1. ' Agricultural land measuring 14 Kanals 9 Marlas situate in the revenue estate of village Punnan Wal, Tehsil Pind Dadin Khan, District Jhelum, was owned and possessed by Mst. Pashan Bibi widow of Ahmad Din, real mother of Mst. Aysha Bibi, her sole daughter. Mst. Pashan Bibi died in the year 1977.
2. After her death mutation of inheritance No,1543, copy whereof has been placed on record of this case as Exh.D.2 was got entered and sanctioned in the name of M/s. Ghulam Mustafa and 2 others who are residuary heirs of the deceased lady as well as the petitioners in absence of the petitioners and any other respectable of the relevant estate, which mutation was got sanctioned on 22-8-1977 at a distance of about 3 miles from the revenue estate in question. On coming to know of this mutation, the respondent filed suit seeking declaration to the effect that Mst. Pashan Bibi deceased had gifted the land in question in her favour during her lifetime and had also executed a writing in this behalf, therefore, at the time of her death, she was not owner of the land in question, and, therefore, mutation of her inheritance could not have been sanctioned and hence the land in question could not have been mutated in the name of M/s. Ghulam Mustafa and others which mutation is based upon misrepresentation and fraud. Alternate plea taken in the suit is that even if it is not proved that Hiba was created in the name of the respondent she being the sole heir of the deceased mutation of inheritance referred to above whereby, the share .Has also been given to the defendants is illegal. This suit has been contested by the defendants, who are petitioners before this Court inter alia on the grounds that the deceased had never created a valid gift of the land in question in favour of the plaintiff and hence the mutation in question has been rightly sanctioned whereby they have inherited the land in question as residuaries of the deceased. Besides taking the plea of limitation, form of the suit has also been objected to. On the basis of the pleadings of the parties, learned trial Court settled the following issues:--
(1) Whether the form of the suit is correct? O.P.P.
(2) If not what is the correct form and its effect? O.P.D.
(3) Whether the suit is time-barred? O.P.D.
(4) Whether the property was legally and bona fide gifted to the plaintiff by her mother? O.P.P.
(5) Relief.
3. ' After recording of evidence vide judgment and decree dated 10-12-1986, learned Civil Judge, Pind Dadin Khan decided all the issues in favour of the plaintiff-respondent and decreed the suit as prayed for in her favour. Aggrieved of this judgment and decree, the defendants filed regular first appeal which has been dismissed by the learned Additional District Judge, Jhelum vide judgment and decree dated 25-5-1989, hence this civil revision has been filed by the defendants.
2. Mr. Ajmal Kamal Mirza, Advocate has appeared on behalf of the petitioners whereas Maulvi Anwarul Haq and Sh. Zamir Hussain Advocates have appeared on behalf of the respondent.
4. Learned counsel for the petitioners has taken me through the evidence recorded in the suit and has contended that it stands established on record that Mst. Pashan Bibi was a literate woman and she remained alive for a period of more than a year after the date of execution of the alleged deed of gift but she never acknowledged the gift by her conduct and continued even to manage the land in dispute, therefore, it stands established from the above conduct of the lady that she had not created the gift of the land in question during her lifetime. Making a reference to the deed of acknowledgment of gift Exh.P.1, learned counsel contends that the same bears thumb-impression of the donor, although she was literate lady and if she had intended to create a gift she must have executed a registered gift deed and put her signatures on the said deed. According to the learned counsel, absence of the signatures of the lady on the deed Exh.P.1 speaks volumes against the genuineness of the deed in question. Learned counsel has further contended that the gift was allegedly created on 11-1-1976 but it was never produced before Patwari Halqa for being implemented in the Revenue Record which continued to reflect Mst. Pashan Bibi as owner in possession of the land in question till the time of her death, therefore, the provisions of section 42 of the Land Revenue Act which are mandatory in nature have not been complied with it cannot be said that there is sufficient evidence on record on the basis whereof it could be said that a valid gift was created in favour of the respondent. According to the learned counsel both the Courts below have failed to take into consideration the above material portions of the evidence as well as the inferences which could be drawn from the aforementioned evidence as well as the circumstances and, hence, have exercised jurisdiction illegally and with a material irregularity. Learned counsel has further contended that delivery of possession having not been established and Exh.P.1 which is in fact a deed of gift having not been registered, it cannot be said that the respondent had acquired any rights of ownership in the land in question on the basis of the deed Exh.P.1 which is written on plain paper and has not even been signed by the donor who was a literate lady. In support of his contentions learned counsel has placed reliance on case of Shamsher Ali Khan v.
5. Major-General Sher Ali Khan and 14 others PLD 1988 Lahore 588.
6. ' As against the above arguments addressed by the learned counsel for the petitioners, learned counsels appearing on behalf of the respondent have argued that the two Courts below after scanning of whole evidence produced in the case have concurrently held that Mst. Pashan Bibi, who was real mother of the respondent has gifted the land in question in favour of the respondent who was her sole issue and hence an heir with whom she has been living during her last days, therefore, there being absolutely no misreading or non-reading of evidence no interference with the concurrent findings of fact rendered by the two Courts below is possible in exercise of the revisional jurisdiction of this Court. It has further been contended that Exh.P.1 is an acknowledgment of gift and even if the writing constitutes a gift itself, it does not require registration inasmuch as under Mahommadan Law even an oral gift can be made and deed of gift does not require writing and registration as per sections 123, 127 of Transfer of Property Act, and therefore, non-registration of Exh.P.1 will not detract the effectiveness and validity of the document which does provebeyond doubt that the respondent was gifted property in question by Mst.Pashan Bibi her mother.
7. Explaining the thumb-impression on Exh.P.1 learned counsels have stated that the deceased was not that literate a lady who could sign the document as per evidence she could just read the Holy Qur'an and therefore, even if Exh.P.1 bears her thumb-impression, it makes no difference inasmuch as it is neither the case of the petitioners that the said thumb-impression is forged and is not that of the deceased, nor is there any evidence to the effect on the basis whereof it could be said that Ex.P.1 does not bear the thumb-impression of Mst. Pashan Bibi deceased. Regarding delivery of possession, learned counsel has contended that there is absolutely no misreading or discrepancy in the fmdings rendered by the two Courts below inasmuch as admittedly the deceased was living with the respondent who was married to her nephew (sister's son) and, therefore, as the gift was created by the mother in favour of her daughter, who were living together, it will not make any difference if the matter was not reported to the Revenue authorities and the Revenue Record reflected ownership or possession of Mst. Pashan Bibi deceased. Even otherwise, keeping in view the village life in our country and the simple nature of the ladies who were involved in the transaction much importance cannot 'be given to the fact that the transaction of gift was not reported to Patwari Halqa under the provisions of section 42 of the Land Revenue Act for a period of about a year or so till the time Mst. Pashan Bibi had died. In support of their contention, learned counsel has placed reliance on the following cases:--
(1) Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154.
(2) Maulvi Abdullah others v. Abdul Aziz and others 1987 SCMR 1403.
(3) Qutab Din and 4 others v. Mst. Rahim Bibi 1989 SCMR 727.
3. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the evidence produced in the case. Admittedly, relationship of the donor and the donee is that of mother and daughter who is her sole issue. It has come in evidence that the deceased has been living in the house of the respondent whose husband is closely related to the deceased. Khata is still joint and the land was under the cultivation of Ali Muhammad who has appeared as P.W.3 and has supported the averments of attornment. It is correct that in the Revenue Record he is not recorded to be in possession of the whole land in the Khata yet the land in dispute being also not total land situate in the Khata entries of possession of All Muhammad over part of the land will not prove that he is a false witness. Statement of P.W.2 to the effect that the vendor has been looking after the land during her lifetime also will not make any difference in view of the fact that she and the respondent were living in the same house together. Attorney of the respondent has appeared as a witness and has supported her version of the land having been gifted to her by her mother during her lifetime. The gift was never challenged by the deceased during her lifetime. Mutation Exh.D.2 clearly shows that it was not sanctioned in the same Revenue Record, wherein the land in dispute is situate and at that time neither the respondent nor anybody from that revenue estate was present. This mutation, therefore, has also been sanctioned in violation of the provisions of section 42 of the Land Revenue Act. The respondent being an illiterate lady living in a far-flung village, non-reporting of the transaction to Patwari Halqa is also not of much importance to the validity of the gift. The law declared in case of "Shamsher All Khan"
8. (supra), hence is not attracted in the case in hand. In the cited case, the circumstances which weighed with their Lordships to come to the conclusion that the gift was not proved to have been made, were that the donee had not produced any cogent evidence in proof of gift which transaction was disclosed before the Court where some proceedings were pending after a period of about four years thereafter in the said suit even in the amended plaint no reference to the gift bad been made which had been filed about two months after the making of the alleged gift.
9. Transaction was also not reported to the Revenue authorities. It is totality of all those circumstances which were taken note of by a Division Bench of this Court for coming to the conclusion that no valid gift is proved to have been made. In the case in hand except the circumstance that the transaction of gift had not been reported 'to Revenue authorities, the other circumstances are lacking. The mutation of inheritance in question was sanctioned just after a period of about one year to the execution of the deed of gift and keeping in view the relationship of the parties and the circumstances in which they were living together there is a strong probability to be used as evidence that a genuine transaction of gift was made in favour of the respondent. Refer cases of Said Wali v. Yaqoot Khan and another PLD 1983 SC 440 and Fazle Ghafoor v. Chairman, Tribunal Land Disputes, Dir, Swat at Chitral at Mardan and 6 others 1993 SCMR 1073. Two learned Courts below have taken into consideration whole evidence and it cannot be said that any material portion of the evidence has been misread or has been omitted from consideration. Even if the arguments of the learned counsel for the petitioners are given some weight, at the most it may be a case of wrong appreciation of evidence which cannot, he made as a ground for interfering in exercise of the revisional jurisdiction of this Court particularly when substantial justice has been done. Refer M/s. Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore PLD 1954 Lahore 575.
10. ' Argument of the learned counsel for the petitioners to the effect that gift deed was not signed by the deceased and that the same being unregistered and written on a plain piece of paper hence is of no evidentiary value, is also without any force for the reasons that the donor was not literate in the sense that she will always sign papers and will not execute a document by putting her thumb- impression. She had studied and was teaching Holy Qur'an in the village. No such evidence has been led by the petitioners to prove that the donor had always signed the papers executed by her.
11. It is also not a case of the petitioners that document Exh.P.1 bears forged thumb-impression of the deceased. It is well-established legal proposition that a gift by a Muhammadan can be created even orally and even if some document is written either as gift or as an acknowledgment of gift it does not require registration and it is definitely a very strong piece of evidence in favour of the transaction of gift. Above view fmds support from the law declared in case cited by the learned counsel for the respondent Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR
154. At page 158 of the report it has been held as under:-- "The objection founded on section 123 of the Transfer of Property Act is also misconceived. Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. See Muslim Law by Saksena, 3rd Edn., pp. 368-369 and the precedent cases noticed at the foot of the pages. Among these formalities are, the passing of the possession from the donor and the acceptance of the same by the donee.
12. These are amply satisfied in the instant case. That being so, it is also wrong to suggest that the majority award is vitiated by error of law apparent on the face of the award."
13. ' In case of Maulvi Abdullah etc. v. Abdul Aziz etc. 1987 SCMR 1403 at pages 521 to 523 of the report it has been held as under:-- "The next question which arises is whether an oral gift of immovable property could be made by a Muslim in favour of a Muslim son of a predeceased son. If so, whether such a gift has in any way to be effected also through an instrument of writing; and lastly whether in case an instrument of writing is made whether it is ineffective without registration.
14. ' In our view all these questions stand resolved by the judgment of this Court in Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154. Though the facts in which the judgment was rendered are slightly distinguishable, yet in so far as the resolution of questions of law posed above is concerned, the answers are, of course, concise but very clear.. 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. The observations made at page 158 of the report in this behalf are as follows:-- ' The objection founded on section 123 of the Transfer of Property Act in also misconceived. Vide section 129 ibid the provisions of Transfer of Property Act, gifts made under Muslim Law are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of the gift is not registered. See Muslim Law by Saksena, 3rd Edn., pp.368-369 and the precedent cases noticed at the foot of these pages. Among these formalities are the passing of the possession from the donor and the acceptance of the same by the donee. There are amply satisfied, in the instant case.'
15. ' Same is the position in the present case. All the conditions of a Muslim gift of immovable property are satisfied in this case. Therefore, the rule is fully attracted here.
16. ' A slightly different observation made in Ismail Syed and another v. Commissioner of Karachi and others 1968 SCMR 509 at page 513, an earlier case from this Court would not in any way detract from the force of the enunciated rule in the case of "Mst. Umar Bibi" (1977 SCMR 154). This case has arisen out of a tenancy matter in Karachi. A tenant against whom it was established that he had built his own house in Karachi was resisting a plea by a transferee under the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), that he was not entitled to the protection against ejectment provided in subsection (2) of section 30. He had raised the counter-plea that he had made an oral gift of the said house, so as to avoid the consequence of the objection. There is nothing to show in the report that all the conditions of a Muslim gift of immovable property were satisfied in this case, therefore, the observations that the so-called gift not having been made through a registered instrument was of no avail to the tenant in the circumstances of the case, would be of non consequence in so far as the present discussion is concerned.
17. ' Supreme Court in the case of "Mst. Umar Bibi". It is Allah Jawai v. Allah Ditta represented (by heirs)
18. PLD 1975 Lah. 1389 and PLD 1975 Lah.
19. 1399. It was observed at page 1404 of the report; "it is further observed that the provisions contained in Chapter VII of the Transfer of Property Act which inter alia require. Making of 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 which provides that nothing in Chapter VII shall be deemed to affect any rule of Muslim Law'. Similar view was taken by the Peshawar High Court in Abdul Ghaffar and 6 others v. Ghulam Jan (represented by 5 heirs) and another PLD 1975 Pesh.
12. Although no reference was made to section 129 of the Transfer of Property Act, yet it was held after discussing the other provisions of the Transfer of Property Act and Registration Act that a gift by a Muslim would be complete even if there is no writing and it depends for its validity upon: (1) a declaration of gift by the donor; (2) acceptance of gift expressly or impliedly by or on behalf of the donee, and (3) 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 are 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 Muslim require registration. The gift was, therefore, held as complete under the Muslim Law and as such operative notwithstanding the non-registration of the gift deed itself.
20. ' Another Peshawar case, namely Umar Bakhsh v. Mst. Zamrut Jan and 9 others PLD 1973 Peshawar 63 is not only distinguishable but also does not deal with the question of the effect and the validity of Muslim gift of immovable property with reference to section 129 of the Transfer of Property Act.
21. The same, therefore, does not need any further consideration."
22. ' Respectfully following the dictum laid down in the aforementioned judgments, I, therefore, hold that Exh.P.1 did not require registration and is a valid piece of evidence in support of the transaction of gift. In case of Qutab ,Din and 4 others v. Mst. Rahim Bibi 1989 SCMR 727 where the question was as to whether a gift has been made by the father in favour of his daughter and the gift had been challenged by the collaterals, leave to appeal was sought on the ground that the gift was void as no delivery of possession took place, the two Courts below had dismissed the suit. In second appeal, question of nondelivery of possession was not allowed to be raised by the Hon'ble Supreme Court and the leave petition was dismissed. In case of Muhammad Akram v. Mst. Abida Sultana and others 1991 SCMR 1562 where the wife had claimed title in a Bungalow No,102, Jinnah Colony, Lyallpur on the basis of entry of gift in Nikahnama Exh.D.1, which was unregistered and the Courts below including the High Court had held that on evidence the gilt is established, their Lordships of the Supreme Court of Pakistan did not interfere with such findings of fact as the same did not suffer from misreading or ignorance of evidence and it was held that no point of law is involved in the case, hence the petition for grant of leave was dismissed. Hence judgments and decree rendered by the Courts below are in accord with facts and law, hence are unexceptionable.
23. ' In view of the above, I see no force in this civil revision, hence the same is dismissed. The parties are left to bear their own costs.