1994 PLP 2339 (MLD)

Vide this judgment, I propose to dispose of R.F.As. Nos. 26 to 30 :-t 1990 as common questions of law and facts are involved therein, and they arise out of similar judgments.

2. Respondent No. l filed Objection Petitions Nos. l/4, 151/4, 96/4, 312 , and 2/4 under section 30 of the Land Acquisition Act wherein she challenged the gift deed No.537 dated 2-11-1961 executed by Mst. Noor Jehan Begum mother of respondent No. l in favour of Mst. Sultan Bakht Begum mother of the petitioner herein and also challenged the mutations attested on the basis of the said gift deed. The objector averred that Mst. Noor Jehan Begum being of advanced age was not in proper senses, and was short of eye-sight and hard of hearing and was unable to understand the nature of transaction; that the gift was the result of undue influence and fraud. The objection petitions were resisted by the respondent. Upon the pleadings of the parties the following issues were framed:

(1) Whether the gift deed dated 2-11-61 in favour of respondent No. l on the basis of which Mutation No. 1555 attested on 13-2-1963 was sanctioned, is fictitious, fraudulent, and ineffective against the rights of the objector? (2) Whether the objector is entitled to get compensation of her share to the extent of 1/6th share out of the compensation of the suit Khasra Nos.? (3) Whether Mst. Noor Jehan Begum mother of the objector was an old, blind, dum and Pardanashin lady and was not in proper senses at the time of the execution of the gift deed No.537 mentioned above, if so, its effect? (4) Whether the objector has got no cause of action? (5) Whether the objector is estopped by her conduct to bring the present objection petition? (6) Whether the objection petition is within time? (7) Whether the objection petition is bad for non-joinder of necessary parties? (8) Whether the objection petition is incompetent in its present form? (9) Relief The parties produced their respective evidence and upon consideration thereof the learned Referee Court vide its judgment and decree which is impugned herein, allowed the objection petitions and held that the objector/respondent was entitled to her legal share in the property under references.

3. Learned counsel for the petitioner submitted that the donee was the wife of donor's husband's brother and she was in possession of the property from the date of gift till its acquisition by the acquiring department, therefore the claim of the objector-respondent No.1 was time-barred and she was not entitled to any relief. He further contended that admittedly the gift was made through a registered gift deed dated 2-11-1961 but the same was never challenged by the objector before any forum despite the fact that she knew that the donee was in possession of the property and was deriving the benefits therefrom. As such the claim being time-barred she was not entitled to any relief.

4. Opposing the aforesaid contentions, the learned counsel for the respondent No.1 submitted that the donee was limited owner of the estate and she had no right under the ' Rawaj' to alienate the property through gift.. He referred to the pedigree-table wherein she was recorded as limited owner and also referred to the statement of O.W. 2 Muhammad Sarwar who stated that according to Mutation No.1295 attested on 14-10-1923 inheritance of Taj Muhammad Khan devolved on Mst. Noor Jehan Begum as limited owner and according to the record she was shown as limited owner of the estate of Taj Muhammad Khan. Attention was also drawn to the statement of Sultan Muhammad Khan who is the son of the donee, according to whom the nature of the transaction was neither explained to her nor understood by the donor but simply her thumb-impression was obtained on the document. It would be appropriate to reproduce his entire statement which would resolve the dispute:-- " C.W. 1: Respondent No.1 is my mother, and the objector is the daughter of my uncle. Mst. Noor Jehan Begum was the wife of my uncle. I had identified Mst. Noor Jehan Begum at the time of registration of the gift deed in favour of my mother respondent No.

1. I am identifying witness of that deed. I have seen the original gift deed that bears my signatures. xxx by the objectors: Mst. Noor Jehan Begum was aged 110 years and was suffering from Esthema, and she was deaf. She was Pardahnashin lady. She was not in proper senses. She could not even identify the persons. This deed was not read over nor explained to her. When the revenue officer asked her whether he should register this deed she never replied but her thumb-impression was obtained on this deed. Rafique Khan my brother was not present at that time and he was employed at Tarbela Dam during those days. She was a limited owner under custom. Khan Bahadur Muhammad Zaman Khan my maternal uncle has manured this deed when it was shown to me it was scribed. But at the time of the registration of the deed Khan Bahadur Muhammad Zaman Khan was not present. The income of the property and we were co-sharer and supplying her requirements, till her death. After her death the objector used to receive income of the suit property. xxx by respondent No. l: The mother of objector remained in possession of the suit property. Tenants used to cultivate the suit property and I cannot name them because they were many in number. The land of Mst. Noor Jehan Begum and respondent, myself and my brother is joint but we were in separate possession. I was not present when the deed in suit dated 2-11-61 was scribed at Haripur. The marginal witnesses did not sign it in my presence. I don't know where the revenue officer has made the endorsement on the registered deed. Only the thumb-impression of Mst. Noor Jehan Begum was obtained in my presence. The signature under the endorsement of the sub-registrar are of mine. I had signed when the endorsement was already there. I knew that the property of the donor Mst. Noor Jehan Begum was gifted in favour of my mother. Mst. Noor Jehan Begum never replied to the inquiry of Sub-Registrar while he was taking her thumb-impression on the gift deed. I raised no objection at that time. I did not ask Mst. Noor Jehan Begum whether she was willing to gift her property in favour of my mother. Witness volunteered that she was not in the position to understand this fact. One Abdul Khaliq son of Malik Karam Dad was also present at the time of registration of the gift deed. My mother is staying in these days with Ronaq Zamall Khan my brother-in-law. I did not participate in the marriage ceremony of the daughter of Muhammad Rafiq Khan due to this evidence arid ,as I was not invited. I do not remember when Mst. Noor Jehan Begum died: ...... When she became of old age she lost her sews. daughter of Mst. Noor Jehan Begum used to attend her. During her senses Mst. Noor Jehan Begum administered herself all the affair. "

5. I have heard the learned counsel for the parties and have gone through the record of the case.

6. The important piece of evidence which would clinch the matter is the statement of Sultan Muhammad referred to above, who happens to be the son of the donee and real brother of the appellant. lie has admitted that the donor was a lady of about 110 years of age and was' suffering from ' asthema' and was a Pardahnashin lady and was not in proper senses. She could not identify the person and the deed was not read over or explained to her. Admittedly the document was executed by an old illiterate Pardahnashin lady and it was duty of the Court to satisfy itself from the evidence that the deed was ostensibly executed by the full knowledge and understanding of what she was doing, and that she had complete knowledge of the nature of the transaction. The evidence on the record shows that none of the condition was fulfilled and all this would show that the thumb-impression of the old ailing lady was obtained on the document and a person who happens to be the real son of the donee being identifier of the donor lady has undone the whole document to be an un-voluntary one. Even otherwise the transaction is invalid in law. Admittedly respondent No.1 is the daughter of the donor, who being of advanced age and suffering from asthema died after 1/1 1/2 years of the execution of the deed. anti could not understand the effect of the transaction. It seeing that the transaction was designed to deprive the lawful heir from inheritance. In Sardar Ahmad Khan v. Mst. Zamroot Jan PLD 1950 Peshawar 45 it has been held that "An intelligent study of the Muslim Law regarding the testamentary disposition possessed by a Muslim will show that it is the policy of the Muslim jurists to prevent any interference with the course of devolution of property amongst the testators' heirs as laid down in the Holy Qur'an. The law would be the same if a certain transaction, though on the face of it, a gift, is in fact a device td deprive a lawful heir of his share in the property. No person can be permitted to defeat the object of Muslim Law by entering into such colourable transaction. It is an admitted principle of law that a gift intended to defeat or defraud the creditor is voidable. On the same principle a gift intended to disinherit an heir would, be a sham transaction, and, therefore, nugatory the gift In order to be effective should be a genuine transaction and not inertly a plan to achieve, some ulterior object. It is true that the necessary effect of almost all the gifts will disinheritance of one or the other of the heirs of the donors 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, in my opinion, bad in law". It may be noted that after the death of Mat. Sultan Bakht Begum the donee, the appeal has been preferred only by her daughter Mst. Khalida Begum and her sons who could inherit the major portion from the estate of the lady have not filed tiny appeal nor have appeared to support the claim of the appellant. She in para. 2 of the Memorandum of Appeal has acknowledged the fact that other heirs have not joined her therefore, they have been arrayed as respondents. Moreover the revenue record would show that donor was a limited owner and she had no right to alienate the property through gift. In case of Suba v. Mst. Fatima Bibi (1992 SCMR 1721), it has been held as under:

"There is no dispute between the parties that at the time of death of Bhaga custom was the rule of inheritance under which females did not inherit absolute ownership but in certain situations viz. in the absence of male lineal descendant, widows and unmarried daughters succeeded to the estate as limited owners only to enjoy the usufruct of the property till life, marriage or remarriage and the ownership used to vest in the reversioners of the last full owner. In the case in hand too, Mst. Fateh Bibi defendant No.2 succeeded to the property as life estate owner and was not competent to alienate the property in favour of anybody and consequently the gift made by her vide Mutation No.369 was invalid. " Under section 30 of the Land Acquisition Act if any dispute arises as to the apportionment of the amount of compensation, or as to the persons to whom the, same or any part thereof is payable, the collector can refer such dispute for decision of the Court. In case of Nanak Chand v. Piran Ditta AIR 1941 Lah. 268 it has been held "When a statute confers an unqualified discretion upon some authority, this is usually interpreted as meaning that the authority may act either entirely of his own motion or upon being moved by some interested party, and his powers are regarded as limited if this is required by some necessary implication. No such implication appears to arise in the present instance. If section 30 is read in its plain sense, this simply means that the Collector must refer a question of title if required to do so by an application received within the prescribed time, but if an application is received after that time, he then has the option of referring the matter to the District Judge or refusing to do so; and if the Collector, while forwarding the reference himself, mentions that the application is received after the prescribed time, it is to be presumed that he is intentionally making a reference under section

30. As already mentioned, no specific time is provided within which a reference under section 30 should be made, nor has our attention been drawn to any authority in which it has been definitely held that such a reference cannot be made any time". In another case reported in AIR 1962 Mad. 313, it has been observed that the word ' dispute' has been sued in the context of section 30 in a wide and not literal sense and implies any controversy as to title, whether as between actual claimant or even with respect to a single claimant as appearing from the documents made available by the Government. The acquiring officer has a right to make a reference even if a dispute or controversy as to title arises on the documents before him. Since no period of limitation is prescribed for filing an objection petition under section 30 of the Land Acquisition Act, and the Collector can refer the dispute at any time, hence in view of the above authorities objection with regard to period of limitation is ruled out.

6. For the aforesaid reasons the judgment and decree of the learned Referee Court seems to be quite in order and in accordance with law, therefore no exception is taken to it. Consequently the appeals are dismissed with costs. A.A./1603/P Appeals dismissed.