1. ' WAJIHUDDIN AHMED, J.---This petition is directed against the Pakistan Employees Cooperative Housing Society Limited (PECHS) and the Government of Pakistan through Secretary, Ministry of Housing and Works. The two petitioners here are sons of late Ghulam Muhammad Dadabhoy, who had purchased the Property bearing No,185-E/2, PECHS., Karachi per Deed of Conveyance dated 8- 4-1982. Ghulam Muhammad Dadabhoy applied for mutation in the PECHS record through an application dated 18-3-1993. This gentleman died on 6-12-1993 but the mutation, applied for during his lifetime, materialised only on 17-4-1996. However, while alive, the said Ghulam Muhammad Dadabhoy, allegedly, had, through an oral gift, inclusive of acceptance and delivery of possession, passed on the property to his two sons, the petitioners here. A Memorandum of Gift, incorporating the oral transaction, was executed by the donor on 4-11-1993. On 14-5-1996, the two petitioners, pursuant to the gift, applied for mutation of their names in the PECHS record and with the application appended several documents, including indemnity bond, undertaking and a copy of public notice in Daily "Jasarat" of April 21, 1996, inviting objections before mutation. The application was turned down through a letter dated 4-6-1996 from the Honorary Secretary, PECHS Limited, addressed to the petitioners. Such letter, in extenso, is reproduced below:-- "SUBJECT: TRANSFER/MUTATION OF PLOT NO.185-E BLOCK NO.2, .PECHS., KARACHI.
2. ' Dear Sir, ' With reference to your application dated 11-4-1996, on the above subject, it is for your information that unregistered documents/papers in respect of transaction of property are neither accepted by the Society nor entertained by the Ministry of Works. At present stage when the owner of the property has expired, mutation of record in your name can only be effected if other legal heirs, if any, relinquish/gift their respective shares/rights in your favour or the matter pertaining to unregistered gift is scrutinized by the Court of law."
3. ' This state of facts gave rise to the filing of the present Constitutional Petition on 17-8-1996. Notices of the petition were issued to the respondents and replies have been exchanged. Per order dated 26-11-1996 the petition was heard with the stipulation that the same may be admitted and disposed of at the same time. Through a short order, recorded on 19-3-1997, the petition was allowed but for reasons to be separately recorded. Appearing below are our reasons for the said short order.
4. It is now more or less settled law, as applicable to Pakistan, that a person, pursuing the Muslim faith, in accordance with the Personal Law to which he is subject, may dispose of the whole or any part of his property by way of gift in his lifetime and for such purpose the formality of registration under the Registration Act, 1908, is not a pre-requisite. Indeed section 129 of the Transfer of Property Act, 1882, expressly exempts the rules of Muslim law from the operation of Chapter VII thereof, which deals with the subject of gifts. The exclusion extends, in turn, to section 123 in the Chapter, which makes registration and attestation by, at least, two witnesses compulsory to all transfers, through gifts of immovable properties. Nothing in the Registration Act, 1908, has deviated from such specific exclusion. All that is required to be ensured is that the pre-requisites of a valid gift under the Muslim Personal Law namely, declaration by the donor, acceptance of the gift by the donee and delivery of possession of the corpus have been duly satisfied. Due conditionality's of a valid gift met, no one, including a presumptive heir, can lawfully question the factum of validity of such gift.
5. ' A Muslim donor, however, in order to lend authenticity to the transaction, which in essentials must remain oral, may record a formal declaration or subscribe to a memorandum in writing recording the completed event of the making and acceptance of the oral gift, as also of the delivery of the subject matter thereof.
6. ' The foregoing legal incidents relate back to the British times when it was decided that the Personal Laws, which were applicable to the British Indian Subjects, were not to be touched and left intact by the then Indian Legislature. The same state of Laws has continued in Pakistan. The principles discussed here have been judicially reviewed from time to time and in support may be referred to Abdul Ghaffar v. Ghulam Jan PLD 1975 Pesh. 12; Umar Bibi v. Bashir Ahmad 1977 SCM R 154 and Saffer Ahmad v. Abdul Rasheed 1992 CLC 1896.
7. In view of the foregoing legal position, neither any local authority functioning in Pakistan nor the Government itself, Federal or Provincial, can disregard a transaction such as a Gift etc., which satisfies the requirements of Muslim Personal Law. Rights of persons, thus, claiming have further been strengthened by the principles and provisions set out in the Objectives Resolution being made substantive part of the Constitution and given effect to accordingly, through the insertion of Article 2A in the Constitution of Pakistan, which along with other directives in the Constitution itself e.g. Article 31 etc. Sanctifies the Islamic way of life, in the individual and collective spheres.
8. ' However, the learned Advocate for the respondent No,1 and the learned Standing Counsel for the Federal Government have drawn our attention to I.-G. Of Registration and Stamps v. T. Begum, AIR 1962 AP 199; Ismail v. Commissioner of Karachi, 1968 SCM R 509. The first of these cases, we are afraid, was incorrectly decided by the Andhra Pradesh Full Bench. In spite of conceding that the document there reflected recitals relating to a "past transaction", registration and deficit stamps were found necessary, solely on the ground that the Iqrarnama was intended to be evidence of the transaction. If that was the correct approach, reliance by the Court on Subramaniam v. Lutchman AIR 1923 PC 50, would render all memoranda of deposit of title deeds to be compulsorily registrable, which surely was not the intention behind the Privy Council decision. As regards the Supreme Court case of Ismail (ibid), the observation therein appears to be having a nexus with section 123 of the Transfer of Property Act rather than to section 129 of such Act. Indeed the subsequent 1977 decision of the Supreme Court makes that assumption substantially viable.
9. ' Emphasis has also been laid by the learned counsel for the respondents that if mutations were allowed on mere declarations of gift, such is likely to lead to foreseeable foul play at the hands of wrongdoers. For ages now mutations in the record of rights are being made on the basis of mere declarations. Complications, in fact, can and do arise but reasonable care and caution would obviate the same. What actual steps a particular agency would take to forestall foul play would depend on the procedure that it evolves as also on the circumstances of the case.' The respondents, undoubtedly, can adopt all necessary precautions to protect themselves as also to protect unwary third parties. In the instant case, the petitioners have brought on record relevant no objection affidavits of the other legal representatives of late Ghulam Muhammad Dadabhoy as also a public notice to invite possible objections to the mutation. These appear to be admissible steps and if necessary the PECHS can also record the personal statements of the deponents, in order to make assurance doubly sure.
10. ' A somewhat faint argument was also raised to contend that late Ghulam Muhammad Dadabhoy slept over his rights for eleven long years before applying for mutation and allegedly made the gift in question without even having the mutation effected in his name. Nothing turns on this. A person may become a legal or equitable owner of property without the formality of mutation. It is a common malaise of modern life that people are unable to tie all lose ends because of the multifarious functions that they have to perform. Mere delay in seeking of mutation, the right itself not being in any doubt, should be of no consequence. On the score of the deceased having made a gift without the property getting mutated in his name, no plausible argument can be raised that the gift was based on an imperfect title. The deceased had clear-cut and unambiguous rights in the property. He could transfer those rights subject to necessary formalities being complied with and that is precisely what he did.
11. In the circumstances, this petition is allowed and the respondents' refusal to mutate the names of the donees in their records is held to be illegal. The respondents shall proceed to do the needful though at the same time ensuring that no one is prejudiced in the process.