INAYAT ULLAH vs Mst. PARVEEN AKHTAR

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought, against the dismissal by the High Court, of petitioner's Regular Second Appeal. He was a defendant in a suit for declaration and injunction. He denied the claim of the plaintiff/respondent that she as petitioner's wife had become owner of the suit house, as a result gift during wed-lock between the two-the house was given to her by the petitioner (husband). Her suit was decreed and the petitioner's first and second appeals having been dismissed, he has now sought leave to appeal.

2. ' The learned Judge in the High Court in an elaborate judgment came to the following conclusion:- "The respondent is admittedly in possession of the disputed house which, according to her, was delivered to her at the time of her marriage. Both the Courts below have rejected the appellant's contention that the disputed house had been leased out to the respondent's parents by the appellant prior to his marriage with the respondent. The possession of the house having been acquired by the respondent in consideration of relinquishment of her right to receive the amount of dower fixed at the time of her marriage with the appellant amounts to the delivery of possession of the house under Hibba-bil-Ewaz. It was, therefore, not necessary to evidence the factum of gift by executing any formal document, as according to the rule of Muslim Law a gift of property can be effected orally by delivering the possession of the property by the donor. The entry regarding the gift of the disputed house in the relevant column of Nikahnama Ex.P.1. Was made merely to show how the dower fixed at the time of marriage had been paid to the wife. That entry in itself was not the only piece of evidence to prove the factum of gift. The objection raised by the appellant that Ex.P.1. Being an unregistered document does not create any interest or right in the disputed house in favour of the respondent in view of the provisions of section 49 of the Registration Act is not tenable in view of the fact that the disputed house was given by the appellant to the respondent in lieu of her dower and the transaction under the circumstances must be considered as one of Hibba-bil-Ewaz. The provisions of sections 17 and 49 of the Registration Act are not attracted to the facts of the case and as held in Mst. Allah Jawai's case PLD 1975 Lah. 1399 the transfer of property by the husband to the wife in lieu of her dower can be effected even without a registered instrument."

3. ' Learned counsel for the petitioner when called upon to satisfy us; whether, the view taken by the Lahore High Court in the case of Allah Jawai and reiterated in the impugned judgment is in any way erroneous, could not make any further submissions. He then made submissions on some factual aspects of the case; but, the same having been concluded by the findings of fact rendered by the three learned Courts below against him, we are not able to find any justification for interference. Leave to appeal, therefore, is refused.