Gift deed

2025 CLC 495 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 39, 42 & 54Civil Procedure Code (V of 1908), S.115Suit for cancellation, declaration and injunctionConcurrent findings of facts by two Courts belowGift deedProofApplicants/plaintiffs claimed to be owners of suit property on the basis of gift deedTrial Court and Lower Appellate Court dismissed suit and appeal filed by applicants/plaintiffsValidity

Applicants/plaintiffs in support of their claims failed to place on record any evidence or valid material as to execution of alleged gift deed in their favour or that the alleged transaction was Benami

Both the Courts below on appraisal of pleadings and evidence were consistent with the legal position

Two Courts below recorded concurrent findings of fact and had refused to exercise their discretion in favour of applicants/plaintiffs

Concurrent findings of facts could not lightly be interfered with

Applicants/plaintiffs did not raise any question of law that could require consideration of High Court in exercise of its revisional jurisdiction

There was no misreading or non-reading of evidence by two Courts below, who had passed judgments and decrees after due application of mind and careful appreciation of oral and documentary evidence produced by parties as well as the applicable law

High Court declined to interfere in concurrent judgments and decrees passed by two Courts below as the same did not suffer from any illegality, infirmity or material irregularity

Revision was dismissed, in circumstances.

2024 SCMR 24 SUPREME-COURT Judicial Precedent

Ss. 39, 42, 54 & 55Limitation Act (IX of 1908), S. 3Gift deedSuit for declaration, cancellation and permanent and mandatory injunction challenging the gift deedLimitationCause of action, accrual ofPlaintiff filed his suit to challenge the gift deed 20 years after its registration

Admittedly just before filing of the suit the defendant got entered the mutation of gift in his name, on the basis of said impugned gift in the Cantonment record which gave cause of action to the plaintiff

Stance of the plaintiff in this situation is correct and covered the point of limitation when gift deed was first time used against him which gave him the cause of action

Petitions for leave to appeal were converted into appeals and allowed and suit filed by the plaintiff was decreed.

2023 MLD 346 Gilgit-Baltistan Chief Court Judicial Precedent

S. 42Suit for declarationGift deedNon-production of marginal witnessesInheritance, entitlement toScopePlaintiffs filed a suit for enforcing right of inheritance in their maternal grandfather's legacy

Defendant claimed that the mother of plaintiffs had passed away during the lifetime of her father and that the property had been gifted to him through a gift deed

Validity

Gift deed was neither registered nor marginal witnesses were produced in the trial court

Defendant had not produced any oral or documentary evidence regarding necessary ingredients/conditions of a gift i.e. offer, acceptance and delivery of possession

Children of predeceased daughter of the late full owner inherited the same which the mother would have got as if she was alive at the time of opening of succession

Petition was allowed and resultantly, the suit was decreed.

2022 CLC 513 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.XXXIX, Rr. 1 & 2Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118Gift deedAllegation of forgerySuit for declaration, cancellation, partition, mesne profit and permanent injunctionApplication for temporary injunction was rejected by Trial CourtAppeal was dismissed

Held, that question of limitation being a mixed question of fact and law would be determined by the Trial Court after recording evidence at the time of final adjudication

In case of denial by plaintiff in witness box, onus would be on respondent to prove gift deed coupled with the circumstances warranting exclusion of the petitioners from inheritance

Beneficiary was under legal obligation to prove the validity of the transaction particularly where females had been deprived from their legitimate rights of inheritance through gift deed

Petitioners would suffer irreparable loss if disputed property was further transferred by respondent and in such eventuality they would face inconvenience for multiplicity of litigation

Arguable case, apprehension of irreparable loss and balance of inconvenience existed in favour of the petitioner

Revision petition was accepted accordingly.

2021 CLC 1056 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Gift deedBurden of proofScope

Petitioners filed a suit for partition of suit property whereas respondent filed a suit for declaration-cum-permanent injunction claiming to be owner of the suit property on the basis of gift deed executed by her late husband

Courts below concurrently decreed the suit filed by respondent

Validity

Respondent had claimed to be owner of the property on the basis of gift deed, contents/narration whereof itself disclosed that the donor had intentionally and with his conscious mind executed the gift deed wherein the offer and admission of handing over the possession of the property was also reflected

Acceptance was also visible from the thumb impression of the respondent embossed by her at footnote of the gift deed, which was sufficient to declare it a valid gift

Possession of the respondent over the suit house was also established from factum of admission of the parties as the respondent was residing in the said house

Gift deed was proved by producing the Stamp Vendor, Scribe of the gift deed and both marginal witnesses whereas the respondent herself had also appeared as a witness

Burden to prove authenticity and validity of gift was always on the beneficiary, which in the present case was duly discharged by the respondent

Revision petitions were dismissed, in circumstances.

2021 CLC 1712 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.278, 376 & 383Specific Relief Act (I of 1877), Ss.42 & 54Suit for declaration and injunctionGift deedSuccession CertificateAmendment of pleadingsPlaintiffs were daughters of deceased owners of suit properties and their only brother had died earlier

Plaintiffs assailed declaration of gifts of immovable properties made by their parents in favour of their deceased brother in his life time

After death of brother of plaintiffs succession certificate was issued in favour of parents regarding suit properties

Validity

Gift was a registered document which was not challenged by plaintiffs on the ground of any fraud or misrepresentation by beneficiary in acquiring the gift

Nor the donor (father of plaintiffs) at relevant time was otherwise not legally competent to execute gift to his son owning to some legal disability

No amendment of pleadings could be allowed in disposed of matter

In disposed of succession petition only extension of Letter of Administration was permissible under S.376 of Succession Act, 1925, on subsequent discovery of any other estate of deceased which inadvertently or for any reason could not be mentioned in original succession petition

Succession certificate could also be revoked on the grounds provided in S.383 of Succession Act, 1925

No concept of amendment of disposed of memo of petition for Letter of Administration in respect of one identified deceased on subsequent death of another person who was legal heir of the deceased whose petition had been disposed of prior to the death of the other person

Under the law of succession, it was not permissible that a common petition / application was entertained for grant of succession certificate / Letter of Administration pertaining to assets of more than one deceased particularly when legal heir of two deceased were not common, irrespective of the fact that assets were inherited by one of them from the other person

Suit was dismissed, in circumstances.

2020 SCMR 2101 SUPREME-COURT Judicial Precedent

O. I, R. 3Gift deedPlea of fraudNecessary party/defendantScopePerson who acted as attorney and sold the disputed property to a third party was not arrayed as defendant in the suit

Attorney was a necessary party as it was he who on the strength of the disputed power of attorney sold the suit property to a third party

Attorney also appeared to be real uncle of one of the donees and brother of the donor

Forgery, if any, could only be pointed towards the attorney, therefore, he ought to have been made a party in the suit

Unless it was established that forgery had been committed by the attorney the suit of the appellants (donees) could not be decreed

Fact that the donees had not made the attorney a party showed that such an omission was fatal to the suit even if it had been filed within the period of limitation

Such omission looked deliberate as the person who could only commit fraud had not been sued and thus the donees appeared to have not come to the court with clean hands

Suit filed by donees had rightly been rejected by courts below

Appeal was dismissed.

2020 CLC 1048 PESHAWAR-HIGH-COURT Judicial Precedent

Art.100Suit for declaration and permanent injunctionGift deedProof ofDocument more than thirty years oldPresumption of correctnessScope

Contention of plaintiff was that she was entitled for her share in the inheritance whereas defendants contended that gift deeds of suit property had been executed in their favour

Suit was decreed concurrently

Validity

Witnesses of impugned transaction had expired but no secondary evidence had been produced by the defendants

Neither gift deeds nor transaction incorporated in the same had been proved by the defendants

Defendants were not in exclusive possession on the suit property

Benefit of Art. 100 of Qanun-e-Shahadat, 1984 could only be claimed when a deed had been admitted or proved in evidence

Courts below had rightly discarded the impugned deed relied upon by the defendants

No exception could be taken to the findings recorded by the Courts below

Revision was dismissed, in circumstances.

2020 CLC 2001 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.VI, R.17 & O. VIII, Rr. 3, 4 & 5Suit for declarationGift deedEvasive denialEffectAppealPetition for amendment of written statement

Suit was decreed against which appeal was filed wherein defendants moved application for amendment of written statement which was dismissed

Validity

Court while deciding application for amendment of pleadings was to keep in view the interest of justice and allow the case to run on correct lines for decision of real controversy

Amendment in the pleadings could be allowed at any stage of proceedings for determining the real question of controversy between the parties

Proposed amendment in the pleadings should not alter the nature of the same

Alleged amendment should not be tainted with dishonest purpose and to build a new case or prejudice the case of adversary

Defendants in their written statement had not controverted the allegations levelled by the plaintiffs with substance rather evasively denied

If any allegation had not been denied specifically then it would be considered to be admitted

Plaintiffs had led affirmative evidence to shift the onus to the beneficiary of impugned gift deed

Defendants had produced only one witness to prove alleged gift deed in their favour

Defendants through proposed amendment intended to reopen the case by leading evidence afresh

Intention of defendants behind proposed amendment was to cover the lacunas left by them during trial, which could not be permitted

Defendants had produced meager, weak and poor evidence and vested right in favour of plaintiff had accrued

Permission to amend written statement would definitely cause prejudice to the plaintiffs, in circumstances

Revision was dismissed in limine.

2020 MLD 1530 Gilgit-Baltistan Chief Court Judicial Precedent

Art. 120Qanun-e-Shahadat (10 of 1984), Art. 114Civil Procedure Code (V of 1908), S. 11Suit for declarationLimitationGift deedRes judicata, principle ofApplicabilityContention of plaintiff was that impugned gift deed was based on fraudTrial Court dismissed the suit on the ground of limitation but Appellate Court decreed the sameValidityLimitation for filing a declaratory suit was six yearsImpugned gift deed had been executed on 21-01-1978 whereas suit had been filed on 18.09.1989Suit of plaintiff was time barred, in circumstancesEarlier, daughter of plaintiff filed a suit on the same cause of action which had been dismissed

Plaintiff in the said suit while submitting written statement had admitted the execution and genuineness of impugned gift deed

Plaintiff could not resile from his earlier statement and principles of estoppel and res judicata were applicable, in circumstances

Owner of a property during his life time could dispose of the same

Impugned judgment and decree passed by the Appellate Court suffered from legal and factual infirmity which could not sustain and same were set aside

Judgment and decree passed by the Trial Court were restored

Revision was allowed, in circumstances.

2020 YLRN 109 Gilgit-Baltistan Chief Court Judicial Precedent

Gift deedFraming of issuesScope

Contention of plaintiff was that gift deed allegedly executed in favour of defendants was based on fraud and he was entitled for his share in the legacy of his father

Suit was dismissed by the Trial Court but Appellate Court decreed the same

Validity

Trial Court had failed to frame proper issues in the light of divergent pleadings of the parties

Plaint of the plaintiff was also ambiguous in the present matter

Case was remanded to the Trial Court with the direction to frame proper issues after obtaining proposed issues from the parties and proceed with the matter in accordance with law

Trial Court was to afford an opportunity to the plaintiff to amend his plaint if so desired

Impugned judgments and decrees passed by the Courts below were set aside

Revision was allowed, in circumstances.

2019 CLC 1710 PESHAWAR-HIGH-COURT Judicial Precedent

Gift deedProof ofRequirementsContention of plaintiff was that impugned gift deed was based on fraud and misrepresentationSuit was decreed concurrentlyValidityGift deed was not effected in presence of defendant and same did not have his signature or thumb impression

Nothing was on record that donor made a declaration of gift which was accepted by the donee and possession of suit land was delivered under gift to the donee

Defendant had failed to prove the factum of gift in his favour

Defendant had not pleaded that suit property was gifted away to him out of love and affection

Donee had not mentioned any date and place where offer and acceptance of gift was made and pursuance thereof possession was delivered to him

Ingredients of a valid gift had not been fulfilled in the present case

Donee was required to specify the date, time and place of the offer made and complied by him and when possession was delivered to him

Scribe of gift deed was not produced to testify the execution of impugned gift deed

High Court observed that impugned gift deed was fraudulent and was never executed

No mis-reading, non-reading of evidence or any illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed in, circumstances.

2018 PLD 698 SUPREME-COURT Judicial Precedent

Art. 79, provisoGift deedProof of execution of document required by law to be attestedProviso to the Art.79 of Qanun-e-Shahadat, 1984Scope

Said proviso relaxed the requirement of calling the two attesting witnesses to prove the execution of the document, if the document was duly registered in accordance with the provisions of Registration Act, 1908 and its execution was not specifically denied

Party was relieved of the duty of calling the two witnesses but not from the duty of proving the execution of the registered document

Effect of the proviso to Art.79 was that the due execution and attestation of the gift deed would have to be proved, although it may be proved by calling a person other than an attesting witness

Such relaxation was pillared on an important assumption that the execution of the document was not denied

Denail of the execution of the document was not limited to the executant alone but was open to any party to the suit that was affected by the said document.

2017 YLRN 198 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 39Limitation Act (IX of 1908), Ss. 3 & 18Suit for cancellation of instrumentGift deedLimitation for challenging gift in case of fraudScopeContention of defendants was that the suit was filed beyond the period of limitationValidity

Supreme Court observed that question of limitation had been resolved by the Trial Court in a legal manner; controversy started when the plaintiff started reconstructing the house and the defendants objected to the same by alleging that the defendants were owner of the land by virtue of gift deed and in that way, it could not be held that the suit was beyond the period of limitation

Limitation in case of fraud started from the date of knowledge of the fraud.

2017 YLRN 198 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 39Suit for cancellation of instrumentGift deedDevolution of property under custom (riwaj)Relief granted beyond the pleadingsScopeFindings of the High Court were that the property devolved upon donor/mother of defendants under the custom (riwaj)

Supreme Court observed that such was not the case and no relief beyond the pleadings could be granted.

2017 YLRN 198 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 39Suit for cancellation of instrumentGift deedInheritance of daughter of predeceased only son of predecessor-in-interestScope

Plaintiffs contended that donor/mother of the defendants was daughter of predeceased only son to whom no property was to be devolved through inheritance of predecessor-in-interest

Plaintiffs had alleged that donor/mother of defendants got incorporated suit property in her favour by fraud

Defendants contended that donor/mother of defendants inherited the suit property which was subsequently gifted to them

Validity

Controversy revolved around the gift deed which was executed by donor in favour of her sons/defendants in respect of suit property, allegedly being owner of the whole property, which was inherited by her from her grand-father

Question was as to whether donor was competent to execute the gift deed of the suit property in favour of her sons, which was left by her grandfather

No rebuttal was on record on the part of defendants that the property gifted by their mother was that of predecessor-in-interest

Trial Court had rightly reached the conclusion that donor was not competent to execute the gift deed of the whole property in favour of her sons

Islamic law of inheritance postulated that where the propositus died leaving behind only one son's daughter and one real brother, having no real daughter and no grandson, then son's daughter (granddaughter) would share half of the property and remaining half would go to the real brother of the propositus

Donor/granddaughter was entitled to half share of the property left by her grandfather; she was competent only to transfer her own share and not the whole

When donor/mother of defendants, herself, was not lawful owner of the whole property, she was not entitled to execute the gift deed of the whole property in favour of her sons

Gift by donor was in excess of her share, Trial Court had rightly concluded that she was only entitled to half of the suit property

Decree of Trial Court was maintained

Appeal was accepted accordingly.

2017 YLR 2229 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Qanun-e-Shahadat (10 of 1984), Arts. 87, 100 & 129 (g)Evidence Act (I of 1872), Ss. 76 & 68Registration Act (XVI of 1908), S. 60Suit for declarationLimitationInheritanceGift deedProofProcedureDocument more than 30-years oldScopeFraudEffectContention of plaintiffs was that gift deed in favour of defendants was based on fraudSuit was dismissed by the Trial Court but same was decreed by the Appellate CourtValidity

Mere factum that signatures of Secretary Union Council as well as Nazim appeared on the death certificate of donor was not sufficient to hold that said document was admissible in evidence until original record was presented before the Trial Court to compare with the same

Neither Secretary Union Council nor Nazim who put their signatures on the death certificate were brought to the witness-box to prove the contents of said document

Copy of death certificate was to be taken out of consideration

Production of document on record and its proof were two independent aspects

Death certificate could not be treated to be attested copy only for the reason that same was signed by the Secretary/Nazim

No appending certificate on the said document was available which could satisfy that it was a correct copy of the original

Mere fact that no objection was taken to said certificate at the time of its exhibition would not make the same admissible in evidence which otherwise could not be admitted under the law

Defendants had withheld the best evidence which was available to them in the shape of Custodian of Register of death entries and an adverse inference would be drawn against them

Copy of death entry was not copy of judicial record which could not be received in evidence without the proof of signatures and writing of the person alleged to have signed or written the same even if such documents brought on record were exhibited without objection

Whenever execution or validity of a registered document was denied then such document would lose sanctity of being presumed to be correct

Veracity of such document would depend upon quantum and quality of evidence to be produced to prove its execution

Only restricted presumption would attach that registration proceedings were regularly and honestly carried out by the attesting officer

Said presumption attached to its certificate was always rebutable

Whenever execution of an instrument was denied then such presumption was deduced to have been sufficiently rebutted

Onus to prove that document was executed and transaction did take place would lie upon the person who had alleged said execution

Presumption in favour of a registered instrument did not dispense with the necessity of showing that person who admitted the execution before the attesting officer was not an imposter but the same person

Alleged gift deed was executed prior to the promulgation of Qanun-e-Shahadat, 1984

Only one attesting witness was sufficient to prove the execution/attestation of impugned gift deed

Defendants produced one attesting witness of said deed in the witness-box and got recorded his statement-in-chief but he was not produced for cross-examination

Statement without cross-examination would not carry any weight

Neither Stamp Vendor, Deed Writer and Identifier of donor were produced nor Sub-Registrar was got examined who could be star witnesses to prove that executant had appeared for purchase of stamp paper who got executed the gift deed and after due identification and verification instrument was validly attested

Beneficiaries/ defendants had failed to prove the transaction of gift independently through sufficient material

Admissibility of document and evidentiary value of the same having a life of more than 30-years were two different aspects

Document more than 30-years old was admissible without production of the marginal witnesses or the executant of the same but court was not required to presume contents of such documents to be true

Impugned gift deed was procured while practicing fraud, misrepresentation and impersonation

Every legal heir would become co-owner in the legacy of his predecessor as soon as he died irrespective of the fact whether entries in the revenue record with regard to an agricultural land were made in their names or not

Cogent, tangible and un-rebutted evidence was required to oust a co-owner from the joint corpus of an undivided immovable property which was lacking in the present case

Neither limitation nor conduct of plaintiffs could estop them from claiming their legal share

Mere passage of time did not extinguish inheritance rights of plaintiffs

Every new entry in the revenue record on the basis of fraudulent instrument would give rise to a fresh cause of action

Present suit could not be declared to be time barred

Appellate Court had correctly appreciated the evidence of the parties while decreeing the suit

No illegality, perversity or jurisdictional defect had been pointed out in the impugned judgments and decrees passed by the Appellate Court

Revision was dismissed with cost throughout.

2017 MLD 1552 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 214 & 215Gift deedProofPrincipal and attorney, relationship ofTransfer of property in the name of wife by attorneyPlaintiff instituted suit to declare the gift made by defendant to his wife to be ineffectivePlaintiff had appointed defendant as attorney who transferred suit property in the name of his wifeDefence witness, not mentioned in pleadings, had deposed that defendant informed plaintiff of alienationTrial Court dismissed the suit but Lower Appellate Court allowed the appealValidity

Law required that "prior permission" of principal was to be acquired by agent for alienation of principal's property in favour of his close relative

Informing principal about alienation was necessarily an act done subsequently that would not equalize "prior permission"

Principal had a right to repudiate said transaction if it was proved that material facts were dishonestly concealed by agent

Revision was dismissed by High Court.

2016 CLCN 138 PESHAWAR-HIGH-COURT Judicial Precedent

O. XVIII, R. 17 & S. 151Witness, recalling ofScopeGift deedMutation was challenged on the ground of minority of plaintiff at the time of attestation of the same

Permission was granted for recalling the witness for cross-examination by the Trial Court but Appellate Court reversed the said permission

Contention of defendants was that gift deed came to their knowledge and possession when evidence had already been recorded

Validity

Conflicting versions appearing from record had created ambiguity and obscurity with regard to the age of plaintiff

Defendants should not be precluded from bringing on record the evidence necessary for determination of age of plaintiff

Trial Court had powers to recall a witness at any stage of a suit

Appellate Court had failed to appreciate the facts of the case properly

Impugned order passed by the Appellate Court was set aside and that of Trial Court was restored

Constitutional petition was disposed of in circumstances.

2016 YLR 760 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Gift deedInheritanceLimitationSale deedSubsequent transactionScopeBoth plaintiffs and defendants instituted suits against each other

Contention of plaintiffs was that they were owners of suit property and gift deed in favour of defendants was fictitious

Suit of plaintiffs was dismissed whereas that of defendants was decreed

Validity

Plaintiffs were in possession of the suit property

Gift deed in favour of defendants was without delivery of possession

Subsequent transaction could never be preferred over the existing one

Suit of defendants was time barred

Both the courts below had committed mis-reading and non-reading of evidence while dismissing suit of plaintiffs

Impugned gift deed was liable to be cancelled to the extent of property owned by the plaintiffs

Impugned judgments and decrees passed by both the courts below were set aside

Suit filed by the plaintiffs was decreed whereas that of defendants was dismissed and mutation in favour of plaintiffs was restored

Appeal was allowed.

2016 MLD 586 Gilgit-Baltistan Chief Court Judicial Precedent

O. XIII, R. 2Documentary evidenceProduction ofScopeGift deed

Trial Court decreed the suit against which appeal was filed wherein application was moved for production of documentary evidence by the defendant which was dismissed

Validity

Nothing was on record as to when defendant lost the document required to be produced

Trial Court had framed issues and had afforded chance to the defendant to prove gift deed

Application for production of document was based on mala fide of the defendant

No irregularity was pointed out in the impugned order passed by the Appellate Court

Revision was dismissed in circumstances.

2014 YLR 1748 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Suit for declarationLimitationGift deedPlaintiff alleged that gift deed in favour of defendants was result of fraud and forgeryValidityMere assertion of fraud or forgery was not sufficient, plaintiff should be specific (in his averments)Suit property was admittedly in possession of defendants but plaintiff did not seek possession as consequential relief

Beneficiary of a document was bound to establish its execution but burden to prove shifted to the other side (party) who alleged fraud or forgery

Plaintiffs filed suit 35 years and 27 years after impugned mutations were sanctioned

Suit was barred by limitation

Donor and mother (prede-cessor) of plaintiffs lived long after impugned gift mutation but none of them challenged mutation in favour of defendants; it was incumbent on plaintiffs to establish fraud

Long-standing entries in revenue record carried presumption of correctness unless proved otherwise

Defendants had been in possession of suit-land for four decades

Concurrent findings could not be disturbed in casual manner

Revision was dismissed.

2014 CLC 254 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Suit for declaration along with partitionGift deedLimitationPlaintiffs filed suit with the contention that property in dispute was jointly owned by the partiesContention of the defendants was that suit land was gifted to them by their predecessor-in-interestSuit was decreed by the Trial Court but the same was dismissed by the Appellate CourtValidityParties were co-owners in the joint khata and no partition had taken placePartition of joint property was a continuing rightMere holding of possession did not disentitle other co-owners from claiming partitionSuit for partition could be filed at any timeSuit qua the relief of partition was not barred by limitationBoth the parties had been selling out land from the joint khataCo-sharer was entitled to alienate or transfer his share and deliver possession of property in his possession/controlVendee stepped into shoes as a co-sharer and property would be subject to partition

No doubt there was no bar against transfer of land by way of gift by a co-sharer to the extent of his share but donor, in the present case, was attorney of other co-owners and without prior approval of the principal he could not make any gift

Defendants had obtained only ownership rights in the joint property and till partition they could not claim exclusive possession

Main relief being the partition and the relief qua gift deed being in relation thereto, the suit could not be dismissed on the ground of limitation

Parties jointly owned land measuring 130 Kanals but plaintiffs had filed suit of land measuring 4 Kanals and 9 Marlas without consent of other share holders

Suit of the plaintiffs was not maintainable in its present form

Appellate Court had wrongly dismissed the suit as the parties were not provided opportunity to resolve the controversy before the court

Case was remanded to the Trial Court and parties were ordered to be afforded opportunity to lead evidence

Amendment if sought would be allowed by the Trial Court

Revision was disposed off accordingly.

2013 YLR 2081 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 42Qanun-e-Shahadat (10 of 1984), Art. 117Suit for declarationGift deedPower of attorneyScopeBurden of proof

Contentions of plaintiffs were that they, being owners of the suit property had delivered the possession of the same to the defendants for six months and they refused to vacate the same and claimed to be the owners of the said property

Suit was dismissed concurrently

Validity

Trial Court had decided the suit issue-wise by discussing the evidence with cogent reasons and had come to the conclusion that the plaintiffs-petitioners had failed to produce any evidence that suit property was gifted and physical possession was handed over

Trial Court had also examined the sanctity of general power-of-attorney and formulated question as to whether attorney could make declaration of gift on behalf of principal

Trial Court had dismissed the suit after considering the evidence led by both the parties and Appellate Court had decided all the issues more elaborately on the basis of evidence led by both the parties and had observed that the plaintiffs-petitioners had failed to discharge the burden to prove the power-of-attorney in terms of Article 117 of Qanun-e-Shahadat, 1984 and discussed the legal status of the declaration and confirmation of oral gift deed and the mutation of property on the basis of said gift deed and declared the same to be invalid and in violation of settled principles of law.

2013 PLD 8 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Gift deedNon-delivery of possession by donor to donee though relating to each others within prohibited degreesEffectTransfer of possession of gifted land in such case would not be necessary

Gift deed on such ground could not be set aside.