2005 PLP 1176 (CLC)

On 19-5-1986 Mst. Ashraf Mai, the late mother of the petitioners filed a suit against the respondents who were sons of Said Khan brother of said Mst. Ashraf Mai. In the plaint, it was stated that the suit-land is owned and possessed by the said lady being in joint ownership with the respondents. She had been in receipt of the share which was stopped in Kharif, 1985 and she came to know that her late brother Said Khan got a mutation of gift No.599 attested on 23-4-1952. She stated that she had never gifted away her land to her brother and had never appeared before the Tehsildar. The respondents asserted that the petitioner had lawfully gifted away her land to their father. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 21-3-1989. A learned Additional District Judge allowed the first appeal and remanded back the case on 8-6-1994 with the direction that the learned trial Court should either refer the matter to an expert or itself compare the admitted thumb-impressions with the thumb-impressions on the mutation. Thereafter, the learned trial Court decreed the suit on 29-5-2002. A first appeal filed by the respondents was heard by a learned Additional District Judge, Multan, who allowed the same and dismissed the suit of the petitioners on 21-5-2003.

2. Learned counsel for the petitioners contends that the entire judgment of the learned Additional District Judge is rather misguided. He has proceeded on the assumption that it was for the said lady to prove the negative. According to the learned counsel, the evidence on record has also been misread by the learned Additional District Judge in the process. Learned counsel for the respondents, on the other hand, contend that the suit was hopelessly barred by time and that it had been proved on record that the said lady had gifted the land to her brother as alleged by the respondents.

3. I have gone through the copies of the records. I have already reproduced above respective pleadings of the parties. It would be seen that whereas the deceased lady had denied having made any gift to her brother, it was the case of the respondents that she had made a valid gift in favour of their father. It was, of course, for the respondents to prove the said affirmative.

4. I may note here in the very beginning that the deceased-lady appeared twice in the witness-box respectively as P.W.3 and P.W.4 to state that she had not gifted away the land to her brother. There is not even a slight reference to the said statement in the entire judgment of the learned Additional District Judge. Had he read the said statements, he would not have observed that it was for the deceased-lady to prove fraud when her case was that she had not made any gift. Be that as it may, the copy of the impugned Mutation No.599 is on record as Exh.D.6. According to this document, the three sisters, namely, Mst. Ashraf Mai, Jamal Khatoon and Sharifan Mai gave their land to their brother Said Khan and mutation was entered on 18-3-1952.The statements were got recorded through a Qanungo on 30-3-1952 and it was attested by the. Tehsildar on 23-4-1952. Now the said Qanungo has not been produced. Even the original mutation has not been produced. D.W.1 Muhammad Afzal states that Ghulam Murtaza Shah, Girdawar had recorded the statements Exh.D.1/1 and he and Lal Khan had identified the ladies who had put their thumb-impressions. In his cross-examination, he expressed ignorance in response to all the questions. He admits that he was not present when the mutation was attested or whether or not Mst. Ashraf Mai herself appeared or not. He does not know as where the mutation was attested. He does not know the children of Ashraf Mai and the other ladies. He admits that Ashraf Mai had children. He then states that the husband of Ashraf Mai appeared during the commission proceedings. He does not know as to where the gift was made. D.W.2 is Abdullah son of the said Sharifan while D.W.3 is Muhammad Qasim the attorney and the next friend of the petitioners. He also does not know anything about the alleged gift.

5. This is, thus, a case of no evidence so far as the making of the gift is concerned.

6. Learned counsel for the respondents vehemently urged that the other sisters had also made the gift and have not questioned the same. This may be so but the fact remains that Mst. Ashraf Mai did question the gift.

7. Now what is significance is that there is not even a word either in pleadings or in evidence as to why Mst. Ashraf Mai had made the gift to her brother when she had children of her own. The learned counsel for the respondents tried to argue that it will be assumed that since he was the only brother the gift has been made. I am afraid the contention is baseless. I may reproduce here the following observations of the Honourable Supreme Court of Pakistan in the case of Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 at page 1942:-- "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 he is a person of unsound mind. In the wake of frivolous gift 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 justification for a gift so that no injustice is done to the rightful owners and no course of inheritance is bypassed. "

8. So far as the question of limitation is concerned, nothing turns on the same. Admittedly, the deceased lady was co-heir and consequently, a co-sharer in the land. It is her stated case that she was being given the produce share. However, even if it be assumed that she was not given any share in the produce then an ouster is not to be assumed as she will be deemed to be in possession of every inch of the joint land. Reference be made to the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.

9. Having gone through the records, I do find that the learned Additional District Judge has acted without lawful authority while setting aside the judgment and decree passed by the learned trial Court. The civil revision is accordingly allowed and the judgment and decree dated 21-5-2003 passed by the learned Additional District Judge, Multan, is set aside while the one passed by the learned trial Court on 29-5-2002 decreeing the suit of the petitioners is restored. No orders as to costs. S.A.K./K-92/L Revision accepted