1998 PLP 796 (CLC)

Date of hearing: 12th December, 1997 A suit filed by respondent, Meraj Bibi for seeking declaration of ownership to the extent of 1 /2 share in land measuring 19 Kanals, 3 Marlas, at Chak No.29 J.B., Tehsil and District Faisalabad, on the basis of gift in lieu of dower, was decreed by the learned Civil Judge, Faisalabad, which judgment was affirmed in appeal by the learned Additional District Judge, Faisalabad, vide judgment, dated 2‑12‑1981. This revision has been filed to assail the two judgments of the learned Courts below. The case set up in the pleadings was that Muhammad Ismail and his brother Muhammad Siddique were joint owners of land. Muhammad Ismail was married to the respondent, Mst. Meraj Bibi and in consideration of marriage, Rs.5,000 was fixed as dower amount. In lieu of dower, Muhammad Ismail gifted out his share in the land .on 18‑1‑1973, in favour of respondent. Muhammad Siddique, defendant No. 1, (respondent No. 3 herein), felt annoyed by the gift made by Muhammad Ismail and ultimately Muhammad Ismail was murdered as his hands. In her suit, respondent claimed ownership to the extent of 1 /2 share on the basis of gift made in her favour by Muhammad Ismail. The suit was resisted by the petitioners, who denied the gift and challenged the document of gift as forged.

2. In consequence of findings recorded against Issues Nos. l to 3, the learned Civil Judge, decreed the suit by observing that the respondent had proved herself to be owner of 1/2 share in the property on the basis of gift made in her favour in lieu of dower. The learned Additional District Judge agreed with the learned trial Court and dismissed the appeal.

3. Learned counsel for the petitioner argued that the execution of document (Exh. P/1) was not proved and that the same was inadmissible for want of registration. He submitted that the document being Hiba‑bil‑Awiz required registration and having not been registered no title had passed in favour of respondents. In defence, learned counsel for the respondent argued that the execution of Exh. P/1 was concurrent upheld by the two Courts below which findings could not be challenged in revisional jurisdiction. He maintained that the gift was in lieu of dower which did not require any registration and in any case a gift by a Muhammadan in favour of Muhammadan did not require registration as the provisions of Transfer of Property Act requiring registration in the matters of gift were not applicable to the gifts by the Muhammadan. Lastly it was submitted that section 54 of the Transfer of Property Act was not applicable in Punjab as on the date of execution of gift and the said provision was applied w.e.f. 30‑12‑1974:

4. With the assistance of the learned counsel for the parties, the entire evidence led by the parties was re‑examined. On review of the evidence and consideration of the submissions made by the two sides, it is observed that for the reasons hereinafter, this revision is devoid of any substance. The execution of Exh. P/1 was proved by the statements of P.W.2, P.W.3 and P.W.4 P.W.1, Fateh Muhammad, deposed that at the time of Nikah, Rs.5,000 was fixed as dower of the respondent. P.W.2 Khair Din, deposed that Nikah was performed in his house; a sum of Rs.5,000 was fixed as dower at the time of Nikah and Muhammad Ismail had transferred in lieu of dower his share in the property in issue. He also deposed that possession was transferred through the tenant. P.W.3 deposed that Exh. P/1 was scribed by him on instructions of Ismail which was read over to him and was thumb‑marked in his presence by the executant. Abdul Latif P.W.4 who is a marginal witness deposed that gift‑deed Exh. P/1 was drafted in his presence on instructions of Ismail who thumb‑marked the same. He further deposed that the transfer was in lieu of dower. The fact that the Nikah took place in the house of P.W.2 was also confirmed by D.W.1 and D.W.2, produced by the petitioner. In the presence of the evidence noted hereinabove, it cannot be said that the execution of the document was not proved. The learned Courts below by considering the entire evidence also concurrently held that the document under reference was genuine and was executed by Ismail wherein it was acknowledged that the property had been transferred in lieu of dower. No misreading or non‑reading of evidence could be pointed out, in the course of hearing of this petition. The conclusions drawn by the two Courts below as to the execution of the document do not, in any way suffer, from any infirmity or jurisdictional error.

5. The objection as to non‑registration of the document was not raised in the pleadings but however, it appears that at the appellate stage, it was taken for the first time. The learned Additional District Judge took the view that the document did not require registration.

6. Learned counsel for the petitioner in support of his objections, placed reliance on Haji Ghulam Hussain v. Mst. Amir Khatoon (PLD 1976 BJ 37) wherein it was held that every gift in lieu of dower would not amount to sale. It was observed that in case of Muhammadan husband, a gift made by him to his wife in lieu of dower may be within exchange and may be without it also, and if the husband had fixed a particular amount of dower and in exchange thereof he alienates his property by way of gift he shall be deemed to have transferred it for value in discharge of his debt and such gift or Hiba would be Hiba‑bil‑Awiz and the transaction would amount to sale, but a direct gift of an immovable property in lieu of dower at the time of Nikah created by a husband in favour of his wife without incurring liability by specifying a dower debt in terms of money does not take a character of Hiba‑bil Awiz and it will be a simple Hiba without any exchange not amounting to sale as defined in section 54 of Transfer of Property Act. In this case, it was held that a gift under Muhammadan Law is to be effected in the manner prescribed by Muhammadan Law, that is, to say by a declaration, acceptance and delivery of possession. It was held that if these three formalities prescribed by law are complied with, the gift would be valid even though it was not effected by a registered instrument, but if the prescribed formalities are not complied with, the gift would not be valid even though it had been duly registered. It was observed that the gift‑deed executed by a Muhammadan cannot be construed as, an instrument effecting, creating or making gift, but a mere piece of evidence.

7. In Mst. Allah Jawai v. Allah Ditta (PLD 1975 Lahore 1399), it was held that transfer of immovable property by husband to his wife in lieu of dower comprises of two distinct transactions viz. (1) gift of property by husband to his wife; (2) gift by wife of her right to recover dower from her husband, the whole transaction would be Hiba‑bil‑Awiz which would not be required to be effected through a registered instrument as it would neither be a sale under section 54, T.P.A: nor provisions of Chapter VII of the Act (ibid) (relating to the gifts) would be applicable by virtue of provisions of section 129 of the Act. In this case, it was observed as follows:‑‑‑ "Ordinarily in a transfer of immovable property by a Muslim husband to his wife in lieu of dower, there are two distinct gifts one by each party to the other. The husband transfers by gift the property, while the wife makes the gifts of her right to recover dower‑‑‑in other words she makes a gift of the dower debt. The transaction is essentially Hiba‑bil -Ewaz. This being the ordinary rule, it needs to be observed that there might be some exceptions, as visualised in some cases, depending upon peculiar circumstances thereof

As already considered such a transfer by a Muslim husband in favour of his wife in lieu of her dower being essentially a gift, was not required, to be effected through a registered instrument. Therefore, while confirming the findings of fact by the learned Trial Court, I set aside the finding of the learned First Appellate Court to the effect that the transaction in question is to be treated as sale. If it is not sale, then, the second assumption of law made by the learned Judge that registered instrument was necessary to effectuate it, is also correct. It is further observed that the provisions contained in Chapter VII of the Transfer of Property Act which inter alia require making of a gift of immovable property only by registered instrument, do not apply to the present case which is of Hiba‑bil‑Ewaz by a Muslim‑such gifts are excluded by virtue of section 129 which provides that nothing in Chapter VII shall be deemed to affect any rule of Muslim Law."

8. In view of the rule laid in the case noted (supra), with which I also agree, the gift in the present case made in favour of respondent in lieu of dower did not require registration nor it could not be termed as sale. The transfer of property in favour of respondent in lieu of dower stood proved by oral statements of witnesses. From the statements made by P.Ws., it is proved beyond doubt that in consideration of dower, Muhammad Ismail transferred his share in the property in favour of respondent which was not a sale but a gift in lieu of dower. The declaration and acceptance of gift is proved, transfer of possession is also proved as previously, the respondent, enjoyed possession through her husband and thereafter through Muhammad Shafi tenant. On transfer of property, she became co‑sharer in the property and remained in constructive possession through her tenant. The gift was, thus, complete.

9. A gift by a Muslim Worries complete, if declaration is made, acceptance of gift is expressly or impliedly made by or on behalf of donee and delivery of possession of subject‑matter by donor to the donee takes place. Once three conditions are fulfilled, neither any writing would be required to complete gift nor any such document acknowledging transfer of property by gift would require registration. Section 129 of Transfer of Property Act, makes it clear that the provisions of the Act (ibid) contained in Chapter VII, requiring making of gift of immovable property through registered instrument, do not apply to the gifts made by the Muhammadans.

10. In Mst. Umer Bibi and others v. Bashir Ahmad and 3 others (1977 SCMR 154), it was held that gifts made under the Muslim Law are expressly excluded from the operation of Transfer of Property Act by virtue of section 129 of the‑Act (ibid). In Maulvi Abdullah and others v. Abdul Aziz and others (1987 SCMR 1403), it was held that the gifts of the immovable property made under Muhammadan Law are expressly excluded from the operation of section 123 of Transfer of Property Act by section 129 of the Act. It was expressly ruled in the said judgment as follows:‑‑ "In an earlier Lahore case relying on section 129 of the Transfer of Property Act, with respect, I had taken the same view which as already noted, has been taken by the Supreme Court, in the case of Mst. Umar Bibi. It is Allah Jawai v. Allah Ditta (represented by heirs) PLD 1975 Lahore 1399. It was observed at page 1404 of the report. It is further observed that the provisions contained in Chapter VII of the Transfer of Property Act which inter alia require making of a gift of immovable property only by registered instrument, do not apply to the present case which is of Hiba‑bil‑Ewaz by a Muslim such gifts are excluded by virtue of section 129 which provides that nothing in Chapter VII shall be deemed to affect any rule of Muslim Law.' Similar view was taken by the Peshawar High Court in Abdul Ghaffar and 6 others v. Ghulam Jan (represented by 5 heirs) and another PLD 1975 Pesh.

12. Although no reference was made to section 129 of the Transfer of Property Act, yet it was held after discussing the other provisions of the Transfer of Property Act and Registration Act that a gift by a Muslim would be complete even if there is no writing and, it depends, for its validity, upon: (1) a declaration of gift by the donor: (2) acceptance of gift expressly or impliedly by or on behalf of the donee, and (3) delivery of possession of the subject‑matter by the donor to the donee. If these three conditions are complied with the gift is complete. Registration of the document will not be helpful if either of the aforementioned conditions are not satisfied. A written instrument in any case would not create a gift but is a mere evidence of the gift and as such would not in the case of a Musalman require registration. The gift was, therefore, held as complete under the Muslim Law and as such operative notwithstanding the non‑registration of the gift‑deed itself. "

11. From the rule given in the precedent cases, it becomes obvious that the gifts made by Muslims in favour of Muslims under the Muhammadan Law are expressly excluded from the purview of Chapter VII of the Act by virtue of section 129, T.P.A. To complete the gift, declaration, acceptance, transfer of possession are required. Neither writing nor registration is mandatory. Evidence on record proves oral gift in lieu of dower by the deceased which obviously did not require any registration. The document Exh. P/ I was executed to acknowledge transfer of property by way of gift in lieu of dower which is manifestly clear from the review of the document itself and in this view of the matter, the same did not require registration. As a matter of fact, the document was evidence and cannot be construed to be an instrument effectuating or creating gift. In this backdrop, the learned Courts below did not commit any error of law or the jurisdictional irregularity in concluding that the respondent was owner‑in‑possession of the share in property by virtue of gift in lieu of dower. No misreading or non‑reading of the evidence was observed nor any could be pointed out in the course of hearing. Resultantly, this revision petition being without any substance is dismissed leaving the parties to share their own costs. A.A./C‑10/L Revision dismissed