Wednesday 30 May 2012

Concept of gift in Shia Law

PLJ 2006 Lahore 1040
[Multan Bench Multan]

Present: Maulvi Anwarl Haq, J.

Mst. MUKHTAR FATIMA--Petitioner

versus

Mst. MUMTAZ FATIMA (deceased) through her L.Rs.
and others--Respondents

C.R. No. 616-D of 1995, heard on 1.3.2006.

(i)  Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Gift of agricultural--Declaratory suit of petitioner--Dismissed by trial Court as well as by appellate Court--Assailed--Particulars of the documents mentioned in plaint are also of Exh. P3 which pertained to agricultural land--Having read the two documents together, and there being no attack whatsoever on any of them and in light of judgment in the case of Abdul Hameed High Court found that it was a complete gift and was intended to be so and was so affirmed in the document Exh. by deceased--No right including a right of reversion to the donor or his legal heirs stood reserved. It fact, he created a new stock descent neither recognized by law nor by Islamic Injunctions--Corpus of the property stood transferred to the lady and the condition, if any, shall be void--The lady proceeded to transfer the land in question and none of the heirs including her husband objected--According to Exh. document upon the death of the done the land was to devolve upon the male issue out of M.H. failing which the land was to vest in said M.H.S.--There was no male issue and the only issue was respondent--Predeceased the respondent Exh. P3 did not at all cater for such situation--Respondent had died and the land had vested in M.H., his only heir of first class (Shia law) is the respondent--High Court did not find any grounds being made out for interference with the concurrent finding recorded by the Courts below within he ambit of Section 115 CPC--Civil revision dismissed. [Pp. 1042, 1043, 1044 & 1045] A, B, C, D & E

PLD 1997 SC 730, relied.

Mian Shamsul Haq Ansari, Advocate for Petitioner.

Mirza Manzoor Ahmad, Advocate for Respondent No. 10.

Nemo for Respondents.

Date of hearing : 1.3.2006.

Judgment

On 12.3.1980 the petitioner filed a suit against the respondents. In the plaint, it was stated that the suit property, mentioned in the plaint, was owned by Syed Hussain Ahmad Shah who was a Shia by faith. Mst. Mumtaz Fatima Respondent No. 1 was the daughter-in-law of the said Syed Hussain Ahmad Shah. It was then stated that vide registered gift-deed dated 6.8.1945 Syed Hussain Ahmad Shah transferred the usufruct of the property (land) mentioned at `A' in the heading of the plaint and she could not alienate the property. Then there is reference to a transfer by exchange registered on 11.5.1978 in favour of Respondent No. 8, it was then stated that during the pendency of the suit, the said exchange deed stand cancelled. With these averments, the prayer made was that the petitioner is the owner of 1/8 share in the suit property. The suit was hotly contested by Respondent No. 10. According to her, the conditions attached to the gift are void and that the deceased-donor himself affirmed the factum of a complete gift in a registered settlement deed dated 14.8.1947. Under this settlement, the deceased-donor gifted away property to his daughters. It was then stated that one of the daughters of Syed Hussain Ahmad Shah, namely, Mst. Ghulam Fatima transferred her entire property to the Respondent No. 1 in exchange for the suit property vide exchange Mutation No. 39 attested on 15.2.1950. This exchange was never challenged by anyone. Regarding the urban property i.e. the house it was stated that the same was gifted away to Respondent No. 10 by Mst. Mumtaz Fatima by means of a registered document dated 8.4.1974. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 5.2.1989. A learned Additional District Judge, Multan, dismissed the first appeal filed by the petitioner on 10.4.1995.

2.  Mian Shamsul Haq Ansari, Advocate/learned counsel for the petitioner contends that upon a bare reading of the two documents dated 6.8.1945 i.e. Exs. P. 2 and P. 3 only the usufruct was transferred. He particularly pints out that document Ex. P. 2 pertaining to the house has not at all been read and considered by learned Additional District Judge as it was specifically stated in this document that it is being given only for residence of the daughter-in-law of the donor. According to him, Hussain Ahmad Shah remained vested with the corpus of the property till his death and that the petitioner being his daughter is entitled to inherit her share therein. Mirza Manzoor Ahmad, Advocate/learned counsel for the Respondent No. 10, on the other hand, contends that vide settlement deed executed by the donor in the year 1947 i.e. Ex. D. 27 the donor affirmed that he has made a complete gift of 2/7 share in the house to the Respondent
No. 1 and the same vests in her. Regarding the agricultural land, he states that the same stood exchanged with a daughter of the deceased-donor as far back as in the year 1950 and the said exchange was never questioned. He vehemently contends with reference to the case of Abdul Hameed and 23 others v. Muhammad Mohyuddin Siddique Raja and 3 others (P.L.D. 1997 SC 730) that the said conditions mentioned in the gift-deed in any case were void and the gift has to take effect.

3.  I have gone through the copies of records with the assistance of the learned counsel for the parties. Now first I will take up the matter of the document dated 6.8.1945 pertaining to the 2/7 share in the suit house. This is Ex. P. 2. Now I have referred to the material contends of the plaint above. No doubt in the head of the plaint under `A' the agricultural land has been described with is 296 kanals 18 marlas and against `B' 2/7 share of the suit house is described. However, in the entire plaint which has been examined by me, with the assistance of the learned counsel for the parties, there is not a single word about the document Ex. P. 2. The entire allegations pertained to the gift of the agricultural land. Particulars of the document mentioned in Para 2 of the plaint are also of Ex. P. 3 which pertains to agricultural land. Now when one goes through the document Ex. D. 27 regarding which there is no dispute that it was executed by Syed Hussain Ahmad Shah on 14.8.1947, the said omission becomes quite understandable.

4.  Now upon a plain reading of Ex. P. 2, I have no manner of doubt in my mind that the deceased-donor has expressed that his son is to be married to the Respondent No. 1 and he wishes that she should have a property residence and that he is gifting away the property only for residence to the said lady. Now Ex. D. 27 is a registered document and is tilted as a Tamleeqnama. The parties to this document are the said Syed Hussain Ahmad Shah and the said Mst. Mumtaz Fatima Respondent No. 1. Now it appears that the deceased wanted to settle the remaining house upon his daughters by effecting a proper partition. I deem it proper to reproduce here the contents of the said document. After stating that he was the owner of the said house, the area whereof is 614.74 Sq. Yards, he declares as follows:--





After making the said declaration, he describes his three daughters including Mst. Mukhtar Fatima petitioner and two sons Syed Muhammad Hussain Shah and Syed Muhammad Kabir Shah. He then states that his daughters have been serving him and he is happy with them and out of love and affection, he wants to gift away some portions of the said property to them. He then declares that he has separated the said 2/7 share of the Respondent No. 1 and delivered it to her and the same is shown in blue colour and measures 174.17 Sq. Yards and the Respondent No. 1 has accepted the said partition and that she will have nothing to do with the remaining portion of the property. Therefore, he proceeded to point out the respective portions gifted by him to his daughters. He again reiterates that the portion left out after the partitions gifted to the three daughters and the daughter-in-law will remain vested in him.

5.  It was this separated portion which was gifted by Respondent No. 1 in favour of Respondent No. 10 vide registered gift-deed dated 8.4.1974 (Ex. D. 38).

6.  Having read the two documents together, and there being no attack whatsoever on any of them, and in the light of the said judgment in the case of Abdul Hameed and 23 others decided by a Bench comprising of five Hon'ble Judges of the Hon'ble Supreme Court of Pakistan, I do find that it was a complete gift and was intended to be so and was so affirmed in the document Ex. D. 27 by the deceased.

7.  No coming to the document Ex. P. 3 which is the only document attacked in the plaint. Now this document narrates that the Nikah of the son of the donor is to be preformed on the night between 6/7-8-1945 and that he is going to gift the said land in favour of Mst. Fatima Bibi i.e. Respondent No. 1 the wife to be of his son. Thereafter, the document narrates as follows:





He has satisfied the said lady through her father that he is the complete owner of the property and it is free from any all encumbrances and upon the said representation she has accepted the gift in lieu of right of maintenance. He has also delivered possession of the land to the said lady through her father. She will have no right to alienate the property in any manner. However, she can lease out the said property. Thereafter, the document narrates that the water for irrigation of his remaining land shall pass through the land gifted and the donee shall not cause any obstruction. After the death of the donee the property shall vest in her male issues. In case there is no male issue the land shall vest in his son Syed Muhammad Hussain Shah. Thereafter, the document narrates as follows:--



8.  Now the further history of this case is that this land was exchanged by the Respondent No. 1 with Mst. Ghulam Fatima Bibi, a daughter of the deceased (Respondent No. 2 herein) vide Mutation No. 39 Ex. P. 5. This mutation was attested on 15.2.1950 now vide exhcange deed dated 11.5.1978 (Ex.P1) it was this land which was obtained by Respondent No. 1 in exchange which was further exchanged with Mst. Nargis alias Rubab Respondent No. 8. The Respondent No. 10 filed a pre-emption suit qua this transaction which was decreed on 6.5.1984. On the basis of this decree, Mutation No. 308 Ex. D. 39 was attested in favour of Respondent No. 10 of 15.2.1987.

9.  Now reverting back to the said document Ex. P. 3, it clearly narrates that the Respondent No. 1 is to be married to the son of the donor. He has assured her father of his valid title, that upon the said representation the declaration of gift made by him has been accepted by the Respondent No. 1 lady and that he has delivered possession and there is not manner of doubt in my mind that it was a complete gift. It will further be seen that no right including a right of reversion to the donor or his legal heirs stood reserved. In fact, he created  a new stock descent neither recognized by law nor by the Islamic Injunctions. Thus, by all means the corpus of the property stood transferred to the said lady and the conditions, if any, shall be void. Even otherwise it is a matter of record that it was as far back as in the year 1950 that the said lady proceeded to transfer the said land and none of the heirs including her husband objected.

10.  I may further note here that according to Ex. P. 3 upon the death of the donee the land was to devolve upon the male issue out of Muhammad Hussain Shah failing which the land was to vest in the said Muhammad Hussain Shah. It is being stated that there was no male issue and the only issue was Respondent No. 10. Now the said Muhammad Hussain Shah, admittedly, pre-deceased the Respondent No. 1. Now Ex. P. 3 does not at all cater for this situation. I have already noted above that a right of reversion unto the said donor had not been reserved. However, even if the Respondent No. 1 had died and the land had vested in Muhammad Hussain Shah, his only heir of first class (Shia Law) is the Respondent No. 10.

11.  Having thus, examined the records, I do not find any grounds being made out for interference with the concurrent findings recorded by the learned Courts below within the ambit of Section 115 C.P.C. the civil revision accordingly is dismissed but without any orders as to costs.

 (M. Ajmal Rana)  Civil Revision dismissed.


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