2026 PLP 929 (SCMR)

MUHAMMAD SHAFI SIDDIQUI, J.

The present dispute is in relation to an Oral Gift, said to have been executed by respondent No.1 (as owner) in favour of appellant to the extent of 50% of the subject property. The appellant being aggrieved of a subsequent Gift Deed (yet again) executed by the respondent No.1 in favour of his wife, and on account of revocation of an earlier oral gift followed by recalling of the mutation in favour of appellant to the extent of 50% share in the aforesaid property brought the suit for adjudication.

2. The Appellant filed a suit seeking declaration as under: a). declaring that the plaintiff is a 50% owner of plot No.2/A(B), Link Street, Pakistan Defence Officers Housing Authority Karachi, measuring 1059 sq. yds. along with all construction thereof and a further declaration that the defendants Nos. 1 and 2 have no subsisting interest in the said property; b). declaring that the order of the Defendant No.4, passed on 10th June, 1998 recalling the mutation in favour of the plaintiff in respect of 50% share in the aforesaid property is void, contrary to the principle of natural justice and of no legal effect; c). direct the Defendant No.4 to restore the mutation in favour of the Plaintiff and to cancel the mutation order dated 11.06.98 made in the name of the Defendant No.2; d). permanently restrain the Defendants their agents or assigns from denying the right, title and interest of the Plaintiff to a 50% undivided share in the aforesaid property; e). grant costs of the suit; and f). grant such other relief(s) as may be appropriate in the facts and circumstances of the case.

3. The suit was contested by all defendants/respondents except Military Estate Officer and Cantonment Executive Officer which are arrayed as respondents Nos. 4 and

5. Pakistan Defence Housing Authority/respondent No.3, though filed a reply to the memo of plaint but only to the extent that they were/are a proforma party. Out of the pleadings of the parties only two issues were framed. A subsequent application for framing of additional issues was disposed of by an order of learned single Judge, as all such proposed issues were covered by the two substantive issues already settled. The issues which were framed and answered, are as under: i. Whether the Plaintiff is owner of 50% share in the property bearing Plot No.s/A (B), Link Street, D.H.A., Karachi measuring 1059 Sq. yds.? ii. Whether the Order dated 10.06.1998 passed by defendant No.4 (corrected vide Court s Order dated 28.02.2013, re-calling the mutation is illegal? iii. What should the decree be? The first issue is indeed dependent on oral gift as pleaded.

4. The plaintiff being appellant here led evidence by filing his own affidavit in evidence and produced Exh.PW-5/1 to Exh.PW-5/8 except Exh.PW-5/4 which is a declaration of oral gift dated 21.05.1986. The appellant/plaintiff also produced Muhammad Anwar son of Chaudhary Nazar Muhammad PW-2 as Exh./6 and Muhammad Rafiq Channa son of Muhammad Buta as P.W-3 as Exh./7 as court witnesses under Order 16 Rule 3 C.P.C. who produced the original declaration and confirmation of Oral Gift Deed as Exh.7/1, letter dated 05.06.1998 as Exh.7/2, letter dated 04.06.1998 at Ex.7/3 and letter dated 26.12.1985 as Ex.7/4. The appellant/plaintiff also summoned Muhammad Ishaq Khan son of Ghulam Sarwar Khas as P.W-4 at Ex-8 who is in fact a witness to the declaration of Oral Gift dated 21.05.1986 who turned hostile and produced Ex.8/1 his statement/declaration dated 21.08.1998.

5. From the side of the respondents/defendants, the respondent No.1 Mohammad Arif Khan led his own evidence and on behalf of respondent No.2 his wife as an attorney and produced Exh.DW-1/1 to DW-1/7 whereas the DW-1/3, DW-1/5 and DW-1/7 were produced and objections were raised by the counsel for plaintiff on their production which were referred to the court by the Commissioner regarding the evidence. The record further shows that another witness namely Muzamil Hussain son of Muazzam Hussain produced as DW-2 under Order XVI Rule 3 of C.P.C. and brought certain documents before the court as Ex.DW-1/10 and O/1 to O/4 to which objections were raised by the counsel for the appellant/plaintiff and yet again the matter was referred to the court by the Commissioner.

6. Under the original jurisdiction of the High Court learned Single Judge decided the matter in consideration of the evidence and detailed reasoning and the suit was decreed whereas on an appeal preferred by respondents Nos. 1 and 2 the judgment was reversed hence, this direct appeal under Article 185(2) of the Constitution of the Islamic Republic of Pakistan.

7. We have heard the learned counsel for the parties, and perused the material available on record.

8. As is obvious the frame of the dispute in terms of the pleadings was confined to two issues referred in paragraph 2 above. Hence the parties recorded evidence strictly in terms of the issues settled by the court and the findings were and rightly so, limited to such extent. In terms of paragraph 17 of impugned judgment, the emphasis was on the denial of the executant of the disputed gift which denial (per impugned judgment), should have an overriding effect and that other factor that prevailed is the alleged contradiction in understanding the statement of respondent No.5 who became hostile while recording his evidence and that much emphasis to his deposition was given by the learned Single Judge, as observed in the impugned order.

9. Mere denial of the executant at this stage when the parties are at dispute is inconsequential and should not form a decisive factor when other supportive evidence supports the case of appellant. After all he is contesting the suit and has denied the execution for which suit was filed and issues framed. What was required to be seen by the courts below was whether the gift deed to the extent of 50% share in the disputed property was executed in favour of the appellant by the respondent No.1 at the relevant time which is now denied. The circumstantial evidence was discussed in detail in the judgment of the learned Single Judge. The appellant claims ownership to the extent of 50% in the suit property on the basis of an oral gift dated 05.01.1984 and declaration in respect of the oral gift dated 21.05.1986 (regarding which issue was framed). Thus, it is not the execution of the gift and the declaration of oral gift alone it is the consequential effect of those documents that was established through evidence and that is mutation in the name of the appellant by defendants Nos. 3 and 4, which are Pakistan Defence Officers Housing Authority, the Military Estate Officer of the Military Estate Office, which mutation, without notice to the appellant was withdrawn and recalled on 10.06.1998. The contesting respondents attempted to present a case that they never executed the gift deed nor any oral gift was ever made in favour of the appellant. Instead, the respondent gifted his share in the property, as pleaded, to respondent No.1 (which is his wife) in the year 1989 on the strength of a registered gift deed. It is now to be seen whether at the time of alleged execution of a gift deed, the respondent No.1 was enjoying such share in the property, which was already bestowed upon the appellant via above oral gift dated 05.01.1984 and declaration in support thereof on 21.05.1986.

10. The appellant in order to support his case appeared as witness (PW-1) along with two attesting witnesses to the declaration of oral gift and those witnesses were Muhammad Anwar (PW-2) and Muhammad Ishaq Khan (PW-4). In addition to these two attesting witnesses Muhammed Rafiq Channa (PW-3) was also summoned as a witness under Order XVI Rule 3 of C.P.C. who produced and exhibited the originals of declaration of confirmation of oral gift (Exh-7/1), letter dated 05.06.1998 addressed by the respondent No.1 to MEO (Exh.7/2), letter dated 04.06.1998 addressed by respondent No.1 to MEO (Ex.7/3) and letter dated 26.12.1985 again addressed by respondent No.1 to MEO (Ex.7/4).

11. Witness Muhammed Anwar (PW-2) proved the contents of the oral gift and was subjected to cross-examination. The respondent No.1 was unable to support his objection to the extent that witness Muhammad Anwar was an employee of the appellant. There is nothing in law to prevent an employee to appear and depose evidence and all that is required to be seen by the court is whether the evidence is confidence inspiring and that whether the evidence of the witness was shaken in the cross-examination by the questions suggested by the respondents counsel. The witness answered that it is incorrect to suggest that I am deposing on behalf of plaintiff (appellant) under pressure and that if I would have not given the present evidence, I would have been rendered jobless at this stage of my life . The presumption at this stage that the evidence was given by the employee under any duress or coercion is not effective, especially when the other witness, who may have turned hostile has also not denied his signatures on the gift. Thus, we are of the view that on the strength of being an employee to a litigant, who has come to depose evidence, the oath statement cannot be discarded unless other circumstantial evidence would support such objection.

12. Witness from the office of Military Estate Office (MEO) has appeared as PW-3 who produced the original declaration confirming the oral gift (Exh.7/1). This has also eclipsed the objection that the appellant has not produced the original copy. Indeed, it was lying in the office of the Military Estate and the witness has produced it in his evidence. The witness who appeared as a witness for Military Estate Office also produced Ex.7/4 letter dated 26.12.1985 addressed by respondent No.1 to MEO informing the Military Estate Office that he has gifted his share in the Suit property to the appellant. The statutory bodies such as Pakistan Defense Officers Housing Authority and Military Estate Office thus presumed to have performed their duties strictly in accordance with law and this presumption cannot be ignored unless otherwise established by the objector/respondent No.1. The letter was acknowledged in the office of MEO on a 28.12.1985 duly signed and stamped by the office attendant and there is no challenge to such exercise, i.e., issuance of a letter by respondent No.1 and acknowledgement of such letter in the office of the MEO.

13. Insofar, as the second attesting witness (PW-4) Muhammed Ishaq Khan, who was summoned as a witness by the appellant and who turned hostile is concerned, in terms of the findings of the Trial Court he though was summoned by the appellant as his witness but has denied through an affidavit by stating that no oral gift was made in his presence by Muhammad Arif Khan in favour of Mr. Ghulam Asghar Khan. He has also stated that the respondent No.1 who is said to have executed the oral gift did not sign any written declaration of gift in his presence however, he has not disputed his signature on the declaration of gift in favour of appellant when the document was confronted to him. His further statement (to the extent of no oral gift executed) is of no use when he acknowledged his signatures on oral gift. He cannot blow hot and cold simultaneously. His statement to the extent of denial of oral gift cannot be enforced in view of Articles 102 and 103 of Qanun-e-Shahadat Order, 1984. He has also admitted, when he was asked about his signature on Ex.-5/4 to which he replied that there was no other person except appellant/plaintiff . This would further lead to conclusion that the oral gift was signed by him in presence of appellant. It is not his case that he has not gone through the contents as he is an educated person and knew what the document was about. The witness may have been summoned by the appellant to support his case in totality and though to some extent he may have turned hostile but the evidence recorded in his cross-examination lead to an irresistible conclusion that the document was executed/signed by the witness which was nothing but an oral gift in favour of the appellant.

14. Insofar as the claim of the respondent No.1 on the strength of a registered gift deed in favour of respondent No.2 is concerned, the record reflects and has not disputed that the said gift deed Ex.DW-1/3 was registered on the basis of certified copy of the original document of the property in question. This is very important as to why it was registered on the strength of a certified copy and not the original and where the original documents of the property were when this subsequent gift was registered in favour of respondent No.2. It is disclosed that the original documents have been handed over to respondent No.2 but it is not a fact. At the time of this registration the mutation had already been effected on the strength of an oral gift in favour of appellant in the year 1986 and it was allegedly withdrawn on the 10.06.1998 whereas the gift was registered in favour of respondent No.2 in the year 1989 in presence of valid mutation entry in favour of the appellant.

15. The property, per record was mortgaged with Habib Bank Limited for obtaining loan in respect of several companies owned by the appellant and the title documents were deposited with the Bank in terms of Ex.-5/9 and this was somewhere in June 1983 when the memorandum of deposit of title deed was presented by the respondents Nos. 1 and 6 (Muhammad Ashaq Khan) and (Muhammad Ishaq Khan) PW-4. The respondent No.1 in his evidence has admitted that he has not delivered the original documents to his wife, respondent No.2, which were in fact with the appellant who mortgaged it with a bank by consent of respondents Nos. 1 and

6. He acknowledged that the appellant got the same redeemed/released from the bank and that he did not informed the bank about the gift executed by him in favour of his wife. He also agreed that he did not pay money that was outstanding to the bank for redemption/release of the title documents of the property. Since the redemption of the document, the respondent has not cared to retrieve the original document of the subject property which were undisputedly not with the respondent.

16. We have perused the order of the trial court which is very well reasoned and in consideration of the evidence recorded by the witnesses. The impugned order to the contrary does not discuss in detail the evidence that was recorded in disputing the gift deed executed by the respondent No.1 in favour of respondent No.2 and the original documents in custody of the appellant having got the document redeemed from the bank where the property was mortgaged.

17. Limiting ourselves to the extent of litigation to the extent of pleadings of the parties and the issues framed, we safely conclude that there was an oral gift executed by the respondent No.1 in favour of the appellant to the extent of 50% of the property and that the mutation entry on the strength of the said oral gift were duly recorded which were subsequently unlawfully withdrawn without notice to the appellant. We therefore conclude that respondent No. 1 was not enjoying the property at-least to the extent of 50% when he allegedly executed gift in favour of his wife. We, therefore, allow this appeal and restore the order of the learned Single Judge by setting aside the order of the learned Division Bench of the High Court. UN/G-11/SC Appeal allowed.