' Land measuring 108 Kanals 12 Marlas detailed in the suit and situated in village Bandkuari was undisputedly the ownership of Ghulam Muhammad of village Bandkurai who died issueless on 4-1- 1986. He was survived by the only widow Mst. Waziran and a few other collaterals named Kalu son of Khuda 1995] Waziran v. Kalu 1533 (Sardar Muhammad Raza Khan, J) Bakhsh, Ghulam Sarwar, Ghulam Hassan and Siddique sons of Ghulam Hussain.
2. The collaterals started interference into the suit land so immediately that four days after the death of Ghulam Muhammad (on 8-1-1986), Mst. Waziran was forced to file the present suit claiming sole title to the suit land on the ground that it was gifted away to her by the husband through deed dated 5-12-1985. Subsequently inheritance mutation got attested including the collaterals as well and hence the suit was amended and finally decreed on 27-6-1989 from the trial Court. In appeal the case was remanded on 23-12-1989 on the ground that issue No,6 regarding forgery or otherwise of the deed was not decided. The astonishing aspect of the case is that now on 27-11-1991, the suit is dismissed and on 14-6-1993 the appeal is dismissed but the said issue is still not decided. Mst. Waziran has come up in revision. As the evidence is available on record, therefore, I would choose to decide it in accordance therewith.
3. The main grounds that prevailed with the two Courts below for dismissing the suit were that Firstly; the execution of the deed was not proved in accordance with law and Secondly; that no possession under the gift was proved to have been transferred. Both these findings are against the facts as well as law.
4. So far as the deed is concerned, the execution thereof is proved from the statement of the attorney of the plaintiff, the scribe of the deed, a marginal witness named Rabnawaz and another witness Muhammad Ameen. The circumstances are such that Ghulam Muhammad died issueless.
He had no close relation except the collaterals. The only near relation to him who served him through every thick and thin was the only one named Mst. Waziran, his wife and hence the grant of gift on behalf of a husband in favour of the wife is not something abnormal. The strong intention of the husband is proved from the deed in the title whereof the word "Iqrarnama" is written. A similar question has arisen in Allah Bakhsh. v. Mst. Bakhat Bari (1990 CLC 2027-B) where it was held that if the intention of the husband could be gathered regarding the grant of gift, it was perfect and valid irrespective of the fact that it bore the title of `Iqrarnama' and that it was unregistered. The Court held that it is a gift by a Muslim which could be done even orally.
5. In Mst. Umar Bibi v. Bashir Ahmed (1977 SCMR 154-E), it was ruled by the Supreme Court that the gifts made under Muslim Law were to be expressly excluded from the operation of Transfer of Property Act and that valid gift could be affected orally or under an unregistered instrument.
Coming to the question of transfer of possession, a wife is rather already in possession of the property of her husband constructively and after his death she becomes a co-sharer in possession and thus in case of gifts between such relationship, the physical change of possession becomes immaterial. A similar view was taken by the Supreme Court in Fakhruddin v. Mst. Zuhra Bhi (1989 SCMR 2017) where the proof of possession in case of gift from husband to wife was considered to be immaterial particularly when the husband even after the gift was or would be supposed to keep the management of the property. In the case in hand the husband died hardly a month after the grant of gift and the collaterals rushed over the property almost the next day.
6. Far back in the year 1931 (on 19-10-1931) Privy Council had given a celebrated finding in this behalf in case Nawab Mirza Muhammad Sadiq Ali Khan v. Nawab Fakhre Jehan Begum (NLR 1990 SD 541). It was ruled that in case of a gift of a husband to wife the intention of the donor should be gathered from the tenor of the deed. It was further held that if such deed is attacked as colourable, the objection being against the tenor of the deed, the burden lies on those who dispute the gift. In the instant case, there are sufficient circumstances favouring the grant of gift. It is a material fact that the spouses have lived with each other for a long time. They were issueless. The husband expected the property to go in the hands of collaterals and thus was likely to prefer the one who was near and dear to him . This fact is proved as said earlier, from the statement of the attorney of the plaintiff, the scribe of the document, the marginal witness Rabnawaz and another witness Muhammad Ameen. It is also proved that the document was scribed in the lifetime and at the instance of the donor. In the circumstances, the burden of proving forgery and fraud lies on the party who claims so. Even otherwise, the burden of proving fraud always lies on the one who alleges it. This burden has in the least been discharged by the collaterals of the donor and hence there is no reason to undo the deed in question.
7. The Privy Council has further gone to hold in the same ruling that if the gift is between husband and wife, the change of possession is complete if it is merely written in the deed and that in case of a gift of a father to daughter, simple bona fide intention to give, is sufficient to prove. Taken on the same analogy, the case of a daughter, should be taken at par with that of a wife In Mst. Manzoor Mai v. Abdul Aziz (1992 CLC 235), the transfer of possession was not considered material in case a female was involved. In such case of gift to a sister, mere utterance regarding change of possession made before Patwari Halqa while making an entry in Daily Diary was considered to be a sufficient evidence regarding change of possession.
8. In view of what has been discussed above, I am of the firm opinion that the deed in question which even was not necessary to be written in the case, stands proved and the change of possession referred to in the deed itself does not require to be proved independently.
9. The learned counsel for the respondents relied upon Mst. Aziza Begum v. Mst. Badshahan (1994 MLD Peshawar 1741) were the proof of transfer of possession was considered necessary, but the fact is that in that case not the donee but the donor was a Pardahnashin lady whose rights were rightly held to be protected. The question of transfer of possession is the most important question in a gift which is bound to be proved but for the circumstances and for the peculiar relationship given above. PLD 1993 Rev. 19 is also referred but it is a ruling by Board of Revenue against which the verdicts of High Court and Supreme Court are not only preferable but far better as well. High Court of Azad Jammu and Kashmir in, Rashan Bibi. v. Wilayat Hussain (PLD 1990 Azad J&K 34) has declared the transfer of possession to be a sine qua non of a valid gift and rightly so but in the ruling above, it was not a gift between husband and wife and was rather the one challenged by the donor himself. In Mustafa Kamal Shah v. Feroz Shah (1992 CLC 355) it was an oral gift allegedly between father and son. The circumstances are different because step relationship was there and it did not inspire a confidence that otherwise existed between a husband and wife, a father and daughter and a brother and sister.
10. Last was the objection with regard to the statement of Muhammad Amin who in the witness-box 'stated that he had brought the petition-writer to the house of Allah Yar and further that Allah Yar was the donor. When it was asked 'as to who Allah Yar was and how he happened to figure in the statement, Syed Abid Hussain Shah, learned counsel for the petitioner, stated at the Bar on the day of arguments ( a day before the announcement) that he was the brother of Ghulam Muhammad donor who had died issueless and lived with Ghulam Muhammad in the same house. On the following day when I was about to announce judgment, I called the respondents/collaterals namely, Kalu, Ghulam Sarwar and Ghulam Hussain one by one into the Court and asked them (to extract correct answer) if why Allah Yar be not made a party being the real brother of Ghulam Muhammad. The unanimous answer of all the three was that Allah Yar no doubt was the real brother of Ghulam Muhammad but he had predeceased Ghulam Muhammad 3/4 years prior and that he had also died issueless. This shows undoubtedly that the name of Allah Yar in the statement of Muhammad Amin is a slip of tongue and his being a vendor was factually out of question. The statement being against a material fact makes the least difference.
11. Consequently upon what has been discussed above, I am of the firm view that Ghulam Munammad had validly transferred the suit property as gift in favour of his wife Mst. Waziran who even otherwise was in possession and in whose favour the recital was also in the deed and thus did not require to be separately proved. This very deed had agitated the mind of the collaterals so much that they physically interfered into the possession of the lady so immediately after the death of her husband that she was forced to bring a suit on the fourth day of his death. The two Courts below have wrongly appreciated the law as well as facts. The revision petition is accepted, both the impugned judgments and decrees dated 23-12-1990 and ,14-6-1993 respectively of the learned Civil Judge 1st Class and Additional District Judge, D.I. Khan, are set aside and suit of Mst. Waziran is hereby decreed as prayed for. No order as to costs.