2003 S C M R 1920

[Supreme Court of Pakistan]

Present: Sheikh Riaz Ahmad, C.J., Sardar Muhammad Raza and Faqir
Muhammad Khokhar, JJ

MUHAMMAD KHAN and others‑‑Petitioners

Versus

AMIRAN MAI through Legal Heirs‑‑‑Respondent

Civil Petition No. 1447‑L of 1999, decided on 1st July, 2002.

(On appeal from the judgment, dated 10‑5‑1999 passed by the Lahore High Court,
Lahore in Civil Revision No. 1240 of 1993).

Specific Relief Act (I of 1877)‑‑‑-

‑‑‑‑S. 42‑‑‑Contract Act (IX of 1872), S.14‑‑‑West Pakistan Land Revenue Act (XVII
of 1967), S. 42‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for
declaration‑‑‑Plaintiffs as sisters of defendants challenged mutations of gift got
sanctioned by brothers (defendants) in their favour to be fraudulent and illegal‑‑‑Suit
decreed by Trial Court was upheld by Appellate Court and by High Court in revision‑‑
Validity‑‑‑Deceased donor according to defendants' evidence was of 90 years age at
relevant time‑‑‑Other witness was not witness to the mutations ‑‑‑Tehsildar, who
sanctioned mutations, while appearing as witness had denied to know the donor
personally‑‑‑Defendant while appearing as witness had not stated that there was any
special reason or service rendered by them for which donor had gifted away property in
their favour‑‑‑Donor was in complete control, custody and influence of
defendants‑‑‑Defendants had failed to prove all the three ingredients of gift i.e.
declaration, acceptance and delivery of possession of property‑‑ Mutations of gift were
meant to deprive sisters of their Islamic shares‑‑ Such contrivance on the part of
brothers had to be discouraged by Courts‑‑‑Courts below were justified in taking view
that deceased could not be said to have exercised his will, freely‑‑‑Impugned
judgments and decrees did not suffer from any legal or factual infirmity‑‑‑Supreme
Court dismissed petition.

Muzher Ali v. Mst.Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

Allah Wasaya Malik, Advocate Supreme Court with Muhammad Aslam Chaudhary,
Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 1st July 2002.

JUDGMENT

FAQIR MUHAMMAD KHOKHAR, J.‑‑‑The petitioners seek leave to appeal

against the judgment, dated 10‑5‑1999 passed by the Lahore High Court in Civil
Revision No. 1240 of 1993.

2. Briefly stated, the facts of the case are that Mst. Amiran Bibi deceased, (the
predecessor‑in‑interest of respondents Nos.1 to 12) and Mst. Sheedan Mai, the
respondent No. 13, filed a suit for declaration and permanent injunction against the
petitioners and respondent No.14 in the Court of Senior Civil Judge, Bhakkar. It was
averred in the plaint that they being daughters of Hakim Khan deceased were his legal
heirs alongwith the petitioners and their mother, the respondent. The deceased Hakim
Khan was owner of land measuring 504 Kanals. The petitioners fraudulently and
illegally got two Mutations Nos.658 and 662 of gift of the land measuring 388 Kanals
and 4 Marlas sanctioned on 7‑8‑1989 and 30‑8‑1989 in their favour purportedly made
by the deceased Hakim Khan. It was pleaded that the plaintiffs were entitled to be
declared owners of 67 Kanals and 8 Marlas out of the said land of 388 Kanals, and 4
Marlas being 1/5th of the 7/8th share as legal heirs of Hakim Khan deceased. The civil
suit of the plaintiffs Mst. Amiran Mai deceased. and Mst. Sheedan Mai was decreed in
their favour, on 8‑3‑1993, by the Civil Judge II Class, Bhakkar. The appeal and civil
revision filed by the petitioners and respondent No. 14 were dismissed by the District
Judge, Bhakkar and the Lahore High Court, Lahore on 29‑5‑1993 and 10‑5‑1999
respectively. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that all the Courts acted illegally in
giving preference to the entries of Khasra Girdawri to which no presumption of
correctness was attached. The Courts misread the evidence‑ on record that there was no
delivery of possession of the suit property under the oral gift. It was further contended
that the delivery of possession was not essential in the case of a gift of the land by the
father in favour of his sons the petitioners, when all of them were living together. There
was also misreading of statement of the Assistant Collector in regard to the appearance
of Hakim Khan at the time of sanctioning the mutations in the presence of other
witnesses. The entries of mutations were sufficient to prove the offer and acceptance of
gift of the property. It was lastly contended that Issue No.3 regarding the Mutations
Nos.658 and 662 as being fictitious, collusive and ineffective qua the rights of the said
plaintiffs had not been proved by any reliable evidence. Similarly, the plaintiffs had
failed to discharge the onus of proof on Issue No.4 that they were the legal heirs of
deceased Hakim Khan and were entitled to their share of inheritance.

4. We have heard the learned counsel for the petitioners at some length. All the Courts
recorded concurrent findings of fact that the plaintiffs had succeeded in proving Issue
No.3 that the gift by Hakim Khan deceased was p inchoate and mutations of gift had
been wrongly sanctioned in favour of the petitioners. Rab Nawaz D.W.1 admitted that
at the relevant time Hakim Khan deceased was of the age of 90 years. Muhammad
Ishaq, Naib Telisildar/Assistant Collector who sanctioned the mutations appeared as
P.W.2 and stated that he did not know Hakim Khan deceased personally Ghulam Abbas
D.W. was not a witness to the mutation (Exhs. D1 and and D2). The petitioner No.1
Muhammad Khan appeared as D.W.5. He did not state that there was any special
reason or service for which Hakim Khan deceased gifted away the property in favour
of the petitioners. Deceased Hakim Khan was in the complete control, custody and
influence of the petitioners. The Courts were justified in taking the view that the said
deceased could not be said to have exercised his will freely. The learned counsel for the
petitioners failed to point out any misreading or non‑reading of material evidence on
record. The Lahore High Court also took the correct view that the petitioners had failed
to establish all the three ingredients of a valid gift i.e. declaration, acceptance and
delivery of possession of the property. The Exh.D3 tendered in evidence by the
petitioners showed that Hakim Khan had died at a fairly advanced age. From the facts
and circumstances of the case, it seems that the mutations of gift were meant to deprive
the plaintiffs of their Islamic right of inheritance. Such a contrivance on the part of the
petitioners had to be discouraged by the Courts whereby their sisters were deprived of
the rights of inheritance of property. Reference may usefully be made to the case of
Muzher Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). The impugned judgment
does not suffer from any legal or factual infirmity so as to call for any indulgence by
this Court.

5. We do not find any merit in this petition which is accordingly dismissed.

S.A.K./M‑559/S Petition dismissed.
;