2004 PLP 815 (MLD)

2. A short factual background of the case is that respondents filed a suit for declaration alleging that they inherited Mst. Sharfan Bibi their paternal aunt, who was real sister of their father Ata Muhammad, along petitioner. They asserted in their plaint that Mst. Inayat Bibi and Mst. Naziran Bibi (petitioner) were daughters of Mst. Sharfan Bibi, who had no male child. It was also claimed that Mst. Sharfan Bibi died‑at the age of 90/100 years and was suffering from the Tuberculosis, besides this assertion that Mst. Naziran Bibi petitioner hatched a conspiracy to deprive them from their hereditary rights, fictitiously got a gift deed attested on 20‑4‑1987, which was challenged to have not been executed by Mst. Sharfan. They also pleaded that the other daughter of Mst. Sharfan, who has died, filed a suit for declaration against the impugned gift in favour of the petitioner, which was decreed in favour of Mst. Inayat Bibi, the other daughter of the propositus. Petitioner appealed there against, but the matter was decided on the basis of some fake compromise and the respondents have also filed an application under section 12(2), C.P.C. before this Court.

3. Petitioner being one of the defendants in the suit, contested it and claimed her ownership on the basis of gift by Mst. Sharfan Bibi asserting that respondents have no right to file the suit as the property was not in the ownership of Mst. Sharfan Bibi at the time of her death. Controversial pleadings of the parties necessitated framing of issues and recording of evidence, where after learned Judge who was seized of the matter, decreed the suit of the respondents vide judgment and decree dated 25‑2‑1998.

4. Petitioner aggrieved of the decision of the trial Court, filed an appeal before the Additional District Judge, but remained unsuccessful as her appeal was dismissed vide judgment and decree dated 23‑7‑2003.

5. Petitioner, pending her appeal before he Additional District Judge, filed an application under Order XLI rule 27, C.P.C. seeking permission to produce certain documents by the additional evidence. This application was also dismissed by the Additional District Judge through a separate order dated 23‑7‑2003 on the ground that permission to produce additional evidence cannot be granted at a belated stage. Petitioner assails both the judgments and decrees of the two Courts below as well as judgment/order dated 23‑7‑2003 dismissing her application, as noted above, through instant revision petition.

6. Learned counsel for the petitioner submits that mother of the petitioner out of her freewill made a lawful gift in favour of the petitioner, whereunder the donor offered the gift and the donee accepted it. Possession of the land was handed over to the petitioner, making the gift complete and it was effected through a registered gift deed, which could not have been annulled by the Court below. He further contends that transaction of gift independent of the deed and mutation on the basis thereof was proved on the record but a contrary view taken by the two Courts below runs counter to the evidence on the file. It is also his case that Mst. Sharfan Bibi deceased was not owner of the property at the time of death, which had already been gifted to the petitioner, as such no hereditary rights, could have been claimed by the respondents. He further elaborates his argument by saying that petitioner prayed before the Appellate Court that she may be permitted to produce certified copies of the death entries of Yar Muhammad and Mst. Sharfan Bibi, father and mother, respectively of the petitioner in order to show that Yar Muhammad was alive at the time of death of Mst. Sharfan Bibi and if at all gift deed in favour of the petitioner is adjudged, then she is entitled to inherit share of Yar Muhammad as well, who 'Was shown to be dead at the time of death of her mother, by way of additional evidence, but this permission has erroneously been refused on the ground which are not recognized by law.

7. Conversely, learned counsel for the respondents supported the judgments and decrees of the two Courts below, refuted the arguments of the petitioner and asserted that the petitioner has rightly been refused permission to produce by way of additional evidence, documents, which were available to her during the trial of the suit, but were not intentionally produced. He further submits that both the Courts below have concurrently adjudged gift in favour of the petitioner and their findings cannot be disturbed in revisional jurisdiction of this Court. It is also case of the respondents that donor was an old and ailing and as such was not in a position to judge her good or bad. He termed the gift in question in favour of the petitioner to be fake and fictitious.

8. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Order dated 23‑7‑2003 passed by the Appellate Court demonstrates that entire emphasis of the Appellate Court was on the earlier round of litigation, which was initiated by Mst. Inayat Bibi, sister of the petitioner. Though litigation in the suit of Mst. Inayat Bibi was not relevant to the controversy in the suit in hand, yet it ended in a compromise between the two sisters before this Court. No doubt some petition under section 12(2), C.P.C. is claimed to have been filed by the respondents, which they asserted, is pending but for the purpose of disposal of application under Order XLI rule 27, C.P.C., no reference thereof was needed.

9. Dispute in this suit related to adjustment of gift in favour of the petitioner besides which petitioner had claimed hereditary rights. She claims that Mst. Sharfan Bibi deceased died in the life time of her husband Yar Muhammad and as such Yar Muhammad also inherited her estate and if her this assertion is proved, certainly, inspite of judgment of gift in her favour, share of inheritance of the petitioner will be increased. According to claim of the petitioner, death entries of Yar Muhammad and Mst. Sharfan Bibi, her father and mother respectively, show that Yar Muhammad died after the death of Mst. Sharfan Bibi. In this manner documents sought to be produced are directly relevant to the controversy involved in the suit and go to the root of the case. Petitioner had been contesting suit on the basis of gift by her mother, but subsequently realised her, share of inheritance from her father Yar Muhammad and consequently moved to the Appellate Court for the prayer above referred. Appellate Court simply impressed by the fact that the application has been filed at a belated stage, reused the petitioner to produce the documents under discussion and without looking into the documents remarked "even tentative assessment cannot be made that Mst. Sharfan Bibi died in the lifetime of said Yar Muhammad". Both these considerations are not only irrelevant but are also not borne out of the record. Assuming for the sake of argument, Yar Muhammad father of the petitioner died after Mst. Sharfan Bibi, it would mean that Yar Muhammad inherited his Sharai share in the estate of his wife and on death of Yar Muhammad a share will go to the petitioner, as his daughter. This share vested in the petitioner on death of Yar Muhammad can, in no manner, be given to the respondents on the basis of flimsy reasons, as advanced in the order under attack.

10. Now if a document sought to be produced by way of additional evidence is read in evidence, the fate of the proceedings could be different but I refrain from commenting on the fate of application of the petitioner under Order XLI rule 27, C.P.C. or that of her first appeal because I intend to remand this case to the First Appellate Court for its fresh decision.

11. For the reasons noted above, judgment/order dated. 23‑7‑2003 passed by the Additional District Judge, Chunian refusing permission to lead additional evidence has been based upon extraneous reasons, which are not recognized by law, as such, it suffers from material irregularity and illegality, hence the same is not sustainable. I accordingly, accept this revision petition, set aside the judgment and decree alongwith the order dated 23‑7‑2003 passed by the Appellate Court and remit back the case to it for decision of the same afresh in accordance with law. In result herewith, appeal as well as application under Order XLI rule 27, C.P.C. of the petitioner shall be deemed to be pending and will be decided in terms noted above. There will be no order as to costs.

12. Parties are directed to appear before the learned Additional District Judge, Chunian, District Kasur, on 17‑1‑2004. S.A.K./N‑3/L Case remanded.