2004 PLP 1518 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment, dated 3-5-1999 passed by a learned Single Judge of Lahore High Court, Lahore in, Civil Revision arising out of a suit for possession.

2. The relevant facts in the background are that the suit-land was owned by one Ghulab son of Ditta who died bachelor in 1943. The land was mutated in the name of his unmarried sister Mst. Jani who made a gift of the suit-land in favour of the petitioners vide registered gift-deed, dated 28-4-1979 and died on 17-8-1979. Karam Ellahi predecessor-in -interest of the respondents, claiming himself collateral of Ghulab and Ditta, filed a suit for possession of the property by challenging the validity of the gift taking the plea that Mst: Jani was limited owner and competent to alienate the property through gift. The petitioners while contesting the suit pleaded in the written statement that Mst. Jani being full owner of the property made a valid gift of land in their name. The learned trial Judge vide judgment, dated 10-11-1987 decreed the suit and the appeal preferred by the present petitioners against the decree was dismissed by the learned Additional District Judge, Rawalpindi, vide judgment, dated 23-1-1989. The petitioners while invoking the revisional jurisdiction of the High Court assailed the verdict given by the two Courts concurrently that gift was not proved to have been made by Mst. Jani. The sole ground agitated before the. High Court was that on termination of limited interest of Mst. Jani in the property under Shariat Application Act 1962 she being legal heir of Ghulab, would inherit 1/2 share in the property and in the light of sections 2 and 3 of the Shariat Application Act, section 2-A of Punjab Muslim; Personal Law (Shariat) Application Act, 1962 and section 2 of Ordinance (XIII of 1983) the petitioners, under the gift, would be deemed to be the owner of land to the extent of her share in the property. The case of the respondents on the other hand, was that they being successor-in-interest of Karam Ellahi collateral of Ghulab, were entitled to 1/4th share in the property.

3. The learned Judge in Chambers in the High Court while placing reliance on Shankarlal Narayandas Mundade v. The New Mofussil Company Limited and others AIR 1946 PC 97 without permitting the petitioners to take a new plea for the first time before the High Court in the revision petition dismissed the same with observation, in para. 10 of the judgment as under:

"

10. However, by force of law the limited estate in respect of immovable property held by Muslim Females under the Customary Law was terminated with effect from 31-12-1962 and in terms of section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, share out of the land held by her (Mst. Jani) as a limited owner devolved on her being sister of Gulab, the last male owner, which upon her death would devolve upon her legal heirs, if any. The remaining land in dispute would also be distributed according to Shariat between the reversioners/heirs of Gulab."

4. Learned counsel for the petitioners in the light of the legal position explained by the High Court, has submitted that the petitioners also being included in the descedents of Ghulab, would be entitled to inherit the property in their own right and at the same time would get, the land of the share of Mst. Jani under the gift which being registered; would carry the presumption of correctness. The Court of first instance and the Appellate Court having come to the conclusion that the gift was' not made by Mat. Jani, held that it was not a valid gift to create any right, title and interest in the property and this concurrent finding of fact of the two Courts regarding the missing of essential component of a valid gift, was further upheld by the High Court, therefore, the same cannot be allowed to be re-opened before this Court through reappraisal of evidence. There can be no cavil to the legal position that in absence of existence of valid gift, the property left by Ghulab would go to his legal heirs in accordance with the law of inheritance, therefore, the above referred statutory provisions would need no discussion. We having examined the matter, find that the judgment impugned in the present petition is not suffering from any legal infirmity to be interfered by this Court and this petition, barred by one day, having no merit is dismissed. Leave is refused. M.H./M-654/S Petition dismissed.