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Petitioner: Mst. GHAZALA REHMAN through Attorney VS Respondent: NAJMA SULTANA through Legal Heirs and 2 others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Muhammad Ather Saeed Title:Mst. GHAZALA REHMAN through Attorney vs NAJMA SULTANA through Legal
Heirs and 2 others Case No.: High Court Appeals Nos.176 and 177 of 2004 Date of Judgment:2011-09-28 Reported As: 2012 MLD 188 Result: Case remanded Judgment ORDER ' MUHAMMAD ALI MAZHAR, J.---These High Court Appeals are directed against a common judgment dated 24-4-2003 and the decree passed by the learned single Judge of this court in Suit .No,1057 of 1999 and Suit No, 501 of 1992. 1. The facts forming the background of the case are that the appellant and respondents Nos. 1 and 2 are daughter of late Hassanally A. Rehman while Mst. Sughra Hassanally was widow of late Mr.Hassanally A. Rehman who died at Karachi in May, 1999 and except appellant and respondents Nos. 1 and 2, there is no other legal heir of late Mr. Hassanally A. Rehman. The respondent No,1 also died in July, 1999 at London, her daughter was brought on record in the month of December, 2000. 2. That respondent No,1 had filed a Suit No,501 of 1992, claiming therein that Mst. Sughra Hassanally who was defendant No,1 (hereinafter referred toas late mother of the appellant and respondents Nos.1 and 2) had gifted bungalow bearing No,G-3, Cosmopolitan Cooperative Housing Society, Karachi on 29th March 1992 and the same was accepted by the appellant and respondents Nos.1 and 2. It was further claimed that on 21-3-1992, an affidavit was also signed by late Mst. Sughra Begum, thereafter, the gift was revoked by her vide notice dated 18th June 1992. It was further averred that respondent No,3 (defendant No,4 in suit) was liable to mutate.The property in equal shares in favour of respondents Nos.1 and 2 and the appellant. In the suit, the plaintiff had prayed for the following relief(s):-- (I) Declaration that the plaintiff is absolute and exclusive owner of one third share in property bearing No, G-3, Cosmopolitan Society Karachi East and the defendant No,1 has no right, title or
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interest in the same and consequently the defendant No,4 is required to mutate the same in favour of plaintiff. (II) Permanent Injunction restraining the defendant No,1 or anybody claiming for or on her behalf from interfering with plaintiff's possession and enjoyment of property No, G-3, one third share. (III) Defendant No,4 be directed to record mutation of one third share in property No,G-3, Cosmopolitan Society, Karachi East in favour of plaintiff. (IV) Costs of the suit be borne by the defendant No,1 (V) Any other relief that this honourable court deem fit and proper. 3. Along with the plaint, the plaintiff/respondent No,1 had also filed an injunction application for restraining the defendant No,1 in the suit from disputing plaintiff's title in respect of one third share in property No, G-3, till the pendency of the suit. The learned single judge passed the order directing the parties to maintain status quo till next date with regard to possession of disputed premises. 4. The diary of the Additional Registrar (0.S) shows that on 4-11-1992, the notices were returned unserved on the defendant No,1 (late mother) and the appellant. The summon was never served on the later mother nor the appellant at any time. On 4-10-1'995, the defendant No,2 was debarred, the plaint/application was struck off against defendant No,1 and defendant No,4 was declared ex parte. The respondent No,2 did not file any written statement in spite of the fact that gift was revoked on 8th June 1992. She was debarred from filing the written statement though she received copy of the plaint on 23rd September 1992, thereafter no effort was made by her at any time to assert her rights. 5. The respondent No,2 filed her separate Suit No, 1057 of 1999 for cancellation, declaration, partition, permanent injunction and damages with the following prayers: (i) declare that the plaintiff is entitled to her due share in the suit property, along with relatable adjustments and damages in her favour along with markup till date, while cancelling any other document(s) adverse to such interest, including the alleged gift and mutation, if any, as explained in para 14 above, while declaring such documents to be void and also -directing the defendants Nos. 1 and 3 to deposit the same in Court with its Nazir; (ii) Partition the suit property while giving the plaintiff her share along with the necessary and relatable adjustments in her favour relating to the damages/financial losses suffered by her till date; (iii) Additionally award damages to the plaintiff of an amount of Rs,34,00,000 (Rupees Thirty Four Lacs) along with mark up/ interest from the date of accrual till the date of payments; (iv) Permanently restrain the defendants, their agents, officers and servants from disturbing the plaintiff's possession in the suit property or encumbering the same in any manner by creating third party interests or otherwise and from interfering with the physical possession of the suit property by the plaintiff, while further restraining them from installing squatters and encroachers any further; (v) Direct the defendant No,5 to evict the encroachers/squatters in the suit property, while also directing him to lodge necessary F.I.Rs, against the defendants Nos. 1 and 4 in relation to the events disclosed in paras 12 and 14; (vi) Direct the defendants Nos.1 and 4 to deposit the original bills, conveyance deeds, and other documents in Court stolen by them on 10-6-1999, as explained in para 12 above; (vii) Declare that the plaintiff is entitled to her share in view of the gift pertaining to shares in different companies, marked as Annexure-G while directing the defendant No,1 to part possession of the share scripts or compensate her in relation thereon, and till disposal of the suit deposit such gift declaration and shares scripts in Court; (viii) Award any other relief;
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(ix) Award costs. ' However, in the amended plaint, besides few new paragraphs, prayer clause (i.a) was also added in which a declaration was claimed that the purported declaration of gift dated 12-2-1998 marked as Annexure-E to the written statement of the defendant No,1 and the mutation of the suit property in the name of the defendant No,1 purportedly evidenced through extract marked as Annexure-F to the written statement filed by the defendant No,1 or otherwise is completely without jurisdiction, unlawful, mala fide, unenforceable and of no legal effect, while cancelling the latter documents. 6. The written statement was filed by the appellant/defendant No,1 in which it was stated by the appellant that the late mother had gifted the entire property to her. The basis of acceptance of the gift was declaration that they had taken possession of the property was only symbolic but no actual possession or transfer nor indeed there is any document that any possession was transferred pursuant to the gift deed which was subsequently revoked. Nor in .The plaint it was averred by the plaintiff (respondent No,2) that after taking possession she or any of her sister exercised any right pursuant to the possession alleged to have been taken on the gift deed and/or affidavit. She had also filed gift deed and mutation of property in her name. 7. The respondent No,2 then amended the plaint and claimed relief against the documents filed with the written statement. In the amended plaint, a new paragraph 14-A was inserted by the plaintiff in which it was inter alia stated that the Defendant No,1 filed written statement and counter affidavit in this case and it has transpired that the defendant No,1 has secured execution of a declaration of gift dated 12-2-1998 from the late mother of the plaintiff gifting the entire suit property to the defendant No, 1/appellant. The declaration confirms an illegal and so-called oral gift dated 18-10-1997. The said oral or declaration of gift has also been unlawfully registered and necessary entries in the form of mutation are indicated in an extract filed as Annexure F to the written statement of the defendant No, 1. Two documents purportedly confirming the gift and mutation executed and effected behind the plaintiff's back without any notice to her. These two documents i.e, Annexure E and F along with the so-called oral gift are completely without jurisdiction, unlawful, illegal, fraudulent, void ab-initio and of no legal effect since no such gift could have been ekecuted once the earlier gift marked as annexure B to the plaint was -validly executed and had taken effect. 8. On 15th March 2000, Suit No,1057 of 1999 was fixed for hearing of miscellaneous applications. The counsel for the appellant could not attend the court and when the matter was called. The hearing of the applications was deferred. By then all the parties in the suit had also not filed their respective written statements nor they were debarred from contesting the case. The case was not fixed for framing of the issues. The appellant counsel was not present, however, the counsel for the respondent No,2 requested the court to. Frame preliminary issues. 9. On 6th June 2000, an urgent application was moved for hearing of arguments on the issues without recording evidence, for which again no notice was issued and the matter was adjourned to 12-6-2000 for arguments. However, on that date, the matter was further adjourned to 17-8-2000 for settlement of final issues which order was not complied with. 10. Heard the arguments. Learned counsel for the appellant argued that when two issues were framed by the learned Single Judge the matter was not fixed for settlement of issues even all the defendants had not filed their written statement. He further argued that the preliminary issues were framed on the date when the appellant counsel was not present and the suit was only fixed for hearing of applications. He further argued that both the issues settled as preliminary issues were the issues of mix question of law and facts and could not be decided without recording evidence of the parties. He further argued that the interim orders were operating in Suit No,501 of 1992 only in respect of ' possession and as per diary of Additional Registrar, the name of late mother of the appellant was struck off from the plaint therefore, there was no impediment for executing the
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registered gift deed in favour of the appellant, by her latemother. He further argued that though the gift deed was drawn but the possession was never delivered by the late mother to the appellant or to the respondent Nos.1 and 2 in pursuance of earlier declaration of unregistered oral gift. He further averred that on 12-6-2000, the matter was adjourned by the learned Single Judge to 17-8-2000 for settlement of final issues and arguments if any but the said order was never complied with and no final issues were settled in the suit. He further argued that the late mother of the appellant and respondents Nos.1 and 2 never parted with the possession of the property either to the appellant or the respondents Nos. 1 and 2 pursuant to the .Gift deed of 1992. She continued to live in that house till such time she gifted and, mutated the property in question in the name of the appellant. He further argued that there is nothing on record to show that the respondents Nos. 1 and 2 contributed any thing as a token of their possession including the payment of utility bills or property tax etc. The learned counsel further added that the gift deed executed in 1992 was revoked by the late mother and thereafter, she executed a registered gift deed on 12th February, 1998 in favour of the appellant and the appellant had accepted the gift with possession and her name was also mutated in the record of rights and since then the appellant is continuously paying the taxes and other dues for the property in question. In support of his contention learned counsel has relied upon the following case-law:-- (1) 2010 SCMR 342 (Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another). In this matter, the honourable Supreme Court has held that under the Mahommedan Law, a gift, in order to be valid and binding upon the parties, must fulfil the following three conditions (a) declaration of gift by the donor; (b) acceptance of gift by the donee; and (c) delivery of possession of corpus. On the fulfilment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the pre-requisites are complied with. Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registerable under the Registration Act, 1908. In was further held that the gift-deed was executed on 15-2-2002 while the donor, died on 23-5-2002. During this period, the respondent-plaintiff did not get the property mutated in her favour. The failure to clearly establish the twin requirement of acceptance of gift and delivery of possession was fatal to the claim of the respondent/plaintiff. (1) 2000 MLD 1729 (Mst. Farida Sajid v. Syed Muhammad Baqir All Shah and others). In this matter, the learned Divisional Bench of Lahore High Court has held that donor was in physical possession of the property at the time when he made the gift and remained in the same house till his death. Donees failed to prove that they were in the joint possession of the property with the donor before the gift. Effect. Donor was required to put the donees in physical possession of the property. Neither there was any evidence on record to show that the donor did so, nor the donor had divested himself of the corpus, rather the donor had been dealing with the property as an owner even after having made the gift. No valid gift was made qua suit property in circumstances. (3) 1972 SCMR 50 (Ashiq Hussain and another v. Ashiq Ali). In this matter, the honourable Supreme Court has held that a mere recital in the gift deed that possession has been delivered to the donee not enough. There are three essentials of gifts under the Muhammadan Law (i) a declaration of gift by the donor; (ii) an express or implied acceptance of the gift by the donee; and (iii) seisin or the delivery of possession of the gifted property by the donor to the donee. The delivery of possession by the donor as a conscious, unequivocal and distinct act on his part is necessary to perfect the gift made by him. (4) 2001 SCMR 34 (Azim Khan versus Malik Mobeen Khan). In this case, it was held that it is by now settled law that mere recital in the deed about the delivery of possession would not be sufficient to prove possession unless delivery of possession is positively proved by cogent reason. ( ) 2003 SCMR 286 (Muhammad Bakhsh versus Ellahi Bukhsh and others). In this case, it was held that mere recital in the gift deed that possession has been delivered to the donee would not be
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enough unless the delivery thereof was proved by cogent evidence. Where the possession of the property, the main ingredient of the gift was missing, the gift, could not be given any credence. (6) 2003 SCMR 1261 (Amir Bibi through legal heirs v. Muhammad Khursheed and others). In this matter, the honourable Supreme Court held that in view of the provisions as contained in Order XII, rule 6 a court is competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each case but such power is not unfettered and the admission on the basis whereof a decree is sought must be specific, clear, unambiguous, categorical and definite. It is bounden duty of the Court to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. It would, however, be discretionary for the Court to accept or reject such application. In this regard we are fortified by the dictum laid down in East and West Steamship Co. v. Queensland Insurance Co. (PLD 1963 SC 663), Naseer Ahmad v. Asghar Ali (1992 SCMR 2300). This case has been examined on the touchstone of the criterion as mentioned hereinabove. After having gqne through the entire record we are of the considered view that the entire suit could not have been decreed as the claim of respondents has been controverted on various legal and factual grounds which can only be decided on the basis of evidence and not on mere admission. (7) 1996 SCMR 696 (Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co and others). In this matter, the honorable Supreme Court has held that essential provision of O.XII, Rule 6, C.P.C. Provides summary and speedy remedy in cases where admission was made by defendant in pleadings or outside the same. In order to attract provision of O.XII, Rule 6, C.P.C. Admission should necessarily be unequivocal, clear, unconditional and unambiguous. Such admission should not only be in respect of amount (where dispute related to payment of money) but liability to pay the same to plaintiff. Court while deciding such application for grant of decree must exercise its discretion in judicial manner and subject to qualification regarding maintainability of suit on any legal objection going to the very root of the matter. Court should not 'grant decree on admistion without resorting to objections raised. 11. Conversely, the learned counsel for the respondent No,2 argued that in the paragraph 4 of the plaint, the respondent No,2 (plaintiff in Suit No, 1057 of 1999) had clearly stated that the mother of the plaintiff had gifted the suit property on 11-3-1992 at Karachi in the presence of two witnesses to her three daughters as mentioned in para 1 above in equal shares. The gift was reduced in writing through a "Declaration of Gift" dated 29-3-1992, on which the two witnesses also effected their signatures. The Gift was duly accepted by all the three beneficiaries i.e, the daughters, Najma Rahman, defendant No,1/appellant and the plaintiff/respondent No,2, respectively. Collaterally, the declaration of gift has also mentioned the factum of possession being enjoyed by the beneficiaries. After referring to para 4 of the plaint the learned counsel referred to the written statement filed by the appellant/defendant No,1 in the Suit and argued that in the written statement the appellant/defendant No,1 clearly mentioned that the contents of para 4 of the plaint are not denied. He averred that since the factum of oral gift and the crux of the whole suit was mentioned in paragraph 4 of the plaint which was not denied by the defendant No,1, therefore, this was a case of clear admission on the part of the appellant/defendant No,1, hence, no further evidence was required to be led by, the parties. The learned counsel , further argued that the gift executed by the mother in favour of three daughters could not be revoked and he further argued that in the declaration of oral gift it is clearly mentioned the possession of the property in question was delivered/handed over to the donees and all the donees collectively accepted the oral gift and also stated that they are in joint possession of the property. He further argued that the declaration of oral gift was executed by Mst. Sugra Hassanally in presence of two witnesses and all the donees have also signed the declaration of oral gift in presence of the witnesses. The revocation of gift vide letter dated June 8, 1992 was illegal as after making a valid gift, the gift could
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not be revoked. The learned counsel further referred to the amended plaint filed in Suit No, 1057 of 1999 in which besides amending the prayer clause a new paragraph 14-A was also added in which it was stated that after filing the written statement by the appellant/defendant No,1 in the above suit, it transpired to the plaintiff that the defendant No,1 has secured a declaration of oral gift on 12- 2-1998 from the late mother of the plaintiff which was unlawfully registered and the mutation was also effected unlawfully in favour of the appellant. He further argued that the late mother of the plaintiff/respondent No,2 and the appellant could not have executed gift deed and even her signature on the gift and the mutation are fabricated and secured fraudulently by the appellant. The original declaration of gift dated 11-3-1992 was irrevocable. Even otherwise, the said gift was executed when the status quo was operating in Suit No,501 of 1992. The learned counsel further argued that there is no illegality in the judgment and decree passed by the learned Single Judge as according to the learned counsel ample opportunity was provided to the other side to argue the matter and after hearing the arguments the learned Single Judge decreed the suit. He further averred that keeping in view, the clear admission in the written statement regarding the factum and execution of the first gift executed in the year 1992, there was no necessity to call the parties to lead the evidence in support of their pleadings, therefore, the learned Single Judge rightly framed two preliminary issues and further issues were also settled in the judgment to answer the bone of contention between the parties. He further averred that the learned Single Judge had considered the entire pleadings and rightly 'reached to a conclusion that the gift executed by the late mother in favour of her three daughters was a valid gift and could not be revoked under the provisions of Mohammadan Law. In support of his argument, the learned counsel for the respondent No,2, relied upon the following case-law: (1) 2007 CLC 1885, (Fateh Muhammad v. Fida Hussain). In this case, it was held that once admisson is made in written statement, no issue is required to be framed nor any further proof is required. Contents of document could be read and given effect to by court even in the absence of a plea by a party to such effect. Written statement would lose all its force as an authentic piece of evidence and cannot be acted upon or treated as substantive evidence when defendant does not make himself available for cross-examination. (2)- 2004 SCMR 704, (Muhammad Rafiq v. Muhammad Ali). In this matter, the honourable Supreme Court held that plea not raised in written statement. Effect. Defendant could not be allowed to set up a plea, which had never been pleaded through written statement. (3) PLD 2007 Lahore 83. (Munawar Hussain v. Amanat Ali). In this case, it was held that when a document is admitted or its execution is proved, then contents of the same are always considered to be proved or admitted. No oral evidence to disprove contents of such document is admissible in terms of -Art.70 of Qanun-e-Shahadat 1984. ("4) 2005 SCMR 1315, (Raza Munir v. Mst. Sardar Bibi). In this case, it was held that document once admitted in evidence and brought on record. Effect. Contents of such document could be read and given effect to by Court even in absence of a plea by a party to such effect. (5) 1999 YLR 2209, (Ashiq Hussain v. Ali Ahmed). In this case, it was held that if delivery of possession had taken place in gift transaction, revocation of such gift was permissible only by means of a decree of a Court. Suit for revocation of gift after delivery of possession must be governed by Art.91, Limitation Act, 1908, providing three years for filing a suit for setting aside or cancellation of any instrument. Gift was made in 1962 whereas suit for revocation was filed by the donor in 1978 after about sixteen years of execution of gift deed. Suit filed by donor was liable to be dismissed being barred by time. 12. The learned counsel for the respondent No,1 adopted the arguments of Dr. 'Muhammad Faroogh Naseem and fully supported the impugned judgment and decree.
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13. We have examined the record and proceedings of both the suits and the impugned judgment and decree passed by the learned Single Judge. It appears that after announcement of the judgment, a reference was moved by the office in relation to the market value of the property for preparing decree which was disposed of vide order 8-3-2004 with the direction to prepare the decree and market value may be determined at the time of partition. Which shows that decree was prepared in 2004. Even, this fact is clearly reflecting from admission note of the appeal dated 19-10-2004. 14. The paragraph 33 of the impugned judgment shows that while decreeing the Suit No,1057 of 99, the learned Single Judge had also decreed Suit No,501 of 1992 mutatis mutandis. The main cause of concern shown by the appellant is that the matter was not decided on merits and the controversy involved in both the suits could not be decided without adducing evidence by the parties. It was further urged that when the issues were framed the suit was not fixed for settlement of issues but it was only fixed for hearing of interlocutory applications. Earlier gift was revoked by Mst. Sughra Begum and subsequently she executed a registered declaration of oral gift in favour of the appellant, therefore,…
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