P L D 1975 Peshawar 12 (PLP)

(3) Whether the suit is bad for non-joinder of necessary parties? (4) Whether plaintiffs are estopped to bring this suit? (5) Whether plaintiffs are owners in possession of the suit land on then basis of gift-deed dated 7-12-1960 ? and (6) Relief. The trial Court answered issues 1 and 5 in favour of the plaintiffs. Issues 2, 3 and 4 were answered against the defendant. On the view of the matter that it took, the trial Court decreed the suit of the plaintiffs. It, however, directed that the parties shall bear their own costs.

4. There was an appeal by the defendants to the District Judge and it was eventually disposed of by an Additional District Judge at Peshawar. The learned Additional District Judge was of the view that the gift relied upon by the plaintiffs was valid and that there was also delivery of possession but notwithstanding this conclusion the learned appellate Court observed what follows:- "There is no doubt that Mst. Pari Jan the alleged donee was in possession of the land in dispute after the execution of the gift deeds in her favour until her death and thereafter the plaintiffs were in possession and this could be availed of by them as a part performance of the contract under section 53-A of the Transfer of Property Act, but this benefit could be availed of only if they were defendants in the case. Under this section they cannot claim title to the property in dispute on the basis of unregistered documents even if they are in possession of the property because if a person is allowed to base his claim to, certain immovable property on the basis of unregistered documents which are compulsorily register-able under section 17 of the Registra tion Act, it will nullify the provisions of sections 17 and 49 of the Registration Act and section 107 of the Transfer of Property Act. Thus the plaintiffs were not entitled to any decree declaring their title to the land in dispute on the basis of the unregistered documents on which they based their claim even if they were in possession of the property in pursuance of these documents and their suit was liable to be dismissed. Of course they may avail of their possession when any attempt is made to oust them from possession, but they are not entitled to any decree as plaintiffs." The appeal was accepted and the plaintiff's suit was dismissed. Parties were however, directed to bear their own costs.

5. The plaintiffs are not satisfied with the above order of the learned Additional District Judge and they have come in appeal to this Court. It is contended on their behalf that the reasoning given by the lower appellate Court was untenable. Notwithstanding the amendment of section 49 of the Registration Act by Registration Amendment Ordinance, 1962 the un-registered gift deeds were admissible in evidence. The donor and the doee were governed by Muslim Law and execution of the documents was not, sine qua non for the validity of the gift. The impugned gift had to be examined with reference to the provisions of Muhammadan Law and that no sooner it was clear that there had been a delivery of possession of the donated property, the gift was complete and irrevocable, for, the parties were related in prohibited degrees. It was further added that section 53-A of the Transfer of Property Act governed the case and that the argument that the unregistered gift-deeds would have only helped the appellants if they had been called to defend their position but not otherwise was untenable.

6. The Transfer of Property Act is not applicable to this Province and even so section 123 of that Act would not have governed the case, for, that section is not applicable to the persons governed by Muslim Law. A gift by a Muslim would be complete even if there is not writing and it depends for its validity upon (1) a declaration of gift by the donor, (2) acceptance of the 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 Musalman require registration. This view finds support from Fateh Mahomed v. Mitha and another (A I R 1926 Lah. 286) and Nasib Ali v. Wajed Ali (A I R 1927 Cal. 197). The last mentioned ruling is a Division Bench authority. The following observation of Suhrawardy, J., in the said Calcutta ruling can be quoted with advantage in support of the conclusion:

"It is argued before us on behalf of the appellant that the deed of gift not being registered under the Registration Act, is not admissible in evidence and no other evidence of the fact of the gift can be admitted under section 92 of the Evidence Act. This argument is based upon the fallacious assumption that the gift was created by the deed. Under section 123 of the Transfer of Property Act a gift must be made by an attested, registered instrument. But that section is not applicable to Muhammadans. That being so the law that we have to follow in the present case is the Muhammadan Law. The essentials of a gift under the Muhammadan Law are a declaration of Hiba by the donor, an acceptance, express or implied, of the gift by the donee, and delivery of possession of the property, the subject-matter of the gift, according to its nature. A simple gift can only be made by going through the above formalities and no written instrument is required. In fact no writing is necessary to validate a gift; and if a gift is made by a written instrument without delivery of possession, it is invalid in law: see the case of Sudk Husain Khan v. Hashim Ali Khan and others (1916) 38 All. 627=36 I C 104=43 I A 212 (P C). The position under the Muhammadan Law is this; that a gift in order to be valid must be made in accordance with the forms stated above; and even if it is evidenced by writing, unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Muhammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence. It may so happen after a lapse of time that the evidence of the observance of the above forms might not be forthcoming, so it is sometimes thought-prudent to reduce the fact that a gift has been made into writing. Such writing is not a document of title but is a piece of evidence."

7. In support of conclusion that twenty copies of the gift deeds, Exh. P. W. 2/1 to Exh. P. W. 2/20, are admissible in evidence, despite the amendment of section 49 of the Registration Act, I need only refer to Anwar Sultana and others v. Pakistan Co-operative Housing Society Ltd. (P L D 1964 Kar. 116), wherein Qadeeruddin Ahmad, J., who was in a way author of the amendment itself has observed what follows:

"By this amendment clause (c) of section 49 of the Act has been omitted with the result that a document which is compulsorily register-able under section 17 of the Act but is not registered does not create, declare, assign, limit or extinguish the right, title or interest in the property to which it relates but is admissible in evidence." The view taken by his Lordship is in accord with the well settled legal position that a gift under Muslim Law can be oral and it does not depend for its validity upon execution of a written document. 7-A. In this context it will be pertinent to note that in the case which came up before Qadeeruddin Ahmed, J. Altaf Hussain, plaintiff, in whose favour the unregistered lease-deed, Exh. P. 1, had been issued was in possession and when the Society, which was the respondent of the case, contemplated the cancellation of the allotment and intended to resume possession of the land, he sought a permanent injunction to restrain the society from dispossessing him and interfering with the water supply. It was also contended in that case on behalf of the society that section 53-A of the Transfer of Property Act does not create a right for making a claim but only affords a defence against the transferor if he attempts to enforce right other than one that is provided in the contract in respect of the property of which the transferee is in possession. This contention was repelled as unsound and the suit of the plaintiff which was analogous in nature to the suit before me was decreed. The view that was taken by Qadeeruddin Ahmad, J., finds ample support from a Division Bench authority in Inayatullah and others v. Shah Muhammad and others (P L D 1961 Lah. 372).

8. The authority of the Supreme Court of Pakistan in Mst. Ghulam Sakina v. Umar Bakhsh and another (P L D 1964 S C 456), lays down that where transferee obtains or continues in possession of the property under a document requiring compulsory registration but not registered neither the transferor nor any one claiming under him would be entitled to enforce any right against transferee in respect of the property transferred. This view was taken because their Lordships came to the conclusion that section 53-A of the Transfer of Property Act was an exception to the provisions contained in section 49 of the Registration Act. The distinguishing feature of the instant case is that gift in favour of Mst. Pari Jan, the predecessor of the plaintiff appellants was not a transfer for consideration and as such section 53-A would not be applicable to her case. The transfer in the case before their Lordships of the Supreme Court was in lieu of consideration and to the facts in that case section 53-A of the Transfer of Property Act was attracted. My attention was also invited to Umar Bakhsh v. Mst. Zamrut Jan and 9 others (P L D 1973 Pesh. 63), in support of the contention that failure to get the deeds registered would result in non-conveyance of any interest in the property either in favour of the person named in the deed or in favour of the sub sequent transferee from such person but that is a case in which transfer was in lieu of dower and therefore for consideration. Section 53-A was held to be attracted and since the part performance was not being pleaded in defence rather transferee from the transferee grounded his title on it and sought possession by partition of 1/5 share, it was held that the matter fell within the mischief of sections 17 and 49, Registration Act and 54 of the Transfer of Property Act. The present case is distinguishable on the short ground that the transaction as respects which declaration is being sought is gift by a Muslim and which as already observed does not depend for its validity on a writing.

9. The finding of the learned lower Court has been affirmed by the appellate Court also on the question of the delivery of possession to the plaintiff-appellants. This finding is well grounded when I see that the khasra girdawaris after the gift-deed (Exh. P. W. 1/2) show the possession of Abdul Ghaffar, plaintiff, and of Fazal Rehman and Yusuf Shah. The first named person is the husband of Mst. Pari Jan and now her heir and the last named two persons have appeared as D. Ws. and have supported the plaintiffs that the possession had been transferred to the plaintiffs. As a matter of fact Ghulam Jan defendant had also to admit the delivery of possession to the vendees when he stated what follows :-- "During the life of Musali Mst. Pari used to cultivate the land and apportion the produce. The tenants also rendered the produce to Mst. Pari."

10. As a net result of the foregoing conclusion I am clear in my mind that the disputed land was gifted by Musalli to his daughter, namely, Mst. Pari Jan, who happened to be the predecessor of the plaintiff-appellants and the possession was also delivered to her. The gift was, therefore the non-registration of the gift deed itself I will accept the appeal and complete under the Muhammadan Law and as such operative notwithstanding setting aside the judgment and decree of the lower appellate Court restore the decree of learned trial Court. Parties to bear their own costs. K. B. A. Appeal accepted.