P L D 2014 Peshawar 53

Before Muhammad Daud Khan, J

MUSAFAR---Petitioner

Versus

Mst. LAZ MAHAL BIBI and others---Respondents

Civil Revision Petition No.1291 of 2004, decided on 7th May, 2013.

(a) Islamic Law---

----Gift---Burden of proof---Scope---Party claiming disputed property to have been gifted to
him by deceased in his lifetime would be bound to prove the same---Illustration.

2005 SCMR 135; 2000 SCMR 346 and 2011 YLR 2726 rel.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Entries in revenue record---Evidentiary value---Revenue record by itself would not
be proof of title---Such entries, if challenged at earliest time, would have no authenticity.

(c) Specific Relief Act (I of 1877)---

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Dispute between parties
over legacy of deceased as his legal heirs---Effect---Limitation would not run against plaintiff
for being co-sharer and heir of common predecessor.

Mst. Suban v. Allah Ditta and others 2007 SCMR 635 rel.

Sher Muhammad Khan for Petitioners.

M. Arshad Yousafzai and Shamsher Ali Khan for Respondents.

Date of hearing: 7th May, 2013.

JUDGMENT

MUHAMMAD DAUD KHAN, J.---This revision is directed against the judgment and
decree 8-5-2004 of the Additional District Judge/Izafi Zilla Qazi-IX, Swat vide which he
dismissed the appeal of the petitioner/plaintiff and maintained the judgment and decree of the
Civil Judge-IV/Illaqa Qazi, Swat dated 6-1-2003, whereby the suit of petitioner/plaintiff was
dismissed.

2. Brief and necessary facts arising out of the instant revision petition are that petitioner
Musafir and predecessor-in-interest of respondents Nos.1 to 12, namely Sultan Muhammad
Khan, respondent No.13 Muhammad Ali Khan and predecessor-in-interest of respondents
Nos.14 to 22, namely Zia-ud-Din Khan are brothers inter se, however, present petitioner
Musafir was born from the womb of first wife and rest of other three brothers were born from
the second wife of their father Babhoo, who was owner of landed property in Mauza Chinkolai,
Tehsil Khwazakhela, District Swat.

3. The petitioner allegedly remained out of his native village during first settlement of
lands and the respondents took advantage of his absence and entered the entire ancestral land in
their name to the exclusion of petitioner, which promoted him to file a declaratory suit under
paragraph 4 of Regulation II of 1975, in the Court of Deputy Commissioner, Swat, constituted
under PATA Civil Procedure (Special Provisions) Regulation, 1977 (hereinafter called PATA
Regulation).

4. There was proviso in Section 4 of the PATA Regulation when any party to a case
required to adjudicate upon any dispute, he had to file an application in writing to the Deputy
Commissioner, for adjudication or settlement of such case and the Deputy Commissioner have
to constitute a Jirga in accordance with the provision of Section 5 by order in writing and had to
refer the dispute to the Jirga for giving its opinion on such matter on issues as may be specified
in the order after recording of evidence of both the parties.

5. There was another proviso in Section 4 of the PATA Regulation, under which if a case
was barred by time under any Riwaj, custom or usage notwithstanding anything contained in the
Limitation Act, 1908 shall not have been referred to the Jirga '

6. The respondents submitted their written statement in the above case and took a plea that
their father in his lifetime had effected partition among the four sons on 22-7-1939 and
subsequently, on 17-9-1945 against which the plaintiff had once approached the Martial Law
Authorities who referred the matter to Mohkama Qaza and wherefrom the petitioner withdrew
his application with the assurance that in future he will not re-agitate the matter further.

7. The suit filed by petitioner was dismissed by the Deputy Commissioner vide order dated
14-9-1985, declared it barred by time and appeal of the petitioner was also dismissed by
Commissioner, Malakand Division vide order dated 4-6-1987 and by Additional Secretary
Home, vide order dated 20-11-1990.

8. All the Courts under PATA Regulation dismissed the suit of petitioner on accepting the
plea of defendants/respondents which they had taken in their written statement that their father
in his lifetime had effected partition among the four sons.

9. All the aforementioned orders were Assailed before this Court through Writ Petition
No.573 of 1990, which was accepted on 5-5-1991 by declaring all the orders of the forums
constituted under PATA Regulation as illegal, without lawful authority and of no legal effect
and the case was remanded back to the Deputy Commissioner, Swat for referring the dispute to
Jirga under the provision of Section 4 of the Regulation, ibid.

10. As the case was sent back to the Deputy Commissioner for adjudication but during that
period on the death of one defendant, namely Zaidullah Khan, his legal heirs were impleaded in
the panel of defendants, wherein some of the defendants were minors. Under Paragraph No.3 of
the PATA Regulation, cases in which the interested of minors or a person of unsound mind was
involved, could not be adjudicated under that regulation, therefore, the suit was returned and
petitioner instituted another suit in continuation of his earlier round of litigation and similarly
defendants also took the same defence which was taken in the earlier written statement and
upon which this Court had given its observation. On divergence of pleadings, the learned trial
Court framed following issues:--

(1) Whether the plaintiff has got cause of action?

(2) Whether the suit is incompetent in its present form?

(3) Whether the plaintiff is estopped?

(4) Whether the Court has got jurisdiction?

(5) Whether the suit is res judicata?

(6) Whether the suit is bad for non-joinder/mis-joinder of necessary/ unnecessary parties?

(7) Whether the suit has been properly valued for the purposes of Court fee?

(8) Whether the defendants have matured their title to the suit land through adverse
possession?

(9) Whether the suit is mala fide?

(10) Whether the defendants have made improvement over the suit land if so up to what
extent and its effects?

(11) Whether the plaintiff is entitled to the decree as prayed for?

(12) Relief?

11. The parties submitted their lists of witnesses and produced their evidence as they
wished. After hearing the arguments of the counsel for parties, the learned trial Court dismissed
the suit of the plaintiff vide judgment and decree dated 6-1-2003. The present petitioner
preferred an appeal before District Judge, who entrusted the same to Additional District
Judge/Izafi Zilla Qazi-IV, Swat, who dismissed the appeal on 8-5-2004. Hence, the instant
revision petition.

12. Mr. Sher Muhammad Khan, the learned counsel for the petiti oner contended that the
learned trial Court did not follow the findings of Peshawar High Court with regard to alleged
partition deeds dated 22-7-1939 and 7-9-1945, which was declared as forged one. He also
contended that since the respondents are beneficiaries of partition deeds, therefore, legally
burden lies on them to have proved the veracity of same.

13. Messrs (sic) Muhammad Arshad Yousafzai, learned counsel for the respondents
contended that the suit is badly time-barred as the partition between the parties had taken place
in 1939 and 1945, whereas the suit was instituted after more than four decades. He also
contended that the defendants have exclusive possession over the suit property, which manifests
reasons of the plaintiff. Moreover, the defendants are owners on the basis of adverse possession.
He contended that plaintiff/petitioner had submitted an application before Martial Law, who
sent the case to Qaza Department, Saidu Sharif, which the plaintiff voluntarily withdrawn and
the suit was dismissed on 21-11-1981, therefore, the plaintiff had no right to institute the latter
suit under the law. The counsel for the respondent supported both the concurrent judgment and
decree.

14. In support of petitioner's contention, Abdul Majid son and attorney of the petitioner
recorded his statement as P.W.1 and also examined Amir Sawab in his support. Respondents
produced Muhammad Zubair Patwari Halqa as DW-1. Muhammad Sherin, Reader Tehsildar
Khwaza Khela as DW-2, Akbar Ali I/C District Record Room as DW-3, Muhammad Ali Khan
respondent recorded his statement as DW-4, Abdul Haleem as DW-5, Shah Jehan DW-6 and
Syed Sarwar Ali Patwari Halqa as DW-7.

15. Perusal of impugned judgments would reveal that both the Courts below have not
followed the observations of this Court with regard to deeds dated 22-7-1939, 17-9-1945 and
the verdict of `Mohkama Qaza' which was declared by this Court contradictory and forged one,
therefore, all the orders of the PATA Courts were set aside and directions were given to refer
the matter to the Jirga. Had this Court relied upon the documents produced by respondents then
there was no reason to refer the matter to Jirga, because on the basis of these documents the suit
of petitioner would have been declared as barred by time.

16. In such like cases, the burden always lies on the beneficiaries of the deeds because there
is no dispute that parties are the legal heirs of one Bahoo and the property in dispute was his
legacy. The stance of the respondents that it was gifted in lifetime by their father to them was to
be proved by them, but both the learned Courts below placed burden of proof on the shoulders
of petitioner and committed gross illegality. Reliance can be placed on 2005 SCMR 135, 2000
SCMR 346 and 2011 YLR 2726. Both the Courts also illegally appreciated the plea of
respondents wherein it was pleaded that their father was under debt of some persons and that
amount was paid by respondents. In the entire evidence, there is no mention of the fact that how
much amount was owed by their father and to whom and when it was paid. By not proving the
said fact, the entire defence plea becomes baseless. Moreover, there are numerous corrections,
cuttings and alterations in the deeds exhibited by respondents which has not been explained by
them. The revenue record by itself is not conclusive proof of title, the petitioner has challenged
the same at the earliest time, therefore, no authenticity could be attached to the wrong entries of
the settlement.

17. The record further transpired that admittedly, parties have derived their rights from the
common ancestor, namely Bahoo, therefore, the petitioner being common ancestor is entitled to
1/4th share in the legacy of Bahoo, but the Courts below have not attended to this aspect of the
case and illegally decided issue No. 1. Moreover, the conclusion of Courts below to declare the
suit time-barred is not legally tenable for the reason that being a co-sharer and heir of common
predecessor, the time will not run against plaintiff for the purpose of limitation. Reliance can be
placed on 2007 SCMR 635 "Mst. Suban v. Allah Ditta and others" Furthermore, the documents
Exh.DW 3/1, 4/1 and 4/2 have not been proved in accordance with law, as there are many
corrections, cuttings and alterations in the deeds exhibited by respondents which has not been
explained by respondents, but the Courts below have wrongly relied on the aforesaid
documents, so the impugned findings are not legally tenable in the eyes of law because the
Courts below have committed misreading and-non-reading of material evidence resulting in
erroneous conclusions. Thus, both the Courts below have failed to exercise their jurisdiction
vested in them by law.

For the foregoing reasons, this revision petition is allowed, impugned judgments/orders
and decrees are hereby set aside and resultantly, suit of petitioner/plaintiff is hereby decreed as
prayed for. No order as to costs.

SAK/520/P Revision accepted.



2013 M L D 913

[Supreme Court (AJ&K)]

Before Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

NAZAR KHAN---Appellant

Versus

Mst. HASSAN BEGUM and another---Respondents

Civil Appeal No.74 of 2009, decided on 10th October, 2012.

(On appeal from the judgment and decree of the High Court dated 30-4-2009 in Civil
Appeal No.82 of 2007).

(a) Words and phrases---

---"Sale"---Meaning.

The Concise Oxford Dictionary Eight Edition, Edited by R.E. Allen; Black's Law
Dictionary Sixth Edition; Electric Supply Corporation Ltd. v. Commissioner of Income Tax AIR
1951 Cal. 151; Tatoba Ganu v. Tarabai AIR 1957 Bom. 280; Mst. Wajida Begum and others v.
Mst. Shamim Akhtar and others 2004 CLC 231; Ali Muhammad and others v. Chief Settlement
and Rehabilitation Commissioner and others 1984 SCMR 94; Saleem Akhtar v. Ronak Ali PLD
2000 Lah. 385 and Muhammad v. Allah Ditta 1990 CLC 765 ref.

(b) Words and phrases---

----"Gift---Meanings.

The Concise Oxford Dictionary Eight Edition, Edited by R.E. Allen; Black's Law
Dictionary Sixth Edition; A Code of Muslim Personal Law" by Dr. Tanzil-ur-Rhaman (First
Edition) and Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 ref.

(c) Transfer of Property Act (IV of 1882)---

----Ss.54 & 122---"Sale" and "gift"---Distinction.

Main difference between "sale" and "gift" is that in a case of sale, the consideration and
exchange of money is an essential element and condition precedent, whereas in the case of the
"gift", there is no such condition precedent. The only condition precedent to a valid "gift" is the
transfer of possession, however, the mode and manner of delivery of possession is dependent
upon the nature and character of a property keeping in view the overall circumstances of each
case.

Muhammad Sadiq and 2 others v. Barkat Ali and 4 others 1990 CLC 533; Muhammad
Hussain and others v. Miran Bakhsh and others 1989 SCMR 1064; Ghulam Muhammad and
another v. Muhammad Ashraf and 2 others PLD 1981 SC (AJ&K) 118; Muhammad Bashir v.
Mirza and others 1987 SCMR 1277; Talib Hussain v. Muhammad Boota and others in (Civil
Appeal No.40 of 2006 decided on 28-5-2012) and D.F. Mulla's Principles of Muhammadan Law,
Chap. XI, Section 138 ref.

A Code of Muslim Personal Law" by Dr. Tanzil-ur-Rahman (First Edition); Electric
Supply Corporation Ltd. v. Commissioner of Income Tax AIR 1951 Cal. 151; Tatoba Ganu v.
Tarabai AIR 1957 Bom. 280; Mst. Wajida Begum and others v. Mst. Shamim Akhtar and others
2004 CLC 231; Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner
and others 1984 SCMR 94; Saleem Akhtar v. Ronak Ali PLD 2000 Lah. 385; Mst. Manzoor Mai
v. Abdul Aziz 1992 CLC 235 and Muhammad v. Allah Ditta 1990 CLC 765 rel.

(d) Administration of justice---

----Plaintiff must stand on his own legs and have to advance cogent evidence to prove his case.

(e) Qanun-e-Shahadat (10 of 1984)---

----Art.71---Hearsay evidence---Not admissible.

(f) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)----

----S.4---Qanun-e-Shahadat (10 of 1984), Art. 118---Pre-emption suit---Gift deed in favour of
vendee alleged by pre-emtpor to be in fact sale---Burden of proof---Plaintiff would be bound to
prove such plea/fact---Principles.

When the case of plaintiff is that the document i.e. gift deed was in fact a sale, therefore,
the onus of proof lies upon the shoulders of the plaintiff to prove that in fact the gift deed was a
sale deed.

In pre-emption case, the plaintiff must prove affirmatively with cogent evidence that the
transaction which he wants to pre-empt is a sale and he has a preferential right over the vendee.
In absence of any cogent and convincing evidence, the inference cannot be drawn merely on the
ground that a person in whose favour the gift deed was executed was enjoying good financial
position and the person who has executed the same was only a green-grocer. The gift deed
cannot be declared as sale deed merely on the assertion that the transaction garbed in the form of
gift deed is infact a sale deed.

To prove a transaction as sale, the pre-requisite condition is a consideration/exchange of
money and without fulfilling the said condition, a document cannot be declared as a deed of sale.

Rati Ram and others v. Mam Chand and others AIR 1959 Punjab 117 rel.

While alienating/transferring the property by way of gift, there is no restriction upon the
donor, who has un-fettered power to gift away property without any consideration. [p. 930] M

(g) Civil Procedure Code (V of 1908)---

----S. 100---Second appeal---Concurrent findings of fact by courts below---Interference into such
findings by High Court---Scope---High Court normally would not interfere into such findings in
absence of mis-reading or non-reading of evidence available on record---Party alleging such
misreading would be bound to point out same.

Muhammad Riaz v. Muhammad Riyasat and 8 others 2008 SCR 308; Pir Muhammad
Younas Shah and 10 others v. Abdullah and 2 others 1992 CLC 15 and Mst. Manzoor Mai v.
Abdul Aziz 1992 CLC 235 rel.

(h) Civil Procedure Code (V of 1908)---

----O.VII, R. 1(g)---Relief beyond pleadings---Not grantable.

Misri and 2 others v. Muhammad Sharif and 49 others 1996 MLD 362 and Abdul Malik
and others v. Muhamamd Latif and others 1993 SCR 335 rel.

(i) Islamic Law---

----Gift---Donor's power---Scope---Donor has unfettered power to gift away his property without
any consideration.

Abdul Majeed Mallick for Appellant.

Ch. Muhammad Taj for Respondents.

Date of hearing: 20th February, 2012.

JUDGMENT

RAJA SAEED AKRAM KHAN, J.---This appeal, with the leave of the Court arises out
of the judgment and decree passed by the High Court on 30-4-2009, whereby while accepting the
appeal filed by the respondents, herein, the judgments and decrees recorded by the Courts below
have been set aside and the suit is dismissed.

2. The gist of the facts culminating into this appeal is that the appellant, herein, filed a suit
for pre-emption against respondent No.1, Mst. Hassan Jan, in respect of the suit land before the
Civil Judge, Sehnsa. It was averred by the plaintiff-appellant that the gift-deed by Muhammad
Younas Khan, respondent No 2 in favour of Mst. Hassan Jan, respondent No. 1, executed on 30-
11-2005 was, in fact, a transaction of sale, which was manoeuvred just to defeat the right of pre-
emption of the plaintiff-appellant. The suit was debreed by the trial Court on 12-4-2007. Being
dissatisfied from the judgment and decree of the trial court, respondent No.1 filed an appeal
before the Additional District Judge, Sehnsa, which was dismissed on 4-9-2007. The judgment
and decree passed by the Additional District Judge were assailed before the High Court through
second appeal. The High Court accepted the appeal vide impugned judgment dated 30-4-2009
which is the subject-matter of this appeal,

3. Mr. Abdul Majeed Mallick, the learned counsel for the appellant, submitted that both
the Courts below have concurrently held that the transaction was in fact a sale which was
camouflaged and disguised just to defeat the right of the pre-emption of the plaintiff-appellant,
therefore, the High Court was not justified to disturb the findings concurrently recorded by the
Courts below as there was no misreading or non-reading of evidence. He argued that the learned
Judge in the High Court has not appreciated the evidence on the record in its true perspective and
erroneously dismissed the suit filed by the plaintiff-appellant. The High Court erred in law while
not taking into consideration the fact that the property was initially acquired by respondent No.2
by virtue of a decree for possession on the basis of right of pre-emption passed by the Court of
Sub-Judge, Sehnsa, on 4-3-1997 against the decretal amount of Rs.6,00,000 as price of the land.
He contended that with no stretch of imagination one can assume that the property which was
acquired on payment of 6 lac rupees was donated to respondent No.1 without any consideration.
He argued that there is un-rebutted evidence on the record that respondent No.1 is a rich lady of
advanced age. Her sons are settled in United Kingdom and she is enjoying high status in the
society, therefore, it is unbelievable that the property was transferred to her in donation. He
forcefully relied upon the statement of Muhammad Younas Khan, respondent No.2, which is
available at page 30 of the paper book, wherein he has admitted that, he is a green grocer. It is
unbelievable that such like ordinary person, whose only source of income is based on a vegetable
shop, can donate the land without any consideration. This fact has totally been ignored by the
High Court while passing the impugned judgment which is not sustainable in the eye of law. He
further argued that the High Court also failed to examine that the transaction in question was
made and executed through the father of respondent No.2. Respondent No.2 expressly deposed
that the transaction was made by his father and he executed the deed under the direction and
influence of his father without knowing as to what price was passed on by the attorney of
respondent No.1 to the father of respondent No.2. The High Court failed to evaluate the evidence
of the parties in a judicious manner. Both the Courts below have examined the evidence led by
both the parties minutely and rightly came to the conclusion that transaction was in fact a sale
and not a gift. The learned counsel further argued that the High Court also erroneously decided
the nature of the transaction as a gift without taking into consideration the fact that the necessary
conditions pre-requisite to the gift were not fulfilled, therefore, the document cannot be treated as
a valid gift. He argued that section 4 of the Right of Prior Purchase Act, is a safeguard against
the fraudulent transaction of the transfer of the property. He lastly argued that the appellant is
ready to make the payment according to the value determined by this Court. He has relied upon
the cases titled Muhammad Sadiq and 2 others v. Barkat Ali and 4 others (1990 CLC 533),
Muhammad Hussain and others v. Miran Bakhsh and others (1989 SCMR 1064) Ghulam
Muhammad and another v. Muhammad Ashraf and 2 others (PLD 1981 SC (AJ&K) 118) and
Muhammad Bashir v. Mirza and others (1987 SCMR 1277). The learned counsel for the
appellant has also relied upon an unreported judgment of this Court titled Talib Hussain v.
Muhammad Boota and others in (Civil Appeal No.40 of 2006 decided on 28-5-2012) by filing an
application dated 19-6-2012.

In the case titled Muhammad Sadiq and 2 others v. Barkat Ali and 4 others (1990 CLC
533), referred to by the learned counsel for the appellant, it has been held that where the Court
has to give the decision about the nature of transaction, whether it was a gift or a sale, its
decision depends upon scrutiny of evidence led by the parties. We respectfully agree with the
proposition laid down in the supra case but it is not helpful to the case of the appellant as in the
evidence, the plaintiff-appellant failed to prove his case.

In the case titled Muhammad Hussain and others v. Miran Bakhsh and others (1989
SCMR 1064), relied upon by the learned counsel for the appellant, it has been held that the donor
in no way was connected with the donee as he had a large family of his own to support and was
owner of very small holding. In the case in hand, nothing has been brought on the record that the
donor is a poor person and he has no other holding or estate. The donor himself appeared in the
Court and categorically stated that he runs the business of shoes, clothes, green grocery etc.

In the case titled Muhammad Bashir v. Mirza and others (1987 SCMR 1277), the donor
as well as donee belonged to different villages and tehsils, therefore, it was held that the
transactions were given the colour of gift on the ground that the donee was adopted by the donor.
In the instant case, the donor has gifted the property to his real aunt.

In a case titled Ghulam Muhammad and another v. Muhammad Ashraf and 2 others (PLD
1981 SC (AJ&K) 118), a mortgage deed was executed in which it was mentioned that if the land
is not redeemed, the ownership will vest in the mortgagee. For this reason, the Court came to the
conclusion that at the time of execution of mortgage the intention of the parties was to transfer
permanently the interests in the land.

4. On the other hand, Ch. Muhammad Taj, counsel for the respondents while controverting
the arguments advanced by the learned counsel for the appellant has submitted that the judgment
passed by the High Court is perfect and legal which cannot be interfered with by this Court. He
argued that the transaction does not fall within the purview of sale-deed which has been defined
under section 54 of the Transfer of Property Act as no evidence for exchange of the money is
available on the record and any transaction without any consideration cannot be treated as sale-
deed. He argued that admittedly no exchange of money has been made in this regard, therefore, it
was a valid gift-deed which cannot be treated as sale-deed only on the ground that the donor was
a green grocer. He further argued that Mst. Hassan Begum, respondent No.1 is real aunt of
Muhammad Yunus Khan, respondent No.2. No evidence whatsoever was brought on the record
that the transaction was a sale-deed and not a gift-deed; therefore, in absence of any evidence,
the findings of both the Courts below were illegal and rightly set aside by the High Court. The
evidence produced by the plaintiff-appellant through Muhammad Sadiq, Tabraiz Khan and
Gulfraz Khan, the attorney, is only a hearsay evidence, therefore the High Court has rightly
disbelieved the said evidence. The onus of proof was rightly placed on the shoulders of the
plaintiff-appellant who failed to discharge the same. He argued that the property gifted away in
favour of respondent No.1 is not open to pre-empt. He argued that in the plaint, the plaintiff-
appellant has not claimed that the gift be declared as sale, therefore no relief can be granted
beyond the pleadings. He lastly argued that nothing is mentioned anywhere in the plaint whether
the transaction was a sale or a gift as no description of the land has been made/mentioned in the
plaint which was the requirement of the plaint and the same was liable to be dismissed on this
sole ground.

5. We have heard the respective contentions of the learned counsel for the parties and
perused the record along with the impugned judgment and precedents referred to and relied by
both the learned counsel for the parties. The main controversy involved in this case is whether
document through which the transfer of disputed laid was made is in fact, a sale or a gift. To
resolve the controversy, we have to examine the provisions of section 4 of the Azad Jammu and
Kashmir Right of Prior Purchase Act, 1993 BK which speaks as under:--

"Right of Prior Purchase; Application of.---The right of prior purchase shall mean the
right of a person to acquire agricultural land or village immovable property in preference to
other persons and it arises in respect of such land only in case of sales; or of foreclosures of the
right to redeem such property.

Nothing in this section shall prevent a Court from holding that an alienation purporting to
be other than a sale is in effect a sale."

The bare reading of the above reproduced section of the Right of Prior Purchase Act reveals that
the court is empowered to declare an alienation/transaction purporting to be other than a sale as
in effect a sale. To draw an inference whether in the instant case, the transaction is in fact a 'sale'
or not, we have to examine the necessary ingredients prerequisite to 'sale' or 'gift'. For this
purpose, we have to keep in our mind the meaning of the words 'sale and 'gift'. The word `sale'
has been defined in section 54 of the Transfer of Property Act which reads as under:--

"54. 'Sale defined.' 'Sale' is a transfer of ownership in exchange for a price paid or
promised or part paid, part-promised."

The word 'gift' has been defined in D.F. Mulla's Principles of Muhammadan Law in
Chapter XI, under section 138 in the following terms:--

"138. Hiba or gift.---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.

Hiba means transfer of right of property in substance by one person to another without
consideration which is condition to be fulfilled in order to make a gift valid."

For better understanding, we have also to consult the dictionary meanings of the above
terms. In this regard, we have consulted different dictionaries. In the Concise Oxford Dictionary
eighth edition, edited by R.E. Allen, the meanings of words 'sale' and 'gift' have been given as
under:--

"Sale.1. the exchange of a commodity for money etc; an act or instance of selling. 2. the
amount of sale (the sales were enormous). 3. the rapid disposal of goods at reduced prices for a
period esp at the end of a season etc. 4. a. an event at which goods are sold b. a public auction."

Gift. 1. a thing given; a present. 2. a natural ability or talent. 3. The power to give (in his
gift), 4. The act or an instance of giving."

The meanings of the words 'sale' and 'gift' in Black's Law Dictionary sixth edition have
been given as under:--

"Sale. A contract between two parties, called, respectively, the "seller" (or vendor) and
the "buyer" (or purchaser), by which the former, in consideration of the payment or promise of
payment of a certain price in money, transfers to the latter the title and the possession of
property. Transfer of property as providing of services for consideration. A transfer of property
for a fixed price in money or its equivalent."

"Gift. A voluntary transfer of property to another made gratuitously and without
consideration."

In Chapter XXVI, under section 183 of the book "A Code of Muslim Personal Law" by
Dr. Tanzil-ur-Rahman (First Edition) the word 'gift' has been defined as under:--

"183. Transfer of movable or immovable property with immediate effect and without
consideration by one person in favour of another and the acceptance of the same by that another
himself or by someone authorised on his behalf is called 'gift', provided that one making the gift
must totally renounce, all his title and rights in the property gifted away of his independent free
will."

Both these terms have been further elabotated by the superior judiciary of India, Pakistan
as well as AJ&K in various judgments; some of which are referred hereunder. From Indian
jurisdiction, in a case titled Electric Supply Corporation Ltd. v. Commissioner of Income Tax
(AIR 1951 Cal. 151) the words sale' and 'gift' have been interpreted as under:--

"15. The word 'sale' is not defined in the Income-Tax Act and therefore it must be given
its ordinary grammatical meaning. According to the Oxford Dictionary 'sale means `an act of
selling or making over to another for a price.' It has also been defined as an exchange of a thing
for a price. Making over anything for a price or exchanging it for a price suggests that the act is
voluntary. The ordinary conception of 'sale' is that something is handed over for a price as the
result of negotiation and agreement. There is an agreement between the parties whereby one
person known as the seller hands over a thing or property to the other person known as the buyer
for a consideration usually in terms of money which has been agreed between the parties. That is
the ordinary. English conception of a `sale'."

In another case reported as Tatoba Ganu v. Tarabai (AIR 1957 Bombay 280) distinctions
have been drawn between 'sale' and 'gift' in the following manner:--

"Mr. Paranjpe argues that an alienation by way of gift may be treated upon the
same footing. He says, applying the analogy, that the deed of gift is voidable at the option of the
other coparceners and if the other coparceners affirm it, there is no reason why the deed of gift is
not valid. It may, however, be pointed out that in this case it is not suggested that the other
coparceners i.e., Paygonda alias Kakasaheb and Anagonda have at any time affirmed the deed of
gift. Therefore, the position is that the deed of gift was executed by Balgonda as a managing
member of the family and there has been in this case no ratification of the deed of gift either by
Paygonda or by Anagonda. Mr. Paranjpe does not dispute the fact that Balgonda as a manager
would have no power to make a valid gift in respect of this property. From what I have stated
above, it follows, I think, that if the deed of gift by a coparcener in a joint family is invalid, then
there is no reason why a deed of gift executed by a managing member should be valid, unless it
comes within the exceptions which 1 have mentioned above. If a coparcener cannot make a valid
deed of gift, much more so would be the disability in the case of a managing member, because
the power of a managing member is derived from the peculiar position which he holds in the
family and which he represents in his relations towards the rest of the world. But Mr. Paranjpe's
argument is that in the case of a sale, even if the sale is in excess of the powers of the manager
and even, if the sale is without legal necessity, it is open to the other members of the family to
affirm the sale. If, therefore, the other members of the family can affirm the sale, there is no
reason why the other members of the family cannot, equally, affirm the deed of gift. But in our
view, there is an essential difference between the case of a deed of sale and a deed of gift. In the
case of a deed of sale, the sale is good only for consideration. In the case of a gift there is no
consideration proceedings from the donee to the donor except, what one may call, natural love
and affection as constituting the consideration for the transaction, and as I have already pointed
out, in the case of family property there is community of interest and unity of possession. Every
member of the family is the owner of the whole property until the property is made the subject of
partition between the members of the family and that is the reason why the law has made an
alienation of the family property a valid alienation where the alienation is supported by
consideration. Apart from authority, therefore, and relying upon the texts mentioned above, we
have come to the conclusion that the deed of gift executed by Balgonda in favour of the firs
plaintiff is invalid, and does not confer any title upon the firs plaintiff."

From Pakistan jurisdiction, in a case titled Mst. Wajida Begum and others v. Mst.
Shamim Akhtar and others (2004 CLC 231), the word 'sale' has been interpreted as under:--

"It is necessary that some price in cash must be paid for the thing sold. The word "sale" is
defined in M. Malik v. Mst. Razia PLD 1988 Lah., 45 in the following terms:--

`Sale' means transfer of ownership in exchange for a price paid or promised or part paid
and part promised where sale was made orally and reported to Patwari by parties thereto who had
admitted payment of the consideration and delivery of possession on the basis whereof mutation
was entered. Sale would be effected and completed on that day and not when mutation in respect
thereof, was sanctioned."

In a case Ali Muhammad and others Chief Settlement and Rehabilitation Commissioner
and others (1984 SCMR 94) the word "sale was interpreted in para.9 of the judgment in
the following terms:--

"9. Regarding the argument---non-registration of the sale transaction between Hardial
Singh and the Punjab Government, it may be mentioned that the Transfer of Property Act does
not apply to the rural areas of the Punjab and the principles of justice, equity and good
conscience would not be attracted to technical rules as the entries in the revenue record do not
support the case of the appellants. The land declared as evacuee would not be treated as State
land. The land in dispute was trusted evacuee from 1947 to 1953 as is established from the
revenue record. Therefore, it was not open now to the revenue authority to treat it as non-evacuee
without obtaining requisite declaration from the Custodian Authorities which has not been done
in the present case. "

Similarly in para 10 of the referred judgment, it has been observed as under:--

"10. Sale is defined in the Transfer of Property Act as being a transfer of ownership for price in a
sale, there is an absolute transfer of all rights in the property sold. No rights are left in the
transferor. Somewhat similar point came up before the learned Judges of the Lahore High Court
in a case reported in PLD 1956 Lah. 94 wherein a declaration was sought to the effect that a
certain gift of land made by a widow, who had acquired the land by purchase of proprietary
rights under the provisions of the Colonization of Government Lands (Punjab) Act V of 1912,
was null and void under custom, the question was whether the widow had acquired proprietary
rights in land before or after the commencement of Colonization of Government Lands (Punjab)
(Amendment) Act, 1944. It was held that if she had acquired such rights before the
commencement of that Act, she became absolute owner of the land and the suit was incompetent
but if she acquired such rights after the commencement of that Act, her interest in land was
governed by section 30-A of the Colonization of Government Lands (Punjab) Act, V of 1912. In
the circumstances of this case it was held that the widow became full owner of the tenancy lands
in possession on the date when she deposited, and the Government accepted the sale price."

Similarly in a case titled Saleem Akhtar v. Ronak Ali PLD 2000 Lah. 385 the sale was
defined in the following terms:--

"11. It is an oral sale and to prove a sale the respondent should have produced the
witnesses in whose presence the bargain of the sale was struck and the consideration paid to the
petitioner. The sale has been defined in section 54 of the Transfer of Property Act, 1882:- 'Sale'
is transfer of ownership in exchange for a price paid or promised or part paid and part-promised.
The essential elements of a sale are:--

(1) the parties:

(2) the subject matter:

(3) the transfer of conveyance:

(4) the price or consideration.

The parties of the sale are the seller and the buyer. The seller must be a person competent
to transfer and he must be competent to contract and he must have titled to the property or
authority to transfer it if it is not his own."

Similarly in a case titled Mst. Manzoor Mai v. Abdul Aziz (1992 CLC 235) in which the
Court has interpreted the word 'gift' in the following manner:--

".Admittedly the three essentials of a valid gift under the Muslim Law, are (i)
declaration of gift by the donor, (ii) an express or implied acceptance of gift by donee; and (iii)
seisin/delivery of possession of donated property by the donor to the donee. These elements are
necessary for a gift. The possession is a condition precedent to the validity of gift. The Holy
Prophet (peace be upon him) said A gift is not valid unless possessed' (Ref: Inayah, Vol. IV,
page 24). The law, however, requires that the possession is to be given to the donee as nature of
the property permits. The mode and manner of delivery of possession is dependent upon the
nature and character of a property and the question has to be considered by taking into
consideration all the facts and circumstances of each case. ...... .....

We are also fortified by the judgment titled Muhammad v. Allah Ditta (1990 CLC 765);
it has been held as under:--

"13. Section 54 of the Transfer of Property Act defines the term "sale" and the requisite
conditions constituting a valid sale, "Sale" is described as transfer of ownership in exchange of
price paid or promised or part paid and part promised. It is made in respect of tangible
immovable property of the value of rupees one hundred and upwards, by a registered instrument
and in case of immovable property of the value of less than rupees one hundred, by a registered
sale-deed or by delivery of possession. Delivery of immovable property takes place where the
seller places the buyer or his agent in possession of the property. The Transfer of Property Act
occupies the field in Azad Kashmir. Thus, a legal sale takes effect on fulfilment of the aforesaid
conditions."

6. After going through the above cited section 4 of the Right of Prior Purchase Act and
meanings of words 'sale' and 'gift' given in different dictionaries, statues and celebrated
judgments of the superior judiciary one thing is clear in our mind that main difference between
'sale' and 'gift' is that; in a case of sale, the consideration and exchange of money is an essential
element and condition precedent whereas in the case of the `gift' there is no such condition
precedent. The only condition precedent to a valid 'gift' is the transfer of possession, however,
the mode and manner of delivery of possession is dependent upon the nature and character of a
property keeping in view the overall circumstances of each case.

7. Now coming towards the case of the appellant that what sort of evidence he has produced
before the trial Court to prove his assertions that the document through which the property in
dispute was transferred was in fact a 'sale-deed' and not a 'gift-deed' and it was a device
manoeuvred only to defeat the right of pre-emption available to the plaintiff-appellant. After
going through the record, we observed that in support of the, case, the plaintiff-appellant
produced three witnesses, namely, Muhammad Sadiq, Tabraiz Khan and Gulfraz Khan; the
attorney. We have scrutinized the evidence of all the three witnesses. We would like to
reproduce the relevant portion of the statements of the witnesses examined by the plaintiff-
appellant during the trial of the suit.

Muhammad Sadiq, witness stated as under:--

Tabraiz Khan, witness stated as under:--

Gulfraz Khan, witness stated as under:--

After going through the statements of the witnesses, we have gathered the view that none
of the witnesses has stated categorically that he was present at the time of execution of gift-deed
and money exchanged the hands in his presence. All the three witnesses are consistent on the
point that they have heard about the sale but they failed to state in a categorical manner, as how
much amount has actually been exchanged.

8. The learned counsel for the appellant has heavily relied upon the statement of
Muhammad Younas (donor) who stated while appearing in the Court that he is a green grocer
and there is no other source of his income except it. He stated as under:--


We have also considered the statement of Muhammad Younas, respondent No.2, who stated that
he is running the business of fruits, lunda, shoes and clothes and there is no other source of
income for him. The argument of the learned counsel for the plaintiff-appellant that respondent
No.2 is running the business of green grocery, therefore, being a poor person he could not gift
his property; is devoid of any force. Here we may observe that Muhammad Younus, donor, in his
statement has stated that apart from green grocery, he also runs the business of shoes, clothes and
'lunda' items. The argument of the learned counsel to this extent is not tenable that such a person
cannot transfer the land without any consideration. Furthermore, the contention of the learned
counsel for the plaintiff-appellant that Mst. Hassan Begum is a lady of sound financial position,
therefore, she cannot get the property free of cost, is also devoid of any force as all the arguments
advanced by the learned counsel are based on presumptions. The main reliance has been placed
on the evidence of the other party whereas it is celebrated principle of law that plaintiff must
stand on his own legs and specifically has to advance some cogent evidence to prove his case.
The trial Court passed the decree while relying on the statements of Muhammad Sadiq, Tabraiz
Khan and Gulfraz Khan. In our estimation the trial Court as well as the first appellant Court
failed to evaluate the statements of the aforesaid witnesses in true perspective. A perusal of the
above said statements reveals that it is only a hearsay evidence which is not admissible. So far as
the statement of Muhammad Younus is concerned, the plaintiff-appellant cannot get the benefit
of any lapses made on the part of the defendant. The case of the plaintiff-appellant is that the
document, i.e., gift-deed was in fact a sale, therefore, the onus of proof lies upon the shoulders of
the plaintiff-appellant to prove that in fact the gift-deed was a sale-deed. The plaintiff-appellant
failed to discharge the onus of poof. Even otherwise in the instant case there was no convincing
evidence on the basis of which it could be said that the transaction of gift was in fact a sale.
There is also no cogent and convincing evidence on behalf of the plaintiff-appellant on the basis
of which it could be said that the transaction was a sale and not a gift, therefore, the subordinate
Courts have wrongly held that it was a sale. Without adducing the cogent evidence, merely on
the assertion of plaintiff-appellant, it could not be said that the transaction was not a gift but a
sale.

9. We may observe that in pre-emption cases the plaintiff must prove affirmatively with
cogent evidence that the transaction which he wants to pre-empt is a sale and he has a
preferential right over the vendee. In absence of any cogent and convincing evidence, the
inference cannot be drawn merely on the ground that a person in whose favour the gift-deed was
executed was enjoying good financial position and the person who has executed the same was
only a green grocer. The gift-deed cannot be declared as sale-deed merely on the assertion that
the transaction garbed in the form of gift-deed is in fact a sale-deed. In this regard reliance can be
placed on a case titled Rati Ram and others v. Mam Chand and others (AIR 1959 Punjab 117),
wherein it has been held as under:--

"5 It is well established that right of pre-emption is a piratical right and it imposes a
restriction on the right of the owner to transfer his property to whomsoever he likes. This right
operates as a clog on the right of the owner to alienate his property to a person of his own choice:
it has therefore, to be strictly construed. The plaintiff in a pre-emption suit, who is an aggressor,
must in my opinion, prove affirmatively that the transaction which he wants to pre-empt is a sale
and that he has a preferential right over the vendees; in case there exists a doubt about the
transaction in question being a sale the plaintiff must fail.

The policy underlying the law of pre-emption is to keep out strangers and thus to
maintain the privacy and compactness of joint owners. In the present changed condition of our
society, this trend is likely to obstruct and retard instead of promoting, the economic and social
progress of the community. In this view of the matter if the transaction in dispute is capable of
two interpretations the Courts should, in my opinion, be disinclined to hold it to be a sale so as to
force the owner of the property to transfer it to a person who is not of his choice."

10. While adverting to the argument of the learned counsel for the plaintiff-appellant that
concurrent findings cannot be interfered with in second appeal, we agree with the argument of
the learned counsel to this extent that normally High Court shall not interfere with the concurrent
findings of the Courts below, however, the same can be interfered with if some misreading or
non-reading of evidence comes on the record and for that purpose it is enjoined upon the party
who alleges the same to specifically point out the evidence which is misread. In the instant case
the defendants-respondents have fully proved the misreading and non-reading of evidence i.e.
statements of the witnesses referred to above. We have discussed the entire evidence adduced by
the parties minutely and in our estimation the statements of witnesses referred to above were not
read and appreciated in true perspective which is clear misreading and non-reading of evidence
on the part of the trial Court as well as first appellate Court, therefore, the principle that the
concurrent findings cannot be interfered with is not applicable in this case. Reliance can be
placed on a case titled Muhammad Riaz v. Muhammad Riyasat and 8 others (2008 SCR 308) in
which it has been observed as under:--

"I do not entertain any second view on the point that the concurrent findings of
facts are open to attack and can be recalled by this Court if the same are not supported by any
evidence or otherwise are unreasonable or perverse.............."

In another case titled Pir Muhammad Younas Shah and 10 others v. Abdullah and 2
others (1992 CLC 15) it has been observed as under:--

".... . . .....Thus, we are of the opinion that the contention of the learned counsel for the
appellants that the concurrent findings by the Courts' below with regard to the indentify of land
was not open to challenge in the second appeal, is not sustainable for the simple reason that the
trial Court and the first appellate Court have made a wrong approach to the case to give finding
on a point which was not raised in the pleadings by the appellants. It is settled principle of law
that if the trial Court and the first appellate Court make such wrong approach to the case,
concurrent findings are open to challenge."

In another case titled Mst. Manzoor Mai v. Abdul Aziz (1992 CLC 235), it was held as
under:--

"19. I have carefully taken into consideration the evidence of both parties noted above
and have come to considered opinion that the concurrent findings of the two Courts below are in
contravention of provision of law and in disregard of the well-settled principles relating to
evidential value of the admission contained in duly sanctioned mutation"

In the above referred judgment it has been further observed in para 21 as under:--

"21..When judged from this angle I have no hesitation in coming to conclusion
that the two Courts below have erred in law by overlooking the evidential value of the admission
of respondent before Patwari Ishtimal and before the Revenue Officer. These admissions were
corroborated by the bulk of evidence and led to conclusion that donor did make a gift of property
in dispute in favour of donee and she had received the possession of the property."

Again in paragraph 24 of the judgment, it was observed as under:--

"24. .....The contention of the respondent that the concurrent conclusion of facts on the
question of possession recorded by two Courts below cannot be interfered with is devoid of legal
support. If the perusal of the impugned judgment shows that the findings of the two Courts
below on the question of fact were contrary to circumstances apparent on the record and were in
violation of the provisions of law, such findings are liable to interference under section 100 of
the C.P.C. .. . . . .. ...."

It is also held in supra cases that if the trial Court and the first' appellate Court have made
a wrong approach to the case, the concurrent findings would be open to challenge and will be set
aside. To prove a transaction as sale, the pre-requisite condition, as observed above is a
consideration/exchange of money and without fulfilling the above said condition, a document
cannot be declared as a deed of sale.

11. There is another important aspect of the case. The plaintiff-appellant has not specifically
claimed/prayed in the plaint to declare the 'gift' as 'sale', therefore, no such relief can be granted
which has not been specifically claimed in the pleadings. For our own satisfaction, we have
examined the contents of the plaint minutely and given our serious thought. It would be

advantageous to reproduce the prayer clause as under:--

From the bare reading of the above said prayer clause, we failed to find out that any such
prayer was made that the 'gift' be declared as a 'sale', therefore, we agree with the contention
raised by the learned counsel for the respondents. It is a celebrated principle of law that no relief
can be granted beyond the pleadings. We are fortified in our view by a case titled Misri and 2
others v. Muhammad Sharif and 49 others (1996 MLD 362), in which it has been observed as
under:--

"..The learned Advocate has, however, rightly pointed out that the finding given by the
trial court in relation to the question of partition of the suit land between the co-owners was
unwarranted having neither raised in the pleadings nor stated in evidence by either party and I
would agree with him that the trial Judge should not have embarked upon himself to have
entered into the discussion of any such issue which did not form part of the pleadings. Anyhow,
this objection would be of no avail in view of my discussion of the case in paras Nos. 3 and 5 of
this judgment."

In another case titled Abdul Malik and others v. Muhammad Latif and others (1993 SCR
335) it has been held as under:--

"It is well settled principle of law that if a party proves a different case at the trial from
one set up in the pleadings such a party is not entitled to any relief and evidence of the facts not
pleaded cannot be looked into."

12. Here we would also like to observe that while alienating/ transferring the property by way
of gift there is no restriction upon the donor who has un-fettered power to gift away his property
without any consideration.

13. In view of the above discussion, we feel no hesitation to hold that the plaintiff-appellant
has failed to prove that the document, i.e., the gift-deed was in fact a sale-deed. No evidence has
been brought on the record regarding the exchange of money/consideration which is an essential
element to prove a transaction as sale.

In the light of what has been stated above we do not find any illegality or infirmity in the
judgment and decree of the High Court which have been passed after due application of judicial
mind and appraising the evidence according to the settled norms of the administration of justice.
Resultantly, this appeal having no force is dismissed with order as to costs.

SAK/32/SC(AJ&K) Appeal dismissed.


2012 S C M R 1602

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ijaz Ahmed Chaudhry, JJ

Mst. SHAFQAT PARVEEN---Petitioner

Versus

MUHAMMAD IFTIKHAR AMJAD and others---Respondents

Civil Petition No.1944-L of 2008, decided on 6th July, 2012.

(On appeal from the judgment dated 22-10-2008 passed by Lahore High Court, Lahore in Civil
Revision No.952 of 2008).

(a) Specific Relief Act (I of 1877)---

----S. 42--- Constitution of Pakistan, Art. 185(3)--- Suit for declaration---Claim of ownership
of suit property on the basis of alleged gift (hiba)---Plaintiff contended that she was the owner of
the suit property (house) as same had been gifted to her by the donor (her father-in-law) at the
time of her Nikah; that the documentary evidence in the form of Nikah Nama and stamp paper
had been ignored by the courts below, and that the plaintiff was in possession of the suit property
ever since her marriage---Validity---One of plaintiff's witnesses, who was also a witness of the
Nikah Nama, had admitted in his cross-examination that the donor lived in the suit property till
his death---Another plaintiff's witness had admitted in his cross-examination that the donor died
in the suit property--- Plaintiff had admitted in her cross-examination that during the donor's life
time she never attempted to have the house mutated in her name through a registered deed---Two
of donor's sons, who appeared as witness, denied that the suit property was gifted to the plaintiff
and contended that the donor desired to mutate the property in the name of his youngest son, in
whose favour all the children of the donor had surrendered their shares---Said contention of
donor's sons remained consistent on material particulars even after being subjected to exhaustive
cross-examination---Entry in the Nikah Nama regarding the suit property had rightly been found
by the courts below to be a later and collusive insertion because the house was not owned by the
plaintiff's husband and it was against normal human conduct that a father who had six children
could have deprived all of them and gifted the suit property, which was the only house the family
had; because there was no corresponding endorsement in the column of the Nikah Nama by the
alleged donor that he was gifting the house, and because the person who performed the Nikah or
had made the alleged gift entry in the Nikah Nama was not examined---Evidence showed that the
donor continued to live in the suit property till his death; that except for the conceding statement
of the plaintiff's husband, no other heir of the donor supported the plaintiff's claim; that
household articles of some of the heirs of the donor were lying in the suit property; that property
tax of the suit property was paid in the name of the donor, and that the electricity meter was also
installed in the name of the donor---Concurrent findings of fact of the courts below were
not found to be against the evidence and did not reflect misreading or non-reading of evidence---
Petition for leave to appeal was dismissed accordingly.

Faqraz Bibi v. Elahi Bakhsh 1994 SCMR 686; Muhammad Anwar Khan v. Sabia Khanam PLD
2010 Lah. 119 and Asma Ali v. Masood Sajjad PLD 2011 SC 221 ref.

(b) Islamic law---

----Gift---Validity---Essentials

Under Islamic law, offer, acceptance and delivery of possession were the three essential
ingredients of a valid gift and the onus was on the donee to prove said components.

Mian Shah Abbas, Advocate Supreme Court for Petitioner.

Respondents Nos. 1 and 2 in person.

Date of hearing: 6th July, 2012.

JUDGMENT

TASSADUQ HUSSAIN JILLANI, J.---Petitioner's suit for declaration to the effect that she is
owner of the suit property (5 marlas house) on the basis of the gift purported to have been made
by her father-in-law Naik Muhammad at the time of the Nikah with respondent No.4 (vide Nikah
Nama dated 22-12-1965) and that the respondents be restrained from interfering with her
possession stands concurrently dismissed in terms of the finding on issue No.1, which reads as
follows:--

"Whether the plaintiff is owner in possession of plot No.461-A on the basis of alleged hiba as
entered in Nikah Nama dated 22-12-1965 and stamp paper dated 7-2-1966? OPP"

2. Learned counsel for the petitioner submits that the three courts have not considered the
evidence led in proper perspective; that the documentary evidence led by the petitioner in the
form of Nikah Nama dated 22-12-1965 and the stamp paper dated 7-2-1966 have been ignored;
that she is in possession of the property ever since her marriage and that the concurrent
judgments are not sustainable, in law.

3. Respondents Nos.1 and 2 have appeared in person to defend the impugned judgment.
They are sons of Naik Muhammad deceased, the alleged donor. They submit that the suit
property was the only house that their late father had and he never gifted the house to the
petitioner; that he had four sons and two daughters and it is not believable that he would give the
house to the petitioner to the exclusion of other legal heirs.



4. Having heard petitioner's learned counsel and the respondents at some length, we find
that petitioner had in all produced three witnesses namely P.W.1 Muhammad Amir who though a
witness of the Nikah Nama but admitted in cross-examination that Naik Muhammad died in the
year 1987 and that till his death he lived in the suit house. P.W.2 Muhammad Azam though
asserted that the said suit house was gifted by Naik Muhammad deceased to the petitioner but
admitted in cross-examination that the said Naik Muhammad died in the same house. P.W.3 is
Shafqat Parveen herself who asserted her claim with regard to the suit house being gift from the
above referred donor but admitted in cross-examination that during the donor's lifetime she never
attempted to have the house mutated in her name through a registered deed. As against this, the
defendants produced D.W.1 Riaz Muhammad who is son of Naik Muhammad deceased. He
denied that the suit property was gifted to the petitioner rather according to him, Naik
Muhammad during his lifetime had desired that the suit house should be mutated in the name of
the youngest son Iftikhar. D.W.2 is Muhammad Iftikhar. He too is son of Naik Muhammad
deceased and he also denied the gift. According to him after their father's death, all the brothers
and sisters surrendered their share in his favour. Both were subjected to exhaustive cross-
examination but they remained consistent on material particulars and their credibility remained
unshaken. Much stress was laid by petitioner's learned counsel on an entry in column No. 13,
which reads as under:--

This entry particularly regarding the house has rightly been found by the three courts below to be
a later and collusive insertion. We tend to uphold this finding for more than one reason. Firstly,
the house was not owned by the bridegroom and it is against normal human conduct that the
father who had six children (4 sons and 2 daughters) could have deprived all of them and gifted
the house, which, it is in evidence, was the only house which the family had. Secondly, there is
no corresponding endorsement in the column by the alleged donor/Naik Muhammad that he was
gifting the house. Thirdly, the important witness of Nikah Nama namely the person who
performed the Nikah or who had made those entries were not examined. In Faqraz Bibi v. Elahi
Bakhsh (1994 SCMR 686), leave was granted by this Court to consider whether notwithstanding
an entry made in the Nikah Nama that the house was being given to the bride by father of the
bridegroom and the evidence was led to establish that eversince the marriage, she exercised full
propriety rights over the house 'without any interference, could she be deprived of the ownership
but ultimately the appeal was dismissed by this Court (Civil Appeal No.817 of 1993) on 25-5-
1994 on the ground that the father of the husband had disowned making such an entry; he
continued to assert his right of ownership over the house; title of the house remained with him
and one of the witnesses i.e. the person who performed Nikah admitted that the entry made in
Nikah Nama about the house was at the behest of the husband. In those circumstances, this Court
while upholding the concurrent findings of the two courts below held "that mere signing of
'Nikah Nama' by respondent No.1 (father of the husband) as a witness of 'Nikah' could not lead
to the inference that respondent No. 1 had agreed to transfer the disputed house in favour of the
appellant in lieu of her dower." In Muhammad Anwar Khan v. Sabia Khanam (PLD 2010 Lahore
119) the Court upheld the concurrent judgments granting house as dower on the basis of the
entries made by father in law of the bride in the Nikah Nama because the latter in cross-
examination admitted his presence at the time of his son's Nikah and also admitted having
knowledge of his house being given in the Nikah Nama as dower to the bride. In Asma Ali v.
Masood Sajjad (PLD 2011 SC 221) this Court had decreed the claim of the wife based on similar
entries because those entries stood proved as the document in question/Nikah Nama was
produced by the defendants themselves and the important witnesses of Nikah Nama i.e. the
persons who performed the Nikah and the one who made those entries had both appeared in
court to endorse those entries.

5. In Muhammadan Law, offer, acceptance and delivery of possession are the three essential
ingredients of a valid gift and the onus was on the petitioner to prove these components. The
evidence led on the contrary shows that Naik Muhammad deceased continued to live in the same
house till his death (i.e. in 1987); that barring the conceding statement of petitioner's
husband/defendant No.4, no other heir of Naik Muhammad supported petitioner's claim; that the
household articles of some of the other defendants were lying in the same house and the property
tax used to be paid in the name of Naik Muhammad and even the electricity meter was installed
in his name.

6. In the afore-referred circumstances, the concurrent findings of fact have not been found
by us to be against the evidence led or reflecting any misreading or non-reading of evidence to
warrant interference. The petition lacking in merit is accordingly dismissed and leave refused.

M.W.A./S-17/SC Petition dismissed.


2012 C L C 1690

[Peshawar]

Before Syed Sajjad Hassan Shah, J

MUHAMMAD AKRAM KHAN----Petitioner

Versus

MUHAMMAD IQBAL KHAN and 4 others----Respondents

Civil Revision No.103 of 2011, decided on 14th May, 2012.

(a) Islamic Law---

----Gift (hiba), validity of---Failure to prove essentials of a valid gift---Concept of abdication
from estate---Recognition under Islamic law---Scope---Donor and donee residing together at the
time of gift---Revenue officer and officials, who entered, registered and attested the gift mutation
not examined---One of the donees/defendant making an alternate claim of having purchased the
property---Effect---Suit for declaration, perpetual injunction and possession through partition---
Controversy between the parties, revolved around the impugned gift-deed, made by predecessor
of the parties in favour of one of his sons and grandsons (defendants/appellants)---Plaintiff
(petitioner), who was also a son of the predecessor, filed suit to claim his inheritance share in the
disputed property, contending therein that his father/donor was not in his proper senses at the
time of impugned gift, therefore, he could not have alienated the suit property through gift deed
and mutation---Defendants (respondents) contested the suit contending that the donor had
abdicated the plaintiff (declared plaintiff as "Aaq") due to his disobedience---Suit of plaintiff was
dismissed by the civil court and First Appellate Court---Validity---Only reason shown by the
defendants for transfer of entire property in their favour, to the exclusion of all other legal heirs
including the plaintiff, was the abdication of the plaintiff---Said reason was not recognized under
Islamic law---Transferee/defendants were obliged to have proved the transfer in their favour as
voluntary , with free consent of the donor and free from doubts, fraud and fabrication---No
evidence was available on record to show that offer, acceptance and delivery of possession had
been made by the donor to the donee, which were the essential requirements of a valid gift---Free
and independent consent of the donor was not proved---Testimonies of the Revenue Officer,
Sub-Registrar, Patwari, Lumberdar and Local Councillor, all having played a pivotal role in
registration and execution of the gift deed and mutation, were not obtained---Plaintiff had made a
detailed statement before the Trial Court alleging fraud and illegal exclusion of the legal heirs
including the plaintiff from the legacy of their father, but no cross-examination was conducted
on behalf of the defendants, which clearly denoted the admission of the claim of the plaintiff---
Donor/father resided with the donee/defendants at the time of the gift mutation---During
examination one of the defendants, who was son of the donor, stated that he had purchased the
property for a sale consideration---Such statement was difficult to believe because on one hand
the defendants claimed the property was transferred in their favour by the donor and on the
other one of the defendants claimed to have purchased the same by incurring his own
expenses---Impugned gift was the result of fraud as it involved or implied injury to person or
property of another---Impugned gift was void ab initio---Impugned judgments and decrees of
courts below were set aside and suit of the plaintiff was decreed.

Muhammadan Law by Syed Ameer Ali Fifth Edition by Raja Said Akbar Khan ref.

Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others
2002 SCMR 1938; Muhammad Yaqoob through legal heirs v. Feroze Khan and others 2003
SCMR 41 and Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai (PLD 2005 SC
658 rel.

(b) Islamic law---

----Act---Nature and validity---Incapacity to perform an act/ obligation---Effect.

Every legal act under Islamic law was regarded as an obligation and validity of every obligation
depended on the faculty or capacity of the persons doing the act to consider freely and rationally
the consequences resulting therefrom. Where the person was by virtue of an inherent or super
imposed and accidental disqualification, incapable of exercising his volition in a rational manner
with perfect reasoning, then, any obligation entered into by him was null and void.

(c) Islamic law---

----Gift---Validity---Proof.

Donee had to prove by leading all available evidence that the propositus departed with his
property by his free will and the transaction of gift was free from all doubts, fraud and
fabrication.

(d) Islamic law---

----Gift made with intention to defraud creditors could not be declared as lawful one.

Section 140 of D.F. Mulla's Principles of Muhammadan Law ref.

(e) Qanun-e-Shahadat (10 of 1984)---

----Art. 119---Document---Allegation of fraud, collusion and coercion---Validity and legality-
--Burden of proof---Scope.

When a document was challenged on the grounds of fraud, collusion, coercion or was the
result of undue influence and mala fide, it was the bounden duty of the beneficiary of the
document to prove the same by leading all available convincing and cogent evidence.

Muhammad Waheed Anjum for Petitioner.

Muhammad Khurshid Qureshi for Respondent.

Date of hearing: 14th May, 2012.

JUDGMENT

SYED SAJJAD HASSAN SHAH, J.--- Through the instant petition, the petitioner-plaintiff
Muhammad Akram Khan has called in question the judgment and decree dated 6-1-2011 passed
by learned Additional District Judge-V, D.I. Khan whereby the appeal filed against the judgment
and decree dated 14.10.2009 of learned Civil Judge, Kulachi, District D.1. Khan was dismissed.

2. Briefly stated facts of the case are that petitioner-plaintiff Muhammad Akram Khan filed
a suit against respondents-defendants Nos.1 to 3 i.e. Muhammad Iqbal and his two sons
Muhammad Israr and Muhammad Aitebar and his sisters Mst. Bakhtora Bibi, Mst. Gulzar Bibi
and Mst. Shamshad Bibi pro forma respondents-defendants Nos.4 to 6 for declaration to the
effect that he and pro forma respondents-defendants entitled to the legacy of his father, to the
extent of 5/7 share of house and agricultural property fully detailed in the plaint and the
respondents-defendants Nos.1 to 3 have no concern with the entire ownership of their
predecessor Abdullah Jan, thus, the alienation made through Hibba in respect of house through
registered deed No.6 dated 14-6-1999 and gift of agricultural property through Mutation No.417
l attested on 29-5-2000 in favour of respondent-defendant No.1 is against law, fraudulent, mala
fide and in collusion with the revenue staff just to deprive the petitioner-plaintiff and
respondents-defendants Nos.4 to 6 from the succession of their said predecessor.

The petitioner-plaintiff averred in the plaint that his predecessor was not in proper senses, thus,
was not capable to alienate the suit property through deed and mutation which were given
effected by incorporating in the revenue record and same also requires correction in the revenue
record. As a consequential relief, he prayed for perpetual injunction restraining the respondents-
defendants Nos.1 to 3 from further alienation of the suit property. In relief "Bay", he prayed for
possession through partition' to the extent of 2/7 share. He further asserted in the plaint that the
parties are the descendants of Abdullah Jan deceased and after his death, the petitioner-plaintiff
and respondents-defendants Nos.4 to 6 being his son and daughters are entitled to 3/7 and 2/7
shares respectively. All of them are in possession of the suit property which is not the exclusive
ownership of respondent-defendant No.1. He further asserted that two months prior to the
institution of suit, the respondent-defendant No.1 claimed ownership of the entire house and the
agricultural property in which the petitioner-plaintiff approached the revenue officials, where on
inspection of revenue record, it transpired that respondent-defendant No.1 got registered in his
name the entire property of their father Abdullah Jan. The respondent-defendant No.1 while
committing fraud, prepared bogus and fabricated documents in his favour which are based on
mala fide, void and the result of coercion.

3. The suit was contested by respondents-defendants Nos.1 to 3 by filing their written
statement wherein they refuted the claim of the petitioner-plaintiff and asserted that the
petitioner-plaintiff being disobedient was declared as "Aaq" by his father and the petitioner-
plaintiff put forth the concocted story about grabbing of their property by respondents-defendants
Nos.1 to 3. The learned trial Court framed issues arising out of the divergent pleadings of the
parties. The parties produced their respective evidence as they wished to adduce. After hearing
the arguments of the learned counsel for the parties, the learned Civil Judge, Kulachi dismissed
the suit of the petitioner-plaintiff vide judgment and decree dated 14-10-2009. Feeling aggrieved
from the judgment and decree of the learned trial Court, the petitioner-plaintiff filed appeal
which was also dismissed by learned Additional District Judge-V, D.I. Khan vide judgment and
decree dated 6-1-2011. Hence, the instant revision petition by the petitioner-plaintiff.

4. The learned counsel for the petitioner-plaintiff contended that the alienation made by
Abdullah Jan, the predecessor of the parties is revolving around the sole reason that he was
deprived of the property on account of his disobedience. He further contended that this ground
cannot be availed by the respondents- defendants Nos.1 to 3 because there is no concept of such
declaration in the Islamic system of law. He further argued that neither the respondents-
defendants nor the predecessor (father) of the petitioner-plaintiff pinpointed any valid reason
while depriving the petitioner-plaintiff and his daughters/pro forma respondents-defendants from
their shares in his legacy, however, the disposition of property to have made in collusion with the
revenue staff, the respondent-defendant No.1 managed the alienation of the property owned by
their father who was ailing and mentally incapable to alienate the suit property. He further
contended that no gift was made in favour of respondents-defendants Nos.1 to 3 because neither
the pre-requisites of the gift have been proved nor cogent and convincing evidence brought on
record constituting the valid gift in their favour.

5. As against that, the learned counsel for respondents-defendants Nos.1 to 3 contended that
the gift was legally made and the respondents-defendants Nos.1 to 3 have successfully proved
the ingredients of gift. He further contended that the petitioner-plaintiff had not claimed the suit
property in the life time of his father and after his death, the filing of suit clearly amounts to
pressurizing and blackmailing the respondents- defendants Nos.1 to 3 in order to deprive them
from their right of ownership in the suit property. He further contended that the petitioner-
plaintiff was disobedient and insolent, therefore, he was deprived of the property by the
predecessor. The learned counsel supported the judgments and decrees passed by the learned
Courts below.

6. I have considered the arguments of learned counsel for the parties and carefully examined
the record.

7. In the instant case, no reason except abdication of the petitioner-plaintiff has been shown
for transfer of entire suit property in favour of Muhammad Iqbal and his two sons by Abdullah
Jan, his father, where after the petitioner-plaintiff and pro forma respondents- defendants have
been deprived of their rights in respect of the suit property. The reason, shown is not recognized
under the Islamic Law. There is no cavil that the owner of the property has got every right to
alienate his ownership according to his/her wishes but when father of two sons and three
daughters opted to have transferred his entire holding including the residential house in favour of
respondent-defendant No.1 excluding his another son and daughters apparently tantamounts, the
extending benefit to one of them to the exclusion of others. True that for such a transfer, the
transferor is not bound to furnish any reason/explanation, however, in the circumstances of the
instant case, he had to explain that why the disposition of his entire property to have made in the
name of one of his prospective heir. Every legal act under the Muhammadan Law is regarded as
an obligation and validity of every obligation depends on the faculty or capacity of the persons
doing the act to consider freely and rationally the consequences resulting therefrom. If the person
is by virtue of an inherent or super imposed and accidental disqualification, incapable of
exercising his volition in a rational manner and with perfect reasoning any obligation entered
into by him is null and void. The one amongst other conditions is, therefore, necessary for the
validity of any disposition of property is following. "Understandingly and freedom". Because the
petitioner-plaintiff contended herein that Abdullah Jan, his father, to have transferred the entire
agriculture property and the residential house in favour of his son the respondent-defendant No.1
vide registered deed and mutation as referred to above. However, the petitioner-plaintiff had
challenged the above transfer as fraudulent, result of fiduciary relation and in collusion with
revenue staff. Though being the beneficiary, the transferee was obliged to have proved the
transfer in his favour as voluntary and the result of the free consent of donor but all those persons
who had played a pivotal role in execution of above stated deed and mutation, they were the
persons who have seen the proceedings by the transferor in favour of transferee but in absence of
their testimony, the secrets have gone unveiled and could not be disclosed. Undoubtedly, these
were the legal requirements, to have been clarified and the donee has to prove by leading all
available evidence that the propositus departed with his property on his free-will and the
transaction of gift was free from all doubts, fraud and fabrication it was essential even for the
reason that the learned counsel for the respondent-defendant stated at bar that the predecessor of
the parties was residing with the respondent-defendant and he had been enjoying effective
control and dominated his will, thus he transferred his entire property to the respondent-
defendant while excluding the petitioner-plaintiff and pro forma respondents-defendants. It is
worth to say that in support of his claim the petitioner-plaintiff has made a detail statement
before the trial Court, alleging therein about, fraud and illegal exclusion of the petitioner-plaintiff
and pro forma respondents-defendants of their share from the legacy of their father, but no cross-
examination was conducted on behalf of the respondent-defendant No.1, which clearly denotes
the admission of claim of the petitioner-plaintiff. Moreover, the age of Abdullah Jan recorded in
the order of Registrar as 70 years. And it is admitted fact that after two years of execution of
deed he had passed away. In the afore-stated circumstances of the instant case, the intent and
purpose was to exclude the petitioner-plaintiff and the daughters, the pro forma respondents-
defendants from the .legacy of their father, and the fraudulent and collusive deed of transfer of
house and mutation pertaining to the agriculture land had prepared, shown to have got attested in
his favour. Thus, the necessary corollary would be that the grounds stated by the petitioner-
plaintiff have not been controverted in his cross-examination by the opposite party, thus
amounted admission on his part. The above stated reasons, coupled with the joint residence of
donor and donee, one can arrive at the conclusion that the gift was not the result of free and
independent consent of the donor. In such circumstances, the law leans in favour of nullifying
the gift. Muhammadan Law contains no specific rules relating to the obligations imposed on the
person enjoying the fiduciary relations to the donor. The Court from Indian jurisdiction went
even to this extent that while deciding the proprietary and validity of the gift, that it would be
invalid which contravenes the principle of gift which has been recognized by English courts of
equity with regard to person standing in a fiduciary relationship; to the donor who was a
Muhammadan lady, apparently possessed the requisite capacity as enunciated by the
Muhammadan Law.

8. Now keeping in view the prevailing circumstances, the matter to be adjudged in context
with the norms and values of society.In this regard I rely upon a Paragraph from Muhammadan
Law by Syed Ameer Ali Fifth Edition by Raja Said Akbar Khan:---

"We must endeavour, so far as we can, to ascertain the true principles upon which that law was
founded, and to administer it with a due regard to the rules of equity and good conscience, as
well as to the laws, and the state of society and circumstances which now prevailing in this
country".

9. As stated herein above, the residential property owned by Abdullah Jan, the predecessor
of the parties, was alienated through gift in favour of respondent-defendant No.1, however,
perusal of the registered deed (Exh.D.W.2/5) reveals that no reason has been mentioned that why
the entire residential house gifted and the same is the case to Mutation No.4171 referred to
above. Apart from that, respondent-defendant was examined as D.W.2, took somersault and
stated that the house was purchased by him from one Faizullah Khan for a sale consideration of
Rs.25,000/-. Here it is difficult to believe the story of alienation of property belonging to
Abdullah Jan, predecessor of the parties, because on the one hand, the respondent-defendant
No.1 claimed that it was transferred in his favour by the donor and on the other hand, he claimed
to have purchased the same by incurring his own expenses. Had this been so, why had he got it
alienated in his favour as gift, inasmuch, as he produced a sale agreement in his favour.
Whenever, the gift is made with intention to defraud creditors, it cannot be declared as lawful
one. In this context, section 140 of D.F. Mulla's Principles Muhammadan Law is reproduced as
under:---

"Gift with intent to defraud creditors.-- There must be in every gift a. bona fide intention on the
part of the donor to transfer the property from the donor to the donee (b) A gift made with intent
to defraud the creditors of the donor is voidable at the option of the creditors. Such intention
however cannot be inferred from the mere fact that the donor owed some debts at the time of the
gift."

In the instant case, the gift is the result of fraud as it involves or implies injury to person or
property of another which is forbidden under the law. In support of the above stated point, the
provisions contained in section 53 of Transfer of Property Act, 1882 can be conveniently relied
upon which run as under:---

"53. Fraudulent transfer.---(1) Every transfer of immovable property made with intent to
defeat or delay the creditors of the transferor shall be viodable at the option of any creditor or
delayed."

An identical question came for consideration before the august Supreme Court in case titled
Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others
(2002 SCMR 1938) wherein it was held that:---

"In the instant case no reason is furnished for such gift. At the most one can import the love and
affection of the grandson but the same seems to be unreasonable in the presence of one and the
only son of the donor. Rather there is a negative reason for making gift, in that, Barkat Ali had
three daughters as well and it was rightly apprehended that in case of the death of Barkat Ali,
property would also be inherited by his daughters, the real sisters of Muhammad Ismail. There is
overwhelming reason for the grant of gift which seems to be mala fide and which is why it was
assailed by the very son of the donor."

The case titled Muhammad Yaqoob through legal heirs. v. Feroze Khan and others (2003 SCMR
41) can also be referred wherein it was held that:---

"We are of the considered view that factum of gift could not be proved by adducing cogent and
convincing evidence. Besides that there appears to be no justification for the exclusion of legal
heirs from the inheritance of Sher Zaman (donor) which makes the authenticity and genuineness
of the gift doubtful."

10. It appears from the evidence on the record that the gift is made just to deprive the
petitioner-plaintiff and pro forma-respondents-defendants, who are the spessuccessionis of the
alleged donor, and extending benefit to the other son namely Muhammad Iqbal respondent-
defendant No.1. Creating of such gift is forbidden under the Islamic law.

11. It is cardinal principle of law that when a document is challenged on the grounds of
fraud, collusion, coercion or the result of undue influence and mala fide, thus, the bounden duty
of beneficiary of document is to prove the same by leading all the available convincing and
cogent evidence. Both the above stated gift deed and mutation were challenged by the petitioner-
plaintiff but the only witness namely Pir Mast Ali Shah was examined as D.W.1 but his
statement could not be considered sufficient to substantiate the claim of the petitioner-plaintiff,
because neither he seen his signature nor testified that the document bears his signatures.
Moreso, no other document signed by the witness has been produced for comparison with the
disputed one. Likewise, the witnesses of the mutations were not examined. Even otherwise, the
mutation does not confer any title and it is always used for fiscal purposes, thus, its proof as
required under the law must be furnished by the beneficiary. In the instant case, neither the Sub-
Registrar who registered the document was produced as witness nor the Revenue Officer was
examined who attested the mutation nor the Patwari who entered the mutation and particularly
the Lumberdar and other respectable of the locality including the Councillor as required under
section 42 of the Land Revenue Act to substantiate the claim of the respondent-defendant No.1.
There is not an iota of evidence available on the record that offer, acceptance and delivery of
possession have been made by the alleged donor to the donee which are the essential requirement
of a valid gift as required under section 149 of Muhammadan Law which says that:---

"149. The three essentials of a gift--- It is essential to the validity of a gift that there should be (1)
a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on
behalf of the donee, and (3) delivery, of possession of the subject of the gift by the donor to the
donee as mentioned in section 150. If these conditions are complied with, the gift is complete."

To support the above aspect of the case, reference made of case titled Ch. Muneer Hussain. v.
Mst. Wazeeran Mai alias Mst. Wazir Mai (PLD 2005 SC 658 wherein it was observed that:---

"Therefore, with reference to Article 78 of Qanun-e-Shahadat, 1984, it was held that if a
document is alleged to be signed or to have been written by any person, the signature or writing
must be proved in that person's handwriting; the said Articles places emphasis on the proof of
identity of author of questioned documents and this Article does not say that mere proof of
handwriting/signatures/thumb-impressions of executant will prove truth of the said document."

The respondent-defendant No.1 attempted to deprive of his real brother and sisters from the
above stated rights, however, he could not prove that Abdullah Jan did appear in person before
the Sub-Registrar and Revenue Officer and he admitted the gift transaction in presence of Sub-
Registrar and no person stood witness to support the contention of gift at the time when the
registered deed was attested. Similarly, the mutation has also not been proved as mentioned
hereinabove by producing requisite evidence i.e. Revenue Officer and Sub-Registrar. Moreover,
there is no mention that the donor had delivered the possession in pursuance of gift, in absence
whereof, the question of validity of gift does not arise, hence the gift is void ab initio. Both the
learned Courts below have not adverted to the above aspects of the case and declared the gift as
valid one. The judgments of the learned Courts below are the result of misconception of law on
the subject, thus, cannot be maintained.

12. For the reasons mentioned above, the revision petition is accepted, the impugned
judgments and decrees of the learned Courts below are set aside and suit of the petitioner-
plaintiff is hereby decreed as prayed for, leaving the parties to bear their own costs.

MWA/242/P Revision allowed.


P L D 2012 Lahore 483

Before Amin-ud-Din Khan, J

ARSHAD AHMAD alias M. ARSHAD and others---Petitioners

Versus

MUHAMMAD YAR and others---Respondents

Civil Revision No.196 of 2004, decided on 16th November, 2011

(a) Islamic Law---

----Gift---Suit for declaration of ownership on basis of gift---Proof---Plaintiff would be bound to
plead gift in plaint and prove firstly factum of gift independent of any instrument and secondly
the instrument, if his claim was based thereupon.

(b) Islamic Law---

----Gift---Essential ingredients, offer, acceptance and delivery of possession.

Muhammadan Law by Mulla, Para.149 rel.

(c) Islamic Law---

----Gift, making of---Method---Muslim can also make gift orally---Instrument of gift in writing
must fulfil all legal formalities.

Muhammadan Law by Mulla, Para.147 rel.

(d) Registration Act (XVI of 1908)---

----Ss. 17 & 49---Gift deed regarding property of value more than Rs.100---Registration of such
deed would be necessary.

(e) Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration of ownership on basis of alleged gift deed---Declaratory decree
passed by Trial Court set aside by Appellate Court---Validity---Declaratory decree under S.42 of
Specific Relief Act, 1877 could be passed for declaring a pre-existing right, but could not create
a new right---Not necessary to file such suit, if alleged gift deed was sufficient to transfer right in
suit property in favour of plaintiff and alleged donor was also alive and willing---Plaintiff had
filed such suit in order to get his rights created in suit property by court through a declaratory
decree---Such suit was not competent---Decree granted by Trial Court was nullity in eyes of law
and Appellate Court had rightly set aside the same---High Court dismissed revision petition in
circumstances.

(f) Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration of ownership on the basis of alleged gift deed---Maintainability---
Declaratory decree under S.42 of Specific Relief Act, 1877 could be passed for declaring a pre-
existing right, but could not create a new right.

(g) Civil Procedure Code (V of 1908)---

----S. 115(1), first proviso---Revision petition---Documents to be filed along with such petition--
-Scope---Petitioner would be bound to produce complete certified copies of pleadings, evidence
etc., of case with such petition---Petitioner would be liable to suffer loss for non-producing such
copies---Court had to decide such petition on basis of available record.

Aejaz Ahmad Ansari for Petitoners.

Mian Muhammad Tayyib Watto for Respondents.

Date of hearing: 16th November, 2011.

JUDGMENT

AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners-plaintiffs have
challenged the judgment and decree dated 13-3-2004 passed by the Addl. District Judge,
Bahawalnagar, whereby the appeal filed by the respondents-defendants was accepted against the
judgment and decree dated 14-10-2000 passed by the Civil Judge 1st Class, Minchin-Abad,
whereby the suit filed by the petitioners-plaintiffs for declaration was decreed.

2. Briefly, the facts as arising out of this civil revision are that the petitioners-plaintiffs on
17-11-1993 filed a suit for declaration seeking therein a declaration on the basis of alleged gift
deed dated 10-5-1993. They claimed that defendant No.1 (Ali Muhammad), their father gifted
the land measuring 670 kanals 10 marlas mentioned in the plaint to them. All other expected
legal heirs of said Ali Muhammad were made party as defendants Nos.2 to 9 in the suit. The
plaintiff No.2 was minor and filed the suit through his mother Mst. Momnan Bibi, defendant
No.9 in the suit and afterward she was transposed as plaintiff No.3 on 8-9-2000 in the suit.

The said Ali Muhammad s/o Hassan Ali (defendant No.1) was having three wives and he was
also having issues from these wives. The defendants Nos.2 to 5 contested the suit, whereas
defendants Nos.6 to 8 consented for the decree of suit. The original defendant No.1, the alleged
donor, who was alive at the time of filing of the suit, has not filed any written statement. He died
on 21-8-1994.

From the divergent pleadings of the parties, the trial court on 20-7-1995 framed the issues and
invited the parties to produce their evidence. Both the parties adduced their oral as well as
voluminous documentary evidence. After hearing the parties the trial court vide judgment and
decree dated 24-10-2000 decreed the suit in favour of petitioners-plaintiffs. The respondents-
defendants filed an appeal, which was accepted by the Addl. District Judge, Bahawalnagar vide
judgment and decree dated 13-3-2004, which is under challenge before this Court in this civil
revision.

3. Learned counsel for the petitioners-plaintiffs argued that the donor Ali Muhammad gifted
the property to the plaintiffs; that as many as 7 witnesses have been produced to prove the gift in
favour of petitioners-plaintiffs and also certified copy from the judicial record of another suit for
specific performance were produced to prove the case of plaintiffs and they succeeded fully in
proving their case; that the judgment and decree passed by the trial court are in accordance with
law, whereas the first appellate court fell in error while reversing the findings recorded by the
trial court.

4. On the other hand, learned counsel for the respondents-defendants contended that the
alleged gift deed is forged one and the suit was filed in the life of original owner and the
expected legal heirs of said donor were also made party to the suit as defendants; that this fact
speaks volumes against the petitioners- plaintiffs. Further stated that it is admitted position that
Ali Muhammad; was owner of total land measuring 670 kanals 10 marlas and not a single inch
remains for inheritance if the plaintiffs proved that suit property has been gifted to them; that
petitioners-plaintiffs absolutely failed to prove the gift and that alleged deed of gift Exh.P-1 does
not create or confer any rights in favour of plaintiffs as it is unregistered document.

5. I have heard the learned counsel for the parties and also gone through the record with
their able assistance.

6. The plaintiff of a suit claiming a declaration of ownership on the basis of any gift, first of
all, he will prove the factum of gift independent of any instrument, secondly, he is bound to
prove the instrument if his claim is based upon any instrument.

In this case, the plaintiffs have based their claim on a written gift deed. I have minutely
scrutinized the evidence produced by the plaintiffs as well as pleadings. In paragraph No.4 of the
plaint, which is available on record. It is amended plaint dated 8-9-2000, no other plaint has been
produced. The plaintiffs have stated that near about 6 before filing of the suit, defendant No.1
offered to gift the suit property to the plaintiffs. It is not mentioned that the figure 6 indicates 6
days, 6 weeks, 6 months or 6 years. They pleaded that then on 10-5-1993 a writing was also
made with that regard. As I have noticed that the plaintiffs were bound to prove the facum of gift
first and they were also bound to plead the same in their plaint. They have not pleaded the
factum of gift in accordance with law, as neither the date of gift nor the names of witnesses have
been mentioned in the pleadings. The same is the position of statement of P.W.6, Muhammad
Arshad, one of the plaintiffs. His statement is not up to the mark to prove his contention of
making of gift by his father in favour of plaintiffs. No witness of event of offer and acceptance of
gift has been produced by the plaintiffs and the alleged witnesses of Exh.P-1 stated about the
execution of this document only. They are not the witnesses of any event of gift prior to the
incorporation of alleged gift in Exh.P-1. Even the reason given in Exh.P-1 for transferring whole
of the property in favour of plaintiffs by the donor that the 3rd wife Mst. Munawar Bibi,
daughter and sons of donor from Mst. Munawar Bibi are disobedient, therefore, he is depriving
them. Admittedly, there are other issues of Ali Muhammad from Mst. Momnan Bibi and
even there is a sister of Muhammad Arshad plaintiff.

7. The three ingredients i.e. offer, acceptance and delivery of possession in accordance with
Para No. 49 of the Mohammadan Law by Mulla for making the gift, are missing in this case. It is
also pertinent to mention here that in the alleged gift deed Ex.P-1 there is no mentioning that
how much property the alleged donor is giving to each of the alleged donees. This fact has also
not been mentioned in the plaint and the evidence. It is admitted fact that Ali Muhammad never
filed written statement in the suit. He even remained alive after filing of the suit for a period of
about 9 months. The statement Exh.P-12 was not recorded on the date of hearing. Furthermore,
the counsel (P.W-7) who identified the said Ali Muhammad at the time of recording of
statement, has admitted that Ali Muhammad was not prior to the making of statement known to
him. The other suit which has been relied by the learned counsel for the petitioners-plaintiffs and
the documents from which, the certified copies have been placed on this file, titled "Ali Sher v.
Ali Muhammad" suit for specific performance, in that suit it is not proved that the statement was
made on the date of hearing. In this view of the matter, the alleged statement of Ali Muhammad
in suit in hand and in the other suit are not free from doubts because in the normal course of
proceedings these were not got recorded by Ali Muhammad. The certified copies from the file of
other suit have also not been proved in accordance with law, therefore, no evidentiary value can
be given to these documents when defendants of suit in hand were not party in that suit.

8. The reason given in the document for non registration of this gift in favour of donees has
beer given that due to the week financial position this could not be got registered. This has been
written on a stamp paper of Rs.10. I find that at the time, when alleged gift deed was prepared,
no stamp duty or any transfer fee was required for registration of gift deed or transfer of the
agricultural property through gift by a donor in favour of expected legal heirs. On a simple plane
paper the registered deed of gift in favour of expected legal heirs was competent. The impugned
gift deed also relates to agricultural property. Therefore, the reason given in this deed is also
wrong. No doubt a Muslim can gift his property orally according to Para No.147 of
Mohammadan Law by Mulla, but when the instrument is in writing it must fulfil all the legal
formalities.

9. The contention of learned counsel for the respondents that when the petitioners-plaintiffs
claimed this document to be a gift deed and claimed complete transfer of rights in their favour in
immoveable property the value of which is more than Rs.100/-, therefore according to sections
17 and 49 of the Registration Act, the registration of this document was necessary, has weight.
Admittedly, the alleged gift was not incorporated in any revenue record and the petitioners-
plaintiffs sough a declaration from the Civil Court on the basis of that alleged gift deed by filing
suit for declaration under section 42 of the Specific Relief Act I of 1877. I find that a declaratory
decree can be passed under section 42 of the Specific Relief Act for declaring a pre-existing
right. No new rights can be created, if the alleged gift deed was sufficient to transfer the rights in
the immoveable property and the alleged donor was also alive and willing. What was the
necessity to file a suit for declaration on the basis of alleged gift deed. Certainly the alleged gift
deed was not a document transferring the ownership rights in favour of donees. Therefore, they
were forced to file a declaratory suit and they tried to get their rights created in the suit property
by the court through a declaratory decree for which I have already given the findings that a
declaratory decree cannot create a new right. It just declares a pre-existing right. Therefore, the
suit filed by the petitioners-plaintiffs was not competent and decree granted by the trial
court was nullity in the eyes of law which was rightly set aside by the first appellate
court.

10. As the petitioners were bound under the law to produce complete certified copies of
pleadings, evidence etc. of the case with this revision, therefore, for non-production of certified
copies of original as well as amended plaint, the loss will certainly be suffered by them. This
Court has to decide this revision petition on the basis of available record. Accordingly the
findings have been recorded on the basis of copy of plaint available on the record of this file.

11. In view of the above circumstances, learned counsel for the petitioners failed to show any
misreading, non-reading or defect in the impugned judgment and decree passed by the first
appellate court. Resultantly, this civil revision is dismissed with costs throughout.

S.A.K./A-86/L Revision dismissed.



2012 Y L R 2806

[Lahore]

Before Ali Baqar Najafi, J

HAZOOR BAKHSH---Petitioner

Versus

Mst. AMEER MAI ---Respondent

Civil Revision No.221 of 1998, heard on 1st August, 2012.

(a) Islamic Law---

----Gift---Scope---Additional dower in the form of a gift, was not required to be mentioned in
the Nikahnama---Proper healthy Muslim's gift could not be invalidated on the ground that his
legal heirs were deprived of their share as such Muslim enjoyed unfettered powers to make a
gift---In case of a gift by the husband to' his wife; even transfer of possession was not essential.

Falak Khursheed v. Fakhar Khurshid and others 2006 SCMR 595; Ghulam Akbar v. Muhammad
Ilyas and others 1992 MLD 2279; Muhammad Ashraf v. Shehzada Javed Iqbal and 6 others 2001
PSC 765; Mian Aziz A. Sheikh v. The Commissioner of Income-Tax Investigation, Lahore PLD
1989 SC 613; Inayat Ullah v. Perveen Akhtar 1985 CLC 1454 and Mst. Charagh Bibi v. Mst.
Mehraj Bibi and 2 others 1998 CLC 796 ref.

Mian Aziz A. Sheikh v. The Commissioner of Income Tax PLD 1989 SC 613; PLD 2006 SC 15;
2010 SCMR 342 and 2006 SCMR 50 rel.

(b) Civil Procedure Code (V of 1908)---

----S.12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration was decreed
concurrently where after defendants made application under S.12(2) of the C.P.C. to set aside
said decree---Effect---Evidence recorded during pendency of application under S.12(2), C.P.C.
could not be treated as evidence in the suit on merits.

Muhammad Ashraf v. Javed Iqbal and 6 others 2001 PSC 765 and Falak khurshid v. Fakhar
Khurshid and others 2006 SCMR 595 rel.

Aftab Alam Yasir for Appellant.

Malik Sharif Ahmad for Respondent.

Date of hearing: 1st August, 2012.

JUDGMENT

ALI BAQAR NAJAFI, J.---Through this civil revision the petitioners have challenged the order
dated 27-6-1997 passed by the Civil Judge Rajanpur as well as the order dated 10-3-1998, passed
by the Additional District Judge, Rajanpur, whereby the suit of the respondent was decreed.

2. The brief facts giving rise to filing of this civil revision is that Farid Bakhsh the husband
of Ameer Mai respondent was the original owner of agricultural land measuring 113-kanals and
2 marlas. He contracted third marriage with Ameer Mai on 8-3-1959 in lieu of Rs.52 as dower.
The said Farid Bakhsh transferred the disputed land in favour of Ameer Mai, being issueless,
through oral gift as additional amount of dower.' On 25-9-1986 the respondent Ameer Mai filed
a suit for declaration against her husband to the effect that she was owner in possession of the
suit-land on the basis of gift in lieu of dower. On 29-9-1986 a counsel for the said Farid Bakhsh
namely Muhammad Rafi Pachar, Advocate, submitted a power of attorney (Exh. P-1), who also
submitted a consenting statement on 29-9-1980 (Exh.P-2) along with the list of legal heir
showing the respondent as the only legal heir (Exh.P-3). On 3-12-1986 the respondent moved an
application for recording the statement of Farid Bakhsh through a local commission upon which
Malik Manzoor Ahmed Awan, Advocate, was appointed as a local commission who recorded his
statement on 6-12-1986 which is on the file as Exh.DA/5. Resultantly, on 28-7-1987 the suit was
decreed. On 10-3-1988 said Farid Bakhsh died and on 9-5-1988 the petitioners moved an
application under section 12(2), C.P.C. against the judgment and decree dated 23-7-1997 on the
ground that it was the result of fraud and misrepresentation claiming that petitioners being the
nephews of the deceased Farid Bakhsh were entitled to inherit his property as he was Shia by
sect, therefore, respondent could not inherit his property for being issueless, and that the land
was not gifted to her as additional dower. The property thus mutated on 19.5-1994 vide No.1068
to petitioners was valid. On 24-5-1992 the said application was allowed, the suit was restored
and the petitioners were consequently arrayed as defendants. On 2-1-4993 issues were framed. In
the suit neither the documentary nor the oral evidence was produced by the petitioner but
evidence was given by the respondent. On 9-3-1994 the suit of the respondent was dismissed but
the appeal was allowed on 18-9-1995 and the case was remanded for a fresh decision. During the
remand proceedings two additional issues were framed by the trial Court and the parties were
directed to produce their evidence. The respondent adduced her evidence but the petitioners
relied upon their previous evidence.

3. The respondent appeared as P.W.4, Malik Manzoor Ahmad Awan, Advocate appeared as
P.W.2, Murid Hussain as P. W .3 (tenant in cultivating possession of land in question) while
petitioners did not produce any evidence on the issue framed but relied upon the earlier evidence.
On 27-6-1997 the suit was decreed by the Civil Judge Rajanpur and the appeal was dismissed on
10-3-1998, by the Additional District Judge, Rajanpur. Hence this revision petition.

4. Learned counsel for the petitioners submits that issues were not properly framed on the
question whether Farid Bakhsh remained in cultivating possession till his death; that different
modes were provided for gift under Shia Law; that the stance of the respondent is changing as
somewhere she has stated the transaction as oral gift then it was described as additional' dower,
then discovered it as grant and finally considered it as a will and as such the respondent is not
sure about its nature; the inheritance of the petitioners is admitted by the respondent; the
nikahnama Exh.A-6 does not contain any reference of this land in lieu of dower; that the trial
Court had failed to frame separate issues and also failed to give issue-wise finding.

5. Conversely, learned counsel for the respondent submits that there is no scope of revision
petition under section 115, C.P.C. against the concurrent finding, the application under section
12(2), C.P.C. filed by the petitioners was allowed where after there is hardly any question with
regard to misreading or non-reading of evidence; that the evidence recorded during the pendency
of application under section 12(2), C.P.C. cannot be treated as evidence; there is no requirement
to prove the increase of dower by her husband through witnesses; that the three pre-requisites of
a gift i.e. declaration, acceptance and delivery of possession are duly fulfilled and lastly submits
that the questipn of faith of the deceased Farid Bakhsh is not relevant as during life time there is
no difference in making of a gift by Muslim Shia or Muslim Sunni to the wife, whether issueless
or otherwise, during his life time if he enjoys a proper health, no revision is entertainable against
an order which was already appealed against; a compromise already signed and submitted in
court is valid; increase of dower is not to be specifically proved; a gift by husband to wife is a
Hiba-bil-Iwaz. He places reliance on Falak Khursheed v. Fakhar Khurshid and others (2006
SCMR 595); Ghulam Akbar v. Muhammad Ilyas and others (1992 MLD 2279 Karachi);
Muhammad Ashraf v. Shehzada Javed Iqbal and 6 others (2001 PSC 765); Mian Aziz A. Sheikh
v. The Commissioner of Income-Tax Investigation, Lahore (PLD 1989 Supreme Court 613),
Inayat Ullah v. Perveen Akhtar (1985 CLC 1454 (Lahore) and Mst. Charagh Bibi v.
Mst. Mehraj Bibi and 2 others 1998 CLC 796. In rebuttal learned counsel for the petitioners
submits that due to undue influence and other facts the gift becomes void.

6. I have heard the learned counsel for the parties and have perused the record.

7. The pivotal question is whether the respondent was gifted the land in question by her deceased
husband, Karim Bakhksh. The consenting written statement of the deceased husband as well as
his statement through the local commission admitting the gift is on record as Exh.P2 and Exh.P5,
respectively. As it was an additional dower, in the form of gift, therefore, it was not required to
be mentioned in the nikahnama Exh.PA/5 and even this increase is also not required to be proved
through evidence as held in Mimi Aziz A. Sheikh v. The Commissioner of Income Tax (PLD
1989 SC 613). A proper healthy Muslim cannot be invalidated on the ground that his legal heir
were deprived of their share as he enjoys un fettered powers to make a gift as laid down in "PLD
2006 SC 15". All what he has to do is to fulfil the ingredients of gift i.e. offer, acceptance and
transfer of possession. In case of a gift by husband to wife, even transfer of possession is not
essential. I am guided by the two judgments of the Apex Court on this issue which are reported
as 2010 SCMR 342 and 2006 SCMR 50.

8. Viewing from another perspective, the evidence recorded during the pendency of an
application under section 12(2), C.P.C. cannot be treated as evidence in the suit on merits, as
held by the Hon'ble Supreme Court in Muhammad Ashraf v. Javed Iqbal and 6 others (2001 PSC
765). Since this Civil Revision was filed against the order passed in an application under section
12(2), C.P.C. upheld by the appellate court, therefore, the same is not competent. I again draw
strength from the Hon'ble Supreme Court of Pakistan in the judgment titled Falak Khurshid v.
Fakhar Khurshid and others (2006 . S C MR 595).

9. All questions raised in this Civil Revision are already correctly answered by the two courts
below. No additional issues was required to be framed. I do not find any misreading/non-reading
of evidence resulting into illegality or any jurisdictional defect therefore, this civil revision has
no force and is dismissed with no order as to costs.

KMZ/H-23/L Petition dismissed.


2011 C L C 1734
[Quetta]
Before Ghulam Mustafa Mengal and Muhammad Noor Meskanzai, JJ
Malik GHULAM AKBAR KHAN through L.Rs. and others----Appellants
Versus
Al-Haaj ABDUL RAZIQ KHAN and another----Respondents

R.F.As. Nos.5 and 6 of 2001, decided on 1st July, 2011.

(a) Civil Procedure Code (V of 1908)---

----O. VII, R.1---Plaint---Non-mentioning of specific cause of action and relief claimed in
the plaint---Such relief could not be granted.

(b) Civil Procedure Code (V of 1908)---

----O. VI, R.1---Pleadings---Evidence produced beyond pleadings was inadmissible.

(c) Islamic law---

----Gift---Preferential gift---Exclusion of other co-heirs---Scope---Claim of preferential gift
in exclusion of other co - heirs is something which should have been proved by
donees and not by other co-heirs---Preferential gift, which culminates in deprivation
of rights of other legal heirs, requires to be proved in stricto sensu.

(d) Islamic law---

----Gift---Proof---Attorney, statement of---Non-appearance of donees---Defendants claimed
to be the owners in possession of suit property on the basis of gift executed in their favour by
their predecessor-in-interest---Validity---Statement of attorney of defendants lacked
fulfilment regarding prerequisites of gift, who himself was neither a witness of gift i.e. verbal
or written nor for that matter in his statement he stated that offer by donor was made and the
same was accepted by donees pursuant to which properties were gifted nor possession was
delivered---Lack of such version in statement of attorney enfeebled the instance of donees
who did not appear before Court to verify and confirm their claim regarding gift ---High
Court discarded and disbelieved the whole ocular evidence produced by donees as they failed
to prove execution of gift in their favour and directed to distribute the properties among all
heirs of deceased owner in accordance with their Sharai shares.

Phaphan v. Muhammad Bakhsh 2005 SCMR 1278; Muhammad Faisal v. State Life
Insurance Corporation 2008 SCMR 456; Nusrat Zohra v. Azhra Bibi PLD 2006 SC 15; 2007
SCMR 635 and PLD 1990 SC 1 ref.
2010 SCMR 342 rel.

(e) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Gift---Revenue record---Entries---Proof of ownership---Scope---Revenue entries
effected as per S.42 of West Pakistan Land Revenue Act, 1967, are a report i.e. factum of
acquisition of any right in an estate to Patwari and is a mere mini sterial act which do not
confer or extinguish any right in property---No witness or respectable is required either to
accompany the person to report acquisition of such an interest to Patwari nor presence of
two witnesses are necessary while entering of a mutation under section 42 of West Pakistan
Land Revenue Act, 1967---Even if donor of gift himself does not go to Patwari for such
purpose, the same is of no consequence.

(f) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42(7)---Attestation of mutation---Procedure---Presence of the person whose right has
been acquired and identification of such person by at least two persons i.e. Lumbardar or
Member of Union Council etc. is inevitable.
2005 SCMR 911 rel.

(g) Islamic law---

----Gift---Proof---Revenue record---Scope---Except exhibition of revenue record none of the
witnesses of alleged gift were produced by donees---Validity---To prove factum of gift
donees did not state as to the persons before whom attestation as contemplated by S.42(7) of
West Pakistan Land Revenue Act, 1967, had died or were not available---Gift was doubtful
in circumstances.
2000 SCMR 346 rel.

(h) Islamic law---

----Gift---Preferential gift---Proof---Plaintiffs were illiterate and Pardanashin ladies who
were co-sharer in gifted properties---In the garb of revenue entries, unless defendants proved
that not only the entries in revenue record but ingredients of gift were satisfied by procuring
independent, confidence inspiring and cogent evidence, plaintiffs could not be deprived of
their ancestral rights in circumstances.

(i) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Revenue entries---Determination of title---Scope---Revenue entries itself do not
confer any right or title to a person in whose favour the same have been rendered.
2004 SCMR 1502 rel.

(j) Specific Relief Act (I of 1877)---

----S. 42--- Declaration of title--- Limitation--- Co-sharers--- When plaintiffs and defendants
are co-owners in the legacy of their predecessor-in-interest, no limitation would run in
such cases.
Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 and Muhammad Saddique v. Raj
Begum 2008 CLC 61 distinguished.

(k) Specific Relief Act (I of 1877)---

----S. 42---Declaration of title---Gift, non-assailing of---Effect---Plaintiffs sought recovery of
their legal shares from the properties left by their predecessor-in-interest---Defendants
contended that suit properties were gifted in their favour and as the gifts were not assailed
therefore, plaintiffs did not have any cause of action---Validity---Plaintiffs could not be non-
suited merely because gifts had not been challenged---To ascertain the plaint, not only form
but frame and substance of the plaint was to be taken into consideration and adhered to.

(l) Administration of justice---

----Relief, moulding of---Scope---Court is competent to mould any relief if party is
found entitled in accordance with his/their rights.

2006 SCMR 688 rel.
Malik Azmatullah Khan Kasi for Appellants.
M. Aslam Chishti and Behlal Kasi for Respondents.
Date of hearing: 4th April, 2011.

JUDGMENT

GHULAM MUSTAFA MENGAL, J.--- Through this common judgment we intend
to dispose of R.F.As. Nos.5 and 6 of 2001 as both the appeals are arising out of same
judgment dated 11.12.2000, passed by learned Senior Civil Judge-I, Quetta in Suit No.199 of
1999 whereby the suit has been partly decreed in favour of plaintiffs.
2. Facts relevant for disposal of instant appeals are that t he plaintiffs/appellants
instituted a suit for declaration, cancellation of mutations, partition, possession, injunction,
mesne profits and consequential relief against respondents in the Court of learned District
Judge, Quetta which was later on transferred to the file of learned Senior Civil Judge-I,
Quetta. It was averred in the plaint that appellants Nos.1 to 3 are son and daughters of late
Bibi Dilbara legal heir of late Haji Abdullah Jan, whereas the appellants Nos.4 to 7 and
respondents Nos.1 to 5 are sons and daughters of late Haji Abdullah Jan. Respondents Nos.6
to 19 are grandsons and granddaughter of late Haji Abdullah Jan, who died in the month of
January, 1988 leaving behind following properties:---
(i) Property situated in Mahal Sirki Khurd, Mauza Sirki Tappa Saddar Kasi, having
Mutation No.1352 measuring 12 rod and 35 poles, bearing Khasra No.461.
(ii) Property bearing Khasra Nos.1880/482, 1882/482, Mutation No.505, situated in
Mahal Chak Sirki, Mouza Kasi, Tappa Saddar Kasi, measuring 7 rod and 25 poles.
(iii) Property bearing Khasra Nos.605/129, 606/129, 130/131/732, 707/132, 157/158,
Mutation No.1333, measuring 92 rod and 4 poles (7 kittas) situated in Mahal
Chashma Tirkha Mouza Tirkha, Kasi, Tappa Saddar Kasi, Tehsil and Di strict Quetta.
(iv) Property bearing Khasra Nos.1835/9.8.5, 1792/16, 2060, 1849/16, Mutation No.1184,
measuring 4 rod and 12 poles, situated in Mahal Khushkaba Kasi, Mouza Shaldara,
Tappa Saddar, Tehsil and District, Quetta.
(v) Property bearing 26 kittas, having Khasra Nos.305/308/309/310/313, Mutation
No.203, measuring 20,434 square feet, situated in Mahal and Mauza Ward No.48,
Tappa Urban, Tehsil and District Quetta (Shops and stores).
(vi) Property bearing Khasra Nos. 258/259/270/314, Mutation No.205, situated in Ward
No.47, Tappa Urban, Tehsil and District Quetta, measuring 60,774 square feet (5
kittas).
(vii) Property bearing Khasra Nos. 244/247/248/246/243/245 Mutation No.237,
situated in Mauza Ward No.15, Tappa Urban, Tehsil and District Quetta, measuring
1283 square feet (6 kittas), having old Khasra No.1451 Ward No.1.
(viii) Property bearing Khasra Nos. 360/1, 360/2, 360/3, 360/4, 360/5, 360/6, 360/7,
360/8, 360/9, 360/10, 360/11, 360/12, 360/13, 360/14, 360/15, 360/16, 360/17,
360/18, 360/19, 360/20, 360/22, 893/361, 894/361, 895/361, 896/361, 897/361,
898/361, 900/361, 901/361, 902/361, 904/361, 905/361, Intiqal No.52, measuring 1,
05,569 square feet (shops and open plot) situated in Ward No.28, Tappa urban, Tehsil
and District Quetta (old Ward No.13).
(ix) Property bearing Khasra Nos. 814/88, 815/88, 818/88, 817/88, Mutation No.91,
measuring 38,716, situated in Mahal and Mauza Ward No.49, Tappa Urban, Tehsil
and District Quetta (Old Khasra No.6335, old Ward No.19).
(x) Property bearing Khasra No.20, Khawat No.239 Khatooni No.263, measuring 2 rod
and 38 poles, situated in Mahal and Mauza Khushkaba Karezat, Tappa Kechi Baig,
Ward No.48, Tehsil and District Quetta. (Note:- This is Shamlat property).
(xi) Property bearing Khasra Nos.58/126/150, 156/ 158/ 540/165, 166/167,
172/190/209/200 /213/217/ 218/ 219/ 225/489/490/493/499/501/504/505/538/506,
537/506, 507/510, 511/3, 143, 145/149/151/695/443, 191/699/544/191, 717/702,
545/191, 714/719/191, 745/192, 747/191, 751/191, 753/191, 764/191, 769/191,
770/191, 774/191, 779/191, 782/191, 786/191, 788/191 Mutation Nos.1145, 323, 328,
341, 327, 324, 338, 336, 366, 490, 510, 406, 502, 370, 371, 372, 368, 367, 373, 492,
493, 367, 376, 519, 504, 379, 498, 500, 503, 495, 524, 614, 494, 374, 375, 520, 378,
489, 499, 501, 377, 505, 584, measuring 96 rods and 36 poles (50 kittas), situated in
Chasma Hudda, Mouza Hudda, Tappa Saddar Kasi, Tehsil and District Quetta.
(xii) Property bearing Khasra Nos. 17/ 59/ 279/ 329/ 334/ 347/ 391/ 399/ 113/ 150/
158/ 160/ 178/ 235/ 236/ 239/ 264/266/ 455/11/ 26/312/ 520/16, 330/379/ 387/392/
393/395/ 111/121/ 139/60/ 359/535/ 378/396/ 98/
144/159/233/237/240/461/482/242/368/ 370/ 385/ 251/ 252/ 253/ 337/ 354/ 366/ 390/
151/ 228/ 245/ 247/ 249/ 255/ 258/ 257/ 347, Mutation No.163, measuring 844 rods
and 32 poles (69 kittas), situated in Mohal Chashma Baleli, Mouza Baleli, Tappa
Baleli, Tehsil and District Quetta.
3. After the death of late Haji Abdullah Jan the respondents instead of partitioning the
legacy left by their predecessor amongst heirs, in accordance with injunction of Islam,
illegally and in a concealing manner transferred property mentioned at S.No.1 to 9 in favour
of Abdul Khaliq, Abdul Raziq, Malik Abdul Sadiq, Abdul Malik and Abdul Ghafoor by
means of Intiqal-e-Warasat Nos.1352, 505, 1333, 1184, 203 and 205 attested on 7th July,
1994, 26th June, 1995 and 2nd July, 1997 respectively while property mentioned at S.No.10
is still subsisting in the name of late Haji Abdullah Jan and the remaining properties have
been transferred in favour of respondents or their predecessor by way of gift etc. in a
suspicious manner during the `Marazul Mot' ( ) of predecessor-in-interest of parties. It
was further averred in the plaint that despite hectic efforts appellants failed to know t hat how
properties mentioned at S.Nos.11 and 12 have been transferred in favour of respondents or
their predecessors. Despite above, the respondents (sons of late Haji Abdullah Jan) also
disposed of certain properties depriving daughters of late Haji Abdul lah Jan from their
shares.
4. The suit was contested by respondents Nos.1 to 3, 6 to 10 and 13 to 19 by way of
filing joint written statement wherein besides raising certain legal objections regarding suit
being barred by time, not maintainable, non-joinder of necessary parties etc. the same was
contested on merits as well. It was averred in the written statement that properties at S. Nos.1
to 6 and 10 were in the name of their predecessor-in-interest at the time of his death,
however properties mentioned at S.Nos.3, 7, 8, 9, 11 and 12 were either transferred in their
names in early 60s and 70s as 'Hiba' which was accepted by donees and possession was also
delivered to them or the same was purchased by Dr. Abdul Malik (respondent No.2) or late
Abdul Sadiq in the name of his father as "Benamidar' as such; it could not be said that the
above referred properties were legacy left by late Haji Abdullah Jan nor anybody has right
over the same. Property mentioned at S.No.10 is "Shamlat land" and is in possession of
Jattak Tribe. So far properties at S. Nos.1, 2 and 4 to 6 are concerned, though the same were
in the name of late Haji Abdullah Jan at the time of his death but the father during his life-
time gave all these properties to his sons by means of family arrangement. The daughters
were either, paid proportionate to the value of properties then existed or in the shape of
jewelleries. The said family settlement was not only accepted by all the legal heirs including
daughters but the same was also acted upon. The daughters were also beneficiaries of family
settlement. The properties were usurped by different persons/tribe and the sons recovered
possession of same after litigation/negotiations and spending lot of time and money. After
recovery of possession the properties were improved by spending millions of rupees.
5. After filing written statement by respondents, appellants submitted replication to the
written statement wherein it was averred that no limitation run against co-sharers (appellants)
because appellants came to know about facts of distribution of properties amongst
respondents in the month of January, 1999. No family settlement has ever been made. The
property can easily be partitioned between the co-sharers. Respondents have themselves
admitted that property mentioned at S.Nos.1 to 6 and 10 in the plaint were in the name of late
Abdullah Jan. According to them property at S.Nos.7, 8, 9, 11 and 12 was gifted to them by
predecessor in his life time. Properties at S.Nos.11 and 12 have fraudulently been transferred.
This fact can be detected from signatures of late Haji Abdullah Jan put upon different other
documents and one available on transferred document. The witness of said document namely
Ch. Abdul Ghani was a close friend of respondent No.2 and was a Revenue official.
Possession was never passed on to any of respondent pursuant to gift. According to
appellants, had late Haji Abdullah Jan given properties to his sons by way of family
arrangement; he would have transferred the same in their names. Payment of proportionate
shares to the daughters in shape of cash amount or jewellery and fact of family settlement
were also denied. With regard to raising construction over certain properties, it was
submitted that on small portion of land construction has been raised which too from the
pocket of late Haji Abdullah Jan in his life-time. In agreement (Khangi-Taqseem Nama)
dated 8th April, 1989 no reference to any previous settlement has been made which means
that nothing was done before the said agreement. As per replication, had there been any
settlement in the year, 1971 with consent of all the parties, there would have been no
necessity to enter into agreement (Khangi-Taqseem Nama) dated 8th April, 1989 which too
without referring to earlier settlement. So far Intiqal-e-Warasat is concerned, the same was
effected without producing any `Sharia Fatwa' and disclosing name of other legal heirs. The
Intiqal-e-Warasat itself contravenes the stand of respondents because, had there been any
settlement between the heirs of late Haji Abdullah Jan the same would have been acted upon.
6. The learned trial Court initially framed following issues for determination: ---
1. Whether suit is time barred and liable to be dismissed?
2. Whether suit is not maintainable in view of legal objections (B), (C) and ( E) of W/S?
3. Whether properties at Serial Nos.1, 2, 4, 6 and 10 of plaint have been given to
defendants as result of family settlement in 1971?
4. Whether properties at S. Nos.1 to 6 are not partitioned?
5. Whether properties at S. Nos.3, 7, 8, 9, 11, 12 have been given to defendants in Hiba
by late Abdullah Jan in 60s and 70s?
6. Whether plaintiffs are entitled for relief claimed?
7. Relief?
7. After framing of above issues on 17th April, 2000 appellants filed an appl ication
under Order XIV Rule 5 read with section 151, C.P.C. for framing additional proposed
issues. The application was contested by respondents, however the learned trial Court vide
order dated 15th May, 2000 allowed the application by framing following two additional
issues:---
1. Whether the properties left by late Haji Abdullah Jan have fraudulently and
fictitiously being transferred in favour of the defendants, if so, to what effect?
2. Whether the defendants Nos.13 to 19 are falling within the category of legal heirs of
late Haji Abdullah Jan, as their father died in the life time of their grandfather?
8. After framing additional issues, the parties were directed to adduce evidence in
support of their respective claims. Appellants produced following P.Ws.
(i) P.W.1 deposed that the parties are known to him. They are brothers and sister and
successors-in-interest of Haji Abdullah Jan. Haji Abdullah Jan had properties at Kasi
Road, Sirki Road, Jan Muhammad Road, Baleli, Hudda and Sabzal Road. After death
of Abdullah Jan defendants distributed the properties amongst themselves. Nothing
was given to daughters of Haji Abdullah Jan.
ii. P.W.2 deposed that the parties are known to him. They are sons and daughters of Haji
Abdullah Jan. Haji Abdullah Jan had properties at Kasi Road, Akhtar Muhammad
Road, Jan Muhammad Road, Baleli, Hudda and Killi Shabo. After 1-1/2 years of
death of Abdullah Jan he came to know that the daughters of late Haji Abdullah Jan
have been deprived from the legacy by the sons of Haji Abdullah Jan and distributed
the properties amongst themselves. Nothing was given to daughters of Haji Abdullah
Jan.
iii. P.W.3 deposed that the parties are known to him. They are sons and daughters of Haji
Abdullah Jan. Haji Abdullah Jan had properties at Sirki Road, Jan Muhammad Road,
Baleli, Hudda and Killi Shabo. Haji Abdullah Jan was survived by four sons and eight
daughters. After death of Abdullah Jan his sons distributed the properties amongst
them and deprived their sisters from their sharai right. He came to know about this
fact after 1-1/2 years of death of late Haji Abdullah Jan.
iv. P.W.4 Revenue official produced revenue record as Exh.P/1 to Exh.P/46.
v. Malik Azmat Ullah Attorney for plaintiff deposed that he is son of plaintiff No.1
Malik Ghulam Akbar who is son of Bibi Dilbara. The latter was elder daughter of late
Haji Abdullah Jan. She died in the year 1997 whereas Haji Abdullah Jan died in the
year 1988. Defendants Nos.1 to 3 are brothers of Bibi Dilbara whereas defendant
Nos.4 to 7 are her sisters. Defendants Nos.13 to 19 are grandsons of late Haji
Abdullah Jan and sons of Abdul Sadiq who died in the year 1972. Defendants Nos.6
to 10 are sons and daughters of Abdul Khaliq Khan elder son of late Haji Abdullah
Jan. Defendants Nos.13 to 19 does not fall within the definition of legal heirs of late
Haji Abdullah Jan because their father died in the life times of late Haji Abdullah Jan.
Properties of Haji Abdullah Jan are situated at Jan Muhammad Road, Kasi Road,
Arbab Khudai Dad Khan Road, Malik Mano Jan Road Hudda, Sirki Road, Sadiq
Shaheed Park, Chashma Baleli, Chashma Tirkha, Chashma Hudda, Killi Shabo,
Sariab Road and at different other places. After death of late Haji Abdullah Jan
defendants Nos.1 to 3, 6 to 10 and 13 to 19 with connivance of each other and on the
basis of fake 'Fatwa' during the period commencing from 1994 to 1997-98 transferred
the properties of late Haji Abdullah Jan on their names. Plaintiffs were not aware of
this fact. In the year 1999 they came to know about the secret distribution of property.
After coming to know about the distribution of properties, plaintiffs obtained Intiqals
of property from Tehsil and it came to their knowledge that the defendants have
transferred the properties of late Haji Abdullah Jan on their names on the basis of fake
`Hiba' and forged signatures.
Thereafter in rebuttal respondents examined following defence witnesses: ---
i. D.W.1 Haji Muhammad Akbar deposed that parties are known to him. Haji Abdullah
Jan was survived by five sons and nine daughters. Haji Abdullah Jan had several
properties. Haji Abdullah Jan had transferred some properties in his life time on the
names of his sons. Sons of Haji Abdullah Jan are managing the properties which were
not gifted. Fate of said properties had not been determined by Haji Abdullah Jan. He
has no knowledge about the decision of Haji Abdullah Jan regarding his sons. In the
year 1970-71 Haji Abdullah Jan gifted some land for house to Malik Usman.
In cross-examination he stated that he has no knowledge about the properties gifted
by Haji Abdullah Jan to his sons. He admitted that was not made in his presence.
ii. D.W.2 Jan Muhammad deposed that the parties are known to him. Haji Abdullah Jan
owned properties at Kasi Road, Baleli, Tirkha, Sariab Road, Deba, Arbab Khudai Dad
Road, Sooraj Ganj Bazar and Jan Muhammad Road. Haji Abdullah Jan, in his life
time gifted his properties to his sons and the daughters were given cash and
jewelleries.
In cross-examination he stated that he does not know which property was gifted by
Haji Abdullah Jan to his sons. He is not aware whether the gift transaction was verbal
or written. He admitted that gift was not made in his presence.
iii. D.W.3 Faiz Muhammad representative Sadar Qanoongo produced revenue record
Exh.D/1 to Exh.D/6. In cross-examination he stated that the Exh.D/1 is neither signed
by donee nor donor.
iv. D.W.4 Muhammad Ashraf son of Muhammad Rafiq was tenant of shop rented out to
him. He has not uttered a single word regarding gift.
v. D.W.5 Abdul Ghaffar son of Muhammad Hussain is also a tenant of shop rented out
to him. He has not uttered a single word regarding gift.
vi. D.W.6 Abdul Zahir is a `Bazgar' (tenant) in the Agricultural lands of Haji Abdullah
Jan. He deposed that prior to him, his father was Bazger in the lands of Haji Abdullah
Jan. For the last 25 years he is Bazger. Initially the lands were not levelled which
were levelled by Malik Sadiq. He further deposed that two tube wells were installed
by Malik Sadiq and one by Dr. Malik on the land in dispute. Dr. Nasir also
constructed a market on the land. Land produce was/is being, received by Malik
Sadiq, Dr. Malik and Dr. Nasir. 25/30- years ago Malik Sahib brought Patwari on the
lands. At that time distribution had taken place. Haji Abdullah Jan was alive and he
had brought Patwari.
In cross-examination he stated that Haji Abdullah Jan used to visit the lands.
vii. Dr. Abdul Nasir attorney for defendants deposed that Haji Abdullah Jan had five sons
and nine daughters. To avoid any complication, in his life time Haji Abdullah Jan
made decision regarding his properties. During 1961-1979 he gifted properties
mentioned at S.Nos.7, 8, 9, 11 and 12 to his sons. Daughters of late Haji Abdullah Jan
was paid their proportionate share in shape of cash and jewellary. Plaintiffs had
knowledge of all the facts.
In cross-examination he admitted that after death of Haji Abdullah Jan there are no
documents which could show that the properties have been distributed. He also
admitted that apart from the properties gifted by Haji Abdullah Jan all the properties
were in the name of Haji Abdullah Jan even after his death. He admitted that after
1995 in all the Intiqals only defendants were shown as legal heirs of late Haji
Abdullah Jan and it was not disclosed that Haji Abdullah Jan was also survived by
daughters. He admitted that all the Intiqals carried out on the basis of `Hiba' were not
witnessed by anybody
9. After recording evidence pro and contra, appellants filed written arguments, however
the respondents orally argued the case. The learned trial Court after evaluating the evidence,
written arguments and hearing counsel for respondents vide judgment and decree dated 11th
February, 2000 partially decreed the suit by setting aside mutations of inheritance and
cancelling the mutation of gift (Exh.D/1), however the suit to the extent of remaining claims
was dismissed.
10. Feeling aggrieved from the judgment and decree referred to hereinabove, appellant
preferred R.F.A. No.5 of 2001 to the extent of findings on Issues Nos. 5, 6 and 7 and non-
disposing of additional issues whereas the respondents since were also aggrieved of the
judgment and decree also preferred R.F.A. No.6 of 2001. This Court after hearing the
arguments passed judgment on 31-12-2001. The judgment passed by this Court was assailed
before the Hon'ble Supreme Court of Pakistan and the Hon'ble apex Court vide order dated
5-5-2010 remanded back the cases to this court with directions to decide the same after
hearing the parties.
11. Malik Azmat Ullah Kasi, attorney for appellants filed written arguments, whereas
respondent's were represented by Mr. Muhammad Aslam Chishti, Advocate.
12. Malik Azmat Ullah Kasi attorney for appellants urged in written arguments that
counsel for respondents has candidly conceded that respondents failed to substantiate their
claim regarding properties which have been transferred through INTIQAL-E-WARASAT
except one purchased by appellant No.2. Burden to prove Issue No.5 was upon respondents
who in support of said issue produced D.W.1, D.W.2 and recorded statement of their attorney
but perusal of statements of these witnesses would show that the same are silent that when
and in which circumstances 'Hiba' transactions were carried out. The witnesses contradicted
each other regarding exact date, place and time of the declaration of gift. On the contrary the
witnesses categorically admitted that the lady co-sharers have right in the legacy left by their
father. Perusal of documentary evidence contravenes the stand taken by respondents.
According to respondents properties in Mohal and Mouza Chashma Baleli, Tappa Baleli
were transferred on 20th October, 1979 whereas the alleged donee signed the same on 16th
September, 1979 which reveal that before declaration of gift by the donor, same was
accepted by the donee. Disparity of signatures of donee is visible on gift mutation and other
documents. There are glaring contradictions in the statement of attorney of respondents who
during recording his statement tried to blow hot and cold in one breath. An amazing stand
has been taken by respondents that family settlement was arrived in the year, 1971 between
the parties and the daughters were paid cash and jewellery. The respondents failed to
substantiate their claim because, had any family settlement arrived in the year, 1971 there
was no need for the late father to gift the other properties in the year, 1979 and onward. On
one hand the respondents claim to be owners of the properties on the basis of 'Hiba' and on
the other hand the same were transferred in their name by Haji Abdullah Jan by means of
Iqrar-Nama/Khangi-Taqseem dated 8th April, 1989. Respondents failed to prove the three
basic requirements of gift namely (1) declaration (2) acceptance (3) delivery of possession.
This Court on one hand has to interpret the Holy Quran "NO SOONER A MUSLIM DIES
HIS PROPERTIES DEVOLVES UPON HIS LEGAL HEIRS" and on the other hand this
Court has to give verdict on the question whether respondents No.13 to 19 can be termed as
legal heirs of late Abdullah Jan as their father has died in the year, 1972. According to
respondents in the year, 1971 owing to family settlement the properties were distributed and
they became owners of the same. On the contrary during arguments a plea was raised that as
per section 4 of the Muslim Family Law Ordinance, 1961 the said respondents are legal
heirs. According to learned counsel section 4 of Muslim Family Law Ordinance, 1961 only
applies where attestation of mutation of inheritance has been carried out. Under Articles 72
and 78 of Qanun-e-Shahadat Order, 1984 respondents are bound to prove that a valid
transaction has been made in their favour. To prove the factum of 'Hiba' no witness was
produced by the respondents. So much so none of the donee appeared in the witness-box to
confirm the fact. So far limitation is concerned, it is constant view of Hon'ble Supreme Court
that no limitation runs against a co-sharer and the Islam recognize that the brothers cannot
legally claim adverse possession against sisters and much less ouster. Admitt edly properties
have been transferred after the death of late Haji Abdullah Jan and the same were not in the
knowledge of appellants so it can be presumed that the suit is well within time. He lastly
urged that while dealing the question of inheritance with the household, pardanasheen and
illiterate ladies the Court has only to see that the question of purported inheritance has been
by-passed by the brothers just to oust the lady co-sharers from the legacy left by their
predecessor-in-interest.
Whereas on the other hand Mr. Muhammad Aslam Chishti, learned counsel for
respondents in R.F.A. No.5 of 2001, vehemently opposed the submissions so advanced and
the written arguments filed by appellants' learned counsel. He submitted that the suit is
hopelessly barred by time qua gift property --- subject-matter of Issue No.5. The properties
were gifted in lifetime of deceased Haji Abdullah Jan during the period commencing from
1960 up to 1979. The gifts were made absolutely in accordance with principle of Islamic
Law i.e. offer by the donor, acceptance by the donees followed by possession which is
continuous till today.
The learned counsel for respondents strenuously urged that the trial Court committed
material irregularity in disbelieving the factum of gift qua property at S.No.7 for the simple
reason that the signatures of donee are not available on mutation. It may not be irrelevant to
mention here that during pendency of the appeal he through Civil Miscellaneous application
filed copy of "Parth-e-Sarkar" wherein the signatures of Abdullah Jan are apparently
available. This document was brought on record without objection of learned counsel for
appellants, subject to all just exception. He emphatically argued that the plaint is absolutely
silent regarding the gifted property nor for that matter the gift has been challenged in stricto
sensu. The allegation regarding the gift in the plaint are of general nature which of course do
not cover the gifted property to the respondents made in their favour right from 1960 up to
1979. The plaint does not find mention a specific cause of action regarding the gifted
property, therefore, a relief if not claimed by a party, cannot be granted by the Court.
Similarly any evidence if produced by the appellants qua the gifted property cannot be
considered as the same is beyond the pleadings. The learned counsel stressed that the law on
the subject stand settled that the evidence beyond the pleading is inadmissible. The learned
counsel strenuously urged that the appellants were well aware regarding the transaction of
Hiba because they were satisfied, therefore, did not object at the relevant time nor for that
matter soon after the death of their father they challenged the transaction of Hiba. Learned
counsel went on to say that even the present proceedings also do not call in question the
validity, propriety and legality of the gift. Learned counsel contended that the burden to
prove the issues was upon appellants which they badly failed to discharge. Under such
circumstances the trial Court rightly decided Issue No.5 in favour of respondents. The
longstanding Revenue entries coupled with possession of property are sufficient enough to
prove the factum of gift in favour of respondents. To substantiate his view reliance was
placed on the following judgments::---
(i) 2007 SCMR 1446 (Atta Muhammad v. Maula Bakhsh).
(ii) 2005 SCMR 1278 (Phaphan v. Muhammad Bakhsh).
(iii) 2008 SCMR 456 (Muhammad Faisal v. State Life Insurance Corporation.
(iv) PLD 2006 SC 15 (Nusrat Zohra v. Azhra Bibi);
(v) 2008 CLC 61 (Muhammad Saddique v. Raj Begum).
12. We have considered the contentions advanced by the parties' learned counsel and
have gone through the record minutely. The learned trial Court has framed as many as 7
issues. While dealing with Issue No.1 the trial Court has observed that the suit is within time.
It is pertinent to mention here that the respondents did not file cross-objections in R.F.A.
No.5 of 2001. We have gone through the record and found that the trial Court after proper
appraisal of material available on record, in the light of law of limitation has rightly
concluded that the suit filed by appellants was within time. In so far, Issue No.2 is
concerned, the objection raised in the written statement did not find favour to the respondents
because the trial Court after proper appreciation of law on the subject and keeping in view
facts and circumstances of the case has rightly rejected the legal objections. As far Issues
Nos.3 and 4 are concerned, since these issues were subject-matter of R.F.A. No.6 of 2001
which has been withdrawn and the defence have conceded to the suit that the properties at S.
Nos.1 to 4 except 1 have been held to be the legacy of late Haji Abdullah Jan, as such the
findings so rendered are hereby maintained to the extent of 1/4th of property subject-matter
of Mutation No.2056 (Exh.P/39).
13. Reverting to the crucial Issue No.5 of course subject-matter of R.F.A. No.5 of 2001,
though while framing this issue, the learned trial Court did not determine onus to be
discharged by which party, however the learned trial Court has wrongly shifted burden of
this issue upon appellants. As the matter pertains to the legacy of late Haji Abdullah Jan and
the parties are descendents of latter and the claim of preferential gift in exclusion of other co-
heirs is something which should have been proved by respondents and not by the appellants.
Analyzing the case from this perspective we may observe that the trial Court while dilating
upon the issue fell in error by holding that the burden to prove this issue was upon the
appellants. The wordings of the issue leave no room for doubt that the burden of proof was
admittedly upon respondents because it does not appeal to reason nor appears to be rational
that the appellants who proved that the property has actually been given to respondents by
Haji Abdullah Jan as Hiba. In such view of the matter the evidence produced by the
respondents is absolutely insufficient to prove the factum of gift. The evidence produced by
respondents has been referred to in para No.8. The respondents have produced five D.Ws.,
besides recording statement of their attorney. D.W.1 in his statement though stated that
Abdullah Jan had gifted some property in the name of his sons, however in cross-
examination he stated that he does not know that which of his property was gifted by late
Haji Abdullah Jan. He also admitted that the gift was not made in his presence. Moreover, he
has not stated that the appellants were ever aware of any gift in favour of sons of Haji
Abdullah Jan. D.W.1 stated that the gift was made in his presence in favour of Malik Usman
but admittedly no property has been gifted to respondents in presence of D.W.1. Perusal of
above statement makes it crystal clear that if the statement of D.W.1 is considered to be true,
three ingredients of Hiba do not find mention, therefore, the statement of D.W.1 is of no
avail. D.W.2 though stated that Abdullah Jan had gifted certain properties to his sons but in
reply to a question he stated that he has no knowledge about the properties of Haji Abdullah
Jan which was gifted by him. He has no knowledge that the gift transaction was oral or
written. He admitted that the Hiba was not made in his presence. D.W.3 Faiz Muhammad
representative Saddar Qanoongo deposed that Exh.D/1-A to Exh.D/6-A are correct according
to their record. In cross-examination he stated that in Exh.D/2 the acceptance was made only
by Dr. Abdul Malik on behalf of others. It is pertinent to mention that no power of attorney
executed in favour of Dr. Abdul Malik pertaining to that period has been produced nor in
the written statement it has been claimed that the gift was accepted by Dr. Abdul
Malik on behalf of rest of the donees. D.Ws.4 and 5 are tenants of the shops. The statements
of these witnesses are absolutely silent regarding the factum of delivery of possession of
disputed land to respondents as donees. So much so not a single word regarding the gift of
the property in-question by Haji Abdullah Jan in favour of his son has been uttered by them.
D.W.6 is Bazger who categorically stated that Haji Sahib predecessor-in-interest of parties
(Haji Abdullah Jan) used to visit the property in question but Haji Abdullah Jan has never
expressed before the said witness that he has gifted the property in question. The visits paid
by Haji Abdullah Jan of course can be treated a visit as owner of the property. The
respondents in the written statement have claimed the property either to have been gifted to
them or have been purchased by them or partitioned through family settlement meaning
thereby the plaintiffs are not entitled for any share from the property of Abdullah Jan as
according to respondents no legacy has been left but on the contrary Abdullah Jan has gifted
properties mentioned at S.Nos.3, 7, 8, 9, 11 and 12 in his life time before the witnesses. So it
can easily be derived that, had Haji Abdullah Jan gifted the properties or settled the same
among the male descendents, naturally the transaction may have been witnessed by some
independent person. It will not be out of place to mention here that the defendants Nos.4 and
5 have not filed the suit but they did not appear in witness box confirming that the daughters
were paid cash or they were compensated through jewellery and did not support the written
statement as a witness.
The ocular evidence produced by the respondents is not confidence-inspiring nor for
that matter satisfy/fulfil the standard of proof as required under the Islamic Law qua the gift.
Moreover, the statement of the attorney for the appellants lacks the fulfilment regarding
prerequisites of gift. It will not be out of place to mention here that the attorney himself was
neither a witness of gift i.e. verbal or written nor for that matter in his statement he stated
that the offer by the donor was made and the same was accepted by the donee pursuant to
which properties were gifted nor possession was delivered. Lack of such version in the
statement further enfeebles instance of respondents. It will not be irrelevant to point out that
none of the donees appeared before the court to verify and confirm their claim regarding the
gift. Under such circumstances, we have left with no option but to discard and disbelieve the
whole ocular evidence produced by the respondents regarding the factum of gift. By holding
this view we are fortified by the dictum laid down in the judgment reported in 2010 SCMR
342. Relevant observations are reproduced hereinbelow:---
"In the instant case, the parties are brother and sisters inter se. Exh.P.1 (gift deed)
recites that the donor (father) made a gift of the property in question in favour of
respondent No.1 (one of his daughters). The onus to prove the gift deed Exh.P.1 in all
its three facets, namely the declaration of gift by the donor, acceptance of the gift by
the donee and delivery of possession of the corpus of gift lay on the plaintiff -
respondent. An appraisal of evidence adduced by her does not prove the fulfilment of
the requirements regarding acceptance of gift by the donee and delivery of possession
to her. While appearing as P.W.1, she did not state that she had accepted the gift or
possession of the property was given to her. On the other hand, she merely stated that
the possession of the property was with her. Similarly P.W.3 Muhammad Zaman and
P.W.4 Muhammad Nawaz stated that the possession of the property was with the
plaintiff. The gift deed was executed on 15-2-2002 while the donor died on 23-
5-2002. During this period, the respondent-plaintiff did not get the property mutated
in her favour. The failure to clearly establish the twin requirement of acceptance of
gift and delivery of possession was fatal to the claim of the respondent -plaintiff.
However, none of the Courts below adverted to this aspect of the matter.
Consequently, it could not be said that a valid gift was made by the father of the
respondent-plaintiff in her favour."
14. Adverting to revenue entries, it may be observed that Exh.D/1 produced by D.W.3
also does not satisfy the standard of evidence qua the proof of gift for a variety of reasons (i)
the revenue entries effected as per section 42 of West Pakistan Land Revenue Act are a
report i.e. factum of acquisition of any right in an estate to Patwari is a mere ministerial act
which would not confer or extinguish any right in the property. According to section 42 of
Land Revenue Act, 1967 no witness or respectable are required either to accompany the
person to report acquisition of such an interest to Patwari nor the presence of two witnesses
are necessary while entering of a mutation in said connection. Even if the donor himself does
not go to the Patwari for said purpose the same would be of no consequence. However; in
this respect the most relevant and crucial act which requires much attention is the factum of
attestation of mutation within the purview of provisions of subsection (7) of section 42 of
Land Revenue Act, 1967.
"Except in cases of inheritance or where the acquisition of the right is by a
registered deed or by or under an order or decree of a Court, the Revenue Officer
shall make the order under subsection (6) in the presence of the person whose right
has been acquired, after such person has been identified by two respectable persons,
preferably from Lambardars or members of the Union Committee, Town Committee
or Union council concerned, whose signatures or thumb-impressions shall be obtained
by the Revenue Officer, on the register of mutations."
Perusal of above reproduced subsection (7) of section 42 of Land Revenue Act,
emphasizes and requires the presence of the person whose right has been acquired and the
identification of such person at least by two respectable persons i.e. Lumbardar or Member
of Union Council etc. is inevitable. Viewing the case of defence from this point of
view there is absolutely lack of compliance of subsection (7) of section 42 of Land Revenue
Act, 1967. Thus it can easily be concluded that the revenue entries so effected are offended
to the provision of subsection (7) of section 42 of the Land Revenue Act, 1967 and thus by
observing so we are fortified by the dictum laid down in the judgment of apex Court reported
in 2005 SCMR 911. Relevant observations therefrom are reproduced hereinbelow: ---
"In confirming the two judgments of the learned subordinate Courts as would appear
from para, 4 of its judgment, was influenced by the fact that it had been admitted by
Kabool Ahmed Councillor that he and Siddique donor had not gone to the Patwari for
the purpose of seeking entry of mutation of gift and this admission accordingly the
honourable High Court had taken away the "very bottom" of Khalil defendant's
assertion that a valid gift had been made in his favour and that the mutation in
question had been lawfully entered and attested. We say with respect that entering a
mutation or reporting the factum of acquisition of any right in an estate to the Patwari
was a mere ministerial act, which did not confer or extinguish any right in any
property and thus nothing really hinged on the same. As would be evident from
section 42 of Land Revenue Act no witnesses or respectables were required either to
accompany the person reporting acquisition of such an interest to the Patwari nor to
witness the entering of a mutation in the said connection. Therefore, even if it be
presumed that the witnesses in question or even the donor himself had not gone to the
Patwari for the said purpose, even then the same is of no consequence vis--vis the
validity of a consequently attested mutation. What is relevant is the factum of
attestation of mutation, which exercise had to be done by the Revenue Officer under
subsection (7) of the said section 42 of the Land Revenue Act, 1967 in the presence of
the person, whose right had been acquired after such person had been identified by at
least two respectable persons preferably from amongst the Lamberdar or member of
the Union Council etc."
15. It appears that except exhibition of the revenue record none of the witnesses of the
alleged gift were produced by the defence. In our considered view, t o prove the factum of
gift which makes the gift doubtful? It is not the case of respondents that the persons before
whom the attestation as contemplated by subsection (7) of section 42 of the Land Revenue
Act, 1967 has died or was not available. Under such circumstances the alleged gift becomes
highly doubtful. Reliance is placed on 2000 SCMR 346 (Relevant 354).
"The contention that the suit of Mst. Janatay Bibi was beyond time is also
misconceived in that the findings about the procurement of the gift rightly held to be
doubtful by the learned Additional District Judge and the learned Judge in Chambers.
The story of gift having been held to be doubtful, the same is in itself sufficient to
take the instant case out of the purview of the period of limitation prescribed in
Article 120 of the Limitation Act.
Before parting with this order, it may be observed that petitioners predecessor -in-
interest i.e., defendant Abdul Aziz did not enter the witness-box and thereby failed to
discharge the burden of proof on him to establish a valid gift. Further, the absence of
the Revenue Officer, who allegedly attested the mutation, is also conspicuous and
tells a lot about the nature of the alleged transaction of gift being what it has been
held to be by the Appellate Forum with which the High Court has concurred. The
learned Judge in Chambers considered the peculiar circumstances of this case and
rightly relied upon the case of Ghulam Ali (PLD 1990 SC 1) for coming to the
conclusion that the tendency in this part of the country that male members of the
family try to deprive the females of their legitimate inheritance is dying out by inches
and that the very spirit of this tendency is kept alive by perpetrating fraud with the
connivance of the Revenue Officials.
16. Even otherwise the admitted facts as per the case are that all the appellants/plaintiffs
are illiterate and "Parda Nasheen" ladies and in the garb of mere revenue entries unless
respondents prove that not only the mere entries the revenue record but much more i.e.
ingredients of gift are satisfied by procuring independent, confidence-inspiring and cogent
evidence the appellants cannot be deprived of their ancestral rights. We are conscious of the
fact and mindful of legal proposition a preferential gift despite reservations are not void
under the Islamic law but in case of preferential gift the ingredients of the gift are required to
be proved through strict, cogent and confidence-inspiring evidence. The revenue entries itself
are not sufficient. The status of revenue entries itself do not confer any right or title to a
person in whose favour the same has been rendered. Reliance is placed on 2004 SCMR page
1502.
"The learned Civil Judge rightly came to the conclusion that the documentary and
ocular evidence produced by Yara coupled with admission of the D.Ws. made it clear
that the plaintiff Yara was all along in possession of the suit -land consequently suit
would be covered by Article 120 of the Limitation Act and the person in possession of
the land would not be obliged to rush to the Court only on the basis of adverse entry
in the Revenue Record and in such a case plaintiff would get recurring cause of
action, by each adverse entry in the Revenue Record and the plaintiff would be sole
Judge of serious threat to his interest and be that as it may, the registered sale-deed
dated 16-8-1966 if considered to be serious attempt on the part of the defendant upon
the rights of the plaintiff the suit having been filed on 15-5-1967 would be
within time. The said finding of the learned Civil Judge was reversed by learned
District Judge who also failed to consider the ocular and documentary evidence
discussed and reasoned out by the learned Civil Judge in his judgment. There is no
cavil about the legal proposition that the entry in the Revenue Record is neither a
document of title nor a presumptive evidence of title and person may not feel
aggrieved of such entry and cause of action in such a case would not accrue when the
mutation order-in-original or appellate or revisional was made. The cause of action
would accrue when a person concerned would feel himself aggrieved of the situation
when he would feel it necessary to approach Court of law for relief which he
considered fit and proper in accordance with law. In the circumstances the contention
raised said above has no merit and substance."
17. In view of given facts, circumstances and the evidence produced by the
respondents we are satisfied that Issue No.5 has not been proved, as such; we reverse the
findings of the trial Court and hold that Issue No.5 has not been proved by the respondents,
as such; the same is resolved in negative against respondents and in favour of appellants.
18. Now coming to the arguments of learned counsel for the respondents that the suit is
barred by time. Since Issue No.1 has been resolved in affirmative and no cross-objection has
been filed by the respondents. Moreover; keeping in view the facts and circumstances of the
case and the doubtful nature of gift we do not subscribe to the contention. In our considered
opinion, the suit was filed within time. By holding the view we are fortified by the judgments
reported in 2007 SCMR page 635 and PLD 1990 SC 1. Relevant observation therefrom read
as under:---
"To the similar effect is the decision in Najabat and others v. Saban Bibi and others'
(PLD 1982 Supreme Court 187). It was held in the circumstances of that case that the
co-sharers/co-owners were not at all obliged to file a suit to seek a declaration to the
effect that a mutation had wrongly been sanctioned. It was also held that a suit filed,
due to denial of rights of the plaintiff/co-sharer, for declaration would be within time
and the Revenue authorities on success of such suit would be required by law to
correct the wrong mutation entries".
2007 SCMR 635.
It is a proposition too well-established by now that as soon as someone who owns
some property, dies, the succession to his property opens and the property gets
automatically and immediately vested in the heirs and the said vesti ng was not
dependent upon any intervention or any act on the part of the Revenue Authorities or
any other State agencies. It is also an established proposition that a mutation did not
confer on anyone any right in any property as the Revenue Record was mai ntained
only for realization of land revenue and did not, by itself confer any title on anyone. It
may also be added that afflux of time did not extinguish any rights of inheritance
because on the death of an owner of property, all the co-inheritors immediately and
automatically, became co-sharers in the property and as has been mentioned above,
limitation against them would start running not from the time of the death of their
predecessor-in-interest nor even from the date of mutation, if there be any, but from
the date when the right of any such co-sharers/co-inheritors in such land was denied
by someone."
19. Since the matter pertains to inheritance and otherwise plaintiffs and defendants are
co-owners and co-sharers in the legacy of Haji Abdullah Jan, therefore, no limitation would
run in such cases. The judgment reported in 2007 SCMR 1446 referred to by Messrs
Muhammad Aslam Chishti and S.A.M. Quadri, Advocates is not applicable as in that case
the plaintiff had failed to establish that they were descendents of the owners of the suit,
therefore, the case-law so referred does not help the respondents.
20. As far as the judgment reported in 2008 CLC 61 the facts are distinguishable, as such
the same is not applicable and helpless to respondents. As far as t he second limb of
arguments that no cause of action has been accrued to plaintiffs as they have not challenge
the gift specifically. The perusal of plaint reveals that the list of the entire property subject -
matter of gift according to appellants subject-matter of the gift has been given. It was the
case of defendants that the property has been gifted to them otherwise on the death of
Abdullah Jan all the heirs are entitled for their legal sharai share. Under such
circumstances the plaintiffs cannot be non-suited merely because gifts have not been
challenged. To ascertain the plaint not only the form but the frame and substance of the
plaint is to be taken into consideration and adhered to. Looking the case of respondents from
this perspective we do not find any force in the submission made by learned counsel for
appellant regarding non-accrual of cause of action or non-challenging of gifted property.
As discussed hereinabove, since the respondents have not proved the factum of gift,
therefore, the arguments has lost significance. We are conscious of the fact that legally court
is quite competent to mould and grant any relief to the party if it is found entitled in
accordance with his/their rights. By holding this view we are fortified by the judgment
reported in 2006 SCMR 688. Relevant observation therefrom are reproduced hereinbelow: ---
"As far as the objection of the learned counsel regarding the competency of the suit
after completion of construction is concerned suffice it to observe that the Courts are
not precluded from moulding the relief in view of the changed facts and
circumstances of a case to shorten the litigation between the parties as it has been held
in Amina Begum v. Ghulam Dastgir PLD 1978 SC 220".
22. As far as the contention that there is no bar in Islamic Law for making a preferential
gift, the argument so raised has got sufficient force and there is no cavil with the proposition
so advanced. However; a preferential gift which culminates in deprivation of the rights of
other legal heirs requires to be proved in stricto sensu. As discussed above while dilating on
Issue No.5 since the respondents have failed to prove Issue No.5, therefore, the gift which
has not been proved cannot be claimed to be a valid gift.
23. As far as the contention that the heirs of appellants Muhammad Sadiq are not entitled,
we have not been able to persuade ourselves to subscribe the view point so expressed by
counsel for appellants. Law on the subject stands settled, therefore, the descendents of
Muhammad Sadiq are entitled for the share of Muhammad Sadiq as per section 4 of
provisions of West Pakistan Family Law Ordinance, 1961.
In the light of above discussion, we are inclined to accept the R.F.A. No.5 of 2001
and reverse the findings rendered by trial Court on Issue No.5. Resultantly the property
subject-matter of Issue No.5 shall also be distributed among the heirs of late Haji Abdullah
Jan (plaintiffs and defendants) in accordance with their sharai share.
Along with R.F.A. No.5 of 2001 there is another appeal R.F.A. No.6 of 2001 since
facts of both the cases are same, therefore, we do not want once again to marshell the facts.
After arguing R.F.A. No.6 of 2001 for a considerable time, Mr. Muhammad Aslam
Chishti (Counsel for appellants in R.F.A. No.6 of 2001) submitted that he has prevailed upon
his clients that since appellants/defendants have not been able to prove that the properties
forming subject of Issue No.3 have been given to the defendants as a result of family
settlement. The properties at S. Nos.1, 2, 4, 6 and 10 acquired by them pursuant to the family
settlement arrived at in the year 1971 now shall be the legacy of Abdullah Jan and parties
shall be entitled to their legal/sharie share, however; the properties at S.No.6 subject -matter
of Issue No.3, Mutation No.205 situated in Ward No.47, Tappa Urban, Tehsil and District
Quetta measuring 60,774 Sq.Ft (5 kittats) produced as Exh.P/39, only 3/4th of this property
belonged to Haji Abdullah Jan. Whereas rest 1/4th of this property which belonged t o
Hakeem Shah who was the recorded owner to such extent, has been purchased by Dr. Abdul
Malik. According to learned counsel the measurement of the purchased property is 12845
Sq.Ft. According to

learned counsel the subject-matter of R.F.A. No.6 of 2001 except property at Serial No.6
Mutation No.205 Exh.P/39 to the extent of 1/4th of property referred to herein above (12845)
are legacy and all the parties are entitled to have their share in accordance with law.
Though in the written statement no specific plea of purchase has been raised,
however; since the learned counsel has frankly conceded to the factual position of the case,
therefore, while dismissing R.F.A. No.6 of 2001 we leave it open to the Executing Court to
exclude 12845 Sq.Ft subject-matter of Intiqal No.205 provided Dr. Abdul Malik produces
any cogent evidence which include revenue entries in the name of Hakeem Shah and
transferred in favour of Dr. Abdul Malik or a sale-deed in his favour. Resultantly, R.F.A.
No.5 of 2001 is accepted and R.F.A. No.6 of 2001 is dismissed with the above observations.
Decree sheet be drawn.
M.H./61/Q Order accordingly.


2011 Y L R 2980

[Peshawar]

Before Attaullah Khan, J

Mst. HAKIM BIBI and another---Petitioners

Versus

RAB NAWAZ KHAN and another---Respondents

Civil Revision Petition No.116 of 2004, decided on 20th June, 2011.

(a) Islamic Law---

----Gift deed---Proof---Scribe and marginal witnesses in their evidence had confirmed
execution of gift deed by donor in their presence---Ingredients essential for a valid gift
would be offer, acceptance and delivery of possession---According to scribe, donor was
known to him and that donee was in possession of property before gift ---Offer and
acceptance of gift stood proved from contents of gift deed itself and also from its signing
by donor and donee---Donee had proved through evidence such three ingredients of gift ---
Donee's suit was decreed, in circumstances.

(b) Islamic Law---

----Gift---Validity---Gift by a Muslim donor having proper health could not be invalidated
on ground that his legal heirs were deprived of their shares---Principles.

A Muslim donor has ample powers to gift his property during his life time subject to the
condition that he is in proper status of health. This power is unfettered. Gift cannot be
invalidated only because the legal heirs are deprived of their shares.

PLD 2006 SC 15 rel.

(c) Transfer of Property Act (IV of 1882)---

----Ss.123 & 129---Un-registered gift deed by a Muslim donor---Validity---No mode was
prescribed in Muslim Law for a gift, which might be made orally---Such deed was not
required to be registered.

1994 MLD 677 rel.

Muhammad Younis Thaheem for Petitioners.

Shaukat Hayat Khan Khakwani and Muhammad Arshad Kabir for Respondents.

Date of hearing: 20th June, 2011.


JUDGMENT

ATTAULLAH KHAN, J.--Through this revision petition, petitioners have impugned the
judgment/decree dated 3-4-2004 passed by learned Additional District Judge-I, D.I. Khan
vide which the appeal of petitioners was accepted by setting aside the judgment/decree
passed by learned Senior Civil Judge, D.I. Khan dated 11-10-2003 vide which the suit of
respondent/plaintiff was dismissed.

2. Facts of the instant revision are that respondent/plaintiff filed a suit for (1) decl aration
and permanent mandatory injunction in respect of the suit property fully described in the
heading of the plaint. The plaintiff asserted in the body of the plaint that he himself is
hissadar owner of suit-land. He is owner of the suit property of his brother Ahmad Nawaz
Khan who died issueless on the basis of gift deed dated 23-11-1992. That the brother of the
plaintiff died issueless on 15-5-1994, however, during his life time he resided with plaintiff
and plaintiff served him and in return of service of plaintiff, his brother gifted his whole
movable and immovable property to him vide gift deed dated 23-11-1992, while possession
of land was already with plaintiff. That after the death of his brother, plaintiff approached
the Revenue Officer in order to transfer the land in his favour where he carne to know that
inheritance Mutation No.1143 entered on 12-9-1994 in respect of land situated at village
Thatha and Mutation No.1019 in respect of land situated at village Gara Jamal and both the
mutations were attested on 22-5-1995 and 27-6-1995 respectively. That many demands
were made from the defendants to accept the rights of plaintiff but they refused, hence filed
a suit in the trial Court.

3. The petitioners / defendants appeared in the trial Court and submitted their written
statement. The trial Court after framing issues, directed the parties to produce their
respective evidence as they wished and after hearing the arguments from both sides the suit
of respondent/ plaintiff was dismissed vide judgment/ decree dated 11-10-2003.

4. Respondent/plaintiff impugned the judgment/decree of the trial Court before the learned
Appellate Court, who after hearing arguments of both the sides accepted the appeal of
respondent/plaintiff vide judgment/decree dated 3-4-2004 by setting aside the
judgment/decree of the trial Court, hence the instant revision petition.

5. Learned counsel for the petitioners argued mainly that gift deed has not been proved.
According to him the ingredients necessary for a valid gift offer, acceptance and delivery
of possession have not been proved, therefore, the learned appellate Court has wrongly
decreed the suit of the respondent.

6. On the other hand; .the stand of learned counsel for respondent is that all the ingredients
necessary for a valid gift has been established by respondent/ plaintiff, therefore, the suit
was rightly decreed.

7. Arguments heard and record on file perused, in the light of which my discussion is as
under.

8. The gift deed is on file which reveals that Ahmad Nawaz the donor has gifted the entire
property to Rab Nawaz, his brother, in lieu of service towards him. It is to be noted that
said Ahmad Nawaz died issueless. The deed was scribed by Umardaraz petition writer, who
was produced by respondent as P.W.4. The gift deed is Exh. P.W.4/ 1. According to his
examination-in-chief he has correctly scribed the gift deed in the presence of parties and
marginal witnesses. It is also in his cross-examination that donor Ahmad Nawaz was
known to him and he was his school mate. He has also stated in cross-examination that the
donee is in possession before gift. Haji Mukhtiar Hussain and Muhammad Ramzan who
were marginal witnesses of the gift deed appeared in the Court and they have confirmed the
execution of the. gift deed. For a valid gift deed, offer, acceptance and delivery of
possession is necessary. All these three ingredients have been proved through evidence.
The contents of the deed itself proved that offer and acceptance was made which is
established from the fact that donor and donee have signed it. Regarding possession it is
proved from the oral well as revenue record that the possession is with the donee. It is
settled principle of Islamic Law that a Muslim donor has ample powers to gift his property
during his life time subject to the condition that he is in F proper status of health. This
power is unfettered. Gift cannot be invalidated only because the legal heirs are deprived of
their shares. I rely on PLD 2006 Supreme Court 15. I have come across no evidence to
show that gift was invalid because of lacking of any ingredient. Offer and acceptance are
proved and similar is the case of delivery of possession. One of the objections of learned
counsel for petitioner is that the gift deed is unregistered. This obj ection is of no avail
because under the Muslim Law there is no mode prescribed for a gift. Gift may be made
orally. A gift deed is not required to be registered. I may rely upon 1994 MLD 677,
wherein it is held that a written gift deed is not required to be registered and without
registration it is admissible and valid. The relevant observations are at page Nos.683 and
684 which are reproduced below:--

"It is well-established legal proposition that a gift by Muhammadan can be created even
orally and even if some document is written either us gift or as an acknowledgement of gift it
does not require registration and it is definitely a very strong piece of evidence in favour of
the transaction of gift. Above view finds support from the law declared in case cited by
the learned counsel for the respondent Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3
others 1977 SCMR 154. At page 158 of the report it has been held as under:

"The objection founded on section 123' of the Transfer of Property Act is also misconceived.
Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under
Muslim Law, are expressly excluded from the operation of the Act. It is firmly established
proposition that under Muslim Law a valid gilt could be effected orally if the formalities
prescribed by the Muslim Law are complied with even if the instrument of gift if not
registered. See Muslim Law by Saksena, 3rd Edn., pp. 368-369 and the precedent cases
noticed at the foot of the pages. Among these formalities are, the passing of the
possession from the donor and the acceptance of the same by the donee. These are amply
satisfied in the instant case. That being so, it is also wrong to suggest that the majority award
is vitiated by error of law apparent on the face of the award".

In case of Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 at pages
521 to 523 of the report it has been held as under--

"The next question which arises is whether an old gift of immovable property could be made
by a Muslim in favour of a Muslim son of a predeceased son. If so,
whether such a gift has in any way to be effected through an instrument of writing; and last
whether in case an instrument of writing is made whether it is ineffective without
registration.

In our view all these questions stand resolved by the judgment of this Court in Mst. Umar
Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154. Though the facts in which
the judgment was rendered are slightly, distinguishable, yet in so far as the resolution of
questions of law posed above is concerned, the answers are, of course, concise but very clear.
An objection based on section 123 of the Transfer of Property Act to the effect that a gill of
an immovable property cannot be made except through a registered instrument was
raised but it was repelled with reference to section 129 of the Act which provided that
nothing in the Chapter in which section 123 fell would affect any rule of Muslim Law. It was
held that according to Muslim Law an oral gift of an immovable property could be made
provided other conditions for a
Muslim gift were satisfied. The observations made at page 158 of the report in this behalf are
as follows:

"The objection founded on section 123 of the Transfer of Property Act is also misconceived.
Vide section 129 ibid the provisions of Transfer of Property Act, gifts made under Muslim
Law are expressly excluded from the operation of the Act. It is firmly established proposition
that under Muslim Law a valid gift could be effected orally if the formalities prescribed by
the Muslim Law are complied with even if the instrument of the gift is not registered. See
Muslim Law by Saksena, 3rd Edn., pp.368-369 and the precedent cases noticed at the foot of
these pages. Among these formalities are the passing of the possession from the donor and
the acceptance of the same by the donee. There are ample satisfied, in the instant case:"

It is further held at page 685 that:--

Respectfully following the dictim laid down in the aforementioned judgments, I,
therefore, hold that Exh.P.1 did not require registration and is a valid piece of
evidence in support of the transaction of gift."

9. The result of my above discussion is that the petitioners have failed to establish any
illegality or gross miscarriage of justice and jurisdictional error in the impugned
judgment/decree of the appellate Court.

10. In the light of above stated position I do not see any illegality or irregularity in the
judgment/decree passed by learned lower Appellate Court. Resultantly, the instant revision
petition is devoid of merits, therefore, dismissed.

S.A.K./260/P Revision dismissed.


2011 Y L R 82

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Haji MUHAMMAD JAN---Petitioner

Versus

Mst. BIBI NOSHA and others---Respondents

Civil Revision No. 1432 of 2005, decided on 14th June, 2010.

(a) Transfer of Property Act (IV of 1882)---

----Ss. 122 & 123---Islamic law---Gift---Ingredients of valid gift---Three ingredients of gift
were: Offer, acceptance and delivery of possession and it was essential to the validity of
gift that there should be a declaration of gift by the donor; that there was an acceptance of
the gift, express or implied, by or on behalf of donee and that there was delivery of
possession of the subject of the gift by the donor to the donee---If any of said conditions
was found missing then it could not be termed as a valid gift ---Beneficiary/donee was
bound to prove the factum of gift as per requirements of law through evidence.

1979 SCMR 65; 2008 SCMR 1425; PLD 1977 SC 20; 2006 SCMR 1144; PLD 1998 SC 1512;
2003 SCMR 41; PLD 2003 SC 688; PLD 1998 Lahore 183; 1999 SCMR 378 and Rasheed
Ahmed and others v. Sardar Bibi and others 1994 MLD 467 ref.

(b) Transfer of Property Act (IV of 1882)---

----Ss. 122 & 123---Specific Relief Act (I of 1877), Ss.42 & 54---Islamic law---Gift,
validity of---Suit for declaration and perpetual injunction---Controversy between the parties,
revolved around the impugned gift-deed, made by father of the parties in favour of his sole
son/defendant---Donor/ father who was aged about more than 80 years, was ailing, sick and
feeble person was residing under the roof of his son/defendant ---Parties were son and
daughters of deceased (owner of property) in dispute---Defendant son of deceased claimed
that suit property had been gifted away by the deceased to him during his life time through
gift-deed duly executed by the deceased in his favour---Alleged gift-deeds in favour of the
defendant had been challenged by the plaintiffs in their suit alleging that donor was
incapable of making gift as he was ailing and feeble person aged about more than 85/90
years---Plaintiffs had alleged that disputed gift-deeds were not attested by the donor
himself, but was the result of fraud and collusion between the defendant and officials of
Sub-Registrar---Suit filed by the plaintiffs was dismissed by the Trial Court, but Appellate
Court setting aside judgment and decree passed by the Trial Court, decreed the suit---
Validity---Witnesses examined by the defendant could not give the detail and full
particulars of transaction of gift with reference' to date, time, witnesses before whom offer
and acceptance were made and possession of property was delivered---No witness was
testified to prove that donor had made offer and acceptance by the defendant in their
presence; and that in pursuance thereof, the possession was delivered to the donee by the
donor---Three ingredients of valid gift, which were offer, acceptance and delivery of
possession had not been proved by the defendant/donee---No sufficient evidence was
brought on record in order to substantiate the attestation of disputed mutation of gift and
registered deed, the required proof of gift, which was sine qua non for the declaration of a
genuine gift---No proof had been furnished that possession was delivered to the defendant
under the gift transaction---Gift transaction on that Court, was liable to be declared as
invalid and unlawful---Suit of plaintiff, which was filed within limitation period was
rightly decreed by the Appellate Court---In absence of any illegality or jurisdictional error,
well reasoned judgment of Appellate Court, could not be interfered with.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Abdul
Ghafoor and others v. Mukhtar Ahmed Khan and other 2006 SCMR 1144; 2007 SCMR 245;
Muhammad Yaqoob through Legal Representatives v. Feroz Khan and others 2003 SCMR 41;
Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others 2008 SCMR 1384; Ghulam Ali v.
Ghulam Sarwar Naqvi PLD 1990 SC 1; Chaudhry Muhammad Hussain v. Mst. Waziran, Mai
alias Mst. Wazir Mai PLD 2005 SC 658; Barkat Ali through Legal heirs and others v.
Muhammad Ismail through Legal heirs 2002 SCMR 1938; Muhammad Akram and another v.
Altaf Ahmed PLD 2003 SC 688; Mst. Hameeda Bibi and 3 others v. Chaudhry Attaullah
Advocate PLD 1998 Lahore 183 and Arshad Khan v. Mst. Resham Jan 2005 SCMR 1859 ref.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 39---Transfer of Property Act (IV of 1882), Ss.122 & .Z23---Gift---Mutation---Value-
--Mutation was used for the fiscal purposes and just for recovery of land revenue and it
could not be used as a title deed---Mutation, whereby alleged donee had got transferred the
land in his name, was bound to prove its validity, propriety and authenticity, when same
was challenged on the basis of fraud, collusion etc. as the fraud would vitiate most solemn
proceedings.

Muhammad Younus Khan and 12 other v. Government of N.-W.F.P. 1993 SCMR 618 and
Hakim Khan v. Nazir Ahmed Lughmani and 10 others 1992 SCMR 1832 ref.

Abdul Sattar Khan for Petitioner.

Altaf Ahmed for Respondents.

Date of hearing: 14th lime, 2010.


JUDGMENT

SYED SAJJAD HASSAN SHAH, J.---The petitioner Haji Muhammad Jan has challenged
under section 115 of the C.P.C. the judgment and the decree passed by the learned
Additional District Judge, Charsaddah dated 28-9-2005, whereby the appeal was accepted,
filed by plaintiffs/ respondents Nos.1 to 8 against the Judgment and decree dated 23-11-
2004 and the suit of the said respondents was decreed.

1. Brief facts of the case are that the petitioner/defendant is the son, Mst.Bibi Nosha, and
late Mst. Umatul-Asha (predecessor-un-interest of respondents Nos.2 to 8) are the
daughters of Sohbat Khan deceased, who was the owner of a big chunk of land, detailed in
the heading of the plaint, transferred in the name of defendant No.1/petitioner to the extent
of 32-16 Kanals, vide gift Mutation No.4361 attested on 15-1-1986 and registered
Tamleek/gift-deed No. 61 attested on 11-3-1990 about 44.01 Kanals of land, whereof, the
Mutation No.4496 attested on 14-10-1990 to incorporate the gift-deeds in the Revenue
Record in favour of the defendant No.1 petitioner herein. The above mentioned transfer
deeds were challenged by respondent No.1 and the predecessor of respondents Nos.2 to 8
namely Umatul Asha the daughters of Sohbat Khan on the grounds; that the donor was
incapable of making gift as he was ailing, and feeble person and was aged about more than
85/90 years; that the disputed deeds were not attested by the donor himself, but was the
result of fraud and collusion between the defendant/ petitioner No.1 and the officials of
Sub-Registrar, the transactions were made to deprive the respondents from thei r shari
share, likely to be devolved on them on the death of their father. The plaintiffs/ respondents
being pardah-nasheen ladies were unaware of the attestation of the above mentioned deeds;
that the donor was suffering from different kinds of illness and was under immediate
apprehension of death, expired in the year, 1990. The plaintiffs/respondents after death of
Sohbat Khan visited patwari halqa, for entry of mutation of inheritance. It was transpired
there that above mentioned gift-deeds were fraudulently attested in favour of the
defendant/petitioner, therefore, challenged the validity of alleged gift -deeds. The suit was,
however, dismissed by the learned trial Court but the appeal was accepted and the suit was
decreed.

2. The learned counsel for the defendant/petitioner contended that the suit of the
plaintiffs/respondents being time barred was liable to be dismissed. He further argued that
Mutation No.3461 attested on 15-1-1986 and registered-deed No.61 dated 11-3-1990 duly
executed by Sohbat Khan, no fraud has been committed. He further argued that the
attestation of mutation and registered deeds were the official acts, presumption of truth was
attached to the execution of the above mentioned deeds. He further argued that the gift was
not made on death bed; that the donor was capable to execute both the gift -deeds, since the
presumption attached to the Revenue Record, as the mutation of gift was incorporated
therein. He further agitated that the petitioner made an offer to take oath but not accepted.
He prayed that the revision petition be accepted and suit be dismissed. Reliance was placed
on (a) 1979 SCMR 65; (b) 2008 SCMR 1425 and (c) PLD 1977 Supreme Court 20.

3. Learned counsel for the respondents argued that the predecessor-in-interest of the parties
was not capable to gift his property in favour of his son, as he was sick and aged about
more than 80 years, was residing under the roof of the petitioner, derived the benefit of his
fiduciary relationship by producing some body else at the time of attestation of gift
mutation and registered deed were attested with the collusion of officials of Revenue
Department and those of the office of Sub-Registrar. He further argued that the necessary
ingredients of gift have not been proved. There is no circumstance brought on record in
order to prove that the relationship of plaintiffs/respondents and deceased was strained,
therefore, they were deprived of their due rights in their property. He further contended
that this is the case, where the fraud committed by the defendants/petitioners just to deprive
the plaintiffs/respondents (daughters) from their shari share of the property of their father.
Reliance was placed on: 2006 SCMR 1144, PLD 1998 Supreme Court 1512, 2003 SCMR
41, PLD 2003 Supreme Court 688, PLD 1998 Lahore 183 and 1999 SCMR 378.

4. Argument heard, record carefully perused.

5. In this case the controversy between the parties, revolves around the impugned gift -
deeds, made by the father of the parties in favour of his sole son, admittedly residing under
the roof of his son and was aged about more than 80 years, who was ailing, sick and feeble
person. The objection raised that the gift is the result of fiduciary relationship, fraud and
collusion as it is mentioned in the gift-deed that the property is being transferred on
account of love and affection in favour of son by the father.

6. In order to resolve the controversy, as to whether in the given circumstances the gift
could be made, depriving the daughters of donor of their shari share in t he property of their
father. The entire property transferred in the name of the donee without any explanation on
part of donor, eventually the daughters were completely deprived of, and also that as to
whether the subject gifts were made in accordance with law, thus protected under the law?.
To crystallize the various pros and cons relating to the matter in issue an attempt was made
to attend all the relevant factors controlling the disposition of property through gift,
ultimate effects emanating thereof and true intent, object and purpose of such disposition
and to highlight its preconditions and the consequences arising, from deprivation of the
legal heirs of the donor. In this context, reference can be made to the definition given in
"Principle of Muhammadan Law" by D.F. Mulla Section-138:

"Hiba or gift---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."

7. It is further elaborated in section 149, which provides that, it is essential to the validity
of a gift that there should be: (1) a declaration of gift by the donor; (2) an acceptance of the
gift, express or implied, by or on the behalf of the donee; and (3) delivery of possession of the
subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are
complied with the gift is complete. In view of the above mentioned mandate of law, there are
three essential conditions for a valid gift; immediate transfer of property, without any exchange
and accepted on behalf of the donee. It is further clarified in the latter part of section, wherein,
the conditions expressly given are:

(1) offer;

(2) acceptance; and

(3) delivery of possession.

8. If any of the conditions is found as missing, then it cannot be termed as a valid gift. Now in
the instant case, the entire evidence has been reviewed, but there is no reference of the above
mentioned pre-conditions in performance of gift, although, when the gift was challenged on the
grounds of advance age, sickness, doctrine of death bed, intention was to disinherit the legal
heirs to the property of their propositus.

9. The defendant/petitioner has failed to specify in his leadings that above mentioned conditions
have been satisfied, likewise, the contents of mutation as well as registered gift-deed, both are
silent about the above mentioned preconditions of gift. Similarly, there is not an iota of evidence
on the record in order to substantiate the compliance of the conditions of a valid gift. The law
requires that requirements ibid have to be fully satisfied. It is noteworthy that, the
defendant/petitioner has not even signed the mutation as well as registered gift-deed. In the
absence of such conditions, it can not be held that the gift-deed was made in accordance with the
provisions contained in the law, in this respect the reference can be made of a case titled Mst.
Rasheeda Bibi and others v. Mukhtar Ahmed and others, wherein, it has been held that burden of
proof heavily lies on the shoulders of the donee to prove that all these conditions of a valid gift
had been complied with. Failure of donee to discharge such burden would invalidate the gift
made in his favour. In this respect, reliance is placed on a case titled "Amer v. Qabool
Muhammad Shah and 4 others reported as 1999 SCMR 1049, which is reproduced as under:

"Whenever, execution of gift-deed denied by the heirs, (the plaintiffs herein) on the
grounds of disinheritance, the donee is bound to prove the same, in support of the said
view, reference can be made of a case Rasheed Ahmed and others v. Sardar Bibi and
others reported in 1994 MLD 467, the relevant citations reproduced as under:-

Mahammadan Law---

---Gift---Execution of gift-Proof-Onus to prove execution of gift deed by donor heavily
rested on donee who claimed to be its beneficiary... Plaintiffs having denied execution of
gift-deed by donor, donee was required to prove that he had received a valid gift of land
from its owner...Qanun-e-Shahadat Order. (10 of 1984) Art.118.

Muhammadan Law-

---Gift-Genuineness of gift-deed Execution of gift-deed denied by plaintiffs who claimed
land in question on basis of inheritance---Execution of gift-deed by donor and its
registration on his behalf was not proved beyond doubt---Parties as also deceased donor
were brothers and sisters---Record gave clear impression that a last minute attempt was
made by donee to lay hands on the land of his brother (donor) for depriving his real
sisters from inheritance of their share in it...Factum of gift having not been proved.
Plaintiffs were entitled to take their share in land in question in accordance with Muslim
Law of Inheritance."

10. In the light of above principle, it is the bounden duty of the beneficiary/donee to prove the
factum of gift as per requirement of law through evidence. In the instant case, the witnesses
examined including defendant/petitioner could not give the detail and full particulars of
transaction of gift with reference to date, time, witnesses before whom, offer and acceptance
were made, possession was delivered, manner and form of the transaction so made. No witness
had testified that Sohbat Khan donor had made offer and accepted by Muhammad Jan
defendant/petitioner in their presence, that in pursuance thereof, the possession was delivered to
the donee by the donor. Perusal of record reveals that the property is in possession of the tenants,
but it is also not proved on the record that tenants were directed to attorn to the
defendant/petitioner as owner of the suit property. It is also the bounden duty of the
defendant/petitioner that as he had relied upon the transfer of property through gift in his name,
he is bound to revert back and to prove the original transaction of gift, which resulted in the entry
of registered deed and attestation of mutation in dispute, but in the instant case
defendant/petitioner has miserably failed to prove the transaction of gift, whereof the mutation
and the registered deed were attested. No sufficient evidence was brought on the' record in order
to substantiate the attestation of disputed mutation of gift and registered deed, the requisite proof
of gift is sine qua-non for the declaration of a genuine gift. In this respect, reference can be made
of a case titled Abdul Majeed and 6 others v. Muhammad Subhan and 2 others reported as 1999
SCMR 1245.

(e) Registration Act (XVI of 1908)---

---S. 57---Qanun-e-Shahadat (10 of 1984), Art. 76--Registered sale deed--- Mutation---
Evidentiary value... Everything which finds mention in the registered deed or Revenue
Record must not invariably be accepted without proof of their execution, genuineness and
authenticity... Principles. It is axiomatic principle of law that a registered deed, by itself,
without proof of the execution and the genuineness of the transaction covered by it,
would not, by its own force, be sufficient to prove the genuineness of the transaction to
which it purports, unless the genuineness of the transaction is proved. There is no cavil
with the proposition that these documents being part of public record are admissible in
evidence but they, by their own force, would not prove the genuineness and execution, to
which they relate unless the transaction covered by them is substantiated from
independent and reliable source. Admissibility is to be distinguished from proof
required by law for determining the execution and genuineness of document.

11. Another case titled Abdul Ghafoor and others v. Mukhtar Ahmed Khan and other
reported in 2006 SCMR 1144 relevant para 5 is at page 1146:--

"There is no cavil to the proposition that a presumption of truth is attached to
registration of a document but if its contents are challenged then the onus shifts on
the beneficiary to prove its contents. It was for the petitioners/ defendants to prove
that Gul Muhammad had validly gifted the suit property in terms of impugned gift -
deed but neither any marginal witnesses of said gift -deed nor scribe nor the person,
who identified Gul Muhammad were produced. The petitioners/ defendants
miserably failed to prove their case. An attempt was made to prove the gilt through
DW.2 Noor Muhammad and DW.3 Haji Faiz Bakhsh Khan. They are admittedly no
witnesses of gift-deed. Their statements are to be effected that donor Gul
Muhammad in their presence had expressed his desire to gift the property to the
petitioners/defendants to the exclusion of father of respondents/ plaintiffs is
discrepant nor the place and time of the alleged offer expressed by the donor. On the
other hand statements of P. Ws. 1 and 2 who are the sons of Ghulam Rasool inspire
confidence. The trend of cross-examination of P.W. Mukhtiar Ahmad indicates that
it was suggested on behalf of respondents/plaintiffs that the relations between donor
Gul Muhammad and father of petitioners/defendants Ghulam Rasool were cordial
and no circumstance was brought on record to indicate that the relations were
strained to warrant an inference that the donor had any tenable reasons to exclude
his son Ghulam Rasool from the inheritance. In a case reported in 2007 SCMR in
paragraph 9 at page 245, it is observed that it is a settled law qua the transaction of
sale or gift, that it is the duty of the beneficiary and a heavy onus lays on the
beneficiary to prove by convincing evidence satisfying the judi cial conscious of the
Court, that the transaction shown to be a gift was executed by the donor in favour of
the donee."

12. In the above referred case, the trial Court and the appellate Court declared that no gift
was made by the donor as it has not been proved, because, all the three ingredients of gift
(offer, acceptance and possession) were not proved to have fulfilled coupled with the fact
that the statements of respondents witnesses were not in line with each other, as they have
contradicted each other on material points, therefore, he had failed to prove that the gift
was executed by donor in favour of donee, the learned High Court set aside the judgment
and reversed the findings of both the courts below. In these circumstances, the august
Supreme Court set aside the judgment and the decree passed by learned High Court and
restored that of the Courts below.

13. In another case titled Muhammad Yaqoob (deceased) through legal representatives v.
Feroz Khan and others, reported as 2003 SCMR 41 is reproduced hereunder for ready
reference:--

Constitution of Islamic Republic of Pakistan (1973)---

Article 185(3).---Factum of gift could be proved by cogent and convincing evidence.
No justification was pointed out of the exclusion of legal heirs from inheritance or
donor which makes authenticity and genuineness of gift doubtful. Impugned order
of High Court does not suffer from any flaw calling for interference by Supreme
Court, in concurrent findings of fact recorded by courts below and concurred by the
High Court. Leave to appeal was refused.

14. In support of the aforestated aspect of the case reference can be made of a case titled
Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others reported in 2008 SCMR
1384, relevant citations reproduced as under:

(b) Islamic Law--

---Proof--- Execution of---Appearance of the party before the Registrar is not
conclusive proof of the execution of gift---In such a case the Court will have an
overall view of all the attending circumstances of the transaction and no
presumption of truth could be attached to such type of document.

(d) Proof---

---Endorsement made by the Registrar on questioned document would not prove that
such document was executed by donor in favour of donee and constituents of gift
must be proved in consonance with the provisions of Qanun-e-Shahadat, 1984 and
rules of gift.

15. On account of general principle of law, the rights in property of a segment of the
society have been protected, e.g. the weak, the ignorant and the infirm and the expected
heirs are to be treated at par with the parda nasheen ladies and be treated similarly. In this
respect reference can be made to a celebrated judgment titled Ghulam Ali v. Ghulam
Sarwar Naqvi reported in PLD 1990 Supreme Court 1, relevant Para 7 is r eproduced as
under:

"even if all the conditions for a valid transfer under the existing set and system of
law, after the due accrual of inheritance are satisfied, the protection afforded by
section 16 of the Contract Act against undue influence to parda-nasheen ladies and
others similarly placed parties and entrenched in the case law as also available under
the Islamic law would require so many conditions to be satisfied. Admittedly in
such-like cases, the burden of proof is upon the alienee. The presumpt ion exist
regarding undue influence on prima facie satisfaction regarding inter se position of
the parties and the state and status of the alienor".

16. Viewing the principle laid down in the context of the instant case, the law laid down in a case
titled Chaudhry Muhammad Hussain v. Mst. Waziran Mai alias Mst. Wazir Mai reported as
PLD.2005 Supreme Court 658, is reproduced as under:

The parda-nasheen ladies have been afforded protection, however, the application of
above noted principles made applicable to the persons who are aged, feeble, ailing,
illiterate and not able to enter into any transaction, therefore, it falls under the doctrine of
undue influence, in the above mentioned case-law, the rule has been laid down that
beneficiary of the document executed by ignorant/illiterate/parda observing lady have to
be proved by over whelming elements, the execution of such documents by such ladies
and further have to be proved that such transaction and such document was duly
explained to the executant and having independent advice at the relevant time.

(b) Qanun-e-Shahadat (10 of 1984)-

---Art. 78---If a document is alleged to be signed or to have been written by any person,
the signature or writing must be proved in that person's hand writing... Article 78, Qanun-
e-Shahadat, 1984 places emphasis on the proof of identity of author of questioned
documents and said Article does not say that mere proof of hand writing signatures/
thumb-impressions of executant will prove truth of the said document.

17. As far as, the validity and genuineness of mutation is concerned, now it is settled principle of
law that the mutation is used for the fiscal purposes and just for recovery of land revenue, it
cannot be used as a title deed, therefore, the mutation, whereby, the defendant/petitioner has got
transferred the land in his name was bound to prove its validity, propriety and authenticity, when
same is challenged and that too on the basis of fraud, collusion etc. as the fraud vitiates most
solenm proceedings. Reference can be made of a case titled Muhammad Younus Khan and 12
other v. Government of N.-W.F.P., reported as 1993 SCMR 618.

(b) West Pakistan Land Revenue Act (XVII of 1967)-

--S. 42---Mutation, when mutation is not legal and proper, the entire structure built on it
shall crumble.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

---S. 42---Mutation---Entries in the mutation record are fiscal in nature, do not
conclusively established in favour of the person in whose name such entries had been
made and provide merely a rebutable material.

(d) West Pakistan Land Revenue Act (XVII of 1967)

....S.42 ... Mutation ...Allegation of fraud... Where the right of the person whose name has
been recorded and the entry has been challenged on grounds of fraud, such entry can
hardly prove ownership.

18. Similar view has been expressed in a case titled Hakim Khan v. Nazir Ahmed Lughmani and
10 others reported in 1992 SCMR 1832.

(b) Mutation---

. ...Mutation by itself does not create title and the person deriving title thereunder has to
prove that the transferor did part with the ownership of the property, the subject of the
mutation, in favour of transferee and that the mutation was duly executed and attested.

(c) Mutation---

....Any person who is acquiring title through a mutation, the burden of proof of providing
transaction embodied in the mutation, is upon him.

19. Accumulated effect of the above mentioned legal proposition is, that the defendant/petitioner
is obliged to prove, whatever has been asserted in order to dislodge and to deprive of the rights
of true owners in the property, which have been devolved upon them, inasmuch as the secundum
allegata et probata (he who alleges effect must prove it), will also be applicable; the
defendant/petitioner was required to satisfy the Court about the correctness and genuineness of
the documents relied upon in support of his claim, the evidence brought on the record is not of
such a standard, as required to prove a document, the defendant/petitioner has placed reliance On
two documents, namely, a mutation and a registered deed, the proof furnished thereto is not
sufficient to declare that he has acquired the property through above mentioned gift-deeds, thus
cannot seek the protection of his rights in the wake of such material. The evidence produced is so
contradictory and sketchy, cannot be used for declaring the defendant/petitioner as lawful owner
e.g. one Sadiqeen, the witness of registered gift-deed had denied that he stood as witness to the
transaction of gift or had signed any such gift-deed, who was the lamberdar of the same village,
his statement was recorded before a Judicial Magistrate, thereafter he was expired when the suit
was pending decision, the reference of his statement has been made by the attorney of the
plaintiffs/respondents, examined as P. W. 5, the defendant/ petitioner has not seriously cross-
examined this witness, the copies of the affidavit and statement so recorded are also produced on
the record, the denial of the signature and appearance before the sub-Registrar has been
corroborated in said depositions.

20. P.W.3 Sher Qadir Khan Advocate was examined and he has verified that Malik Sadiqeen
witness had appeared before the Resident Magistrate Shabqadar, he associated as Advocate, his
statement was recorded on application and said Malik Sadiqeen refuted to sign the disputed
registered deed, further stated that his signature made on registered deed was fake and fictitious,
his statement was exhibited as Exh.P.W.3/2.

21. The above mentioned statement attributed to Malik Sadiqeen was further corroborated by the
statement of P.W.4 Noor Badshah, wherein, he has testified that Malik Sadiqeen had appeared
before the Court of Resident Magistrate Shabqadar and was examined, wherein, he had stated
that on the registered sale-deed shown to be executed by Sohbat Khan in favour of Jan
Muhammad, same has not been thumb impressed, he further stated that statement was recorded
in my presence.

22. P.W.6 Muhammad Israr was examined as witness, he has also testified that Sohbat Khan was
ailing for the last 8/9 years and in the later stage of life he has lost his mental capacity, who had
died in the year 1990 and he was not in a position to dispose of his property, this witness has not
been cross examined on the above mentioned material portion of the statement.

23. P.W.7 Nisar Muhammad had also deposed that Sohbat Khan died in the year, 1990, who was
aged about 80/90 years. He was of extreme old age, feeble and ailing person and was mentally
incapable to comprehend the things, the witness was not cross-examined on the above mentioned
material aspect of the case.

24. Jannat Gul DW-7 was examined who has categorically stated that Haji Sohbat Khan had not
been thumb impressed the registered deed in his presence, Sohbat Khan predecessor of the
parties was aged about 85/90 years and was suffering from various diseases and was under
medical treatment of the Doctors in L.R. H. Peshawar.

25. Sohbat Khan/donor died after two months of alleged execution of registered decd, his death
certificate has been produced on record, which is Exh. P. W .2/ 1, wherein, the date of death is
recorded as 11-1-1990, somewhere in August, 1990, entries of the said documents were made
and have not been questioned by the defendant/petitioner, therefore, rightly and lawfully relied
upon, while deciding the case, as per the entries Sohbat Khan died after about two months of
those gift deeds.

26. Attorney of the plaintiffs/ respondents P.W.5 Zafar Ali deposed that Sohbat Khan/donor was
aged about 80 years. He was ailing, suffering from different diseases, Haji Sohbat Khan never
appeared before the Revenue Officer for attestation of impugned mutation nor thumb impressed,
similarly, he has not visited the office of Sub-Registrar to execute the registered deed, that
previously a gift mutation was entered in favour of the defendant/petitioner on behalf of Sohbat
Khan, but the same was cancelled by gaining the knowledge of mutation. The registered deed
and mutation were attested fraudulently and in collusion with concerned officials in favour of
defendant/ petitioner on behalf of late Sohbat Khan. Plaintiffs/respondents are parda-observing
ladies, they were unaware of the attestation of the registered deed and mutation. They have
acquired the knowledge, after 8/9 years, when the inheritance mutation of Sohbat Khan was
sought to be entered.

27. DW-4 Saeed-ur-Rehman who is closely related to the defendant/petitioner candidly admitted
that Sohbat Khan was an old and feeble person and was suffering from various diseases, he stood
as witness of the disputed mutation, it is important to note that he has neither seen the mutation
nor testified that it is the same mutation which was signed by him, he has further deposed that
the mutation was attested in his Hujra.

28. D.W.5 Shahzad Gul had also testified that he is the witness of Mutation No.4361, but he too
has not seen the original mutation, therefore, could not testify that he had signed the disputed
mutation, this witness had also deposed that Sohbat Khan was aged about 85 years and he was
not consistent with the other witnesses, while saying that the mutation was attested in the Hujra
of defendant/ petitioner, he admitted that Shobat Khan was an old and feeble person and he was
incapable to resist even a simple and an ordinary disease. He further admitted that only the
disputed mutation was attested in the Hujra of defendant/petitioner and no other mutation was
attested in his Hujra, moreover, he stated that he stood witness to only mutation in the name of
defendant/ petitioner and he also admitted that Sohhat Khan was admitted in the hospital for
treatment as he was sick.

29. DW-3 Haji Muhammad Jan the defendant/petitioner denied that the mutation was attested in
his Hujra and stated that it was attested in Tehsil Charsadda, he has shown ignorance about the
diseases being suffered by his father. D. W.6 has also admitted that Sohbat Khan was a man of
an extreme old age about 80/90 years, further admitted that Sohbat Khan was weak, feeble and
ailing person, he also admitted that some time on account of attack, he used to have been
mentally paralyzed.

30. In view of the above account of evidence, the question of gift transaction have not been
proved, all the same, the important, supportive and truth oriented evidence is lacking about the
proof of transaction of gifts, in as, -much as the Revenue Officer, the Sub-Registrar were the
important witnesses, likewise the Patwari Halqa was not brought in witness box to prove the
transaction of gift, moreso Patwari Halqa, who had entered the mutation and was aware of all
relevant facts and circumstances regarding the mutation, can testify much more about the
authenticity or otherwise of the gift transaction. The petition writer and the stamp vendor were
the witnesses also played pivotal role in finalization of the transaction of gift, but they have not
brought in the witness box to depose about the actual facts of the case. In this scenario, the Court
can legitimately draw the presumption against the defendant/petitioner, that had they were
produced, but were not supporting the case of the defendant/petitioner. Above all, the same by
virtue of attestation of the above referred gift-deeds, the plaintiffs/ respondents have been
deprived of the property of their father, but no reason for such deprivation has been brought on
the record, notwithstanding, that for attestation of the said documents, love and affection shown
for the son, but no ground has been mentioned to deprive the females from the course of
inheritance of their father, to my mind when reason for gift is given, equally the reason for
depriving the other heirs, specially females (daughters) must be given. In the present
circumstances when the society has been victimized by the materialism, the socio economic and
civic values have also been disparaged, therefore, eventually some individuals in lust of grabbing
of property attempts to overcome all legal and illegal barriers to achieve their nefarious ends,
whereof deprive their sisters/daughters from their due rights against the command of Almighty
Allah in the property of their propositus. In such circumstances, the legal provisions respecting
proof of documents of transfer of the immovable property, strictly to be adhered to in their letter
and spirit, so that the rightful owners would not be deprived of their rights in the property,
moreso, technicalities would not be followed in order to bar the remedy.

31. In support whereof reference can be made to a case titled Barkat Ali through legal heirs and
others v. Muhammad Ismail through legal heirs, reported as 2002 SCMR 1938, relevant portion
is given in paragraphs 5 and 6 reproduced as under:

Though it is not necessary for a donor to furnish the reasons for making a gift, yet no gift
in the ordinary course of human conduct is made without reasons or justification, unless
the donor is divested of all the powers of reasonings and logic and unless he is a person
of unsound mind. In the wake frivolous gifts, generally made to deprive females in the
family from the course of inheritance, prevalent at present time, the Courts are not
divested of the powers to scrutinized the reasons and justification for a gift, so that no
injustice is done to the rightful owners and no course of inheritance is bypassed.

It is further observed in para-6 of the judgment that in the instant case no reason is
furnished for such gift, at the most one can import the love and affection of the grandson,
but the same seems to be unreasonable in the presence of one and the only son of the
donor, rather there is a negative reason for making gift, in that, Barkat Ali had three
daughters as well and it was rightly apprehended that in case of the death of Barkat Ali,
property would also be inherited by his daughters, the real sisters of Muhammad Ismail,
there is over whelming reason for the grant of gift which seems to be mala fide, and
which is why it is assailed by the very son of the donor.

32. In such circumstances, the reasons must be furnished to justify the alienation made by
depriving other lawful heirs of an old, feeble, illiterate and ailing father, in this view of matter
reliance can be placed in a case titled Muhammad Akram and another v. Altaf" Ahmed reported
in PLD 2003 Supreme Court 688 (e), reproduced as under:-


(e) West Pakistan Land Revenue Act (XVII of 1967)...

---S.42---Mutation attestation of...Proof...Most important entities in connection with the
attestation of mutation were the Patwari Halqa who had to enter the mutation and the
Revenue Officer who was to attest the same. Both said functionaries having not been
produced and examined in the Court, the mutation in question could not be said to have
been proved.

33. In a case titled Mst. Hiameeda Bibi and 3 others v. Chaudhry Attaullah Advocate reported in
PLD 1998 Lahore 183, wherein the mutation was not thumb impressed or signed by donors and
donees and the same was not attested in Jalsa-e-Aam, as it was admitted in the instant case by the
witnesses of the defendant, that only this mutation was attested in Hujra of the he
defendant/petitioner, moreso, defendant/petitioner had been in possession and managing the suit
property during the life time of his father. In this view of the matter, the dictum laid in the above
referred judgment is applicable to the facts of the instant case, the paragraph-16 of the judgment
is reproduced as under:--

"It could not be established from the record; that the gift 'was made by deceased Ibrahim
in his life time. The revenue record, produced on record, proved that Ibrahim, remained
in possession of the property throughout; during his life time and managed as well as
administered the same and that at no stage, the property was put under the control of the
petitioners. The plea that the delivery of possession was not necessary, is without any
legal substance to complete the gift, declaration, acceptance of gift and delivery of
possession, simultaneously with the declaration and acceptance were mandatory. No
convincing evidence could be produced of lacking of declaration or acceptance of gift
during the life of time of Ibrahim. Delivery of possession could not be proved. The
property was in possession of a tenant Imam Ali".

34. Since, no proof has been furnished that the possession was delivered to the
defendant/petitioner under the gift transaction on this count too the gift transaction is liable to be
declared as invalid and unlawful.

35. On behalf of the defendant/ petitioner the question of limitation has also been agitated that
the suit of the plaintiffs/respondents was barred by limitation, therefore, was liable to be
dismissed. Perusal of record shows that the plaintiffs/respondents are the real sisters of the
defendant/petitioner, being pardanasheen ladies, after the death of their father they were unaware
of the position concerning the property of the their father. They have neither appeared before any
authority nor they have consented to the disposition of property through the disputed gift,
moreso, the defendant/petitioner has failed to prove the transaction of gift on behalf of his father
in his favour and as earlier it is declared that the suit property has not been gifted out and the
proceedings of execution of gift mutation and registered deed are unlawful and result of fraud
and collusion. In such circumstances, no period of limitation is prescribed undef any provision of
law, thus, the period of limitation would be reckoned under Article 120 of Limitation Act, when
the plaintiffs/ respondents had acquired the knowledge of the impugned gift, reliance placed on a
case titled Arshad Khan v. Mst. Resham Jan reported in 2005 SCMR 1859 reproduced as under:

(d) Gift...

... Fraud... Gift transaction based upon fraud...Limitation computation of.... In cases of
fraud, limitation would start from the date of knowledge and not from the date of fraud.

36. In this connection, it is not out of place to mention that the learned trial Court returned its
findings about the issues Nos.4, 5 and 7 including limitation as below:--

"The issues are neither pressed nor proved, therefore, all these issues decided
accordingly."

37. The defendant/petitioner has not challenged these findings in the appellate Court by filing
cross-objection or appeal, therefore, same can not be challenged at this stage, therefore, the
objection is hereby repelled.

38. In view of the above discussion, the judgment and decree passed by learned appellate court is
in accordance with law and not suffering from any illegality or jurisdictional error, based upon
legal and factual reasonings, whereby on acceptance of appeal the suit of the plaintiffs/
respondents was decreed is therefore, upheld and the judgment and decree passed by learned trial
Court being based upon illegal exercise of jurisdiction and misapplication and misconception of
law, without lawful reasonings, rightly declared as the result of material illegality and
irregularity and was set aside.

39. This petition is being without any substance and lawful reasonings reasonings is hereby
dismissed. No order as to costs.

H.B.T./289//P Petition dismissed.


2011 C L C 275

[Peshawar]

Bef ore Syed Sajjad Hassan Shah, J

RAHIM ULLAH and 8 others---Petitioners

Versus

MUHAMMAD SIDDIQUE and 9 others---Respondents

Civil Revision No. 1242 of 2004, decided on 29th June, 2010.

( a ) Spe c i f i c Re l i e f Ac t ( I of 1877) - - -

---Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art.127---Plaintiffs filed suit for declaration
along with permanent injunction and possession on the ground that plaintiffs being legal heirs o f
the deceased were entitled to their shares in the disputed property and urged mutation of gift and
sale transaction to be cancelled and correction of revenue record to the extent of their shares---
Defendants contested suit on the ground that gift mutation was attested after completion of all
the formalities required for a valid gift and transfer of land after payment of sale consideration---
Trial Court partially decreed the suit to the extent of prayer for cancellation of gift mutation
while dismissed rest of the suit---Appellate Court, on appeals, filed by both the parties, dismissed
the partial judgment and decree passed by Trial Court---Validity---Evidence available on record
showed that possession had not been delivered to the donee, moreso, the acceptance of gift had
not been proved on behalf of the donee---Conduct of the defendants showed that no such gift was
made by the deceased---Disputed property was susceptible to the delivery of actual possession,
despite that the defendants got possession after the death of the donor---Non-delivery of
possession had made the alleged gift invalid---Nothing had been brought on record to rebut the
evidence produced by the defendants in support of mutation of sale and good faith of defendants
as mandated by Art.127 of Qanun-e-Shahadat, 1984---Defendants had failed to discharge onus of
proof placed on them under the law---High Court partially allowed the revision petition and
declared the disputed mutation unlawful, unlslamic and void and ordered to be cancelled and
entries made in revenue record on the strength of the said mutation were directed to be corrected-
--Judgment and decree passed by Appellate Court were modified and set aside to such extent and
the judgment and decree passed by Trial Court were restored.

Sardar Ahmed Khan v. Mst. Zamroot Jan PLD 1950 Pesh. 45; Barkat Ali v. Mst. Barkat Bibi and
another 1991 MLD 2707 and Mst. Khalida Bibi v. Mst. Daryai Khunam and others 1994 MLD
2339 rel.

(b) Transfer of Property Act (IV of 1882)---

----S. 6(h)---Contract Act (IX of 1872), S.2(g)---Gift---Validity---Transfer of disputed property
vide impugned mutation had not been made for lawful object and consideration but to deprive
legal heirs of the party from their legal rights in the property of their father---Gift apparently did
not fulfil the prerequisites of a valid gift---Transaction of gift could not be saved under the law.

(c) Islamic law---

----Gift---Validity---Held, in the wake of frivolous gift, the females in the family deprived of, the
course of inheritance prevalent at present time, the courts were not divested of powers to
scrutinize the reasons and justifications for a gift so that no injustice was done to the rightful
owners.

Mst. Khalida Bibi v. Mst. Daryai Khunam and others 1994 MLD 2339 rel.

Principles of Muhammadan Law by D.F. Mulla section 150 ref.

(d) Islamic law---

----Gift---Validity---Any transaction whereby the rightful heir was deprived of her/his propositus
or any other person deriving the advantage of the legal incapability and old age of a close
relative, the transaction would be hit by Islamic law and the provisions of Art.127 of the Qanun-
e-Shahadat, 1984; S.6 of the Transfer of Property Act, 1882 and S.2(g) of the Contract Act, 1872
and could be declared as unlawful and nugatory to the principles of Islamic law.

Principles of Muhammadan Law by D.F. Mulla section 150 ref.

(e) Islamic law---

----Gift--- Validity--- Validity of gift transaction was subject to the completion and fulfilment of
the prerequisites of a valid gift.

Principles of Muhammadan Law by D.F. Mulla S. 150. ref.

Abdul Sattar Khan for Petitioners.

S.M. Attiq Shah for Respondents.

Date of hearing: 29th June, 2010.


JUDGMENT

SYED SAJJAD HASSAN SHAH, J.---Rahimullah and eight others plaintiffs/petitioners have
sought the indulgence of this Court against the judgment and decree dated 30-6-2004 passed by
the learned Additional District Judge Lahore, whereby the appeal filed by the petitioner assailing
the judgment and decree dated 31-1-2003 passed by the learned Civil Judge Lahore was
dismissed, whereas the appeal of respondent No.1 arising out of the same judgment and decree,
the suit was partially decreed in favour of the petitioners and the appeal of the
defendants/respondents accepted the suit was dismissed in toto.

1. Brief facts of the case are that the plaintiffs/petitioners have filed the suit seeking declaration
to the effect that the land detailed in the plaint was the ownership of Khan Baz deceased, after
his demise being legal heirs (his daughters) were entitled to their Shari share i.e. 22-14 kanals,
out of 61-13 kanals, the total ownership of said Khan Baz. Since a gift Mutation No.740 dated 7-
9-1983 and a sale Mutation No.826 dated 5-2-1987 shown to have been attested on behalf of
Khan Baz deceased in favour of his son respondent No.1. They have also challenged, exchange
Mutation No.62 dated: 10-2-1993 attested by respondent No.1 in favour of respondents Nos.4
and 5 and sought the cancellation of said mutations as well as correction of Revenue Record and
decree for perpetual injunction and possession as being fraudulent, collusive against the Sharia
law, eventually deprived the plaintiffs/ petitioners from their right of inheritance in the property
of their father. The suit was contested by the respondents by filing their written F statement, after
framing issues evidence was recorded. The learned trial Court seized of the matter granted
decree to the extent of prayer of cancellation of gift Mutation No.740, while rest of the suit was
dismissed. Both the parties feeling aggrieved challenged the impugned judgment and decree by
filing separate appeals. The partial judgment and decree passed in favour of the
plaintiffs/petitioners was dismissed on acceptance of the appeal of the defendants/respondents,
thus, the appeal and suit of plaintiffs/petitioners both were dismissed.

2. The learned counsel appearing on behalf of the plaintiffs/ petitioners argued that Khan Baz the
predecessor of the parties was an old and decrepit person and was unable to enter into
transactions of sale and gift, as he was aged about more than 80 years, therefore, he has made no
gift at all in favour of his son, the respondent No.1, as there is not an iota of evidence available
on record, to substantiate the transfer of disputed property through gift by deceased Khan Baz.
He further high-lighted the prerequisites of gift and tried to persuade the Court that no pre-
condition of a valid gift has been proved, therefore, learned trial Court has passed the decree
justly, lawfully and properly, but the learned appellate court has illegally and unlawfully set
aside the partial judgment and decree passed by the learned trial Court, while disputing the
validity of sale transaction, contended that on the one hand son is claiming, that in the last days
of his life he has rendered the services to his father, on the other hand he asserted that the sale
transaction was effected in between the father and son in respect of the property measuring more
than 40 Kanals allegedly purchased in sale consideration of Rs.20,000, the average market value
of suit property prevailing in those days as worked out by patwari halqa and brought on record,
as Exh.P.W. 1/1, the value of the property was more than Rs.294815.20, he further contended
that neither possession was transferred nor any sale consideration was paid, the proceedings of
attestation of mutations and the entries made therein are dubious and speaking volumes about the
fraud. The proceedings conducted, collusively by respondent, No.1 and the Revenue Officer, as
the entries made in gift mutation were interpolated and altered from sale to gift. Moreso the
provisions contained in section 42 of the Land Revenue Act 1967 violated by the revenue
officials, as haphazardly attested the mutations while concealing the true facts from the
plaintiffs/petitioners. He further contended that the plaintiffs/petitioners acquired the knowledge
of mutations few days prior to the institution of suit.

3. The learned counsel for the defendants/respondents while rebutting the arguments contended
that Khan Baz was healthy and capable to enter into transaction and had transferred the property
through mutations in favour of his son defendant No.1. He urged that gift mutation was attested
after completion of all the formalities required for a valid gift, likewise, sale mutation was also
attested at the instance of Khan Baz, the transferor had received the sale consideration, he argued
that the present litigation is initiated at the instance of attorney of the plaintiffs/petitioners,
whereas, plaintiffs/petitioners, notwithstanding, the step sisters of the defendant/respondent
No.1, having no grudge in connection with the attestation of mutations. He further argued that a
bulk of documentary and oral evidence was produced in order to prove the stance of the
defendants/respondents, therefore, the instant petition may be dismissed.

4. Arguments of the learned counsel for the parties considered and record carefully perused.

5. The dispute is in between the step-brother and sisters, by virtue of attestation of the mutations
disputed herein, the plaintiffs/petitioners have completely deprived of their rights in legacy of
their father. Initially the entries made in the gift Mutation No.740 attested on 7-9-1983, as it
transpires from perusal of column No.13, it was recorded as sale transaction, the evidence as well
as the nature of entries in the said mutation are self explanatory that word "Tamleek" had not
been entered at the time of entry of mutation by Patwari Halga as the relevant column which is
meant for recording the kind of land, the date of mutation and the nature of mutation, in the
column No. 15 at first instance, it was recorded as

No alteration or interpolation made in this column but column No. 1 "
recorded, whereas the said words interpolated and entered as "Tamleek" from this mutation, the
presence of alleged donee cannot be spelled out at the time of alleged attestation of mutation.
Similarly the report of field Kanungo is also altered as evident from mutation. Assuming for a
moment that the mutation was entered at the instance of Khan Baz, he was an old and feeble,
depending upon his son residing with him, not shown as to have accompanied by his son and
also not discernible from the entries of Mutation No.740 that the gift was accepted by the alleged
donee, no mention that possession was delivered qua the gifted land. This mutation was entered
on 1-9-1983 and was attested on 7-9-1983. Whereas, under section 42 of the Land Revenue Act,
1967, such mutation when entered by Patwari Halqa in the register of mutations, legally bound to
have recorded the same in Roznamcha Waqiati and to obtain the signature or thumb impression
in token of correctness of the statement recorded by Patwari in Roznamcha Waqiati.

6. It is to be displayed upon some conspicuous place for general information. The Patwari Halqa
to produce the register of mutations for the purpose of attestation of mutations to the Revenue
Officer, after expiry of fifteen days from the date of entry of mutation, but in this case
extraordinary haste shown for unknown reasons. The validity of gift transaction is subject to the
completion and fulfilment of the pre-requisites laid down in law, reference can be made of "The
Principle of Muhammandan Law" by D.F. Mulla, for convenience sake, section 149, reproduced
as under.

"S. 149---The three essentials of a gift... It is essential to the validity of gift that there
should be (1) a declaration of gift by the donor (2) an acceptance of the gift, express or
implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the
gift by the donor to the donee as mentioned in Sec. 150, if these conditions are complied
with the gift is complete.

7. As laid down in section ibid, there are three essential ingredients of the valid gift, firstly
declaration of gift by donor, secondly acceptance of gift by donee and thirdly delivery of
possession of subject matter of gift. Perusal of evidence available on record shows the possession
has not been delivered to the donee, moreso, the acceptance of gift has not been proved on behalf
of the donee, likewise, no cogent, convincing and confidence inspiring evidence has been
brought on record, whatever, evidence is available the factum of gift not supported rather
contradicted, as earlier pointed out that the entries recorded in register of mutation, manipulated
and chaffed as referred to above by alteration and variation, therefore, the conduct of the
defendants/respondents shows that no such F gift was made by Khan Baz. It is quite evident
from the record that Khan Baz was more than 80 years of age, as stated by D.W.4 Syed
Mehmood Bacha in his cross-examination that at the time of attestation of mutation Khan Baz
Baba was elder to me rather he was of the age group of my father. As far as delivery of
possession is concerned, it is candidly admitted by D.W.10 Muhammad Siddique defendant No.
1 in his cross-examination that the management and administration of the suit land was with. my
father till the time of his death and after his death the management of the suit property is being
done by myself".

8. In view of section 150, Muhammadan Law ibid, delivery of possession for the declaration of
valid gift is essential, the section reads as under:--

"S.150---Delivery of possession---(1) It is essential to the validity of a gift that there
should be a delivery of such possession as the subject of the gift is susceptible".

9. As per provisions of law, the delivery of possession should be made to validate the gift, in this
case the disputed property was susceptible to the delivery of actual possession, despite that the
respondent No.1/donee got the possession after the death of donor, thus, the non delivery of
possession makes the alleged gift as invalid, reference of section-148 is made as under:--

"S.148--- Relinquishment by donor of ownership and dominion--It is essential to the
validity of a gift that the donor should divest himself completely of all ownership and
dominion over the subjects of the gift.

10. The mode and manner of the proceedings of entry and attestation of mutation of gift is
invariably seemed to have been followed, to deprive the daughters of Khan Baz, the step-sisters
of defendant/respondent No.1, from the recovery of their Shari share in the property of their
father, such transaction apparently meant to defraud the creditors of late Khan Baz, because of
the reason that they were entitled to the inheritance after his death but immediately before the
death and in age of 80 years, the defendant/respondent No.1 has taken the benefit of fiduciary
relations as Khan Baz father of the parties was in the effective control of his son the respondent
No. 1. There is nothing brought on record to show, his good faith, as desired by Article 127 of
Qanoon-e-Shahadat Order-1984 reads as follow:--

"A.127--- Proof of good faith in transactions where one party is in relation of active
confidence: When there is a question as to the good faith of a transaction between the
parties one of whom stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a position of active
confidence.

11. In view of the above mentioned provision of law, the defendant/respondent No. 1 has failed
to discharge onus of proof placed I on his shoulders under the law.

12. The above referred gift transaction, when examined, besides the aforestated provisions of
law, section 6 of Transfer of Property Act is also attracted to the facts and circumstances of
instant case. The provision contained in section 6 of Clause (h), are as under:--

"S.6--- What may be transferred... property of any kind may be transferred except as
otherwise provided by this Act or by any other law for the time being in force.

(a) ---------------------------------------------

(b) ---------------------------------------------

(h) No transfer can be made

(1) insofar as it is opposed to the nature of the interest affected thereby; or

(2) for unlawful object or consideration within the meaning of section 23 of the Contract
Act, 1872; or

(3) to a person legally disqualified to be transferee.

13. Since the transfer vide impugned mutation has not been made for lawful object and
consideration but to deprive the sisters of the defendant/ respondent No.1 from their legal rights
in the property of j their father, therefore, the transaction of gift can not be saved under the law.
In this connection section 2 of the Contract Act can be referred with advantage.

S.2---Interpretation Clause---In this Act the following words and expressions are used in
the following senses unless, a contrary intention appears form the context:

Section 2 clause-(g) "Void agreement:. An agreement not enforceable by law is said to be
void.

As the above mentioned gift is apparently derogatory to the above referred provisions of law and
does not fulfil the pre-requisites of a valid gift.

14. Moreover, the transaction of gift is not sustainable in view of the policy of the Muslim jurists
expounded in cases, reproduced as under, the case titled "Sardar Ahmed Khan v. Mst. Zamroot
Jan", reported as PLD 1950 Peshawar 45.

"It is the policy of the Muslim jurists to prevent any interference with the course of
devolution of property amongst the testator's heirs as laid down in the Holy
QuranThe gift in order to be effective should be a genuine transaction and not
merely a plan to achieve some ulterior object. It is true that the necessary effect of almost
all the gifts will be disinheritance of one or the other of the heirs of the donor but then it
should be the effect and not the real object of the gift, if the real object of the gift is
disinheritance of an heir, it will be bad in law.

15. The principle enunciated in above mentioned case law has been followed in the case titled
"Barkat Ali v. Mst. Barkat Bibi and another", reported in 1991 MLD 2707.

(i) Concurrent Findings...

. . S u i t challenging gift... Decree passed in---Decree confirmed by appellate
Court...Challenge to...Courts below have concurrently decided question of fact relating to
influence of petitioner over his father... Finding has not been shown to have resulted from
any jurisdictional error or misreading or non-reading of some material evidence ..Held:
Undeniable object of alleged gift being to benefit son at cost of married daughter, it is not
possible to interfere in exercise of discretionary power of revision on account of
substantially just decision between parties having been concurrently made by two courts
below.

16. Same principle has been followed by this Court in case titled Mst. Khalida Bibi v. Mst.
Daryai Khanum and others reported 1994 MLD 2339.

(b) Muhammadan Law---

----Gift---Gift intended to disinherit an heir would be a sham transaction and therefore,
nugatory in the case titled Mukhtar Ahmed v. Mst. Rasheeda Bibi and others reported in
2003 SCMR. 1664 Honourable Supreme Court observed reproduced as under:-

16. It is also observed by the honourable apex Court of the Country that in the wake of frivolous
gift, the females in the family deprived of, the course of inheritance prevalent at present time, the
Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that
no injustice is to be done to the rightful owners.

17. In view of the above factual and legal position obtained in the instant case, it is by now
crystal clear that any transaction whereby the rightful heir is being deprived of by her/his
propositus or any other person deriving the advantage of the legal incapability and old age of a Iv
close relative, the transaction would be hit by the provisions mentioned above and could be
declared as unlawful and nugatory to the Principles of Islamic Law.

18. The sale Mutation No.826 attested on 5-2-1987 in favour of defendant/respondent No.1, has
also been challenged by present petitioner, the respondent in this respect produced the Revenue
Officer, testified the attestation of mutation and also stated material facts relating to the said
mutation, the witnesses D.W.5 to D.W.9 have also been produced, who have testified about the
alienation of the suit property through sale mutation, besides, the defendant/respondent No.1
himself was examined, his evidence is consistent, however, there is no proof of sale
consideration as paid to Khan Raz father of the parties, anyhow, revenue officer who appeared
before the learned trial Court, examined as D.W.7 namely Muhammad Zaib Khan Exh-Naib
Tehsildar Swabi, admitted as correct entries and signatures in Mutation No.826, same was
attested in open gathering, besides, other Mutations have also been attested by this witness,
nothing has been brought on record to rebut the evidence produced by the defendant/respondent
in support of mutation of sale, in such circumstances, when both the courts below declared the
transaction of sale as genuine one, therefore, this court will not enter into controversy, which has
been unanimously decided by both the courts below, and the contention of the
defendant/respondent No.1 supported by evidence in this respect.

19. In view of above discussion, this revision petition is partially accepted. Mutation No.740
attested on 7-9-1983 is declared unlawful, un-Islamic and void, therefore, same is cancelled, the
entries made in revenue record on strength of the said mutation be corrected, thus, the judgment
of appellate Court modified and set aside to this extent and rest of the judgment is maintained,
the judgment and decree passed by learned trial Court is restored. No order as to costs.

M.U.Y./329/P Order accordingly.


2010 M L D 843

[Lahore]

Bef ore Sh. Azmat Saeed, J

MERAJ DIN---Petitioner

Versus

Mst. SARDAR BIBI and 5 others---Respondents

C.R. No. 148 of 2010, decided on 25th February, 2010.

(a) Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Gift---Essential
ingredients-Suit for declaration and permanent injunction---Plaintiff called into question the
alleged gift in favour of defendant---Suit was dismissed---Appeal also failed---Civil revision was
accepted; appellate judgment and decree were set aside and the case was remanded to the first
Appellate Court which accepted the appeal---Suit was decreed by Appellate Court and the gift
was declared as ineffective against the interests of plaintiffs---Validity---Existence or absence of
various factors might adversely affect the validity of the gift and its proof---Defendant failed to
prove the transaction of gift and its ingredients i.e. offer, acceptance and transfer of possession---
Mutation merely recorded the transaction which needed to be proved independently---Revenue
Officer was never produced in evidence; only Patwari appeared and stated that mutation was
recorded on the alleged statement of donor but made no mention of acceptance of the alleged gift
by the defendant who never entered the witness box to prove his acceptance or transfer of
possession---Transaction of gift and its ingredients were not proved---Appellate Court's findings
did not suffer from any material irregularity in the exercise of jurisdiction warranting
interference---Revision was dismissed.

(b) Islamic law---

----Gift---Necessary ingredients of a valid gift are offer, acceptance and transfer of possession.

(c) Islamic law---

----Gift---Mutation---Validity---Mutation merely recorded the transaction, which needed to be
proved independently---Mutation in itself did not conclude the matter in the absence of proof of
the transaction.

(d) Islamic law---

----Gift---Exclusion of heirs---Effect---Where gift was made to the exclusion of heirs, the
absence of or reason or justification, thereof, adversely affected its validity.

(e) Islamic law---

----Gift---Validity---Where an oral gift was recorded through a mutation and the revenue
officer attesting the same was not examined as a witness, serious doubt as to its validity would
arise.

Amir Shah v. Ziarat Gul 1998 SCMR 593; Mst. Hajra Bibi and another v. Mst. Maryam Bibi and
another 2000 SCMR 1021; Abdul Jabbar and others v. Muhammad Jabbar and others 2002
SCMR 1173; Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911; Abdul Mateen
and others v. Mustakhia 2006 SCMR 50; Adam Khan and others v. Muhammad Sadiq 1995
MLD 506; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245;
Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana PLD 2003 SC 849 and Rahmat
Ullah and other v. Saleh Khan and others 2007 SCMR 729 ref.

Abdul Rahim and others v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 and Barkat Ali
through Legal-Heirs and others v. Muhammad Ismail through Legal-Heirs and others 2002
SCMR 1938 rel.

M. Shehzad Shaukat for Petitioner.

Sh. Naveed Shaheryar for Respondents.


ORDER

SH. AZMAT SAEED, J.---This Civil Revision is directed against the appellate judgment and
decree, dated 25-11-2009 whereby the appeal filed by the respondents against the judgment and
decree, dated 18-10-2007 was accepted.

2. Brief facts necessary for the adjudication of the lis at hand are; that the property in dispute
was admittedly owned by one Ghulam Qader, the predecessor-in-interest of the parties.
Apparently, few days before his death a mutation of gift was attested in favour of the petitioner
in respect of the property in dispute. After the death of Ghulam Qader the respondents filed a
suit for declaration and permanent injunction to call into question the alleged gift in favour of
the petitioner. The suit was resisted. On the divergent pleadings of the parties the issues were
framed and evidence was led. Whereafter, the trial Court seized of the matter vide judgment,
dated 18-10-2007 dismissed the suit. Aggrieved respondents filed an appeal which failed to find
favour and was dismissed vide appellate judgment and decree, dated 17-12-2008. Aggrieved, the
respondents filed Civil Revision No.29 of 2009 which was accepted by this Court vide its
judgment, dated 23-7-2009 whereby the appellate judgment and decree, dated 17-12-2008 was
set aside and the case was remanded to the first appellate Court. After hearing the parties, the
first appellate Court vide impugned judgment and decree, dated 25-11-2009 accepted the appeal
filed by the respondents as a consequence whereof the suit filed by the said respondents was
decreed and the gift declared as ineffective against their rights.

3. Counsel for the parties have been heard and record appended with this petition has been
perused. It is contended by the learned counsel for the petitioner that in the plaint the factum of
the gift was admitted and it was claimed that the mutation in respect thereof was invalid in view
of mental ill-health of the deceased Ghulam Qader and allegedly the gift was effected during
Marz-ul-Maut. Adds that additional plea has been raised that Ghulam Qader was suffering from
intoxication at the time when the mutation was entered into. It is the case of the petitioner that on
the evidence on record the respondents 'failed to prove through cogent evidence that Ghulam
Qader was either suffering from any mental infirmity or was intoxicated at the relevant point of
time. Also contended that the respondents have failed to prove that gift has been executed during
Marz-ul-Maut. In fact, it is contended, that there is no finding in this behalf by either of the two
courts. It is also the case of the petitioner that respondents are bound by their pleadings and
cannot be permitted to prove a case not pleaded. In support of his contentions, learned counsel
has placed reliance on Amir Shah v. Ziarat Gul (1998 SCMR 593), Mst. Hajra Bibi and another
v. Mst. Maryam Bibi and another (2000 SCMR 1021), Abdul Jabbar and others v. Muhammad
Jabbar and others (2002 SCMR 1173), Khalil Ahmad v. Abdul Jabbar Khan and others (2005
SCMR 911) and Abdul Mateen and others v. Mst. Mustakhia (2006 SCMR 50).

Learned counsel for the respondents has controverted the contentions raised by learned counsel
for the petitioner and has further contended that the mutation in question merely recorded a
transaction which when disputed have required to be proved in accordance with law and onus in
this behalf lay upon the petitioner who was the beneficiary of the transaction. It is added that the
said transaction of gift has not been proved in evidence nor its ingredients established on the
record. The entire exercise, it is contended, is suspicious having been entered into a few days
before the death of the alleged donor whereby the heirs other than the petitioner have been
excluded without any justification. It is also the case of the respondents that the admission being
relied upon by the petitioner has already been held by this Court pertain to the mutation and not
to the transaction of the gift vide remand order, dated 23-7-2009 and neither the first appellate
Court could not travel behind the remand order nor can this issue be raised again at this belated
stage. In support of his contentions, learned counsel has placed reliance on Adam Khan etc. v.
Muhammad Sadiq (1995 MLD 506), Abdul Majeed and 6 others v. Muhammad Subhan and 2
others (1999 SCMR 1245), Abdul Rahim and others v. Mrs. Jannatay Bibi and 13 others (2000
SCMR 346), Barkat Ali through Legal-Heirs and others v. Muhammad Ismail through Legal-
Heirs and others (2002 SCMR 1938), Sher Baz Khan and others v. Mst. Malkani Sahibzadi
Tiwana (PLD 2003 SC 849) and Rahmat Ullah and others v. Saleh Khan and others (2007
SCMR 729).

4. The matter came before this Court in civil revision adjudicated upon vide order, dated 23-7-
2009 wherein it was clearly held in para.8 that no findings has been returned as to the existence
or otherwise of the ingredients of a gift i.e. offer, acceptance and transfer of possession. It was
further held that the mutation merely recorded the transaction, which needed to be proved
independently. It was also observed that the so-called called admissions pertained to the mutation
of gift and not the transaction. It was in the above perspective that the case has been remanded
with the above observation. No doubt, the respondents could not prove that the donor Ghulam
Qader was suffering from any mental infirmity or was intoxicated at the time when the mutation
was entered and recorded. It was also not proved on record that the donor was suffering from
Marz-ul-Maut at the time of alleged gift. The factum that a mutation of gift has been entered into
in favour of the petitioner is obviously admitted what required adjudication in the facts and
circumstances of the case whether the property in question was in fact and in law gifted to the
petitioner. An over view of the judgments and authorities cited by the parties at the bar reveal
that existence or absence of various factors may adversely affect the validity of the gift and the
proof thereof. Where, as in the instant case gift is made to the exclusion of heirs the absence of
or reason or justification, therefor, adversely affect the validity of the gift as has been held by the
honorable Supreme Court of Pakistan in Barkat Ali's case (supra). Where, an oral gift is recorded
through a mutation and the revenue officer attesting the same is not examined as a witness as in
the instant case a serious doubt as to its validity would arise as has been held by the honorable
Supreme Court of Pakistan in Abdul Rahim's case (supra). It has been noted that in the instant
case only Patwari and not the revenue officer appeared as P.W.2. who stated that he did not have
the thumb impressions of Ghulam Qader affixed for the purposes of effecting the mutation and
that the mutation was recorded on the alleged statement of Ghulam Qadeer but he makes no
mention of the acceptance of the alleged gift by the petitioner.

5. In the instant case the donee never entered the witness box tostate on oath that the property has
been gifted to him or that he accepted the gift and the possession was transferred which fact also
makes the transaction suspicious as held by the honourable Supreme Court of Pakistan in Abdul
Rahim's case (supra).

6. Needless to say it is settled law that the mutation in itself does not conclude the matter in the
absence of proof of the transactions as has been held by the judgment of honorable Supreme
Court of Pakistan in Sher Baz Khan (supra).

7. The upshot of the above discussion is that the petitioner has failed to prove the transaction of
gift as there was no reliable evidence of its ingredients i.e. offer, acceptance and transfer of
possession. The fact that the mutation of gift was entered into a few days before the death of the
donor does not help the petitioner. The donee never entered the witness box to prove the gift.
The revenue officer also was never produced in evidence. The justification or reasons for
excluding other heirs were also conspicuous by his absence. In this view of the matter the
transaction of gift and its ingredients are not proved on record as has been correctly held by the
first appellate Court vide the impugned judgment. No exception can be taken to the findings
returned by the first appellate court which is in accordance with law. There is no material
irregularity in the exercise of jurisdiction warranting interference by this Court. This civil
revision being without any merits is dismissed.

A.R.K./M-152/K Revision dismissed.