1995 PLP 1489 (SCMR)

ZIA MAHMOOD MIRZA, J.‑‑‑This appeal by leave of the Court is directed against the judgment of Peshawar High Court dated 31‑5‑1992 dismissing the appellants' appeal (R.FA. No.40‑1985) filed 'against the judgment and decree of the Senior Civil Judge, Swat dated 9‑10‑1985 whereby suit of the plaintiffs‑respondents was decreed.

2. Facts giving rise to the present appeal are as follows:‑‑ Miangul Sherin, the predecessor‑in‑interest of the appellants and respondents Nos.1 to 4 was the owner of the suit property comprising lands and houses. He had married twice. From his first wife Bibi Zargoon, he had four sons who are respondents Nos.1 to 4 herein. His second wife Mst. Kha Bibi, Appellant No.6 gave birth to five sons, Appellants Nos. 1 to 5 and three daughters, appellants Nos. 7 to

9. Miangul Sherin is stated to have died on 3‑4‑1977. After his death, respondents Nos.1 to 4 brought a suit against the present appellants and respondents Nos.5 and 6 for a declaration and in the alterative for possession claiming that they were entitled to 4/9 share in the properties left by their father Miangul Sherin, described in detail in the heading of the plaint. The plaintiffs also challenged the sale of a part of the suit land made by appellants Nos.1 to 6 in favour of respondents Nos.5 and 6 through a registered sale‑deed dated 1‑6‑1977.

3. The appellants contested the suit by filing a written statement wherein apart from raising numerous preliminary objections as to the form of the suit, limitation, estoppel and res judicata etc. the claim of the plaintiffs to inherit the suit property was controverted by contending that Miangul Sherin during his lifetime had alienated the entire suit property to appellants Nos.1 to 6 vide agreements/deeds dated 24‑2‑1975, 28‑2‑1975 and 26‑5‑1975 and the said appellants were in possession thereof since long. It was accordingly averred that the plaintiffs/respondents had no right or title in the suit property and the appellants Nos.1 to 6 being exclusive owners thereof had every right to transfer a part of the suit land to respondents Nos.5 and 6.

4. Learned trial Court framed necessary issues arising from the pleadings of the parties whereafter, both the parties led evidence, oral as also documentary, in support of their respective contentions. It may pertinently be stated that Abdur Razzaq appellant appearing as D.WA produced two original deeds of Will, one dated 26‑5‑1976 in favour of appellants Nos.1 to 5 and the other dated 26‑2‑1975 in favour of appellant No.6, both executed by Miangul Sherin in respect of the suit properties. The originals were perused by the Court and returned and photo copies thereof were placed on record as Exh.D.W.‑1/2 and D.W: 1/4, respectively. Learned trial Court without attending to and discussing the evidence led by the defendants, the present appellants, decreed the suit of the plaintiffs on the short ground that the plaintiffs admittedly being the sons of Miangul Sherin were entitled to their share in his estate. This was vide judgment dated 9‑10‑1985.

5. Feeling aggrieved, the appellants preferred an appeal in the Peshawar High Court which as stated above was dismissed vide the impugned judgment with the clarification that the plaintiffs were entitled to 1/3 share in the estate of their father and not to 4/9 share as prayed for by them. This clarification was made with a view to rectify the error in the decree of the trial Court which was drawn up in terms of the prayer made in the plaint.

6. The appellants then approached this Court to seek leave to appeal against the judgment of the High Court contending that the Courts below have misread the evidence and misconstrued the two documents dated 26‑2‑1975 and 26‑5‑1976 (which in the leave‑granting order have been described as Exh.D/1 and Exh.D/2 though as per the record, they are Exhs.D.W: 1/4 and D.W.‑1/2 respectively). Leave to appeal was granted by this Court to consider whether the Courts below have rightly construed the said two documents.

7. We have heard the learned counsel for the parties. Learned counsel appearing in support of this appeal has contended that the documents in question though captioned as were in fact the instruments of gift as they purported to deliver the possession of the properties mentioned therein to the donees. Learned counsel has argued that in order to determine the true nature of a document, it has to be read as a whole and the Court has to look at its substance and not the form or its title. This undoubtedly is the settled proposition for construction of documents. Whether a document embodies a gift or a will is of course to be gathered from the recitals made in the document. It is also an accepted principle of Islamic Law that a gift or a `Hiba' is a transfer of property made immediately i.e., in praesenti and it is essential for the validity of a gift that it should be accompanied by delivery of possession of the subject of the gift by the donor to the donee. A will, on the, other hand, takes effect after the death of the testator. It is also settled law that a Will made in favour of an heir is not valid unless consented to by other heirs of the deceased testator.

8. Keeping the aforenoted principles in view, we have gone through both the documents with the assistance of the learned counsel for the parties. The document Exh.D.W.‑1/2 whereby several landed and housing properties mentioned therein were sought to be transferred to appellants Nos.1 to 5 opens with the following recital:‑‑ and it concludes with the following declaration of the executant:‑‑ These recitals quite clearly show that the executant of the document wanted to make a Will in favour of appellants Nos.1 to

5. Apart from the recitals aforequoted, the intention of the executant to make a Will and not a gift is further manifested in the following stipulation made almost towards the end of the deed:‑‑ Learned counsel for the appellants has, however, pointed out that the document also contains a recital as to the factum of delivery of possession to b the appellants. A statement no doubt occurs in the body of the deed saying that but in our view, the last word of the executant on the subject of possession has been incorporated in the aforereferred stipulation expressed in more categorical terms towards the end of the deed which quite clearly show that he never parted with the possession of the properties which remained with him during his lifetime and the appellants were to take possession thereof after his death. Learned counsel for the appellants could not refer to any other evidence to show that the possession of the properties, the subject‑matter of the document Exh.D.W.‑1/2, was delivered to the appellants. Possession of the suit lands in fact remained with Miangul Sherin, father of the appellants until his death and it was so admitted by the appellants' witness Shaber D.W.2. In the overall circumstances, we are satisfied that the document Exh.D.W: 1/2 was only a deed of Will and not of gift as the possession of the properties forming the subject‑matter of the document was not delivered to the appellants, and the contemplated transfer of the properties was to take effect after the death of the executant.

9. As regards the document EX.D.W: 1/4 whereby Miangul Sherin gave to his wife Kha BibLappellant a house alongwith a shah piece of land described as. We find from the recitals in this document that possession of only the house was stated to have been delivered to the donee. The document is silent about the delivery of possession regarding the piece of land mentioned therein, we thus hold that this document would operate as a gift in favour of Kha Bibi appellant qua the house but as . regards the piece of land given to her, it was only a Will as possession thereof was not delivered to her. Needless to observe that the appellants Nos.1 to 6 being the heirs of the deceased Miangul Sherin, bequests in their father were not valid as other heirs have not consented thereto.

10. Learned counsel appearing for respondents Nos.1 to 4 has sought to contend that the documents in question could not be read in evidence as their execution was not formally proved by the scribe and the marginal witnesses thereof. We find no merit in this contention as no objection in this behalf was taken when these documents were admitted in evidence in the trial Court. Law is fairly well settled that an objection as to the formality of proof must be taken at the earliest stage and if it has not been taken then, it cannot be allowed to be taken at the appellate stage. Refer Malik Din and another v. Muhammad Aslam PLD 1969 Supreme Court 136.

11. Upshot of the above discussion is that this appeal is allowed only to the extent of the house mentioned in Exh.D.W: 1/4 which, as held above, stood validly gifted to Mst. Kha Bibi appellant No.6. All other properties mentioned in the two documents viz Exh.D.W.‑1/2 and Exh.D.W: 1/4 form part of the estate left by Miangul Sherin which shall be distributed amongst his heirs namely appellants Nos.1 to 9 and respondents Nos.1 to 4 according to their 'Shari' shares. No order as to costs. M.B.A./A‑1297/S Order accordingly.