2005 PLP 710 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

The dispute relates to a piece of land measuring 118 Kanals and 5 Marlas which was owned by one Noor Khan and which was situated in Village Lawa of Tehsil Talagang of District Chakwal.

2. The said Noor Khan had two wives, namely, Mst. Roshan Bano and Mst. Khatoon Rani. From the former the said Noor Khan had one son, namely, Dost Muhammad and three daughters, namely Mst. Mehr Bhari, Mst. Bhag Bhari and Mst. Bakht Bhari and from the latter, this Noor Khan had only one son, namely, Muhammad Nawaz who is the first plaintiff in the suit leading to the present appeal. The above mentioned Dost Muhammad also married twice and from one wife, he had two sons, namely, Khan Muhammad and Khuda Bakhsh who are the second and the third plaintiff in the said suit and from the other wife, he had one son, namely, Muhammad Khan defendant in the suit in question and two daughters, namely, Ghulam Fatima and Mst. Bakht Bhari. The fourth plaintiff in this suit is Bashir Ahmad who is a son of Mst. Bakht Bhari who, as has be mentioned above, is one of the three daughters of Noor Khan. From the pedigree-table appearing at page 90 of the paper book and which is reproduced in the plaint, it further transpires that while two of the three daughters of the said Noor Khan were married and had children, his third daughter, namely, Mst. Mehr Bhari remained unmarried.

3. Through a Mutation bearing No.3387 sanctioned on 7-12-1941, the said Noor Khan gifted the said 118 Kanals and 5 Marlas of his above described land to his said unmarried daughter, namely Mst. Mehr Bhari and through a Mutation bearing No.12026 dated 18-8-1973, the said Mst. Mehr Bhari gifted the said piece of land to Muhammad Khan who was one of the sons of her brother Dost Muhammad.

4. It was a son of the said Noor Khan, namely, Muhammad Nawaz; two sons of another son of the said Noor Khan, namely, Dost Muhammad and a son of a daughter of this Noor Khan, namely, Mst. Bakht Bhari who filed a suit in the Court of a learned Civil Judge at Talagang on 21-2-1981 stating therein that they were the heirs of the said Noor Khan who had died on 18-12-1980; that a mutation of inheritance of the estate left by the said Noor Khan was sanctioned on 10-2-1981 when it transpired that the suit-land i.e. 118 Kanals and 5 Marlas of land was gifted by the said Noor Khan to his daughter Mst. Mehr Bhari who had in turn gifted the same to her brother s son, namely, Muhammad Khan; that from Mutation No.3387, dated 8-12-1941, it appeared that Mst. Mehr Bhari was only a limited owner of the said piece of land and that she was, therefore, not competent to make a gift of the same to her nephew Muhammad Khan and it had consequently been prayed that a decree be passed declaring that Mutation No.12026 dated 18-8-1973 through which Mst. Mehr Bhari had gifted the suit-land to Muhammad Khan son of Dost Muhammad was illegal and ineffective against the rights of the said plaintiffs and it had been further prayed that possession of the said piece of land, to the extent of their share in the same, be also given to them.

5. The learned trial Judge initially dismissed the suit of the plaintiffs on 10-2-1987 but on the said suit being remanded back to him by the learned Appellate Court, he decreed the same through a judgment, dated 14-1-1991. The appeal filed by Muhammad Khan defendant against the said judgment and decree was dismissed on 10-10-1994 by a learned Additional District Judge at Chakwal which led the said defendant to the Lahore High Court through C.R. No.616 of 1994 which was allowed as a result whereof the concurrent judgments and decrees of the two subordinates Courts were set aside and the suit filed by the plaintiffs was dismissed. The said plaintiffs then approached this Court with C.P. No.1208 of 1999 which was allowed through an order dated 19-10-2000 as a result whereof leave had been granted to the said plaintiffs-petitioners to file an appeal in this Court.

6. Hence this appeal.

7. We have heard the learned counsel for the parties at some length and we have also perused the record in the light of the submissions made by them.

8. Most of the facts stand admitted between the parties. It is not controverted that Noor Khan was the predecessor-in-interest of both the parties. It is also not denied that Muhammad Nawaz plaintiff was a son of the said Noor Khan while Khan Muhammad and Khuda Bakhsh plaintiffs were the sons of another son of said Noor Khan, namely, Dost Muhammad or that Bashir Ahmad plaintiff was a son of a daughter of the said Noor Khan, namely, Mst. Bakht Bhari. It was also not denied that Mst. Mehr Bhari was a daughter of this Noor Khan and that Muhammad Khan defendant was a son of the above mentioned son of Noor Khan, namely Dost Muhammad though from a mother different from the mother of Khan Muhammad and Khuda Bakhsh plaintiffs. It is also not in controversy that Noor Khan had made a gift with respect to the suit-land in favour of Mst. Mehr Bhari and that Mst. Mehr Bhari had made a further gift of the same to Muhammad Khan defendant.

9. What is, however, in issue is whether through the gift in question, Mst. Mehr Bhari had become the full owner of the land in question or whether she was a limited owner of the same and thus, not competent to alienate the said land to any one else. The case of the plaintiffs-appellants always was and still is that what had been gifted by Noor Khan to Mst. Mehr Bhari was not the corpus of the suit-land but only its usufruct; that she could enjoy the benefit arising out of the said land till her death and that she had no power, in law, to alienate the same to Muhammad Khan defendant by way of gift or otherwise. Muhammad Khan defendant, however, claimed that Mst. Mehr Bhari had become the full and absolute owner of the property in question as a result of the gift made to her and she was thus, fully entitled to make a further gift of the same to him.

10. The learned counsel for the parties, besides making reference to the relevant provisions of Islamic law, placed reliance on the following decided cases:-- (i) Nawazish Ali Khan v. Ali Raza Khan AIR (35) 1948 PC 134, (ii) Mst. Bibi Alam Taj and others v. Mst. Inayat Begum PLD 1963 (W.P.) Pesh. 199, (iii) Fateh Muhammad v. Nathu 1982 CLC 2082, (iv) Farid (represented by Heir) v. Mst. Nur Bibi PLD 1970 Lah. 502, (v) Said Akbar and others v. Mst. Kakai PLD 1975 SC 37, (vi) Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others PLD 1975 SC 383, (vii) Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466, (viii) Abdul Hameed and 23 others v. Muhammad Mohiyuddin Siddique Raja and 3 others PLD 1997 SC 730 and (ix) Mst. Samia Naz and others v. Sheikh Pervaiz Afzal and others 2002 SCMR 164.

11. We have gone through these judgments with the assistance of the learned counsel for the parties and what transpires therefrom is as under:-- (a) that besides a gift of the corpus, the Islamic Law also recognizes a gift only of the usufruct of the property; (b) that a determination whether the gift was of the corpus or of the usufruct of the property, depends upon the facts of each case to be inferred from the relevant evidence oral/documentary after discovering the real intention of the donor and no hard and fast rule could be laid down for the said purpose; (c) that if it was found that what had been gifted was the corpus of the property then any condition attached to such a gift would be illegal while the gift itself would be perfectly valid; and (d) that the mere fact that the gift was or would not be sufficient by itself to hold that the gift was only of the usufruct and not of the corpus. This being the legal position regulating a gift with respect to a property, we will now proceed to examine the available evidence, in the light of the said principles, to find out whether the present gift in question was one of corpus or only of the usufruct of the said land.

11. The crucial evidence in this connection is available on record through the above mentioned Mutation No.3387 dated 7-12-1941 which mutation evidenced the alienation of the suit-land by Noor Khan to his daughter Mst. Mehr Bhari. The report of the Patwari dated 28-11-1941 which is available on the said mutation carries the statement made to him by Noor Khan himself which is in the following words:-- (Underlining is ours).

13. What transpires from the statement of Noor Khan donor is that he had made a gift, relating to the suit-land, to his daughter Mst. Mehr Bhari; that the alienation thus, made was to last only till the death of the said Mst. Mehr Bhari; that she was entitled only to the Paidawar (Usufruct) of the said land and that after her death, the land was to revert to the sons of Noor Khan donor. From the attestation of this mutation, dated 7-12-1941, it appears that it was the factum of the said gift in the said terms which had been admitted by the parties and the mutation had consequently been sanctioned accordingly. It is also available on the record from the pedigreetable available in the plaint, not controverted through the written statement, that while the other children of Noor Khan donor including his two daughters were married, Mst. Mehr Bhari donee had remained unmarried. What is, therefore, discoverable and discernible from the said evidence to be the intention of the donor was that he had not gifted the corpus in the land in dispute to Mst. Mehr Bhari donee and what had been given to her by her donor father was the usufruct of the said land for her life time as she was not married.

14. In this view of the matter, the concurrent findings of the two learned subordinate Courts to the effect that the gift was of usufruct and not of the corpus, was a finding not open to any interference nor the said conclusions concurrently reached by the said two learned Courts could be said to be perverse or based on misreading or non-reading of any material available on record. The learned High Court was thus, not competent, in the exercise of its revisional jurisdiction, to interfere with such a concurrent finding of facts. Reliance is placed on Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291, Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Abdul Rahim and another v. Mrs. Janatay Bibi and 13 others 2000 SCMR

346. It may be added that while disagreeing with the said concurrent findings, the learned Judge in Chambers had not discussed the relevant evidence nor had any reason been offered for reaching a different conclusion.

15. Having thus, examined all aspects of the matter, we are of the opinion that the interference by the learned High Court with the concurrent conclusions of the two learned Courts relating to the issue in question could not be sustained either on facts or in law and we hold accordingly.

16. Resultantly, this appeal is allowed as a result whereof the impugned judgment of the Lahore High Court dated 25-3-1999 which had been passed in C.R. No.616 of 1994 is set aside and consequently, the judgment and decree as passed by the learned trial Judge is restored.

17. There shall, however, be no order as to costs. S.A.K./M-220/S Appeal accepted.