2017 PLP 57 (CLCN)
Mst. GULSHAN BIBI and 2 others — Petitioners Versus Haji IFTIKHAR AHMAD QURESHI and 3 others — Respondents
| Citation | 2017 PLP 57 (CLCN) |
| Forum / Court | Lahore (Rawalpindi Bench) |
| Bench Members | N/A |
| Parties | Mst. GULSHAN BIBI and 2 others — Petitioners Versus Haji IFTIKHAR AHMAD QURESHI and 3 others — Respondents |
| Primary Law | (a) Specific Relief Act (I of 1877), (c) Islamic law, (b) Qanun-e-Shahadat (10 of 1984) |
Q1: What are the key laws and sections cited in 2017 PLP 57 (CLCN)?
This judgment primarily cites: (a) Specific Relief Act (I of 1877), (c) Islamic law, (b) Qanun-e-Shahadat (10 of 1984) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2017 PLP 57 (CLCN)?
The case was heard and decided by the Lahore (Rawalpindi Bench) bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2017 PLP 57 (CLCN) (Mst. GULSHAN BIBI and 2 others — Petitioners Versus Haji IFTIKHAR AHMAD QURESHI and 3 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Malik Ali Raza for Petitioners.
- Pirzada Usman Ali Usmani for Respondent No.1.
- Raja Muhammad Aslam for Respondents Nos. 2 to 4.
Headnotes / Summary
Ss. 9, 39, 42 & 54
Suit for declaration, possession, cancellation of document and injunction
One of the plaintiffs filed suit for possession through partition and recovery of rent claiming himself to be owner-in-possession of share in suit property along with his brothers on basis of gift deed which their father had allegedly executed in their favour; defendants denied said claim contending that gift deed was result of fraud and meant to deprive them from their share, they also filed suit for declaration, cancellation of the gift deed and permanent injunction claiming that they were owners-in-possession of suit property along with other defendants being legal heirs of deceased and the gift was got registered fraudulently in collusion with revenue authorities
Trial Court, after consolidation of both the suits and recording evidence, decreed the suit of defendants and directed the plaintiffs to implead them in his suit
Plaintiffs filed appeals against judgments and decrees of the Trial Court which were accepted
Contention raised by defendants was that findings of appellate court were based on misreading and non-reading of evidence and were against the law and facts
Gift deed was challenged on basis of fraud
Defendants, having received information regarding existence of said gift, claimed ownership of suit property challenging validity of the gift
Limitation would start from date of knowledge and not from date of fraud
Fraud vitiates even the most solemn proceedings
Disputed gift deed was attempt to deprive all female members of deceased without any reason or justification
No cogent evidence existed to prove the disputed gift deed
Consolidated judgments and decrees of appellate court were not sustainable in law and was result of misreading and non-reading of evidence and suffered from legal infirmity
High Court, setting aside consolidated judgments and decrees of appellate court, upheld that of Trial Court. [Paras. 10, 11 & 12 of the judgment]
Arts. 72, 78, 79 & 84
Scope
Neither scribe nor marginal witnesses of disputed gift deed and stamp vendor were produced and examined to prove validity of alleged gift deed
Effect
Onus of proof of factum and genuineness of disputed gift deed was on the beneficiary of gift
Beneficiaries were duty bound and heavy onus lay on them to prove by convincing evidence satisfying judicial conscience of court that transaction shown to be a gift was executed by the donor in favour of the donees
Valid gift could be effected orally or through registered gift deed, but mere registration of the same was not proof of its execution if any of the parties had denied its execution
When a document was required by law to be attested, that should not have been used as evidence until two attesting witnesses had been called for proving the execution
Factum and genuineness of the gift was not proved in circumstances. [Paras. 7 & 9 of the judgment]
Gift by a Muslim would be complete, if three necessary and inseparable ingredients were proved (offer by donor; acceptance of offer by donee and delivery of possession under the gift)
Delivery of possession was an essential ingredient to constitute a valid gift and gift without possession was void ab initio. [Para. 8 of the judgment]
Judgment & Decree
Khair Din v. Mst. Salaman and others PLD 2002 SC 677 and Barkat Ali through Legal Heirs and others v. Mohammad Ismail through Legal Heirs and others 2002 SCMR 1938 rel. (b) Qanun-e-Shahadat (10 of 1984)
Arts. 72, 78, 79 & 84
Scope
Neither scribe nor marginal witnesses of disputed gift deed and stamp vendor were produced and examined to prove validity of alleged gift deed
Effect
Onus of proof of factum and genuineness of disputed gift deed was on the beneficiary of gift
Beneficiaries were duty bound and heavy onus lay on them to prove by convincing evidence satisfying judicial conscience of court that transaction shown to be a gift was executed by the donor in favour of the donees
Valid gift could be effected orally or through registered gift deed, but mere registration of the same was not proof of its execution if any of the parties had denied its execution
When a document was required by law to be attested, that should not have been used as evidence until two attesting witnesses had been called for proving the execution
Factum and genuineness of the gift was not proved in circumstances. [Paras. 7 & 9 of the judgment] Mst. Rashida Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623 and Mohammad Ashraf v. Imam Bakhsh and 6 other 2007 MLD 50 rel. (c) Islamic law
Gift by a Muslim would be complete, if three necessary and inseparable ingredients were proved (offer by donor; acceptance of offer by donee and delivery of possession under the gift)
Delivery of possession was an essential ingredient to constitute a valid gift and gift without possession was void ab initio. [Para. 8 of the judgment] Muhammad Yaqoob through Legal Heirs v. Feroza Khan and others 2003 SCMR 41 rel. Malik Ali Raza for Petitioners. Pirzada Usman Ali Usmani for Respondent No.1. Raja Muhammad Aslam for Respondents Nos. 2 to 4.