2012 PLP 1602 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Petitioner's suit for declaration to the effect that she is owner of the suit property (5 marlas house) on the basis of the gift purported to have been made by her father-in-law Naik Muhammad at the time of the Nikah with respondent No.4 (vide Nikah Nama dated 22-12-1965) and that the respondents be restrained from interfering with her possession stands concurrently dismissed in terms of the finding on issue No.1, which reads as follows:-- "Whether the plaintiff is owner in possession of plot No.461-A on the basis of alleged hiba as entered in Nikah Nama dated 22-12-1965 and stamp paper dated 7-2-1966? OPP"

2. Learned counsel for the petitioner submits that the three courts have not considered the evidence led in proper perspective; that the documentary evidence led by the petitioner in the form of Nikah Nama dated 22-12-1965 and the stamp paper dated 7-2-1966 have been ignored; that she is in possession of the property ever since her marriage and that the concurrent judgments are not sustainable, in law.

3. Respondents Nos.1 and 2 have appeared in person to defend the impugned judgment. They are sons of Naik Muhammad deceased, the alleged donor. They submit that the suit property was the only house that their late father had and he never gifted the house to the petitioner; that he had four sons and two daughters and it is not believable that he would give the house to the petitioner to the exclusion of other legal heirs.

4. Having heard petitioner's learned counsel and the respondents at some length, we find that petitioner had in all produced three witnesses namely P.W.1 Muhammad Amir who though a witness of the Nikah Nama but admitted in cross-examination that Naik Muhammad died in the year 1987 and that till his death he lived in the suit house. P.W.2 Muhammad Azam though asserted that the said suit house was gifted by Naik Muhammad deceased to the petitioner but admitted in cross-examination that the said Naik Muhammad died in the same house. P.W.3 is Shafqat Parveen herself who asserted her claim with regard to the suit house being gift from the above referred donor but admitted in cross-examination that during the donor's lifetime she never attempted to have the house mutated in her name through a registered deed. As against this, the defendants produced D.W.1 Riaz Muhammad who is son of Naik Muhammad deceased. He denied that the suit property was gifted to the petitioner rather according to him, Naik Muhammad during his lifetime had desired that the suit house should be mutated in the name of the youngest son Iftikhar. D.W.2 is Muhammad Iftikhar. He too is son of Naik Muhammad deceased and he also denied the gift. According to him after their father's death, all the brothers and sisters surrendered their share in his favour. Both were subjected to exhaustive cross-examination but they remained consistent on material particulars and their credibility remained unshaken. Much stress was laid by petitioner's learned counsel on an entry in column No. 13, which reads as under:-- This entry particularly regarding the house has rightly been found by the three courts below to be a later and collusive insertion. We tend to uphold this finding for more than one reason. Firstly, the house was not owned by the bridegroom and it is against normal human conduct that the father who had six children (4 sons and 2 daughters) could have deprived all of them and gifted the house, which, it is in evidence, was the only house which the family had. Secondly, there is no corresponding endorsement in the column by the alleged donor/Naik Muhammad that he was gifting the house. Thirdly, the important witness of Nikah Nama namely the person who performed the Nikah or who had made those entries were not examined. In Faqraz Bibi v. Elahi Bakhsh (1994 SCMR 686), leave was granted by this Court to consider whether notwithstanding an entry made in the Nikah Nama that the house was being given to the bride by father of the bridegroom and the evidence was led to establish that eversince the marriage, she exercised full propriety rights over the house 'without any interference, could she be deprived of the ownership but ultimately the appeal was dismissed by this Court (Civil Appeal No.817 of 1993) on 25-5-1994 on the ground that the father of the husband had disowned making such an entry; he continued to assert his right of ownership over the house; title of the house remained with him and one of the witnesses i.e. the person who performed Nikah admitted that the entry made in Nikah Nama about the house was at the behest of the husband. In those circumstances, this Court while upholding the concurrent findings of the two courts below held "that mere signing of 'Nikah Nama' by respondent No.1 (father of the husband) as a witness of 'Nikah' could not lead to the inference that respondent No. 1 had agreed to transfer the disputed house in favour of the appellant in lieu of her dower." In Muhammad Anwar Khan v. Sabia Khanam (PLD 2010 Lahore 119) the Court upheld the concurrent judgments granting house as dower on the basis of the entries made by father in law of the bride in the Nikah Nama because the latter in cross-examination admitted his presence at the time of his son's Nikah and also admitted having knowledge of his house being given in the Nikah Nama as dower to the bride. In Asma Ali v. Masood Sajjad (PLD 2011 SC 221) this Court had decreed the claim of the wife based on similar entries because those entries stood proved as the document in question/Nikah Nama was produced by the defendants themselves and the important witnesses of Nikah Nama i.e. the persons who performed the Nikah and the one who made those entries had both appeared in court to endorse those entries.

5. In Muhammadan Law, offer, acceptance and delivery of possession are the three essential ingredients of a valid gift and the onus was on the petitioner to prove these components. The evidence led on the contrary shows that Naik Muhammad deceased continued to live in the same house till his death (i.e. in 1987); that barring the conceding statement of petitioner's husband/defendant No.4, no other heir of Naik Muhammad supported petitioner's claim; that the household articles of some of the other defendants were lying in the same house and the property tax used to be paid in the name of Naik Muhammad and even the electricity meter was installed in his name.

6. In the afore-referred circumstances, the concurrent findings of fact have not been found by us to be against the evidence led or reflecting any misreading or non-reading of evidence to warrant interference. The petition lacking in merit is accordingly dismissed and leave refused. M.W.A./S-17/SC Petition dismissed.