2015 PLP 902 (CLC)

NISAR HUSSAIN KHAN, J.

Instant revision petition is directed against the judgment and decree of learned Civil Judge, Charsadda, dated 20-12-2006 and that of learned Appellate Court dated 14-11-2007 whereby suit of the respondents Nos.1 and 2 was decreed in their favour.

2. Briefly stated facts of the case are that respondents Nos.1 and 2 filed a suit seeking declaration to the effect that they are owner in the legacy of Abdul Muhammad, predecessor of the parties, to the extent of 10/30 share being his legal heirs, as such they are owner to the same extent in the house described in the heading of the plaint in prayer-B, they sought recovery of possession through partition to the extent of same share. Plaintiffs claimed that Abdul Muhammad had no male issue, as such they being his nephews were entitled to the inheritance. In written statements, defendants/petitioners did not deny the relationship of the responder plaintiffs with Abdul Muhammad. However, it was alleged that it was a partial suit as the plaintiffs did not include the other property of Abdul Muhammad, propositus of the parties. The other objection was that the father of the defendants/petitioners gifted the suit house in their favour in his life time by oral declaration which was later on supplemented, vide deed dated 7-10-1996. In view of the divergent pleadings of the parties, issues were framed and parties led their evidence in support of their respective stances. On conclusion of trial, the suit of the plaintiffs/respondents was decreed in their favour and appeal filed by the defendants/petitioners was dismissed by the appellate court, hence the instant revision petition.

3. Lea-rned counsel for the petitioners argued that gift deed executed in favour of the petitioners was proved by producing author and a marginal witness of the deed while second marginal witness, namely, Amanullah, could not be examined as he was charged in a criminal case in which he was absconding. Learned counsel for the petitioners maintained that it was a suit for partial partition as other co-owners were not impleaded in the suit; that Mst. Taskeen Begum defendant No.3, has not been given any share. He lastly contended that the suit property has been gifted to the petitioners, as such the suit is liable to be dismissed.

4. As against that, learned counsel for respondents argued that according to Islamic law, gift can only be completed by making offer, acceptance and delivery of possession. On the point of partial partition, the learned counsel contended that no specific property has been pointed out which has been left out of the suit, as such the objection is not tenable. He maintained that share of Mst. Taskeen Begum, defendant, is also part of 10/30 share given to the plaintiffs/respondents. It was argued that possession of the house was with Gul Amir Khan tenant who has not been examined regarding delivery of possession while marginal witnesses of the deed are not reliable witnesses.

5. I have heard the learned counsel for the parties and have gone through the entire evidence in the light of submissions made at the bar.

6. Case of the respondents/plaintiffs is that Noor Muhammad was grandfather of the parties who had three sons, Amir Muhammad, Abdul Muhammad and Yar Muhammad. Abdul Muhammad had five daughters who are the petitioners/defendants herein, while Yar Muhammad had two daughters and Amir Muhammad had two sons Naseer Muhammad and Basheer Muhammad alias Gulalai, plaintiffs/respondents herein, and a daughter Mst. Taskeen Begum who had been arrayed in the panel of the defendants. Since Abdul Muhammad had no male issue, as such the plaintiffs being his nephews are entitled to 1/3rd share in his legacy. defendants/petitioners had taken the stance that the suit house had been gifted to them by their father in his life time. In this regard, they tendered the gift deed in evidence as Ex.DW1/1 Author of the deed Muhammad Hayat petition writer was examined as DW.1 who corroborated the version of the defendants with regard to the execution of the deed while Muhammad Saeed Advocate was examined as DW.2 who stated that during the days of execution of the deed, he was Notary Public in Charsadda where he attested the deed on its production by its executant Abdul Muhammad. Same endorsement was made by him on the back of the deed. Atlas Khan, one of the marginal witnesses was examined as DW.3. The other marginal witness, namely, Amanullah could not be examined as he was absconding in a murder case. To this effect Nasrullah, Muharrir, of Police Station Umarzai was examined as ADW.1 in whose statement FIR No.342, dated 16-8-2003 registered under sections 302/324/148/149, P.P.C. has been exhibited as ADW.1/1. Perusal of the FIR, suggests that Amanullah is charged in the said FIR, as such he could not be examined. Attorney of the defendants Dost Muhammad recorded his statement as DW.4 who stated the same version which was averred in the written statement. He stated that all the defendants used to look after their father at his house, turn by turn, as he had no male issue. A portion of the house in question was in possession of Gul Amir Khan who was ejected through Jirga by the defendants payment of Rs.30000, which is now in their possession. During his cross-examination, a positive suggestion was put on behalf of the plaintiffs which was affirmed by this witness that Abdul Muhammad predecessor of the parties executed the said gift deed to deprive the plaintiffs from his inheritance. By this suggestion, the plaintiffs had admitted execution of the deed. In further cross-examination, the status of Amanaullah marginal witness was also brought on the record that he is Lumberdar of the village while Atlas Khan is his brother. When this evidence of the defendants is put in juxtaposition with the cross-examination of Haji Naseer Muhammad PW.1 wherein he corroborated the version of the defendants that the suit house was vacated by Gul Amir Khan and handed over to the defendants. It is also admitted by him that the defendants had paid Rs.30000 for electing him from the suit house. He went on to admit that the suit house is in possession of the defendants. This fact has further been corroborated by the plaintiffs in the cross-examination of the attorney of the defendants that all the daughters had been visiting their father turn by turn during his ailment and on his death Gul Amir Khan was ejected there-from on payment of money through Jirga.

7. In view of the evidence discussed above, the suit house has been gifted to his daughters by Abdul Muhammad as they had been residing with their father jointly, though occasionally as they were married and were residing in their respective houses with their in-laws but they had their liaison with the house as well. This joint possession of the donor and the donee after effecting gift is permissible and does not affect the validity of the very gift by virtue of Para 152(3) of Muhammadan Law. As in the instant case, the house in question was situated in Abadi Deh, therefore, instead of mutation, Deed was executed on stamp papers. It is settled law that for making valid gift, there is no need of execution of deed much less registered deed. The only requirement of a valid gift is offer, acceptance and delivery of possession which are satisfied in view of the facts discussed above.

8. It is also an admitted fact that a person having no male issue normally makes a gift in favour of his daughters just to save them from the suffering at the hands of collaterals, particularly in respect of residential house, so that they may reside or visit the house of their parents with peace of mind without any interruption or resistance at the hands of other legal heirs. It is common phenomenon of this society that male legal heirs especially the collaterals normally treat the female with aggression and oppression. This normal practice in vogue in the society generally pricks the mind of father of the daughters and he tries to safeguard them from the high-handedness of their collaterals. In this backdrop of the admitted facts, the execution of the gift deed qua the suit house in favour of the defendants/petitioners is not an unusual incident. The learned trial court as well as the appellate court have fallen in error in not appreciating the evidence in its true perspective and thereby decreed the suit of the plaintiffs/respondents.

9. The impugned judgments are suffering from vice of misreading and non-reading of evidence. This court is conscious of the fact that in normal course, concurrent findings of facts are not interfered with in revisional jurisdiction. But when misreading and non-reading of evidence and misapplication of law is floating on the face of the record, it becomes imperative to interfere in such findings because non-interference in such concurrent findings of facts would cause grave miscarriage of justice. Thus by accepting the instant revision petition, the impugned judgments of both the courts below are set aside and the suit of the plaintiffs/ respondents is consequently dismissed with no order as to costs. JJK/90/P Revision accepted.