P L D 2003 Azad J&K 25 (PLP)

It was craved that the gift deed may be cancelled and declared as null, void, ineffective and inoperative on his rights. The defendants resisted the suit. After trial, it was dismissed by the learned trial 'Judge. Feeling aggrieved from the judgment and decree of the learned trial Judge, the plaintiff filed an appeal in the Court of learned District Judge Bhimber. During the pendency of appeal, the real (plaintiff) appellant died, and the present respondents being his legal representatives were brought on record as appellants. The learned District Judge vide judgment and decree dated 27‑3‑2002, accepted the appeal and set aside the gift deed. Now, the instant appeal has been filed against the aforesaid judgment and decree of the said Court. The learned counsel for the appellants, contended that the judgment and decree of the learned District Judge is illegal and liable to be set aside. He submitted that onus to prove that "the gift deed was obtained by way of cheating and fraud" was on the plaintiff, while the lower Court has held that the defendants (appellants) have failed to prove its execution. It was next contended by him, that all the witnesses of the plaintiff deposed before the trial Court that the gift deed was executed by Muhammad Siddique. Its execution was proved beyond any doubt. It was next submitted by him that the possession was also delivered to the (defendants) appellants and the respondents‑plaintiffs have also craved for possession of the land. It is sufficient proof of execution of gift deed. The learned counsel submitted that the necessary requirements of the gift were fulfilled, but the lower Court has wrongly held that its execution was not proved. While controverting the arguments of the learned counsel for the appellants, the learned counsel for the respondents contended that the impugned judgment is based on sound, cogent and sagacious reasonings. It does not require any interference by this Court, he submitted that there was no justification for the gift in favour of the defendants‑appellants in the presence of wife and son of donor. He further contended that the defendants obtained Identity Card of the donor from Registration Office, Mirpur for securing fictitious execution of gift deed in their favour, while the donor was retaining the Identity Card issued form Rawalpindi. In case the donor would have intended to execute the gift deed, then he would have executed the gift deed on the basis of Identity Card of Rawalpindi. He further submitted that when the plaintiff came to know that his another Identity Card was obtained by the defendants, then he immediately moved for its cancellation, which was accordingly cancelled. It was next contended by him that the possession of the land in dispute was already with the defendants, because they were the tenants of the plaintiffs‑respondents. He never handed over the possession to the defendants on the basis of aforesaid gift deed, but when they stopped to pay the produce of the land then he came to' know about the gift deed and immediately filed the suit. I have heard the arguments, gore through the relevant record and have given my earnest thought to the respective arguments advanced by the learned counsel for the parties. It is to be noted than under the Mohammedan Law, the necessary requirements of gift are as under:‑‑ (1) a declaration of gift by the donor; (2) an express or implied acceptance of the gift by the donees; and (3) seisin, the delivery of possession of the gift property by the donor to the donee. Now, the question arises whether all these requirements were fulfilled? The contemplate perusal of the record shows that donor Muhammad Siddique had wife and son, who are the respondents in the, case in hand. Now, the question emerges whether the donor had any intention to execute the gift in favour of the present appellants, in presence of his wife and son? As the primary requirement for the gift was "a declaration of gift by the donor", therefore, the question arises, whether this requirement was fulfilled? The perusal of the record of trial Court shows that there is no evidence regarding the intention of the donor to declare the gift. The intention can be gathered from the language of the gift deed or from the other attending circumstances. This view finds supports from AIR 1929 PC 149 (151) which reads as under:‑‑ "The intention of the donor is to be ascertained by reading the terms of the deed as a whole, and giving to them the natural meaning of the language." In the instant case, the gift deed did not contain as to why the gift deed was executed in favour of defendants (appellants). Whether the donees had rendered any service to the donor or there was no other such close relative or heir of the donor? No such reasons have been assigned in the gift deed. There is also no other evidence or reason as to why this land was gifted to the donees, in presence of wife and son of donor. It, was the basic responsibility of the donees to prove that the donor had the intention to gift the property to them. It flabbergasts me that as to what were the reasons for which the donor had deprived his wife and son from the property and gifted the same to the defendants. It was also the responsibility of the donees to prove as such. Same like proposition arose before the Lore High Court in a case titled "Noor Muhammad v. Karim Bibi", wherein a woman executed a gift deed of her property in favour of her brother and deprived her husband and four children. It was held by the then eminent learned Judge (Mr. Justice B.Z. Kaikaus, for whom, I have great respect), in PLD 1959 Lahore 932 (939), which is as under:‑‑ "Here the respondent is admittedly an impecunious person. She has four children. She has given away‑the whole of the property which she inherited from her father, property which, considering her position in life, is very valuable to her. A brother with a proper sense of fairness and justice would not have accepted a gift in these circumstances at all, but, in any case, he should have asked her to consider the matter fully and to have independent advice before she took the step, for there was no good reason why she should deprive herself, her children and her husband of the benefit of this land.

11. The principle which is applicable to these cases was explained by their Lordships of the Privy Council in Daing Soharah v. Chabak Binte (AIR 1927 PC 148). It will be convenient to reproduce here the head-note:‑‑ The relief given by a Court of Equity is a secondary consequence of the principle that a person, standing in a relationship in which authority or influence may be supposed to exist, cannot hold a mere gift without making it clear that the intention to make it was not the result of his influence. The relationship itself does not necessarily preclude the making of the gift; but the burden lies on the donee to show that there was no such influence as to the source of the gift. But he can discharge the burden incumbent on him by showing that the relationship notwithstanding, the donor knew completely what he was doing, and acted of his own complete free will. With certain kinds of fiduciary relations, such as that of a solicitor taking a gift from his client, that is, obviously much more difficult to establish than in others where the duty is less definite. Courts of Equity have therefore, exercised a certain freedom in their decisions as to where and how the principle must be applied." It was for the donee to show that the donor acted and that the gift alas not result of influence used." In the instant case, it has been clearly laid down that it was the first and foremost responsibility of donees to prove that the donor had any reason to execute the gift deed. Likewise, it was also the responsibility of the donees to prove that donor had the knowledge as to what he was doing and his intention was to make the gift and it was not the result of their influence. It would also not be out of place to mention here that in the aforesaid report, the gift was executed by a sister in favour of her brother. Her husband and children were deprived. It was held by the Court that there seems no justification and reason for the gift in favour of brother in the, presence of husband and children. While in the instant case, the donees have no such close relation with the donor for which the preference could be given to them over the wife and son. In the, instant case, it was the responsibility of the donees to prove that why this land was gifted to them. What was the reason behind it? It was the basic responsibility of the donees to prove that the gift was outcome of donor free will and not of their influence. This view finds support from AIR 1927 PC 143 (150), which is as under:‑‑ "The relief given by a Court of equity is a secondary consequence of the principle that a person, standing in a relationship in which authority or influence may be supposed to exist, cannot hold a mere gift without making it clear that the intention to make it was not the result of his influence. The relationship itself does not necessarily preclude the making of the gift; but the burden lies on the donee to show that there was no such influence as to the source of the gift." In the aforesaid report, it has been laid down that it was the duty of donee to prove that the donor had the intention to execute the gift deed in his favour and it was not the result of any influence. It will be useful to mention here that in the instant case, the donee: have failed to establish that the donor had either any intention to execute the gift deed or any reason to deprive his wife and son from the property, and gift the same to the donees. Now, the next question arises whether in the instant case, the undue influence has been exercised by the donees over the donor? For determining as such, it would be necessary to elaborate as to how undue influence could be determined? The undue influence may be inferred from the benefit gained by a person who had no right to demand such gain under any law or equity or even he has no moral justification for such gain and the granter had no rational motive to grant such benefit to such person. This view finds support from PLD 1975 SC (Pakistan) 624 (664), which reads as under:‑‑ "Undue influence may be inferred when the benefit is such as the taker had no right to demand, either in law or equity, or even as a moral claim, and the granter had no rational motive to give." The question now arises whether in the instant case, the donees had any right to demand the land in dispute from the donor, either under any law or on the basis of principle of equity or either morally, they were entitled to claim the land in presence of wife and son. There seems no such justification and it was the responsibility of the donees to prove as such, but they have failed to prove the same. Although in the instant case, the trial Court has wrongly struck the issue and placed the onus of proof upon the plaintiffs to prove that the gift deed was forged and fictitious. Actually the issue should have been: "Whether the gift deed was accordingly executed in favour of donees by the donor? OPD" It is also pertinent to note that, if the case is remanded on this point, then the poor woman and son who are also facing the litigation for the last 7 years have to undergo further agony of litigation. Even otherwise, it shall not make any difference because in a civil case, the onus to prove did not remain fixed permanently, but the moment, some evidence is placed on record by one party, then it shifts on the other side, who would fail if remain unable to rebut the same. This view finds support from PLD 1980 Lahore 145 (151), which reads as under:‑‑ "The onus of an issue in a civil case is not permanently fixed but is constantly shifting, the moment some evidence is placed on record, this shifts the onus on the other side who would fail if he is unable to rebut." In the instant case, late Muhammad Sidddque, who allegedly executed the gift deed on 15‑7‑1995, filed a suit for the cancellation of the same on 22‑8‑1995, just after one month and seven days of the execution of the gift deed. This gift deed contained the Identity Card of Muhammad Siddique which was issued from Mirpur Azad Kashmir, while he was already retaining the Identity Card issued from Rawalpindi, whereas the said Identity Card was obtained by Raj Muhammad donee, who has clearly deposed in his testimony as under:‑‑ Late Muhammad Siddique (when he was alive) appeared as a witness and deposed that the defendants obtained the gift deed through fraud. His Identity Card contained the address of Rawalpindi. Now, when Muhammad Siddique has deposed that he has not executed the gift deed. His Identity Card was obtained by Raj Muhammad, which was used for execution of gift deed, in the presence of previous Identity Card of Muhammad Siddique. If Muhammad Siddique would have any intention to execute the gift deed, then he would have executed the gift deed on the basis of Identity Card containing; the address of Rawalpindi. There was no necessity for another Identity Card, but the other Identity Card was obtained by one of the donee and the gift; deed was executed in his favour on the basis of that Identity Card. After this evidence, the onus to prove that the gift deed was executed accordingly, had shitted upon donees. It is also to be noted that neither the author of the gift deed nor any of its marginal witnesses appeared before the Court and proved its execution, therefore, it could be safely said that the donees have failed to prove the execution of gift deed. The next question emerges whether the possession of the land was transferred to the donees on the basis of gift deed? The case of the respondents (plaintiffs) was the appellants (defendants) were cultivating the land on lease and paying the produce of the land to the plaintiffs (respondents). Now, the question arises whether their status of tenants was converted into the status of owners? The perusal of Exh.DA (gift deed) shows that it nowhere contained as such, while in the present situation, it would have contained "That the donees who were already retaining the possession as tenant shall now retain, the possession as owner, but it contained the general words that the possession has been handed over to the donees. While according to the donees, they were already retaining the possession. If they were already retaining the possession, then the gift deed should have contained as stated above. It is pertinent to note, that the plaintiff deposed that when the defendants declined to pay the produce of the land to him, then he came to know about the gift deed and initiated the proceedings for the cancellation of the gift deed. It clearly denotes that in reality, the possession was not transferred to the donees on the basis of said gift deed but they were retaining the possession as tenants of the donor. It is well settled principle of law that a mere recital of the gift deed that the possession has been delivered to the donees is not enough. This view finds support from 1972 SCMR

50. The donees have failed to prove the delivery of possession of the gifted property to them under the aforesaid gift deed. In the instant case, neither from the gift deed nor evidence, it could be deduced that the donor had ever any intention to gift the property to the donees or he has any reason to deprive his wife and son and delivered the possession to the donees under the gift deed. Therefore, the learned District Judge has rightly accepted the appeal and set aside the gift deed. The nub of the above discussion is that, finding no force in this appeal, it is hereby dismissed. S.A.K./50/Azad J&K Appeal dismissed.