Gift mutation

2025 PLD 152 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 172 (2)(ii),, 172 (2) (vi) & 172(2)(xvi)Gift-mutationChallenging gift-mutation on ground other than fraudJurisdictionWhether revenue authorities/courts or civil court had jurisdiction

Settlement Officer set-aside gift-mutation accepting application of the donor (father who contracted two marriages) filed by him in his life ('the gift mutation-in-question') which findings were maintained upto the Board of Revenue

Donees/sons (petitioners) challenged said orders

Held: In the present matter, the contents of gift-in-question remained un-disputed

The revenue authority, under clauses (ii), (vi) and (xvi) of S. 172(2) of the Act 1967 was authorized to exercise its powers, which included compelling the discharge of any duties imposed by the Act 1967, or any other enactment for the time being in force, correcting entries in the record of rights, or addressing any claims to set aside, on grounds other than "fraud"

No illegality had been noticed in the impugned gift-mutation cancelling orders passed by revenue authorities

Constitutional petition was dismissed, in circumstances.

2025 MLD 87 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.18 & First Sched, Art.120Specific Relief Act (I of 1877), S.42Gift mutationSuit for declaration challenging gift mutation on the ground of fraudLimitation period, commencement ofScope

Section 42 of the Specific Relief Act, 1877, (Act) ordains that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled

Right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right

In the present case limitation started running from the date of knowledge of the donor and not the petitioners

Petitioners nowhere in their plaint asserted that their father or the grandfather (donor), who both remained alive for a considerable time after the sanctioning of gift mutation, were not aware of the same, thus, could not challenge it during their lifetime

After the incorporation of suit land in his name in furtherance of gift mutation the donee transferred part of the suit land in favour of the respondents through two mutations in the year 1981, thus, petitioners were well aware of the gift mutation right from its inception but they brought their suit in 2003, which was clearly barred by time

Civil revision was dismissed, in circumstances.

2023 CLC 433 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss.42, 39 & 54Suit for declaration, cancellation and permanent injunctionGift mutationNon-production of witnessesScope

Plaintiff filed suit for declaration, cancellation of mutations and permanent injunction before the trial court contending therein that she being daughter of the alleged donor was entitled for her share in the inheritance, but the defendants through fraud and by producing fake witness of gift had got transferred the properties in their names and had also sold out the same to different persons by ignoring and depriving plaintiff and female defendants/sisters of plaintiff of their shares

Contesting defendants filed joint written statement stating therein that the mutation of exchange and hiba entered into by the defendants was according to law

Trial Court decreed the suit, while the appeal was dismissed

Validity

Defendants had admitted that the gift mutation was without mentioning any date, month and names of witnesses

Nothing was available to record to prove that the donor had appeared before the revenue authority and confirmed the factum of oral gift

Signature of the donor was different in the transfers/mutations

Even the CNIC (Computerized National Identity Card) number of donor was not mentioned in the gift transfer

Defendants had not bothered to produce any witness of the gift acceptance and possession

Courts below had recorded concurrent findings of facts, which could not be interfered

Revision petition was dismissed, in circumstances.

2023 MLD 665 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 42 & 54Civil Procedure Code (V of 1908), S. 115Suit for declaration and injunctionGift mutationMinor donorVoid instrumentConcurrent findings of two Courts belowRespondent/ plaintiff assailed mutation of gift in favour of predecessor-in-interest of petitioners/defendantsTrial Court and Lower Appellate Court decreed the suit and appeal respectively in favour of respondent/plaintiffValidity

Respondent/plaintiff was minor at the time of attestation of gift mutation, which was sanctioned on the basis of statement of a lady who was neither her guardian nor was authorized to enter into such transaction on behalf of respondent/plaintiff

Such gift mutation was a void instrument

Serious challenge existed to validity of gift mutation, so petitioners/defendants as beneficiaries of the same were obliged to prove its genuineness by first pleading necessary details of gift transaction followed by unimpeachable evidence

Petitioners/ defendants failed to discharge their onus of proof

Petitioners/ defendants failed to point out any misreading and non-reading of evidence

Revisional jurisdiction was not meant to unearth another possible view from the evidence, contra to the findings rendered by two Courts of competent jurisdiction

Revisional jurisdiction was to be exercised, while keeping in view principles enshrined in S. 115, C.P.C.

High Court declined to interfere with concurrent findings as there was no illegality or material irregularity crept up on the record nor was pointed out by petitioners/defendants

Revision was dismissed, in circumstances.

2023 CLC 1171 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.42Gift mutationScope

Mere sanctioning of gift mutation does not create any right until and unless the basic transaction of the gift is proved through corroborative and trustworthy evidence.

2022 SCMR 1009 SUPREME-COURT Judicial Precedent

S. 18 & First Sched., Art. 120Specific Relief Act (I of 1877), S. 42Gift mutationSuit for declaration challenging a gift mutation on grounds of fraudLimitation period, commencement ofScopeDate of knowledge of donor and not of his legal heir as the starting point for computing period of limitation

In the present case, bar of limitation applied to the challenge made by the respondent to the gift mutation of 1977 after a period of 32 years

Respondent was claiming his right over the suit property based on his inheritance from the estate of his father, and challenged the gift mutation, essentially on the ground that the same was the result of fraud, and asserted that he gained knowledge thereof some days before the institution of the suit

However, neither in the plaint nor in the evidence, did the respondent assert that his father, the purported donor, who remained alive for about 23 years after sanction of the gift mutation, was not aware of the gift mutation and thus could not challenge the same during his lifetime

Such omission on the part of the respondent, was crucial and in fact, defeated the very legal basis upon which he could have saved his claim from the bar of limitation

In the present case, the "person injuriously affected" by the alleged fraud (if it were committed) in getting the gift mutation sanctioned was the respondent's father(the purported donor)

Respondent derived his right to institute the suit to challenge the gift mutation from his father, being his legal heir, therefore, it was the date of the knowledge of his father, not of the respondent that was the starting point for computing the limitation period of six years provided in Article 120 of the Schedule to the Limitation Act, 1908 - the residuary Article applicable to suits instituted, under section 42 of the Specific Relief Act 1877 for declaration of any right as to any property

Furthermore the respondent (plaintiff) did not assert in the plaint that the appellants (defendants), by means of fraud, kept, his father (the person injuriously affected) from the knowledge of his right to institute the suit to challenge the gift mutation, during his life, nor did he give the particulars thereof

Respondent (plaintiff) did not assert any such fraud of the appellants even against himself, and give any date of his attaining knowledge of such fraud and his right to institute the suit

Therefore, the benefit of section 18 of the Limitation Act, 1908 for computing the limitation period for instituting the suit to challenge the gift mutation could not be extended to the respondent (plaintiff)

Appeal was partially allowed.

2022 YLR 1531 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 42Suit for declarationGift mutationScopePlaintiffs assailed alleged transfer of suit property in favour of the respondents' predecessor by their father

Property in question was transferred on the basis of contents of gift shown in Nikahnama executed in 1954, however, same got materialized (mutation) in the year 1982

Burden was upon the beneficiaries not only to prove the claimed gift but also validity thereof

Undeniably the ownership of suit property was with father of the plaintiffs, who was brother of the husband of claimed donee

No exception to position that Nikahnama was a document between bride and bridegroom

Mere referral to the signature of a person in capacity of a witness did not bind him to any term agreed or mentioned in the Nikahnama

Authorities before relying on such a document for transferring title were required to have served notice upon such person

Such illegal order passed by the authorities did not come in way of the plaintiffs particularly when the donor himself had never appeared before the authorities for confirming the claimed gift

Revision application was allowed and the suit was decreed, in circumstances.

2021 SCMR 179 SUPREME-COURT Judicial Precedent

Gift mutationProofPurported gift mutations depriving widows and daughters from their share of inheritanceRevenue authorities, duty of

Revenue authorities must be extra vigilant when purported gifts were made to deprive daughters and widows from what would have constituted their shares in the inheritance of an estate

Concerned officers must fully satisfy themselves as to the identity of the purported donor/transferee and strict compliance must be ensured with the applicable laws

Purported gifts and other tools used to deprive female family members, including daughters and widows, were contrary to law (shariah in such cases), the Constitution and public policy.

2021 SCMR 179 SUPREME-COURT Judicial Precedent

Gift mutationProofWife and daughter of deceased deprived of inheritance through fictitious gift mutation

Purported donees (petitioners) of the gift, who were nephews of the deceased-purported donor failed to establish the gift of land in their favour

Beneficiaries of a gift had to establish the same

Two of the purported donees were stated to be minors, however, the third was an adult but he did not come forward to testify that the gift was made in his favor, that he accepted it and received possession of the land

Instead, his father testified but did not provide particulars of the gift, including when and where the gift was made; he also did not testify as an attorney

Furthermore there was no reason for a father and a husband to disregard his own flesh and blood and wife and gift away all his land to his nephews

In the present case the respondents (widow and daughter of deceased) were deprived because of the acquisitive greed of the purported donees who were facilitated and enabled by the revenue authorities in recording the making of a fictitious gift mutation

Violating the law of inheritance, which in the case of Muslims was the shariah, and exploiting the most vulnerable members of society was wholly unacceptable

Petition for leave to appeal was dismissed with costs throughout payable to the respondents (widow and daughter of deceased) by the petitioners-purported donees through the Trial/ Executing Court.

2021 SCMR 73 SUPREME-COURT Judicial Precedent

Ss. 42(1), 42(6) & 42(7)GiftGift mutationProof

Section 42(1) of the Punjab Land Revenue Act, 1967 ('the Act') required the person in whose favour the land had been transferred/alienated to report the same to the revenue authorities, which in the present case would have been the donees of the gifts but they did not do so

Furthermore subsections (6) & (7) of S. 42 of the Act required that before passing an order sanctioning change in the register of mutations in respect of any right which had been acquired, the person from whom it was acquired should be identified by 'two respectable persons, preferably the Lambardar or members of Zila Council, Tehsil Council or Town Council or Union Council' but the two said witnesses in the present case were not such persons

Sufficient material was on record to suggest that the petitioners had acted dishonestly and gift mutations were illegally made in their favour

Petition for leave to appeal was dismissed and leave was refused with costs throughout imposed upon the petitioners.

2020 SCMR 1021 SUPREME-COURT Judicial Precedent

Oral giftGift mutationFraudBrothers depriving sisters of their share in inheritance

Sons being beneficiaries of the gift mutation were required by law to prove not only the validity of the mutation but more importantly the oral gift which was the basic transaction which was purportedly implemented through the gift mutation in question

In their written statement and the evidence produced before the Trial Court, the defendants (sons) did not mention the date, time, place or names of the witnesses in whose presence the oral gift was made

Defendants were able to produce only one witness, who claimed to be present when the oral gift was allegedly made

Even said witness was not able to disclose the date, time or venue of the oral gift

Said witness in his cross-examination, admitted that at the time of alleged gift mutation the donor was about 80 years old, and that at the time of attestation of the gift mutation no Patidar was present

Three Courts below had concurrently held that the defendants had failed to prove the oral gift

Further even the validity of the mutation could not be proved on account of failure on the part of the defendants to produce the concerned Tehsildar and other revenue functionaries, who were the most material witnesses

Another defence witness categorically admitted in his evidence that the donor continued to own the property till his death.

2020 SCMR 867 SUPREME-COURT Judicial Precedent

Gift mutationPlea of gift mutations being bogus and a result of fraudContradictory pleas

Evidence of the plaintiff did not suggest that the mutations were bogus, as admittedly the same were available in the record of the Revenue department

Concerned roznamchas as well as the copies of mutations were brought on the record by the plaintiff himself from the proper custody (of revenue officials) through the statement of the concerned witnesses

Asserting that a mutation was fraudulent as well as bogus was a self-contradictory plea, in circumstances

If the mutations were bogus, then there should be no record available in the Revenue Records of these mutations

In the present case, impugned mutations duly attested by the Revenue Officer at the relevant time in due course of law were available in the Revenue Records

Regarding the alternative plea that the mutations were fraudulent, a fraud must be committed with respect to the transfer of property by getting the mutations attested

In the present case, there was no evidence on the record that any fraud was committed with the donor for getting the impugned mutations attested

Appeal was allowed and suit filed by plaintiff/appellant challenging gift mutations was dismissed.

2020 SCMR 214 SUPREME-COURT Judicial Precedent

Gift mutationProofDonee a minorPlea of fraud and connivance with revenue officialsEvidence on record showed that donee was about six years of age at the time of attestation of impugned mutationQuestion was as to what fraud could be expected from the said donee/child with the connivance of the revenue officials

Nothing on record was available to suggest as to why the revenue officials (i.e. the Lambardar and the Pattaydar, etc.) as well as the witnesses of impugned mutation were party to the fraud, who identified the donor at the time of attestation of mutation

Present case was of an exceptional nature, since the donee was not required to independently prove the offer, acceptance and delivery of possession when he was admittedly a minor at the time of attestation of mutation in his favour by his father/donor

Donee and his legal heirs (i.e. the defendants) fully proved the valid attestation of mutation by producing voluminous oral evidence, including the record keeper and the revenue officials, who entered the mutation and attested the mutation

Attesting witnesses of the mutation and the patwari, who entered the mutation, also appeared (as witnesses)

Gift mutation was held to be valid

Appeal was allowed.

2020 YLR 408 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 44, 45 & 53Gift mutationProof ofProcedureLimitationGift on behalf of Pardanasheen lady in favour of uncleFraudEffect

Petitioner filed appeal before Assistant Commissioner against gift entry of mutation which was dismissed being time barred but Additional Deputy Commissioner accepted the same

Contention of respondent was that second appeal before Additional Deputy Commissioner was not competent

Validity

No statement of declaration of donor and/or acceptance of done on the basis of which impugned entry of gift was made was available in the revenue record

Impugned entry of gift was not only fraudulent, bogus, baseless but also of no value and effect, whatsoever

Mutation did not confer any title and same should be proved and established through evidence

Respondent was bound to prove the existence of original transaction on the basis of which impugned entry of gift was made in the record of rights

Respondent had failed to prove the alleged original transaction of impugned gift

Fraud could not be proved directly rather it was to be inferred from the surrounding circumstances and conduct of the parties

Entry made in the revenue record by means of fraud had no foundation and was void ab initio with no legal effect

Any sale/superstructure raised on the basis of fraudulent entry in the revenue record without possessing any valid title was bound to fall

When fraud had been done with an old and Pardanasheen lady, question of limitation would not arise

No oral or documentary proof was available to prove existence of gift in favour of respondent

Respondent had attempted to deprive an old, illiterate and Pardanasheen lady from her land in question

Disputed question of fact could not be looked into/decided by the Revenue Court in the summary proceedings

Factual controversies could only be resolved by a civil Court

Constitutional petition was dismissed, in circumstances.

2019 YLR 1337 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Limitation Act (IX of 1908), Art. 120Suit for declarationLimitationGift mutationProof ofContention of plaintiff was that impugned gift mutation was got attested fraudulentlySuit was dismissed concurrentlyValidityDonor in his lifetime had gifted entire property to his legal heirsDefendants had produced Patwari Halqa who entered impugned mutation as well as Revenue Officer who attested the samePlaintiff had challenged the impugned mutation after sixteen yearsImpugned mutation was within the knowledge of plaintiff from the very first day of its attestationLimitation for such like case would be governed by Art. 120 of Limitation Act, 1908

Plaintiff was required to file the present suit within the period of six years from the date of attestation of mutation in question

Present suit was barred by time, in circumstances

Impugned judgments and decrees passed by the Courts below were based on proper appreciation of evidence and material available on record

Revision was dismissed, in circumstances.

2018 CLCN 25 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

IngredientsGift mutationProof ofProcedureFamily settlementScopeContention of plaintiffs was that transaction of gift was forged and fictitiousSuit was dismissed concurrentlyValidityOnus to prove valid gift was on the defendants being beneficiaries of disputed mutationAttestation of gift mutation was a subsequent step to the gift transactionPrior to attestation of gift mutation there was transaction of gift which was required to be established

Ingredients of gift i.e. offer, acceptance and delivery of possession were required to be proved by beneficiary if gift made in his favour was challenged

Written statement and evidence of defendants were silent as to how, when and in presence of whom suit property was gifted by the donor in their favour

Nothing was on record as to when and in whose presence offer was made, when it was accepted and when possession was handed over to the defendants by the donor

Ingredients of gift which allegedly led to attestation of disputed gift mutation were missing in the present case

Defendants had failed to prove the factum of gift in their favour in circumstances

Mutation of gift was required to be proved through credible and unimpeachable evidence as required by law

Ingredients of gift being not complete on the date of entry or attestation of mutation, mere assertion or supposition was not sufficient to reach a conclusion

If there was any settlement between the parties, defendants should have pleaded in the written statement and proved the same through evidence

Non-mentioning of factum of family settlement and non-leading of any evidence to prove thereof would lead an inference that there was no family settlement between the parties

Revision was allowed and suit was decreed in circumstances.

2017 YLRN 178 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Suit for declarationInheritanceDower deedGift mutationProof ofGift, ingredients ofPreponderance of evidenceScopePlaintiffs filed suit for declaration that they were owners in possession to the extent of their shari shareSuit was dismissed by the Trial Court but Appellate Court decreed the sameValidityCourt was to adjudicate matter upon preponderance of evidence

Dower deed being 30 years old document, duly executed and proved, would have presumption of genuineness and its non-registration would not invalidate the same

Fact which the defendants wanted to prove was neither mentioned in their written statement nor in the plaint, no documentary evidence was annexed therewith in that regard

Verifying witness of gift mutation was not produced nor Patwari or Revenue Officer had been examined

Ingredients of gift i.e. offer, acceptance and delivery of possession were required to be proved by the beneficiary

Factum of gift had not been proved in the present case

Judgment and decree passed by the Appellate Court declaring the gift mutation as null and void was correct

Courts below had not appreciated the evidence according to law with regard to dower deed

Judgments and decrees to the extent of dower deed were set aside

Suit of plaintiff was decreed

Revision was allowed in circumstances.

2016 CLCN 144 PESHAWAR-HIGH-COURT Judicial Precedent

O. XVIII, R. 16, O. VI, R. 4 & O. XXXII, R. 3Qanun-e-Shahadat (10 of 1984), Art. 118Gift mutationScope

Contention of plaintiffs was that their mother was insane and due to influence, general power of attorney was got executed on her behalf and mutations were attested on the basis of the same whereas defendant contended that donor had not challenged alleged gift mutations in her life time

Suits were decreed by the Trial Court

Validity

Donor was made party to the suit as proforma defendant who attorned her son through special power of attorney to contest the suit but died during pendency of the same

Donor had ratified the previous transaction of gift on her behalf in favour of her son

Power of attorney and gift mutations were never challenged by the donor in her life time which were executed and attested with her freewill and consent

Donor neither complained of coercion, undue influence and pressure nor she admitted the suit of plaintiffs

Gift could be revoked by the donor in the life time on the basis of any ground

Some of the impugned gift mutations were got attested by the donor herself and some were got attested through attorney on the strength of impugned general power of attorney and there existed offer and acceptance and possession was also transferred

Owner of property had prerogative to enjoy the same or dispose of as per need and requirement to anybody he/she liked

Donor could not be bound to explain reasons with regard to making gift as no provision of any enactment required the same

Plaintiffs filed three suits against same parties and same subject matter which were not permissible under the law and fourth suit was also filed which had relinquished the claim in previous suit as same was the case in subsequent suit

Subsequent mutation if any could be challenged and added to previously instituted suit through amendment in the plaint to such effect

Plaintiffs could request the court to examine the donor at pre-trial stage keeping in view her age and other circumstances as alleged in the plaint with regard to her insanity, weakness and other mental and body condition but no such effort was made

Donor was neither insane nor she was under undue influence or pressure nor she was ready to accept the claim of plaintiffs as she did not file any suit

No evidence was adduced with regard to insanity and undue influence at the hands of defendant

Plaintiffs were bound to give particulars of fraud in the plaint and to prove the same with tangible evidence

Undue influence, mis-representation, breach of trust and fraud should be narrated with particulars in the plaint

Burden of proof was on the plaintiffs to produce cogent evidence in support of allegations made in the plaint and defendant was not bound to negatively disprove the same

When fraud was alleged and no evidence to substantiate the plea had been produced then same could not be held as a case of fraud

Vague and ambiguous allegations would not be sufficient rather material facts should be shown as to how alleged fraud was committed and how document was fake and fraudulent

Mere allegations could not be considered as gospel truth unless proved through unimpeachable and impartial evidence

General averments/allegations with regard to fraud were not sufficient and particulars of the same should be given and proved through cogent evidence

No application was made for appointment of next friend by the court for insane defendant which was mandatory

General power of attorney was executed for transfer of property by way of gift which had been admitted by the plaintiffs and same had been validly attested in accordance with law

Oral assertion in rebuttal of documentary evidence had no significance

Impugned judgment and decree passed by the Trial Court were set aside and suits filed by the plaintiffs were dismissed

Appeals were accepted in circumstances.

2016 MLD 825 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 52Civil Procedure Code (V of 1908), O. XLI, R. 31 & S. 99Suit for declarationGift mutationLis pendens, doctrine ofScopeContention of plaintiff was that mutation of "Tamleek" was result of fraudSuit was decreed concurrentlyValidity

Beneficiary of disputed mutation was bound to prove the transaction by adducing cogent, consistent and unimpeachable evidence

Defendants had failed to produce even tenuous or slender evidence to substantiate their claim

One of the beneficiaries of impugned mutation had filed consenting written statement and had confessed the claim of plaintiff

Defendants did not examine two witnesses of impugned mutation and even Patwari Halqa and Revenue Officer who entered and sanctioned the same were not summoned

Best evidence had been withheld by the defendants and they had failed to discharge the onus placed on them

Suit land was transferred in favour of wife of one of the beneficiaries during pendency of suit and same would hit by the doctrine of lis pendens

Said land had again been transferred in favour of said beneficiary and her claim stood extinguished during the pendency of suit

When basic order was void, the superstructure built upon the same would come down crashing with said order

Appellate Court was not bound to give issue-wise findings

Trial Court had dealt with all the material aspects of case and no short fall of requirements of law was pointed out

Impugned judgments had been passed with jurisdiction and none of them suffered from any material irregularity

Impugned judgments passed by both the courts below did not suffer from infirmity or misreading or non-reading of evidence

Both the courts below had appreciated properly the controversy in minutest details

Revision was dismissed in limine.

2016 MLD 420 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Suit for declaration and permanent injunctionGift mutationBurden of proofNon-production of one of the marginal witnessesLegal effect and presumptionNon-production of Roznamcha Waqiati for proof of entry of gift mutationEffectDispossession from property after delivery of possessionProof

Plaintiffs filed suit for declaration and permanent injunction challenging validity of gift mutation executed in name of defendant by father of plaintiffs

Trial Court dismissed the suit, and appellate court upheld decree and judgment of Trial Court

Validity

Beneficiary of gift, oral or written, was under burden to prove that the same had been validly executed after fulfilment of all three ingredients that were offer, acceptance and delivery of possession

Defendant had alleged forcible dispossession from suit property after delivery of possession, but he could not bring anything on record that he had been forcibly dispossessed by plaintiffs

Defendant witnesses, apart from being contradictory, failed to mention date of dispossession in their statements and the same, therefore, could not be relied upon

Statement of defendant regarding dispossession was self-made and the same was not trustworthy

Thumb impressions on gift mutation were not proved

Roznamcha Waqiati was not produced to prove entry of gift mutation

One of marginal witnesses was not produced before Trial Court whose statement was necessary under Arts.17 & 79, Qanun-e-Shahadat, 1984, which provided that in order to prove document, production of two truthful witnesses was sine qua non

Adverse presumption could be drawn for that if the marginal witness had appeared in court, he would not have supported stance of defendant

Revision was time-barred as the same had been filed beyond period of ninety days

Findings on facts by Trial Court could not be interfered with by revisional court

Revisional court only had to see whether any material illegality, irregularity or wrong exercise of jurisdiction had been committed by Trial Court below

Both courts below had appreciated oral and documentary evidence in true perspective and no misreading and non-reading had been committed, and the same could not be interfered with in revisional jurisdiction

Revision petition was dismissed.

2016 YLRN 73 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Gift mutationOnus to proveLimitationScopeOnus was on the defendants to prove the ingredients of gift i. e. offer, acceptance and delivery of possessionValid gift would come into existence on fulfilment of its conditionsGift could be effected orally if its requirements were complied with

Written instrument was not requirement for a gift under Islamic Law nor same was compulsorily registerable under Registration Act, 1908

Completion of three ingredients (declaration of gift by the donor; acceptance of gift by the donee and delivery of possession of corpus) were mandatory and registration of gift deed would not be helpful if any of condition was not satisfied

Beneficiary of document was bound not only to prove the execution of the same but also to prove the actual factum of gift falling back on three ingredients

Defendants had not stated with regard to said ingredients of gift while appearing in the witness box before the Trial Court

Failure to establish the requirements of gift was fatal to the claim of defendants

No valid gift was made in favour of defendants and same was based on fraud

Donor was not bound to furnish reasons for making gift, however without reason or justification gift could not be made unless donor was a person of unsound mind

No reason had been furnished for making gift in the impugned mutations

Daughters had been deprived of their share from inheritance

Fraud would vitiate even the most solemn transaction as any transaction based on fraud would be void

Bar of limitation could not be considered to allow fraud to perpetuate

Possession of legal heirs would be deemed to be that of their deceased predecessor-in-interest

Limitation would not run against the co-sharer

Courts below had not considered the matter properly and committed mis-reading and non-reading of evidence available on record while dismissing the suit

Judgments and decrees passed by both the courts below were set aside and suit was decreed

Revision was accepted in circumstances.

2016 CLCN 73 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 5, 6 & 13Suit for possession through pre-emptionGift mutationAppreciation of evidenceProcedurePartial pre-emptionEffect

Contention of plaintiff was that in order to defeat right of pre-emption fake colour of gift was given to the disputed mutation

Suit was decreed concurrently

Validity

Onus was on the pre-emptor to prove that transaction was that of "sale"

Gift mutation was attested in common assembly by the Revenue Officer while performing his public duty which had presumption of truth

Oral evidence could not exclude the documentary evidence

Court had discretion to draw inference from the evidence but such exercise was subject to correction by the Superior Courts

Inference drawn by the courts below had been based on non-consideration of the evidence as a whole

Picking and choosing of minor portion of statement did not amount to pragmatic and positive inference and approach

Court was supposed to draw a conclusion keeping in view the substance of entire deposition of witness and one sentence could not be torn out of context

Court was bound to visualize and evaluate the genuineness, capability and mental level of the witnesses

Court was required to apply independent judicious mind with great care and caution

Court was bound to concentrate on the theme, pith and substance of a statement and not to chalk-out a selective piece of evidence which had been done in the present case

Pre-emptor had failed to prove his preferential right being Shafi Sharik with regard to whole of the suit property

Partial pre-emption was not permissible under the law

Plaintiff had proved the performance of requisite talbs but he had failed to prove his superior right as well as that alleged transaction of "gift" was that of "sale"

Suit for possession on the basis of pre-emption could not succeed

Findings recorded by the courts below were based on mis-reading and non-reading of evidence which were not sustainable in the eye of law

Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed

Revision was accepted in circumstances.

2014 MLD 635 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Civil Procedure Code (V of 1908), O. VI, R. 4West Pakistan Land Revenue Act (XVII of 1967), S. 42Suit for declarationInheritanceGift mutationContention of plaintiff was that donor had not made gift and same was result of fraud committed by the doneesSuit was dismissed concurrentlyValidityNone out of legal heirs of donor except the plaintiff had assailed the gift nor came to support her claimParty alleging fraud had to give the particulars, the mode and manner of commission of fraudNo evidence to such effect was producedDonees of both the gift mutations were minors at the time of attestation of the same and were incapable to commit fraudPlaintiff was bound to prove as to how fraud was committed or even expected from those who were minorsNo explanation was put forward with such regard by the plaintiff through evidenceDefendants were in possession of the suit propertyPossession was not transferred at the time of gift but delivery of the same was not necessary as donees were minorsDelivery of possession was not material in case of minor donees

Such was one of the important ingredients of gift but there was exception when father gifted property in favour of minor son or by a guardian to ward and possession of father or guardian after declaration of gift would amount to possession on behalf of the donee/minor

Delivery at a subsequent stage would cure the deficiency of non-delivery of possession

No eventuality would make the gift invalid due to non-delivery of possession in case of minor and ward

Donor had gifted the property and mutations were validly attested

Gift could be made orally without the aid of any instrument like registered deed and mutation

Mutation did not create title but if same was attested in public gathering and entries were made then same could be taken as evidence

Gift mutation was attested in the year 1952

Attestation of mutation did not require any witness to sign the same

Section 42 of the West Pakistan Land Revenue Act,1967 did not give impression of being mandatory in nature

Mutation in question was attested by Lumberdar duly endorsed by revenue officer who appeared as marginal witness

Signature of donor or donee was not required upon the mutation under the law in such circumstances

Statement of donor was recorded to the effect that he had gifted certain property

Such mutation for gift was entered at the instance of donor

Said statement of donor verified by Qanoongo and endorsed/attested by revenue officer in public gathering would not be termed as defective

Donor had gifted certain land to the only son born of his previous wife and later on out of second marriage two sons born to whom he made gift to equalize their right

Donor had the right to use his property as he liked

No bar existed against gift made by the owner/donor in favour of any one and he was not bound to assign any reason for making the same

Defendants had succeeded to prove that gifts were validly made and plaintiff had failed to make out a case for interference

Both the courts below had properly evaluated the factual as well as legal position and arrived at correct conclusion

Revision was dismissed.

2013 MLD 1323 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.42Qanun-e-Shahadat (10 of 1984), Arts.117 & 120Gift mutationOnus to proveShifting of onus, principle ofApplicability

Beneficiary must prove transaction but when suit to challenge any transaction through any mode is filed, onus shifts upon the other side only, when plaintiff appears before court and makes statement on oath in witness box as his own witness and denies the transaction in question.