Ch. Muhammad Masood Jahangir , J. Undeniably , Muhammad Abdullah father of the parties was exclusive owner of the demised house, who was not only an advanced age person, rather in last two years of his life remained paralyzed and ultimately died on 10.03.20 04. Thereafter , one of his sons, Mehboob Hussain (respondent No.1) on 06.04.2004 instituted suit for declaration to claim his exclusive ownership qua said house while asserting that the same had orally been gifted out to him by the father on 02.10.2001 and in ackn owledgment thereof even dated unregistered memo of gift (Exh.P1) was scribed/executed. The suit was mainly contested by the petitioners/defendants No.2 to 4 & 6 with the stance that neither any offer of gift was made nor there was any scope for its acceptance, whereas since long ago the petitioner along with father of the parties was residing therein. It was further defence of the petitioners/contestants that Exh.P1 was forged, fictitious and fraudulent document. The learned Trial Court facing with divergent pleadings while settling issues required the parties to lead evidence, which in pros & cons was examined and as a result of its appreciation, though suit initially was dismisse d via judgment dated 31.03.2010, yet learned District Judge in exercise of appellate jurisdiction decreed the same through impugned decision of 17.09.201 1. Thus to call in question validity & legality thereof, this petition was made by the petitioners/defendants, which since 201 1 is here.
2. Arguments heard, record scanned.
3. The available record confirms that respondent No.1 had filed CM No.44-C of 2017 for placing on record attested copies of certain documents available in suit file, which initially though was contested by learned counsel for the petitioners with the assertion that required attested copies of document from suit file had already been annexed here, yet finally raised no objection for accord of C.M., which accordingly is granted.
Adverting to merits of this file, the case of respondent No.1/beneficiary hinges upon unregistered memo of gift, which certainly was executed to acknow ledge oral transaction. This Court with the able assistance of learned counsel for the parties has minutely gone through the said document and found it inadequate to demonstrate the happening of original transaction because, features viz a viz time, date, month and year were not disclosed therein so as to prove that when or where the alleged basic oral gift was offered, accepted followed by change of possession in lieu thereof. Nevertheless, unregistered memo of gift (Exh.P1) was written after enactment of Qanun- e-Shahadat Order , 1984, which certainly involved future obligation and though attested by two witnesses per mandate of Article 17 of the order ibid, yet one of them i.e. Sardar Ahmad (PW2) was examined, whereas surprisingly the other Muhammad Younas despite availability was not produced. Mr. Naseer Ahmad Tahir, learned counsel for respondent No.1/beneficiary , when was apprised that per spirit of Article 79 of the Order ibid the document was not proved, thus it could not be taken as evidence, he responded that sufficient evidence was brought on record to independently prove the oral transaction, is not well founded. In the case in hand, respondent No.1 himself had introduced Exh.P1, thus sine qua non for him to establish its due execution and the transaction detailed therein as well. The object & import of Article 79 per its language is that the document entailing future/financial obligation must be proved by two attesting witnesses. The consequential phrase "shall not be used as evidence" until required figure of marginal witnesses produced to substantiate its execution and alleged transaction couched therein, thus places embargo for using it in evidence. Indeed, Article 79 is a mandatory as well as inflexible provision and deserved its due compliance by the Court per yardstick introduced therein. The resume of said discussion is that examination of both of the attesting witnesses was binding, which was not observed, therefore could not be declared to have been proved for use in evidence. This is in conformity with trite principle that if law requires a thing to be done in specific form, then it is to be made in strict compliance thereof, otherwise deemed that it was never accomplished. See Zia-ur-Rehman vs. Syed Ahmed Hussain and others (2014 SCMR 1015 ) and The Collector of Sales Tax, Gujranwala and others vs. Messrs Super Asia Muhammad Din and sons and others (2017 SCMR 1427 ). It is well settled law that superior Courts can disturb or interpret any of the provisions of some Statute, when its language is ambiguous, unclear or apparently in violation to the Constitution, otherwise it must be given effect as it is. See Khurshid Anwar Bhinder vs. Federation of Pakistan (PLD 2010 SC 483 ), wherein it was held as under:- "A fundamental principle of Constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. The pole star in the construction of a Constitution is the intention of its makers and adopters. When the language of the statute is not only plain but admits of but one meaning the task of interpretation can hardly be said to arise. It is not allowable to interpret what has no need of interpretation. Such language beside declares, without more, the intention of the law givers and is decisive on it. The rule of construction is "to intend the Legislature to have meant what they have actually expressed". It matters not, in such a case, what the consequences may be. Therefore if the meaning of the language used in a statute is unambiguous and is in accord with justice and convenience, the courts cannot busy themselves with supposed intentions, however admirable the same may be because, in that event they would be travelling beyond their province and legislating for themselves. But if the context of the provision itself shows that the meaning intended was somewhat less than the words plainly seem to mean then the court must interpret that language in accordance with the indication of the intention of the Legislature so plainly given. The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the court to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act."
In such situation, the fulfillment of Article 79 was sine qua non for respondent No.1, which was not complied with, thus Exh.P1 remained unproved and inadmissible, what to talk that on its basis a decree vesting ownership could be granted. The apex Court while dealing with somewhat identical situation, wherein the oral gift mutation(s) had been sanctioned in favour of its beneficiary , nonsuited him for non-compliance of Article 79 as he did not examine two witnesses, who attested the mutation(s). See Islam-ud-Din through L.Rs. and others vs. Mst. Noor Jahan through L.Rs. and others (2016 SCMR 986) wherein setting aside of the concurrent findings of initial two Courts was upheld on the score that they disregarded Article 79 of the Order ibid and relevant paras 7 to 9 to this effect are reproduced hereunder:- "7. We have heard the arguments of the learned counsel for the parties and have gone through the record.
The issue under dispute is the validity of the mutations and the purported gift as per the said document.
We shall first take up the matter of the three mutations Nos. 36, 59 and 107 all of which are dated 8th June 1989 and shown to be attested by the revenue authorities on 2nd June 1989. The attesting witnesses of all the three mutations are Muhammad Rashid son of Maula and Akbar Jan son of Mehr Jan, however , only one witness (Muhammad Rashid) was produced and no any reason was given for the non-production of Akbar Jan. Article 79 of the Qanun-e-Shahadat Order , 1984 stipulates that a document "shall not be used in evidence until two attesting witnesses at least have been called for the purpose of proving its execution".
Moreover , even though the Patwari Halqa was produced by the respondent as PW-4 he was not questioned about the validity of the said mutations. The Tehsildar who attested the mutations was also not produced, and no explanation for his non-production was forthcoming from the appellants. On all the three mutations against the name of the deceased a thumb impression is affixed, but no effort was made to confirm the authenticity thereof. Incidentally , there is no signature of the deceased on the mutations whereas the said document is purportedly signed by the deceased (without affixing his thumb impression) even though the said document and the mutations were made at about the same time; this inconsistency remained inexplicable.
8. We now proceed to attend to the said document. The said document simply states that the said properties have been given by the deceased to his three sons. The said document was purportedly signed by the deceased in the presence of Laiber Khan, Muhammad Ameen Khan and Haji Kimyagar , however , only Laiber Khan was produced as a witness. Consequently , this document too fails to meet the test prescribed in Article 79 of the Qanun-e-Shahadat Order , 1984 and remained unproved. We may also observe that the said document canno t be categorized as a gift as the necessary ingredients of gift were not established, including the acceptance of the alleged gift of the said properties, as also held in the cited case of Muhammad Ejaz (above). The said document also cannot be categorized as 'conveyance' or even as an 'agreement'. There is yet another aspect of the matter , which was that after the purported execution of the said document the same was not acted upon by the sons, in that the said properties were not mutated/transferred in their names on the basis thereof.
9. Mr. Gulzarin Kiani, the learned counsel for the siblings, contended that the High Court in exercise of its revisional jurisdiction could not have set aside the findings of the two courts below and if at all it should have remanded the matter . In this regard the learned counsel had cited a few cases (above). In the case of Sailajananda Pandey , which was referred to in the case of Gul Rehman, the matter was remanded because "further investigation of some necessary facts" was required where after "many different principles" of law were to be dilated upon. However , there is no need of any further investigation in the present case nor the need to consider many different [legal] principles as a consequence thereof In Iftikhar-ud-Din Haidar Gardezi's case it was held that judgments in revisional jurisdiction could only be assailed in terms of section 115 of the Code of Civil Proce dure ("the Code"). We entirely agree. However , in the present case the trial and appellate courts had exercised jurisdiction vesting in them illegally or with material irregularity , as they disregarded Article 79 of the Qanun-e-Shahadat Order and misread or did not read the evidence as noted above. Since the parties had already lead evidence and the material facts had clearly emerged the High Court had correctly exercised its revisional jurisdiction under the Code. It was held in Nabi Baksh v Fazal Hussain (2008 SCMR 1454 ) that concurrent findings of the courts below can be set aside by the High Court in its revisional jurisdiction if the same, "were based on misreading or non-reading of the material available on record"
4. The further drastic aspect of the case was that perusal of Exh.P1 revealed that its stamp paper was not issued for writing of gift deed, rather obtained for the execution of iqrarnama, which caused doubt qua its honest construction. Moreover , the beneficiary , to establish genuineness of his hub document had a chance to make request for the comparison of alleged signatures of the donor available over Exh.P1, especially when, other side/petitioners claimed it to be forged, fictitious & fabricated one, but he did not opt. Although, report of the expert is not conclusive proof, but as held by the august Supreme Court of Pakistan in the judgment reported as Muhammad Qayyum and 2 others vs. Muhammad Azeem through legal heirs and another (PLD 1995 SC 381), the opinion of expert is one of the modes of producing evidence and if the said report is properly proved, the same can be used as corroborative piece of evidence. By not resorting to this exercise, respondent No.1/plaintif f himself incurred adverse presumption against him.
5. Additionally , per available material, memo of gift was purportedly scribed on 02.10.2001, whereas the father/alleged donor survived till 10.03.2004, but during said span neither this document was brought in light nor the suit was filed. Moreover , there is nothing on record that either the subject house was under some clog or controlled by an injunction, thus there was no hurdle to transfer the same through registered gift deed, so as to vest its ownership. It is trite law that un-registe red document like Exh.P1 does not confer title qua immovable property .
See Allah Diwaya Vs. Ghulam Fatima, repre sented by Ahmad Sher and others (PLD 2008 SC 73), wherein it was laid down that:- '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. "
6. There is no cavil that a Muslim is free to make oral gift with regard to his immovable property , but in case of denial/dispute, it becomes sine qua non for the beneficiary to independently prove the ingredients of gift viz a viz 'offer', 'acceptance' & 'delivery of possession'. While keeping the same in mind, when available evidence consulted, except respondent No.1/plaint iff (PW3), no one uttered a single word that either offer of gift was made by the alleged donor or accepted at the end of donee in his presence. In absence thereof, the basic oral transaction was not proved as well. To this effect, the apex Court in case reported as Mst. Saadia vs. Mst. Gul Bibi (2016 SCMR 662 ) held as under:- "Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity , but the other important thing is the proof of fulfillment of three conditions of a valid gift "of fer", "acceptance" and "delivery of possession".
7. Over & above, in such circumstances, when through a gift, deprivation of some or either of legal heir is involved, the heavy onus otherwise to prove original transaction as well as reasons for doing so strongly rested upon its beneficiary . No doubt, respondent No.1 asserted that the late father used to live with him and also performed Hajj at his expenses, thus being pleased with such services made gift of the house. To prove said purported fact, neither corroborated evidence was examined, nor contents of Exh.P1 were in consonance therewith, because it was reflected therein that during the ailment, he had been taken care of by his son (donee) and due to said services disputed house was gifted out to him. The apex Court has already nullified such like transaction in various judgments reported as Muhammad Ashraf vs. Bahadur Khan and others (1989 SCMR 1390 ), Barkat Ali through legal heirs and others vs. Muhammad Ismail through legal heirs and others (2003 SCMR 1829 ) and Farid and others vs. Muhammad T ufail and another ( 2018 SCMR 139 ).
8. As far as argument of Ch. Naseer Ahmad Tahir, ASC worthy counsel for respondent No.1 that some of the defendants had conceded the claim of his client, thus to their extent decree cannot be disturbed, is concerned, suffice it to say when the basic transaction as well as the document in lieu of its alleged acknowledgment was not proved, then any such concession is liable to ignored, however the desirous defendants, if any, may transfer his/their share per choice by approaching concerned authority .
9. For the foregoing reasons, there was no scope that suit of respondent No.1 could be decreed, but learned District Judge while twisting the available evidence and ignoring mandatory provision as well as decisions of the hon'ble Supreme Court on the subject, granted the same. The impugned decree, indeed is tainted with material irregularity/patent illegality , besides suffering from mis-reading/non-reading of evidence and jurisdictional defect, thus cannot be sustained. The cited petition succeeds and judgment as well as decree under attack is set aside, whereas the one passed by learned Trial Court, whereby suit was dismissed is restored. No order as to cost.