ھبہ اور تملیک میں کیا فرق ھے؟
PLJ 2017 Lahore 422
Islamic Law--
----Gift--Tamleek--Essentials--Necessary ingredients of gift/tamleek under the D.F. Mulla’s Islamic Law are, “offer, acceptance and delivery of possession from the donor to donee”. [P. 426] A
Gift--
----Scope--Had the donor no intention to make gift in favour of petitioner, he should not have executed gift/tamleek nama--After making of gift he lived few years in the world but never impliedly or expressly denied gift-deed. [P. 427] B
Donor and Donee--
----Relationship of--Husband and wife--Issueless--Validity--Definitely, it was ultimately good relations between spouses basing for making of gift in favour of his wife, who with devotion, dedication and in supreme interest of maintaining health and nourishment of 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 lady who served her husband. [P. 427] C
Gift--
----Possession of property was not delivered as result of gift--It is well cardinal principle of law that when gift is between 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 petitioner is still in possession at least one portion of disputed property. [P. 428] D
Registration Act, 1908 --
----Ss. 17 & 49--Un-registered documents--Donor and donee--Concept of tamleek--Essentials of--Donor and donee were Muslims by faith and under the Muslim concept of tamleek/gift, definition of which, has been mentioned irrespective of written gift-deed, same is valid and with yardstick as of an oral gift which fulfilled all three legal requirement, thus, created rights in favour of petitioner.
[P. 428] E
Malik Muhammad Javed Akhtar, Advocate for Petitioner.
Mr. Muhammad Ibrahim Khan, Advocate for Respondents.
Date of hearing: 19.1.2017
PLJ 2017 Lahore 422
[Bahawalpur Bench, Bahawalpur]
Present: Tariq Iftikhar Ahmad, J.
Versus
KHALEEQ-UR-REHMAN, etc.--Respondents
C.R. No. 656-D of 2015, decided on 8.2.2017.
Judgment
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 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 any 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.
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 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 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.
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 (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 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 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.
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, 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.
(R.A.) Revision allowed
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