' JAWWAD S. KHAWAJA, J.---The parties to this petition are the legal heirs of Fazal Ellahi who was the plaintiff in the suit out of which this petition has arisen. Mst. Resham Bibi (petitioner No.1), who was the widow of Fazal Ellahi has died. The other two petitioners, namely, Shahnaz Begum and Shamshad Begum are daughters of Fazal Ellahi and the full sisters of Riaz Bibi (respondent/defendant).
2. The petitioners impugn the appellate decree dated 1-3-2000 whereby the decree of the learned trial Court dated 8-2-1996 has been set aside and a declaratory suit filed by Fazal Ellahi (now represented by the petitioners) has been dismissed. Gift Mutation. No.1713 was sanctioned on 24-4- 1991 whereby Fazal Ellahi purportedly gifted the suit property meaning 84 Kanals, 18 Marlas in favour of his daughter Riaz Bibi (respondent/ defendant). Just twenty days after the gift mutation, Fazal Ellahi himself filed his suit alleging that he had not made any gift in favour of the respondent Riaz Bibi. Riaz Bibi resisted the suit on the basis that a gift had validly been made in her favour.
3. Fazal Ellahi himself appeared as P.W.2 and stated that his son-in-law Gul Zaman, who was the husband of Shehnaz Begum (petitioner No.2) and who was the brother of Mushtaq husband of Riaz Bibi, had fraudulently obtained the mutation. In the circumstances, it was for Riaz Bibi, as beneficiary of the gift and of Mutation No.1713, to prove that the gift had been validly made in her favour.
4. It is of the greatest significance that Riaz Bibi did not appear as a witness in the case. This is so despite the fact that Gul Zaman, who was her attorney, appeared as D.W.3 and testified that Riaz Bibi was pursing the case herself and was present on each date of hearing. He admitted that she was also present in Court even while he was testifying. It is, therefore, strange that Riaz Bibi did not enter the witness-box in support of her own case. It is by now well-settled that an adverse inference had to be drawn against her on account of her failure to testify in the case.
5. Here it may also be noted that Riaz Bibi alone could have proved the acceptance of the gift.
Because of her absence from the witness box this essential ingredient of a valid gift has not been proved.
6. Secondly, the record shows that even possession of the suit-land was not delivered to Riaz Bibi.
The D.Ws. Examined by the respondent admitted that Fazal Ellahi remained in possession of the suit-land. Learned counsel for the respondent argued that because Fazal Ellahi was the father of Riaz Bibi, his continued possession of the suit-land did not invalidate the gift. This contention might have had some force if Riaz Bibi had been a minor or even if she was an unmarried daughter under the care of Fazal Ellahi. This is not the case. Her husband Mushtaq was very much alive and if at all she had required some person to take delivery of the suit-land pursuant to the gift, if would have been her husband Mushtaq.
7. Learned counsel for the respondent referred to a report (Exh.D-11) submitted by the A.C. In proceedings initiated by Fazal Ellahi for correction of the Khasra Girdawari. This document also shows that Fazal Ellahi retained possession of the suit-land although the report indicates that Fazal Ellahi was merely protecting the property as father of Riaz Bibi. This is in conflict with the suggestion put to Fazal Ellahi on behalf of the respondent that the respondent had taken over possession of the suit-land herself and had manifested her possessory interest by ploughing the disputed land.
8. In addition to the above, Sikandar Hayat, Advocate, whose name was entered in the mutation as in identifying witness, was not produced as a witness. Learned counsel for the respondent contended that the said Sikandar Hayat was not available and instead Muhammad Anwar identified Fazal Ellahi along. With Muhammad Arshad (D.W.1). This submission, however, is not borne out from the record. As such, failure of the respondent to produce Sikandar Hayat, Advocate, also goes against her.
9. Lastly, I find no justification from the record as to why Fazal Ellahi selected his daughter Riaz Bibi for the gift while excluding his two other daughters and wife. D This is all the more relevant because when Fazal Ellahi appeared as P.W.2, he deposed that his daughter Shehnaz Begum was taking care of him.
10. The learned appellate Court unfortunately has proceeded on erroneous premises. It has accepted that there is no direct evidence of the offer and acceptance of the gift and of delivery of possession. Notwithstanding this lack of evidence, the learned appellate Court has held that Fazal Ellahi did not state that there was no offer or acceptance. The reasoning of the learned appellate Court, to say the least, is quite extraordinary. The very fact that Fazal Ellahi filed the present suit and appeared as a witness to testify that he had not made any gift in favour of Riaz Bibi, clearly shows that he had denied making any offer of gift to Riaz Bibi. It follows that according to the stance adopted by Fazal Ellahi, there could be no question of any acceptance having been made by Riaz Bibi.
11. In the foregoing circumstances, I am not in any doubt that the appellate decree is not legally sustainable. The same is, therefore, set aside. As a result, the decree of the learned trial Court is affirmed.