IN THE HIGH COURT OF SINDH AT KARACHI
C.P.No.D-3662 of 2011
(Ali Raza vs. Mohammad Shoaib and others)
ORDER WITH SIGNATURE OF JUDGE.
Mr. Justice Irfan Saadat Khan
Mr. Justice Abdul MaalikGaddi
For Katcha Peshi.
Mr. Naveed Ali Advocate for the Petitioner.
Mr. Shafiq Ahmed Advocate for the Respondent No.1.
Nemo for Respondents No. 2 and 3.
Date of hearing: 14.04.2014.
Date of announcement:_____/04/2014.
Abdul Maalik Gaddi,J.- Through this Constitutional Petition, the Petitioner is aggrieved by the order dated 27.09.2011 passed by the learned Vth-Additional District & Sessions Judge, Karachi East in Civil Revision Application No.97/2011 whereby the orders dated 31.05.2011 and 03.08.2011 respectively passed by the learned IX-Senior Civil Judge, Karachi East in Civil Suit No. 565/2011 filed by the Petitioner were maintained.
2. Relevant facts for the disposal of this Petition as alleged by the Petitioner are that the Petitioner is owner of residential Flat No.B-15, 2nd Floor , Gulshan-e-Iqbal, Karachi on the basis of Declaration of Gift dated 01.07.2008. The said property was owned by the Petitioner’s mother namely Mst. Nelofar Pervaiz by virtue of Sale Deed dated 05.11.2007. During lifetime, the said lady gifted the said Flat to the Petitioner through Declaration of Gift dated 01.07.2008. The said Gift was accepted and physical possession along with all documents received by the Petitioner however, his mother expired on 25.09.2008.
3. From record it appears that the Respondent No.1 was claiming adverse title to the said property. The petitioner filed a Civil Suit No.565/2011 against the Respondent No.1 for Declaration and Permanent Injunction and in the said Suit, Respondent No.1 filed written statement wherein the ownership of the Petitioner’s mother was admitted, but the Gift in favour of Petitioner was denied with the plea that the mother of the Petitioner had contracted to sale the property in question to him in consideration of Rs.2.5 Millions, out of which Rs.1 Million was received by her and the remaining amount was to be paid at the time of completion of transaction and transfer of the title of the property in question. However, from the record it also appears that on 31.05.2011, parties entered into a compromise and in pursuance of such compromise, an Application under Order 23 Rule 3 of C.P.C was filed by them before the Trial Court, praying that the Suit filed by the Petitioner be decreed in terms of compromise but the learned Trial Court instead of accepting the compromise application filed by the parties, disposed of the Suit with the observation that the Petitioner could not claim any benefit or title on the property in question on the basis of an unregistered Gift. Hence this Petition.
4. It is contended by the learned counsel for the Petitioner that the Petitioner is the lawful owner of the property in question on the strength of Declaration of Gift dated 01.07.2008 executed in his favour by this mother namely Mst. Nelofar. He has further submitted that Petitioner and Respondent No.1 have lawfully entered into compromise and in this connection a joint application under Order 23 Rule 3 CPC was filed by them wherein the Respondent No.1 has admitted the claim of the Petitioner, therefore, under these circumstances, it was incumbent upon the Trial Court to pass a compromise decree, but both the Courts below have miserably failed to appreciate that no cogent reason was existing to dispose of the compromise application of the litigants rather than to accept the same. According to him, the parties entered into a lawful compromise and they filed a legal compromise application before the learned Trial Court with their respective affidavits and there was no impediment in law not to accept such compromise application, however, learned Trial Court rather accepting such compromise application, disposed of the same in a hasty, whimsical and arbitrary manner. Therefore, according to him under the facts and circumstances of the case, this Court may be pleased to set aside the impugned orders of the two Courts below and allow the Petition. In support of his arguments, learned counsel for the Petitioner has relied upon the case law reported as Syeda Tahira Begum and another vs. Syed Akram Ali and another (2003 SCMR 29), Messrs Country Products Export Ltd. vs. Messrs Bawany Sugar Mills Ltd (PLD 1968 Karachi 115), Shaukat Habib and 5 others vs. Raja Muhammad Bashir and another (2004 YLR 1775) and Abdul Sattar Dadabhoy and another vs. The Honorary Secretary, Pakistan Employees Cooperative Housing Society, Karachi and another (PLD 1998 Karachi 291).
5. Learned counsel for the Respondent No.1 Mr. Shafiq Ahmed Advocate has not opposed this Petition.
6. We have carefully examined the respective contentions as agitated on behalf of the parties and scanned the entire record with the assistance of the learned counsel for the parties and have also perused the record and the decisions relied upon by the counsel for the Petitioner.
7. On going through the record, it appears that Petitioner filed Suit for Declaration and Permanent Injunction with a prayer that Petitioner may be declared as lawful owner of the property in question on the strength of Declaration of Gift dated 01.07.2008 (which was unregistered) executed in his favour by his mother. It is pertinent to mention here that Respondent No.1 filed his written statement in the said Suit, wherein the ownership of Petitioner’s mother was admitted, but the Gift in favour of Petitioner was denied with the plea that the mother of Petitioner had contracted to sale the property in question to Respondent No.1 in consideration of Rs. 2.5 Million out of which, the mother of the Petitioner received Rs.1 Million and it was agreed that remaining amount would be paid at the time of transfer of the title of the property in question in favour of the Respondent No.1.
8. We have noted that in the written statement, the Respondent No.1 has denied the case and claim of the Petitioner but surprisingly changed his instance by admitting the claim of the Petitioner in the Application under Order 23 Rule 3 of C.P.C. which was filed after few days of filing the written statement. Thus, it seems that the Suit filed by the Petitioner is collusive.
9. We have gone through the record and found that Petitioner is claiming ownership of the property in question on the basis of unregistered Gift Deed dated 01.07.2008 executed in his favour by his mother. No names of legal heirs of deceased have been produced to show that how many legal heirs were left by her. Admittedly Gift Deed dated 01.07.2008 in favour of the Petitioner is an unregistered document.
10. As far as the question whether immovable property of the value of more than one hundred rupees, can be gifted without a registered instrument, suffice it to say that according to Section 17 of Registration Act, 1908, no right, title or interest in an immovable property of the said value can be created without registered document. We have gone through the case law reported as Allah Diwaya vs. Ghulam Fatima, represented by Ahmad Sher and others (PLD 2008 SC 73), wherein it has been held as under:-
“Gift deed was compulsory registerable under S. 17 of Registration Act, 1908. Without getting gift deed registered, it would not confer title of property upon donee.”
11. On this point we are also supported with case law reported as Muhammad Ejaz and 2 others vs. Mst. Khalida Awan and another (2010 SCMR 342), in this case law it has been held as under:-
“Where donee claims transfer of immovable property by way of gift through an instrument puproting to transfer rights in praesenti, the instrument was compulsorily registerable under S.17 of the Registration Act, 1908; failing registration, the provisions of S.49 of Registration Act, 1908 would come into play and as a consequence, the document would not operate to create any right, title or interest, whether vested or contingent in the property.”
12. The case law reported as Messrs Rahman Cotton Factory vs. Messrs Nichimen Co. Ltd. (Formerly Messrs Japan Cotton and General Trading Co. Ltd) Karachi (PLD 1976 S.C 781), wherein the same point was discussed and it was observed that if a document is requiring compulsory registration, but not registered, does not operate to create, declare any right, title or interest in any immovable property.
13. The main contention of the learned counsel for the Petitioner is that when the compromise was effected between the parties, the Suit filed by him should have been decreed but here in this case, as observed above, that the declaration of ownership of Petitioner was sought on the basis of an unregistered Gift Deed which cannot be granted as the declaration of gift was unregistered, therefore, in view of the cited case law no declaration with regard to his title can be granted. In our view Court cannot do what the statute expressly forbids and it is the duty of the Court to apply the correct law while deciding the cases. Reliance in this respect is placed on Haji Abdullah Khan and others vs. Nisar Muhammad Khan and others (PLD 1965 S.C 690) and Land Acquisition Officer and Assistant Commissioner, Hyderabad vs. Gul Muhammad through Legal Heirs (PLD 2005 S.C 311).
14. Resultantly under the aforementioned facts and circumstances compromise decree cannot be granted.
15. The case law relied upon by the learned counsel for the Petitioner are not relevant as the same are based on distinguishable facts.
16. The upshot of the above discussion is that the two Courts below have acted in accordance with law and have properly appreciated the facts of the case and no illegality or material irregularity has been committed by them, therefore, we find no merit in this Constitutional Petition, which is accordingly dismissed with no order as to cost.