2002 PLP 1082 (SCMR)

Mirza Naseer Ahmed, Advocate Supreme Court and Mahmoodul Islam, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 23rd October, 2001. IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑Petitioner seeks leave to appeal against the judgment/decree of Lahore High Court, Lahore, dated 6th July, 1999 whereby Civil Revision No. 1203 of 1995 and R.S.A. No.23 of 1995 were dismissed.

2. Precisely stating facts of the case are that respondent Mst. Bagbari daughter of Ghulam Muhammad being owner of 'the house situated in the Shamilat of Village Mauza Akki, Tehsil Phalia, District Mandi Bahauddin. transferred her said house by means of a gift deed, dated 27th May, 1989 in favour of her husband Sakhi Muhammad respondent No.

3. The gift deed was executed in favour of Sakhi Muhammad by Ijaz Hussain being attorney of Mst. Bagbari. Petitioner Muhammad Azam is son of Muhammad Hayat brother of Mst. gagbari. Muhammad Hayat died during lifetime of his father Ghulam Muhammad, therefore, Mst. Bagbari became exclusive owner of the property left by him. However, out of the agricultural property, she transferred some portion as gift to Muhammad Azam. Instant proceedings are the outcome of the suit filed by Muhammad Azam petitioner seeking cancellation of gift deed, dated 29th April, 1989 registered on 27th May, 1989 on the ground that same is the result of misrepresentation and fraud, therefore, has no legal effect. The suit was contested by the respondent by filing written statement wherein she repudiated the claim of petitioner on legal as well as factual grounds. It may be noted that in written statement Mst. Bagbari respondent No. 1, it is found that she being exclusive owner of the house had transferred the same to Sakhi Muhammad through her attorney Ijaz Ahmed by way of executing gift deed in his favour. It is stated that possession of house was delivered to Sakhi Muhammad as well but in her absence, petitioner took over its possession forcibly. As such Sakhi Muhammad also filed a suit for the restoration of possession. Learned trial Court after observing codal formalities consolidated both the suits. Ultimately, the suit filed by petitioner for declaration and cancellation of gift deed, dated 27th May, 1989 being No.151 of 1992 was dismissed whereas suit filed by respondent Sakhi Muhammad being No.183 of 1991 was decreed on 4th July, 1992. Petitioner preferred appeal which came up for hearing before Additional District Judge, Mandi Bahauddin who vide judgment/decree, dated 30th May, 1995 dismissed the appeal. As such petitioner preferred Civil Revision No.302 of 1995 and R.S.A. No.23 of 1995 before Lahore High Court, Lahore which were dismissed vide impugned order, dated 6th July, 1995. As. such instant petition has been filed.

3. Learned counsel for petitioner contended that the gift deed, dated 27th May, 1989 executed by Mst. Bagbari in favour of her husband Sakhi Muhammad is invalid in view of this Court's judgment reported in 1994 SCMR

818. It may be that same judgment was cited before High Court on behalf of the petitioner but it was not found applicable being distinguishable on facts of this case.

4. We have gone through the facts and circumstances of reported judgment as well independently and we are also of the opinion that principle laid down therein would not be applicable on the facts of the instant case. It may be noted that as far as Mst. Bagbari is concerned, she was declared owner of the property, therefore, she had every right to use the same for her own benefit as well as for the benefit of her any other relative. As such, she being exclusive owner of the property executed the gift deed in favour of tier husband Sakhi Muhammad through her attorney Muhammad Ijaz who was also her son‑in‑law, therefore, no question of committing any misrepresentation or fraud by Sakhi Muhammad is made out for taking the house through gift deed from respondent Mst. Bagbari. Even otherwise, Mst. Bagbari in her statement as well as during the proceedings before the trial Court and High Court had maintained that she had transferred the property in favour of her husband.

5. In addition to it, there is yet another important question arises for consideration namely that what is the locus standi of petitioner to object the validity of gift deed, dated 27th May, 1989 because by no stretch of imagination, he acquires legal right to challenge the gift deed on the ground that it is the result of fraud or misrepresentation, because he had no legal entitlement in the property which Mst. Bagbari had inherited from her father Ghulam Muhammad. As far as petitioner's father Muhammad Hayat is concerned, he was excluded in the life of his father Ghulam Muhammad, however, to connect him, Mst, Bagbari had also transferred some portion of agriculture property in his favour. Therefore, after examining the case from each and every angle, no other conclusion can be drawn except that the suit filed by the petitioner Muhammad Azam with regard to authenticity of gift deed was misconceived and without any legal justification. Thus for the foregoing reasons, no interference with impugned judgment is called for by this Court. As such petition is dismissed and leave to appeal is refused. ' S.A.K./M‑362/S Leave refused.