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First Rent Appeal No. 160 of 1985, decided on 22nd October, 1986

‑‑‑Gift need not necessarily be in writing‑‑An oral gift is as good as written gift.

P L D 1976 Kar. 316 ref.

Jamarun‑Nisa Bibi v. Hussain Bibi 1818 All. 366 rel.

‑‑‑S. 15‑‑Ejectment‑‑Personal requirement‑‑Property in dispute gifted to landlord by his brothers by means of a compromise and oral gift‑ Tenant, opposing ejectment, contending that transaction was collusive and gift was not in accordance with law‑‑Compromise showing that landlord's brothers had orally gifted and transferred ownership rights of shops in dispute in favour of landlord and that gift was in accordance with law and that tenant was also informed about change of ownership‑ Landlord establishing his bona fide requirement‑‑Order of Rent Controller ejecting tenant upheld in circumstances.

Syed Mueonuddin v. Saeeda Parveen 1984 S C M R 120 rel.

Muhammad Ali Shaikh for Appellant.

Nemo for Respondent.

Date of hearing: 22nd October, 1986.

This First Rent Appeal is directed against the order, dated 27‑1‑1985 passed by the IXth Senior Civil Judge/Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant ‑w9s directed to hand over peaceful possession of the premises in question to the respondent within ninety days from the date of the order.

The facts which give rise to this appeal are that the respondent is the owner of shops Nos. 4 and 5 constructed on Plot No. III‑E‑1/A, Nazimabad, Karachi and the appellant is tenant in respect of these two shops on a monthly rent of Rs. 240. The respondent filed eviction application No. 4832 of 1983 against the appellant on the ground of personal requirement. The respondent averred in his eviction application that the respondent is an Advocate by profession and has been carrying on his profession at first floor of the said property which premises is under his occupation as a licensee. It was further averred that the respondent became owner of these two shops by virtue of a gift made in his favour on 7‑10‑1983 and after change of ownership the respondent served a legal notice through his Advocate, dated 9‑10‑1983 which was duly received by the appellant. It was also averred that respondent is not in occupation of any commercial premises owned by him nor he owns any such premises which he may occupy for the purpose of carrying on his professional duties nor has the respondent ever vacated any such premises. The appellant resisted the eviction application.

In support of the eviction application the respondent filed his own affidavit‑in‑evidence and also produced compromise order, dated 8‑10‑1983 as Annexure 'A' to the affidavit and notices, dated 9‑10‑1983 as Exh. A/1, reply of the appellant as Exh. A/2. In rebuttal the appellant filed affidavit‑in‑evidence of his son and attorney Abdul Sattar. They were cross‑examined by the learned counsel for the respective parties.

The learned Rent Controller after considering the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application by order, dated 27‑1‑1985, as stated earlier.

The appellant being aggrieved against the order, dated 27‑1‑1985 of the IXth Senior Civil Judge and Rent Controller, Karachi has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

Mr. Muhammad Ali Shaikh, learned counsel for the appellant has contended that the gift and the compromise are collusive and gift is not in accordance with law. In support of his submission he has placed reliance on P L D 1976 Kar. 316.

On the other hand the respondent has submitted that the gift and compromise are not collusive. The gift is in accordance with law.

I have heard the learned counsel for the parties and have gone through the R & P of the Controller. I have also perused the impugned order. I have also gone through the decision cited by the learned counsel for the appellant.

In the case of Mir Haji Ali Khan Talpur and 9 others v. Government of Sind and 2 others P L D 1976 Kar. 316 a Divison Bench of this Court held as under:‑‑

"It is well‑known that Muhammadan Law has prescribed just three simple, but very essential, requisites for a valid gift. These are: (1) a declaration of gift by the donor, (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject‑matter of the gift by the donor to the donee. In simple words, the three acts involved are that the donor should make a declaration of gift and give the gift property to the donee, and the latter should accept it. It is not even essential that the gift should be made in writing for a written gift is as good as an oral one. In the case of Jamarun‑Nisa Bibi v. Hussain Bibi 1818 All. 366 the Privy Council upheld a verbal gift. Writing is, therefore, not essential to the validity of a gift, either of movable, or of immovable property, no mutation of names in the Record‑of‑Rights is also necessary to complete the transfer of possession of the gift property. A gift of lands in occupation of Haris may be completed by the donor asking the haris to attorn to the donee, or by delivery of title‑deeds, or, by getting the mutation entries effected in donee's favour in the Record‑of‑Rights. A husband making a gift of the house to his wife, which is in their joint occupation, may complete the delivery of possession of the corpus of the gift, which is one of the essential requisite of a valid gift, by making a declaration to the effect that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammadan Law. The same procedure would be true in the case of a house let out to the tenants, or in the case of lands cultivated to Haris, if the tenants or the Haris are asked by the husband to attorn to his wife. In such cases, the fact that the husband continues to live in the house or receives therents from the tenants, after the date of the gift, would not invalidate the gift, the presumption being that the rents were received by him on behalf of his wife, and not on his account." The above observations are against the submission of the learned counsel for the appellant. It is well‑known that Muhammadan Law has prescribed essential requisites for a valid gift. These are (a) a declaration of gift by the donor, (b) acceptance of the gift by or on behalf of the donee, and (c) delivery of possession of the subject‑matter of the gift by the donr to the donee. It is not even essential that the gift should be in writing or as a written gift is as good as an oral one. The Privy Council upheld the verbal gift. A gift of tenement or lands in occupation of tenant or Hari may be completed by the donor asking the tenant/Hari to attorn to the donee or by delivering title deeds, or by getting the mutation entries effected in donee's favour in the Record‑of‑Rights.

A perusal of compromise application shows that the respondent filed Suit No. 3533/83 in the Court of XXVth Civil Judge, Karachi. In that suit the parties filed a compromise application under Order XXIII, Rule 3. A perusal of clause (2) shows that the respondent's two brothers have orally gifted and transferred the ownership rights in favour of the respondent (plaintiff) of the disputed shops on ground floor. The clause also shows that the gift was made on 7‑10‑1983 in presence of family members of the parties and the same was accepted by the respondent at the same time. The respondent's brothers namely Muhammad Nawaz and Muhammad Anwar through their counsel sent a letter, dated 13th October, 1983 to the appellant (Exh. A/3). A perusal of this letter shows that they informed about the change of ownership and thereby required the appellant to pay all future rent to the respondent and deal with him in all respects. In view of this overwhelming evidence the gift is in accordance with law.

Reverting to the other submission that the compromise is collusive, is also without any force. In case of Syed Mueonuddin v. Saeeda Parveen 1984 S C M R 120 the Honourable Supreme Court held that "the decree obtained by the respondent is being impeached on the ground of fraud and misrepresentation. However, an order or decree obtained by fraud is not void but only voidable. It would, therefore, remain operative as long as it is not set aside, rescinded or recalled, by a competent authority or Court in proper proceedings. It is now well‑established that a superior Court or a Court of general jurisdiction has the power to disregard as nullity, an order obtained by fraud or collusion, or on the ground of want of jurisdiction in the Court or authority making it, but such an order cannot be colatorally impeached before a Tribunal which enjoys only special or limited jurisdiction in a defined sphere". It was further held in that case that the tenant could not collaterally challenge the decree obtained by landlord declaring his title to the property in dispute in the proceedings under the Ordinance and the forums established there under were not competent to impeach the decree as void and of no legal effect. The dictum laid down in above deeisinn is fully applicable to the facts of this case. In view of C the law laid down by the Honourable Supreme Court, the appellant cannot question the compromise entered into between the respondent and his two brothers and attack the same that it is collusive.

1 have gone through the evidence led by both the parties and find that in the circumstances of the case the respondent has established his bona fide requirement. It seems that the order of the learned Controller does not need interference.

For the above reasons the appeal is dismissed with no order as to costs. The appellant is directed to hand over peaceful possession of the shops in dispute within two months from the date of order, dated 22‑10‑1984 subject to the condition that the appellant will deposit rent E as ordered by the Controller. On the expiry of two months the writ of possession will be issued against the appellant without any notice or in case of default in depositing rent, earlier. The above are the reasons of short order dated 22‑10‑1986 passed after the conclusion of the arguments.

M.Y.H./5149/K Appeal dismissed.

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