' MIAN HAMID FAROOQ, J.---Iffat Sultana Malik, the appellant/objector, wife of Mian Muhammad Rafiq Sehgal, the judgment-debtor/respondent No,2, through the filing of the present appeal, has called in question order, dated 22-5-1999, whereby the learned Banking Court dismissed an objection petition, filed by the appellant under Order XXI, rule 58, C.P.C.
2. Precisely stated, the facts, necessary for the decision of the present appeal are that pursuant to the passing of a judgment and decree dated 21-2-1999, for a sum of Rs,1,88,17,745 in Suit No,5 of 1998, against Mian Muhammad Rafiq Sehgal, the judgment-debtor/respondent No,2, by Modaraba Tribunal favouring Trust Modaraba/ respondent No,1, the latter filed the execution petition for the realization of the aforenoted decretal amount through the sale of the assets/properties belonging to the judgment-debtoRs, During the executing proceedings House No,8, Street No,18, Sector F-6/2, Islamabad, hereinafter referred to as disputed property, was attached, which prompted the appellant to file an objection petition under Order XXI, rule 58, C.P.C. Asserting therein that the disputed property does not belong to the judgment-debtor, is owned by the objector by virtue of an oral gift, statedly, made on 6-8-1992, and subsequently, acknowledged in writing by acknowledgement deed dated 3-2-1994. It was further averred that consequent to the said gift, the objector is in > possession of the disputed property, the same has been included in the Wealth Tax Assessm ent of the objector and that she has spent a considerable amount on the reconstruction of the said property. It was the case of the appellant that the disputed property is not the property of the judgment-debtor and thus the same cannot be sold in execution of the decree passed against respondent No,2. The said application was resisted by the decree-holder by way of filing the reply, thereby controverting the contents of the application, however, ultimately, the learned Banking Court, after finding that the "objector has failed to furnish any registered gift deed in support of her claim" proceeded to dismiss the objection petition vide order dated 21-5-1999, hence the present appeal.
3. Another factor, which is also relevant, is that the disputed property was put to auction, through the process of the Court, and, one Dr. Muhammad Sadiq was declared as the highest bidder, who, statedly, deposited the auction price with the Court Auctioneer within the stipulated period, thus Dr. Muhammad Sadiq has also claimed his interest in this appeal.
4. The learned counsel for the appellant has contended that an oral gift was made on 6-8-1992 in favour of the appellant, which was acknowledged on 3-2-1994, thus the gift favouring the appellant was complete for all intents and purposes and that no registered deed of gift is necessary. He has further contended that since the oral gift was made, the appellant is in possession of the property, which find mention in the wealth tax returns and that fact is sufficient to show that the gift was valid. He has added that the property was not mortgaged at any point of time in favour of the decree-holder and in any case neither the acknowledgement deed nor the documents annexed therewith were taken into consideration by the learned Court below, while dismissing the objection petition. Conversely, the learned counsel for the decree-holder, while supporting the impugned order, has submitted that in fact no valid gift was made in favour of the appellant and that in order to forestall the execution of the decree, passed against the husband of the appellant, the forged documents have been prepared. However, he has admitted that the property was not mortgaged.
The learned counsel for the Auction-Purchaser has also opposed this appeal by submitting that it is a fraudulent transaction which was entered into, only to avoid the interest of the creditors, which is not only in violation of the provisions of Transfer of Property Act, but also forbidden in Islamic Law.
5. Admittedly, the disputed property was not mortgaged in favour of the decree-holder by the judgment-debtor at any point of time. Further admittedly, the present appellant, although is wife of the judgment-debtor. Yet she was neither a defendant nor a judgment-debtor and no decree was passed against the appellant in the suit, out of which the present appeal has arisen. Precisely, the case made out by the appellant before the learned Banking Court, in her objection petition, was that the disputed property does not belong to the judgment-debtor, who. In fact, has gifted the disputed property in favour of the objector as far back as in the year 1992 and therefore, the said property cannot be attached or sold in execution of the decree passed against the judgment- debtor. In support of her objection petition, the objector has placed on record certain documents, which, according to her, substantiate the contentions raised by her in the objection petition and prove that the property was, in fact, gifted in her favour in the year 1992. We find from the impugned order that the said contentions/stances, taken by the appellant in her objection petition, were not at all adhered to by the learned Banking Court nor the documents produced by her, were taken into consideration while rendering the impugned order. We have perused the impugned order and find that as a matter of fact, the pleas raised by the appellant were not at all considered by the learned Banking Court in its true perspective and the impugned order was passed only on the premises that she failed to furnish any registered gift deed in support of her claim. Aforenoted foundation of the order presupposes that according to the learned Banking Court. There is no other mode of gift in Islamic Law except by way of registered gift deed. To say the least, this approach of the learned Banking Court is purfunctory, not recognized by the established principle of law and also against the principles of Islamic Law regarding gift. Furthermore, the documents produced by the objector were not at all considered by the learned trial. Court while non-suiting the appellant.
The learned Court below, without holding any inquiry and without adverting to the documents on record and in complete oblivion of the facts of the case and law on the subject, immediately, came to the conclusion that the acknowledgement regarding the gift seems to be a sham as well as fictitious transaction, just to frustrate the auction proceedings. Suffice it to say that the learned Banking Court could not have come to this conclusion, unless and until appropriate opportunity of producing evidence was afforded to both the parties. Seeing from any angle. The findings of the learned Banking Court, while dismissing the objection petition, are not sustainable under the law and we are not inclined to maintain the same.
6. Upon the examination of the objection petition and the available record, we find that this was the fit case in which the learned Banking Court, before passing the impugned order, ought to have investigated the claim and objections, to the attachment of the property, raised by the appellant, by providing sufficient opportunity to the parties for establishing their respective claims through production of evidence. It has been held in Mst. Syrraya Begum v. Muslim Commercial Bank Ltd.
And 4 others PLD 1990 Lah. 4 that "All claims relating to the rights, title or interest of the claimant or objector in the attached property has to be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest". It does not mean that the learned Executing Court is under an obligation to mechanically record the evidence of the objector in each and every case, of course, the learned Executing Court had to see in individual cases as to whether the case warrants the recording of evidence or not and that the objection application has been filed frivolously, contumaciously and to delay the proceedings or it is a genuine application.
Primarily, it is the function of the Banking Court to decide as to whether the objection petition is to be decided after recording the evidence or only after hearing the parties. In the instant case, we feel that this was the fit case, where the appellant should have been allowed an opportunity to establish her claim, regarding the attachment of the property, through the production of evidence.
7. Upon the examination of the impugned order, we find that the appellant was non-suited. On the ground that she could not 'furnish any registered gift deed in support of her claim" regarding the gift. This approach of the learned Banking Court. To say the least, is superficial and in complete oblivion of the basic law on the subject. It is the basic principle of Islamic Law that a person, having Muslim faith, can make a valid gift by making an offer to the donee, acceptance of such offer by the donee and the subsequent delivery of the possession of the property by the donor to the donee. Undisputedly, the prerequisites of a valid gift under Muslim Law are declaration/offer by owner; acceptance of gift by donee and the delivery of possession of corpus and as soon as these three necessary and inseparable ingredients are established, a valid gift comes into existence. It is firmly established principle under the Muslim Law that a valid gift can be effected orally if the aforenoted prerequisites under the Muslim Law are complied with. Under the Muslim Law, relating to gift, no written instrument is necessary, neither instrument of gift is compulsorily registrable under the Registration Act. Findings recorded by the learned Banking Judge in this regard cannot be countenanced under any stretch of imagination inasmuch as they are contrary to the principles of Muslim Law as well as the established law on the subject. If any case-law is needed Abdul Sattar Dadabhoy and another v. The Honorary Secretary, Pakistan Employees Cooperative Housing Society, Karachi PLD 1998 Kar. 291 and Mst. Hamida Bibi v. Wali Muhammad 1999 MLD 1687 can be referred.
' Furthermore, section 129 of the Transfer of Property Act provides that gifts made under the Muslim Law are expressly excluded from the operation of the said Act. If sections 123 and 129 of the Transfer of Property Act are read together, the obvious conclusion therefrom is that the provisions of section 123 does not apply to a gift under Muhammadan Law and no writing of such gift is essential. It has been held in Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154 that the gift made under the Muslim Law is expressly excluded from the operation of the Transfer of Property Act and that as soon as the formalities prescribed by Muslim Law, are complete, a valid gift could be effected even orally or under an unregistered instrument.
8. Adverting to the claim of the Auction-Purchaser, suffice it to say that he will swim and sink with the result of the objection petition and his rights, obviously, be determined subject to the decision of the appellant's objection petition.
9. In the above perspective, upon the examination of the impugned order, we find that the same is neither in conformity with the record of the case nor in consonance with the law on the subject, thus we are of the view that the same is not sustainable and we are inclined to set the same aside.
10. Upshot of the above discussion is that the present appeal is allowed and the impugned order, dated 22-5-1999 is set aside with no order as to costs.
' Result would be that the objection petition, filed by the appellant, shall be deemed to be pending before the learned Banking Court, who shall decide the same, after affording adequate opportunities to the parties to produce their evidence to establish their respective claims, and of course in accordance with law preferably within a period of two months from the receipt of this order.