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.
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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

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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
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(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
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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: -

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“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

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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

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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.
15.12.2020.

JUDGE

Himayat, CS