1988 PLP 1787 (MLD)

The facts giving rise to this revision petition are that Abdul Karim, predecessor‑in‑interest of both the contesting parties, transferred by way of dower deed, half share in the suit house to his wife Mst. Yaqut Jan vide a registered deed No.1163, dated 7‑4‑1924 (Exh. P.W.1/1). In 1978 Abdul Karim again transferred by way of gift half share in the same suit house vide registered deed No. 1286, dated 20‑8‑1978 in favour of the defendant‑petitioners No. 1 and 2, Abdul Hamid and Abdul Wahid sons from his second wife. Abdul Karim, however, died in 1980 and it is also admitted that Mst. Yaqut Jan had died a couple of years earlier than her husband. Both the learned counsel agree to the foregoing factual position.

2. The plaintiff‑respondents who are children of Abdul Karim from Mst. Yaqut Jan, the first wife, brought a declaratory suit calling in question the genuineness of the gift deed dated 20‑8‑1978 and also seeking consequential relief by way of partition of the house in accordance with their legal share. The pleadings of the parties disclose that the defendant‑petitioners also, challenged in their written statement the legality of the dower deed dated 7‑4‑1924 on the basis that the suit house actually belonged to Mst. Hajira the mother of Abdul Karim and at the time of the said transfer she was alive.

3. After recording such evidence as was adduced by the parties, the learned Senior Civil Judge, Peshawar held that Mst. Yaqut Jan had obtained the interest in the suit house on the death of her mother‑in‑law by virtue of the principle laid down in section 43 of the Transfer of Property Act, 1882 but Abdul Karim could not transfer any share in the house to the defendant‑petitioners as he was left with no interest/title in the suit house. He accordingly passed a decree in favour of the plaintiff‑respondents vide his judgment dated 16‑7‑1986.

4. The defendant‑petitioners went in appeal against the said judgment and decree and the learned Additional District Judge, Peshawar, who heard the appeal; arrived at the conclusion that Mst. Yaqui Jan was the owner of half share in the suit house on the basis of dower deed (Exh. P.W.1/1) and Abdul Karim, being her husband was entitled to inherit his own legal share alongwith her children. He also held that in this manner Abdul Karim had become the owner of 1/4th out of the half share in the suit house. The learned Additional District Judge however, went on to hold that this 1/4th of half share in the suit house is liable to be inherited by all legal heirs of Abdul Karim from both of his wives.

5. Aggrieved with his finding of the learned Additional District Judge in his judgment dated 26‑1‑1987, the defendant‑petitioners have invoked the revisional jurisdiction of this Court to examine the property of the decrees and judgments of both the Courts below.

6. I have heard the learned counsel for the petitioners Mr. Saadat Hussain, Advocate and Mr. Z. Mahfuz Khan, Advocate for the respondents at length and have also gone through the record of the case.

7. Both the learned counsel agreed that in this context of the factual position, Abdul Karim could and did inherit 1/4th of the half share in the suit house as husband of Mst. Yaqut Jan who predeceased him. The grievance of the petitioners is that the learned trial Court has erred in not applying the same principle as envisaged by section 43 of the Transfer of Property Act in the case of gift deed executed by Abdul Karim in favour of the defendant‑petitioners as applied in the case of the dower deed executed by the said Abdul Karim in favour of Mst. Yaqut Jan relating to half share in the suit house, despite the fact that admittedly the real owner, namely Mst. Hajira, the mother of Abdul Karim was then alive. He, therefore, maintains that the gift deed (Exh. D.W.1/1) should have been made effective to the extent of 1/4th share out of half share in the suit house i.e. to the extent of the share in the house which he inherited from his predeceased wife Mst. Yaqut Jan. I find force in his argument and even the learned Additional District Judge went with him to the extent that 1/4th share out of half share in the suit house did devolve on Abdul Karim by way of inheritance from his wife Yaqut Jan, but the learned appellate Court held that all tire legal heirs including respondents I to 4 were entitled to his share. As to why the principle embodied in section 43 of the Transfer of Property Act would not be applicable also in the case of transfer deed by gift (Exh. D.W.1/1) made by Abdul Karim in favour of defendant‑petitioners Nos. 1 and 2, both the learned lower Courts, seem to be silent on the point.

8. Section 43 of the Transfer of Property Act, 1882 runs as follows:‑ "Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may require in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in Food faith for consideration without notice of the existence of said option. The principle embodied in this section is based on the equitable doctrine that a man who .has promised more than he can perform must make good his contract when he acquires the power of performance. In following this principle, it will make no difference whether the defect of title in the transferor arses by reason of his having no interest whatsoever in the property or of his interest therein being that of an expectant heir and where a person having a mere spes successions represents that he is the owner of the property and transfers it to another, the validity of the transfer cannot be questioned if he later on succeeds thereto, or acquires interest therein.

9. A reference to both the judgments of the lower Courts indicates that the only material which weighed with them to hold the gift deed No. 1286, dated 20‑8 1978 (Exh. D.W.1/1 as ineffective upon the rights of the plaintiff‑respondents Nos. 1 to 4 was that Abdul Karim was deft with no share in the suit house after the execution of dower deed No. 1163 dated 7‑4‑1924 (Exh. P.W.1/1). It is, however, in evidence that Mst. Yaqut Jan predeceased her husband Abdul Karim and the learned Appellate Court has rightly held that by way of inheritance he had become owner of 1/4th share of 1/2 share in the suit house originally transferred to Mst. Yaqut Jan by way of dower. It seems rather paradoxical what has been held by the learned trial fudge when he applied the principle envisaged in section 43 of the Transfer of Property Act in the case of dower deed (Exh. P.W.l/1) but did not apply the same principle to the gift deed (Exh. D.W.1/1). This aspect has also not been adverted to by the learned Appellate Court.

10. Applying thus the principle embodied in section 43 of the Transfer of Property Act, I hold that the gift deed (Exh. D.W.1/1) can and should be given effect to the extent of legal share of Abdul Karim i.e. 1 4th of 1/2 share in the suit house, in favour of defendant‑petitioners Nos. 1 and 2.

11. By accepting the revision petition I hereby set aside the judgments and decrees of both the learned lower Courts and m the result to defendant petitioners, b virtue of the gift deed dated 20‑8‑1978 (Exh. D.W.1/1) shall be, entitled to 1/4th of half share in the suit house while the plaintiff‑respondents 1 to 4 shall be entitled to the remaining 3/4th of half the share in the suit house. The parties are left to bear their own costs. A,A./647/P Revision accepted.