Gift

No reason prompting the donor to gift out the disputed property to the petitioners, excluding his daughters (lawful heirs), had been impleaded, asserted and proved by the petitioners in their pleadings (written statement) and evidence

It is rare for a gift to be made without some reasons like affection or in reward of some sincere service.

The possession of one co-sharer is deemed to be for the benefit of all co-sharers, and delay in asserting a right or challenging a mutation does not extinguish that right

The doctrines of waiver, estoppel, relinquishment, or adverse possession do not apply amongst co-heirs

Even when a gift is pleaded, the donee bears a heavy onus to prove that the donor made a valid offer, that it was accepted, and that possession was delivered

The donor must also establish the date, time and place of the offer and acceptance

Failure to do so, renders such a plea untenable.

A transaction which is based on an oral gift has two parts, namely the fact of the oral gift which has to be independently established by proving through cogent and reliable evidence the three necessary ingredients of a valid gift i.e. (1) declaration of gift, (2) acceptance of the gift and (3) delivery of the possession of the subject of the gift; however, this is not enough

The second ingredient i.e. mutation on the basis of an oral gift has to be independently established by adopting the procedure provided in the Land Revenue Act and the Rules framed thereunder as well as the evidentiary aspects of the same in terms of the Qanun-e-Shahadat, 1984.

Burden to prove a purported gift deed brought forward by the brothers in order to deprive sisters from the share in inheritance would lie on the person who produces it.

Extra vigilance must be exercised in cases where purported gifts are made to deprive daughters and widows from what would have constituted their share in the inheritance of an estate

Purported gifts and other instruments used to deprive female family members including daughters and widows are contrary to law and public policy

Often male members of the family deprive entitled female members of their inheritance and, in doing so, law is being violated

When vulnerable women are at such times compelled to relinquish their inheritance in favor of their male members, such relinquishment offends public policy and is contrary to Shariah.

It is also obligatory that donor divests and dissociates himself from dominion and ownership over property of gift and puts into words his categorical intention to convey ownership to donee distinctly and unambiguously with delivery of possession of property and ensure that donee has secured physical ascendency over property to constitute delivery of possession.

Respondent/plaintiff claimed to be owner in possession of suit land on the basis of gift made in her favour by her deceased father

Suit was decreed by Trial Court in favour of respondent/plaintiff but Lower Appellate Court dismissed the same

High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court

Validity

At no material stage authorities and/or any sitting tenant disputed declaration made by deceased owner of land that he had gifted 909 acres of land, equivalent to 9,997 Produced Index Units ("PIUs") to his daughter

This was recognition of the gift by Land Reform Authorities that had resulted in deceased landlord escaping resumption of his land beyond 36,000 PIUs in favour of government

Other legal heirs/descendants of deceased land owner who were defendants in the suit had also not challenged such declaration dated 13-04-1959 and/or the document maintained by Land Reforms Authorities under which gift in favour of respondent/ plaintiff had been recognized and accepted

Declaration made by deceased land owner before Land Reforms Authorities was an admission as to the factum of gift in favour of his daughter who was a minor when the declaration was made

Supreme Court declined to interfere in judgment and decree passed by High Court

Appeal was dismissed.

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

Validity

To constitute a valid gift under Para 149 of Principles of Muhammadan Law, delivery of possession of the subject of the gift by the donor to the donee is one of three essential ingredients (i.e. declaration, acceptance and delivery of possession of gift)

Under Para 167 of Principles of Muhammadan Law, the donor can opt revocation of gift before delivery of possession or where gift property has not been delivered to the donee

In the present case, the recital in the mutation of the gift mutation-in-question did not state that the purported subject matter of the gift was handed over to the donees

Therefore, it could not be concluded that the gift of the property-in-question was delivered to the donees

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

Constitutional petition was dismissed, in circumstances.

When the plaint is barred by any law on the face of it, recording of evidence would be a futile exercise and would amount to encouraging the abuse

Where on the plain reading of the plaint, it can be clearly seen that the suit is patently barred by limitation, no evidence is required

To plead that a plaint cannot be rejected because of the suit being barred by limitation/law, without recording evidence, is to plead against the mandate of law as contained in O. VII, R. 11 C.P.C., which essentially requires the court to reject the plaint which appears from its contents to be barred by limitation

Aggrieved person has to pursue his legal remedies with diligence and if a suit is beyond limitation, the delay of each and every day consumed for approaching the court beyond the period of limitation has to be explained

In the instant case the plaint on the face of it failed to explain the delay of a period of 34 years

The contents of the plaint failed to set up a case in a manner which rendered the question of limitation as a mixed question of law and fact

Mere reading of the contents of the plaint made it abundantly clear that it was statute barred and was liable to be dismissed in terms of O. VII, R. 11, C.P.C without employing valuable judicial resources and time of the Trial Court

By specifically incorporating the provision in terms of O. VII, R. 11, C.P.C, the legislature has empowered the court with an independent suo motu and sua sponte power to examine the plaint by using its wisdom

The courts always nip a frivolous suit in the bud, by rejecting such frivolous, fictitious and untenable claims in order to retain courts' docket and time for more serious claims

Non-actionable plaint or suit is a non-starter and in the interest of administration of justice and good judicial governance, it is best if such plaints are dismissed at the earliest

Keeping in view the mandatory provision of S. 3 of the Limitation Act, 1908, it is duty of every court and forum itself to look into the question of limitation irrespective of the fact whether any objection in this regard has been raised or not

Limitation runs even against a void order and a void order too has to be challenged within limitation

In the instant case, there was no justification at the outset merely by considering the averments of the plaint to overlook the delay of 34 years

When Mst. "SB" did not challenge the impugned gift deed in her life time despite third party transfers through registered deeds, petitioner/plaintiff had no right to claim inheritance of Mst. "SB"

Under Art. 100 of Qanun-e-Shahadat, 1984 a presumption was attached to the impugned gift deed which was 34 years old document at the time of its challenge before the Trial Court

In the instant case, predecessor in interest of the petitioner/plaintiff (Mst. "SB") never voiced any grievance against the Impugned mutation; even on her demise in 2009, her legal heirs kept a mum for almost six years despite being resident of same village, and suddenly woke up from slumber and filed the suit in November 2015, which was not permissible under the law

There was no substance in the petition which was dismissed, in circumstances.

The pivotal question under consideration in the instant matter was as to "whether, in the realm of inheritance claims, the bar of limitation retained its binding force and whether a legal heir could successfully challenge a decades-old registered gift and subsequent third-party transfers on the basis of inheritance, without first overcoming the statutory bar of limitation, particularly where the predecessor-in-interest, during their lifetime, neither contested the transaction nor asserted any legal right thereto"

Petitioner along with respondent No. 16, filed a suit for declaration and permanent injunction against a registered gift deed dated 03.09.1981, executed by his maternal grandfather (the original owner) in favor of his uncles (respondents Nos. 7-10) regarding some ancestral land

After the gift deed, respondents 7-10 sold the property to third parties (respondents 1-6) via registered sale deeds in 1984, and relevant mutations were sanctioned accordingly

During proceedings of the suit the contesting defendants filed application under section O. VII, R. 11 of C.P.C. which was disposed of by the Trial Court by completely ignoring the third party rights and questions of waiver, acquiesce and limitation

Being aggrieved of the Trial Court order the contesting respondents preferred civil revision petition under S. 115, C.P.C. which was allowed vide the impugned decree and consequently the plaint was rejected being barred by limitation

Held: It was not in all cases of inheritance that the question of limitation became irrelevant

In various claims of inheritance brought by female legal heirs against their brothers/male heirs, the question of limitation could not be ignored in every such case and such question of limitation was dependent upon facts and circumstance of each case

The impugned gift deed was challenged by the petitioner/plaintiff on 24.11.2015, after 34 years of the impugned gift deed and 06 years after the death of Mst. "SB" (real sister of respondents Nos. 7-10)

The present petitioner/ plaintiff had not inherited anything qua his claim on the basis of his relationship with his deceased mother Mst. "SB" as she did not leave behind any inheritance with respect to the suit property

Not only was the impugned gift deed not challenged within her lifetime, the subsequent transactions of sales to third parties, evidenced by registered instruments were not challenged either

If a predecessor did not challenge a transaction in his/her lifetime, which transaction purported to deprive the predecessor of his/her share and third party rights had been created, simple claim on the basis of inheritance would not absolve the question of limitation

The lack of challenge by the donor within the lifetime was fatal and the bar of limitation would accordingly apply

The question of limitation could not be dubbed irrelevant in every claim of inheritance

Only in the cases of exceptional facts, the question of limitation had not been treated as a statutory bar against the claims of inheritance

Those exceptional cases may be summed up in the following terms: i. Cases filed by female heirs, within their lifetime, claiming fraud and misrepresentation played against them qua the immoveable property left behind by their predecessor in interest; ii. Cases where it is pleaded and proved that the deprived female heir(s) were being paid some proportionate share from the income/lease of the immoveable property in question; iii. Cases where a co-sharer has successfully pleaded and proved that the rival heir or co-sharer was in deemed possession of immoveable property on behalf of all other heirs/siblings; iv. Cases where no third-party rights have been created in the immoveable property, which is/was subject matter of undisputed inheritance; v. Cases where the elements of acquiescence and waiver are absent on the part of the claimant legal heir or his/her predecessor in interest

The question of limitation could neither be ignored in every claim based on purported rights of inheritance nor it was permissible for the litigants to lay a statute barred challenge by couching the relief in the form of an inheritance claim

However, under the few exceptions, where a female was deprived of her share in the immoveable property of her predecessor, limitation would not be a question against her claim of inheritance where the female had successfully pleaded all the ingredients of fraud being played upon her while sanctioning the inheritance mutation by excluding her from inheritance

The limitation would not be an obstacle in the case of inheritance as where the fact of claimant lady being deprived from the inherited property by way of impugned mutation was concealed from her, however,she pleaded and proved that she was being paid her share of income from the property and once the same was denied, she brought the suit within her lifetime

A claim of inheritance must cross the bridge of limitation, waiver and acquiescence

An unchecked tendency of encouraging a relief in the guise of inheritance was not warranted under the law, particularly when the property in issue changed hands and the slumber of a purported claimant of inheritance crystalized valuable rights in favour of third parties

The encouragement of such claims and long drawn trials in statute barred suits was counter productive for genuine and bona fide claims of female heirs

In the instant case, predecessor in interest of the petitioner/plaintiff (Mst. "SB") never voiced any grievance against the impugned mutation; even on her demise in 2009, her legal heirs kept a mum for almost six years despite being resident of same village, and suddenly woke up from slumber and filed the suit in November 2015, which was not permissible under the law

There was no substance in the petition which was dismissed, in circumstances.

Sons did not get exhibited the signatures of the attesting witnesses, thus, the validity of gift mutation remained unproved.

When validity and correctness of a gift transaction is challenged it becomes mandatory and essential for the beneficiary to prove the valid execution of same

Female member of the family deprived by male member of her share in inheritance

In order to prove her case, the petitioner/plaintiff who was deprived by his brother from inheritance of their deceased father, appeared as PW3 and supported the contents of the plaint

She deposed that her deceased father never gifted the suit property to the respondent/defendant (brother of petitioner/plaintiff) and the same was outcome of fraud

She specifically stated that she was never aware of any such transaction

This very statement of the petitioner/plaintiff had clearly shifted the onus of proving onto the respondent/defendant (brother of petitioner/plaintiff) being beneficiary of oral gift which he failed to discharge by shying away from appearance as a witness

The respondent/defendant instead of appearing before the court merely relied on testimony of his son who merely appeared as his father's attorney

It was an unfortunate fact that male members of families deprive their female relatives of their legal entitlement to inheritance and in doing so Sharia and law was violated

Concurrent findings of the courts below fell within the exception of interference for exercising revisional jurisdiction of the court and the same were therefore set aside

The suit filed by the petitioner/plaintiff (female legal heir deprived from inheritance) was decreed as prayed for

Civil revision was allowed, in circumstances.

In absence of proof of a valid gift the continuous possession of the respondent/defendant (brother of petitioner/plaintiff) being the only male surviving member of the family was constructive possession on behalf of her sister (petitioner/plaintiff), an uneducated village lady

Possession of the suit property by the only brother of the petitioner/plaintiff lady could not solely confirm the transaction of the impugned gift

Merely because the respondent/defendant (brother) was in possession of the land did not mean, let alone established, that the land was gifted to him, however, it itself confirmed that he took advantage of his gender and position and made the best out of the vulnerability of a dependent female

Civil revision was allowed and suit filed by petitioner/plaintiff (female heir) was decreed.

The instant matter brought into focus the jurisprudential and evidentiary imperatives surrounding the alleged oral transfer of immovable property by way of gift, particularly where such a claim was advanced to circumvent the vested inheritance rights of a female legal heir

Petitioner/plaintiff and respondent/defendant were real siblings and the only legal heirs of their deceased father, who passed away on 08.10.1998

The dispute concerned agricultural land (the "Suit Property")

The petitioner/plaintiff (sister of respondent/defendant who was the beneficiary of the gift) filed a suit on 24.02.2011 seeking cancellation of mutation No. 600 dated 29.04.1998, recorded as a gift in favor of her brother (respondent/defendant) and alleged that the gift mutation was obtained fraudulently and without knowledge, consent, or valid intention of their deceased father

It was contended by the petitioner that after their father's death, the petitioner trusted her brother's assurance that her share had been included in an inheritance mutation; that she accepted small payments under the impression they were her share of the property income; that upon facing financial hardship and requesting to sell her share, the brother refused and she discovered the alleged mutation of gift; that she had no knowledge of such a gift, asserting it was forged and not in accordance with law

It was the case of the respondent that his claim was firmly anchored in lawful entitlement under a gift dated 18.04.1998 from his father which was made during his life

He alleged that all requirements of a valid gift (offer, acceptance, and delivery of possession) were fulfilled

Held: Present case was a typical case where a woman was deprived of her rightful inheritance under the pretense of an alleged oral gift made by the deceased father to her brother

Such claims were often used by male heirs to exclude female relatives, prompting courts to remain vigilant against fraudulent practices involving oral gifts, which were frequently employed to deny women their legal entitlements

The essential legal requirements for validating such transactions, by now, have been firmly established in our jurisprudence and require no further elaboration

While juxtaposing the facts of the case in hand, High Court was of the opinion that both the courts below had acted illegally and with material irregularity while exercising jurisdiction

The respondent as the principal beneficiary and direct participant in the purported gift was the most vital witness to establish its essential elements, yet he conspicuously chose not to appear before the court, offering no reasonable justification for his absence, and instead relied on the testimony of his son, "TS" (DW-7), who appeared merely as his attorney

In the facts and circumstances of the case and in view of the unequivocal position in terms of Art. 129(g) of the Qanun-e-Shahadat, 1984, it did not behoove to reason as to how such fatal and inherent defect escaped the attention of both the Courts below

Respondent/defendant's son was in no position to testify on behalf of his father regarding offer and acceptance of gift

The written statement filed by the defendant/respondent did not find mention the presence of DW-7 on the alleged occasion of oral gift, thus, the mandatory ingredients of offer of gift by the donor and acceptance thereof by donee, had gone abegging in this case

Therefore, non-appearance of defendant/respondent was an incurable defect in his quest to prove the gift

Concurrent findings of the courts below fell within the exception of interference for exercising revisional jurisdiction of the court and the same were therefore set aside

The civil revision was allowed and the suit filed by the petitioner (plaintiff) was decreed as prayed for.

In our society there has been an unstoppable bent to invent grotesque devices conceived to deprive daughters, sisters, mothers, widows, orphans etc of their share of inheritance; the 'Oral Gift' being the most fancied of all, employed by unscrupulous male members of the family

It is for this reason that there is overwhelming settled jurisprudence in this country to arrest all such emblems of frauds, forgery, impersonations and uncalled for persuasions, nevertheless, the menace continues

The threshold tests of such transactions are now etched in our jurisprudence as tablet of stone, hardly requiring any further quest, however, if one needs reiteration, following principles be strictly adhered to, particularly in the context of the case in hand: (i) Beneficiary of the impugned transaction of gift/transfer of immovable property(s) bears the heavy onus to prove the transaction; (ii) The beneficiary of a gift has to plead and prove three mandatory ingredients of gift i.e. declaration/offer by the donor, acceptance of gift by the donee; and, delivery of possession under the gift; (iii) The possession of immovable property by one of the siblings/LRs to the exclusion of others will be treated as constructive possession on behalf of all others, unless proved otherwise ; (iv) In case of oral transactions, it is mandatory for a beneficiary of oral transaction to prove the same through positive evidence by supplying mandatory material particulars in the pleadings i.e. the time and date, the venue, and the persons/witnesses in whose presence the alleged transaction was brought about; (v) The oral transaction of transfer of immovable property, be it sale, gift/tamleek, surrender or will etc. has to be proved separately from its incorporation/attestation in revenue record by way of sanctioning of the mutation since a mutation cannot by itself be considered a document of title; (vi) Where a gift, which excluded a legal heir, irrespective of whether such transaction is evidenced by registered deed, the donee is required to prove original transaction and must justify the disinheritance of a legal heir from the estate; (vii) Parties are bound by their pleadings; no amount of evidence can be led beyond the scope of pleadings; and in case any such evidence is brought on record, the Court cannot consider and rely upon the same and has to discard it; (viii) Mere efflux of time does not extinguish the right of inheritance, thus, the question of limitation in case of inheritance and fraud is not attracted and becomes insignificant.

Where in his lifetime donee did not challenge the validity of gift, his successors would be precluded to throw any challenge to such transaction on the principle of acquiescence and estoppel

Gift mutation was sanctioned in the year 1962 and the donor though remained alive till 1969, but he did not challenge the gift in favour of his son/donee

Petitioners were claiming right in the suit land being successor-in-interest/another son of donor, who too remained alive till 1978, but never challenged the gift, thus, petitioner were precluded to dispute the gift mutation on the ground of estoppel.

Oral gift has two parts i.e. firstly the fact of the oral gift which has to be independently established by proving through cogent and reliable evidence the three necessary ingredients of a valid gift and secondly mutation on the basis of an oral gift has to be independently established and proved by adopting procedure provided in the Land Revenue Act, 1967 as well as the evidentiary aspects of the same in terms of the Qanun-e-Shahadat, 1984

Petitioner could not lead any cogent, strong, unimpeachable and confidence inspiring evidence with regards to first part of alleged oral gift

Matters pertained to inheritable property, so the petitioner being alleged done was under heavy burden to prove valid execution of oral gift because he could not take benefit of the shortcomings in the evidence of respondents, rather he had to stand on his own legs

Civil revision was dismissed, in circumstances.

Respondents (plaintiffs) had sought a declaration regarding the Memorandum of oral gift and its cancellation was also prayed for

It was pleaded in the plaint that respondents were in possession of the property and that they had been dispossessed; that after the filing of the suit for partition, the Memorandum was fraudulently prepared so as to deprive the appellants of their hereditary rights; and that the Memorandum was fabricated

Validity

Plain reading of the plaint showed that the assertion of fraud was of a general nature and the particulars thereof had not been stated

Initial burden to prove that the Memorandum of gift was forged and fabricated was on the respondents

During the trial, the initial burden of proving the factum of fraud or fabrication could not be discharged by the respondents

There was no reference in the plaint to the oral gift made in the year 1962 and, therefore, an issue in this regard had not been framed

Respondents were also not able to establish that at any time during or after the lifetime of the predecessor-in-interest they had remained in possession of the property let alone having been dispossessed

It was not disputed that the transfer of shares by the Housing Society in the name of the appellants (defendats) was not challenged by the respondents

It was also not disputed that the appellants were minors when the oral gift was made in their favour by the predecessor-in-interest in 1962

Furthermore the respondents had made a reference to the property having been gifted in favour of the appellants in their earlier suit filed for seeking partition

Appeal was allowed, impugned judgment of the High Court was set-aside, with the consequence that suit filed by respondents was dismissed.

Transfer of Property Act, 1882, has no application to the gift envisioned and encapsulated under the Muslim Law and for this reason, Sections 123 and 129 of the Transfer of Property Act can neither surpass nor outweigh or preponderate the matters of gifts contemplated under the Muslim Law

However, the donor should be of sound mind and understand the legal implications of making the gift, free from any coercion, duress, or undue influence

Under the Muslim Law, the constituents of a valid gift are tender, acceptance, and possession of property

Muslim can devolve his property under Muslim Law by means of inter vivos (gift) or through testamentary dispositions (will)

Islamic law does not make any distinction between movable or immovable property regarding the conception of gift, rather any property may be gifted by any person having ownership and dominion over the property intended to be gifted on fulfilling requisite formalities.

Plaintiff filed a suit for declaration, cancellation and permanent and mandatory injunction pleading that the defendant being his younger brother, was resident of United Kingdom and asked him to execute registered gift deed of the subject as he was required to show some financial as well as monetary strength, therefore, gift deed of house was got registered

Subsequently, after 20 years of gift deed when defendant tried to get the property transferred in his name in the Cantonment record on the basis of gift deed, he filed the suit

Defendant thereafter after more than one year of filing of the plaintiff's suit filed his own suit for possession of the house

First Appellate Court decreed the suit for possession filed by the defendant, which decree was maintained by the High Court

Validity

Admittedly, plaintiff and thereafter his legal heirs were in possession of the suit property till date

Gift deed was unilateral whereas mother of the donor (plaintiff) and alleged donee (defendant) was a witness to the said document

Defendant was admittedly not available in Pakistan at the time of preparation and registration of the said gift deed, therefore, no question of acceptance and offer of gift as well as delivery of possession in favour of donee/defendant arose

Mother was not produced by either of the parties

Defendant pleaded that the suit property was purchased from the funds provided by him sent from United Kingdom in the account of the mother of the parties, however there was no documentary proof available on record to such effect

Though the gift deed was a registered one but the ingredients of a valid gift mentioned in section 149 of Mahomedan Law by D.F Mulla were not fulfilled, therefore, the plaintiff who challenged the gift deed and prayed for cancellation thereof was entitled to a decree

Petitions for leave to appeal were converted into appeals and allowed, suit filed by plaintiff was decreed; the gift deed stood cancelled, therefore, the decree granted to the defendant by the first appellate court and maintained by the High Court was not sustainable under the law.

Respondents/ plaintiffs were legal heirs of deceased owner of suit property which was mutated in the name of defendant on the basis of gift allegedly made in favour of his predecessor-in-interest

Trial Court and Lower Appellate Court concurrently decided the matter in favour of respondents / plaintiffs

Validity

To prove gift, it was incumbent to allege and prove three mandatory ingredients; declaration of gift; acceptance of gift; and transfer of possession of property

It was also necessary to specifically mention time, place and names of persons in whose presence such pre-requisites were performed

Neither such ingredients were mentioned in written statement nor were proved in evidence of defendant

No gift was made by deceased owner of suit land during his lifetime, in favour of predecessor-in-interest of defendant

Execution of power of attorney or existence of any authority therein of making gift of property of deceased owner was not proved by defendant

Suit property devolved upon legal heirs of deceased owners on opening of succession in accordance with Islamic shares, as subsequent mutations in favour of defendant were illegal, a result of fraud, void ab initio and ineffective in law

Second appeal was dismissed, in circumstances.

Respondents/plaintiffs produced 04 witnesses, who categorically supported their version that donor expired prior to the execution of the impugned oral gift

Inquiry report also reflected that the date of death as claimed by the petitioners/donees being beneficiaries of an oral transaction, was recorded in the relevant record by the petitioners after a gap of more than 10 years challenging already existing entry related to death recorded by the respondents, which raised serious doubt about veracity thereof

In case the statement of scribe of inquiry report had not been recorded in the suit of respondents, matter could be examined from another angle without placing any reliance on the said inquiry report and taking benefit from the same that a mutation by itself does not create any title unless it can be substantiated to be backed by a valid transaction more particularly if the transaction was in the nature of Hiba depriving legal heirs of the donor

Petitioners were not real paternal grandsons of the donor

Details were conspicuously absent as neither the time of offer and acceptance of the gift had been mentioned in the written statement nor any witness had been produced in support of the said contentions

Petitioners failed to prove necessary ingredient of the oral gift depriving the respondents, who were admittedly legal heirs of the donor

Revisions were dismissed accordingly.

Pre-requisites of a valid gift are: (i) offer by the donor; (ii) its acceptance by the donee; and (iii) the delivery of possession

Valid gift comes into existence as soon as the three ingredients are completed.

Record suggested that upon the oral gift, the mutation in question was effected by the donor in the name of the donee/respondent

Subsequently in a suit for possession through right of pre-emption filed by the donor's niece against the respondent, the donor appeared before the court and made a statement under oath, acknowledging that he gifted the disputed property to the respondent and thereafter transferred it to the name of the respondent in the revenue record through the mutation in question

Trial Court held that the respondent was in possession of the property and had declared that it was a result of a valid gift

Said judgment had attained finality and had not been challenged by the donor or his successors till date

Donor's statement in the pre-emption suit before the competent court of law proved his bona fide intention, free will, and consent and thereby, confirmed the execution of a valid gift and acceptance of the mutation in question in the previous litigation

Revenue record reflected that the donor himself appeared before the revenue authorities and signed the mutation in question in presence of the revenue authorities and the witnesses

Declaration of gift by the donor gathered strength by the civil transaction between him and the respondent with regard to transfer of the property through the mutation in question

Under such circumstances, the donor could not resile from his deeds, hence, was estopped to challenge the validity of the gift on any ground

Statement of the donor before the Trial Court in the present proceedings revealed that he did not say anything with regard to fraud as alleged by him in the plaint, nor had he produced any evidence in this behalf, as such, the donor was unable to prove the allegation of fraud

In such circumstances successors of the donor were not entitled to seek cancellation/revocation of the valid gift

Appeal filed by successors of the donor was dismissed.

Precondition for revocation of a gift as provided by section 167 of the Muhammadan Law is that it can only be revoked before delivery of possession

It implies that despite declaration of gift by the donor and its acceptance by the donee, the donor may change its mind and may not complete the gift by not delivering the possession.

In the present case, apart from the admission of the objecting-son (respondent-plaintiff) regarding the possession of the disputed gifted property with the appellant-sister (donee), there was no reliable evidence to prove the actual transaction of an offer made by late donor and the same being accepted by his sister (alleged donee), so as to constitute a valid gift being made

In fact, the evidence so produced by the appellant-donee was essentially relating to the steps taken after the alleged oral gift was made, and in particular, the recording of the said gift in the revenue record

When the basic foundation of a fact was lacking, no legal superstructure could be built thereon

Though the effort was made to prove the entry of the gift being recorded in the revenue record, but proving the same could never substitute evidence to prove the essential ingredients of the original transaction of gift made by late donor to his sister (alleged donee)

Respondent failed to prove the instrument of gift mutation in line with the requirement of Article 79 of Qanun-e-Shahadat, 1984, as she examined only one witness of subject gift mutation, instead of two

Furthermore neither the concerned Revenue Officer or the Halqa Patwari were produced nor any effort was made for them to be produced through a court order

Original record of the mutation and Rapt Roznamcha was also not produced in the court to establish the genuineness of the mutation

Said deficiencies were enough to discredit the impugned mutation

In the instant case, there was no evidence produced by the appellant to substantiate her claim of receiving a valid gift of the disputed gift property from her deceased brother

Appeal was dismissed.

Generally, the Courts follow a liberal approach towards evidence produced to prove the essential ingredients for a lawful gift, when it relates to one being gifted to a woman or minor child and that too by a close relative.

Respondents/donees had substantiated the fact of tamleek through cogent evidence in the form of the revenue record and witnesses produced before the Trial Court

Furthermore the suit of appellants was badly barred by time as the mutation in dispute was executed on 29.12.1981, whereas the suit was filed with a delay of almost 15 years on 3.5.1997

Appellant had no locus standi to challenge the legality of the (gift) mutation on a vague allegation of fraud when the donor had never challenged the same in her life time and the mutation had been given effect in the revenue record

Suit for declaration and permanent injunction filed by appellants was rightly dismissed

Appeal was dismissed.

Neither the gift deed (primary evidence) nor a certified copy thereof (secondary evidence) was produced by the appellant and instead a photocopy of the sub-registrar's register was produced, and on this the appellant's claim of the purported gift was based

Incidentally, neither the sub-registrar nor any officer/official from his office was produced/summoned by the appellant to testify that the photocopy which was produced was a true/certified copy from the said register

Appellant did not produce any tangible evidence of the purported gift, let alone to have established it

On the basis of a document which had no legal significance the appellant sought to deprive his mother and sister of their inheritance

Regarding the gift mutation entry made in the revenue record, if the revenue authority had changed the revenue record on the basis of a photocopy of the register maintained by the sub-registrar, they did not act in accordance with the law; they also did not issue notices to the heirs of to consider any objection that they may have had

Appellant fraudulently deprived the legal heirs of their share in the inheritance and then sought to reinforce the fraud by getting the revenue record changed and this was facilitated by the land revenue authority

In depriving the other legal heirs the appellant acted dishonestly, illegally and violated Qur'anic injunctions

Appeal was dismissed with costs throughout and also special costs in the amount of Rs.500,000 (five hundred thousand rupees) imposed on the appellant as the defence taken by him was vexatious and false, with the direction that if costs were not paid the same shall be recovered as arrears of land revenue from the appellant, and till costs were paid they shall continue to constitute a charge on the estate of the appellant.

Donor can gift orally.

Respondents/plaintiffs were daughters of deceased owner of suit property who assailed mutation attested in favour of petitioners/defendants which was attested on the basis of oral gift by their father

Suit was decreed by Trial Court in favour of respondents/plaintiffs but Lower Appellate Court decreed the same

Validity

No evidence was available on record as to why father had deprived his daughters from legacy at the time of his extreme old age

No evidence existed on record that plaintiffs/daughters were unsound or disobedient to their father which had compelled him to deprive them from their share in inheritance

Though donor was free to gift his whole or part of property to anyone of his choice but when some legal heirs were deprived, it was imperative upon the beneficiary to bring a motive for depriving them from their due share

Mere transfer mutation was not proof of valid gift, which had to be proved independently

No witness of oral gift was produced in whose presence property was orally gifted to petitioners/defendants

High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court

Revision was dismissed accordingly.

Ingredients of a valid gift provided under the Islamic law are; declaration of gift by donor; acceptance of gift by donee; and delivery of possession.

Petitioner also filed a suit for declaration with permanent injunction against the respondents and sought cancellation of gift deed alleging that same was obtained through fraud

One of the respondents made an application under O.XII, R. 6, C.P.C. before Trial Court for passing a judgment and decree in her favour

Trial Court dismissed the said application

Appellate Court directed the Trial Court to decide the contention of respondent

Trial Court decreed the suit of respondents

Held, that in case in hand there was no denial to the factum that the disputed house was owned by "S.A.", deceased father of the parties, who gifted out the same to the respondent through gift deed

When respondent instituted a suit for declaration, on refusal of her entitlement, father of respondent i.e. "S.A.", the donor ,appeared before Trial Court and in a categorical and unambiguous way recorded his detailed statement on oath in favour of respondent and the Trial Court had reproduced the said statement of deceased "S.A." in the impugned judgment in verbatim

In case in hand "S.A.", father of the parties appeared before the Trial Court and after recording his categorical detailed statement, he again appeared in presence of counsel for the parties and the Trial Court, on the said date, cross questioned him in order to ascertain his mental condition and soundness of his mind

Observation regarding the mental soundness of "S.A." recorded by Trial Court had not been challenged before any forum at the relevant time and even the petitioners did not move any application before the competent forum under Mental Health Ordinance, 2001, seeking declaration of unsoundness or soundness of "S.A.", because oral substance had no value, especially when the said person while appearing before the Trial Court twice on different dates with a gap of almost two years, did not seem to be of unsound mind

Statement of "S.A." in a categorical manner stated that he was affectionate and kind father towards his children and he had already transferred valuable properties in the names of his sons and daughters and had gifted out the disputed house in lieu of services to his widowed daughter "G.A."/plaintiff

Such part of statement of the deceased "S.A." had not been denied by the present petitioners or other respondents

Civil revision was dismissed, in circumstances.

In case in hand, objection regarding the registered gift deed having been written on a non-stamp paper and adhesive stamps were pasted was concerned, after admission on the part of the donor deceased "S.A." by appearing before the Trial Court, the said objection losts its significance

Civil revision was dismissed, in circumstances.

Suit for declaration was filed by the respondent alleging that her father/deceased was paralyzed and was living with the petitioner (only son), hence, the deceased was under the influence of the petitioner and she sought 1/5th share out of the estate of her father

Suit was concurrently decreed

Petitioner contended that Appellate Court had not complied with the rules for passing the judgment in appeal and violated the rules framed under O. XLI, C.P.C.; that both the Courts below had not determined the time of deceased's death and also had not considered the statement of witness who categorically stated that the deceased had died about 07 years after attestation of impugned gift mutations; that no particular fraud was pointed out; that question of misrepresentation / non-delivery of possession had not been challenged/ proved; that the deceased predecessor was not suffering from any disease and he was not mentally paralyzed; and that entries of mutations were duly incorporated in record of rights

Validity

First appellate court had discussed all the relevant factors which were available in the evidence of the parties even the documents had been discussed by the first Appellate Court while deciding the point of controversy in between the parties

Appellate Court had to decide the controversy between the parties and there was no need to decide each and every issue by the Appellate Court

Where Appellate Court recorded its findings on all the points raised before it without discussing the issues separately, it could not be said to have committed any illegality/error

Appellate Court had critically examined all the evidence on record, i.e. oral/ documentary evidence and had recorded the judgment on the basis of the same

Appellate Court had appraised the mandate of law, thus, the impugned judgment was qualified to be called "judgment"

As fraud had been alleged, it was the responsibility of the petitioner being beneficiary to prove that whether gift mutation was validly sanctioned

Respondents were real sisters of the petitioner and were privileged for being Parda Nasheen ladies

Lady who claimed to be illiterate appeared in witness box which fact was also admitted fact on record

Lady was detained in the house and was recovered on the order of the court

No explanation for such detention was provided by the petitioner and inference could be drawn that she was illegally detained, in order to prevent her from filing/agitating her claim

Proof of delivery of possession under the said mutation had not been brought on record

Revision petition was dismissed accordingly.

When sanctity of gift was challenged or called into question, especially on the basis of fraud and misrepresentation, beneficiary not only had to prove valid execution of gift deed or mutation but also the original transaction

Owner of a portion of suit property was not impleaded as party to the suit and was not provided with an opportunity to defend himself

No adverse order could be passed against such owner as it would amount to condemning him unheard

Free and fair opportunity of defending and presenting one's case was to be provided

High Court declined to interfere in judgments and decrees passed by two Courts below as no illegality and irregularity was committed

High Court in exercise of revisional jurisdiction under S. 115, C.P.C. could not disturb concurrent findings of facts by two Court below when the same did not suffer from any misreading or non-reading of evidence

Revision was dismissed, in circumstances.

Respondents/plaintiffs claimed to be owners of suit property and alleged that mutation on the basis of oral gift made by them in favour of petitioner/defendant was result of fraud

Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondents/plaintiffs

Validity

In case of oral gift, onus was always on donee to prove through cogent and concrete evidence that donor made gift to him voluntarily, without duress and with all senses, he had accepted the same and possession was delivered to him towards completion of that transaction

If any of such ingredients/component was missing, claim of gift was rejected

When respondents/plaintiffs deposed that they did not appear before revenue officer for attestation of mutation and gift was not made by them, onus was shifted upon petitioner/defendant as beneficiary to prove attestation of mutation as well as transaction reflected therein

Respondents/plaintiffs were Pardahnashin, illiterate, advanced aged, simpleton village ladies and their valuable rights in suit property were going to be transferred

Extraordinary precautions and special care was to be taken to safe guard rights of a weaker limb of the society

Petitioner/defendant was beneficiary of mutation in question and he was bound to prove gift transaction through trust worthy, believable, unimpeachable affirmative evidence but he failed to dislodge such mandatory burden

High Court declined to interfere in judgment and decree passed by Lower Appellate Court

Revision was dismissed, in circumstances.

Three important prerequisites for a valid (oral) gift are an explicit offer of gift by donor; acceptance of the gift by the donee; and voluntary delivery of possession to the donee under the very oral gift transaction

Said ingredients are mandatory in nature and absence of proof of any ingredient renders the very gift transaction as invalid.

When the petitioner-lady had categorically stated that fraud has been committed with her to deny her inheritance share in her father's estate, onus was shifted upon the beneficiaries/ respondents/ defendants to prove validity of oral gift as well as the gift mutation by describing meticulously details of day, date, time, venue, presence of witnesses as well as making of gift, offer and acceptance and delivery of possession in the pleadings (written statement) whereafter such asserted fact should have been necessarily proved through corroborative, affirmative and trustworthy evidence

Perusal of the written statement showed that the respondents / defendants neither furnished the requisite details in their defence regarding date, time, place of gift nor proved the making of any offer of gift and acceptance of the same by them or on their behalf, as such they had failed to prove the oral gift transaction of the suit land as well as the valid incorporation of the impugned oral gift mutation in the revenue record

Such material flaw dismantled the very foundation of the stance of the respondents/defendants

Respondents /defendants tried to deprive the petitioner from her legal share in the estate of her deceased father by committing fraud and got entered the alleged gift mutation in their favour

Revision petition was allowed and suit for declaration filed by the petitioner-lady was decreed.

Even otherwise, in the present case the said two witnesses had not been produced in the witness box and it had been deposed that both of them had expired but no proof in the shape of their death certificates had been brought on record by the plaintiff/alleged done

Even if they had appeared in the witness box, non-pleading of their names in the plaint would have come in their way and would have caused impediment in recording their depositions as witnesses

So far as the execution of acknowledgment deed (of the alleged oral gift) was concerned, its witnesses were the same two witnesses of the alleged oral gift

When the said two witnesses had not been produced in the witness box along with the revenue officer, who allegedly recorded statement of alleged donor, a serious dent with regards to authenticity of the acknowledgment deed had been caused

Appeal was allowed and suit filed by plaintiff/alleged donee was dismissed.

Perusal of the plaint reveled that it did not provide description of making of offer and acceptance of the same by the plaintiff/alleged donee as well as names of witnesses, in whose presence such transaction took place, which were necessary to be pleaded and proved

Furthermore, submission of contesting written statement on behalf of the alleged donor along with the other defendants negating the making of alleged oral gift as well as execution of acknowledgment deed put a heavy burden upon the plaintiff/alleged done to prove the same by producing strong and unimpeachable evidence but he miserably failed to do so

In addition to this, the alleged oral gift was with regards to 8-Kanals 12-Sq.Ft. of the land but the acknowledgment deed of the gift mentioned only 8-Kanals

Moreover, the possession of the disputed property was also not with the alleged plaintiff/alleged donee

Appeal was allowed and suit filed by plaintiff/alleged donee was dismissed.

Basic ingredients for a valid gift are, offer, acceptance and delivery of possession.

In such a case the donee is under heavy burden to prove valid execution of oral gift and subsequent acknowledgement deed, because he cannot take benefit of the shortcomings in the evidence of defendants, rather he has to stand on his own legs.

When the validity and correctness of a gift transaction is challenged, it becomes mandatory and essential for the beneficiary to prove the valid execution of the same.

Acceptance may be implied in certain circumstances, for instance, by simply saying thank you or by some other act signifying acceptance, such as a nod of the head.

To constitute a valid gift, it is settled that three essential ingredients must exist; first, declaration of gift; second, acceptance of the gift, and third, delivery of the possession of the subject of the gift.

In the present case the gift transaction recorded in the impugned gift mutation appeared to be reasonable and natural in the facts and circumstances of the case; where a father (donor), whose son had contracted a second marriage, transferred some of his property to his first daughter-in-law (donee), who also happened to be his niece, and to his granddaughters (donees) to ensure their financial security, out of his love and affection for them

Impugned gift mutation was held to be valid

Appeal was partially allowed.

Brother depriving his sisters of their share in inheritance through a purported gift of immoveable property made by their father

Violation of laws of Almighty Allah

In the present case, perusal of the gift/tamleek mutation showed that acceptance of the gift by the appellant (brother) was not mentioned

Alleged donor/father of the parties had made the said gift the very same day that he died

Burden to establish the gift lay upon the appellant, which he failed to discharge and the fact that it was made by his father on the very day that he died made it extremely suspect and unreliable

Sisters themselves had filed the suit in their lifetime, which was sufficient to sustain it

High Court had rightly decreed the suit filed by the sisters challenging the gift/ tamleek mutation

Appeal was dismissed with the observations that it was a matter of great regret that the laws of Almighty Allah and the law of the country was not abided by the appellant, who brought forth a fictitious gift in his favour by depriving the legal heirs of their respective shares as prescribed by Islamic Shari'ah and on the basis of such manipulation the appellant managed to remain in possession till date, that is, after a period of almost thirty-eight years.

Male heirs (brothers) resorting to a purported gift deed to deprive female heirs (sisters) from their share of inheritance

Held, that in the present case the gift was stated to have been witnessed by three persons, and even if it be accepted that two of the said witnesses had died by the time the evidence was recorded, the third witness, was alive but he was not brought to testify as a witness in support of the gift, therefore, an adverse presumption may be drawn that if he did come to testify he would not have supported the gift

Furthermore only one of the two donees (sons) testified in support of the gift and the other donee, did not do so nor did he execute a power of attorney in favour of his brother, authorizing him to give evidence on his behalf

Purported donor of the gift was also not identified as required by S. 42(7) of the Punjab Land Revenue Act, 1967, therefore, it could not be said that the person who was presented before the Revenue authorities was the donor

Purported gift also suffered from the defect of non-acceptance by donees and the further defect of not mentioning that the possession of the land allegedly gifted was handed over to the donees

Resultantly, gift mutation in favour of the brothers, was set aside and declared to be of no legal effect

Supreme Court directed that the estate in question shall be distributed amongst all the legal heirs in accordance with the applicable Muslim laws of inheritance; that the concerned Revenue authority shall incorporate the names of the legal heirs in the revenue record and if the brothers had sold/transferred any portion of the land to any third party the sisters' shares shall be adjusted from their brothers' available shares.

In the present case, the sisters had never gifted their inherited property to their brother (defendant) but the brother fraudulently prepared the gift deed in his favour and, further, got the thumb impressions of his sisters on blank paper through fraud and misrepresentation

Donors (sisters) were not aware as to which type of document they were going to sign but, taking advantage of their illiteracy, their brother managed the execution of the gift in his favour

Nothing was brought on the record to prove that any disinterested, neutral or nonaligned person read over the indenture of the gift to the illiterate and Pardanashin ladies

One of the sisters also took the stance that there was no occasion to give the property to her brother in the presence of her own children

Revenue Officer, Sub-Registrar and Patwari Halqa were not brought into the witness box to testify whether the transaction of gift was true or a sham

Further, the Petition-Writer and the stamp vendor were also important witnesses but were also not brought to the witness box

All the Courts below categorically recorded the finding that the transaction of gift was not proved

Petition for leave to appeal was dismissed and leave was refused.