2007 CLC 1160 (PLP)

ABDUL SHAKOOR PARACHA, J.

This judgment shall dispose of R.F.A. No.79 of 1999 and C.M. No.1106-C of 1999 and C.M. No.1107-C of 1999.

2. Mst. Shahida Adeeb widow and Mst. Annam Ejaz (minor) daughter of Dr. Ejaz Ahmed Sheikh, appellants, through this appeal under section 96, C.P.C. impugn the judgment and decree passed by the Civil Court, Islamabad, dated 22-4-1999, whereby, the suit of the plaintiffs/respondents namely Nauman Ejaz (soh) and Nadia Sheikh (daughter) of Dr. Ejaz Ahmad Shaikh for possession through partition of the shop including Basement No.9, Block No.7, 19 x 23 feet situated in Melody Market, G-6, Islamabad was decreed.

3. Doctor Ejaz Ahmed, the predecessor-in-interest of the parties was owner of the shop including basement who died on 15-5-1995. He had two wives. Mst. Nighat was the mother of plaintiffs/respondents. Whereas, the appellant-defendant Mst. Shahida Adeeb was the widow and second wife and Mst. Amiam Ejaz was the daughter from the said wedlock. In the plaint, it is contended that the deceased was running a Medical Clinic in the said shop including the basement and he had installed X-Rays Machine, ECG machine, Miscellaneous equipments connected with the above mentioned machines. Furniture and Fixtures with miscellaneous appurtenants. The parties are the co-sharers in the property and are entitled for decree of partition according to their shares.

4. The suit was resisted by the appellants/defendants by filing the written statement. It was contended that the deceased had divorced his first wife namely Ms. Nighat and thereafter he solemnized his second marriage with Mst. Shahida Adeeb on 25-12-1986. The suit property belonged to her under a gift/Hiba-nama which was excepted on 16-5-1993 in her favour. The same has been leased out at the monthly rent of Rs.6,000 through agreement, dated 10-7-1995. It was further asserted that defendant No.1's dower was fixed at Rs.50,000 and afterwards the same was enhanced to Rs.15,00,000 due to a compromise vide agreement, dated 25-7-1987. Dr. Ejaz Ahmed Shaikh deceased stopped medical practice before his death and he never owned the said machinery, the detail of which has been given in paragraph 4 of the plaint. From divergent pleadings of the parties, following issues were framed by the learned trial Court:-- (1) Whether the plaintiffs have no cause of action to file this suit? OPD (2) Whether this suit is not maintainable in its present form? OPD (3) Whether this suit is bad for misjoinder of necessary parties? OPD (4) Whether the plaintiff No.2 is of unsound mind? OPD (5) Whether this suit is under-valued for the purpose of court-fee and jurisdiction? OPD (6) What is the effect of preliminary objection number of the written statement? OPD (7) Whether the suit is frivolous and vexatious? If so, its effect? OPP (8) Whether the plaintiffs are entitled for possession through partition of the suit shop and machinery installed therein? OPP (9) If above is proved, what would be respective share of both the parties in the suit shop? OPP (10) Relief.

5. Parties produced evidence. The trial Court recorded findings on Issue No.1 by observing that plaintiffs have cause of action to file the suit. Issue No.2 was decided against the defendant and in favour of the plaintiffs. The Court held that there was no defect in the form of the suit. Issues Nos.3, 4 and 5 were jointly decided by observing that no cogent evidence has been led by the defendants to prove these issues, therefore, the same were decided against the defendants. Issue No.6 was regarding transfer of the property by Dr. Ejaz Ahmed Shaikh through oral gift made in favour of defendant No.1 appellant Mst. Shahida Adeeb on 28-12-1992 and thereafter the same was acknowledged through deed, dated 16-5-1993. The Court after appreciating evidence of the parties, recorded a finding that no gift was made by the deceased in favour of appellant No.1. Regarding enhancement of the dower amount to the tune of Rs.15,00,000 it was held that no witness of deed Exh.D.3 was produced. Even otherwise plaintiff/P.W.1 in the cross-examination categorically denied that appellant-defendant No. 1's dower was fixed at Rs.50,

000. In these circumstances, it was incumbent upon the appellant-defendant No.1 to prove Nikah Nama by adducing its witnesses. It was concluded that appellant-defendant No.1 was unable to prove her contention regarding preliminary Objection 5 of the written statement. Hence Issue No.6 was decided against the defendant/appellant and in favour of plaintiffs-respondents. Regarding Issue No.7, learned trial Court held that no cogent evidence was led by the defence to prove this issue. The suit is not frivolous or vexatious. The issue was decided against defendants. On the basis of findings on Issue No.8, the Court held that the suit property stands in the name of Dr. Ijaz Ahmad Shaikh. It was also admitted between the parties that the plaintiff-respondents are son and daughter of deceased whereas appellant-defendant No.1 was wife and appellant-defendant No.2 was daughter of deceased, so plaintiffs-respondents are entitled to the partition. Hence, issue was decided against the defendants-appellants. Learned trial Court under Issue No.9 regarding relief on the basis of findings recorded on Issue Nos. 8 and 9, passed a preliminary decree declaring that widow is entitled 1/8 shares whereas son and daughter-shall be entitled for 14/32 and 7/32 shares respectively.

6. Before us, learned counsel for appellants contents that for a Muhammadan woman, it is open to the husband to fix the dower amount at any time before or after the marriage; it is further open to the husband to increase the amount of the dower at any time during the continuance of the marriage; further that findings of the learned trial Court on Issue No.6 is result of misreading and non-reading of evidence on record. Gift deed Exh.D.1 was duly executed and signed by the executant himself; the same was duly tendered in evidence and was proved in accordance with law. The trial Court has wrongly disbelieved the same. Further that oral gift was made by Dr. Ejaz Ahmed Shaikh deceased in favour of his wife plaintiff/defendant No.1 on 28-12-1992 and subsequently was acknowledged through Exh.D.1; (i) it did not require any registration; the three essential ingredients for a valid gift i.e. declaration of gift by the donor (ii) acceptance of the gift express or implied by or on behalf of donee (iii) delivery of the possession of the suit of the gift by the donor to the donee have been proved on the record; the dower amount was enhanced by the Husband by making declaration from Rs.50,000 to Rs.15,00,000 in any case; the appellant No.1 is entitled to recover the dower amount from the property of the deceased.

7. On the other hand, learned counsel for respondent contends that property was owned by Dr. Ejaz Ahmed Sheikh; parties are legal heirs of the deceased ;there is unity of title and unity of possession; the suit for partition has rightly been decreed; further that the appellant-defendant No.1 Mst. Shahida Adeeb did not prove before the Court three essential ingredients of a valid oral gift made on 28-12-1992; Gift Deed Exh.D.1 has no legal value; in the income tax assessment order Exh.P.1, the suit shop is shown in the name of the deceased.

8. We have heard the arguments of the learned counsel for parties and perused the record with their assistance.

9. The pivotal issues in this case are Issues Nos.6 and

8. It has been contended in the preliminary objection of the written statement that the suit property was orally gifted by Dr. Ejaz Ahmed Sheikh to Mst. Shahida Adeeb, appellant-defendant No.1 on 28-12-1992 and the same was reduced into writing through acknowledgement Exh.D.1 on 16-5-1993. The dower amount was increased' from Rs.50,000 to Rs.15,00,

000. There are essential ingredients for valid gift i.e. (i) declaration of a gift by the donor (ii) acceptance of the gift, express or implied, by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee. See cases of Muhammad Zamaan Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121 and Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah.

194. Writing is not essential to the validity of a gift. It is immaterial that the donor had also executed a deed of gift but the deed has not been registered. It is also settled principle of law that Muhammadan husband executes a deed in favour of his wife whereby he grants immoveable property to her in lieu of her dower. The possession of the property is not delivered to the wife, even then this transaction is valid as Hiba-bil-Iwaz. Reliance has been placed on case reported as Inayat Ullah v. Perveen Akhtar 1985 CLC 1454. It is settled principle of law that in case of Muhammadan women it is open to husband to fix the dower amount at any time before or after the marriage. It is further open to the husband to increase the amount of the dower at any time during the continuous of the marriage. For purpose of increasing dower declaration by husband is sufficient. Reliance has been placed on the case reported as Chan Pir v. Fakar Shah AIR 1940 Lah. 104.

10. To prove the oral gift made by Dr. Ejaz Ahmad Shaikh in favour of Mst. Shahida Adeeb appellant-defendant No.1 on 28-12-1992 only one witness namely Qazi Abdul Waheed D. W.1 has been produced who deposed that appellant-defendant No.1 is his sister-in-law and her husband has died. According to him, deceased Dr. Ejaz Ahmad Shaikh visited his residence at Karachi on 28-12-1992 on the engagement ceremony of his daughter and in his presence, he orally gifted away the property in favour of the appellant-defendant No.1 who accepted the same. This part of the evidence is not permissible for two reasons. Firstly, that the appellant-defendant No.1 did not disclose in the plaint that the gift was made in her favour on 28-12-1992 at Karachi at the time of engagement ceremony of daughter of D. W.1 when the donor visited Karachi. Secondly, the possession of the property was not delivered by the donor to the donee. The basic rule is that of secundum allegata et probata i.e. a party can only succeed according to what was alleged and proved. The possession of the property was not delivered to the wife as admitted by P.W. even then, the transaction may be valid as Hiba-bil-Iwaz, but this is not the case of the appellant-defendant No.1 that the transaction in favour of the appellant was in lieu of dower. In the Wealth Tax Assessment Order Exh.P.1 the disputed shop has been shown in the name of the deceased. The objection of the learned counsel for appellant is that the assessment order cannot be made basis for non-suiting the appellant. In case of Mst. Roshan Ara v. Mst. Badri Kamala and 9 others 1989 SCMR 1981 where the suit property was given to wife by her husband in lieu of dower and subsequently acknowledgement in writing by husband was also duly executed. It was held by the Honourable Supreme Court of Pakistan that, "statement in the acknowledgement deed by the husband regarding the previous transfer of the property in lieu of dower had force and value of legal import." The above said observation was made on the basis of case decided by the Honourable Supreme Court of Pakistan in case of Mian Aziz A. Shaikh v. The Commissioner of Income Tax (C.A. 32 of 1980 decided on 19-4-1989). The transfer of property by the donor was shown in the record of the Income Tax in case of Mian Aziz A. Shaikh v. The Commissioner of Income Tax which is not the case here but in the Assessment Order Exh.P.1 the property is still in the name of the deceased. Now, it is to be noted that to prove the enhancement of dower amount from Rs.50,000 to Rs.15,00,000 through declaration made by the husband compromise deed Mark-A has been produced on the record. Marriage took place on 25-12-1986 and Rs.50,000 was fixed as prompt dower. The compromise was reduced into writing in presence of witnesses namely Imdad Hussain Shah and Muhammad Sabir. None of these witnesses was produced in Court. Therefore, it is not proved that the dower amount was enhanced from Rs.50,000 to Rs.15,00,000.

11. Coming to the application (C.M. No.1106-C of 1999) through which the applicant wants to bring on record certain documents bearing signatures of the deceased namely Dr. Ejaz Ahmed Shaikh for the purpose of comparison with his signatures on Exh.D.1, the detail of which is given in paragraph 4 of instant application. (C.M. No.1106-C of 1999).

12. In case reported as Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others (1999 SCMR 85) the Honourable Supreme Court of Pakistan had ruled that, "in certain eventualities the Court was enjoined with powers to itself compare signatures along with other relevant material to effectively resolve main controversy." In this view of the matter, we allow the production of original passport of Dr. Ejaz Ahmad Shaikh bearing No.H-178818 being a public document for the purpose of comparison of his signatures with the available signatures on Exh.D-1. Rest of the documents are not public documents and are required to be proved under the provisions of Qanun-e-Shahadat Order 1984. Besides, these documents were in possession of the appellant during the trial. No reason whatsoever has been assigned in the application for non-production of these documents before the learned trial Court. This Court dose not require the documents, therefore, to the extent of producing documents except the passport, the C.M. is dismissed. After comparison of the signatures of deceased Dr. Ejaz Ahmed Shaikh available on the Passport with the available signatures on Exh.D.1, the original passport is returned to the appellants' learned counsel.

13. We have compared the signatures of Dr. Ejaz Ahmed Sheikh available on the acknowledgement deed Exh.D.1 with Passport Exh.D.4 with the assistance of learned counsel for the parties and are satisfied that the signatures of the deceased available on the passport Exh.D.4 are not identical with that of deceased available on the acknowledgment Exh.D.1.

14. On the basis of the above stated record and appreciation of evidence, we conclude that no oral gift was made by Dr. Ejaz Ahmad Shaikh in favour of appellant No.1 nor acknowledgment Deed Exh.D.1 was reduced into writing by the deceased in favour of the appellant No.1. The findings on Issues Nos.5, 8 and 9 recorded by the learned trial Court are maintained. This being so, this appeal fails and the same is dismissed with costs. M.H./S-48/L Appeal dismissed.