199 PLP 1965 (SCMR)

‑‑‑‑ Gift‑‑‑Factum of gift and delivery of possession not proved ‑‑‑Effect‑‑ Donee herself admitted in her statement before Court that donor was seriously ill; he could not move and was mentally incapacitated at the time of making of gift‑‑‑Gift deed was on plain paper and no stamp was affixed nor it was registered ‑‑‑Donee thus absolutely failed to prove factum of gift in her favour. Ch. Muhammad Akram, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing: 31st October, 1992. ABDUL QADEER CHAUDHRY, J.‑‑‑The petitioners have filed this petition seeking leave to appeal against the judgment dated 14‑7‑1992 passed by the Lahore High Court.

2. The facts of the case are that Mst. Bakhat Bharri deceased predecessor‑in‑interest of the petitioners filed a suit for declaration claiming that she is owner in possession of the land measuring 250 Kanals and the defendants‑respondents have no right or title in the suit land; that Mutation No. 310 relating to the inheritance sanctioned on 7‑10‑1981 in favour of Mst. Beeban is liable to be amended and that Mutation No. 798 dated 29‑11‑1983 on the basis of the aforementioned mutation is liable to be cancelled on the ground that the two mutations are the result of fraud and misrepresentation. According to the petitioners, Khadim Hussain the real brother of the plaintiff and Mst. Beeban was the owner of the land. Khadim Hussain died in February, 1981 and after his death, the inheritance mutation was made in favour of the two sisters in equal shares. Khadim Hussain during his lifetime had transferred the land in question by way of Hibba in favour of the plaintiffs. It may be stated that Khadim Hussain died issueless. The suit was contested by the respondents. Various issues were framed by the trial Court. The learned trial Judge on 29‑11‑1990 dismissed the suit of the petitioners. The appeal filed by the petitioners in the District Court and the revision petition in the High Court were dismissed by the respective Courts.

3. Learned counsel for the petitioners submitted that a valid gift was made in favour of the predecessor‑in‑interest of the petitioners, therefore, that gift should have been given effect to by the Courts. The evidence on record has been properly appreciated by all the Courts. The plaintiff herself admitted in her statement that Khadim Hussain was seriously ill. He could not move and was mentally incapacitated. The tenants were in possession of the suit land. The donor had not at all delivered the possession of the land to the petitioners. The tenants had not given any produce to the petitioners. The gift was not registered at was written on a plain paper and even no stamp was affixed. The petitioners absolutely failed to prove the factum of gift in her favour. It is also pertinent to note that the plaintiff claimed the entire property of Khadim Hussain on an additional plea that Mst. Beeban her other sister had predeceased Khadim Hussian. This fact was not proved by her. On the contrary, her husband admitted that she died after the death of Khadim Hussain. The inheritance mutation was made on 7‑10‑1981. The petitioners filed the suit on 15‑6‑1989. It appears that after the death of Mst. Beeban, she tried to get the entire land of Khadim Hussain to the exclusion of Mst. Beeban.

4. We see no force in this petition. The same is dismissed and leave to appeal is refused. A.A./G‑442/S Leave refused.