1987 PLP 1403 (SCMR)

MUHAMMAD AFZAL ZULLAH, ACTG. C.J.‑‑Leave to appeal has been sought from judgment dated 16‑10‑1977 of the Lahore High Court; whereby petitioners regular second appeal arising out of a gift of an immovable property made by a grandfather in favour of the son of a predeceased son, was dismissed and the existence and validity of the gift, was upheld. In order to understand the background of the case, it is necessary to make brief reference to the pedigree‑table of the parties. Abdul Ghani Ghulam Jannat (widow _______________________________________________________________________ | | | | | | | | | | | | Ahmad Bakhsh Maulvi Abdullah Karim Bakhsh Ghaus Bakhsh Ghulam Fatima Amin | | | (Defdt.) Abdul Aziz |___________| (Defdt.) | | (Plaintiffs) Daughters (Defdts.) Abdul Ghani the last male holder predecessor‑in‑interest of the parties made an oral gift of immovable property in dispute in favour of Abdul Aziz defendant /respondent, his grandson the son of a predeceased son Ahmad Bakhsh. Possession was delivered and the gift was accepted by the donee. Later on an unregistered memorandum of gift (Exh.D.A./1), acknowledged the same having been earlier effected, was executed by Abdul Ghani deceased in May 1944. After his death effect was given also to the gift in question in the mutation attested in 1948. Incidentally, the memorandum of gift Exh.D.A/1 was also witnessed by Abdullah. He and Karim Bakhsh petitioners herein and were the plaintiffs before the trial Court and had challenged the gift. The narrative of proceedings including those before the Revenue Officer, as given in the impugned judgment, is as follows:‑ "This document Exh.D.A./1 is signed by the appellant Abdullah. The learned District Judge compared his signatures on it with those on the plaint and came to the conclusion that they were of the same person. He also did not agree with the objection on the plaintiff's behalf that as Abdullah had not been particularly questioned about his signatures on that document, they could not be used against him. The reason given was that Abdullah had not denied his signatures on that document and never contested Mutation No.400 sanctioned on the strength of that document allowing Abdul Aziz 1/4th share in the estate. A perusal of Mutation No.400 (Exh. D.K.) shows that Abdullah had on 7th June, 1948, expressed lack of knowledge about that document. The parties were then asked to get a. However, on the next date all the sons and the widow accepted as correct the document D.A./1 and requested for sanction of mutation accordingly. That mutation was not challenged before any Revenue authority for about 2 years before the present civil suit was filed. It is thus, quite clear to me from the above situation that Abdullah did not originally object to or react against the sanction of mutation as the gift was there and Exh.D.A./1 admitted by them did make it clear that possession had also been given." The mutation of gift in favour of Abdul Aziz respondent was originally challenged by Muhammad Abdullah, Karim Bakhsh and Ghaus Bakhsh sons of Abdul Ghani. Later on Ghaus Bakhsh conceded the right of Abdul Aziz in the written statement and he was transposed as a defendant. The plaintiffs had sought a declaration that Abdul Aziz being son of a predeceased son of Abdul Ghani was not entitled to inherit and, therefore, the mutation was inoperative and did not affect their rights. They attacked the validity of the gift and also sought the delivery of possession of the property. No relief was, however, claimed against the other respondent /defendants who obviously were pro forma as they had conceded the right of Abdul Aziz under the gift. The two main controversies between the contesting parties before the High Court were as follows:‑ (a) That the document Exh.D.A/1 was misread inasmuch as that it was a gift deed and not memorandum of gift and the same being neither stamped nor registered it could neither be admissible nor relied upon by the donee /defendant‑‑Abdullah had also denied his having witnessed the same; and, (b) That in any case the oral gift, if any, was void as no possession had ever been delivered. Learned counsel for the petitioners has reiterated both these contentions. It may be straightaway observed that document Exh. D. A. /1 after having been carefully perused by us with the help of the learned counsel does not reveal any misreading by the High Court. It undoubtedly was an acknowledgment /affirmation of a fact which had already taken place; namely, that of existence of an oral gift through the delivery of possession. On the question of delivery of possession of the property under oral gift as also acceptance thereof by the donee, there is not only concurrent findings of fact against the petitioners but also a detailed discussion of all the relevant items of evidence and other material in the High Court judgment affirming the said finding. There is no infirmity, legal or otherwise, therefore, no justification has been made out for interference by this Court in this behalf. The next question which arises is whether an oral gift of immovable property could be made by a Muslim in favour of a Muslim son of a predeceased son. If so, whether such a gift has in any way to be effected also through an instrument of writing; and lastly whether in case an instrument of writing is made whether it is ineffective without registration. In our view all these questions stand resolved by the judgment of this Court in Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 S C M R

154. Though the facts in which the judgment was rendered are slightly distinguishable, yet in so far as the resolution of questions of law posed above is concerned, the answers are, of course, concise but very clear. An objection based on section 123 of the Transfer of Property Act to the effect that a gift of an immovable property cannot be made except through a registered instrument was raised but it was repelled with reference to section 129 of the Act which provided that nothing in the chapter in which section 123 fell would affect any rule of Muslim Law. It was held that according to Muslim Law an oral gift of an immovable property could be made provided other conditions for a Muslim gift were satisfied. The observations made at page 158 of the report, in this behalf, are as follows: ‑ "The objection founded on section 123 of the Transfer of Property Act is also misconceived. Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be affected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. See Muslim Law by Soksena, 3rd Edn. pp. 368‑369 and the precedent cases noticed at the foot of these pages. Among these formalities are, the passing of the possession from the donor and the acceptance of the same by the donee. These are amply satisfied in the instant case." Same is the position in the present case. All the conditions of a Muslim gift of immovable property are satisfied in this case. Therefore, the rule is fully attracted here. A slightly different observation made in Ismail Sayed and another v. Commissioner of Karachi and others 1968 S C M R 509 at page 513, an earlier case from this Court, would not in any way detract from the force of the enunciated rule in the case of Mst. Umar Bibi 1977 S C M R

154. This case had arisen out of a tenancy matter in Karachi. A tenant against whom it was established that he had built his own house in Karachi was resisting a plea by a transferee under the Displaced Persons (Compensation and Rehabilitation) Act (No. XVIII of 1958), that he was not entitled to the protection against ejectment provided in subsection (2) of section

30. He had raised the counter‑plea that he had made an oral gift of the said house so as to avoid the consequences of the objection. There is nothing to show in the report that all the conditions of a Muslim gift of immovable property were satisfied in this case. Therefore, the observation that the so‑called gift not having been made through a registered instrument was of no avail to the tenant, in the circumstances of the case, would be of no consequence in so far as the present discussion is concerned. In an earlier Lahore case relying on section 129 of the Transfer of Property Act, with respect, I had taken the same view which as already noted, has been taken by the Supreme Court, in the case of Mst. Umar Bibi. It is Allah Jawai v. Allah Ditta (represented by Heirs) P L D 1975 Lahore 1399. It was observed at page 1404 of the report.' It is further observed that the provisions contained in Chapter VII of the Transfer of Property Act which inter alia require making of a gift of immovable property only by registered instrument, do not apply to the present case which is of Hiba‑bil‑Ewaz by a Muslim such gifts are excluded by virtue of section 129 which provides that nothing in Chapter VII shall be deemed to affect any rule of Muslim Law.' Similar view was taken by the Peshawar High Court in Abdul Ghaffar and 6 others v. Ghulam Jan (represented by 5 Heirs) and another P L D 1975 Pesh.

12. Although no reference was made to section 129 of the Transfer of Property Act, yet it was held after discussing the other provisions of the Transfer of Property Act and Registration Act that a gift by a Muslim would be complete even if there is no writing; and, it depends, for its validity, upon: (1) a declaration of gift by the donor; (2) acceptance of gift expressly or impliedly by or on behalf of the donee, and (3) delivery of possession of the subject‑matter by the donor to the donee. If these three conditions are complied with the gift is complete. Registration of the document will not be helpful if either of the aforementioned condition are not satisfied. A written instrument in any case would not create a gift but is a mere evidence of the gift and as such would not in the case of a Musalman require registration. The gift was, therefore, held as complete under the Muslim Law and as such operative notwithstanding the non‑registration of the gift deed itself. Another Peshawar case, namely, Umar Bakhsh v. Mst. Zamrut Jan and 9 others P L D 1973 Pesh. 63 is not only distinguishable but also does not deal with the question of the effect and validity of the Muslim gift of immovable property with reference to section 129 of the transfer of Property Act. The same, therefore, does not need any further consideration. In the light of the foregoing discussion, we do not consider any Justification for interference. This petition for leave to appeal, therefore, is dismissed. M . B . A . /A‑57/ S Petition dismissed.