This appeal arises out of suit for declaration and permanent injunction filed by the appellant wherein she claimed to be the owner of portion measuring about 14 Marlas of property bearing No.40-A, Model Town, Lahore on the basis of a gift alleged to have been made in her favour by the respondent.
This suit was resisted by the respondent by filing a written statement in which various pleas were raised. The assertion of the petitioner that a gift had been made in her favour was specifically repudiated. On the issues framed, the appellant produced her evidence. The evidence of the respondent was however closed by the trial Court under Order 17 rule 3 of the Code of Civil Procedure on 12th of September. 1978, though her own statement was recorded through commission. The trial Court held that the gift in favour of the appellant by the respondent stood proved on the record and as such decreed the suit on 21st of January, 1979.
2. Dissatisfied with this decision, the respondent/defendant went in appeal which was accepted by the District Judge, Lahore on 23rd of May, 1981. The learned District Judge found on facts that the appellant had been able to establish the gift in her favour, particularly in view of the memorandum of gift (Exh.P.4) and acknowledgement (Exh.C.l). He, however, accepted the appeal on the ground that no gift could be made except through a registered instrument as required by Section 123 of the Transfer of Property Act and as in the present case the document (Exh.P.4) was not registered, it could not operate as a gift. This Judgment and decree of the District Judge has been assailed 1n this appeal.
3. Ch. Mushtaq Ahmad Khan, the learned counsel who appeared for the appellant, has challenged the correctness of view taken by the learned District Judge and has contended that a gift could be made orally or by a document which need not be registered as the provisions of Section 123 of the Transfer of Property Act are not applicable to gift between Muslims by virtue of section 129 of the Act. The learned District Judge in this context has relied upon the judgment of the Supreme Court in Ismail Syed and another v. Commissioner of Karachi and another 1968 SCM R 509 and has distinguished the subsequent authority in Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCM R 154. This contention of the learned counsel is well founded. The controversy in this behalf stands finally settled by the Supreme Court of Pakistan in Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCM R 1403 wherein both the earlier judgments in Ismail Sayed's case supra and Mst. Umar Bibi's case supra were considered and it was held that a gift by a Muslim can be made orally and it is not necessary that there should be registered instrument in this behalf.
4. Syed Jemshaid A.I, the learned counsel for respondent has, however, asserted that the Maulvi Abdullah's case was distinguishable inasmuch as it related to agricultural land and not to the property situated within the municipal limits to which section 123 of the Transfer of Property Act was made applicable as far back as 6th of May, 1935 through a notification, issued by the Provincial Government. I regret my inability to agree with the learned counsel. The decision of the Supreme Court in the precedent case conclusively helds that section 12.3 of the Transfer of Property Act does not apply to a gift made by a Muslim, the validity of which is to be tested on the touchstone of Muhammadan Law in view of Section 129 of the Act.
"Notwithstanding this learned Judge proceeded to hold that in 1914, at the date of the decd in this part of Burma transfer of possession was not necessary, because the Local Government in the exercise of the powers conferred upon them by S.1 of the Transfer of Property Act as amended to extend, "the whole or any part of the Act had only extended 5.123 in this part of the Act and had not extended, S.129. In their Lordships' opinion this view is haled on a serious misconception. The power to extend any part of the Act to Burma did not authorise the Local Government to extend particular sections of the Act, so as to give these sections a different operation from that which they had in the Act itself read as a whole and to abrogate in the area to which the extension applied a rule of Muhammadan Law till then in force there as to which the legislature had expressly provided that it.
Was to remain unaffected by the Act."
Therefore, there is no force `in this contention of the learned counsel. It was, therefore, not necessary in the present case that the gift must have been through a registered instrument.
On this finding the appeal merited accepted. However, Syed Jamshaid A.I, the learned counsel for the respondent has challenged the other findings of the learned District Judge, which have gone against the appellant, in terms of under Order 41 rule 21 of the Code of Civil Procedure.
The first contention of the learned counsel for the respondent in this behalf was that the learned District Judge has erred in relying upon the memorandum of gift (Exh.P.14) which according to the learned counsel did not form part of the record but had been taken back by the respondent/plaintiff at the time when it was sought to be produced in evidence. This grievance of the learned counsel is well founded and the District Judge appears to have misread the record while coming to the contrary conclusion. This document was sought to be produced in evidence while the statement of P.W.3 Muhammad Mustafa Khan was being recorded. He identified his signatures on the document which was mentioned as Exh.P.4 but immediately thereafter it was stated by the witness as also by the appellant that they did not wish to produce this document in evidence. As a consequence of this request, the reference to the document as Exh.P.4 was specifically deleted by the trial Court. It could not, therefore, be held that a document forms part of the evidence especially when the trial Court had acted on the statement of the respondent herself.
Dholan Das Parumal v. Tahilram Matiomal etc. AIR 1940 Sind 194.
Even otherwise there is no dispute that the document at the relevant time was unstamped and therefore, even if it had been exhibited, it could not be considered to have been admitted in evidence under section 36 of the Stamp Act. The learned counsel for the respondent in this respect relied upon Attili Venkanna v. Parasuram Bays and another AIR 1929 Madras 522 and Jagan Nath v.
Mt. Chauli AIR 1933 Lah. 271 which fully support this proposition. I have, therefore, come to the conclusion that the acknowledgement of the gift, dated 14th of July, 1972 was not a part of the record, nor had it been exhibited during the trial.
5. The next grievance of the learned counsel for the respondent was that no sufficient opportunity was allowed to her by the trial Court for production of her evidence which was arbitrarily closed.
This objection was raised by the respondent before the learned District Judge who, however, refused to adjudicate upon it as according to him it was secondary in face of the success of the respondent on the point of registration and there was no need of going into it in any detail. After examining the record it appears that the grievance raised by the learned counsel is fully justified.
The evidence of the respondent was closed on 12th of September, 1978 which was not a date to which the proceedings had been 113 adjourned at the request of the respondent. The adjournment of the pervious date was occasioned by the fact that the witness, summoned by the respondent, 'namely Sub-Engineer, Model Town Society appeared and stated that the previous Sub-Engineer Mr. Abdul Rashid had left the service who alone could depose about the matter. It was in these circumstances that the proceedings were adjourned to 12th of September, 1978 for summoning the previous Sub-Engineer. It is clear that the petitioner was not granted time at her request for 12th of September, 1978 and as such her evidence could not be closed on that date. Reference in this connection may be made to Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC 129.
6. In this view of the matter there is no option but to remand the matter to the trial Court for its decision afresh, after allowing the parties to lead evidence. Ch. Mushtaq Ahmad Khan, the learned counsel for the petitioner has submitted that since the matter is being remanded, the petitioner should also be allowed to produce further evidence and an opportunity be given to her to produce the acknowledgement of gift which has since been impounded and registered. As the case is being remanded on account of wrongful closure of the evidence of the respondent. I am in no position to accept this request of the learned counsel. The respondent may if so advised move the trial Court in this behalf which will decided the request, if so made, in accordance with law, on its own merits.
As a consequence of the above, this appeal is accepted, the judgments and decrees of both the Courts below are set aside and the suit of the appellant is remanded to the trial Court for its decision afresh in the light of the observations made above.
Since the suit was filed as far back as 17th of June, 1975 i.e. About 14 years ago it is directed that the trial Court shall dispose it of by the 31st of July, 1989, if necessary by holding day-to-day proceedings.
The parties shall appear before the District Judge, Lahore on 12th of March, 1989 who shall entrust the suit to a Court of competent jurisdiction.
M.Z.S./N-233/L