The petitioner's suit for declaration, was dismissed by the learned trial Court, vide judgment and decree dated 24-9-1995. Their appeal also failed on 4-11-1998.
2. Briefly stated the facts of the case are that, Sh. Riaz-ud-Din, the predecessor-in---interest of the petitioners and respondents Nos. 1 to 1-C, owned two Bungalows bearing No.72-A, Model Town, Lahore, and N0.39-A, Model Town, Lahore, thus, he had two memberships of the Model Town Society. By virtue of a Transfer Form dated 13-1-1973, he transferred his one share of Rs.100, numbered 2534, and his interest in Plot No.72-A, as gift in favour of respondent No. 1. Subsequently, Sh. Riaz-ud-Din, brought a suit for declaration and permanent injunction stating that, in fact, no gift was made by him; transfer of share and interest in the aforesaid plot was just with a purpose to enable the respondent No. 1, his daughter to contest the elections of the society; there was no intention to make the gift of the aforesaid Bungalow. This suit was contested by the respondents.
During the pendency of the suit, Sh. Riaz-ud-Din died, and the present petitioners were impleaded as plaintiffs in his place, while some of his legal heirs alongwith the original defendant, were arrayed as defendants. The said defendants claimed that, the gift was valid and that defendant No. 1 is the owner on that account. Anyhow, the following issues were framed by the learned trial Court:-- Issues
(1) Whether the property known as Bungalow No.72-A Model Town, Lahore, has validly been gifted to Miss Nusrat Riaz, defendant No. 1, by his father Riaz-ud-Din Sheikh? OPD
(2) If Issue No. 1, is proved in affirmative, then whether the plaintiffs are estopped to challenge the gift in favour of defendant No. 1, Miss Nusrat Riaz under the principle of acquiance? OPD 1 to 1-C
(3) Whether the plaintiffs have properly valued their suit for declaration with permanent injunction?
If not what is the correct valuation and with what effect? OPP
(4) Relief.
3. The parties were put to trial and the learned trial Court, by giving findings mainly on Issues Nos. 1 and 2, dismissed the suit, holding that a valid gift of the suit property was made in favour of defendant No. 1, by late Sh. Riaz-ud-Din. Appeal filed by the petitioners also failed.
4. Learned counsel for the petitioners contends, that according to section 17 of the Registration Act, the transfer of any right or interest in an immovable property, more than one hundred rupees in value, can only be effected through registered instrument; in the present case, there is no registered document, envisaging the gift, therefore, such gift was invalid on account of the above.
It is further stated the late Sh. Riaz-ud-Din, had only transferred his share of membership and never transferred the Bungalow bearing No.72-A, rather in the Transfer Form, it is only mentioned that the plot has been transferred and there is no reference to the super--structure thereof; thus, the bungalow was never gifted by the donor. He also submitted that subsequent conduct of the parties also shows, that the property was never gifted, because according to the assessment record of the Excise and Taxation Department, Government of Punjab, Sh. Riaz-ud-Din had been throughout, incorporated as owner of the property and he has been paying the taxes; there is no change in the ownership on the basis of the alleged gift. Lastly, it is submitted that at the time, when the alleged gift is stated to have been made, the aforesaid property was in the possession of one Masood Chishti as a tenant, and the physical possession of the property, was never delivered to the respondent No. 1; it is not the case of respondent No. 1 that the said tenant was asked by the donor that he had attorned in favour of respondent No.1, resultantly, such gift, without delivery of possession, was invalid.
5. Learned counsel for the respondents, when confronted, states that the gift form was duly executed by Sh. Riaz-ud-Din, and the argument, that it was only with regard to the transfer of share in the Model Town Society, is absolutely erroneous, because it is clearly mentioned in the Transfer Form that Property No.72-A, has been gifted to respondent No.1; this gift was given due effect in the record of Society by a resolution of, the Society, and since then, the respondent No.1 is the owner in possession of the suit property.
6. I have heard the learned counsel for the parties. As far as the question, whether an immovable property of the value of more than one hundred rupees, can be gifted without a registered instrument, suffice it to say, that according to section 17 of the Registration Act no right, title or interest, in an immovable property of the said value, can be created without registered document.
In this situation, learned counsel for the respondents states that according to the Muhammadan Law an oral gift is permissible. Obviously, there can be no cavil with this proposition, but where, a gift is orally made, according to the Muhammadan Law, the delivery of possession is sine qua non.
According to the statement of D.W.2, the defendant No.1 (donee), she has admitted that at the time, when the gift was allegedly made, she was posted as a doctor in Army at Multan, and that the property was in possession of one Masood Chishti, as a tenant. It is not her case that the physical possession was ever delivered to her. Her statement that, her father had told her that he had asked Masood Chishti to execute the lease deed in favour of the donee, and that such deed was executed and was shown to the defendant, I am afraid, such document has not been produced on the record. Even Masood Chishti or his legal heirs, if he died, have not been examined to prove, if he ever attorend in favour of defendant No.1. Therefore, when under the Muhammadan Law, for the validity of an oral gift, the delivery of possession was essential, and this has not been so proved by the respondents, I am constrained to hold that no valid gift had been made in favour of the said defendant.
7. It may also be pertinent to state here that in the record of Excise and Taxation Department; throughout, the name of Sh. Riaz-ud-Din, had appeared as owner of the property, and the gift was never given effect therein. Moreover, the petitioners have also placed on record the lease deed, showing that the property was subsequently leased out by Sh. Riaz-ud-Din, during his lifetime, to the Mineral Department. To contradict this document, no evidence has been led by the respondents. These aspects of the matter, particularly, the question about the delivery of possession, have not been taken into account by the learned Courts below, which was a vital issue for the validity of the gift. Resultantly, both the Courts below, have misread the evidence and misapplied the law, while passing the impugned judgments and decrees, therefore, such judgments and decrees cannot be sustained.