1997 PLP 972 (MLD)

Muhammad Hassan (minor) now major plaintiff brought a civil suit through his mother (next friend) Mst. Fati against his step-sister Mst. Amina, defendant, claiming a declaration to the effect that Karim deceased, father of the parties, had orally gifted away his entire legacy in favour of plaintiff in his lifetime in the year 1977 and on 1-1-1978 Karim appeared before the Revenue Officer and the gift Mutation No. 1895 was attested; plaintiff also sought cancellation of inheritance Mutation No. 1928 dated 25-4-1981 and restoration of gift Mutation No. 1895 dated 1-1-1978. 2.Mst Amina defendant submitted her written statement on 7-2-1985. In her written statement, the claim of the plaintiff was denied and took the stand that she has rightly been given 1/3rd Share of the legacy of her father late Karim vide Inheritance Mutation No. 1928 dated 25-4-1981.

3. In the light of the pleadings of the; parties, the learned trial Judge framed 4 issues. The parties led their evidence in the Trial Court. Upon consideration of the evidence, adduced by the parties, the learned Civil Judge dismissed the suit vide judgment dated 7-4-1987, holding that the oral gift seems to be of undue influence of Mst. Fati, the mother of plaintiff, over late Karim, father of the parties to the suit.

4. Feeling aggrieved from the judgment dated 7-4-1987, Muhammad Hassan, plaintiff filed an appeal in the Court of District 'Judge, Skardu. The appeal was accepted by the District Judge, Skardu vide judgment/decree dated 22-8-1987 and suit was decreed in favour of plaintiff against defendant as prayed for in the Plaint.

5. Not content with the impugned judgment/decree dated 22-8-1987 of the District Judge, Skardu Mst. Amina defendant filed second appeal before the then Judicial Commissioner, Northern Areas. The learned Judicial Commissioner dismissed the second appeal vide judgment dated 13-8-1990, hence the present Review Petition.

6. I have heard lengthy arguments addressed by either side and examined the entire record of the case. The plaintiff/respondent has based his claim on the oral gift made in the year 1977 and gift Mutation No. 1895 dated 1-1-1978, Exh. P.W./A. The plaintiff/respondent also attached with the plaint Inheritance Mutation No. 1928 dated 25-4-1981 Exh. P.W./8. In support of oral gift and gift Mutation No. 1895 dated 1-1-1978, plaintiff got recorded his statement through his mother Mst. Fati and produced two P. Ws. namely Numbardar Ali (P. W .) and Ali Dad Numbardar (P.W.2), who are real brothers. Mst. Fati mother of the plaintiff stated in her statement before the Court that at the time of delivery of possession on the basis of oral gift, she herself took the branch of the tree and herself picked up earth with the help of spade, whereas Numbardar Ali (P.W.1) deposed before the trial Court that at the time of handing over the possession on the basis of oral gift, Mst. Fati took the branch of tree and plaintiff Muhammad Hassan himself picked up the earth with the spade, while Ali Dad (P.W.2) deposed before the Court that the plaintiff Muhammad Hassan himself picked up earth with the help of spade and also took the branch of tree. This is vital discrepancy between the statement of Mst. Fati and between the statements of two P.Ws. regarding the factum of delivery of possession on the basis of oral gift, therefore, the delivery of possession is doubtful and the gift is incomplete.

7. Mst. Amina defendant/petitioner feeling dissatisfied with the alleged gift Mutation No.1895 dated 1-1-1978, for having been deprived by her father from her Shari share, went in appeal before the Assistant Collector/S.D.M., Khaplu. The Assistant Collector Khaplu issued notices of the appeal to Karim, father of the parties and Muhammad Hassan, but Karim did not appear before the Assistant Collector, while Mst. Fati appeared in the Court of S.D.M., Khaplu to defend the gift Mutation No.1895 in favour of her son Muhammad Hassan. The Assistant Collector, after hearing the parties, cancelled the gift Mutation No. 1895, dated 1-1-1978 and ordered for the attestation of inheritance mutation according to Gilgit and Baltistan Muslim Personal Law (Shariat Application) Act, 1963, vide his Order dated 3-5-1978. Accordingly, the necessary entries were made with red ink on the gift Mutation No.1895 dated 1-1-978 (Exh.P.W./A.). After the cancellation of gift mutation, Karim father of the parties remained mum and alive for full four years and remained in possession of his property as owner till his death, but he did not come forward to defend the gift mutation in favour of his son Muhammad Hassan, plaintiff/respondent. Likewise Muhammad Hassan also remained mum and did not challenge the cancellation order dated 3-5-1978 of the gift Mutation No.1895 before the Collector of the District. Therefore, the inheritance Mutation No. 1928 dated 25-4-1981 (Exh. P.W./B) has become final and exists in the field uptil now, while the gift Mutation No.1895 dated 1-1-1978 is no more in the field. Moreover Karim was having full knowledge about the cancellation of gift mutation because Mst. Fati had appeared before the Assistant Collector; Khaplu on 3-5-1978 and at that time, she was living with late Karim as his second wife, but Karim remained silent for full four years, till his death.

8. Similarly Muhammad Hassan, plaintiff/respondent did not approach the Collector of the District or the Civil Court during the lifetime of late Karim and after the death of Karim, plaintiff/respondent instituted the present suit on 29-11-1984 in the Court of Civil Judge, Skardu for the restoration of alleged gift mutation No-1895 dated 1-1-1978, which was cancelled by the Assistant Collector/S.D.M., Khaplu on 3-5-1978. From the cancellation Order dated 3-5-1978 of the gift Mutation No-1895 up to 29-11-1984, Muhammad Hassan, plaintiff/respondent remained silent and brought the present suit after 6 years, 6 months and 26 days-

9. The alleged so-called oral gift in favour of Muhammad Hassan, plaintiff/respondent is the outcome and the result of undue influence exercised by Mst. Fati (second beloved wife) of Karim, step-mother of Mst. Amina, defendant/petitioner. as the mother of Mst. Amina was divorced by late Karim. Even on the alleged oral gift, reference can conveniently be made to a ruling; PLD 1959 (W.P.) Lahore 932 (D.B.) Noor Muhammad--Appellant v. Mst. Karim Bibi--Respondent, which has also been relied by the learned trial Judge.

10. The District Judge and the then learned Judicial Commissioner have deprived a poor lady from her Shari share, which has caused great injustice to the defendant/petitioner. The finding of the then Judicial Commissioner regarding the adamant attitude of Mst. Amina with her father Karim, is, misconceived and without judicial foundation. In fact there is no evidence at all, about the adamant attitude of Mst. Amina with her father. The error is apparent on the face of record. In my considered belief, the omission on the part of the then Judicial Commissioner to apply his mind to the most important aspects had prejudiced the petitioner's case inasmuch as the possibility cannot be excluded that had the then learned Judicial Commissioner considered the points, the conclusion might have been different. It is substantial objection to the judgment and the impugned judgment dated 30-8-1990 of the then Judicial Commissioner, Northern Areas, warrants review for the reasons mentioned above. Reference can be made to PLD 1986 S.C. (AJ&K) page 56 Ghulam Akram and 5 others--Applicants v. Syed Shabbir Hussain Shah and 10 others- Non-Applicants.

11. In view of the above discussion, I allow this Review Petition, re-call the impugned judgment dated 30-8-1990 of the then learned Judicial Commissioner. Northern Areas as well as that of the District Judge, Skardu dated 22-8-1987 and restore the judgment dated 7-4-1987 of the learned Civil Judge Ist Class, Skardu. The parties are left to bear their own costs. A.A./17/G Review allowed.