2006 PLP 1478 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Fakr Din son of Allah Rassi seeks leave to appeal against the judgment, dated 30-4-2004 of a learned Single Judge of Lahore High Court whereby the concurrent dismissal of Mst. Begum Bibi's suit by the trial Court on 7-1-1984 and by the learned Additional District Judge, Sialkot on 6-6-1985, was set aside and the respondent lady was granted a decree of title in the suit property to the extent of 1/4 share in the estate of her husband.

2. Shukar Din was admittedly the owner of the disputed property which is shown to have been gifted away by him through gift-deed Exh.D.2, executed on 3-4-1978 and registered on 10-4-1978. Begum Bibi, on 29-5-1978 filed a suit against Fakr Din to the effect that she as wife was entitled to her Sharai share in the suit property which, due to Shukar Din having died issueless, amounted to 1/4 and that any gift deed on behalf of her husband and in favour of his brother defendant was fraudulent and ineffective upon the Sharai rights of the plaintiff wife.

3. The defendant contested the suit on the ground that he was a valid donee and that the plaintiff already stood divorced in the year 1966 After evidence of the parties, the lady was non-suited by the two Courts but one thing was unanimously determined thereby that Mst. Begum Bibi was the wife of Shukar Din having not been divorced. This concurrent finding has become absolute having also been endorsed by the learned High Court.

4. We have gone through the evidence on record and have come to the conclusion that the same has perfectly been appreciated by the learned High Court and both the Courts below had fallen into an error of misreading and non-reading. When once it was emphatically determined by the trial Court that Mst. Begum Bibi was the wife of Shukar Din, this material finding ought to have been challenged by the present petitioner either in appeal or through cross-objections, which both were never filed either before the First Appellate Court or the second Appellate Court. This declaration has attained absolute finality.

5. It is given in the gift-deed that Shukar Din had divorced his wife and also was issueless. Once it is presumed that he had neither a wife nor any children, the property was bound to be inherited by the brother or brothers and hence there was no need at all of gifting away the property to the brother. The very factum of gift which otherwise is not proved is indicative of the fact that it was manoeuvred to be executed to deprive the wife of her Sharai share. It has come on record and is admitted at the Bar that Shukar Din had another brother as well besides Fakr. Din, the petitioner. It appears that the suppression of his existence is another mala fide and the petitioner through the so-called gift-deed attempted to disinherit the wife as well as another brother of the deceased.

6. In the circumstances, the conclusion drawn by the learned Judge in Chambers of the High Court is not only in accord with evidence on record but also in accord with the principle of natural justice. There being no force in the petition, it is hereby dismissed and leave to appeal refused. M.H./F-10/SC???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.