2020 PLP 32 (YLRN)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioner has challenged the legality of judgment and decree dated 27.01.2012 passed by the learned Civil Judge, Kharian whereby suit for declaration along with consequential relief filed by respondent No.1 was decreed and judgment and decree dated 04.11.2015 passed by the learned Additional District Judge, Kharian dismissing the appeal of the petitioner.

2. Brief facts of the case are that respondent No.1 Mst. Sakina Bibi (deceased)/plaintiff filed suit for declaration along with consequential relief against the petitioner and respondents Nos.2 and 3/defendants alleging therein that her father Rehmat Khan son of Muhammad Din was owner in possession of land measuring 20-Kanals 13-Marlas fully described in Para-1 of the plaint who died about 30 years ago and his inheritance mutation was not sanctioned. His legal heirs are Muhammad Boota, Muhammad Sharif, Sardar Begum, Sakina Bibi and Fatima Bibi. She stated that her nephew Shahbaz Ahmad/defendant No.1 took her to the office of Halqa Patwari and got her thumb impression on certain documents for incorporation of inheritance mutation and fraudulently got entered and sanctioned gift mutation No.4322 dated 28.02.2006 in his favour to the extent of her share as such the said transaction of gift mutation is illegal, ineffective and inoperative upon her rights, as she never appeared before any revenue official/ officer for attestation of any gift mutation in favour of Shahbaz Ahmad. Further states that gift mutation No.4333 in favour of defendant No.2 is also illegal. Petitioner and respondents Nos. 2 and 3/ defendants filed contesting written statement. From the divergent pleadings of the litigating parties the issues were framed and evidence of the respective parties recorded. The learned trial court vide judgment and decree dated 27.01.2012 decreed the suit of respondent No.1. The appeal of the petitioner was dismissed by the learned Appellate Court vide judgment and decree dated 04.11.2015. Hence, this civil revision on the ground that the respondent herself gifted out the suit property voluntarily and is precluded to resile from the transaction; that the suit is barred by limitation and the judgment and decree of the courts below are illegal, based on mis-reading and non-reading of the evidence which are not sustainable in the eyes of law.

3. Heard.

4. Admittedly,land measuring 20-Kanals 13-Marlas fully described in Para-1 of the plaint was owned by Rehmat Khan and after his death the inheritance mutation No.4322 was incorporated in the revenue record on 28.02.2006. On the same day, respondent No.2/Muhammad Shahbaz got recorded gift mutation in his favour from Sakina Bibi as well as Fatima Bibi and on the basis whereof he alienated the suit land through a gift mutation No.4333 dated 28.02.2006 to the present petitioner/defendant No.2. Sakina Bibi during litigation has died and her legal heirs were made party. Issue No.1 is pivotal issue in this case which is reproduced as under:--

1. Whether mutation of Hibba No.4332 in favour of defendant No.1 and mutation No.4333 in favour of defendant No.2 dated 28.02.2006 are illegal, ineffective and inoperative upon the rights of the plaintiff and are liable to be set-aside? OPP The initial onus to prove the above issue was placed at the shoulder of the plaintiff. In order to displace the burden Riaz Bibi wife of Khalid Hussain being attorney of Khalid Hussain appeared as PW-1 and she produced special attorney as Exh.P-l. She categorically stated that Shahbaz is nephew of Mst. Sakina Bibi and he got thumb impression of Sakina Bibi fraudulently and illegally incorporated gift mutation in the revenue record. In cross-examination, she admitted it correct that Sakina Bibi and Fatima Bibi are sisters and after the death of their father Rehmat Khan, inheritance mutation was incorporated in the revenue record. She further clarified that she was not accompanied with Shahbaz and Sakina Bibi at the time of mutation. She denied the suggestion that Sakina Bibi and Fatima Bibi incorporated any gift mutation. Onus was shifted upon the petitioner and respondent No.2 who being beneficiaries of the transaction has to prove the ingredients of oral gift mutation. The petitioner even while appearing as DW-1 has not mentioned the date, time, place and the names of the witnesses in whose presence oral gift was made by Sakina Bibi and Fatima Bibi in favour of Muhammad Shahbaz. He in his statement admitted that the inheritance mutation was entered and sanctioned on 28.02.2006 and on the same day gift mutation was made. In cross-examination he again admitted it is correct that on the same day three mutations were entered and sanctioned. Shahbaz Ahmad was not appeared as witness. Akhlaq Ahmad appeared as DW-2 who stated that he is not witness of the gift mutation. He also admitted that Sakina Bibi was 80 years old age when she died.

5. As per paras Nos. 149 and 150 of the Muhammadan Law, three important prerequisites of valid gift have been described such as offer, acceptance and delivery of possession which are considered mandatory in nature and non-availability of any of the same would vitiate the validity of the gift transaction but in this case the above said ingredients have neither been asserted nor proved by the petitioner as per law. The Hon'ble Supreme Court of Pakistan in a judgment reported 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". The above laid down dictum has been reiterated in subsequent pronouncement of the Hon'ble Apex Court reported as Allah Ditta and others v. Manak alias Muhammad Siddique and others (2017 SCMR 402).

6. Admittedly, oral gift mutation of suit land is main controversy in this case. The co-existence and proof of three mandatory constituents of a valid gift i.e. offer by the donor, acceptance by donee and delivery of possession are sine qua non and any infirmity to prove the above constituents vitiate the transaction of the gift. Respondent alleged in the plaint that a fraud has been committed in obtaining oral gift mutations and statements of the PWs corroborate the asserted stance and substantially dissipated the onus. At the same time burden was shifted upon the petitioner and respondent No.2 being beneficiaries of the transaction to prove the validity of the gift initially by describing expediently the day, date, time, name of the witnesses and venue of the oral transaction as well as the offer made by the donor and acceptance of the offer of gift by the donee as well as delivery of possession of gifted property in their pleading and said asserted stance shall be proved through believable evidence with exact information and he was also under legal obligation to prove subsequent events of registration of gift mutations independently as prescribed under the law but in this case the beneficiary petitioner has failed to prove the ingredients of gift as the donee Shahbaz has not been produced which fatal flaw oust the substratum of his stance as settled by Hon'ble Supreme Court of Pakistan in a case reported as Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. (2008 SCMR 855) wherein it is held that where a gift mutation is challenged, the beneficiary has to fall back upon the original transaction and proof be furnished to that effect, but no such proof has been furnished with regard to the exact time, place and date of the gift and has also withheld the material witness of the gift mutation such as Lambardar, Patwari concerned, deed writer, stamp vendor as well as the Teh'sildar, as such, the petitioner failed to prove the alleged gift mutation as prescribed under the law which is fatal to his stance. Another reliance is placed on the cases reported as Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), and Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others (2018 SCMR 30). For ready reference, relevant portion is reproduced as under:-- "However, the said respondent was still required to prove a valid gift of the land by his father, grandmother, uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased, it was absolutely necessary for the respondent No.1 to have proved all the essential ingredients of the gift independent of the gift mutations, Exh.DW-7/1 to DW-7/5. He was essentially required to prove that the donees have offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him. He was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him. However, neither has the respondent No.1 divulged such details nor has he produced any person who witnessed the happening of any of the above. Although proving and verifying the authenticity of the gift mutation and its attestation, would not have been sufficient, without proving the transaction embodied therein, as noted above, however, the respondent No.1 has failed ever to prove the authenticity and veracity of the mutations and its attestation, as none who allegedly witnessed the attestation of the mutations been produced, neither the revenue officer nor the Lumbardars or the other witnesses whose names find mention in the attestation, or any of them who participated in the relevant jalsa-e-aam/assembly been produced by respondent No.1, although there could have been a possibility that with the passage of long period of time, none of the above person may have survived, or may not have been traceable, but such also has not been claimed by respondent No.1. He has also not been able to say positively as to whether the signature of the person who witnessed the gift attestations, were obtained by the revenue office in the register of mutation as required in terms of sub-section (7) of Section 42 of the West Pakistan Land Revenue Act, 1967. The respondent No.1 thus having failed to prove the essential elements of gift in his favour, and having also failed to prove the authenticity and veracity of the relevant attestation, no valid gift of the subject land can be presumed in his favour, the respondent No.1 is, therefore, liable to share the land with the appellant to the extent the appellant is entitled to inherit in accordance with Sharia, and also to pay to her the amount of mesne profit in respect of her such share in the land at the rate of Rupees eight thousands (Rs.8000-) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the date the possession of the land to the extent of her share is delivered to her after proper partition and demarcation by the revenue authorities, which entire exercise shall be concluded within two months from the date hereof. In addition to the amount of mesne profit the respondent No.1 shall also pay to the appellant the amount of markup accrued thereon at the bank rate on year to year basis and till the time the entire amount is paid". Admittedly, respondent is a Parda Nashin, illiterate, advanced age simpleton village woman and her valuable rights on the suit property were going to be transferred and in that eventuality the revenue officer concerned is placed under extraordinary responsibility to take special care and caution in such transaction and he is bound to acquire maximum satisfaction with regard to genuineness of the transaction in order to safeguard the rights of women. In furtherance of the above it was the duty of the petitioner being beneficiary to prove the sale transaction through any trustworthy, believable, unimpeachable affirmative evidence but here in this case the petitioner failed to dislodge the said mandatory burden. Even the Courts are also expected be very careful in recording findings as to execution of any transaction by an illiterate Parda Nashin lady in order to eliminate the element of fraud with women as settled by Hon'ble Supreme Court of Pakistan on the case reported as Ghulam Muhammad v. Farooq Ahmed and others (2002 SCMR 1801). Further in a reported judgment titled as Ghulam Farid and another v. Sher Rehman through L.Rs. (2016 SCMR 862) wherein it has been held as under:-- "Under the law and principle of justice when mutation is never held to be a document of title and when a negligible presumption is attached to it, provided it is proved fairly and its entry and attestation is conducted in the laid down manner, the mere incorporation of it into the "Jama Bandi" and its repetition periodically, would not confer title on the purchaser unless the transaction of sale is independently established through cogent and convincing evidence. In the case of transaction with illiterate village lady this principle assumes the status of rule of law as in that case the onus of the beneficiary of it becomes manifold. To discharge the burden of proof he has to satisfy the court of law that the entire transaction was completed in a transparent manner and all the required precautions were faithfully and honestly observed before the attestation of mutation, dispelling every suspicion that it was tainted with fraud and misrepresentation." Next as it is an unfortunate aspect of our society that the estate/assets of the women are ordinarily snatched by the male members through misrepresentation, coercion, fraud, in the sake of family race or honor under some regional custom. To frustrate such societal inclination law makes such transaction where a woman is a party more stringent and stricter enough in order to safeguard the rights of the woman whose vital interest is involved in the transaction. The following stipulation invariably and essentially are to be established by the beneficiary through evidence:- (i) that transaction was free from any influence, misrepresentation or fraud. (ii) that amount of consideration equal to the value of the property was indeed paid to the ladies; (iii) that in the case of "Pardanasheen" rustic village ladies, at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and; (iv) that at the time of transaction, the ladies had access to independent advice of their near and dear ones. Petitioner claims a transaction of gift mutation in his favour allegedly executed by an advanced age village, illiterate lady. It is mandatory requirement of law that she must have the benefit of an independent advice of a close relative having no adverse interest toward her whereas in the instant case the availability of such independent advice has neither been asserted in written statement nor proved as per law by the beneficiary/ petitioner which material deficiencies and legal infirmities are considered enough to hold the very gift transaction and mutation whereof as illegal and void. In this case, respondent is admittedly an illiterate Parda Nashin lady village woman and no person of her confidence associated her when the gift transaction was made, as such, heavy onus in the above circumstances was upon shoulder of present petitioner to prove the transaction but he failed to prove the same. The non-observing of above mandatory requirement displaced the very foundation of petitioner's case. Reliance is placed on the judgment titled as Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others (2013 SCMR 868).

7. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the cases of Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), Rashid Ahmad v. Said Ahmad (2007 SCMR 926), Asmatullah v. Amanat Ullah through L.Rs. (PLD 2008 SC 155) and Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

8. The upshot of the above discussion is that this Civil Revision is also hereby dismissed being devoid of any merits with no order as to costs. ZC/T-18/L Revision dismissed.