IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE QAZI FAEZ ISA
MR. JUSTICE YAHYA AFRIDI
Civil Petitions No. 1319 of 2020 and 1410 of 2021
(Against the order dated 02.03.2020 & 23.12.2020 passed by
the Islamabad High Court, Islamabad in F.A.O. No. 67 of 2019
and Regular First Appeal No. 64 of 2017)
Muhammad Farrukh Iqbal (in both cases)
…Petitioner
Versus
Mrs. Ayesha Iram, etc. (in both cases)
…Respondent
For the petitioners: Mr. Muhammad Koukab Iqbal,
AOR/ASC
With the petitioner in person.
(in both cases)
For the respondents: N.R. (in both cases)
Date of hearing: 21.06.2021
ORDER
Qazi Faez Isa, J. CPLA No. 1410 of 2021 assails two concurrent
judgments, respectively of the Trial Court and of the High Court
acting as the Appellate Court. And CPLA No. 1319 of 2020 assails
the execution proceedings pursuant to the two impugned
judgments. A suit was filed on 31 July 2002 by the respondent No.
1 claiming her right to inheritance in House No. 18 situated on
Street No. 27, Sector F-6/2, Islamabad (‘the House’) asserting that
it was owned by her late father, Col. Muhammad Safdar Iqbal, who
died on 17 December 2000 and on his death it devolved on his
legal heirs, that is, two sons and three daughters, the petitioner
and the respondents herein. The petitioner filed his written
statement alleging therein that the House was gifted to him by his
father through ‘Declaration of Oral Gift’, a two page written
document dated 2 September 2000 (‘the gift document’).
2. The learned counsel submits that the gift document was
validly executed and constituted a gift, was witnessed by two
Civil Petitions No. 1319 of 2020 & 1410 of 2021 2
daughters of the deceased and that the ‘Acceptance of Gift’
endorsed therein below was witnessed by two witnesses, namely,
Shahid Ghani Mughal and Farrukh Saeed Qureshi; Shahid Ghani
Mughal testified but the other witness Farrukh Saeed Qureshi
could not do so because he had passed away and his death was
confirmed by the death certificate produced in evidence. The
learned counsel states that the courts did not appreciate that
Farrukh Saeed Qureshi had passed away and further that the gift
document was not one which came within the definition of a
document under Article 17(a) of the Qanun-e-Shahadat, 1984 as it
was not in respect of financial or future obligation but came under
clause (b) of the said Article in respect whereof one witness may be
accepted. He further submits that the learned Judge misread/non-
read the relevant evidence and if the same was read properly the
suit would have been dismissed.
3. In response to our query, the learned counsel states that the
gift document did not require registration as Muhammadan Law
prevails over the Transfer of Property Act, 1882 and the
Registration Act, 1908 and referred to the case of Bilawar Khan v
Amir Sabar Rahman (PLD 2013 Peshawar 38). He further states
that a Muslim is not required to make a gift in a particular format
and a gift can be made simply on a plain piece of paper.
4. We have heard the learned counsel and with his assistance
examined the documents on the record. The Trial Court’s judgment
is comprehensive and the learned Judge gave a number of reasons
for discounting the gift document, including that there was no
signature or thumb impression of the donor on the first page while
there were three thumb impressions, purporting to be of the donor,
on the second page. The learned Judge also considered the
documents produced by the petitioner which were stated to have
been submitted to the Capital Development Authority (‘CDA’) in the
year 1994 for transfer of the property in the name of the petitioner
but held that the same were not produced through a witness of
CDA and that it is unbelievable that the same were not acted upon
for a period of six years. Therefore, the courts held that the gift in
Civil Petitions No. 1319 of 2020 & 1410 of 2021 3
favour of the petitioner was not established. Incidentally, the
petitioner did not seek to challenge either CDA’s refusal to transfer
the House in his favour nor took any action to implement the gift
document. Col. Muhammad Safdar Iqbal died on 17 December
2000 and the House stood in his name, and continued to stand in
his name, when the suit was filed on 31 July 2002.
5. It is noteworthy that the petitioner relied on the said gift
document and asserted that through it the House was gifted to
him. Since the basis of the gift was the gift document we drew the
attention of the learned counsel to Chapter VII of the Transfer of
Property Act, 1882 and to its section 123, relevant portion whereof
stipulates, that, ‘For the purpose of making a gift of immovable
property, the transfer must be effected by a registered instrument
signed by or on behalf of the donor and attested by at least two
witnesses.’ We questioned how the gift document could be used to
gift the House. The learned counsel responds by submitting that
the gift was made orally as mentioned in the gift document, which
is titled ‘Declaration of Oral Gift’. We have examined the gift
document which states that the, ‘DONOR, hereby gift the above
said property…’, that is, the House. It is thus clear that the gift
document did not merely record an earlier oral gift but it was
through the gift document that the House was purportedly gifted.
The title of the gift document is inconsequential in view of its clear
and unambiguous contents, which stated that the House was
sought to be gifted by and through the gift document. The cited
case of Bilawar Khan has no relevance to the facts of the instant
case.
6. Section 17(a) of the Registration Act, 1908 requires that gifts
of immovable property made by or through written documents
require registration. Therefore, the gift document required
registration. It would also require stamping pursuant to the Stamp
Act, 1899. In the absence of the statutory requirement of
registration of the gift document it could not be used to transfer
the property to the petitioner.
Civil Petitions No. 1319 of 2020 & 1410 of 2021 4
7. Therefore, for the reasons mentioned above we are not
inclined to grant leave because we have not been persuaded that
the House had been gifted to the petitioner. Consequently, leave to
appeal is declined and these petitions are dismissed.
Judge
Judge
Islamabad
21.06.2021
Arif
Approved for reporting
