2010 PLP 328 (CLC)

CH. NAEEM MASOOD, J.

The instant civil revision is directed against the judgment and decree dated 17-7-2004, passed by the learned Additional District Judge, Kahroor Pacca;, whereby the judgment and decree dated 31-3-2001, passed by the learned Civil Judge, Kahroor Pacca was set aside.

2. The brief facts of the case are that one Azeem died leaving behind six children. Manzoor Son Bakhan Mai Daughters Noor Mai Maryam Mai Manzoor Mai Nazir Mai The brother Manzoor as at litigation drawn with his sisters. The bone of contention in between the parties is the alleged gift made by the sisters of their inherited land by way of gift to their brother Manzoor and then reflected in mutation No.805 dated 5-7-1987. Mst. Bakhan Mai and Noor Mai filed a suit against their brother Manzoor and Maryam Mai, Manzoor Mai and Nazir Mai being pro forma defendants stating therein that the none of the sisters of Manzoor had made any gift to their brother Manzoor, and the sisters of Manzoor being Pardanashin ladies were defrauded and gift was fraudulent having been obtained through fraud and the fraud was further perpetuated by reflecting the same in Mutation No.805 dated 15-7-1987 with connivance of the Revenue Authorities. The petitioner/defendant No.1 Manzoor Ahmed filed the written statement controverting the facts of the plaint and further submitted that the suit was filed with ulterior motives to harass him. On the pleadings of the parties, the following issues were framed:

(1I) Whether the impugned mutation of Gift No.805, dated 15-7-1987 was validly executed in favour of the defendant No.1? OPD-1 (2) If the above issue is proved in affirmative the impugned mutation of gift was the result of fraud and misrepresentation and collusion? OPP (3) Whether the instant suit is within time? OPP (4) Whether the instant suit not in proper form? If so, what should be the proper form? OPD-1 (5) Whether the plaintiff lacks cause of action? OPD-1 (6) Whether the plaintiff is estopped by her words' and conduct? OPD-1 (7) Whether the instant suit is vexatious and' frivolous, as such the defendant No.1 is entitled for special cost? OPD-1 (8) Relief.

3. The parties led their respective oral as well as documentary evidence, whereupon the learned trial Court vide its judgment and decree dated 31-3-2001, dismissed the suit of plaintiffs Mst. Bakhan Mai and Noor Mai, presently respondents. On appeal, this judgment was reversed by the learned Additional District Judge, Kahroor Pacca (Lodhran), vide his judgment, and decree dated 17-7-2004 and the suit of Mst. Bakhan Mai and others was decreed.

4. The learned counsel for the petitioner contends that the three ingredients of the gift namely, offer, acceptance and possession having been established on the record, the judgment of the learned lower appellate Court suffers from illegality. It is further submitted that cogent reasons have not been given by the learned lower appellate Court while reversing the well reasoned judgment and decree of the learned trial Court; that the relevant Muhammadan Law has not been applied in the present case and undue advantage has been given to the respondents on the basis of heir being Pardanashin ladies.

5. On the other hand, learned counsel of the respondents has supported the impugned judgment.

6. I have heard the learned counsel for the parties and have perused the record minutely with their able assistance.

7. The moot point involved in the case revolves around the following issues:- (i) Whether the gift is complete through valid offer by the Donor's acceptance by the Donee and the delivery of possession? (ii) Whether the sisters have been defrauded and have been deprived of their due share of inherited by their brother because of the fact their being illiterate villages and Pardanashin ladies?

8. My findings on these issues are: (i) The property left by deceased Azeem, the father of the parties, rightly devolved upon them through Mutation No.803 (Exh.P.1) but it appears that the petitioner kept alive his lust to appropriate the property left by his father by fraud. From the evidence of the witnesses of the petitioner, it is not established that the offer of gift was made to the sisters/respondents by the petitioner nor it is established that it was accepted by the respondents/sisters. Even the delivery of possession is highly doubtful. It was the joint property and the petitioner kept the sisters in oblivion about the. correct position and kept them satisfied by paying them nominal income of the usufruct. The exact place, date and time of the gift has also not been given. It is universally accepted that Muslim in this part of the globe, usually hold Qul Khawani after the three days of the death of the deceased. Muhammad Nawaz P.W.7 has stated the Qul Khawani was held after three days, whereas, D. W-6 has stated that the Qul Khawani was held after three months of the death of Azeem. Muhammad Nawaz D.W.7 was not certain whether the Qul Khawani was held after three days or three months of the death of the deceased D.W.8 Manzoor did not mention the place, day, month or time of his Qul Khwani of his father, when the respondents/sisters had gifted the property to Manzoor brother. Such major contradictions negate and nullify the story of Hiba cooked up by the petitioner. Specific evidence of three ingredients of gift i.e. declaration of gift, acceptance of gift and transfer of possession are lacking in the present case. This establishes that the petitioner has cooked up a story of gift by the sisters/ respondents so as to deprive them from the inheritance of their father Azeem. (ii) In the case of gift a very heavy burden lies on the shoulders of the donee to prove beyond any shadow of doubt, the offer, acceptance and the delivery of possession. Such heavy onus was on petitioner, which he failed to discharge. Even the statement of the revenue authorities who entered the mutation in question, is not confidence inspiring. In any case, even in the presence of a mutation of gift in question, the petitioner was under a bounded duty to prove the gift beyond any shadow of doubt, which he has failed to do. Additionally, this fact cannot be lost sight of that the respondents are Pardanashin ladies. It has been held in Aziza Begum v. Mst. Badnshahan and others 1994 MLD 1741 as follows:

Gift

Gift deed by a Paradanashin lady

Plea of fraud by alleged donor

Plaintiff (donor) being a Paradashin lady was entitled to protection and even if she had signed the gift deed in question, defendants could not draw any premium on it for their failure to bring on record evidence to the effect that at the crucial time independent advice was available to her

Alleged gift deed was, thus, of no binding effect." In Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, it was held by the Honourable apex Court that as a public policy the brothers should not deprive their sisters from their inheritance of their father on different pretexts. It has been held in Riasat Ali v. Mst. Sardar Bibi and 7 others 1994 CLC 475, as follows:

"

Gift

Onus to prove valid gift

Defendant setting up alleged gift deed in his favour while plaintiff who claimed property in question, on basis of inheritance denied alleged gift as also its validity-Onus to prove, voluntary execution of such gift rested heavily upon defendant who was beneficiary under the gift deed

Qanun-e-Shahadat (10 of 1984), Art.118

" Manzoor petitioner has miserably failed to establish that his five sisters gifted him the property inherited by them on the death of their father Azeem through the alleged gift. The story of alleged gift appears to be a concoction and reflection of the same in the Mutation No.805 appears to be perpetuation of fraud in collusion with the revenue authorities.

9. There is no substance in this revision petition, which is dismissed leaving the parties to bear their own costs. S.A.K./M-524/L Revision dismissed.