2003 PLP 1531 (MLD)

4. From the divergent pleading of the parties the learned Civil judge proceeded to frame the following issues:-- (1) Whether the plaintiff is owner of the suit-land to the extent of 2/9 share and whether the impugned Mutation of Gift Nos. 109, 807 and 1453 are illegal, void and ineffective qua the rights of the plaintiff? OPP (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the plaintiff has no locus standi to institute the instant suit? OPD . (4) Whether the suit has been incorrectly valued? OPD (5) Whether the suit-land was transferred in favour of the defendants by valid Gift Mutations Nos.109, 807 and 1453? OPD (6) Whether the description of the suit property is incorrected? OPD (7) Relief.

5. After recording the evidence produced by both the parties the learned Civil Judge decided Issue No.1 in favour of petitioner/plaintiff by observing that plaintiff is owner of the suit-land to the extent of her share as the property was gifted by Khair Muhammad through verbal gift and impugned Mutations of Gift No.109, 807 and 1453 in favour of Mst. Azra Bibi and Sughran Bibi by Khair Muhammad were illegal, void and ineffective upon the rights of the plaintiff. Under Issues Nos.2 and 3 the learned Judge observed that petitioner/plaintiff had the locus standi to file the suit and the suit is maintainable against the respondents/ defendants. As a result of aforementioned findings in favour of the petitioner on Issue No.1 the learned Civil Judge proceeded to decree the suit of the petitioner/plaintiff vide his judgment dated 4-3-1992. The appeal filed by the respondents/defendants was accepted by the District Judge, M.B. Din. He reversed the finding on Issues Nos. 1 and 5 by observing that there was no verbal gift in favour of the petitioner/plaintiff and the land has been validly gifted in favour of respondents/defendants Mst. Azra Bibi and Sughra Bibi by Khair Muhammad respondent/defendant.

6. The learned counsel for the petitioner contends that petitioner being the daughter of Khair Muhammad has legal right to get the land. He further contends that impugned Mutations Nos. 109, 807 and 1453 are illegal, void because the petitioner has been illegally deprived from her legal right.

7. Conversely the learned counsel for the respondents contends that Khair Muhammad appeared in the witness-box and he denied the assertion made by the petitioner that land was gifted in favour of the three daughters through the verbal gift. He states that this statement of Khair Muhammad donor is sufficient to rebut the case of the petitioner when he himself categorically stated that he has not given any share of land to Nusrat Zohra and has transferred the land with her free consent to the respondents /defendants Mst. Azra Bibi and Sughran Bibi. The mutation was attested by the Revenue Officer on the statement of Khair Muhammad. The gift has been accepted by the donees, the possession was handed over to the said two ladies namely Azra Bibi and Sughran Bibi and, therefore, the gift was complete in all respect under the law. The learned Civil Judge by misreading evidence decreed the suit of the petitioner/plaintiff. The District Judge who reversed the finding on Issues Nos. 1 and 5 by correct reading of the evidence, and interpretation of law.

8. I have heard the learned counsel for the parties and persued the record with their assistance. There are three ingredients for the valid gift:

(i) Declaration of the gift; (ii) acceptance of the gift; and (iii) handing over the possession of the gift by the donor to the donee. On the touchstone of the above-stated ingredients of the gift, I have examined the case of the parties. There are two parts of the case set up by the petitioner Mst. Nusrat Zohra in her plaint. Firstly she has stated that land was verbally gifted by Khair Muhammad in favour of his three daughters namely Nusrat Zohra petitioner, Azra Bibi and Sughran Bibi respondents/defendants. The onus of proving this verbal gift was on the petitioner. She herself appeared as P.W.1. In cross-examination she has admitted that she is not in possession of land and that the land is in possession of the respondents/defendants Nos. 1 and 2 and they are looking after Khair Muhammad. Petitioner also produced Rehmat Khan and Bashir P. Ws. to substantiate her claim of verbal gift in her favour. B Both the above-stated witnesses were unable to satisfy the Court that possession was delivered by Khair Muhammad in pursuance of the verbal gift made by him. No Revenue Record in support of the contention made by the petitioner has been produced during the trial. In this view of the matter the learned Civil Judge was not legally correct in deciding the Issues Nos. 1 and 5 in favour of the petitioner. This brings me to discuss the second part of the case urged by petitioner in her plaint that the impugned Gift Mutations Nos. 109, 807 and 1453 made by Khair Muhammad in favour of Azra Bibi and Sughran Bibi are void and illegal. The onus of proving validity of gift Mutations Nos. 109, 807, 1453 was on the respondents/defendants. To discharge the onus proving valid gift in their favour respondents/defendants produced Patwari Bashir Ahmed son of Muhammad Hayat D.W.I who stated that Khair Muhammad appeared before the Revenue Officer and got statement recorded before him. He further clarified that the gift was made by Khair Muhammad in favour of his two daughters namely Azra Bibi and Sughran Bibi. D.W.2 Manzoor Hussain son of Khushi Muhammad was produced who compared the papers of the impugned mutation. Khan Muhammad son of Ghulam Muhammad was the Lambardar of the village appeared as D.W.3. He has testified that gift mutations were got attested by Khair Muhammad with his free consent and there was no fraud in it. He further clarified that possession was delivered by Khair Muhammad to the donees. The matter has been clinched in favour of the respondents/ defendants when Khair Muhammad appeared in the witness-box as D.W.4. He has also confirmed that he himself has got mutation entered. This statement of Khair Muhammad was sufficient to rebut the case of the petitioner. When donor himself categorically stated before the Court that he has not given any share of land to Nusrat Zohra petitioner and that the land was gifted through the impugned mutations in favour of the respondents/defendants, to my mind the petitioner/plaintiff could have not claim any right in the property. The learned District Judge has rightly placed reliance on the case reported in PLD 1994 SC page 650 in which it has been observed that:

"Under Muslim Law a person owning a property has a right to dispose of wholly or partially and there can be no objection to it. A property can be disposed of by sale, gift, will or creating a Waqaf. The other noteworthy characteristic of Muslim Law is that an heir can claim a right in the property only after the death of the predecessor from whom he is to inherit the property. It is established rule of law that during the lifetime of ancestor, a legal heir cannot challenge the validity of a gift made by the ancestor. See case of Amir v. Bakhshu and others (PLD 1975 SC 625). The petitioner could have not claimed any right on the basis of verbal gift in her favour nor she has any legal right to claim the property in lifetime of Khair Muhammad which was validly transferred by way of gift through impugned mutations in favour of respondents/defendants.

9. Apparently it does not stand to reason that petitioner Mst. Nusrat Zohra who is the real daughter of respondent No.3 Khair Muhammad has been deprived from the property. On the deeper position of evidence, it is so because the mother of Mst. Nusrat Zohra was divorced by Khair Muhammad and the donor was not happy with Mst. Nusrat Zohra and her mother. It is alleged that the (sic) mother of Mst. Nusrat Zohra was abducted and, thereafter, she contracted marriage with Sikandar which was a cause of annoyance for the Khair Muhammad respondent No. 3 donor who with his free consent transferred his entire holding in favour of his two daughters namely Azra Bibi and Sughran Bibi from his second wife.

10. The learned Civil Judge by misreading of evidence and misinterpreting the law, decreed the suit of the petitioner Nusrat Zohra. The appeal has rightly been accepted by the District Judge, M.B. Din. by reversing the finding of Issues Nos.1 and 3 by correct reading of the evidence and interpreting the law on gift. No illegality or irregularity has been committed by District Judge in accepting the appeal of the respondents/defendants and dismissing the suit 'of the petitioner.

11. For what has been discussed above, this petition has no merits which is dismissed with costs. S.A.K./N‑307/L Petition dismissed.