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Stereo. H C J D A. 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, BAHAWALPUR BEHC, BAHAWALPUR.

JUDICIAL DEPARTMENT
C.R. No.656-D of 2015
Mst. RAEESA BEGUM Versus KHALEEQ-UR-REHMAN, ETC.

Date of Hearing 19.01.2017.

Petitioner (Mst. Raeesa Begum) by Malik Muhammad Javed Akhtar, Advocate.
Respondents Mr. Muhammad Ibrahim Khan, Advocate.
State by

JUDGMENT

TARIQ IFTIKHAR AHMAD, J.:- Mst. Raeesa Begum

(hereinafter called the petitioner) filed civil suit for declaration.

Another suit titled “Mst. NAFEESA BEGUM ETC. v RASHEEDA

BEGUM ETC. for partition of Ihata No.81-C, was filed. Both the

suits involved same property and decided through

consolidated judgment by both the courts below. Consolidated

facts of these cases are as under:

2. As per facts of the first suit, the petitioner claimed that

her husband Khalil-ur-Rehman (late) was owner of 1/4th share

of Ihata bearing No.81/C, measuring 9 marlas 8 sarsai

(disputed property), as no child was born out of the wedlock of

petitioner and Khalil-ur-Rehman, her husband out of love and

affection for the petitioner executed tamleek/gift deed in

favour of his wife (present petitioner) on 30.05.1997 in

presence of witnesses who signed the same in

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acknowledgment of its correctness. During life time, Khalil-ur-

Rehman could not get the said document registered and died

one year before filing of the suit (19.07.2006). It is petitioner’s

contention that on the basis of document/tamleek/gift deed

dated 30.05.1997, she is in possession as owner of the

disputed property without an y objection/interference from

anyone. The petitioner also stated that on the north side of the

disputed property in the same Ihata a portion was owned by

Jamil-ur-Rehman (late) predecessor in interest of respondents

namely Fozia Jameel, Saher Gul Jameel and Khaleeq-ur-

Rehman. Khalil-ur-Rehman, the deceased with mutual consent

of the respondents effected partition inter-se of the portions

of the Ihata and started living in their respective portions.

Thereafter, the respondents started extending threats to the

petitioner to vacate the disputed property gifted to her by her

deceased husband and handed over its possession to them

while refusing to admit tamleek/gift and also got sanctioned

mutation of inheritance No.4551 dated 16.09.2008 after the

death of Khalil-ur-Rehman as his legal-heir, the petitioner

sought declaration from the learned trial court that she on the

basis of tamleek/gift be declared as owner in possession of the

disputed property in respect of which the respondents have no

legal rights and that mutation No.4551 may also be declared

illegal, against the law, facts and ineffective qua her rights.
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3. It is appropriate to mention here that according to the

contents of the instant revision petition, the respondents also

filed a suit for the partition of entire Ihata No.81 measuring 9

marlas and 8 sarsai against the petitioner and other owner of

½ share namely Haq Nawaz, etc.

4. Learned trial court consolidated both the suits, framed

issues on 12.10.2011 and after recording evidence through

detailed judgment dated 19.12.2011 decreed petitioner’s suit

for declaration and also passed preliminary decree in the

partition suit. Respondents filed an appeal against the

consolidated judgment of the learned trial court, the learned

appellate court below vide judgment dated 25.06.2015

allowed the appeal and dismissed the suit for declaration and

directed the learned trial court to summon record of the suit

for partition, further that same should be deemed to be

pending at the stage of framing of issues and to proceed

further in accordance with law for the disposal of said suit. The

reason prevailed with the learned appellate court below was

that since the petitioner failed to prove tamleek/gift dated

30.05.1997, therefore, share which she could avail was only as

legal-heir i.e. widow of Khalil-ur-Rehman.

5. Against the judgment rendered by learned lower

appellate court, petitioner has come up in this civil revision on

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different grounds legal and factual and sought that impugned

judgment and decree of the appellate court dated 25.06.2015

may be set aside and that of learned trial court dated

19.12.2011 be restored.

6. Learned counsel for the petitioner contended that the

petitioner being issueless lady won over love and affection of

her husband Khalil-ur-Rehman, owner of 1/4th share of the

disputed Ihata, who validly executed a tamleek/gift on

30.05.1997, which was fuly proved and established by the

petitioner on the strength of cogent evidence, which was

correctly appreciated by the learned trial court, however, the

learned appellate court below erred in law and facts while

setting aside the judgment of learned trial court only on the

ground that gift deed dated 30.05.1997 was not registered.

Learned counsel further contended that according to settle

principle of Islamic Law, even oral gift is effective, if it is

fulfilling three ingredients i.e. offer, acceptance and delivery of

possession. In this respect, learned counsel sought support

from the case law reported as “MUHAMMAD AMIN v Mst.

SHAISTA and 30 others” (2015 MLD 296) and “MUHAMMAD

EJAZ and 2 others v Mst. KHALIDA AWAN and another” (2010

SCMR 342). He further contended that learned appellate court

failed to appreciate the evidence and adopted pick and choose

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approach, which is not legally correct and no finding can be

recorded in this way. In support of this argument, he has

placed reliance on the case law reported as “BUDHOO v

LIAQAT HUSSAIN and 18 others” 1986 CLC 2958). Learned

counsel concluded his submissions and sought that this revision

petition may be allowed and impugned judgment of appellate court

may be set aside and restored that of trial court.

7. On the other hand, learned counsel for the respondents

defended the judgment rendered by learned appellate court

by contending that petitioner while appearing as a witness

herself admitted that her deceased husband Khalil-ur-Rehman

was not willing to get alleged tamleek/gift registered in favour

of the petitioner, therefore, the contention of the petitioner

relating to offer, acceptance and even delivery of possession

went in the air. Further stated that undoubtedly the petitioner

being widow is living in the disputed property being wife of its

original owner to the extent 1/4th share but that position

cannot be considered sufficient to prove alleged gift. The

mandatory registration under the law was not done by Khalil-

ur-Rehman, donor, as such the petitioner was not able to

prove her claim, therefore, the impugned judgment of the

learned appellate court is in accordance with law and evidence

and this revision may be dismissed.

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8. I have heard learned counsel for the parties and perused

the record with their able assistance.

9. No doubt, the entire controversy revolves around the

validity of gift/tamleek (Ex.P1). For just decision it is

appropriate to visualize gift/hiba and difference between gift

and tamleek in juxtaposing position.

“Tamleek, Gift or Hiba”. It means a transfer of property made

immediately and without any exchange by one person to
another and accepted by or on behalf of the latter.
“The only line of distinction which can be drawn between
“Gift” and “Tamleek” is that in the former, the donor can
transfer property to anybody else, but where the
property is to be transferred under the latter, the
condition precedent is that same should be amongst the
family members/legal heirs”.

Necessary ingredients of Gift/Tamleek under the D.F. Mulla’s

Islamic Law are, “offer, acceptance and delivery of possession from

the donor to done”

10. From scanning the testimonies of both the parties it is also

crystal clear that the petitioner who was plaintiff examined

Muhammad Iqbal (PW-1), stamp vendor, as well as scribe of gift/

tamleek (Ex.P1). Out of the marginal witnesses Muhammad Arshad

son of Abdul Karim who appeared as pW-2 and other Muhammad

Rafiq son of Muhammad Hussain who died and his son Muhammad

Shafiq appeared as PW-5. Both the said witnesses categorically

deposed and made statement about the correctness of the gift deed

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(Ex.P1) and it is also worth mentioning that they also identified the

signatures of marginal witnesses. Abdul Sattar Khan, PW-3, Notary

public, and Abdul Hameed Iftikhar, PW-6, were also produced for

evidence and they with unanimity stated and proved that Ex.p1 was

duly executed reflecting true intention of the donor and the donee

regarding gift.

On the other hand, the respondents examined Faiz-ul-Hassan

as (DW-1), Jamil Ahmad (DW-2) and Khaliq-ur-Rehman as (DW-3).

They simply deposed that no gift was made by Khalil-ur-Rehman,

donor, in favour of the petitioner Mst. Raeesa Begum. Further

deposed that deceased donor was not facing any financial problem

to get the gift deed registered and further that relationship between

the deceased and the petitioner as spouses was strained.

11. The learned trial court rightly decreed the suit of the petitioner

after scanning the material available on record and justified that

respondents had failed to prove sufficient evidence regarding

gift/tamleek (Ex.P1) dated 30.05.1997, and could not prove that it

was result of fraud and forgery. The learned appellate Court without

adverting to the facts and circumstances of the case surreptitiously

reversed the findings of the learned trial court which was arrived at

after scanning and recording the evidence of the parties and learned

appellate court did not give any sanctity to the proceedings of the

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learned trial court. Mere relying upon the few sentences clean chit

from reply submitted by petitioner as PW-4 which is as under:

“At the time of writing of the document, her husband stated

that he would not transfer the disputed property in her name
and same would be sold”.

It is the duty of the court to scan and visualize each and every

limb of the case and mere reliance upon some sentences cannot

deliver a solid judgment, so the learned appellate court was not

justified in setting aside the well-reasoned consolidated judgment

passed by the learned trial court. Had the donor no intention to

make gift in favour of the petitioner, he should not have executed

Gift/Tamleek Nama. Even after making of gift he lived few years in

the world but never impliedly or expressly denied the gift-deed.

Reliance can be placed on “ALI BAHADUR v MUHAMMAD ISHAQ”

2013 YLR 2555).

12. Another important limb of the case is that as regards

relationship between the donor and donee which was admitted as

husband and wife though they were issueless, but there was not an

iota of any evidence that their relations remained strained or any

aversion was created between the spouses. Definitely, it was

ultimately good relations between the spouses basing for making of

the gift in favour of his wife, who with devotion, dedication and in

the supreme interest of maintaining the health and nourishment of

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her husband exhausted every inch of her effort and wasted her

energy just like a spend thrift child and consoled her husband and in

token whereof got a gift which was emblem of generosity and loyalty

of the lady who served her husband. It is also on the record that the

petitioner was also nominated to receive pension of the donor (her

deceased husband) and she is still receiving the same. All these facts

and circumstances persuaded the learned trial court tending

judgment and decree in favour of petitioner whereas the learned

appellate court did not take any heed towards these important issues

and whimsically set aside the well-reasoned judgment of the learned

trial court.

13. It is also on record that both the courts dealing with two cases;

first, for declaration which is discussed in detail and second for

partition of un-divided Ihata No.81, half portion of which was owned

by the donor and his deceased brother (Jameel-ur-Rehman),

predecessor-in-interest of the respondents and the other half portion

was owned by Haq Nawaz and Muhammad Naseer, successors-in-

interest of Hashmat Ali and the trial court granted preliminary decree

through consolidated judgment dated 19.12.2011. However, the

appellate court set aside the same and directed the learned trial

court while remanding the case to this extent to re-assess the shares

of the parties. The findings of the learned appellate court in view of

above are also liable to be set aside and declared illegal.

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14. Learned counsel for the respondents vehemently stressed that

actually the possession of the said property was not delivered to the

petitioner as a result of gift. It is well cardinal principle of law that

when the gift is between the spouses or blood relations, they are

living together then there is no requirement of formal delivery of

possession in consequence of gift, It is also admitted that the

petitioner is still in possession at least one portion of the disputed

property. It is also on record as appeared from the appraisal of the

evidence that petitioner’s possession was disturbed by the

respondents and she approached the police for an action which was

not taken and this fact had also been admitted by the respondents in

evidence.

So far as sanctioning of impugned mutation No.4551 is

concerned, same was also correctly decided by the trial court and

findings were wrongly reversed by the appellate court, are also set

aside.

15. As regards the contention of learned counsel for the petitioner

that the impugned document was not registered so it was hit by Sections

17 and 49 of The Registration Act, it has no merit because it is an

admitted fact that both donor and donee were Muslims by faith and

under the Muslim concept of Tamleek/Gift, definition of which, has

been mentioned above irrespective of written gift-deed, the same is

valid and with yardstick as of an oral gift which as discussed above,

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fulfilled all the three legal requirement, thus, created rights in favour

of the petitioner. This Court may seek guideline from the dictum laid

down by the Apex Court in “MUHAMMAD EJAZ and 2 others v Mst.

KHALIDA AWAN and another” (2010 SCMR 342) and it was observed

at page 347 of the Report as under:

“Under the Mahommedan Law, a gift, in order to be valid and

binding upon the parties, must fulfill the following three conditions:

(a) a declaration of gift by the donor;

(b) acceptance of gift by the donee; and
(c) delivry of possession of corpus.

On the fulfillment 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 registrable under the
Registration Act, 1908”. (underlining is mine)

16. In view of the above discussed facts and the law, the instant civil

revision is allowed with the result that judgment of learned lower

appellate court dated 25.06.2015, is set aside and the suit filed by the

petitioner for declaration is decreed and she is declared owner of the

property as donee and the mutation of inheritance of the deceased is set

aside. Resultantly, the consolidated suit for partition titled “Mst. NAFEESA

BEGUM ETC. v Mst. RAEESA BEGUM ETC.” in which preliminary decree

was passed is also restored and the learned trial court is directed to

proceed further in accordance with law.

(Tariq Iftikhar Ahmad)

Judge.
Announced in open Court on 08.02.2017.

JUDGE.

APPROVED FOR REPORTING.

A.D. Mian*

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