O R D E R     S H E E T

IN   THE   HIGH   COURT   OF   SINDH   AT   KARACHI

Suit No.862 of  2010

ORDER WITH THE SIGNATURE OF THE JUDGE

1.         For hearing of CMA No.5592/10

2.         For hearing of CMA No.7400/10

3.         For hearing of CMA No.7786/10

Mr. Abdul Karim Khan, Advocate for the Plaintiff.

            Mr. Iqbal Haider, Advocate for the Defendant.

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1-2.      Both these applications came up for hearing on 30.07.2010 when after arguing the matter at some length both the counsel for the parties agreed that they will make an attempt for compromise between the parties, hence requested for a short date. Accordingly, the matter was adjourned to 05.08.2010 and it was directed that both the parties may also attend the Court alongwith their counsel on the next date of hearing. However, it was further clarified that if the parties would not reach to an amicable settlement the listed application will be heard and decided.

On 05.08.2010 when the matter was taken up for hearing, the defendant was present in Court alongwith his counsel whereas, the plaintiff was not in attendance. On a query as to whether any settlement has been made between the parties, the learned counsel for the defendant submitted that his client is present in Court pursuant to direction of this Court dated 30.07.2010 whereas, plaintiff is not in attendance which reflects upon her arrogance and unwillingness to settle the dispute outside the Court. To this submission, the learned counsel for the defendant candidly responded that despite of his best efforts the plaintiff could not agree to settle the dispute outside the Court.

In view of these facts, the learned counsel for the parties agreed that both these applications be heard and finally disposed of on merits. Learned counsel for the plaintiff while arguing his application under Order XXXIX Rule 1 & 2 CPC i.e. CMA No.5592/10 submitted that the plaintiff was married to defendant on 28.05.2005 whereas, Rukhsati took place in the month of June 2006. Per learned counsel, it was second marriage of the defendant, who was already married and have three children out of such wedlock. Per learned counsel, the marriage of the plaintiff with the defendant took place with the consent of first wife namely Mst.Syeda Naheed Haider Zaidi at Karachi and it was purely on account of love and affection between the parties. Per learned counsel, cordial relationship continued for quite some time but after few months, the first wife of the defendant started interfering in the relationship and demanded the defendant to divorce the plaintiff. To avoid the pressure from his first wife the defendant shifted the plaintiff from Karachi to Islamabad in June 2006. Per learned counsel the defendant purchased a flat bearing No.607, Park Avenue, F-11/1 Markaz, at Islamabad, for plaintiff where she resided alongwith the defendant, however, after some time the defendant came back to Karachi and started to visit the plaintiff occasionally. The attitude of the defendant also started to get cold towards the plaintiff which has given a sense of insecurity and deprivation to the plaintiff who was made to live with the defendant in Islamabad, away from her parents. Per learned counsel for the plaintiff, the plaintiff tried her level best to improve the relationship with the defendant but the defendant did not extend any cooperation in this regard. On the contrary he started maltreating the plaintiff which resulted in execution of divorce deed dated 16.02.2009. However, thereafter obtaining fatwa from Shia Ulemas, the defendant approached the plaintiff with the request to live with him as his wife and to ignore the divorce deed, which as per fatwa obtained by the defendant, was of no legal consequence. Consequently, he also filed a suit for restitution of conjugal rights bearing No.505/2009. Thereafter, the matter was compromised between the parties and the plaintiff again started to live with the defendant as his wedded wife. The attitude of the defendant was changed altogether towards plaintiff. He started expressing his great love and affection towards plaintiff and also assured the plaintiff that he will purchase a car as well as flat in her name as a gift in order to provide her complete sense of security. Per learned counsel for the plaintiff the defendant purchased the Toyota Vitz Car bearing registration No.ACR-346, which according to learned counsel, was orally gifted to the plaintiff. It is further submitted that in addition to this Car, the defendant also purchased an immoveable property i.e. Flat No.16, Block 7, P.H.A. Society, Gulistan-e-Johar, Block 10, Karachi, which per learned counsel was also orally gifted to the plaintiff by the defendant out of love and affection and without any consideration. Thereafter, the plaintiff claimed to have shifted in such apartment, where the defendant used to visit twice a week. Per learned counsel the possession of the Car alongwith the document was handed over by the defendant to the plaintiff whereas, regarding the documentation of the flat in the name of plaintiff, the defendant promised that the same will be done within a short period, however, such documentation has not yet been made so far. Per learned counsel when first wife of the defendant came to know about the re-union of the plaintiff that the defendant, she again started to issue threats to the plaintiff and further pressurized the defendant for divorcing the plaintiff. The defendant once again abandoned the plaintiff without providing her any maintenance etc, resultantly the plaintiff was left with no option but to lock the said flat and come back to her parents at Karachi. It is further contended by the learned counsel for the plaintiff that looking at conduct of the defendant it was not possible for the plaintiff to live with such a man who was treating the plaintiff as a keep instead of as duly wedded wife. Accordingly, the plaintiff was constrained to file a suit for dissolution of marriage by way of Khulla before XXth Family Judge at Karachi East bearing No.705/2010, which is still pending. Per learned counsel on account of strain relations with the plaintiff and in retaliation to the family suit for Khulla filed by the plaintiff, the defendant has forcibly taken over the possession of the suit flat by applying his own locks, whereas, also attempted to forcibly take over the possession of the car from the plaintiff. Learned counsel argued that since both the properties were orally gifted to the plaintiff and possession was also given therefore, the same can not be taken back, hence the interim order passed in favour of plaintiff be confirmed. He has placed reliance on the case of Muhammad Ejaz and 2 others Vs. Mst. Khalida Awan and another (2010 SCMR 342. It appears that when the matter came up on the first date of hearing i.e. 02.06.2010 a restraining order was passed by this Court whereby defendant was restrained from creating any 3^rd party interest in the suit flat and also from taking over the possession of the above said car from the plaintiff till next date. In response to such notice, the defendant filed counter affidavit to the listed application i.e. CMA No.5592/2010 as well as the application under order XXXIX Rule 4 read with Section 151 CPC being CMA No.7400/10 whereby it has been prayed that interim order passed on 02.06.2010, may be recalled and vacated for having been obtained by misrepresentation of facts and without hearing the plaintiff.

Learned counsel for the defendant has seriously disputed the very maintainability of instant suit and referred to CMA No.7786/10 i.e. application under Order 7 Rule 11 read with Section 151 CPC in this regard wherein it has been prayed that the very suit is baseless and not liable to be dismissed in limine. Learned counsel after having filed the counter affidavit to application under Order XXXIX Rule 1 & 2 CPC filed by the plaintiff has also filed an application under Order XXXIX Rule 4 CPC requesting therein to recall and vacate the ex-parte impugned order passed by this Court on 02.06.2010. Learned counsel for the defendant has vehemently argued that the plaintiff has neither prima-facie case nor there is any cause of action to justify filing of the instant suit or seeking any interim permanent injunction in her favour. Per learned counsel, neither any documentary evidence has been filed by the plaintiff in support of her contention nor any witness has been cited which can testify to the averments made by the plaintiff in the plaint. Per learned counsel the entire suit is baseless, bogus and frivolous as manifest from the pleadings itself. Per learned counsel, the plaintiff, despite having knowledge about the first marriage married with the defendant with an intention to grab the property of the defendant. Per learned counsel the baseless claim of the plaintiff to have acquired title/ownership of the flat bearing No.16, Block-7, P.H.A. Society, Gulistan-e-Jauher, Karachi and Toyota Vitz Car bearing registration No.ACR-346 is falsified from the facts that none of the property is either purchased by the plaintiff or purchased in the name of the plaintiff nor there is anything in writing, including gift deed or declaration of gift in respect of such properties in favour of the plaintiff. It has been further contended that the plaintiff has attempted to concoct a baseless story of alleged gift by the defendant to the plaintiff. Per learned counsel, it is pertinent to mention that the date, day and the witnesses of execution of alleged oral gift, which is a pre-requisite for an oral gift under Muhammadan Law, has not been mentioned in the plaint. Per learned counsel, though an oral gift is permissible under Mohammadan Law but it has its basic ingredient i.e. (i) declaration of oral gift by the donor (ii) acceptance by the donee and (iii) handing over of physical possession of the property sought to be gifted by the donee. Per learned counsel, on the bare reading of the pleadings with particular reference to para 10 of the plaint wherein the allegation of having acquired both the properties in gift by the plaintiff, it is clear that the self contradictory submissions have been made which nullify the claim of the plaintiff. Per learned counsel neither the date, day of the alleged gift has been mentioned nor the witnesses in presence of whom the alleged oral gift was made have been named or cited. Moreover, both the immoveable as well as moveable properties, which were purchased in Karachi and which are also located and registered at Karachi, have allegedly been delivered possession at Islamabad, which is neither factually correct nor acceptable in law. The learned counsel further argued that the plaintiff has also filed a suit for dissolution of marriage by way of khulla and is attempting to usurp the properties of the defendant through false claims. In support of his contention the learned counsel has placed reliance on the following reported judgments:-

1) 2010 SCMR 342 (Muhammad Ejaz and 2 others Vs. Mst. Khalida Awan and another)

2) 2005 SCMR 1690 (Muhammad Idrees Vs. Mst. Zeenat Bibi)

3) 1994 SCMR 1939 (Hakim Ali and 3 others Vs. Sheikh Muhammad Mazhar Ali)

4) 2005 YLR 2529 Lahore (Liaquat Ali Vs. Province of Punjab through DCO Gujrat and 6 others)

5) 2006 YLR   1102 (Mst. Imam Sain and 04 others Vs. Dr. Shahid Mehmood and another)

6) PLD1975 Karachi 416 (Raees Muhammad Mushtaq Vs. Mir Hyder Bux)

Learned counsel for the defendant after having placed reliance on the aforesaid judgments, has finally argued that the plaintiff has no prima-facie case on merits, hence not entitled for any final or interim relief as sought through listed application. Per learned counsel, in the absence of any prima-facie case, or balance of convenience in favour of the plaintiff possibility of any irreparable loss or damage to the plaintiff the ex-parte interim order passed in favour of the plaintiff shall be recalled and vacated. Per learned counsel, if the ex-parte interim order is not vacated, the irreparable loss shall be caused to the defendant who is the lawful owner of the subject property and has been restrained from enjoying the fruits of the same.

I have heard both the learned counsel and perused the record as well as case law relied upon by both the in support of their arguments. Brief facts for the purposes of disposal of both these applications, as stated in the pleadings are that plaintiff has filed a suit for declaration, possession, compensation and permanent injunction. Plaintiff is second wife of the defendant and on account of strain relations with the defendant, the plaintiff has filed a suit for dissolution of marriage before the Family Judge. Through instant suit, the plaintiff has sought declaration in respect of the suit properties i.e. Flat No.16, Block-7, P.H.A Society, Gulistan-e-Johar, Block-10, Karachi and Car bearing registration No.ALR-346, made Toyota Vitz, Model 2003 claim to have acquired ownership through oral gift by the defendant. Admittedly, no documentary evidence in this regard has been filed by the plaintiff, however it has been asserted that the suit properties were orally gifted in presence of the witnesses at Islamabad and vehicle possession and suit properties was also delivered at Islamabad. Alongwith the suit copy of the registration book of the car claimed to be in possession of the plaintiff has been filed, whereas no title document in respect of subject flat has been filed by the plaintiff. There is no cavil to the preposition that under Mohammedan Law any movable and immovable property can be transferred by way of oral gift, and written instrument is not the requirement under the Muslim Law nor the same is compulsorily registerable under the Registration Act, 1908. However, under the Muslim Law, Oral Gift, can be considered as valid and binding upon the parties, if following three conditions are fulfilled:-

(i)         declaration of gift by donor

(ii)        acceptance of gift by donee; and

(iii)       delivery of possession and corpus

On the fulfillment of the above three ingredients, a valid gift comes into existence.    

            The Hon'ble Supreme Court of Pakistan in its recent judgment reported as Muhammad Ejaz and 2 others Vs. Mst. Khalida Awan and another 2010 SCMR 342 has held that "valid gift can be effected orally, if the prerequisites i.e. (a) declaration of gift by the donor (b) acceptance of gift by the donor (c) delivery of possession of corpus, are complied with. Written instrument is not the requirement under Muslim Law nor is the same compulsorily registerable under Registration Act, 1908." It has been further held in the said judgment that "onus was on plaintiff to prove gift and further to prove all the three facets i.e. the declaration of gift by the donor, acceptance of gift by the donee and delivery of possession of the corpus of gift." In the said judgment, it has been further held that mere proof of execution of a gift deed without not fulfill the essentials of a valid gift. In another reported case of Muhammad Idrees Vs. Mst. Zeenat Bibi 2005 SCMR 1690, the Hon'ble Supreme Court has held that "factum of gift had to be proved by donee being beneficiary on the basis of correct and cogent evidence. It was further held that question of constitution of valid gift would not arise without delivery of possession of gifted property." In the case of Hakim Ali and 3 others Vs. Sheikh Muhammad Mazhar Ali 1994 SCMR 1939, the Hon'ble Supreme Court has held that donor has not been able to produce cogent reason as to why the donor felt the necessity of depriving himself of valuable landed property. Merely because he was residing with the petitioner who were enjoying the usufruct of his vast agricultural land could not per se persuade him to part with his property in their favour and deprive his own son of the fruit thereof. In the case of Mst.Imam Sain and 4 others Vs. Dr. Shahid Mehmood and another 2006 YLR 1102 a Bench of Lahore High Court has held that the immoveable property could be gifted through oral mode but for such a declaration, very strict and positive evidence was needed. Donee the beneficiary of the gift, had to prove in unequivocal and specific terms, the date, day and time, when the gif was made, consideration of gift and also persons in whose presence it was made. Mere construction raised by plaintiff over the land and occupation of the same and installation of amenities could not be considered as proof of the plaintiff's ownership. Such material can only help the plaintiff to prove the case of being licensee but not in the nature of gift. In another case reported as Liaquat Ali Vs. Province of Punjab 2005 YLR 2529 another Bench of Lahore High Court while describing of the essential ingredients of valid gift has held that where factum of gift was challenged, then donee must establish its validity by producing cogent and satisfactory evidence regarding declaration by or intention of donor to make gift in favour of donee, acceptance of gift by donee and delivery of physical and constructive possession under gift. It has been further held that if donee already in possession of property, then inference would be that donor had not delivered its possession after gift, gift would be null and void, if circumstances and evidence on record shows that no gift was ever made by the donor and everything was fictitious and concocted.

            Since, through this order, I intend to decide the listed applications only, therefore, I do not intend to give any finding as to the final determination of the controversy involved in the instant suit, however, on tentative assessment of the record and after perusal of the case law relied upon by both the parties, I am of the tentative view that the plaintiff, in view of pleadings and the contents of affidavit filed alongwith application under Order XXXIX Rule 1 & 2 read with Section 151 CPC i.e. CMA No.5592/10 has not been able to make out a prima-facie case for grant of any interim relief. The plaintiff has not mentioned the date, day as well the names of the witnesses of the alleged oral gift nor has been able to show her possession over the subject properties as a donee after alleged declaration of oral gift. It appears even custody of car has also been retained pursuant to order of this Court dated 02.06.2010 whereby it was ordered as under:-

"In the meantime, the defendant is restrained from creating 3^rd party interest in the suit flat and also from taking over the possession of the above said car from the plaintiff till the next date."  

Moreover, in the absence of three ingredients of a valid oral gift as stipulated by the Hon’ble Chief Justice of Supreme Court of Pakistan in recent judgment, referred to hereinabove, and further in view of serious dispute about the factum of alleged gift itself by the donor, mere possession could not justify the claim of the petitioner to have acquired the subject property by way of oral gift. It is also pertinent to mention here that the plaintiff, in addition to seeking declaration in respect of suit properties has claimed Rs.5 million towards damages, which if proved, would provide adequate relief to the plaintiff.

In view of hereinabove circumstances, the application bearing CMA No.5502/10 filed by the plaintiff under Order XXXIX Rule 1 & 2 read with Section 151 CPC is dismissed. Consequently, the application filed by the defendant under Order XXXIX Rule 4 read with Section 151 CPC bearing CMA No.7400/10 is allowed and the impugned order dated 02.06.2010 is recalled. Accordingly, petitioner is directed to handover the possession of the Toyota Vitz Car bearing registration No.ACR-346 to respondent.

3.         Office is directed to list CMA No.7786/10 for hearing as per Roster after notice to the parties.

Dated:         .08.2010.                                                                          J U D G E