1987 PLP 1467 (CLC)

(4) Whether alleged gift and declaration are void? (5) Whether defendant No.4 has no right or authority to lease the Plot No.1401, Gali No.7, Jinnahabad No.l, Karachi, to the legal heirs of deceased Abdullah Khan i.e. plaintiff, defendants Nos.l to 3 and Mst. Gul Fatima? (6) Whether plaintiff is legally entitled to get the leases ~ the plot in suit executed in her favour from defendant No. 4, and defendant No.4 are bound by law to execute the same only in plaintiff's favour? (7) Whether the suit is barred by law? (8) Whether suit is bad for non‑joinder of necessary parties? The learned Civil Judge decided issues Nos.7 and 8, which are legal issues against the respondents against which no appeal was filed, nor are these issues pressed in this revision application. Finding other issues against the applicant, learned trial Court dismissed the suit of the applicant, whose appeal was also dismissed vide the impugned judgment. I have heard the learned counsel for the parties, and have also perused the record and proceedings of the Courts below. It will be seen, that issues in the suit are mostly issues of fact and if any point of law is involved, it is also based on the findings of the facts. There are concurrent findings of Courts below with regard to the questions of the facts. This Court, in exercise of its revisional jurisdiction, does not, ordinarily, interfere with such concurrent findings of the Courts below. Reference may be made to the case of Kanwal Nain v. Fateh Khan P L D 1983 SC

53. It is held by their Lordships 'revisional powers under section 115, C.P.C. are primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. Also ordinarily decisions of the facts are not revisable except in cases, where the decision is based on no evidence, on inadmissible evidence or is so perverse that grave injustice would result therefrom. The main issue in the case involved is, whether the house on the Plot in question was validly transferred by way of oral gift to the applicant by her deceased husband. There can be no doubt, that burden of proof of this issue was upon' the applicant and both the Courts below appear to have held, that she was not able to discharge this burden of proof. The oral gift is recognized under the Muslim Law, but there are certain prerequisites of this oral, gift. These prerequisites have been discussed in the case of Mir Haji Ali Ahmed Talpur and others v. Government of Sind and others P L D 1976 Kar.

316. A Division Bench of this Court has held as under:‑-- "It is well‑known that Muhammadan Law has prescribed just three simple but very essential requisites for a valid gift. These are (1) a declaration of gift by the donor (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject‑matter of the gift by the donor to the donee. It is further held as under:‑

"A husband making gift of the house to his wife, which is in their joint occupation, may complete the delivery of possession of the corpus of the gift, which is one of the essential requisites of a valid gift, by making a declaration to the effect, that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammadan law." Thus, the applicant had to prove‑‑

(1) that the deceased, Abdullah, had made oral gift of house in her favour. (2) that she had accepted such gift. (3) that the donor had transferred the possession of the house to the applicant alongwith the oral gift. It is contended by the learned counsel for the applicant that the evidence of the applicant and her witnesses, that her deceased C husband had orally gifted the house in her favour is not challenged in their cross‑examination and therefore, should be taken as correct. He further contended, that the fact that subsequently she got record of rights mutated and paid the taxes also shaves, that she did accept the gift. Even if the evidence of the applicant and her witnesses, is accepted as proof of the two ingredients required to prove the validity of oral gift under the Muslim Law, still I find, that there is no evidence on the record to show, that donor had delivered possession of the house to the applicant or at least at the time of making the alleged oral gift, made any declaration to the effect that he delivered the possession of the house to the applicant. As a matter of fact, I find that no such averment is made even in the plaint. In para. No.l of the plaint, the applicant claims to be owner of the plot in question as it was orally gifted to her by her deceased husband. In para. No.3 she only avers, that respondents Nos.l to 3 and her fourth daughter, Mst. Gul Fatima, submitted before the Excise and Taxation Authorities admitting the oral gift on the basis of which record was mutated in her favour. She further averred in this para. that she was already in possession of the house. It is contended by the learned counsel for the applicant, that as the applicant was already in possession, no such declaration about delivery of the possession was necessary. I have already referred to the law laid down by a Division Bench of this Court, under which even in case of oral gift of house to the wife in possession, the husband has to make a declaration showing his intention to deliver the possession to the wife. In the instant case, the applicant was not alone in possession, but she was in joint possession of the house, not only with her deceased husband, but with her daughters, including the respondents Nos.l to 3, who admittedly, lived in the same house, and still continue to live in the same house. The learned counsel for the applicant conceded, that there was no evidence to show, that there was delivery of the possession at the time of oral gift or that there was any such declaration by the donor at the relevant time. He further contended, that there was no such issue framed by the warned trial Court, and as such the applicant did not have opportunity adduce evidence on this issue. The issues are framed by the Court on the pleadings of the parties. The Court has to find what facts are asserted by the plaintiff in the plaint, which are admitted or denied by the defendants in their written statement. The issues are framed only on such facts and points, which are in dispute between the parties. I have already pointed, that even in the plaint, there was no assertion or averment made by the applicant, that there was any delivery of possession or declaration of such intention at the time of oral gift, consequently, there could be no admission or denial on this point. It is only natural, that Court did not frame any issue on this point, for which the applicant can only blame her3elf. The gift is alleged to have been made in 1970 viz. 17 years back, and even the suit has been filed about 10 years back. The applicant now cannot be allowed to improve her case to claim, that the possession was delivered to her by her husband at the time of alleged oral gift or that any such declaration was made by him. It is contended, that the respondents Nos. 1 to 3 had admitted in writing before the Excise and Taxation Authorities about this gift, which was acted upon. I have already pointed, that the respondent Nos. 1 to 3 have denied any such admission. The alleged writing is not produced in evidence by the applicant, who claims to be in possession of the same. In view of this admitted position, the learned trial Court as well as the Appellate Court, rightly held, that there is no proof of such admission or acceptance of the gift on the part of the respondents Nos.l to 3, and nor any entry in taxation register conferred any right upon the applicant as owner. It is also rightly held by the Courts below, that the deceased, Abdullah, who at the relevant time, had no title over the plot, as it was not regularised or transferred by the respondent No.4 in his favour could not have transferred by way of transferred any right in the plot to any person. Both the Courts below have discussed the evidence and question of facts and law, involved in the case, at length, and have given cogent reasons for dismissing the suit and appeal of the applicant, I find absolutely no reason to intefere with their concurrent findings, in exercise of revisional jurisdiction of this Court. The revision application is accordingly dismissed. Under the circumstances, the parties are directed to bear their own costs. The revision application was dismissed by a short order dated 5‑4‑1987. The above are the reasons in support of the said order. S.Q/J‑13/K Petition dismissed