2023 PLP 1171 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioner has challenged the validity of judgment and decree dated 23.02.2015 passed by the learned Civil Judge, Mandi Bahauddin who dismissed the suit for declaration filed by the petitioner and judgment and decree dated 16.03.2017 passed by the learned Additional District Judge, Mandi Bahauddin who dismissed the appeal of the petitioner.

2. Brief facts of the case are that Mst. Rasoolan Bibi, petitioner / plaintiff filed a suit for declaration against the respondents/defendants alleging therein that her father Khushi Muhammad was owner in possession of suit land measuring 227-Kanals 07-Marlas fully described in Para No.2 of the plaint. He died as Sunni Muslim on 06.07.1978 at the age of about

82. The plaintiff being daughter of deceased is entitled to inherit from his estate to the extent of 1/7th share as per Sharia. That gift mutation No.1943 dated 21.03.1972 was got attested fraudulently by the defendants in connivance of revenue official. That her father Khushi Muhammad (deceased) who was above 82 years age at the time of attestation of impugned mutation was illiterate and infirm mind person. That respondents /defendants Nos.4 and 5 used to give share produce to the petitioner/ plaintiff but six months prior to institution of the suit they refused to give produce share. That she consulted the revenue record wherefrom it came to her knowledge regarding attestation of the impugned mutation then she filed suit within time. Respondents/defendants Nos.4 and 5 filed contesting written statement with the assertion that their father from his own free will gifted the property and got sanctioned gift mutation in their names. That the plaintiff has no locus standi to challenge the gift. That the suit is time barred. Respondents/defendants Nos.6 to 8 filed contesting written statement. Out of divergent pleadings of the parties, the learned trial court framed issues, recorded pro and contra evidence of both the parties and vide judgment and decree dated 23.02.2015 dismissed the suit for declaration filed by the petitioner. Appeal of the petitioner was also dismissed by the learned appellate court vide judgment and decree dated 16.03.2017. Hence, this civil revision.

3. I have heard the arguments advanced by the learned counsel for the parties at full length and gone through the record with their able assistance.

4. The pivotal issues in this case are issues Nos.1 and 2 which are reproduced as under:- "

1. Whether mutation of gift No.1943 dated 21.03.1972 was result of fraud and misrepresentation and liable to be cancelled?/OPP

2. Whether the mutation No.1943 dated 21.03.1972 was validly sanctioned? OPD" To prove these issues, plaintiff/Rasoolan Bibi appeared as PW1 and in her statement she has stated that her father name is Khushi Muhammad who was owner of the suit land. That Ali Ahmad and Muhammad Azam are her brothers. She has not received any share from her father's property, as such fraud has been committed with her. The gift mutation was fraudulently got entered by one Muhammad Hayat, her paternal uncle on the basis of his interest to marry his daughter with Ali Ahmad. Her father aged about 80 years was illiterate and unsound mind person and his land was being cultivated by tenants. Her father never appeared before any Tehsildar or Halqa Patwari for sanctioning of gift mutation nor he imposed his thumb impression on the official document. Defendants used to give rice and clothes etc. in lieu of her share. For the last two years they did not give share of rice and clothes to her. Their father neither informed regarding depriving of his daughters from their inheritance share nor he disclosed about making of gift of property to his sons. Muhammad Hayat is her paternal uncle . In their family share was given to the daughters. That Tehsildar or Patwari never disclosed any information in the village that the property has been gifted to the defendants nor any relative ever discussed in respect of gift. In cross examination, she stated that On the converse, Muhammad Azam /defendant No.5 appeared as DWI who stated that plaintiff/Rasoolan is his sister and his father name was Khushi Muhammad who had four daughters namely Rasoolan Bibi, Salehan, Amina and Taleyan Bibi and two sons Ali Ahmad and Muhammad Azam. When mutation was entered his age was three years and Ali Ahmad was aged about 9/10 years. After attestation of mutation his father remained alive for about 5/6 years. The mutation was challenged only by the plaintiff whereas her other sisters have not challenged the same. In cross examination, he deposed that his father transferred total land through gift in his as well as in the name of his brother. Further deposed as under:- Amina Bibi/defendant No.6 appeared as DW2 and in cross-examination, she deposed that:-

5. Admittedly, Khushi Muhammad deceased contracted three marriages, on with Mst. Fatima Bibi, second with Mst. Jallan Bibi and third with Mst. Hakim Bibi. The detail of his` wives as well as his progeny respectively is mentioned in the pedigree table which is as under:-- As per pedigree table, petitioner Mst. Rasoolan Bibi is daughter of Mst. Fatima Bibi whereas Mst. Jallan Bibi had one son Salehon deceased and two daughters namely Salehan Bibi and Taleyan Bibi. The deceased Salehon had two daughters namely Nasreen Bibi and Bilqees Bibi and one son Muhammad Nawaz. Mst. Hakim Bibi has one daughter Amina Bibi and two sons namely Muhammad Azam and Ali Ahmad.

6. Petitioner categorically stated that fraud has been committed by Muhammad Hayat only under the design to get solemnize marriage of her daughter with Ali Ahmad son of Khushi Muhammad and this fact is admitted by DW1 in his cross examination. Petitioner/plaintiff stated that fraud was committed by Muhammad Hayat only to deprive other heirs of the deceased Khushi Muhammad. Thus, onus was shifted upon the beneficiary/ respondents/ defendants to prove validity of oral gift as well as the gift mutation by describing exact information of date, time place and venue of the said transaction in their pleading (written statement) and same should have been proved by leading the affirmative evidence accordingly. Perusal of the written statement shows that the respondents / defendants neither furnished the requisite details in their defence regarding date, time, place of gift nor proved the making of any offer of gift and acceptance of the same by them or on their behalf, as such they had failed to prove the oral gift transaction of the suit land as well as the valid incorporation of the impugned oral gift mutation in the revenue record. Reliance is placed on the case titled as Muhammad Akram and another v. Altaf Ahmad (PLD 2003 SC 688), wherein the Hon'ble Supreme Court of Pakistan has held as under:- "

8. It is a settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This oft repeated principle of law is quite logical because a mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to fail in the event of the non-proof of transaction. Only the trial Court realised it." Reliance is placed on the case titled as Amjad Ikram v. Mst. Asia Kausar and 2 others (2015 SCMR 1) relevant portion whereof is reproduced as under:- "It is an equally settled principle of law that it is the duty and obligation of the beneficiary of a transaction or a document to prove the same. Reference in this behalf may be made from the judgments of this Court, reported as Akhtar Ali v. The University of the Punjab (1979 SCMR 549), Haji Muhammad Khan and others v. Islamic Republic of Pakistan and 2 others (1992 SCMR 2439) and Khan Muhammad v. Muhammad Din through LRs (2010 SCMR 1351). Thus, the contention of the learned counsel regarding non-framing of specific issue qua fraud looses all significance, as no prejudice appears to have been caused to the appellant. Even otherwise, during the course of proceedings before the learned trial Court, neither any effort was ever made by the appellant to claim any further issue nor such contention was raised before the learned High Court. Thus, such contention cannot be entertained at this belated stage before this Court." Reliance is placed on Muhammad Nazir v. Khurshid Begum (2005 SCMR 941), Abdul Sattar and others v. Muhammad Ashraf and others (2008 SCMR 1318), Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others (2010 SCMR 1370) and Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225).

7. Respondents/defendants Nos.4 and 5 while filing written statement neither disclosed the ingredients of oral gift nor deposed while appearing as DW1 regarding making of any offer of the gift by the donor and acceptance of the same by the donee or by any person on their behalf as they were minors nor it is disclosed that who accepted the gift.

8. The oral gift mutation is at discord between the parties, as such it is mandatory for the beneficiary (respondents/defendants) to describe meticulous details of day, date, time, venue, presence of witnesses as well as making of gift, offer and acceptance and delivery of possession in the pleadings (written statement) whereafter such asserted fact should have been necessarily proved through corroborative, affirmative and trustworthy evidence but the respondents/ beneficiaries have not mentioned the detail declaration of oral gift in their written statement. It was the primary duty of the beneficiary i.e. respondents /defendants, to prove the above mentioned constituents with elaborated specifications but no such evidence is produced in this regard. The absence of above material information in the written statement renders the statement of the defence witnesses (DWs) beyond the scope of pleadings and same can validly be excluded from the judicial consideration. Thus, non-proving of the asserted stance of oral gift transaction through corroborative, credible and trustworthy evidence is considered a material flaw which dismantles the very foundation of the stance of the respondents / defendants. Reliance is placed on the cases titled as Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417), Muhammad Nawaz and others v. Sakina Bibi and others (2020 SCMR 1021), Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), Syed Ahmad v. Ali Akbar and others (2021 SCMR 743) and Faqir Ali and others v. Sakina Bibi and others (PLD 2022 SC 85)

9. As per Para Nos. 149 and 150 of the Muhammadan Law three important prerequisites are described for a valid gift such as explicit offer of the gift by donor, acceptance of the gift by the donee and voluntary delivery of possession to the donee under the very oral gift transaction. The above ingredients are mandatory in nature and absence of proof of any ingredient whereof render the very gift transaction as invalid. Here, in this case the above said ingredients have neither been pleaded in the written statement nor proved by producing any witness which is considered a material flaw and non-observance of law dismantled the validity of the oral gift mutation. The Hon'ble Supreme Court of Pakistan in a judgment titled as Mst. Saadia v. Mst. Gul Bibi (2016 SCMR 662) held as under:-

14. Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of Oral gift, its non-registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift "offer", "acceptance" and "delivery of possession". Reliance can also be placed on the cases titled as Allah Ditta and others v. Manak alias Muhammad Siddique and others (2017 SCMR 402), Naveed Akram and others v. Muhammad Anwar (2019 SCMR 1095) and Muhammad Sarwar v. Mumtaz Bibi and others (2020 SCMR 276).

10. Even otherwise, neither the attesting witnesses of the oral gift mutation in question nor the Revenue Officers (Patwari and Tehsildar) who entered / sanctioned the said mutation were produced in evidence to prove the alleged oral gift mutation. Under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984, it is mandatory for the beneficiary / respondents to produce the requisite number of the witnesses of the very oral gift transaction as well as gift mutation but the respondents have failed to produce the witnesses of the oral gift mutation. The non-production of the required witnesses is blatant non-compliance of the aforesaid mandatory provisions of law which is considered fatal for the case of the respondents. Reliance is placed on the cases cited as Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241), Farzand another v. Khuda Bakhsh and others (PLD 2015 SC 187) and Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044).

11. Respondents/ defendants failed to produce the witnesses of oral gift mutation Patwari and Tehsildar who entered and sanctioned the impugned oral gift mutation nor any convincing reason has been expounded for non-producing them in evidence which amounts to withholding of the material evidence and it would he legally presumed that had the said witnesses produced in the evidence, they would have deposed against the respondents, as such presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 clearly operates against them. Reliance is placed on the cases titled as Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137) and Jehangir v. Mst. Shams Sultana and others (2022 SCMR 309).

12. As per available record the respondents /defendants tried to deprive the petitioner from her legal share in the estate of her deceased father by committing fraud and got entered the alleged gift mutation in their favour, whereas such like custom/practice of depriving of the females, from their accrued share in the legacy of her prepositious has seriously been deprecated by the Hon'ble Supreme Court of Pakistan in its landmark judgment, cited as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Relevant part of the judgment (supra) is reproduced as under:- " As is discussed in the case of Haji Nizam (approved in Mohammad Bashir's case) which was also a case of clash of Islamic principles against those of other systems-a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) 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. In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct rules. But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an ubranised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of 'rights', up to the enforcement' even in homes, through 'Social Security' Laws, with web of network of 'Inspectorates' etc. who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights of inheritance even today by her own kith and kin-sometimes by the urbanized brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone." The above said principle has been reiterated by the Hon'ble apex Court in a recent judgment cited as Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179).

13. Further, on the query put to PW-1 regarding non-payment of any share of produce, she in cross examination has categorically explained the payment of share of produce as under:- The above statement shows that respondents were giving share .of produce to the petitioner as well as other sisters. That the petitioner and respondents are step siblings and issue is regarding share in estate of their deceased father and in such like cases no limitation runs when women folk are deprived of the legal share and mere sanctioning of gift mutation does not create any right until and unless the basic transaction of the gift is proved through corroborative and trustworthy evidence. Even the Hon'ble Supreme Court of Pakistan has repeatedly held that no limitation runs against the inheritance matters. Reliance is placed on the latest judgment cited as Ghulam Qasim and others v. Mst. Razia Begum and others (PLD 2021 SC 812) wherein the Hon'ble Supreme Court of Pakistan has held as under: "

4. Immediately on the death of a person, his/her legal heirs become owner of his estate under Muslim law. In the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi it was held that: The main points of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus, it is obvious that a Muslim's estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. The above-noted principle has been continuously affirmed, including in the cases of Mst. Reshman Bibi v. Amir, Mirza Abid Baig v. Zahid Sabir and Farhan Aslam v. Mst Nuzba Shaheen.

5. Therefore, the contention that the possession of the land was with the petitioners and the suit filed in the year 2008 could not challenge the gift mutation stated to have been made in the year 1986, as it was beyond the limitation period, will not in itself make the suit time-barred. This is because the possession by an heir is considered to be constructive possession on behalf of all the heirs. In this regard reference may be made to the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi where it was held that: The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brothers. Circumstances may exist in which an inference of knowledge can be drawn, or in which the laches or negligence of the co-owners is so great that knowledge will be presumed but a case of that type would have to be exceptional. The law does not penalise a co-owner who relies on the honesty of his co-sharer, and therefore ordinarily the mere fact that he does not take the trouble to assert his rights as he may be entitled to, would not justify an inference of ouster. The above-mentioned two-member Bench decision of this Court was also followed by a three-member Bench decision in the case of Khair Din v. Salaman. Therefore, the cause of action would only accrue when the respondent was denied her rights, and it would be from such date that the time would start to run, the burden to establish this lay on the petitioners which they had also failed to establish. However, as observed in Mst Grana v. Sahib Kamala Bibi, the law of limitation would be relevant when the conduct of the claimant demonstrates acquiescence and particularly when third party interest is created in the inherited property. Another reliance is placed on the case titled as Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others (2017 SCMR 1476), wherein the Hon'ble Supreme Court of Pakistan held as under:- "11. ....Similarly, in the cases of claiming right of inheritance, it is well settled that the claimant becomes co-owner/co-sharer of the property left by the predecessor along with others the moment the predecessor dies and entry of mutations of inheritance is only meant for updating the revenue record and for fiscal purposes. If a person feels himself aggrieved of such entries, he can file a suit for declaration within six years of such wrong entries or knowledge. Any such repetition of the said entries in the revenue record would again give him a fresh cause of action or when the rights of anyone in the property are denied it would also give fresh cause of action. Similarly, it is again settled by now that no limitation would run against the co-sharer. We for instance can quote few judgments covering all these aspects like Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Riaz Ahmad and 2 others v. Additional District Judge and 2 others (1999 SCMR 1328), Mst. Suban v. Allah Ditta and others (2007 SCMR 635), Muhammad Anwar and 2 others v. Khuda Yar and 25 others (2008 SCMR 905) and Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869). (emphasis supplied) Reliance is also placed on judgments titled as Shabla others v. Ms. Jahan Afroz Khilat and others (2020 SCMR 352) and Faiz Ullah and others v. Dilawar Hussain and others (2022 SCMR 1647). As such findings of the lower foras on issues Nos.1 and 2 are patently illegal and same are not sustainable.

14. Furthermore, it transpires from the record that Jamabandi of the year 2008 (Ex.D-1), copy of khasra gurdawari (Ex.D-2), copy of application (Ex.D-3 and D-4) as well as impugned Mutation No.1943 (Ex.D-5) were produced in the statement of learned counsel for the respondents, as such the same is considered as an invalid mode of tendering of document in evidence, which is inadmissible in evidence. It is settled law that the documents relied upon or on the basis of which the case has been filed should be produced in the evidence by party itself giving a fair opportunity to the other party to cross-examine the same as such the documents produced by the respondents' counsel cannot he relied upon as valid evidence and such document could not be taken into consideration. Reliance is placed on the case title Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715). Similar view has been reiterated by the Hon'ble Supreme Court of Pakistan in its latest judgment cited as Rustam and others v. Jehangir (deceased) through LRs. (2023 SCMR 730) wherein it is held as under:- "

7. As regards the other two documents i.e. mutation No.1836 (Exh.D-9) and mutation No.1837 (Exh.D-8), it is suffice to say that according to principle settled by this Court in the cases reported as Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996) Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604), Province of the Punjab through Collector Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross-examine the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration."

15. As the decisions of the learned lower fora on issues Nos.1 and 2 suffer from blatant misreading and non-reading of the evidence as well as mis-application of law, as such the findings of both the learned Courts below on issues Nos.1 and 2 being against the record, are hereby reversed and the same are decided in favour of the petitioner/plaintiff and against the respondents/defendants. This Court is well within jurisdiction to reverse such illegal and perverse concurrent findings of the learned lower fora in its revisional jurisdiction under section 115, C.P.C. Reliance is placed on the cases titled as Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24).

16. In nutshell, this civil revision is allowed. Judgment and decree dated 23.02.2015 passed by the learned Civil Judge, Mandi Bahauddin and judgment and decree dated 16.03.2017 passed by the learned Additional District Judge, Mandi Bahauddin are hereby set aside and suit for declaration filed by the petitioner is decreed. No order as to cost. MWA/R-8/L Revision Petitions allowed.