1989 PLP 3795 (MLD)

Sayed Zainul Hassan for Respondents. Date of hearing: 23rd October, 1988. The dispute in this revision application relates to a quarter bearing No.6/283 Liaquatabad, Karachi owned by one Mst. Maryam Khatoon daughter of Syed Hassan who died on 27th September, 1972 leaving no legal heir under the personal Muslim Law to inherit her properties on her death, She had in her lifetime inducted Mst. Farrukh Sultana, the applicant in this revision application as a tenant of half portion of the said quarter on payment of rent of Rs.45 per month. The applicant Mst. Farrukh Sultana now claims to be the owner of half portion of the said quarter on the basis of the gift of that portion made by deceased Mst. Maryam Khatoon on 18-9-1972 as- per her declaration recorded on Rs. 4 Stamp Paper in her "statement on oath". Darul Uloom Amjadia, the opponent No.1 in the present application claimed the whole of the quarter on the basis of a deed of waqf through a will executed by the aforementioned Mst. Maryam on 14-3-1971. After the death of Mst. Maryam, Mst. Farrukh Sultana and Darul Uloom Amjadia claimed to be owners of the property in question on the basis of their respective documents mentioned above. Both of them filed their respective suits in the Court of XIVth Civil Judge IInd Class, Karachi. Both the suits were consolidated and decided by the Civil Judge by a common judgment whereby suit filed by applicant Mst. Farrukh Sultana was dismissed while suit filed by Darul Uloom Amjadia was decreed. Mst. Farrukh Sultana then filed an appeal against the judgment and decree which was rejected by VIIth Additional District Judge, Karachi on 20th May, 1982. Being aggrieved by these two judgments Mst. Farrukh Sultana has filed this revision application under Section 115, C.P.C. The Civil Judge had dismissed the suit filed by Mst. Farrukh Sultana mainly on the ground that she had failed to prove the document said to have been executed on 18-9-1972 by Mst. Maryam Khatoon whereby half portion of the quarter in question was gifted to her and further that condition No.6 mentioned in the document clearly stated that Mst. Farrukh Sultana shall continue to pay the rent of Rs.45 per month to Mst. Maryam Khatoon till her death and after that she will take over the property. Because of this condition it was held that in any case no valid gift was made in favour of Mst. Farrukh Sultana. As against this document Darul Uloom Amajadia claimed the property in question on the basis of a document entitled as "Dastawiz Wasiat Bilwaqf' executed by Mst. Maryam Khatoon on 14-3-1971. The suit filed by Darul Uloom Amjadia, one of the opponents in this application, in respect of the whole quarter was decreed. Mi. Hanafi the learned Advocate for the applicant has urged the following two points: (i) That in spite of the fact that Mst. Maryarm had reserved her right to receive the rent till her death, gift made in her favour is valid according to Muslim law. (ii) Since the document on the basis of which Darul Uloom Amjadia were claiming their right. over porperty is earlier in time, the document of later date in favour of the applicant should be preferred as the later document was executed in supersession of previous wills/documents. Mr. Syed Zainul Hasan, learned Advocate appearing for the respondent No.l stated that as there is a concurrent finding of both the Courts below in favour of the Darul Uloom Amjadia and applicant has failed to point out any ground for interference under Section 115, Civil Procedure Code, the application is liable to be dismissed. In the circumstances of this case the burden of proving that the gift of the quarter in question was validly made by the deceased Maryam in her favour lay heavily on the applicant. The applicant Mst. Farrukh Sultana in order to prove her case examined herself and relied heavily on the document "Statement on oath" said to have been recorded by the deceased as the declaration of gift in her favour. In fact the entire case of the applicant is solely based on this document. Every document requires to be proved in accordance with provisions of law made in Chapter 5 of the Qanun-e-Shahadat. The executant having died it became necessary to examine at least one of the signatories to that document to prove the same. Since no such witness was examined it was rightly held by both the lower Courts that the document was not proved and was doubtful. Even otherwise one of the essential ingredients of a valid gift under the Muslim Law is that the property donated must actually pass on to the donee with all the incidents of complete ownership and without any clog attached to it. In the present case even if the document had been proved the donor, Mst. Maryarm had reserved her right to receive rent during her lifetime and therefore in fact not parted with its usufruct. Under such a condition no valid gift was made by the deceased in favour of the applicant. As against it Darul Uloom Amjadia had proved by proper and legal evidence that Mst. Maryam had transferred her said property to them as the "Waqf' through a valid will under the Muslim Law. It may be noted that there is no prescribed method of creating a waqf of property under the Muslim Law. Waqf can be created orally or through a document. In this case the Waqf has been created through a valid document duly proved. The learned Advocate for the applicant had also- failed to point out any other ground to enable this Court to exercise revisional jurisdiction in terms of Section 115, Civil Procedure Code. The revision application is therefore dismissed with no order as to the costs. M.Y.H./F-101/K Petition dismissed.