PLJ 2006 AJ&K 59
Present: Sardar Muhammad Nawaz Khan, J.
MUHAMMAD YOUSAF KHAN and others--Petitioners
versus
ABDUL GHAFOOR and others--Respondents
Civil Appeals Nos. 21 & 28 of 2004, decided on 16.9.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Second appeal--Suit decreed--First appellate Court observed that parties to suit are entitled to 1/2 (one half) of suit land--Transfer of land by husband to his wife in lieu of dower sufficiently proved--Mutation in favour of rival party--Effect of--Execution of document is satisfactorily proved--Document shows transfer of property (suit land) in favour of Mst. "N" in lieu of her dower--Possession of suit land is also found to have been transferred to Mst. "N"--She remained in possession of suit land--All requirements of gift are satisfied--Appellants are owners of suit land--Mutation are inoperative and ineffective to their rights of appellant in suit land--Judgment and decree of Ist Appellate Court stands reversed to extent of 1/2 of suit land passed on strength of non-consummation of marriage--Suit decreed in toto by dismissing the cross suit--Order accordingly. [P. 62] C
(ii) Transfer of Property Act, 1882 (V of 1882)--
----S. 129--Muhammadan Law--Gift--Transfer of Property in lieu of dower--Nature of--Under Muhammadan law transfer of property in lieu of dower made at time of "Nikah" takes effect as gift--Gift by Muslim becomes complete, if declaration is made, acceptance of gift is expressly or impliedly made by or on behalf of donee and delivery of possession of subject matter by donor to donee takes place--Held: Once three conditions are fulfilled, neither any writing would be required to complete gift nor any such document acknowledging transfer of property by gift would require registration. [P. 62] A & B
Syed Habib Hussain Shah, Advocate for Appellants/Respondents.
Mr. Said Hassan Kiani, Advocate for Respondents/Appellants.
Date of hearing : 16.9.2005.
Order
The above captioned appeals arise out of a single judgment therefore, the following order is proposed.
2. Suits one by Muhammad Yousaf & others for cancellation of Mutation Nos. 105, 42 and other by Abdul Ghafoor Khan & others for possession of the suit land were brought in the Court of Sub-Judge Bagh. Both the suits were consolidated by the trial court and, after due process of law, the suit by Abdul Ghafoor & others was decreed in their favour by dismissing the cross suit by Muhammad Yousaf & others. Muhammad Yousaf & others feeling aggrieved by the judgment and decree of the trial Court filed an appeal before District Judge. The learned District Judge partially allowed their appeal with the observation that the appellants before the learned District Judge were entitled to 1/2 (one half) of the suit land in view of evidence. Both the parties felt aggrieved by the judgment and decree of the Court below, hence these appeals.
Firstly, dealing with the appeal by Abdul Ghafoor Khan & others, it may be observed that this appeal is incompetent on the ground that no certified copies of the judgment & decree of the trial Court are found to have been appended with the memo of appeal. Therefore, without going into merits of this appeal it is hereby dismissed as incompetent. While dealing with the cross-appeal by Muhammad Yousaf & others, it may be observed that the case of Muhammad Yousaf & others is that they are successors-in-interest of Mst. Noor Begum alias Noor Nishan. Mst. Noor Nishan married Imam Din deceased on 9.5.1953 for a consideration of dower Rs. 2,000/-. Imam Din deceased as the time of wedlock transferred his entire landed property alongwith his house to Mst. Noor Begum therefore, after the death of Mst. Noor Begum they are owners of the suit land to the extent of their shares devolved upon them out of Survey Nos. 198, 19, 190 and 192 situated in village Nandrai Tehsil Bagh. The respondents Abdul Ghafoor & others, according to the appellants, managed to get sanctioned Mutation Nos. 105 & 42 in their favour by concealing the fact of transfer of property by Imam Din deceased to Mst. Noor Begum deceased. On the other hand, the respondents' claim that Imam Din deceased never transferred the suit land in favour of Mst. Noor Nishan (Noor Begum) nor she was ever wedded to Imam Din therefore, after the death of Imam Din the suit land had rightly devolved upon them.
The learned counsel for the appellants argued that the fact of marriage between Imam Din and Noor Begum was satisfactorily established through the evidence on record and the learned District Judge rightly reversed the findings of the trial Court to that extent. However, according to the learned counsel, the learned District Judge fell in error while disallowing the suit by the appellants to the extent of 1/2 of the suit land. The learned Judge wrongly decided the question of consummation of marriage as it was nobody's case and while doing so the learned Judge traveled beyond the pleadings of the parties, the learned Counsel maintained. He further argued that when a Muslim transferred a property in favour of a Muslim in lieu of dower, the transfer takes effect as gift. The documentary as well as verbal evidence clearly indicated that Imam Din deceased transferred his entire landed property in village Nandrai in favour of Mst. Noor Begum at the time of marriage therefore, when it is established that the suit land was transferred in lieu of dower it was a gift which did not require writing or registration. The appellants therefore, were owners of the suit land and were entitled to have decreed the entire suit land in their favour.
Conversely, the learned Counsel representing the respondents supported the judgment and decree of the trial Court and contended that the fact of marriage and transfer of property of suit land in favour of Mst. Noor Begum were not proved in the light of evidence. The evidence brought on record was contradictory in nature and suggested to disallow the claim of the appellants however, the learned District Judge while crediting evidence in favour of appellants traveled in the wrong direction and his finding therefore, was not sustainable.
After hearing the learned counsel for the parties, the record made available to this Court was examined with care and caution. The appellants have relied upon a Panchait-nama Ex. PA allegedly executed by Imam Din on 9.5.1953. The attesting witnesses of this document are Muhammad Hussain Khan S/o Shah Wali Khan R/o Nandrai, Mir Zaman Khan s/o Fazal Khan, Muhammad Yousaf Khan S/o Qasim Khan, Bahadir Shah S/o Zaman Shah, Ramat Shah S/o Mabarak Shah and Ghulam Haider S/o Kala. Except Ghulam Haider all the marginal are witnesses belonging to village Nandrai. The Scribe of this document is Gul Hussain. The appellants produced Muhammad Hussain Khan, Ghulam Haider, Muhammad Yousaf & Mushtaq Ahmed S/o Gul Hussain in order to prove the aforesaid Document. All the witnesses mentioned above testified the fact of execution of the document Ex. PA. Muhammad Hussain Khan disclosed his age as 80 years at the time of recording his Court statement whereas Ghulam Haider was of 60 years at the time of his statement as witness Muhammad Yousaf was also 70/80 years at the time of evidence. Likewise Muhammad Yousaf Khan S/o Muhammad Qasim Khan was of 65 years old when he recorded his evidence. The contradiction or discrepancies pointed out by the trial Court and the learned counsel for the respondents Mr. Habib Hussain Shah are not so material in view of old age of the witnesses who recorded their statements after a long time. Minor discrepancies are always expected when the witnesses are aged persons. They are unanimous on material point i.e. fact of marriage and transfer of property to Mst. Noor Begum in the year 1953. The suit land is in continuous possession of the appellants firstly, in possession of Mst. Noor Begum and after her death in possession of appellants being her successors-in-interest. The possession of the appellants is also admitted by the respondents with the difference that they claim the suit land in possession of the appellant with their consent. The claim of permissive possession is not proved through the evidence on record. Thus, when the fact of marriage and transfer of suit land is proved in the light of evidence whether verbal or documentary, I agree with the finding of the learned District Judge to the extent of fact of marriage and transfer of property. However, I differ with the findings of the learned District Judge about the dismissal of the suit by the appellants to the extent of 1/2 of the suit land. The learned Judge while doing so fell in error because the fact of consummation or non-consummation of marriage is nobody's case. The respondents refuted the claim of marriage and transfer of property in toto. They never pleaded the fact of non-consummation of marriage between Mst. Noor Begum and Amam Din. It is well settled by now that the evidence beyond the pleadings cannot be considered nor a decision while traveling beyond the pleadings of the parties is possible. The findings of the learned District Judge to this extent is reversed.
The next question which agitates the mind of this Court is whether the document Ex. PA if proved creates a valid title of ownership of Mst. Noor Begum or her successors-in-interest as the case may be. In order to resolve this question, the relevant law available on the subject has been examined. Under Muhammadan law transfer of property in lieu of dower made at the time of Nikah takes effect as a gift. Reference may be had to PLD 2000 Lahore 236, PLD 1976 BJ 37 therefore, when the transfer of property by a Muslim to a Muslim in lieu of dower at the time of Nikah is a gift the question arises that whether the registration of the document Ex. PA was necessary and whether or not this document creates a valid title in favour of appellants. To resolve this controversy Section 129 of Transfer of Property Act may be resorted to. A gift by a Muslim becomes complete, if declaration is made, acceptance of gift is expressly or impliedly made by or on behalf of donee and delivery of possession of subject matter by donor to donee takes place. Once three conditions are fulfilled, neither any writing would be required to complete gift nor any such document acknowledging transfer of property by gift would require registration. The gifts made by Muslims in favour of Muslims, under Muhammadan Law, are expressly excluded from purview of Chapter VII (7) of Act by virtue of Section 129 of Transfer of Property Act. Reference may also be had to 1977 SCMR 154, 1987 SCMR 1403 and PLD 1975 Lahore 1399.
Here in this case, the execution of document Ex. PA is satisfactorily proved. This document shows transfer of property (suit land) in favour of Mst. Noor Begum in lieu of her dower Rs. 2000/-. The possession of the suit land is also found to have been transferred to Mst. Noor Begum. She remained in possession of the suit land. Thus, all the requirements of a gift are satisfied in the instant case. The appellants are owners of the suit land therefore, the Mutation No. 105 and 42 are inoperative and ineffective to their rights of the appellant in the suit land. The judgment and decree of the Ist Appellate Court stands reversed to the extent of 1/2 of the suit land passed on the strength of non-consummation of marriage. The suit by Muhammad Yousaf & others is decreed in toto by dismissing the cross suit.
(A.S.) Order accordingly
Present: Sardar Muhammad Nawaz Khan, J.
MUHAMMAD YOUSAF KHAN and others--Petitioners
versus
ABDUL GHAFOOR and others--Respondents
Civil Appeals Nos. 21 & 28 of 2004, decided on 16.9.2005.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Second appeal--Suit decreed--First appellate Court observed that parties to suit are entitled to 1/2 (one half) of suit land--Transfer of land by husband to his wife in lieu of dower sufficiently proved--Mutation in favour of rival party--Effect of--Execution of document is satisfactorily proved--Document shows transfer of property (suit land) in favour of Mst. "N" in lieu of her dower--Possession of suit land is also found to have been transferred to Mst. "N"--She remained in possession of suit land--All requirements of gift are satisfied--Appellants are owners of suit land--Mutation are inoperative and ineffective to their rights of appellant in suit land--Judgment and decree of Ist Appellate Court stands reversed to extent of 1/2 of suit land passed on strength of non-consummation of marriage--Suit decreed in toto by dismissing the cross suit--Order accordingly. [P. 62] C
(ii) Transfer of Property Act, 1882 (V of 1882)--
----S. 129--Muhammadan Law--Gift--Transfer of Property in lieu of dower--Nature of--Under Muhammadan law transfer of property in lieu of dower made at time of "Nikah" takes effect as gift--Gift by Muslim becomes complete, if declaration is made, acceptance of gift is expressly or impliedly made by or on behalf of donee and delivery of possession of subject matter by donor to donee takes place--Held: Once three conditions are fulfilled, neither any writing would be required to complete gift nor any such document acknowledging transfer of property by gift would require registration. [P. 62] A & B
Syed Habib Hussain Shah, Advocate for Appellants/Respondents.
Mr. Said Hassan Kiani, Advocate for Respondents/Appellants.
Date of hearing : 16.9.2005.
Order
The above captioned appeals arise out of a single judgment therefore, the following order is proposed.
2. Suits one by Muhammad Yousaf & others for cancellation of Mutation Nos. 105, 42 and other by Abdul Ghafoor Khan & others for possession of the suit land were brought in the Court of Sub-Judge Bagh. Both the suits were consolidated by the trial court and, after due process of law, the suit by Abdul Ghafoor & others was decreed in their favour by dismissing the cross suit by Muhammad Yousaf & others. Muhammad Yousaf & others feeling aggrieved by the judgment and decree of the trial Court filed an appeal before District Judge. The learned District Judge partially allowed their appeal with the observation that the appellants before the learned District Judge were entitled to 1/2 (one half) of the suit land in view of evidence. Both the parties felt aggrieved by the judgment and decree of the Court below, hence these appeals.
Firstly, dealing with the appeal by Abdul Ghafoor Khan & others, it may be observed that this appeal is incompetent on the ground that no certified copies of the judgment & decree of the trial Court are found to have been appended with the memo of appeal. Therefore, without going into merits of this appeal it is hereby dismissed as incompetent. While dealing with the cross-appeal by Muhammad Yousaf & others, it may be observed that the case of Muhammad Yousaf & others is that they are successors-in-interest of Mst. Noor Begum alias Noor Nishan. Mst. Noor Nishan married Imam Din deceased on 9.5.1953 for a consideration of dower Rs. 2,000/-. Imam Din deceased as the time of wedlock transferred his entire landed property alongwith his house to Mst. Noor Begum therefore, after the death of Mst. Noor Begum they are owners of the suit land to the extent of their shares devolved upon them out of Survey Nos. 198, 19, 190 and 192 situated in village Nandrai Tehsil Bagh. The respondents Abdul Ghafoor & others, according to the appellants, managed to get sanctioned Mutation Nos. 105 & 42 in their favour by concealing the fact of transfer of property by Imam Din deceased to Mst. Noor Begum deceased. On the other hand, the respondents' claim that Imam Din deceased never transferred the suit land in favour of Mst. Noor Nishan (Noor Begum) nor she was ever wedded to Imam Din therefore, after the death of Imam Din the suit land had rightly devolved upon them.
The learned counsel for the appellants argued that the fact of marriage between Imam Din and Noor Begum was satisfactorily established through the evidence on record and the learned District Judge rightly reversed the findings of the trial Court to that extent. However, according to the learned counsel, the learned District Judge fell in error while disallowing the suit by the appellants to the extent of 1/2 of the suit land. The learned Judge wrongly decided the question of consummation of marriage as it was nobody's case and while doing so the learned Judge traveled beyond the pleadings of the parties, the learned Counsel maintained. He further argued that when a Muslim transferred a property in favour of a Muslim in lieu of dower, the transfer takes effect as gift. The documentary as well as verbal evidence clearly indicated that Imam Din deceased transferred his entire landed property in village Nandrai in favour of Mst. Noor Begum at the time of marriage therefore, when it is established that the suit land was transferred in lieu of dower it was a gift which did not require writing or registration. The appellants therefore, were owners of the suit land and were entitled to have decreed the entire suit land in their favour.
Conversely, the learned Counsel representing the respondents supported the judgment and decree of the trial Court and contended that the fact of marriage and transfer of property of suit land in favour of Mst. Noor Begum were not proved in the light of evidence. The evidence brought on record was contradictory in nature and suggested to disallow the claim of the appellants however, the learned District Judge while crediting evidence in favour of appellants traveled in the wrong direction and his finding therefore, was not sustainable.
After hearing the learned counsel for the parties, the record made available to this Court was examined with care and caution. The appellants have relied upon a Panchait-nama Ex. PA allegedly executed by Imam Din on 9.5.1953. The attesting witnesses of this document are Muhammad Hussain Khan S/o Shah Wali Khan R/o Nandrai, Mir Zaman Khan s/o Fazal Khan, Muhammad Yousaf Khan S/o Qasim Khan, Bahadir Shah S/o Zaman Shah, Ramat Shah S/o Mabarak Shah and Ghulam Haider S/o Kala. Except Ghulam Haider all the marginal are witnesses belonging to village Nandrai. The Scribe of this document is Gul Hussain. The appellants produced Muhammad Hussain Khan, Ghulam Haider, Muhammad Yousaf & Mushtaq Ahmed S/o Gul Hussain in order to prove the aforesaid Document. All the witnesses mentioned above testified the fact of execution of the document Ex. PA. Muhammad Hussain Khan disclosed his age as 80 years at the time of recording his Court statement whereas Ghulam Haider was of 60 years at the time of his statement as witness Muhammad Yousaf was also 70/80 years at the time of evidence. Likewise Muhammad Yousaf Khan S/o Muhammad Qasim Khan was of 65 years old when he recorded his evidence. The contradiction or discrepancies pointed out by the trial Court and the learned counsel for the respondents Mr. Habib Hussain Shah are not so material in view of old age of the witnesses who recorded their statements after a long time. Minor discrepancies are always expected when the witnesses are aged persons. They are unanimous on material point i.e. fact of marriage and transfer of property to Mst. Noor Begum in the year 1953. The suit land is in continuous possession of the appellants firstly, in possession of Mst. Noor Begum and after her death in possession of appellants being her successors-in-interest. The possession of the appellants is also admitted by the respondents with the difference that they claim the suit land in possession of the appellant with their consent. The claim of permissive possession is not proved through the evidence on record. Thus, when the fact of marriage and transfer of suit land is proved in the light of evidence whether verbal or documentary, I agree with the finding of the learned District Judge to the extent of fact of marriage and transfer of property. However, I differ with the findings of the learned District Judge about the dismissal of the suit by the appellants to the extent of 1/2 of the suit land. The learned Judge while doing so fell in error because the fact of consummation or non-consummation of marriage is nobody's case. The respondents refuted the claim of marriage and transfer of property in toto. They never pleaded the fact of non-consummation of marriage between Mst. Noor Begum and Amam Din. It is well settled by now that the evidence beyond the pleadings cannot be considered nor a decision while traveling beyond the pleadings of the parties is possible. The findings of the learned District Judge to this extent is reversed.
The next question which agitates the mind of this Court is whether the document Ex. PA if proved creates a valid title of ownership of Mst. Noor Begum or her successors-in-interest as the case may be. In order to resolve this question, the relevant law available on the subject has been examined. Under Muhammadan law transfer of property in lieu of dower made at the time of Nikah takes effect as a gift. Reference may be had to PLD 2000 Lahore 236, PLD 1976 BJ 37 therefore, when the transfer of property by a Muslim to a Muslim in lieu of dower at the time of Nikah is a gift the question arises that whether the registration of the document Ex. PA was necessary and whether or not this document creates a valid title in favour of appellants. To resolve this controversy Section 129 of Transfer of Property Act may be resorted to. A gift by a Muslim becomes complete, if declaration is made, acceptance of gift is expressly or impliedly made by or on behalf of donee and delivery of possession of subject matter by donor to donee takes place. Once three conditions are fulfilled, neither any writing would be required to complete gift nor any such document acknowledging transfer of property by gift would require registration. The gifts made by Muslims in favour of Muslims, under Muhammadan Law, are expressly excluded from purview of Chapter VII (7) of Act by virtue of Section 129 of Transfer of Property Act. Reference may also be had to 1977 SCMR 154, 1987 SCMR 1403 and PLD 1975 Lahore 1399.
Here in this case, the execution of document Ex. PA is satisfactorily proved. This document shows transfer of property (suit land) in favour of Mst. Noor Begum in lieu of her dower Rs. 2000/-. The possession of the suit land is also found to have been transferred to Mst. Noor Begum. She remained in possession of the suit land. Thus, all the requirements of a gift are satisfied in the instant case. The appellants are owners of the suit land therefore, the Mutation No. 105 and 42 are inoperative and ineffective to their rights of the appellant in the suit land. The judgment and decree of the Ist Appellate Court stands reversed to the extent of 1/2 of the suit land passed on the strength of non-consummation of marriage. The suit by Muhammad Yousaf & others is decreed in toto by dismissing the cross suit.
(A.S.) Order accordingly
No comments:
Post a Comment