P L D 2026 Islamabad 57 (PLP)

SARDAR EJAZ ISHAQ KHAN, J.

The captioned appeals are decided by this common judgment as both arise out of a consolidated judgment of the learned trial court.

2. One Raja Iftikhar Abbasi married his second wife Durr-e-Shahwaar in 1978. Iftikhar had three children from his first marriage, Nisar Abbasi, Obaid Ahad and Sajida Naseem. Admittedly, Durr-e-Shahwaar lived with Iftikhar in his House No. 225, Street No. 74, G-9/3, Islamabad, which is the suit property in these cases. Iftikhar died in 1985, without having any children with his second wife. Durr-e-Shahwaar died on 19.04.2010. About a month before her death, she entered into an agreement to sell dated 17.03.2010 (ATS) with Tariq Usman for 9 million Rupees, with the ATS recording receipt of 8 million Rupees of the sale consideration by Durr-e-Shahwaar. Since Dur-e-Shahwaar died issueless, her three brothers Colonel Asif, Muhammad Azam and Muhammad Sheryar became the natural heirs of her estate.

3. Tariq Usman filed Suit No. 723/2010 on 19.09.2010 for specific performance of the ATS. Initially, only the three brothers of Durr-e-Shahwaar and the CDA were impleaded as parties. The sons of late Iftikhar stepped forward and asked to be impleaded, whereupon the trial court directed for them to be impleaded qua heirs from Iftikhar's first marriage. During the pendency of the litigation, both the sons Nisar and Ubaid also passed away. Nisar's widow, Samina Naz and her four children were also impleaded. Samina and her children (grandchildren of the late Iftikhar) remained the main contestants to Tariq's suit for specific performance and, for convenience, are hereinafter referred to collectively as "Samina". In parallel, Samina filed Civil Suit No. 605/2011 for declaration, partition, possession and injunction, denying any title of Durr-e-Shahwaar in the suit property or, in the alternative, claiming that she would be entitled only to 1/8th of the share of the suit property and that they, being the lawful heirs of the late Iftikhar, were entitled to the rest of the share in the suit property. Both the suits were consolidated and decided by the impugned judgment dated 05.03.2016, allowing Tariq's suit for specific performance and dismissing Samina's suit.

4. Tariq's suit for specific performance was premised primarily on four documents: (i) the ATS (Ex. P1), (ii) Nikahnama recording the date of registration of marriage as 01.01.2010 (Ex. P2), (iii) Iqrarnama declaring the gift of the suit house by Iftikhar to Durr-e-Shahwaar as a dower gift (Ex. P3), and (iv) an application dated 24.02.1985 (Ex. P4) by Iftikhar to the CDA for the transfer of the suit house to Durr-e-Shahwar. Samina claimed in the written statement and in the plaint in her counter-suit that the four aforesaid documents were fabricated and forged. The learned trial Court after dealing with the evidence concluded that the onus probandi to prove Ex.Pl to P4 as fabricated and forged lay on Samina, which she had been unable to discharge.

5. At the heart of this dispute lies the question whether Iftikhar did gift the suit suit house to Durr-e-Shahwaar. It so happened that in the testimony of DW-3, who was a record keeper of the CDA, surfaced a copy of a gift deed executed on stamp paper dated 17.02.1985, which was exhibited as Ex. DW-3/16. The said gift deed expressly recorded that Iftikhar had gifted the suit house to Durr-e-Shahwaar out of love and affection, and that he had handed over the possession of the suit house to Durr-e-Shahwaar. The gift deed declared the suit house as the exclusive property of the done, but also purported to limit the gift to the donee's lifetime only and, after the donee's death, Nisar Ahmed Abbasi and Ubaid Ahad, the sons of the donor, were to be the owners of the said house. It is this Exhibit DW-3/16 that, in my humble view, acquires the prime importance in deciding these appeals.

6. Learned counsel for Samina submitted that Ex. DW-3/16 was only a photocopy, that the original was not produced1, and that the objection to the admissibility of this photocopy was duly raised during the testimony of DW-3, that was dealt with by the trial Court observing that the question of its admissibility will be decided in the final judgment, but such decision was never rendered. It therefore becomes important to see whether this gift deed could validly be considered as secondary evidence in this case. In my humble view, it can be considered as secondary evidence under Article 76 of the Qanun-e-Shahadat Order, 1984 (QSO), which lists the instances in which secondary evidence of documents may be given. Clause (b) of Article 76 stipulates that secondary evidence of a document may be given: when the existence, conditions or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.

7. The contents of the gift deed in their most essential aspects effectuate the grant of an absolute gift of the suit property to the donee, albeit for her life only. Now this fact has been expressly pleaded by Samina in paragraph 6 of her written statement as follows: "Deceased Durr-e-Shahwaar had only right to stay in the suit property till her lifetime". This statement could not have been made by anyone, especially one interested in the suit house, without the knowledge of the gift aforesaid. Further, paragraph 4 of the plaint in Samina's counter-suit reads as follows: That Mst. Durr-e-Shahwaar after the death of the deceased Iftikhar Raja Abbasi started living along with deceased Nisar Ahmed Abassi (predecessor-in-interest of the plaintiff) for some period of time and remained receiving an amount of Rs.1,500/- per month from deceased Nisar Ahmed Abbasi and was legally bound to deliver the peaceful possession of the suit property to the plaintiff. The aforesaid paras in Samina's written statement and in her suit correspond exactly to the contents of the gift deed and have been made in writing in her pleadings. These paragraphs are a candid admission that Durr-e-Shahwaar was a donee of the gift of the suit house, albeit the term of the gift is contested. Therefore, the contents of the gift deed as confirmed by the written admission in the aforesaid paras of Samina's written statement and her plaint are admissible, whereby Samina admits that Durr-e-Shahwaar was a donee of the gift of the right to live in and to receive the rent of the suit house. It is also settled law that admissions in pleadings are conclusive under Article 113 QSO, and are to be distinguished from 'evidentiary admission' under Article 45: Mst. Niaz Begum v. Waris Khan (1995 MLD 690) and Akbar Waheed v. Karachi Development Authority (1993 MLD 87). The gift per the gift deed is then also corroborated by the transfer application (Exh-P4) moved by the late Iftikhar himself under Application No. 2071 dated 24.02.1985.

8. It is settled law that the gift of a property with the limiting condition of a life interest only takes effect as an absolute gift and the condition limiting the gift to be for the life of the donee only is void under Muslim law. Learned counsel for Tariq aptly cited several judgments of the Supreme Court giving effect to section 164 in Mulla's Principles of Muhammadan Law, which reads as follows:

164. Gift with a condition. When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it. It is not necessary to cite all the judgments referred to by the learned counsel for Tariq. It suffices to cite the following passage from Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others (PLD 1991 SC 466), holding that a condition attached to the gift of land making it operative in favor of the donee only for the lifetime would be void and that, if a life estate had to be created through a gift, it had to take the form of waqf. The Supreme Court observed as follows: The only question to be resolved now is: whether, condition attached to the gift of land making it operative in favour of the donee only for the lifetime would be valid and operative or would be rendered void on account of the Islamic dispensation as the validity of the gift has to be and is being examined under the light of the Islamic Law. As already mentioned the decision from Lahore in the case of Farid having examined this question with reference to the case-law by then available, resolved this controversy with the view that the condition would be void. The gift would be operative as that of the corpus in perpetuity in favour of the donee carrying all the necessary implications accordingly. In the work on Islamic Law by Mulla, under Paragraph 153, considerable case-law (citing dozens of rulings including those of Privy Council) has been noted in support of the proposition that when a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no conditions were attached to it.

9. Article 2(4) of the QSO reads as follows: A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Expanding on the aforesaid Article, the Supreme Court held in Salamat Ali and others v. Muhammad Din and others (PLD 2022 SC 353) as follows: The conceptual analysis of this clause shows that in order to prove a fact asserted by a party, it does not require a perfect proof of facts, as it is very rare to have an absolute certainty on facts. This provision sets the standard of a 'prudent man' for determining the probative effect of evidence under the 'circumstances of the particular case'. The judicial consensus that has evolved over time is that the standard of 'preponderance of probability' is applicable in civil cases...

10. Considering all the above facts cumulatively, coupled with that Durr-e-Shahwaar being the lawfully wedded wife of Iftikhar is an admitted fact per paragraph 2 (on facts) of Samina's written statement, read with the further admitted fact that she lived in that house both when her husband was alive and thereafter for another 25 years until her death in 2010, coupled yet further with the admission in Samina's suit that her father paid Rs.1,500/- per month rent to Durr-e-Shahwar for her life, leads me to conclude, on a balance of probabilities, that the suit house was duly gifted by the late Iftikhar Abbasi to Durr-e-Shahwaar. For the reasons aforesaid, I also conclude that the gift was an absolute gift and the condition of it being limited to her lifetime only was void.

11. With these conclusions, Samina's challenges to Tariq's suit must fail. The challenge mounted by learned counsel for Samina to the genuineness of the Nikahnama and the Iqrarnama for being forged documents become legally inconsequential because, even if the Court were to hold that the documents Exh-P1 to P4 were fabricated documents, it would not benefit Samina in the least because, for being Durr-e-Shahwaar's exclusive property, the suit house would devolve on her brothers and Samina would still get nothing as a result. However, for the sake of completeness, it is appropriate to deal with the objections raised by the learned counsel for Samina to the evidence led by Tariq. A) Counsel submitted that the nikahnama (Ex. P2) dated 01.01.2010 was forged. His reason for so claiming was that the nikahnama carried the columns for CNIC numbers in the form that came into existence after the NADRA Citizenship Rules of 2002 were made and that, in 1978, when Iftikhar and Durr-e-Shahwaar got married, the form of nikahnama was the one prescribed under the Muslim Family Law Ordinance, 1961, and West Pakistan Family Courts Rules, answer to that objection is that the nikahnama in question gives the date of 01.01.2010 in row number 24, which is for the date of registration of the nikahnama and not the date on which the nikah was solemnized; that date in the aforesaid nikahnama is recorded in row number 20 as 23.07.1978. The objection therefore becomes irrelevant and remains so also by the fact that the marriage relationship between Iftikhar and Durr-e-Shahwaar is admitted in Samina's written statement. B) The second objection by the learned counsel was based on various items of cross-examination of Tariq on the line that Tariq never met Durr-e-Shahwaar nor saw her signing the ATS or receiving, the sale consideration. Such questions were answered by Tariq stating that that he was in communication with Durr-e-Shahwaar's brothers, who stated that, for being a Pathan and advanced in age, she would not come out before other men, which is a perfectly valid explanation when considered from the perspective of one who is only interested in purchasing a property and has been shown the requisite documents and has carried out his due diligence of the CDA's record. C) The next objection was that if the gift was genuine then Durr-e-Shahwaar should have got the property transferred in her name during the 25 years that she lived in that house since 1985 until 2010 after her husband's death. The answer to this objection surfaces in the testimony of DW-3, wherein he cited no less than 6 applications by Durr-e-Shahwaar to the CDA for the transfer of the house in her name with the copies of applications duly exhibited in his testimony, and also by the proceedings before the Ombudsman initiated by Durr-e-Shahwaar for transfer of the suit property in her name. The CDA remained unable to effect the transfer because, in parallel, Nisar Abbasi had also lodged. applications before the CDA for transfer of the house in Iftikhar's children's names as heirs and obviously CDA could not in view of two competing applications and without a decision of the civil, Court in this respect proceed to transfer the property in Durr-e-Shahwaar's name.

12. For the foregoing reasons, once I have concluded that the suit house constituted the sole and exclusive property of Durr-e-Shahwaar by virtue of a valid gift under Islamic law free from the limiting condition of a life estate, Samina becomes a stranger to that property and carries no locus standi to challenge the validity of the transaction of sale of the suit house to Tariq. In the absence of any reversionary interest in the suit house vesting in her or other heirs of the late Iftikhar Abbasi, the merits of her written statement challenging the transaction documents for the sale of the suit house as fabricated wither away. For the same reason, Samina's suit claiming an inheritance share in the suit house also fails. Both the appeals are dismissed. MH/212/Isl. Appeals dismissed. 1 On the margin of the gift deed appear the words 'Original Seen' with a signature thereagainst. It is not clear whether this was written by an official of the CDA or by the learned trial Court. The record does not exfend any assistance in this regard and therefore a definitive view in this regard cannot be taken.