Mst. GHAZALA ISHRAT Versus Mst. SARWAT HUSSAIN

ORDER

SALAHUDDIN PANHWAR, J.--- Through order dated 15.5.2015, this Court while disposing off two CMAs, framed a legal proposition (legal issue) to be addressed. The concluding para thereof is reproduced hereunder:-

"WHILE parting, it is relevant to mention that above discussion and existing of following undisputed facts:- 'the defendant No.1 was owner of the subject matter and such title was maintained in relevant Record of the Rights' 'since the plaintiff and even defendant No.2 claims to have obtained title on basis of gift, made by defendant No.1, hence authority (status of defendant No.1 is owner) cannot be denied or disputed by them' 'the gift in favour of the plaintiff is prior in time and even stood affirmed by defendant No.1

WHILE gift, in favour of defendant No.2 is later in time and is denied by defendant No.1 (donor), even; has made it prima facie clear that legal status of the subsequent gift by one and same donor, who admits later but denies former(subsequent), is the root question which shall decide the law, as is the object of the Order XIV, rule 2 of the C.P.C. Accordingly, it would be just and proper to frame legal issue, which is as under:-

'What is the legal status and value of subsequent gift when donor and donee of subsequent gift acknowledge execution of first gift?

Needless to add that the above are purely questions/issues of law, therefore, the parties are directed to come prepared on next date of hearing to argue the above said issues first which shall sufficiently decide the whole case, because the rights and claims are being claimed or denied with reference to such subsequent gift."

2. I have heard the respective parties and have also perused the available record with reference to relevant provisions of law, dealing with gift:

3. The very first ingredient, required even to think for making a gift would be nothing but status and competence of donor which shall stand clear from the term 'Hiba or gift' defined by section 138 (Chapter XI) of Muhammadan Law i.e:

'A hiba or gift is ' a transfer of property , made immediately, and without any exchange,' by one person to another , and accepted by or on behalf of the latter.'

It is well established principle of law that one cannot legally make 'a transfer of property' if he/she does not own title thereof. The moment one makes a gift he/she, as the case may be, transfers the property, hence his/her status of 'owner' ceases. In absence of status of 'owner' of a property, one cannot make 'a transfer of property'. Thus, in existence of first gift, no second gift can be made by the donor for want of 'status of ownership' without which no transfer of a property can take place.

4. I have no hesitation in acknowledging the competence of the donor to revoke the gift subject to procedure, detailed by section 167 of the Muhammadan Law. It is undisputed fact the first gift was made by a mother (defendant No.1) in favour of the plaintiff (real daughter) within active knowledge and notice of the defendant No.2 (subsequent donee). The provision of section 167 leaves nothing ambiguous that remedy of revocation is available for the donor alone on certain grounds, as provided under the law.

5. Here, it is worth to mention that defendant No.2, (subsequent donee) was in active knowledge of first gift in favour of the plaintiff as it appears from pleading (written statement) of defendant No.2.

'It is further contended that father of the plaintiff and Defendant No.2 was of the opinion that since earlier gift by Defendant No.1 to the Plaintiff was contrary to the wish of the family, hence, he asked the defendant No.1 to execute another gift in the name of the defendant No.2, which she did in January 2006 and same was registered with the Registrar and all the .....

(Underlining is supplied for emphasis)

In such eventuality, if the donor was intending to undo earlier gift, the only course available with her, was to resort to section 167 of the Muhammadan law because the donor, having made a gift, cannot legally presume himself/herself capable of making another (second) 'transfer of property (which property already gifted). It is a matter of record that donor (defendant No.1) never revoked the first gift, made in favour of the plaintiff nor the instant suit has been filed by her rather she through her written statement conformed the validity of first gift.

In view of above, the answer to the above proposition can be nothing but that subsequent gift was void ab initio.

6. Let me, insist again that controversy/issue, in the instant matter was revolving round the above legal proposition so it shall stand clear from reliefs, sought by plaintiff i.e: a) To declare that the gift deed dated 27.09.2003 got execute by the defendant No.2 in the year 2006 is forged and fabricated as well as the mutation dated 03.04.2013, therefore, the same are liable to be cancelled.

(this is second and subsequent gift for which declaration is sought)

(b) To direct the defendant No.2 to vacate the upper portion of the house No.B-119, Block 13-D/2, Measuring 400 Square Yards, Situated at Gulshan- e-Iqbal Karachi and hand over the peaceful possession of the said House to the Plaintiff.

(defendant No.2 retaining possession under second and subsequent gift) c) To grant permanent injunction restraining the defendant No.2 and his son, as well as his subordinates, attorneys, agents, any person or persons using the entrance inside the house and also to restrain not to create third party interest by selling out and let out the said property /house No.B-119, Block 13-D/2 Measuring 400 Square Yards, Situated at Gulshan-e-Iqbal Karachi."

Since, the second and subsequent gift (in favour of defendant No.2) is not legal, valid and lawful nor the defendant No.2 can legally keep the plaintiff out of possession of subject matter hence there remains nothing to try the suit any more because 'trial' is always conducted to resolve 'controversy'. The controversy or controversies, if any, after respond to legal issue/proposition have lost significance hence the suit of the plaintiff is decreed, as prayed. Accordingly, listed applications are disposed of.

Let such, decree be drawn.

ZC/G-19/Sindh Suit decreed.