2003 PLP 360 (SCMR)

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 1st July, 2002. MUHAMMAD NAWAZ ABBASI, J.‑‑‑This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred seeking leave to appeal against the judgment passed by a 'earned Single Judge of Lahore High Court, Rawalpindi Bench, in exercise f his revisional jurisdiction. The relevant facts giving rise to this petition are that the Abdul Majid Khan, collateral of the petitioner, made a gift of land measuring 109 Kanals, 19 Marlas situated in Mauza Kariman Tehsil Fateh Jang, District Attock in favour of his wife namely, Said Khanum through mutation dated 18‑11‑1940. In the; last column of the mutation, the entry made by the Patwari was to the effect that the gift was for the purpose of maintenance whereas the order on the mutation passed by the Revenue Officer at the time of its attestation was to the following effect:‑ The present petitioner, filed a suit on 10‑4‑1983 against Mst. Said Khannum and others, respondents herein, for possession of the land in question and pleaded that in the matter of inheritance, the parties were governed by the custom and Mst. Said Khannum being only entitled to the usufructs of the property was not full owner of the land and therefore, the transfer of land made by her in favour of remaining respondents through various transactions was void and ineffective to the rights of the petitioner as collateral of Abdul Majid Khan, the owner of the land. The suit was contested and it was pleaded in the written statement that gift in favour of Mst. Said Khannum was not only confined to the extent of usufructs of the property rather she was the full owner of the land, subject‑matter of the gift. The suit was dismissed by the learned trial Judge vide judgment dated 9‑3‑1988 and the appeal preferred by the present petitioner met the same fate which was dismissed by the learned Additional District Judge, Attock, vide judgment dated 11‑11‑1990. Thereafter, the petitioner invoked the revisional jurisdiction of the High Court under section 115, C.P.C. challenging the concurrent findings of fact of the two Courts. The pivotal issue relating to the character of gift as to whether it was only to the extent of usufructory rights of the suit‑land or the donee being full owner of land could further alienate the land, was decided in favour of Mst. Said Khannum. The learned Judge in the High Court having diluted upon this crucial issue dismissed the revision petition with the observation that the gift of land was unconditional and absolute and that Mst. Said Khannum being full owner could dispose of the land in any manner, she wanted. Learned counsel for the petitioner, with reference to the entry in the last column of mutation dated 18‑11‑1940, contended that the intention of the donor was only to gift the usufructs of the property for the purpose of maintenance of donee and that the corpus was not. gifted. Learned counsel submitted that all the three Courts through misreading the mutation of gift (Exh.P/4) came to a conclusion contrary to the record. The learned counsel also argued that Mst. Said Khannum having inherited the property of Abdul Majid Khan as his widow, would not be allowed to retain the land, subject matter of the gift as full owner. The perusal of mutation of gift (Exh.P/4) would show that neither the gift was conditional nor it related only to the usufructs of the property. The entry in the last column of the mutation made by the Patwari would show that donor not intended to only gift the usufruct of the property for maintenance of his wife. The order passed by the Revenue Officer on the mutation, would unambiguously show that donor made a complete gift and transferred the proprietary rights in favour of Mst. Said Khannum through gift with delivery of possession. All the three Courts have concurrently held that the gift was not only confined to the extent of usufructs but it also included corpus of the property and the donee was full owner of the property. We having heard the learned counsel for the petitioner and perused the record, do not find any misreading or non‑reading of the evidence or legal infirmity in the conclusion that Mst. Said Khannum was not limited owner but she was full owner of the land, subject‑matter of the gift. We therefore, having found no substance in this petition dismiss the same and uphold the judgment of the High Court under challenge. Leave is refused. B.A.K./Y‑13/S Leave refused.