' The learned Addl. District Judge, Lahore whereby the appellants-defendants' appeal was dismissed.
2. Muhammad Younas respondent brought the suit for partition of the house in question claiming that he had purchased 3/4th share thereof by a sale-deed dated 27-11-1975 from his own father Muhammad Hayat who had earlier inherited the same from his real brother Muhammad Sharif.
According to him, the remaining 1/4th went to Sharif's widow Mst. Hajran who sold it away to other defendants. The reason for seeking partition was that Mst. Hajran being in actual possession of the whole house was enjoying its rent exclusively without giving them their due.
3. The respondent Mst. Hajran in written statement claimed inter alia that her husband Sharif had gifted the entire house in her favour during his lifetime and that there was no question of sharing the same by the respondent Younas. Other points like bar of limitation, deficient valuation for court-fee and jurisdiction, absence of cause of action and non-maintainability of the suit were also raised by her but the crucial question for disposal of the present R.S A. Was confined to issues Nos.3 and 4 relating to existence of the gift claimed by Mst. Hajran in her favour.
4. The Courts below concurrently held that there was no gift made by Muhammad Sharif deceased in favour of Mst. Hajran and passed a preliminary decree determining their respective shares in the house.
5. The widow's plea was that she was given the house by her husband Sharif in lieu of her dower debt of Rs20,000. However, there was no writing to establish if such a huge amount was fixed as her dower, and likewise there was no document to substantiate the claim that the deceased Sharif had gifted away the house to his wife in lieu of her dower debt. The Courts below concurrently rested their opinions on the absence of any writing either to prove the dower debt or the hiba-bil-ewaz of the house in question in favour of the wife. Rana Muhammad Sarwar, Advocate for the appellants stressed that testimony of D.Ws. Abdul Majid, Din Muhammad and of course Mst. Hajran herself adequately established both the points. He was critical of the fact that the Courts below did not advance any reason to disbelieve these D.Ws. And added that in the absence of anything plausible to discard their statements, these had the necessary probative force to support the gift in lieu of the dower debt. He was of the view that where the husband accepted his liability to pay dower debt to his wife, there was little reason for anyone else to state that the amount was not so fixed or that the house was not gifted in lieu thereof. Still further he argued that all other property of the deceased Sharif was apportioned by his brother Hayat and widow Hajran in accordance with the Shariat and that this fact alone revealed that the husband was actually keen to compensate his wife by giving her the house exclusively.
6. On the other hand Raja Abdur Razzaq, Advocate drew attention to Mst. Hajran's own statement wherein she unequivocally conceded that the gift of the house in her favour was made through a writing. This version according to the counsel, ran counter to what the D.Ws. Abdul Majid and Din Muhammad had tried to make, The Courts below were really influenced by the lady's own overture.
It could not have possibly been disregarded, nor could it be ignored on the ground that it was no better than an unwary remark coming from the mouth of a lady quite unsophisticated in making statements. She was categorical. If the deceased husband was really keen to observe the duty of paying dower debt to his wife, he should have executed some document, all the more when he knew that he was passing away issueless. Dealing with the matters like the dower debt, or its satisfaction through transferring the house in favour of the lady deserved a more pragmatic approach than mere words of mouth before a witness or two. A more substantial evidence like transfer deed was expected, and indeed its existence was affirmed by the lady herself. But she did not produce it, nor did she try to prove it through secondary evidence. These were the features which led the Courts below to believe that the house had not been transferred to the lady by way of hibabil-ewaz.
7. The concurrent finding on the point was essentially one of fact. Counsel for the respondent objected to its reopening or even re-appraisal of the evidence. He emphasized that the conclusions drawn by the Courts below from appraisal of the evidence did not appear to be perverse so as to call for interference as held in Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53). Equally there was no misreading or non-reading of evidence.
8. As a result the R.SA. Is dismissed. The parties are left to bear their own costs.