P L D 1953 Azad J (PLP)

ABDUL MAIID, C. J.‑The material facts relating to the dispute which has given rise to the present appeal may be briefly stated as follows: A suit was Instituted by the appellants against the respondents Abdullah Khan and Feroze Din for recovery of possession of two shops alleged to belong to the appellants and leased to the respondents, on the ground that the respondents had refused to pay the rent and restore their possession. The suit was contested by Abdullah Khan respondent, only. The other respondents sided with the appellants. Abdullah Khan respondent pleaded that the site underneath the shops belonged to Noor Alain deceased, brother of Mir Alam appellant and father of the remaining appellants and that Noor Alain had made an oral gift of it and the shops thereon were raised by him at his own expense. He denied that be was ever in possession of the shops as lessee and claimed himself to be their owner. The trial Court held that the site of the shops had been given to Abdullah Khan respondent by Noor Alain by way of gift and that Abdullah Khan had spent about it 125 of building the shops. The trial Court further, held out the gift of the site made by Noor Alain in favour of Abdullah. Khan could not take effect as it was not made by a registered deed. The result was that the trial Court passed a decree for possession of the shot s in favour of the appellants on payment of Rs. 125 to Abdullah Khan respondent. Against this decision, Abdullah Khan preferred an appeal in the Court of District Judge, Poonch. The learned District Judge held that the rule of decision being Muhammadan Law, as regards gifts of land and immovable property among Mussalmans under section .t8 of the Azad Jammu & Kashmir Courts and Laws Code, 1949, the provisions of the Registration and Transfer of Property Act were not applicable to the gift in dispute and the essentials of a gift under the Muhammadan Law having beers fully complied with the suit of the appellants should be dismissed The result was that the learned District Judge accepted the appeal of Abdullah Khan and dismissed the suit with costs throughout. It is contended in the present appeal, that the view taken by the learned appellate Court was erroneous and the decree passed by the trial Court should be restored. It is argued before us on behalf of the appellants that the Azad Kashmir Government adopted the Transfer of Property Act as it was in force in the Dogra regime and according to the amended section 129 of that Act, it was specifically provided that the provisions of section 123 which necessitated the transfer of immovable property by way of gift by a registered instrument signed by or on behalf of the donor and attested by at least by two witnesses shall be applicable to gifts among Mussalmans and consequently the gift relied upon by the respondents which was not evidenced by a registered deed, could not be given effect to. In reply it is contended that it was provided in section 3 of the Azad Jammu & Kashmir Courts and Laws Code, 1949 that all Laws and enactments of the Dogra regime inconsistent with the provisions of this Code or with the enactments passed or adopted by the Azad Jammu & Kashmir Government shall be considered to have been repealed and consequently the amendment introduced in section 129 of the Transfer of Property Act by the Dogra Government to matte the provisions of section 123 of that Act applicable to gifts among Mussalmans being contrary to the spirit of Muhammadan Law should be considered as repealed. It is, further, contended that at the time the gift in dispute was made no machinery had been provided by the Azad Kashmir Government for the registration of documents and no declaration had been made that all transfers were prohibited and consequently the oral gift followed by possession of the gifted property? was valid, even if it be taken that the Registration Act had been adopted by the Azad Jammu & Kashmir Government gas it seas in force in Dogra Regime. The arguments advanced by the counsel on both sides necessitate the determination of two cardinal points. The first point is whether section 3 read with section 48 of Azad Jammu & Kashmir Courts and Laws Code of 1949 repealed the amendment introduced by the Dogra Regime in section 129 of the Transfer of Property Act so as to make the provisions of section 123 of that Act applicable to gifts of immovable property even where the rule of decision vas the Muhammadan Law. The second point is, whether, the failure of Azad Jammu & Kashmir Government in appointing the inspector‑General of Registration and leis subordinate staff in spite of the declaration that the Registration Act shall be deemed to be in force as it was in the Dogra Regime permitted the making of an oral gift of immovable property by delivery of possession because It is admitted that the registration machinery was only set up recently. In order to resolve the first point, we reproduce below sections 3 and 43 of the Azad Jammu & Kashmir Courts and Laws Code of 1949. Section 3.‑"All Laws and enactments of the Dogra Rule inconsistent with the provisions of this Code or with the enact?ments passed or adopted by the Azad Jammu & Kashmir Government are hereby repealed and all other Laws stall as far as practicable, continue to remain in force. Section 48.‑‑"In questions regarding inheritance to land, immovable property, rent, and goods, succession, special property of females, betrothal, marriage, divorce (including all form of dissolution of family relation?, wills, legacies, gifts, partitions, contracts or any religious usage or institutions, the rule of decision shall be:‑ (a) The Hindu Law when the parties are Hindus ; (b) The Islamic Shariat according to codified 'Shara-?Muhammadi' (Muhammadan Law) and Muslim Marriages Dis?solution Act where the parties are Muslims; (c) The dictates of justice, equity and good conscience according to haw of the defendants or any Law in force in all other cases." The clause (b) of section 48 conveys an impression that it was intended that the rule of decision regarding questions detailed above was intended to be Islamic Shariat according to codified Muhamadan Law so far as Mussalmans were concerned. Unfortunately the Muhammadan Law was not codified. As the general cry in Pakistan was when the Azad Jammu and Kashmir Government began to function that all Laws in force in ~,he State should conform to Shariat so it was provided in clause (b) of section 48 but no further attempt was made to clarify the matter. In the circumstances, it cannot be said that the Azad Jammu and Kashmir Government adopted the Islamic Shariat in its entirety and consequently the provisions of the Transfer of Property Act and Registration Act were not applicable to gifts of immovable property among Mussalmans. It is thus clear that section 48 of Azad Jammu & Kashmi Courts end Laws Code of 1949 does not lay down that provisions of Registration Act and Transfer of Property A Act would not apply to gifts of property among Mussalmans. We now come to the question whether the amendment introduced by the Dogra regime in section 129 of the Transfer of Property Act is or i9 not applicable to gifts of immovable property made by a Mussalman after the Azad Jammu and Kashmir Government began to function. For this purpose, we have to interpret section 3 of the Azad Jammu and Kashmir Courts and Laws Code of 1949. The wordings of this section stated above, do not clearly indicate that if any provision in any particular law or enactment In force in the Dogra regime is deemed inconsistent with the provisions of the Azad Jammu & Kashmir Courts and Laws Code of 1949, it is to be taken as repealed. If it were so, section 3 would not have been worded as it is. On the other hand, it would have been provided that any provision in any law or enactment contrary to the Rules of Muhammadan Law would be considered as repealed. We are, therefore, of opinion that the amendment introduced in section 129 of the Transfer of Property Act in the Dogra regime cannot possibly be considered to have been repealed by the strict interpretation put upon section 3 of the Azad Jammu & Kashmir Courts and Laws Code of 1949 as it stands at present. Now we come to discuss the effect of the failure of the Azad Jammu and Kashmir Government to provide machinery for registration of deed, etc. It is a common sense principle that if certain enactment is passed or adopted and no machinery is provided for giving effect to its provisions, then it should be considered as a dead letter unless it is definitely declared that no transaction covered by the enactment will take place till the necessary officers began to function. As no steps were taken to appoint the officers for registering L documents connected with the transfer of property and the persons making transfers were not prohibited by any specific declaration, it is to be presumed that the Government was not serious for giving effect to the provisions of Registration Act. This being the case an oral gift of immovable property which is perfectly valid according to Muhammadan Law, cannot be brushed aside simply on the ground that it was no evidenced by a registered deed. The essentials of a gift under the Muhammadan Law being its declaration can the part of the donor and acceptance expressed or implied of the gift by the donee and delivery of possession of the property, the subject‑matter of gift according to its nature a deed of gift executed by a Muhammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence and consequently no registration is required. The gift of immovable property of the site on which the shops were built by the respondent Abdullah Khan has been held to be complete in every respect, except for registration and this cannot be set aside under the circumstances mentioned above. The results, that we uphold the decision of the District Judge though on somewhat different grounds and dismiss the appeal. In view of the complexity of the question invoked in the appeal and the original suit, we order that the costs shall be borne by the parties throughout. Announced. NAZIR AHMAD, J.‑I agree. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.