MAULVI ANWARUL HAQ, J.--- Admittedly, the last male owner ,of the suit-land, mentioned in the plaint, was Ali Ahmad, who died on 28-9-1984. The suit-land devolved upon his widow Mst. Alam Bibi respondents Nos.2, 5 daughters i.e. The petitioners and respondents Nos.3 and 4 and a son Ramzan i.e. Respondent No.1. On 25-4-1990 the petitioners filed a suit against the respondents.
According to them, they had inherited the land from their father and while they were married and living in different districts, the respondent No.1 used to look after the land and has been paying them their produce share. One month prior to the suit, he refused to give the share, They made inquiries and it revealed that the inheritance mutation was attested on 15-10-1984. Therefore, a. Gift Mutation No.532 was attested on 4-11-1984 whereby the land was mutated in favour of respondent No.2 and then on 19-11-1984 Mutation No'.536 was attested whereby the respondent No.2 gifted away the land to respondent No. 1. They denied having ever gifted away the land to their mother or to respondent No.1 or to have transferred possession. The respondents Nos.1 to 4 in their written statement denied the said allegations and pleaded a valid gift in favour of the respondent No.2 and consequently in favour of the respondent No.1. Following issues were framed by the learned trial Court:--
(1) Whether the suit is within time'? OPP
(2) Whether the suit is not maintainable in its present form in view of preliminary objection No.2 of the written statement? OPD
(3) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? OPD
(4) Whether the suit is based on mala fide and the defendants are entitled to special costs under section 35-A of the Code of Civil Procedure? OPD
(5) Whether the disputed Mutation No.536 dated 19-11-1984 in respect of Tan-deck allegedly made by Mst. Alam Bibi in favour of Ramzan her son cannot be challenged? OPD
(6) Whether the disputed Mutations Nos.532, 536 and 462 were validly sanctioned in favour of defendants Nos. 1 and 2? OPD
(7) If issue No.6 is petitioner proved in affirmative whether the dispute mutations are result of fraud, forged, illegal, void, without jurisdiction, ineffective, and inoperative qua the rights of the plaintiffs'?
OPP
(8) Relief.
Evidence of the parties was recorded. The suit was dismissed by the learned trial Court on 14-10- 1992. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge, Sahiwal, on 26-3-1995.
2. Learned counsel for the petitioners contends that the learned Courts below have grossly misread the evidence on record while passing the impugned judgments and decrees. According to him, the impugned judgments are violative of the law declared by the Honourable Supreme Court of Pakistan in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. Learned counsel for the respondents, on the other hand, with reference to the cases of Abdul Mateen and others v. Mst. Mustakhia 2006 SCM R 50; Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCM R 1278 and Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCM R 911 contend that the learned Courts below have acted within their domain while passing the impugned judgments and decrees and that this Court could not interfere in exercise of its revisional jurisdiction. According to them, sufficient evidence has been led to prove the factum of transfer of land by the petitioners-ladies in favour of their mother and ultimately to their brother.
3. I have gone through the copies of the records. I have already reproduced above the respective pleadings of the parties. It will be seen that the petitioners having admittedly inherited the property of their father, it was for the respondent No.1 to prove a valid transfer of the same in his favour. The onus of issue No.6 was accordingly placed upon him. D.W.1 Bashir Ahmad, Patwari, appeared to state that he has brought along the record of Mutations Nos.532 and 536. He produced the copy of Roznamcha Waqiati as Exh.D.1 and Exh.D.2 pertaining to the said mutations. In his cross- examination, he stated that he had not brought along the original Roznamcha and that the mutations were not entered by him and were not attested in his presence. Nothing turns on the statement of this witness.
4. Muhammad Akhtar, Patwari, appeared as D.W.2 who stated that he had entered the mutations and he had done so on the asking of Khurshid Bibi, Zubaida Bibi, Inayatan Bibi and Mussarat Bibi who had approached him along with Sher Muhammad, Lambardar. He sought to give an impression as if the ladies were known to him. However, in his cross-examination, he was unable to answer even a single question pertaining to the identity of the said ladies. D.W.3 is Muhammad Akhtar Fazal, Tehsildar, who stated that he attested Mutation No.532 on 4-11-1984 and the ladies had stated before him that they are gifting away their property. In cross-examination, he stated that the ladies were not known to him. He is making a statement on the basis of Part Patwar and it is not clear as to who identified the ladies. D. W.4 is Sher Muhammad, Lambardar, who stated that he knows the said ladies personally and they had gifted their land to their mother and he had identified them before the Tehsildar. In his cross-examination, he admitted that Khurshid Bibi is married in Pakpattan, Zubaida Bibi is married in Tehsil Depalpur while Razia Bibi is married in Malka Hans while Inayatan Bibi is married in Okara and are living with their respective husbands. He did not know who brought the ladies. D.W.5 is Mst. Inayatan Bibi. She stated that her sisters and she transferred their land in favour of their mother. She stated in cross-examination that she is married in Renala Khurd and she has three sons. Mussarat Bibi has two daughters and a son and is married to Muhammad Hafeez. Khurshid Bibi has three daughters and four sons and is married to Saeed.
Zubaida has two sons and three daughters while Razia has two sons and a daughter. According to her all the sisters remained in the house of their father till his Chehlam. Their husbands had come but left after Qul. D. W.6 is Muhammad Ramzan respondent No.1. He has stated that his sisters proceeded to gift their lands to his mother in the name of Allah and the mother transferred the land to him. Now in his cross-examination, he states that the sisters came on the death of father and left after the Out while the mutation of inheritance was attested 1-1/4 months thereafter. Alain Bibi D.W.7 stated that her daughters gifted their lands to her and she transferred it to her son. She stated that the transfer was gratis. Razia Bibi one of the petitioners appeared as P.W. To deny the factum of any gift or mutation.
5. The learned trial Court has dealt with the matter on the assumption that a mutation of gift incorporated into the Jamabandi enjoys presumption of genuineness. The learned Additional District Judge has followed suit.
6. Now the learned courts below have completely lost sight of the attending circumstances of the case apparent on the face of the record. The sisters had come on the death of the father. The mutation of inheritance was attested. This was followed by the mutation in favour of mother and then by mother in favour of respondent No.1 resulting in the A complete exclusion of the daughters of Ali Ahmad from his estate. There is no plea and, of course, no evidence as to why the petitioners who have their own children and husbands proceeded to gift away the land to mother and ultimately to the brother. This casts doubt on the genuineness of the transactions. I may note here the following observations of their Lordships in the case of Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCM R 1938 at page 1942 of the report:--- "Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct is made without reason or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. In the were of frivolous gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons justification for a gift so that no injustice is done to the rightful owners and no course of inheritance is bypassed."
Similarly, the insistence of the learned Courts below that the mutation having been incorporated in the Jamabandi enjoys a presumption of genuineness is also without lawful authority inasmuch as not withstanding the fact that a mutation stands incorporated in the Revenue Record, if a dispute arises the burden squarely lies upon the beneficiary to prove the validity of the transaction.
Reference be made to the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCM R 1245 and further affirmed in the case of Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Murid Sakina 2004 SCM R 1043.
7. I also agree with the learned counsel for the petitioner that the impugned judgments proceed in direct contravention of the law laid down by the Honourable Supreme Court of Pakistan in the said case of Ghulam Ali and 2 others. The transaction of the face of it is void.
8. Now so far as the judgment being relied upon by the learned counsel for the respondents are concerned, in the said case of Abdul Mateen and others, the gift had been made by a husband to his were who was issueless. The objection as to the non-delivery of possession was answered with reference to the said relationship between the donor and the donee. It was also found that since none of the relatives of the donor including the petitioners before their Lordships had served the deceased who was wholly dependent upon his were and it was but natural that he had made a gift in her favour. In the said case of Mst. Phaphan through L.Rs. It was a case of sale and their Lordships held that creditworthy oral evidence has been led in support of their case by the respondents before their Lordships. In the said case of Khalil Ahmed, the learned trial Court had found as a fact that the deceased was not suffering from Maraz-ul-Maut which finding was upheld by the Honourable Supreme Court of Pakistan. However, their Lordships observed that no evidence is to be found in support of the observations by the learned trial Court that Siddique Khan (donor in the said case) was suffering from mental and physical infirmity and mental capacity was affected on account of old age. It was also noted that the deceased donor had only one daughter who died a short time before his own death and the gift was made to her only surviving child i.e. The donee. All these cases, therefore, were decided in the peculiar facts and circumstances of the same.
9. The question of limitation has also been wrongly decided. Admittedly, the parties are co-heirs and there is no question of any limitation running against the petitioners.
10. The civil revision accordingly is allowed with costs throughout. Both the impugned judgments and decrees passed by the learned Courts below are set aside and the suit filed by the petitioner is decreed as prayed for.