1984 PLP 2708 (CLC)

‑‑S.17‑‑Gift under Muhammadan Law based on unregistered gift deed‑‑ Appellant's case all along being that he had acquired land by means of mutation which in turn was based on an unregistered document executed by donor in his favour‑‑No reliable evidence that he got land under an oral gift‑‑ Transfer o land allegedly manipulated to defeat right of pre‑emption of respondent‑‑Transfer of suit land in favour of appellant, held, was not a bona fide transaction in circumstances. Abdul Ghaffar and others v. Ghulam Jan and another P L D 1975 Pesh 12 and Mst. Umar Bibi and others v. Bashir Ahmad and others 1977 S C M R 154 distinguished. Briefly stated, the facts giving rise to this Regular Second Appeal are that Muhammad. Ashraf respondent instituted a suit against Muhammad Ali Khan appellant seeking declaration to the effect that the transfer of land measuring 11 Marlas in Khasra No.938/2 situate in village Mardana, Tehsil Ferozewala, district Sheikhupura, by one Muhammad Rafiq through Mutation No.1490, dated 13th March,1962 being fictitious was illegal. It was contended by the respondent that the said transfer of land had been manipulated with a view to defeating his right of pre‑emption which he possessed in respect of land measuring 237 Kanals 15 Marlas situate in village Mardana, Tehsil Ferozewala, district Sheikhupura, purchased by Muhammad Ali Khan appellant. The aforementioned transfer of land purporting to be a gift was against the provisions of Martial Law Regulation No.64. It also against the principles of Muslim Law as it was in respect of an undivided share in joint land. According to the respondent, the transfer of 11 Marlas of land by Muhammad Rafiq in favour of the respondent was in fact a sale and as such pre‑emptible on payment of its market price.

2. The appellant contested the suit and controverted the allegations made by the respondent. He pleaded that he had acquired land measuring 11 Marlas referred to in the plaint under a valid gift and that Mutation No.1490 it respect thereof was sanctioned in accordance with law.

3. The pleadings of the parties gave rise to the following issues:‑ (1) Is the Mutation No.1490, dated 13th March,1962, illegal and void? (2) If issue No.1 is proved in the negative, is the alienation of the suit land by Mutation No.1490, dated 13th March,1962, a sale and not a gift? (3) If issue No.2 is proved in the affirmative, is the plaintiff's pre‑emptive right superior to that of the defendant? (4) What is the market value of the suit land? (5) What is the value of the suit land for purposes of court‑fee and jurisdiction? (5‑A) Is this suit not maintainable in its present form? (5‑B) Is the mutation in dispute against the provisions of Martial Law Regulation No.64? (5‑C) Is the gift in dispute void for being that of a undivided share? (6) Relief.

4. The learned trial Court decided issue No.1, which was the main issue in the suit, against the appellant and passed a decree in favour of the respondent as prayed for by him. On appeal, the learned Appellate Court affirmed the finding of the learned trial Judge on issue No.1 and dismissed the appeal filed by Muhammad Ali Khan appellant.

5. The present Regular Second Appeal was admitted to consider whether there was evidence other than the gift deed which could be taken into consideration independently and was such evidence sufficient to establish the factum of gift. Learned counsel for the appellant has accordingly addressed his arguments on the above aspect of the case alone.

6. It has been argued by the learned counsel for the appellant that according to Muslim law, a gift of property can be effected orally and that it is not necessary to execute any document in respect thereof. The donee can establish a valid gift by showing that the three essential requirements of a gift under Muslim law namely, declaration of gift by the donor, acceptance of the gift by or on behalf of the donee and delivery of possession of the subject of the gift by the donor to the donee have been complied with. In the present case, all the aforementioned requirements had been complied with before the attestation of Mutation No.1490. Muhammad Rafiq, D.W.3, has proved the factum of gift by his declaration. He has also deposed with regard to the transfer of possession of the subject of the gift to the appellant Muhammad Ali. The acceptance of the gift by the appellant is also not controverted. Learned counsel for the appellant has contended that both the learned trial Court and the learned Appellate Court have erred in coming to the conclusion that the gift of the land in question has not been proved at the document evidencing the gift was an unregistered document and as such did not create any right or interest in the land in question in favour of the appellant. According to the learned counsel for the appellant, the afore‑mentioned document, a copy whereof is Exh.D.1, can be considered as a piece of evidence and in support of his arguments, he has relied on Abdul Ghaffar and others v. Ghulam Jan and another P L D 1975 Pesh.12 wherein it was held that the execution of a gift deed in favour of donee was not a sine qua non for the validity of gift and that unregistered gift deed in favour of Muslim donee was admissible in evidence. Reliance has also been placed on Mst. Umar Bibi and others v. Bashir Ahad and others 1977 SCMR 154 wherein it was held‑that if the formalities as prescribed by Muslim were completed, a valid gift could be effected even orally or under an unregistered instrument.

7. Learned counsel for the respondent, on the other hand, has submitted that the legal proposition that a valid gift of property can be effected orally under Muslim law cannot be disputed but in the present case the appellant had not relied on the oral gift of the land in dispute. His case was that he had acquired the land under a gift made by the donor by executing a deed on the basis of which Mutation No.1490 was sanctioned.

8. It has been further contended by the learned counsel for the respondent that the appellant's plea of oral gift has to be considered in view of the peculiar circumstances of the case. Apparently there was no good reason for Muhammad Rafiq to have donated 11 Marlas of land to the appellant. He was one of the countless number of Murids of Muhammad Rafiq and as such that relationship alone could not have weighed with the donor for making a gift of the land in dispute. The transfer of land in favour of the appellant was not by way of love and affection but it was for some other consideration. The appellant knew that the respondent being an owner in the estate would be able to successfully acquire the land purchased by him by exercising his right of pre‑emption. In order to defeat his right of pre‑emption, the appellant wanted to become owner in the estate by acquiring even a small piece of land in the estate under a gift as the acquisition of land through sale would not have served his purpose because the said acquisition could be successfully defeated by exercise of right of pre‑emption. According to the learned counsel for the respondent, a stamp paper of the value oll Rs.2 way purchased in the name of Muhammad Rafiq for writing a gift deed on 11th March,1962. However, the endorsement on the back of the stamp paper to the effect that it was purchased from Ghulam Muhammad, Stamp Vendor has been found to be fake as Ghulam Muhammad Stamp Vendor while appearing as P.W.1 has categorically stated that the stamp paper was not purchased from him nor he had made any entry in respect thereof in his register. Neither the scribe of the document nor any of its attesting witnesses has been examined by the appellant. It was on the basis of the aforesaid deed that Mutation No.1490 was entered by the Patwari in the register of mutations. Muhammad Rafiq himself did not go to the Patwari to report the factum of the gift, though a statement to that effect which, however, is not supported by the entries in the register of mutations, has been made by him while appearing as D.W.3. According to the learned counsel for the respondent, the appellant's contention that he had acquired the land in dispute under an oral gift is not consistent with the plea taken up by him in his written statement. It is clearly an afterthought and is not supported by evidence.

9. After going through the record and considering the arguments of the learned counsel for the; appellant, I have a feeling that the case now being presented on behalf of the appellant is materially different from the one which was placed before the Courts below. In the first instance it may be noticed that the appellant had not only omitted to mention the factum of oral gift in his written statement but had also failed to adduce evidence to establish the above factum. From his pleadings and the evidence produced by him, one can see that his case was that he had acquired the suit land under a gift by means of Mutation No.1490 which in turn was based on a document executed by the donor in his favour. It was not his case that prior to the execution of the document the donor had made an oral gift of the land in question in his favour. It was also not his case that after the execution of the document, the gift was effected under an oral declaration. It has been noticed that Muhammad Rafiq, the donor, did not report the factum of the gift to the Patwari. The mutation proceedings which contain the usual recital of transfer of land by the transferor and the delivery of its possession to the transferee cannot be relied upon explicitly particularly in a case like the present one where the bona fide and the genuineness of the transaction is vehemently being challenged. The appellant did not examine the Revenue Officer who attested Mutation No.1490, as a witness to prove that Muhammad Rafiq had declared before him that he had made gift of the land in question in appellant's favour. It may be noticed that Muhammad Rafiq has only stated that he had decided to make gift of the suit land in favour of the appellant before the execution o. the deed which means there was merely an expression of intention to make gift and that the gift had not been completed before the execution of the deed. It is, therefore, futile on the part of the appellant to rely on the deposition of Muhammad Rafiq to prove that he had acquired the land in question under an oral gift. Learned counsel for the appellant has relied on the entries in the copy of Khasra Girdawari Exh.D.3 to prove the delivery of possession of the land in dispute to the appellant as a result of the gift. In Rabi, 1963, the appellant has been shown to be in possession of 11 Marlas of land comprised in Khasra No.938/2. But it is not clear as to how the appellant was able to acquire possession of a specific piece of land measuring 11 Marlas out of the total area of 8 Kanals 13 Marlas of Khasra No.938. Even otherwise, the entries in the Khasra Girdawari do not carry any presumption of truth and, therefore, it is difficult to accept that the appellant had acquired possession of the land allegedly gifted to him by Muhammad Rafiq.

10. As noticed above, the appellant's case was that he had acquired the suit land under a gift deed executed by the donor. No reliable evidence exists on the record to establish that the appellant had acquired the suit land under an oral gift. The proposition of law laid down in the two reported cases relied upon by the learned counsel for the appellant cannot be disputed but the facts of the reported cases are distinguishable from those of the present case. The purchase of stamp paper with fake endorsement for executing the gift deed, failure of the appellant to examine the scribe and the attesting witnesses of the gift deed and absence of any special consideration for the donor to make gift in favour of the donee are such circumstances which lend support to the respondent's contention that the transfer of the suit land in favour of the appellant was not a bona fide transaction. In any case, it could not be declared as a valid gift. The concurrent finding of the Courts below that there was no valid gift of the land in question has to be upheld in view of the circumstances noticed above.

11. For the foregoing reasons, there is no merit in this appeal and the same is accordingly dismissed with costs. M.B.A. Appeal dismissed.