GHULAM SARWAR Versus IMAM BAKHSH
Civil Miscellaneous No. l/C of 2000
For orders to be passed in the main case no order needs to be passed in this C.M. The same is accordingly disposed of.
Main case.
Respondents Nos. l to 3 filed a suit against the petitioners and the other respondents claiming that sale of the suit land in favour of Muhammad Bakhsh was Benami and that the said respondents Nos. 1 to 3 are joint owners of the suit land., In the alternative it was prayed that they, are owners of 16 Kanals of land under gift, dated 12‑9‑1991. In the plaint it was contended that one Pir Bakhsh had five sons, 3 are plaintiffs/respondents while Muhammad Bakhsh was the father of the petitioners. The land was owned by the Provincial Government which sold the same by means of auction and that` all the four brothers participated therein with joint funds. However, Muhammad Bakhsh made the bid and consequently all the papers etc. were issued in his name. The said parties continued in possession according to their shares. However, Muhammad Bakhsh in order to usurp the share of others started making alienations; that on the protest of the said plaintiffs/respondent , the petitioners executed a gift deed in respect of 16 Kanals of land on 12‑9‑1991 in favour of the plaintiffs. In their written statement the petitioners admitted the execution of the d6cument of gift, dated 12‑9‑1991 but they asserted that it was only a gift of the usufruct and not of the corpus.
2. Issues were framed and the evidence of the parties yeas recorded. The trial Court dismissed the suit vide judgment and decree, dated 20‑6‑1988. The plaintiffs/respondents feeling aggrieved filed an appeal which was heard by learned District Judge, Khanewal who allowed the same and granted them the alternate relief by declaring them absolute owners in occupation of 16 Kanals of land vide gift, dated 12‑9‑1991.
3.. Learned counsel contends that the document Exh.D.l cannot be said to be a gift of the corpus‑but is a gift of the usufruct. Relies on the case of Mst. Khan Bibi v. Mst. Safia Begum and others PLD 1969 Lah. 338.
4. I have gone through the certified copies of the record appended with this Civil Revision. In particular the learned counsel has taken me through the document, dated 12‑9‑1991 which is on record as Exh.P.I. It will be advantageous to reproduce the relevant portion of the said document Exh.P. I
The learned counsel relies on this latter condition in the document to support his said argument that the transaction is an Ariyat. I am afraid I am unable to agree with the learned counsel.. To my mind the said document is an Umra Gift. I rely for the said conclusion on the case of Abdul Hamid and 23 others. v. Muhammad Mohyuddin Siddique Raja. and 3 others PLD 1997 SC 730. In the said judgment Mr. Justice Khalil‑ur‑Rehman Khan, (as his Lordship then was) repeated the entire story which was being relied upon by the learned counsel for the petitioners and concluded that the gift (which was tainted with similar condition as in the present case) was a complete gift of corpus and the' mere fact that it was provided that the donee will enjoy the rent till life would not derogate from the completeness of the gift and that the condition itself will be void whereas the gift shall be valid and shall take effect. Apart from. the case‑law his Lordship referred to several Ahadis of the Holy Prophet (p.b.u.h.) which were reproduced in para. 39 of the said judgment at page 778 of, the report:‑‑
"3972. Jabir b. 'Abdullah (Allah be pleased with them) reported Allah's Messenger (may peace be upon him) as saying: Whoever a person is gifted a life grant then it is for him (belongs to him and to his posterity), for it belongs to him who has been given it. It would not return to him who gave it for the conferred it as a gift (it becomes the property of the donee and as such) rules of inheritance will apply to it.
3973. Jabir b. 'Abdullah (Allah be pleased with them) reported Allah's Messenger (may peace be upon him) as saying: He who conferred a life grant upon person, it becomes his possession and that of his successors, for he surrendered his right in that by his declaration.
(This property) now belongs to one to whom this lifelong grant has been made, and to his successors, Yahya narrated in the beginning of his narration: Whatever man is given a life grant, then. it belongs to him and his posterity. .
3977. Jabir b. 'Abdullah (Allah be pleased with him) reported Allah's Messenger (may peace be upon him) as saying: Life grant is for one upon whom it is bestowed. "
5. The matter, therefore, stands‑ settled 'by the Supreme Court of Pakistan in the judgment referred to above.
6. I have also noted that both the learned Courts below have mainly relied upon this very document Exh.P.l to non‑suit the plaintiffs/ respondents regarding the main relief claimed in the suit. According to the learned Courts below the said document estops the plaintiffs/ respondents from seeking a declaration regarding the Benami nature of sale in favour of Muhammad Bakhsh, the father of the petitioners as they have acknowledged the ownership of Muhammad Bakhsh by claiming benefit under the same gift of 16 Kanals of land to them by the petitioners. I do not find any force in this Civil Revision which is accordingly dismissed in limine.
H.B.T./G‑17/L Revision dismissed.