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Petitioner: Muhammad Naveed Butt & another VS Respondent: Mst. Balqees Akhtar (deceased) JUDGMENT
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title:Muhammad Naveed Butt & another vs Mst. Balqees Akhtar (deceased)
JUDGMENT
Reported As: 2022 LHC 4038 Result: Petition dismissed Judgment JUDGMENT AHMAD NADEEM ARSHAD, J. Through this single judgment, I intend to decide the instant Civil Revision as well as connected Civil Revision bearing No. 416-D of 2015 with same title as in both these petitions the parties as well as common questions of law and facts are involved. The petitioners have assailed the validity , legality and propriety of impugned judgment and decree dated 04.02.2015, whereby , the learned appella te Court while setting-aside the judgment and decree dated 28.09.2012 passed by learned trial Court, dismi ssed their suit for declaration, possession through partition and permanent injunction and decreed the suit for declaration, permanent and mandatory injunction instituted by respondent No.1. 2. Brief facts of the case are that Muhammad Naveed Butt and his sister Gul-e-Nargis, (herein after called as the petitioners ) instituted a suit for declaration, possession through partition and permanent injunction against Mst. Balqees Akhtar etc. (herein after called as the respondents ) regarding house No.105 measuring 1088 square feet situated in Mohallah Angat-Pura Saidpur road, Rawalpindi (herein after referred to as "disputed house" ) and Rs.10,00,000/- being pension amount and Rs.8,00,000/- from the sale proceed of house being ancestral properties belonging to the parties with the contention that the disputed house was originally purchased by the predecessor- in-interest namely Muhammad Shafi (deceased) vide registered sale deed No.6725 dated 16.12.2003; that Muhammad Shafi has passed away on 21.12.2006 and their mother had already expired on 03.02.2006, hence, all legal heirs of said deceased had become owner of the disputed house according to Hanfi Fiqa, Warasat-nama issued by Tehsildar dated 18.04.2007 and prayed for the partition of the disputed house being co-owners/co- sharers as well as claimed their respective share from the pension and deposit of sale proceeds of the house. The suit was contested by the respondents No.1, 2 & 6 by filing their separate written statements. Version of Mst. Bilqees Akhtar (hereinafter referred to as "respondent No.1" ) in her written statement was that Muham mad Shafi
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(deceased) had gifted out the disputed house to her in lieu of services rendered to him as well as her mentally retarded brothers namely Muhammad Idrees and Muhammad Naqi (defendants No.2 & 6) on 01.12.2006 through "Declaration of Gift" in presence of witnesses namely Muhammad Saeed and Muha mmad Yousaf. She is exclusive owner of disputed house and prayed for dismissal of petitioner 's suit. Respondent No.2 and defendant No.6 namely Muhammad Naqi (who died during pendency of appeal) through their guardian ad-litem/respondent No.1 conceded the stance of respondent No.1, filed contesting written statement and prayed for dismissal of the petitioner 's suit. Respondent No.1 has also instituted a suit for declaration and permanent injunction with the contention that she has been gifted out the disputed house by her father vide "Declaration of Gift" dated 01.12.2006 and she is in physical possession of disputed suit house along with her two mentally disordered brothers namely Muhammad Idress and Muhammad Naqi. She claimed exclusive ownership of disputed house and prayed for decree of her suit. The petitioners as well as respondents No.4 & 5 contested the suit by filing their separate written statements. They denied the execution of gift deed in favour of respondent No.1 and stated that she had instituted the suit as counterblast, prayed for dismissal of her suit. The learned trial Court consolidated both the suits framed consolidated issues out of divergent pleadings of the parties and conducted the proceedings in the petitioner 's suit. Both the parties adduced their evidence in support of their respective contentions. After conclusion of trial, the learned trial Court vide consolidated judgment and decree dated 28.09.2012, decreed the suit of the petitioners titled "Muhammad Naveed Butt etc. vs. Mst. Balqees Akhtar , etc.", whereas dismissed the suit of respondent No.1 titled "Balqees Akhtar . vs. Naveed Butt, etc.". Feeling aggrieved, Mst. Balqees Akhtar along with Muhammad Idrees and Muhammad Naqi preferred an appeal bearing No.203 of 2014 whereas Mst. Balqees Akhtar also preferred her separate appea l bearing No.204 of 2014. The learned appellate Court vide consolidated judgment and decree dated 04.02.2015 accepted both above mentioned appea ls by setting-aside consolidated judgment and decree dated 28.09.2012 passed by learned trial Court and suit instituted by the petitioners was dismissed whereas respondent No.1' s suit was decreed with the observations that the decree shall be executable in the revenue record subject to payment of all government dues as well as other procedural requirements. Being dis-satisfied, the petitioners filed the instant Civil Revisions. 3. Learned counsel appearing on behalf of the petitioners maintains that the suit instituted by respondent No.1 was hopelessly time barred as the gift was allegedly executed on 01.12.2006 whereas she instituted the suit on 09.03.2010; that the mandatory requirement for alleged gift under Article 17 and 79 of the Qanun-e-Shahadat Order , 1984 was not fulfilled by respondent No.1 as one of the marginal witnesses of alleged gift deed namely Muhammad Saeed was not produced by her and an affidavit on his behalf was tendered as Mark-A by the petitioners, wherein while denying his signature over Exh.D-2, he deposed that the said document is bogus and fictitious; that respondent No.1 has failed to implead necessary and proper parties in appeal; that essential ingredients of gift are not proved through cogent and reliable evidence; that respondent No.1 in her plaint as well as through her witnesses have not uttered even a single word regarding offer made by the donor and accepted by the donee; that no exclusive possession has been given to respondent No.1, therefore the alleged gift itself is illegal and liable to be set-aside; that from perusal of the alleged gift deed (Exh.D -2) (under objection), it depicts that the same was obtained for the purpose of an affidavit and there is no mentioning that the same was purchased/obtained for the purpose of any gift deed; that it is also astonishing that said gift deed dated 01.12.2006 was procured only 20 days prior to the death of donor i.e. predecessor in interest of the parties who died on 21.12.2006 which facts creates serious doubt regarding sanctity of alleged gift deed; that the alleged gift deed was maneuvered after the death of deceased predecessor in interest of the parties, hence, the same is frivolous, void, illegal, unlawful, ineffective qua the rights of the petitioners; that the learned appellate Court has not appreciated all above mentioned admitted facts of the case and passed the impugned judgment and decree dated 04.02.2015 which is liable to be set-aside. He further adds that the learned trial Court has passed judgment and decree in accordance with law which is liable to be restored. He placed reliance upon "RIASA T ALI versus MUHAMAMD ANW AR" (2018 YLR 82), "Mst. JAMEELA BEGUM versus QADEER AHMAD" (2018 YLR 66), "ALLAH WASSA YA versus Mst. HALIMA MAI and 12 others" (2016 MLD 1535 ), "AHMAD ZAMIR versus JEHAN MIR" (2015 YLR 2470 ), "MUHAMMAD NASEER AHMAD and others versus MUHAMMAD IBRAHIM SABBIR" (2013
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MLD 1127), "NAHEED SIKANDER versus NAEEM IJAZ and others" (2011 CLC 1479 ), "MUHAMMAD EJAZ and 2 others versus Mst. KHALIDA AWAN and another" (2010 SCMR 342), "SHAUKA T ALI versus Mst. JAMILA and 4 others" (2010 YLR 1663 ), "ABDUL SATTAR and other versus MUHAMAMD ASHRAF and others" (2008 SCMR 1318 ), "GHULAM MUHAMMAD and another versus MUHAMMAD RAMZAN throu gh L.Rs." (2007 MLD 1769 ), "Mst. SALAMAN versus BASHIR AHMAD and another" (2007 YLR 2440 ), "MUHAMMD YOUSAF versus MUHAMMAD HUSSAN and others" (2006 YLR 1993 ), "GUL BEGUM versus MUHAMMAD RIAZ and another" (2006 MLD 480), "ATTA ULLAH and 6 others versus FAIZ AHMAD and 2 others" (2005 MLD 1039 ), "FARID KHA TOON versus Dr. MASOOD AHMAD BUTT and 4 others" (2003 MLD 898), "BARKA T ALI through Legal Heirs and others versus MUHAMMAD ISMAIL though Legal Heirs and others" (2002 SCMR 1938 ), "MUHAMMAD SHAM versus NASIR ALI and 7 others" (1994 MLD 283), "ABDUL MAJID and another versus MUHAMMAD SHAM and others" (1990 SCMR 393), and "ASHIQ HUSSAIN and another versus ASHIQ ALI" ( 1972 SCMR 50 ). 4. Conversely , learned counsel appearing on behalf of respondent No.1 vehem ently opposed the contentions raised by learned counsel for the petitioners by maintaining that the learned appellate Court has rightly passed the impugned judgment and decree by setting-aside the judgment and decree of the learned trial Court by evaluating the evidence produced by respondent No.1 in its true perspective; that respondent No.1 has proved through cogent and confidence inspiring evidence that a valid gift was made in her favour by her father in presence of witnesses; that possession of the disputed house is with respondent No.1 and this fact was admitted by petitioner No.1. He lastly prayed for dismissal of above captions Civil Revisions. 5. I have heard learned counsel for both the parties and perused the record minutely with their able assistance in addition to the case-law cited at the bar . 6. Admittedly , disputed house No.105 was belonged to Muhammad Shafi son of Saddar-ud-Din who purchased it through registered sale deed No.6725 dated 16.12.2003 (Exh.P-3/Exh.D-1). Said Muhammad Shafi died on 21.12.2006 (Exh.P-1) leaving behind four sons and four daughters [Warasat-nama dated 18.04.2007/ (Exh.P-4], whereas, his wife has already expired on 03.02.1992 (Exh.P-2). The petitioners being son and daughter of said Muhammad Shafi instituted the suit for declaration, possession through partition on 08.08.2007 by impleading other legal heirs in the array of defendants by stating that plaintif fs as well as defendant s are co-owners of the disputed house being legal heirs of deceased Muhammad Shafi and sought its partition, whereas, respondent No.1 also instituted a suit for declaration, permanent and perpetual injunction on 09.03.2010 with regard to the said property by contending that disputed house was gifted to her by her father through Declaration of Gift Deed dated 01.12.2006 (Exh.D-2) witnessed by Muhammad Saeed and Muhammad Yousaf, her real uncles i.e. brothers of Muhammad Shafi and claimed her exclusive ownership. As there is no dispute with regard to ownership of Muhammad Shafi and his legal heirs, therefore, the controversy hinges upon the subsequent transfer of the disputed house through gift deed, alleged by respondent No.1 and denied by the petitioners. Being beneficiary of the said gift deed dated 01.12.2006 heavy duty cast upon her to prove not only the factum of gift but also said "Declaration of Gift" deed through reliable, trustworthy , cogent and confiden ce inspiring evidence. Before proceeding further , it is necessary to see what are the requirements to prove a valid gift. 7. To give any property to any person, mainly without any consideration, is due to love and affection of donor with donee. Hiba or gift as defined by D.F . Mullas' s in Para No.138 of Muhammadan Law is as under: - 138.Hiba or gift, --A hiba or gift is "a transfer of property , made immediately , and without any exch ange," by one person to another , and accepted by or on behalf of the latter ." From above definition hiba or gift means the transfer of property made by one person to another without consideration, accepted by or on behalf of the latter is a condition to be fulfilled in order to make a gift valid. The basic ingredients of gift defined in Para No.149 of principles of Muhammadan Law by D.F. Mulla' s which are as under:- 149. The three essentials of a gift.-- It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor , (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of
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possession of the subject of the gift by the donor to the donee as mentioned in S.150. If these conditions are complied with, the gift is complete. In case of "Muhammad Ejaz v . Khalida Awan" ( 2010 SCMR 342 ), it has been defined in the following terms: - "6. Under the Mohammadan Law, a gift, in order to be valid and binding upon the parties, must fulfil the following three conditions: - (a) 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 ingred ients, 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." 8. In case of oral gift, the onus is always on the donee to prove through cogent and concrete evidence that the donor made gift to him/her voluntarily , without duress and with all senses; that he/she accepted the same, and that the possession was delivered to him/her towards completion of that transaction. If any of the ingredient/component is missing, the claim of the donor would be rejected outrightly . Reliance is placed upon "Muhammad Idrees versus Zeenat Bibi" (2005 SCMR 1690 ) wherein it has been held that the factum of gift had to be proved by the donee through cogent and concrete evidence. 9. As, in this case, respondent No.1 was donee of the gift deed (Exh.D-2) and being beneficiary was under obligation to plead and established firstly , the basic three conditions i.e. "offer, acceptance and delivery of possession" through evidence. Secondly; it was also "Sine qua non" for her to prove that donor made gift deed in presence of two respectable of the vicinity/witnesses. Now, it is settled principle of law that before proving any fact, one should have to narrate its detail in his pleadings under mandate of well recognized principle "secumdum allegata et probate". In this regard, when written statement of respondent No.1 submitted on 03.10.2007 in petitioner 's suit and her plaint were examined the same are silent to the extent of essential details of factum of gift i.e. date, time, place and names of witnesses and did not disclose that when, where and before whom the donor had made declaration of gift which was accepted by donee and in lieu thereof the possession changed hands and only pleaded with regard to "Declaration of Gift". The apex Court of the country in the case of "MUHAMMAD SAR WAR v. MUMT AZ BIBI and others" (2020 SCMR 276) while dealing with the consequence of non- mentioning the date, time and place of gift inter alia ruled as under:- "At the very outset, we have noticed that the petitioner failed to mention the date, time and place of the alleged gift. Further , he omitted to mention the names of witnesses in whose presence his fathe r allegedly gifted the property in his favour and disinherited his sisters (respondents). Likewise, there was no mention of acceptance of the gift in presence of witnesses in the written statement as required by law. It is settled law that the onus to establish the factum and ingredients of the gift is on the beneficiary who claims such gift and which is denied or challenged by the other legal heirs." 10. Furthermore, in order to constitute a valid gift under law, there must be pivotal requirement, which is the mark- able delivery of possession of the disputed house by the donor and taking of the possession by the donee . This requirement is so critical that gift is said to only take effect from the date on which the requisite possession of the disputed house is delivered to the donee ; not from the date on which the declaration was actually made. Delivery of possession hence become concomitant of the gift and so serious that without delivery of possession to the donee , the gift is held void even if it was made through a registered document. In "Principle s of Mohammadan Law" by D.F. Mulla, the principle of delivery of possession is described in Para No.150 and Para No.152 which read as follow: - Para No.150: Delivery of possession, - (1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, "the taking of possession of the subject-matter of the gift by the donee, either actually or constructively ," is necessary to complete a gift. (2) Registration,- Registration of a deed of gift does not cure the want of delivery of possession.
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(3) If it is proved by oral evidence that a gift was completed as required by law [section 149 and 150], it is immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required by the Registration Act, section 17(a). (4) A declaration in a deed of gift that possession has been given binds the heirs of the donor . But such a declaration is not conclusive and a recital in a deed of gift that possession has been given to a minor nephew (without the intervention of a father or guardian-section 156) was on the facts held to be insufficient to support a gift as against the heirs of the donor". 152. Delivery of possession of immovable property .- (1) Where donor is in possession.-A gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. (2) Where property is in the occupation of tenants.-A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee or by delivery of the title deed or by mutation in the Revenue Register or the landlord' s sherista. But if the husband reserves to himself the right to receive rents during his lifetime and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete." The Hon'ble Supreme Court of Pakistan in its judgment "SHAMSHAD ALI SHAH and others versus Syed HASSAN SHAH and others" (PLD 1964 Supreme Court 143) held as under: - "The rule of Mohammadan Law on the subject is perfectly clear . Under the Mohammadan Law the delivery of possession to the donee is a condition to the validity of the gift for, to use the langu age of Hedaya in Vol.III, Second Edition, page 482 "the Prophet has said, "A gift is not valid without seizin," It is further stated at Page 482 of the same book- "Tender and acceptance are necessary , because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seizin is necessary in order to establish a right of property in the gift, because a right of property , according to our doctors, is not establish in the thing given merely by means of the contract without seizin." The same moot point was also discussed in detail in "MUHAMMAD YAQOOB through Lega l Heirs versus FEROZE Khan and others" ( 2003 SCMR 41 ) wherein it was held as under: - "The delivery of possession of land in question was essential ingredient to constitute a valid gift, is lacking in this case and thus gift without, possession being ab initio void cannot be made to get the land in question mutated in favour of petitioner ." A similar proposition was also elaborated and discussed in case law "MUHAMMAD IDREES versus Mst. ZEENA T Bibi" ( 2005 SCMR 1690 ). In this case regarding the delivery of poss ession, respondent No.1 failed to produce any document to the effect that possession has changed hands. It is matter of record that donor remained residing in the disputed house and two of the legal heirs of donor also resided there till the institution of the suit. Other legal heirs of donor also visited the disputed house on and off. As discussed above delivery of possession is very important ingredient of gift and in order to prove a valid gift, it is necessary for respondent No.1 to prove the factum of delivery of possession through some cogent, reasonable and trust worthy evidence. But perusal of record reveals that respondent No.1 has badly failed to prove the same. Mere possession over the disputed house was not enough to meet with the prerequisite of law, that required to be established, possession was transferred in lieu of gift, necessarily with details. Thus, gift without delivery of possession being ab initio void cannot be declared a valid gift. Reliance in this regard can be placed upon "ATTA MUHAMMAD and others versus Mst. MUNIR SULTAN (DECEASED) through L.Rs and others" ( 2021 SCMR 73 ) wherein it was held as under:- "The material particulars of the gift, including when and where the lands were gifted, accepted and possession of the lands delivered was not mentioned in the gift mutation, in the roznamcha waqiati (daily diary) register), in the
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written statement or any other documen t. The burden to prove the gifts was on the petitioner who failed to discharge such burden." 11. In the light of above principles, record available on the file is examined. It appears from the perusal of written statement and plaint that respondent No.1 failed to plead factum of gift with its ingredients and that necessary particulars of date, time, place as well as donor 's offer of gift regarding the disputed house, its acceptance by donee and as a result of delivery of possession. Non-availability of any of the said ingredients would vitiate the validity of gift transaction. Although she pleaded that her predecessor gifted out the disputed house to her in lieu of the services rendered by her to her father and her two mentally retarded real brothe rs i.e. defendants No.2 & 5 vide "Declaration of Gift" dated 01.12.2006 in presence of witnesses namely Muha mmad Saeed and Muhammad Yousaf, that was accepted by her by putting her signature on the "Declaration of Gift" and also he delivered actual and physical possession to her and gave her original title document, but failed to give necessary details with regard to factum of gift i.e. on what date, time and place, in whose presence he offered declaration of gift which was accepted by her and possession was given. Respondent No.1 while appearing in the witness box as DW-1 deposed that the disputed house was purchased by her father namely Muhammad Shafi on 16.12.2003. She further deposed that she has three sisters and four brothers and her two brothers namely Muhammad Idrees and Muhammad Naqi are mentally incapacitated since their childhood. She narrated that her father in lieu of her services gifted out the disputed house in her name through "Declaration of Gift" (Exh.D-2) dated 01.12.2006 in presence of witnesses namely Haji Muha mmad Saeed and Yousaf Butt. During cross examination, she admitted that there is no sign or thumb impressi on of donor on first page of Exh.D-2. She stated that it is not in her knowledge whether she has filed any application for registration of Exh.D-2. She also stated that it is not in her knowledge that the stamp paper Exh.D-2 was obtained for the purpose of an affidavit. Respondent No.1 admitted that the deceased has cordial relations with all his children and at the time of his death all children and other relatives paid the visit to the disputed house. DW-2 Muhammad Yousaf Butt deposed that the alleged gift was made by deceased in favour of respondent No.1 on 01.12.2006 in lieu of her servic es. He further deposed that the 2nd marginal witness namely Haji Muhammad Saeed is ill and due to his business tenancy , he cannot attend the Court and he gave him special power of attorney No.2414 dated 04.04.2021 (Exh.D-3). Whereas, contrarily in the said document he did not elucidate that due to his illness he executed the power of attorney and he was unable to attend the Court. During cross examination, he stated that second witness Haji Muhammad Saeed is his real brother , who offer prayers regularly . He stated it incorrect that Haji Muhammad Saeed has given an affidavit to the petitioners on 02.02.2009 to the effect that the alleged gift deed is false and bogus one and due to this reason, he has not produced the said 2nd marginal witness before the Court. Sher Afzal appeared as DW-3 who is marginal witness of special power of attorney (Exh.D-3). During cross examination he deposed that Exh.D-3 was given by Haji Muhammad Saeed on 28.04.201 1. Second attesting witness of special power of attorney was not got examined by respondent No.1. Hafiz Mehboob-ur-Rehman DW-4, is stamp vendor , who produced copy of register of…
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