2016 PLP 754 (CLC)

ABDUL LATIF KHAN, J.

The appellants have filed instant regular second appeal against the judgment and decree dated 15-11-2006 passed by learned Additional District Judge/Izafi Zila Qazi-II Swat, whereby judgment and decree dated 23-12-2004, passed by the Civil judge-III/Illaqa Qazi, Swat has been set aside and suit of respondents Nos.1 and 2 has been decreed.

2. Arguments heard and record perused.

3. A perusal of record reveals that the property in dispute was originally owned by one Mazoob, who had two wives namely Mst. Bakht Bina and Mst. Bakht Kara and had gifted the landed property vide registered deed No. 305 dated 9-9-1985, EX-PW-3/1. The respondents/ plaintiffs filed a suit being brothers and sisters of the Donee, widow of Mazoob, who became owner vide gift deed to the extent of her share and respondents claims the ownership of the landed property being brothers and sisters of Mst. Bakht Bina, one of the widows of Mazoob. It is pertinent to mention, that Mazoob died after the death of Mst. Bakht Bina and property gifted to Mst. Bakht Bina was devolved upon Mazoob to the extent of half share, as she was issueless, vide mutation No.439 dated 14-9-1994 and, thereafter, the said property was also devolved on the death of Mazoob in favour of his legal heirs including the plaintiffs/petitioners by dint of mutation No.

440. The Donee died in the year 1997 whereas the registered deed was executed and attested in the year 1985, but in his lifetime not questioned the same and was incorporated in the "Jamabandies" for the year 1993-94 in the name of Donees and entry was repeated in the year 1997- 98, but Donor has never challenged it, which means that the registered deed was properly executed on his free will and consent.

4. The plea of the petitioners that there appears no consent of the Donees regarding the gift, is misplaced for the reason that the property was gifted vide registered deed, which speaks about the consent of the Donees, as the endorsement of the deed reveals that the gift deed was presented by both the Donees before the Sub-Registrar, which is sufficient documentary proof of the consent of Donees duly supported by entries made in their names in the revenue record on the basis of registered deed in the year 1993-94 and subsequently these entries were repeated in the year 1996-97. Needless to mention that gift can be made orally and requires no registration, even writing is not necessary to the validity of the gift made regarding immovable property. The three ingredients, essentials of the validity of gift are declaration of gift by the Donor, the acceptance express or implied by or on behalf of the Donees and delivery of the possession of the subject of gift by the Donor to the Donee as per Section 150 of the Muhammadan Law are "sine qua non" for a valid gift. The declaration of gift by the Donor stand proved from the attestation of document through attestation of registered deed and endorsement thereupon by the Sub-Registrar, which has got presumption of truth as per Section 60 of the Registration Act and later on the silence of the Donor for considerable long period till his death after the attestation of registered deed and thereafter the acceptance of share out of the inheritance of Mst. Bakht Bina on her death to the extent of half half share out of that property, which was gifted by Mazoob in her favour.

5. So far is the acceptance of the Donees are concerned, it is also apparent from EX-PW-3/1, which was presented by them and both the parties after the death of Donee Mst. Bakht Bina had taken benefit in inheritance out of her legacy. The acceptance can be either express or implied by the Donees themselves or by anyone on their behalf. So far is the delivery of possession is concerned, being wife of the Donor, delivery of actual and physical possession was not necessary. Section 135 of Muhammadan Law deals with the situation where husband and wife residing together and even after making gift in favour of wife; the husband generally manage the property or receive rent of the same, no formal delivery of possession is required. Moreover, the Donor has not revoked the gift deed in his lifetime and it is only the Donor who can revoke the gift as provided by Section 165 of the Muhammadan Law to ask for the revocation of gift at any time before the delivery of possession. None of the legal heirs are empowered to get the same revoked and, as such, a valid gift made by the Donor having all its ingredients fulfilled, cannot be revoked by the legal heirs of the Donor and that too after a lapse of considerable long time with special reference to the fact that Donor has not challenged the same in his lifetime. The plea of the petitioners regarding "Fatwa" given by religious scholar ("Alim") could not be considered in the presence of the gift made through registered deed duly attested and in the light of provisions of Muhammadan Law relating to the subject. The plea that marginal witnesses of the gift deed were not produced; is misplaced for the reason that writing or registration of gift deed is not the requirements/essentials of valid gift, gift can even be made orally and it has not been challenged by the Donor in his lifetime rather the property gifted by the Donor in favour of Donee was devolved upon him on her death to the extent of half half share and has accepted the same and which was later on devolved upon the respondents in the legacy of deceased and in peculiar circumstances of the case, the non-production of the witnesses of the gift deed would not invalidate the gift and, as such, the Court of appeal has decided the "lis" pending before it with conscious and application of independent mind; warrants no interference. For the aforementioned reasons, the instant appeal being devoid of merit is hereby dismissed. ZC/17/P Second appeal dismissed.