2017 PLP 356 (YLRN)

ALI AKBAR QURESHI, J.

This civil revision is directed against the judgment and decree dated 08.06.1998, passed by the learned appellate court, by which, the suit for declaration filed by the petitioners being the legal heirs, for the cancellation of two mutations, was dismissed and the decree passed by the learned trial court dated 02.11.1996 was set aside.

2. The facts as stated in the case are that, the petitioners instituted a suit for declaration being legal heirs of the deceased Mehmood Khan, challenging the two mutations i.e. mutation No.13 dated 20.12.1973 and mutation No.29 dated 10.05.1998, on the ground, that the mutations are result of fraud and misrepresentation. The respondents although, admitted the petitioners as legal heirs of deceased Mehmood Khan, but denied the other averments of the plaint. The learned trial court framed issues including the Issue No.3, recorded the evidence of the parties and finally decreed the suit, against which, an appeal was filed by the respondents, which was accepted and the judgment and decree, passed in favour of the petitioners, was set aside.

3. In this case, in fact the petitioners, who are admittedly the legal heirs of deceased Mehmood Khan, have challenged the aforesaid mutations, on the basis of which, the land in question was gifted by deceased Mehmood Khan in favour of his son, namely, Mushtaq Ahmad, respondent No.1 herein, firstly in the year 1973 and secondly in the year 1981. It appears from the record, that respondent No.1, as usual, used the device of gift, to deprive the lawful heirs i.e. the petitioners from the legacy of deceased Mehmood Khan.

4. The learned counsel for the petitioners has submitted, that admittedly, the petitioners are the legal heirs of deceased Mehmood Khan who had two wives, respondent No. 1 is real son of deceased Mehmood Khan whereas, the petitioner No. 1 Mst. Sabhro is the second wife of deceased Mehmood Khan and the petitioner No.2 Mst. Akhlaq Bibi is the real daughter of Mehmood Khan. Further submits, that the respondent No.1 has failed to prove the factum of aforesaid two gifts, allegedly made in his favour by the predecessor of the parties to the suit, and this proposition has already been dealt with by the Hon'ble Supreme Court of Pakistan in the esteemed judgment cited as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). The relevant para is reproduced as under: "Scope of rights of inheritance of females is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence is yet to take its own time." The learned counsel also cited the other esteemed judgments on the issue as Inayat Ali Shah v. Anwar Hussain (1995 CLC 1906), Sabir Ali and others v. Islam-ud-Din (2001 SCMR 41), Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938), Muhammad Bakhsh v. Ellahi Bakhsh (Deceased) through Umar Khan and others (2003 SCMR 286), Muhammad Khan and others v. Amiran Mai through Legal Heirs (2003 SCMR 1920) and Rashid Ahmad through Legal Heirs and others v. Nazir Ahmad and another (2004 M LD 1706). The relevant para of the judgment cited as Sabir Ali and others v. Islam-ud-Din (2001 SCMR 41), is reproduced as under: "Courts have concurrently found that oral gift of the house allegedly made by deceased in favour of petitioners who are his grandsons was not established -- This Court has itself perused the record and come to the same conclusion

This Court also did find any substance in the submission that two lower Courts have in any manner misread the evidence or misconstrued the documentary evidence -- Indeed, this Court is convinced that no gift at all was made by deceased grandfather of petitioners in their favour -- In factual background of the particular case, this Court finds no proper ground to interfere with concurrent findings of fact that the so-called gift was far from proved -- It was apparently in imaginative exercise undertaken and a futile attempt made by petitioners to subdue their father in order to lend support to their mother who is sitting with them as an estranged wife of respondent -- Respondent who is son of the deceased, real owner of the house, cannot be disinherited on mere assertion of an oral gift

Leave to appeal refused." The relevant paras of the judgment cited as Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938), is reproduced as under:-- "

Gift

Furnishing of reasons and justifications of making gift by the donor

Necessity

Courts not divested of powers to scrutinize the reasons and justification for a gift so that no injustice was done to the rightful owners and no course of inheritance was bypassed. Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct is made without reason or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. In the wake of frivolous gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justifications for a gift so that no injustice is done to the rightful owners and no course of inheritance is bypassed." "

Gift

Validity

No reason had been furnished by the donor for the gift made to the grandson

Love and affection of the grandson seemed to be unreasonable in the presence of one and the only son of the donor - -- Son of the donor had two daughters as well and there was apprehension to the donor that in case of death of his son property would also be inherited by his daughters which was a negative reason for making said gift by the donor

Grant of gift, in circumstances, seemed to be mala fide." The relevant paras of the judgment cited as Muhammad Bakhsh v. Ellahi Bakhsh (Deceased) through Umar Khan and others (2003 SCMR 286), is reproduced as under:-- "Fact that donor died 14 days after execution of gift would strengthen the stance that donor was not in good health and execution of gift deed was dubious." "Gift would be invalid when it deprives legal heirs of their shares according to the Holy Quran. "

5. Conversely, learned counsel for the respondent No.1 supported the findings record by the learned appellate court and submitted, that the land in question was rightly gifted in favour of the donee i.e. respondent No.1.

6. The record and particularly the evidence, produced by the parties, was examined with the assistance of learned counsel for the parties from where, it is found, that the learned appellate court did not interpret the evidence available on record, in a manner as required by law. It is proved on record, that when the alleged gifts were made in favour of the respondent No.1, the petitioner No. 1 was in Nikah of deceased Mehmood Khan and the petitioner No.2 was in her tender age. Although, it happens, that in our Muslim society, usually, the daughters or the widows are being deprived from their right of inheritance which has been given by Allah, the Almighty, and almost in every case, the device of gift is being used. In this case, the respondent No. 1 claimed the gift of the land in question on the basis of mutations but could not prove those mutations by adducing independent, truthful and confidence-inspiring evidence. The learned appellate court has also not attended the most important document i.e. death certificate which is Exh.P.5, according to which, deceased Mehmood Khan was at the age of 80-Years, at the time of his death, whereas the respondent No.1, while appearing in the witness box, has stated on oath, that deceased Mehmood Khan was of 70-Years of age at the time of his death. As claimed by the respondent No.1, that the mutation No.29 was sanctioned on 10.05.1981, whereas the statement of deceased Mehmood Khan was recorded on 29.01.1981, and it remained pending with the revenue authorities for about more than 06-Months. If we see the contents of Exh.P.5 i.e. the death certificate and calculate the age of deceased Mehmood Khan, it will prove that the mutation No.29 was sanctioned after the death of deceased Mehmood Khan.

7. As regards the mutation entered in the year 1973, the respondent No.1 could not place on record any solid evidence to prove the fact of gift and even otherwise, although the oral gift is permissible in law, but if this device is used to deprive the legal heirs from their inheritance, it cannot be approved in law.

8. It is notable here, that the respondent No.1, while filing the written statement, has admitted the Para No.2 of the plaint, wherein it is mentioned on oath by the petitioners, that they are owners of the property in question being the legal heirs of deceased Mehmood Khan, to the extent of 05/12-Share. This admission on the part of the respondent No.1 shows, that no gift was made by deceased Mehmood Khan in favour of the respondent No.1 and the respondent No.1 managed the aforementioned two gifts with the connivance of the revenue staff just to deprive the petitioners from their valuable right of inheritance.

9. The learned appellate court also rendered a detailed judgment but neither appreciated the record available on the file nor discussed the law cited on behalf of the petitioners. Even today, the learned counsel for the respondent No.1 did not refer any judgment in support of his arguments and only supported the findings recorded by the learned appellate court.

10. The learned trial court, who recorded the evidence of the parties, rightly appreciated the record and finally concluded, that the respondent No.1 has, in fact, deprived the petitioners from their valuable right of inheritance on the basis of the aforesaid mutations of gift.

11. In view of the above, the judgment and decree dated 08.06.1998, rendered by the learned appellate court, is against the record and the law delivered by the Hon'ble Supreme Court of Pakistan in a plethora of judgments.

12. Resultantly, this civil revision is accepted, and the judgment and decree passed by the learned appellate court is set aside, and that of the learned trial court is affirmed. No order as to costs. MM/S-31/L Revision accepted.