1984 PLP 272 (MLD)

Muhammad Arif for Petitioners. Mian Muhammad Akhtar for Respondents Nos.1 and

2. Nemo for Respondent No.3. Date of hearing: 24th January, 1984. The facts relevant for the purpose of disposal of this petition seeking revision of the judgment and decree of the learned Additional District Judge, Khushab, dated the 17th July, 1983, reversing in appeal the dismissal of the suit of respondents 1 and 2 for a declaration that they were owners and in possession of 4/11th share of 878 Kanals 10 Marlas of land in dispute situate in the area of village Bajar Janubi, tehsil and district Khushab, and that the decree on basis of the arbitration award passed on the 15th October, 1976, by the Civil Court of Jauharabad, was void and ineffectual and the petitioners had acquired no rights in the land thereunder with the consequential relief of issuance of perpetual injunction restraining the petitioners from interfering with their possession recorded by the learned Civil Judge, Jauharabad, on the 19th January, 1983, and instead decreeing the suit are these. The late Muhammad Ramzan, who was initially impleaded as defendant 6 in the suit, was the owner of 878 Kanals 10 Marlas of the land in question. Petitioners 1 to 3 are sons and petitioner 4 is his daughter from Mst. Aziz Khatun, petitioner

5. Respondents 1 and 2 are his sons from his first wife, Mst. Ghulam Aisha, who had earlier sued him for recovery of maintenance allowance and whom he had divorced. Petitioners 1 to 4 and respondents 1 and 2 were all minors when Muhammad Ramzan deceased is said to have gifted away his entire 878 Kanals 10 Marlas of land in suit to the petitioners. It seems that in order to avoid the botheration and expenses of registration of gift deed the petitioners on the one hand, the minors petitioners 1 to 4 acting though their mother, petitioner 5, and Muhammad Ramzan agreed in writing on the 23rd September, 1976, to refer the dispute touching the gift to the arbitration of Shaukat Ali, respondent 3, who gave his award the same day upholding the gift. That very day the petitioners moved application under section 14 of the Arbitration Act, 1940, before the Civil Court, Jauharabad, for getting the arbitration award made rule of the Court. Muhammad Ramzan and Shaukat Ali (respondent 3), who were impleaded as respondents in that application, were issued notices by the Court for appearance for the 15th October, 1976, on which date they filed confessional written reply to the application whereupon the learned Court passed decree in terms of the award. On the basis of the decree mutation of gift (No. 564, copy Exh. D1) was entered on the 3rd December, 1976, and sanctioned on the 18th January, 1977.

2. On the 14th February, 1979, respondents 1 and 2 through their mother as next friend instituted suit to Impugn the validity of the decree maintaining that in pursuant thereto no right in the land in suit had passed to the petitioners. They claimed ownership and possession over the land and prayed for permanently injuncting the petitioners from interfering with their possession or asserting their right over the property in dispute. Describing the land to be ancestral they disputed the power of Muhammad Ramzan to alienate it to the petitioners by depriving them (respondents 1 and 2) thereof. Further they pleaded that under the agricultural custom the land could not be gifted by depriving them to succeed thereto. They alleged that according to law the transaction of gift was not complete and that reference of dispute to arbitrator by the minors petitioners 1 to 4 could not have been made and consequently the arbitration award was not valid.

3. In the first instance Muhammad Ramzan, who acted as guardian of minors petitioners 1 to 4, alongwith the petitioners filed joint written statement and contested the suit. They denied that the land was ancestral or that he Muhammad Ramzan had no power to effect the gift in dispute which according to them was complete and valid. They endorsed the decree passed in consequence of the arbitration award and questioned the locus standi of respondents 1 and 2 to challenge the gift.

4. Subsequently on the 29th July, 1979, Muhammad Ramzan made statement before the learned trial Court that the land in dispute was ancestral qua respondents 1 and 2, that by depriving respondents 1 and 2 to inherit it he had gifted it away to the petitioners though being an Awan having male issues he could not alienate it by depriving respondents 1 and 2 of their right of inheritance. He added that he had effected the gift under the influence of petitioners 1 to 5 which was actually wrong. He further stated that it was for the welfare of petitioners 1 to 4 that after the cancellation of gift the land should be transferred to his name because otherwise the ancestral land would be lost in litigation between brothers and sisters. He made request that the decree in dispute should be set aside. Later on he expired.

5. The learned trial Civil Judge formed the view that respondents 1 arid 2 had not produced sufficient evidence to establish the ancestral character of the land or that the parties were governed by custom and further that they had not produced any satisfactory evidence to show that the gift in question was invalid, Therefore, he dismissed the suit.

6. In appeal the learned Additional District Judge noticed that Muhammad Ramzan inherited the land in question from his father, Noor Muhammad, who died on the 26th November, 1952, according to Shariat Law and not under custom. As such powers of Muhammad Ramzan to effect the gift were not to be regulated by custom. He formulated the view that for want of evidence regarding acceptance of gift and delivery of possession the alienation could hardly be treated as a complete gift and, therefore, Muhammad Ramzan could revoke it. He took the gift to have been revoked by his above referred to statement of the 29th July, 1979. From the absence of any proceedings held by the arbitrator and the admission of petitioner 1 in the witness-box that there had been no dispute between the petitioners and Muhammad Ramzan he concluded that the gift, award and decree of the Court were the result of collusion between the petitioners and Muhammad Ramzan to deprive respondents 1 and 2 of their right of inheritance. Therefore, he could not uphold the validity of the impugned gift and consequently setting aside the decision of the learned Civil Judge decreed the suit of respondents 1 and

2. Feeling aggrieved the petitioners have invoked the revisional jurisdiction of this Court.

7. It may not be possible to share the view of the learned Additional District Judge that the gift was not valid for want of its acceptance by and delivery of possession to the donees. Petitioners 1 to 4 were minor sons and petitioner 5 was the wife of the donor living with him when he is said to have orally made the gift. They asserted the acceptance of gift. Allah Ditta, D.W. 1, and Dost Muhammad, D.W. 2, were produced by the petitioners to say that they were tenants of the land in suit and that they had been asked by Muhammad Ramzan to attorn to the donees. Dost Muhammad is recorded as tenant of a portion of the land in the copy of Khasra Girdawari, Exh. D

8. Moreover, mutation (No. 564, copy Exh. D.1) was sanctioned in respect of the gift in question. In these circumstances the acceptance of gift by the donees and delivery of possession to them would be taken to be in order. The gift could not be invalidated on this score. Therefore, it could not have been revoked by Muhammad Ramzan himself.

8. However, the other reason given by the learned Additional District Judge to impugn the validity of the gift cannot but be endorsed. By gifting away his entire land to the petitioners to the exclusion of respondents 1 and 2, who were as good his heirs as were the petitioners, he deprived respondents 1 and 2 to inherit the land in dispute. Mat. Ghulam Aisha, P.W.2, mother of respondents 1 and 2, had dragged him to court and embarrassed him a lot when she had sued him for recovery of maintenance allowance. He divorced her and she was living with respondents 1 and 2 in a separate lodging away from him. He was putting up with the petitioners. Naturally he had love and affection for the petitioners and nothing but hatred against the mother of respondents 1 and 2 and Consequently little liking for respondents 1 and

2. In these circumstances obviously the object of his making the gift of the land in dispute to the petitioners was to deprive respondents 1 and 2 of their right to inherit his property. Under Islamic law he could not have made the gift in dispute when his motive was to disinherit respondents 1 and

2. The gift has, therefore, rightly been struck down.

9. According to Shariat Law of inheritance respondents 1 and 2 were entitled to inherit 7/22nd share of the land left by Muhammad Ramzan but they claimed and were given by the learned appellate Court below 4/11th share of the land in dispute as heirs of Muhammad Ramzan. It means that they have been given 1/22nd share in excess. The learned counsel for respondents 1 and 2 conceded that respondents 1 and 2 could get no more than 7/22nd share. Accordingly the petition is partially accepted and the decree of the learned appellate Court below is modified to the extent that respondents 1 and 2 are owners and in possession of 7/22nd share instead of 4/11th share of 878 Kanals 10 Marlas of land in suit. The parties are left to bear their own costs. M.Y.H. Order accordingly.