AMIN-UD-DIN KHAN, J.---Through this appeal filed under Article 185(2)(d) and (e) of the Constitution of Islamic Republic of Pakistan, 1973 appellant has challenged the order and decree of the learned Lahore High Court, Lahore dated 08.02.2018 whereby Civil Revision No. 3655 of 2016 filed by the respondents was accepted.
2. According to the brief facts plaintif f-appellant on 14.10.2014 filed a suit for declaration with a prayer of specific performance and permanent injunction with regard to the suit property i.e. a single storey house bearing No. BIV- S3-23C, fully described in Para No. 1 of the plaint, on the basis that the father of the parties was owner of the house who in his life time after demolishing the same reconstructed a market consisting upon shops. It is mentioned in Para 3 of the plaint that on 22.6.2007 at the place of residence i.e. Street Kakezaiyan, Sheikhupura the plaintif f gifted the property to the plaintiff in the presence of defendants Nos, 4 to 6 in consideration of his obedience. The plaintif f accepted the same, the possession was delivered and plaintif f is in possession from the said date. It is then pleaded that in May, 2009 once again the plaintif f demolished the market and reconstructed a basement and two shops on the ground floor and the shops have been rented out through the plaintif f and plaintif f is receiving the rent of the same. The reason pleaded for non-transfer of the suit premises in the name of the plaintif f-appellant is pleaded that the property was not in the name of the father of the parties and matter was pending before the revenue officer. It is pleaded that the father of the parties passed away on 22.05.2013. The document of "Hibba" has been described in Para No. 5 as "Agreement/Hibba nama dated 22.6.2007". Written statement was filed by defendants Nos. 1 and 3. The agreement/Hibba was denied. A preliminary objection was raised that with regard to the suit, property a suit for partition is pending before the learned Civil Judge, Sheikhupura, therefore, under section 10 of the C.P.C. the instant suit is not proceedable. It is pleaded that plaintif f was involved in a murder case in the year 1993 and he remains in the bad society , therefore, wrong suit was filed.
Photostat copy of Iqrar Nama has been placed on file at Page No. 60 which is on a plain paper . It is a composite document mentioning the "Aaq Nama" of one son namely Ali Akbar and a gift in favour of the plaintif f. It is an unregistered document. The plaint was rejected being not maintainable particularly hit by sections 17 and 49 of the Registration Act, 1908. Plaintif f-appellant then preferred an appeal before the learned District Judge, which was finally heard and allowed by the learned Additional District Judge, Sheikhupura vide judgment dated 23.7.2016 and matter was sent back to the learned trial court for decision afresh after framing of issues and recording evidence of the parties. Respondents Nos. 1 and 2 being aggrieved by the judgment of the learned appellate court filed Civil Revision No. 3655 of 2016 before the learned Lahore High Court, which was allowed vide impugned judgment.
Hence, the instant appeal.
3. The question argued before this Court is that whether on the basis of an unregistered gift deed a suit for declaration/specific performance against the legal heirs of the donor i.e. father of the parties was competent in the light of sections 17 and 49 of the Registration Act, 1908 and what is the effect of sections 123 and 129 of the Transfer of Property Act, 1882. Learned counsel for the appellant has referred the judgments reported as "Mst.
Umar Bibi and 3 others v. Bashir Ahm ad and 3 others" (1977 SCMR 154), "Maulvi Abdullah and others v.
Abdul Aziz and others" (1987 SCMR 1403 ) and "Mst. Nagina Begum v. Mst. Tahzim Akhtar and others"
(2009 SCMR 623). There is no cavil to the rule that under the Muhammadan Law a valid gift could be affected even orally if the formalities prescribed by the Muslim Law are complied with i.e. (i) a declaration of gift by the donor; (ii) acceptance of gift expressly or impliedly by or on behalf of the donee and (iii) delivery of possession of the subject matter by the donor to the donee. If these three conditions are complied with the gift is complete. Registration of the document will not be helpful if either of the aforementioned conditions is 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.
Para 4 of the judgment reported as "Mst. Nagina Begum v. Mst. Tahzim Akhtar and others" (2009 SCMR 623) is reproduced:- "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 the contention raised by learned counsel for the appellant. This Court in Maulvi Abdullah's case (ibid), while dealing with sections 123 and 129 of the Transfe r 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. It appears appropriate to reproduce the relevant portion of the judgment, which reads as under:- "An objection based on section 123 of the Transfer of Property Act to the effect that a gift of an immovable property cannot be made except through a registered instrument was raised but it was repelled with reference to section 129 of the Act which provided that nothing in the chapter in which section 123 fell would affect any rule of Muslim Law. It was held that according to Muslim Law an oral gift of an immovable property could be made provided other conditions for a Muslim gift were satisfied."
In view of section 129 of the Transfer of Property Act, 1882, as interpreted by this Court in the case of Maulvi Abdullah (ibid), the contention of the learned counsel is devoid of any consideration. "
Para 5 of the plaint is very important and necessary to be quoted here in verbatim:- {{URDU TEXT}} The claim of the appellant is that through the agreement/gift deed dated 22.6.2007 his father gifted the suit property to him. He has not claimed any oral gift, therefore, the case law cited by the learned counsel for the appellant is not helpful and applicable to the facts of this case.
4. Learned counsel for the respondents has relied upon the judgments reported as "Arshad Ahmad alias M.
Arshad and others v. Muhammad Yar and others " (PLD 2012 Lahore 483) and "Allah Diwaya v. Ghulam Fatima , represented by Ahmad Sher and others " (PLD 2008 Supreme Court 73). We quote a portion from Para 6:- "There is, however , no cavil to the proposition that the gift deed was compulsorily registerable under section 17 of the Registration Act and without getting it registered the title of the property in question could not have been conferred upon. The dictum as laid down in Maulvi Abdullah's case (supra) cannot be made applicable in this case because the facts in both the cases are quite distinguishable." Judgment reported as "Mst. Saadia v. Mst. Gul Bibi" (2016 SCMR 662) also confirms the view that if there is an acknowledgement of the previous gift, the registration of the said acknowled gement is not necessary but independent ingredients of oral gift are to be established and proved.
5. Gift deed is compulsory registerable, This view was earlier taken by this court in a judgment reported as "Muhammad Shaft and another v . Muhammad Ishaque and others" (1998 SCMR 1274 ).
6. The upshot of the above discussion is that an oral gift is competent if the donee establishes the three necessary ingredients i.e. offer, acceptance and delivery, of possession and if there is any acknowledgement in writing of the said oral gift if such oral gift is not regist ered that makes no difference but on the basis of any gift deed a gift is claimed that must be registered in the light of section 17 of the Registration Act, 1908 and effect of its non- registration will be the same as mentioned in section 49 of the Registration Act, 1908, In the instant case as noted in Para No. 5 of the plaint which is reproduced supra the claim of the plaintif f-appel lant is that it is a gift deed dated 22.6.2007 through which the suit proper ty is gifted to him. The oral gift has not been claimed by the plaintif f, therefore, we agree with the view taken by the learned Lahore High Court. Plaintif f-appellant has claimed the gift on the basis of an agreement/unregiste red gift deed which is on the plain paper , therefore, the suit was not competent in the light of sections 17 and 49 of the Registration Act, 1908,
7. We find no merit in this appeal, resultantly; same is dismissed with no order as to costs.