shaukat Ullah Vs Gul Umar

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Civil Revision No.494-P of 2012

Shaukat-Ullah & others vs. Gul Umar & others

JUDGMENT

Date of hearing: - 15.12.2020.

Mr. Abdul Sattar Khan, Advocate for the petitioners. Mr. Muhammad Asif Khan, Advocate for the respondents.

MUHAMMAD NAEEM ANWAR, J.- Petitioners have challenged the validity & correctness of the judgment & decree of the learned Additional District Judge-I, Nowshera dated 21.03.2012, by which, the respondents’ appeal was accepted and suit filed by them was decreed.

02.Respondents through their suit have sought a declaration that they being the legal heirs of Mst. Noor Sanam, are owners in possession of the suit house, as described in head note “A” of plaint, and defendants / petitioners have got no right whatsoever with it, thus, their claim regarding its proprietorship is unjust, against the facts, collusive, based on malafide and against the law, which is ineffective upon their rights. They have also prayed for perpetual injunction restraining them from their dispossession and alienating it in their names. Their claim rests on a deed dated 12.09.1996, by which suit house, which was the ownership of Sana-Ullah Khan, was allegedly gifted to Mst. Noor Sanam widow of Sana-Ullah Khan, who died issueless and the plaintiffs / respondents being collateral claiming themselves to be her sole

legal heirs, have brought the lis against the petitioners, who are brother, brother’s son and second wife (widow) of Sana-Ullah Khan. Sana-Ullah Khan & Noor Sanam, alleged donor and donee, departed this earth prior to institution. Petitioners by putting their appearance have submitted their written statement and refuted the respondents’ claim on different legal & factual objections, especially that so called alleged gift deed is concocted, fabricated and forged, besides claiming after the death of Sana-Ullah, his second wife and son from her namely Naveed-Ullah are the sole legal heirs. After framing of issues, both the parties produced their desired evidence, at the end, learned trial court dismissed the suit on 05.07.2011. The judgment & decree of the learned trial court was assailed through appeal, which was allowed by the appellate court on 21.03.2012, hence this petition.

03.Learned counsel for the petitioners mainly focused inter- alia, on the following points: -

(i)Suit for declaration on the basis of alleged tamleek nama dated 12.09.1996, was not competent.

(ii)Un-registered deed does not create any right, being hit by Sections 17 & 49 of the Registration Act, 1850.

(iii)Plaintiffs / defendants have not proved the deed as required under Article 79 of the Qanun-e-Shahadat Order, 1984.

(iv)Under Article 84 of the Qanun-e-Shahadat Order, 1984, the court was not competent to compare the signature on the deed.

(v)Plaintiffs could not prove offer, acceptance and delivery of possession of the disputed house.

(vi)Judgment suffers from infirmities.

(vii)Gift cannot be made with the intention to dis-inherit the other legal heirs; and

(viii)When one marginal witness of the alleged deed was dead, scribe of the same could be the best available evidence, by not producing him, respondents / plaintiffs have with the evidence, so adverse inference would be drawn against them.

In order to substantiate his contentions, he placed reliance on the case law reported as PLD 1964 SC 106, PLD 1973 Peshawar 63, NLR 1981 Civil 482, 1989 CLC 698, 1992 SCMR 1832, 1994 MLD

283, 1995 CLC 1705, 2001 SCMR 338, 2002 SCMR 1938, PLD

2003 SC 410, PLD 2003 SC 688, 2003 YLR 250, 2004 SCMR

1043, 2004 SCMR 1723, 2005 SCMR 135 and 2006 SCMR 1144.

04.Conversely, learned counsel for respondents vehemently opposed the submission of the petitioners and contended that the respondents / plaintiffs are the legal heirs of vendee to whom the suit house was gifted by her husband and at that time when both were residing in it, therefore, no question for transfer of possession could arise. Next, he argued that when the gift was proved in accordance with the provisions of Muhammadan Law, then there was no need to prove the document as per Article 79 of the Qanun-e-Shahadat Order, 1984. He also added that plaintiffs have produced the stamp vendor, one of marginal witnesses of the deed whereas second marginal witness was not produced being dead, besides others who have corroborated the plaintiffs’ stance. In support of his submissions, he made reliance on Sections 150, 152, 153, 156, 159 & 167(3) of Muhammadan Law and added that cause of action accrued to the plaintiffs when the plaintiff No.1 and his son was falsely implicated in a criminal case

registered vide FIR No.280 dated 04.04.2009 under Sections 379/411 PPC at Police Station, Pabbi, however, later-on, they were acquitted of the charges by the learned Judicial Magistrate on 28.06.2010, against which their criminal appeal was dismissed by this court on 15.04.2011, thereafter, the plaintiffs filed the suit against petitioners.

05.Arguments heard and record perused.

06.There is no cavil with the proposition of law that a Muslim can gift away his property to anyone and no restriction could be placed on his right as held by the Supreme Court in case titled “Ghulam Muhammad vs. Mian Muhammad and another” (2007 SCMR 231) that:

“From the above law laid down by this Court, suit filed by the appellant/plaintiff challenging the gift made by his father, donor, in favour of respondent No.2 his son Noor Muhammad, was incompetent and not maintainable, because being a Muslim he has unfettered powers to gift away his property to anyone of his heirs to exclusion of others and such gift cannot be invalid or void, consequently the plea of the learned counsel for the appellant that the said gift was ineffective, illegal has no force and merit”.

07.When the gift is alleged by a person in his favour to the exclusion of other legal heir, then in such an eventuality, the beneficiary is required to prove the same with all its particulars, ingredients i.e., offer, acceptance and transfer of possession under the gift as observed by the apex Court in case titled “Fareed and others vs. Muhammad Tufail and another” (2018 SCMR 139), wherein it has been held: -

“2. The principal issue, whether the respondent-plaintiff Muhammad Tufail could claim as a legal heir of Gomaan, is settled by a concurrent finding of fact given by three learned Courts below. In the light thereof the rule laid down by this Court in Kulsoom Bibi v. Muhammad Arif (2005 SCMR 135) and Ghulam Haider v. Ghulam Rasool (2003 SCMR 1829) that a donee claiming under a gift that excludes an heir, is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed. In the present case there is no evidence of declaration of gift or of its acceptance on record. The mere transfer of possession to a donee is not sufficient to constitute a valid gift under the law. Furthermore, in the judgment of this Court reported as Barkat Ali v. Muhammad Ismail (2002 SCMR 1938) a gift deed as in the present case must justify the disinheritance of an heir from the gift. This is also lacking in the present gift deed which has not been proven satisfactorily as Ijaz Ahmed Khan, Advocate who identified Gomaan before the sub-Registrar was not produced before the learned Trial Court nor was the sub-Registrar or the scribe of the documents”.

08.Again, when the gift is challenged or alleged would have to be proved in accordance with the principle as enunciated by the apex Court in case titled “Naveed Akram and others vs.

Muhammad Anwar” (2019 SCMR 1095), wherein it has been held:-

“Further, transfer of the property by way of gift in favour of his sons by Muhammad Akram was obviously a device to deprive the Respondent of his right that has accrued to him by reason of execution of the agreement to sell and payment of earnest money. Even otherwise, the gift could not be proved. Neither the date of attestation nor the name or place when the oral gift was made could be established. Further, no witness in whose presence the oral gift was made was examined. The mere fact that gift mutation was entered is insufficient to establish a valid gift which could have the effect of defeating the rights of the Respondent”

09.Admittedly, the plaintiffs’ suit based on the gift deed, allegedly made on 12.09.1996, so in order to prove the same, the

petitioners produced stamp vendor PW-1, who in his cross examination deposed that stamp papers worth of Rs.4+4 were sold by him on 22.09.1996, however, by whom these were purchased is neither mentioned nor signed on the overleaf of it.

The reasons for non-production of register were shown as the same was submitted by him to the Treasury office. Ex.PW-4/1 is the deed, which is an affidavit by which allegedly vendor has made of gift of the suit house in favour of Mst. Noor Sanam, however, it appears from it that the same was written on 12.09.1996 on the stamp paper which was purchased on 22.09.1996. In such circumstances, scribe, Abdul Saleem, Advocate could better explain it, however, he was not produced by the plaintiffs and the reasons for his non-production was given as mental disorder / psychopathic but no proof in this respect was advanced either documentary or otherwise to prove this aspect.

Now whether the deed was written on 12.09.1996 or 22.09.1996 remained shrouded in mystery.

10.No doubt, in some exceptional circumstances of the gift transfer of possession is not necessary within the meaning of Section 152(3) & 153 of Muhammadan Law, apart from above, learned counsel also referred Section 167 (2)(a) and contended that when the gift was made by the husband to his wife or by wife to her husband, cannot be revoked. All the above instances could only be applied if either gift either oral or through deed would have been proved in accordance with Qanun-e-Shahadat Order, 1984

but neither the plaintiffs could prove the oral gift nor alleged gift deed. It is also astonishing that learned counsel for respondents contended that they are not claiming the gift in their favour rather their claim of suit house is in the capacity of legal heirs of Mst.

Noor Sanam. Be that as it may, when the wrangle revolves around the gift allegedly made by Sana-Ullah in favour of Mst.

Noor Sanam, which goes to root of the controversy remained unproved. Unfortunately, the plaintiffs could not prove the making of gift through independent, direct, sufficient or convincing evidence, as such, the findings of learned appellate court are the result of misreading and non-reading of evidence, perverse and against the law, which does require interference by invoking the provisions of Section 115 of Civil Procedure Code, 1908.

11.Thus, for the reasons stated above, the instant petition stands allowed, consequently, the judgment and decree of the learned appellate court is set aside and that of trial court is restored, with no order as to cost.

ANNOUNCED.

JUDGE

Himayat, CS