil-ewaz, his Lordship, after noticing the view of textbooks writers and case-law including rulings of the Privy Council, relied on an Oudh case Abdul Hamid v. M. Abdul Ghani and others (AIR 1934 Oudh 163), to observe that no writing or registration is necessary in this type of gift.
In the said case from Oudh, a Division Bench was pleased to rule that the Muslim Law recognizes transfers by sale as well as by means of hiba-bil-ewaz. It treats them both as distinct and separate forms of transfer . One of the rules of Muslim Law is that an oral gift is valid. Section 129 of Transfer of Property Act provides that nothing in Chapter VII of that Act which relates to gifts shall be deemed to affect any rule of Muslim Law. Such a gift must, therefore, be held to be valid unless it can be treate d as a sale within the definition given in section 54, Transfer of Property Act. There Lordships were not prepared to hold that all cases of hiba-bil ewaz must be treated as sales within the definition given in that section. The same subject was also dealt in another Divisi on Bench ruling from Allahabad High Court in Mst. Kulsum Bibi v. Bashir Ahmad and others (AIR 1937 All.25) ; wherein the question of the nature of transfer of immovable property , by a husband to his wife in lieu of her dower , was involved. It was held that such a transfer was clearly divisible into two distinct transactions; namely ,. A gift of property by the husband to his wife and a gift by the wife of her right to recover dower from her husband. The whole transaction, amounted to hiba-bil-ewaz, and it could not become invalid only because it was not registered. It was further held that if other conditions qua gift are fulfilled; and even if it is oral, the transaction amounts to hiba-bil-ewaz and is valid notwithstanding absence of a registered instrument; because registration was not made compulsory either by Transfer of Property Act or by any other law .
10. Ordinarily in a transfer of immovable property by a Muslim husband to his wife in lieu of dower , there are two distinct gifts, one by each party to the other . The husband transfers by gift the property , while the wife makes the gifts of her. The transaction is essentially hiba-bil-ewaz . This being the ordinary role, it needs to be observed that there might, be some exceptions, as visualized in some cases, depending upon peculiar circumstances thereof.
11. A transfer by a Muslim husband in favour of his wife in lieu of her dower being essentially a gift, was not required, to be affected through a registered instrument. The provisions contained in Chapter VII of the Transfer of Property Act, 1882 which Inter alia require making of a gift of immovable property only by registered instrument, do not apply to the present case which is of hiba-bil-ewaz by a Muslim such gifts are excluded by virtue of section 129 of the Act ibid, which provides that nothing in Chapter VII shall be deemed to af fect any rule of Muslim Law .
This view was re-affirmed in another case law reported in "INAYAT ULLAH versus PERVEEN AKHT AR" (1985 CLC 1454 ) by holding as under: - "The objection raised by the appellant that Exh.P .1 being an unregistered document does not create any interest or right in the disputed house in favour of the respondent in view of the provisions of section 49 of the Registration Act is not tenable in view of the fact that the disputed house was given by the appellant to the respondent in lieu of her dower and the transaction under the circumstances must be considered as one of Hibba-bil-Ewaz. The provisions, of sections 17 and 49 of the Registration Act are not attracted to the facts of the case and as held in Mst. Allah Jawai' s case the transfer of property by the husband to his wife in lieu of her dower can be effected even without a registered instrument."
This judgment was upheld by the Honourable Supreme Court in "INAYAT ULLAH versus Mst. PARVEEN AKHT AR" ( 1989 SCMR 1871 ).
12. The dower deed was a document, which not creating or extinguishing right in immovable property and execution of such document thereto only acknowledged the factum of transfer of immovable property in favour of his wife in lieu of dower . This Court in a case "Anwar Khan and 16 other . v. Mst. Sahib zada and 3 others" (1989 CLC 1327 ) held, the relevant part of which is reproduced for the sake of convenience........
"As regards the plea of the non-registration of the deed in question, the careful perusal thereof would show that the same was not a document creating or extinguishing right in immovable property worth more than Rs.100 but the executant thereof only acknowledged the factum of transfer of immovable property in favour of his wives in lieu of dower having already taken place 3/4 years prior thereto. Under section 17 of the Registration Act only those instruments which create or extinguish rights in immovable property worth more than Rs.99 require compulsory registration. The instant document does not offend against the said provision of law in as much as it neither creates nor extinguishes rights but is an acknowledgment deed, whereby the executant simply admits an existing ownership in property through a valid transfer , having been completed much earlier than the time of execution. In this view of the matter , I am fortified by the judgment of the Peshawar High Court in case Mst. Zarin Qaisha v.
Arbab Wali Muhammad Khan and 5 others reported as PLD 1976 Pesh. 128 and those of the Lahore High Court in case Fateh Muhammad v. Muhammad Shafi and another reported as PLD 1953 Lah. 251 and Khawaja and another v. Nur Alam and others PLD 1953 Lah. 277. The deed copy Exh.P .W.2/1, therefore, did not require registration and was rightly relied upon by the Courts below in arriving at their conclusions"
The column in the Nikah-Nama indicate that they refer to arrangement that had already been subscribed to by the parties and the record was prepared only to verify the events which had already happened. The same proposition was duly elaborated in "Fazal-ur-Rehman. v. Mst. Sown Jan and others" (1989 SCMR 651), the relevant portion is reproduced as under:- "This distinction between the solemnization of the marriage and its being recorded and got registered has been recognized in the case of Arif Hussain and another v. The State PLD 1982 FSC 42. In the context of section 5 of the Ordinance it is clear that solemnization of marriage and maintaining a record of it are two different acts.
Solemnization of the marriage precedes the completion of the formalities with regard to the preparation of record, of it and getting it registered. Even the columns contained in the Nikahnama clearly indicate that they refer to arrangement that has already been subscribed to by the parties. In such a situat ion it cannot be taken to be an instrument or document of transfer of property but it has to be taken merely as a record of it."
13. It was also contended that Imam Bakhsh was suffering from disease which ultimately resulted in his death and therefore the acknowledgment deeds of dower are hit by the principles of Marz-ul-Mout . With regard to the principles governing the applicability of doctrine of Marz-ul-Mout , the Court should consider the following factors to sustain the conclusion that the impugne d transaction was made under such pressure (Marz-ul-Mout ), as the Hon'ble Supreme Court of Pakistan in a case "NOOR MUHAMMAD KHAN and 3 other s versus HABIBULLAH KHAN and 27 others" ( PLD 1994 Supreme Court 650 ) described as under:-
(i) W as the donor suffering at the time of gift from a disease which was the immediate cause of his death?
(ii) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby , or to engender in him the apprehension of death?
(iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations- - a circumstance which might create in the mind of the sufferer an apprehension of death?
(iv) Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the, sufferer to the malady ."
The respondents are badly failed to prove factum of Marz-ul-Mout in the light of principles settled by the Supreme Court of Pakistan as they failed to produ ce any kind of evidence to prove that Imam Bakhsh was suffering from cancer and died due to this disease. From the evidence of the respondents/defendants that the disease which is alleged to have been the cause of death was not of such a nature and had prolonged to such a period that it could have caused any apprehension in the mind of the deceased that he was about to die and thus dispose of the property .
14. I have minutely gone through the record available on the file, evidence of the parties as well as the impugned judgment and decree passed by the learned appellant Court. The learned appellate Court has erred in law while accepting the appeal and dismissing the suit filed by the predecessor of petitioners merely on surmises and conjectures, which is against facts and law, having not based upon proper appreciation of oral as well as documentary evidence.
15. In the wake of above discussion, while accepting the civil revision, the impugned judgment and decree of the learned appellate Court dated 27.02.2004 is hereby set-aside and reversed while the judgment and decree passed by the learned trial Court dated 12.03.2002 is maintained and upheld. Resultantly , the suit filed by the predecessor of the petitioners is decreed with no order as to costs.