2010 PLP 870 (CLC)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioners herein being the beneficiaries of a gift Mutation No. 12569 dated 5-12-1987 failed to prove the genuineness of the same in a suit filed by the respondents, their real sisters and legal heirs of the deceased donor which culminated into decretal of suit and the above mutation was declared to be null and void, being based on fraud and collusion etc., by the trial Court. Their appeal against the above judgment and decree failed. Hence the present revision against the concurrent findings.

2. The learned counsel for the petitioners submitted that they have proved the genuineness of the mutation in question in accordance with the provisions of Qanun-e-Shahadat. He further submitted that the plaintiffs/respondents were legally bound to prove the factum of fraud and the same was alleged by them. He further contended that the suit of the respondents was barred by law of limitation as the suit was filed by them some 12 to 13 years after the attestation of mutation and submitted that the findings of the two Courts below are against law and based on mis-reading and non-reading of the evidence on the record.

3. Learned counsel for the petitioners was heard and record of the case perused.

4. After having gone through the record of the case which reveals that the parties to the suit are brothers and sisters inter se. The property in dispute, belonging to their predecessor, was shown to have been gifted away by their predecessor in favour of his sons, the petitioners by excluding his real daughters, the respondents therein. If there had been no gift mutation, the parties to the lis would have inherited the property in accordance with their respective shares.

5. After the death of their predecessor, the respondents, real sisters of the petitioners were compelled to file the present suit on refusal of the petitioners to give their share of produce and they got the knowledge of the said mutation and filed the present suit on the refusal of the petitioners to admit their claim.

6. The law of the land on the subject is well established and settled that whenever an illiterate, old age person, pardanashin lady or female issue of a Muhammadan is deprived of her properly through sale, exchange, gift, inheritance etc., them in such-like situation, the beneficiary of the transaction, whether the same is effected through mutation, registered deed or the same is oral, would legally be required to prove its genuineness. Besides, he would also be required to prove with confidence-inspiring evidence that the same was the result of free and independent advice of the person parting with the property etc. In case of gift besides it's proof, the beneficiary would also be required to prove the factum of gift along with all of its ingredients i.e. offer, acceptance and delivery of possession of the property under gift through independent and confidence-inspiring evidence. Factum of fraud, no doubt is a fact to be proved by the person alleging the same but in such like circumstances the mere assertions in pleadings and evidence of the above stated facts are sufficient to discharge their burden and then the beneficiary in rebuttal of the same has to prove the genuineness of the transaction in their favour as discussed above.

7. The question of limitation in such like cases is well settled by now. In cases of fraud, it starts running from the date when the factum of fraud comes to the knowledge of the party and not from the date of fraud.

8. Needless to say that mere attestation of suit mutation in favour of the petitioners would not support their version in absence of evidence as discussed above. The mutation itself does not confer or extinguish any right or title and if the mutation on the basis of which a right in the property is claimed, is disputed, the onus of proving the correctness of mutation and genuineness of transaction contained therein would be on the party claiming right on the basis of such mutation.

9. Here, the petitioners have failed to prove the being a valid and genuine alienation in their favour. The petitioners even have failed to refer to a piece of evidence which have been misread or not read in its true perspective by the Courts below. Similarly, no jurisdictional defect in the exercise of jurisdiction by the Courts below was pointed out. Hence being concurrent findings of facts, would not require interference by this court in exercise of its revisional jurisdiction. In this view of the matter, this petition being meritless is dismissed in limine with no orders as to costs. H.B.T./83/P???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.