Briefly the facts are that Syed Bashir Ali Shah filed a suit for declaration to the effect that he was the exclusive owner in possession of the land in dispute fully described in the plaint on the basis of a Tamleek executed in his favour by his father Syed Karam Ali Shah. It was further contended that the mutation of Inheritance No,456 dated 31-3-1982 sanctioned in favour of the petitioners and Mst.
Shamas-ul-Nisa respondent No,2 was illegal and ineffective upon his rights. The suit was contested by the petitioners and respondent No,2, it was denied that the disputed land was gifted by Syed Karam Ali Shah in favour of respondent No,1/plaintiff. It was contended that Tamleek Nama was a fictitious document, and was prepared after the death of Syed Karam Ali Shah in order to deprive the petitioners from their rights to inherit the property. The parties went on Trial on the following issues:-
(1) Whether the suit is not correctly valued for the purposes of court-fee" if so, its correct fee? OPD
(2) Whether the suit is collusive between the plaintiff and defendant No,1? If so, its effect OPD
(3) Whether the alleged Tamleek Nama is void? OPD
(4) 'Whether Karam Ali Shah deceased - gifted the suit-land to the plaintiff and transferred its possession to the plaintiff in furtherance of gift? OPD
(5) Whether Mutation No,456 dated 31-3-1982 is violative of alleged gift and ineffective as against the rights of the plaintiff? OPD
(6) Whether suit is result of mala fide and defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(7) Relief.
2, After examining the evidence adduced before it the learned Trial Court found the material Issues Nos, 4 and 5 in favour of respondent No,1 and held that Tamleek Nama stood proved in favour of respondent No,1 and had the effect of transferring the land in dispute by Syed Karam Ali Shah in favour of respondent No, 1 . Consequently, vide judgment and decree dated 1.1-6-1989 the suit of respondent No,1 was, decreed in his favour. Aggrieved of the same the petitioners preferred an appeal which was dismissed vide judgment and decree dated 13-4-1991. While concurring with the Trial Court, the learned appellate Court found that the disputed document Exh.P.1 was a Tamleek Nama (Gift deed) and that according to Muslim Law a valid gift can be made orally and if made in writing it does not need compulsory registration.
3. The sole point which has been raised in this civil revision is as to whether a gift which is being made in presento can be made otherwise then through a registered instrument.
3. Mr. Ejaz Ahmad Ansari, Advocate, learned counsel for the petitioner made reference to the disputed document which has been recorded by both the lower Courts as a Tamleek Nama (Gift deed). A perusal of this document would show that Syed Karam Ali Shah was creating a right in the respondent No,1 in respect of the property in question through the said document in presento. It no where shows that the writing of Exh.P.1 is merely by way of an acknowledgement of a past oral gift made by Syed Karam Ali Shah in favour of respondent No, 1 . This being so, even if Exh.P.1 is assumed to be Tamleek Nama, as has been held by both the lower Courts, it would not operate to create any valid gift in favour of respondent No,1 being an unregistered document. In the case of Muhammad Shafi and another v. Muhammad Ishaq and others 1998 SCM R 1274.
The effect of section 17 and section 49 of the Registration Act, 1908 has been examined. The High Court in the cited case had observed as under:- "I have examined gift deed Exh.D.1 a bare reading of it would reveal that this document is not merely an acknowledgment of a gift already made orally and the ownership rights of the donees in the property on the basis of the same prior to its execution but this itself purports to create right in the donees by way of gift in the land, therefore, provisions of section 17 of the Registration Act and the relevant provisions of the Stamp Act were applicable to this document as such the same was compulsorily registerable.As contemplated by section 49 of the Registration Act the said gift- deed did not operate to create any right in the donees nor the same had the effect of extinguishing the rights of ownership in the land of the donor. It may significantly be mentioned here that Mutation No,57 regarding transfer of ownership rights in favour of donees was entered and sanctioned on the basis of gift deed Exh.D.1 and since as held Exh.D.1 did not operate to create any ownership rights in favour of the donees, therefore, this mutation is of no avail to the donees to prove that they were the owners in this village. It has not been executed on non-judicial stamp of the required value as required under the Stamp Act. It was rightly held and observed by the trial Court that this was a circumstance which furnished strong evidence to hold that the document was prepared later on and the same was ante-dated to non-suit the petitioners."
'4. The apex Court approved the said determination of law and ruled that the document which itself purports to create right in the donee by way of gift in the land, the same was compulsory registerable.
5. Applying the said rule to the case in hand it would become manifest that even assuming that document under review (Exh.P.1) was a Tamleek Nama, as effect of the same according to respondent No,1 was to create a right in him, the same was compulsorily registerable. Admittedly, the said document is an unregistered instrument. It shall not create any right in respondent No,1 Resultantly, this civil revision is accepted and the judgment and decree dated 13-4-1991 of the Appellate Court as well as the judgment and decree dated 21-6-1989 of the Trial Court are set aside. Parties to bear their own costs.