JUDGMENT SYED SAJJAD HASSAN SHAH, J.---The petitioner Haji Muhammad Jan has challenged under section 115 of the C.P.C. The judgment and the decree passed by the learned Additional District Judge, Charsaddah dated 28-9-2005, whereby the appeal was accepted, filed by plaintiffs/ respondents Nos.1 to 8 against the Judgment and decree dated 23-11-2004 and the suit of the said respondents was decreed.
1. Brief facts of the case are that the petitioner/defendant is the son, Mst. Bibi Nosha, and late Mst.
Umatul-Asha (predecessor-un-interest of respondents Nos.2 to 8) are the daughters of Sohbat Khan deceased, who was the owner of a big chunk of land, detailed in the heading of the plaint, transferred in the name of defendant No. 1/petitioner to the extent of 32-16 Kanals, vide gift Mutation No.4361 attested on 15-1-1986 and registered Tamleek/gift-deed No. 61 attested on 11-3- 1990 about 44.01 Kanals of land, whereof, the Mutation No.4496 attested on 14-10-1990 to incorporate the gift-deeds in the Revenue Record in favour of the defendant No.1 petitioner herein.
The above mentioned transfer deeds were challenged by respondent No.1 and the predecessor of respondents Nos.2 to 8 namely Umatul Asha the daughters of Sohbat Khan on the grounds; that the donor was incapable of making gift as he was ailing, and feeble person and was aged about more than 85/90 years; that the disputed deeds were not attested by the donor himself, but was the result of fraud and collusion between the defendant/ petitioner No.1 and the officials of Sub- Registrar, the transactions were made to deprive the respondents from their shari share, likely to be devolved on them on the death of their father. The plaintiffs/ respondents being pardah-nasheen ladies were unaware of the attestation of the above mentioned deeds; that the donor was suffering from different kinds of illness and was under immediate apprehension of death, expired in the year, 1990. The plaintiffs/respondents after death of Sohbat Khan visited patwari halqa, for entry of mutation of inheritance. It was transpired there that above mentioned gift-deeds were fraudulently attested in favour of the defendant/petitioner, therefore, challenged the validity of alleged gift-deeds. The suit was however, dismissed by the learned trial Court but the appeal was accepted and the suit was decreed.
2. The learned counsel for the defendant/petitioner contended that the suit of the plaintiffs/respondents being time barred was liable to be dismissed. He further argued that Mutation No.3461 attested on 15-1-1986 and registered-deed No.61 dated 11-3-1990 duly executed by Sohbat Khan, no fraud has been committed. He further argued that the attestation of mutation and registered deeds were the official acts, presumption of truth was attached to the execution of the above mentioned deeds. He further argued that the gift was not made on death bed; that the donor was capable to execute both the gift-deeds, since the presumption attached to the Revenue Record, as the mutation of gift was incorporated therein. He further agitated that the petitioner made an offer to take oath but not accepted. He prayed that the revision petition be accepted and suit be dismissed. Reliance was placed on (a) 1979 SCMR 65; (b) 2008 SCMR 1425 and (c) PLD 1977 Supreme Court 20.
3. Learned counsel or the respondents argued that the predecessor-in interest of the parties was not capable to gift his property in favour of his son, as he was sick and aged about more than 80 years, was residing under the roof .Of the petitioner, derived the benefit of his fiduciary relationship by producing some body else at the time of attestation of gift mutation and registered deed were attested with the collusion of officials of Revenue Department and those of the office of Sub- Registrar. He further argued that the necessary ingredients of gift have not been proved. There is no circumstance brought on record in order to prove that the relationship of plaintiffs/respondents and deceased was strained, therefore, they were deprived of their due rights in their property. He further contended that this is the case, where the fraud committed by the defendants/petitioners just to deprive the plaintiffs/respondents (daughters) from their shari share of the property of their father. Reliance was placed on: 2006 SCMR 1144, PLD 1998 Supreme Court 1512, 2003 SCMR 41, PLD 2003 Supreme Court 688, PLD 1998 Lahore 183 and 1999 SCMR 378.
4. Argument heard, record carefully perused.
5. In this case the controversy between the parties, revolves around the impugned gift-deeds, made by the father of the parties in favour of his sole son, admittedly residing under the roof of his son and was aged about more than 80 years, who was ailing, sick and feeble person. The objection raised that the gift is the result of fiduciary relationship, fraud and collusion as it is mentioned in the gift-deed that the property is being transferred on account of love and affection in favour of son by the father.
6. In order to resolve the controversy, as to whether in the given circumstances the gift could be made, depriving the daughters of donor of their shari share in the property of their father. The entire property transferred in the name of the donee without any explanation on part of donor, eventually the daughters were completely deprived of, and also that as to whether the subject gifts were made in accordance with law, thus protected under the law?. To crystallize the various pros and cons relating to the matter in issue an attempt was made to attend all the relevant factors controlling the disposition of property through gift, ultimate effects emanating thereof and true intent, object and purpose of such disposition and to highlight its preconditions and the consequences arising, from deprivation of the legal heirs of the donor. In this context, reference can be made to the definition given in "Principle of Muhammadan Law" by D.F. Mulla Section-138: -- "Hiba or gift---A hiba or gift is "a transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter."
7. It is further elaborated in sebsection 149, which provides that, it is essential to the validity of a gift that there should be: (1) a declaration of gift by the donor; (2) an acceptance of the gift, express or implied, by or on the behalf of the donee; and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with the gift is complete. In view of the above mentioned mandate of law, there are three essential conditions for a valid gift; immediate transfer of property, without any exchange and accepted on behalf of the donee. It is further clarified in the latter part of section, wherein, the conditions expressly given are:- -
(1) offer;
(2) acceptance; and
(3) delivery of possession.
8. If any of the conditions is found as missing, then it cannot be termed as a valid gift. Now in the instant case, the entire evidence has been reviewed, but there is no reference of the above mentioned preconditions in performance of gift, although, when the gift was challenged on the grounds of advance age, sickness, doctrine of death bed, intention was to disinherit the legal heirs to the property of their propositus.
9. The defendant/petitioner has failed to specify in his pleadings that above mentioned conditions have been satisfied, likewise, the contents of mutation as well as registered gift-deed, both are silent about the above mentioned preconditions of gift. Similarly, there is not an iota of evidence on the record in order to substantiate the compliance of the conditions of a valid gift. The law requires that requirements ibid have to be fully satisfied. It is noteworthy that, the defendant/petitioner has not even signed the mutation as well as registered gift-deed. In the absence of such conditions, it can not be held that the gift-deed was made in accordance with the provisions contained in the law, in this respect the reference can be made of a case titled Mst. Rasheeda Bibi and others v.
Mukhtar Ahmed and others, wherein, it has been held that burden of proof heavily lies on the shoulders of the donee to prove that all these conditions of a valid gift had been complied with.
Failure of donee to discharge such burden would invalidate the gift made in his favour. In this respect, reliance is placed on a case titled "Amer v. Qabool Muhammad Shah and 4 others reported as 1999 SCMR 1049, which is reproduced as under:-- "Whenever, execution of gift-deed denied by the heirs, (the plaintiffs herein) on the grounds of disinheritance, the donee is bound to prove the same, in support of the said view, reference can be made of a case Rasheed Ahmed and others v. Sardar Bibi and others reported in 1994 MLD 467, the relevant citations reproduced as under: - Muhammadan Law--- ---Gift---Execution of gift-Proof-Onus to prove execution of gift deed by donor heavily rested on donee who claimed to be its beneficiary... Plaintiffs having denied execution of gift-deed by donor, donee was required to prove that he had received a valid gift of land from its owner..Qanun-e-Shahadat Order, (10 of 1984)
Art.118.
Muhammadan Law--- ---Gift---Genuineness of gift-deed- Execution of gift-deed denied by plaintiffs who claimed land in question on basis of inheritance---Execution of gift-deed by donor and its registration on his behalf was not proved beyond doubt---Parties as also deceased donor were brothers and sisters- --Record gave clear impression that a last minute attempt was made by donee to lay hands on the land of his brother (donor) for depriving his real sisters from inheritance of their share in it..Factum of gift having not been proved. Plaintiffs were entitled to take their share in land in question in accordance with Muslim Law of Inheritance."
10. In the light of above principle, it is the bounden duty of the beneficiary/donee to prove the factum of gift as per requirement of law through evidence. In the instant case, the witnesses examined including defendant/petitioner could not give the detail and full particulars of transaction of gift with reference to date, time, witnesses before whom, offer and acceptance were made, possession was delivered, manner and form of the transaction so made. No witness had testified that Sohbat Khan donor had made offer and accepted by Muhammad Jan defendant/petitioner in their presence, that in pursuance thereof, the possession was delivered to the donee by the donor. Perusal of record reveals that the property is in possession of the tenants, but it is also not proved on the record that tenants were directed to attorn to the defendant/petitioner as owner of the suit property. It is also the bounden duty of the defendant/petitioner that as he had relied upon the transfer of property through gift in his name, he is bound to revert back and to prove the original transaction of gift, which resulted in the entry of registered deed and attestation of mutation in dispute, but in the instant case defendant/petitioner has miserably failed to prove the transaction of gift, whereof the mutation and the registered deed were attested. No sufficient evidence was brought on the' record in order to substantiate the attestation of disputed mutation of gift and registered deed, the requisite proof of gift is sine qua-non for the declaration of a genuine gift. In this respect, reference can be made of a case titled Abdul Majeed and 6 others v. Muhammad Subhan and 2 others reported as 1999 SCMR 1245.
(e) Registration Act (XV1 of 1908)-- ---S.57---Qanun-e-Shahadat (10 of 1984), Art. 76--Registered sale deed--- Mutation--- Evidentiary value... Everything which finds mention in the registered deed or Revenue Record must not invariably be accepted without proof of their execution, genuineness and authenticity...
Principles. It is axiomatic principle of law that a registered deed, by itself, without proof of the execution and the genuineness of the transaction covered by it, would not, by its on force, be sufficient to prove the genuineness of the transaction to which it purports, unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they, by their on force, would not prove the genuineness and execution, to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document.
11. Another case titled Abdul Ghafoor and others v. Mukhtar Ahmeed Khan and other reported in 2006 SCMR 1144 relevant pars 5 is at page 1146:-- "There is no cavil to the proposition that a presumption of truth is attached to registration of a document but if its contents are challenged then the onus shifts on the beneficiary to prove its contents. It was for the petitioners/defendants to prove that Gul Muhammad had validly gifted the suit property in terms of impugned gift-deed but neither any marginal witnesses of said gift-deed nor scribe nor the person, who identified Gul Muhammad were produced. The petitioners/ defendants miserably failed to prove their case. An attempt was made to prove the gilt through DW.2 Noor Muhammad and DW.3 Haji Faiz Bakhsh Khan. They are admittedly no witnesses of gift- deed. Their statements are to be effected that donor Gul Muhammad in their presence had expressed his desire to gift the property to the petitioners/defendants to the exclusion of father of respondents/ plaintiffs is discrepant nor the place and time of the alleged offer expressed by the donor. On the other hand statements of P. Ws. 1 and 2 who are the sons of Ghulam Rasool inspire confidence. The trend of cross-examination of P.W. Mukhtar Ahmad indicates that it was suggested on behalf of respondents/plaintiffs that the relations between donor Gul Muhammad and father of petitioners/defendants Ghulam Rasool were cordial and no circumstance was brought on record to indicate that the relations were strained to warrant an inference that the donor had any tenable reasons to exclude his son Ghulam Rasool from the inheritance. In a case reported in 2007 SCMR in paragraph 9 at page 245, it is observed that it is a settled law qua the transaction of sale or gift, that it is the duty of the beneficiary and a heavy onus lays on the beneficiary to prove by convincing evidence satisfying the judicial conscious of the Court, that the transaction shown to be a gift was executed by the donor in favour of the donee."
12. In the above referred case, the trial Court and the appellate Court declared that no gift was made by the donor as it has not been proved, because, all the three ingredients of gift (offer, acceptance and possession) were not proved to have fulfilled coupled with the fact that the statements of respondents witnesses were not in line with each other, as they have contradicted each other on material points, therefore, he had failed to prove that the gift was executed by donor in favour of donee, the learned High Court set aside the judgment and reversed the findings of both the courts below. In these circumstances, the august Supreme Court set aside the judgment and the decree passed by learned High Court and restored that of the Courts below.
13. In another case titled Muhammad Yaqoob (deceased) through legal representatives v. Feroz Khan and others, reported as 2003 SCMR 41 is reproduced hereunder for ready reference:-- Constitution of Islamic Republic of Pakistan (1973)--- Article 185(3).---Factum of gift could be proved by cogent and convincing evidence. No justisfica- section was pointed out of the exclusion of legal heirs from inheritance of donor which makes authenticity and genuineness of gift doubtful. Impugned order of High Court does not suffer from any flaw calling for interference by Supreme Court, in concurrent findings of fact recorded by courts below and concurred by the High Court. Leave to appeal was refused.
14. In support of the aforestated aspect of the case reference can be made of a case titled Mst.
Rasheeda Bibi and others v. Mukhtar Ahmed and others reported in 2008 SCMR 1384, relevant citations reproduced as under:--
(b) Islamic Law-- ---Proof--- Execution of--- Appearance of the party before the Registrar is not conclusive proof of the execution of gift---In such a case the Court will have an overall, view of all the attending circumstances of the transaction and no presumption of truth could be attached to such type of document.
(d) Proof--- ---Endorsement made by the Registrar on questioned document would not prove that such document was executed by donor in favour of donee and constituents of gift must be proved in consonance with the provisions of Qanun-eShahadat, 1984 and rules of gift.
15. On account of general principle of law, the rights in property of a segment of the society have been protected, e.g. The weak, the ignorant and the infirm and the expected heirs are to be treated at par with the parda nasheen ladies and be treated similarly. In this respect reference can be made to a celebrated judgment titled Ghulam Ali v. Ghulam Sarwar Naqvi reported in PLD 1990 Supreme Court 1, relevant Para 7 is reproduced as under:-- "even if all the conditions for a valid transfer under the existing set and system of law, after the due accrual of inheritance are satisfied, the protection afforded by section 16 of the Contract Act against undue influence to parda-nasheen ladies and others similarly placed parties and entrenched in the case law as also available under the Islamic law would require so many conditions to be satisfied. Admittedly in such-like cases, the burden of proof is upon the alienee.
The presumption exist regarding undue influence on prima facie satisfaction regarding inter se position of the parties and the state and status of the alienor".
16. Viewing the principle laid down in the context of the instant case, the law laid down in a case titled Chaudhry Muhammad Hussain v. Mst. Waziran Mai alias Mst. Wazir Mai reported as PLD2005 Supreme Court 658, is reproduced as under:-- The parda-nasheen ladies have been afforded protection, however, the application of above noted principles made applicable to the persons who are aged, feeble, ailing, illiterate and not able to enter into any transaction, therefore, it falls under the doctrine of undue influence, in the above mentioned case-law, the rule has been laid down that beneficiary of the document executed by ignorant/illiterate/parda observing lady have to be proved by over whelming elements, the execution of such documents by such ladies and further have to be proved that such transaction and such document was duly explained to the executant and having independent advice at the relevant time. (b) Qanun-e-Shahadat (10 of 1984)- ---Art. 78---If a document is alleged to be signed or to have been written by any person, the signature or writing must be proved in that person's hand writing... Article 78, Qanun-e-Shahadat, 1984 places emphasis on the proof of identity of author of questioned documents and said Article does not say that mere proof of hand writing signatures/ thumb- impressions of executant will prove truth of the said document.
17. As far as, the validity and IG genuineness of mutation is concerned, now it is settled principle of law that the mutation is used for the fiscal purposes and just for recovery of land revenue, it cannot be used as a title deed, therefore, the mutation, whereby, the defendant/petitioner has got transferred the land in his name was bound to prove its validity, propriety and authenticity, when same is challenged and that too on the basis of fraud, collusion etc. As the fraud vitiates most solemn proceedings. Reference can be made of a case titled Muhammad Younus Khan and 12 other v. Government of N.-W.F.P., reported as 1993 SCMR 618.
(b) West Pakistan Land Revenue Act (XVII of 1967)- - -S. 42---Mutation, when mutation is not legal and proper, the entire structure built on it shall crumble.
(c) West Pakistan Land Revenue Act (XVII of 1967)--- - --S. 42---Mutation---Entries in the mutation record are fiscal in nature, do not conclusively established in favour of the person in whose name such entries had been made and provide merely a rebuttable material.
(d) West Pakistan Land Revenue Act (XVII of 1967)--- ....S.42 ... Mutation ...Allegation of fraud... Where the right of the person whose name has been recorded and the entry has been challenged on grounds of fraud, such entry can hardly prove ownership.
18. Similar view has been expressed in a case titled Hakim Khan v. Nazir Ahmed Lughmani and 10 others reported in 1992 SCMR 1832.
(b) Mutation--- ...Mutation by itself does not create title and the person deriving title thereunder has to prove that the transferor did part with the ownership of the property, the subject of the mutation, in favour of transferee and that the mutation was duly executed and attested.
(c) Mutation--- ....Any person who is acquiring title through a mutation, the burden of proof of providing transaction embodied in the mutation, is upon him.
19. Accumulated effect of the above mentioned legal proposition is, that the defendant/petitioner is obliged to prove, whatever has been asserted in order to dislodge and to deprive of the rights of true owners in the property, which have been devolved upon them, inasmuch as the secundum allegata et probata (he who alleges effect must prove it), will also be applicable; the defendant/petitioner was required to satisfy the Court about the correctness and genuineness of the documents relied upon in support of his claim, the evidence brought on the record is not of such a standard, as required to prove a document, the defendant/petitioner has placed reliance on two documents, namely, a mutation and a registered deed, the proof furnished thereto is not sufficient to declare that he has acquired the property through above mentioned gift-deeds, thus cannot seek the protection of his rights in the were of such material. The evidence produced is so contradictory and sketchy, cannot be used for declaring the defendant/petitioner as lawful owner e.g. One Sadiqeen, the witness of registered gift-deed had denied that he stood as witness to the transaction of gift or had signed any such gift-deed, who was the lamberdar of the same village, his statement was recorded before a Judicial Magistrate, thereafter he was expired when the suit was pending decision, the reference of his statement has been made by the attorney of the plaintiffs/respondents, examined as P.W.5, the defendant/ petitioner has not seriously cross- examined this witness, the copies of the affidavit and statement so recorded are also produced on the record, the denial of the signature and appearance before the sub-Registrar has been corroborated in said depositions.
20. P.W.3 Sher Qadir Khan Advocate was examined and he has verified that Malik Sadiqeen witness had appeared before the Resident Magistrate Shabqadar, he associated as Advocate, his statement was recorded on application and said Malik Sadiqeen refuted to sign the disputed registered deed, further stated that his signature made on registered deed was fake and fictitious, his statement was exhibited as Exh. P W .3/2 .
21. The above mentioned statement attributed to Malik Sadiqeen was further corroborated by the statement of P.W.4 Noor Badshah, wherein, he has testified that Malik Sadiqeen had appeared before the Court of Resident Magistrate Shabqadar and was examined, wherein, he had stated that on the registered sale-deed shown to be executed by Sohbat Khan in favour of Jan Muhammad, same has not been thumb impressed, he further stated that statement was recorded in my presence.
22. P.W.6 Muhammad Israr was examined as witness, he has also testified that Sohbat Khan was ailing for the last 8/9 years and in the later stage of life he has lost his mental capacity, who had died in the year 1990 and he was not in a position to dispose of his property, this witness has not been cross examined on the above mentioned material portion of the statement.
23. P.W.7 Nisar Muhammad had also deposed that Sohbat Khan died in the year, 1990, who was aged about 80/90 years. He was of extreme old age, feeble and ailing person and was mentally incapable to comprehend the things, the witness was not cross-examined on the above mentioned material aspect of the case.
24. Jannat Gul DW-7 was examined who has categorically stated that Haji Sohbat Khan had not been thumb impressed the registered deed in his presence, Sohbat Khan predecessor of the parties was aged about 85/90 years and was suffering from various diseases and was under medical treatment of the Doctors in L.R. H. Peshawar.
25. Sohbat Khan/donor died after two months of alleged execution of registered decd, his death certificate has been produced on record, which is Exh.P.W.2/1, wherein, the date of death is recorded as 11-1-1990, somewhere in August, 1990, entries of the said documents were made and have not been questioned by the defendant/petitioner, therefore, rightly and lawfully relied upon, while deciding the case, as per the entries Sohbat Khan died after about two months of those gift deeds.
26. Attorney of the plaintiffs/ respondents P.W.5 Zafar Ali deposed that Sohbat Khan/donor was aged about 80 years. He was ailing, suffering from different diseases, Haji Sohbat Khan never appeared before the Revenue Officer for attestation of impugned mutation nor thumb impressed, similarly, he has not visited the office of Sub-Registrar to execute the registered deed, that previously a gift mutation was entered in favour of the defendant/petitioner on behalf of Sohbat Khan, but the same was cancelled by gaining the knowledge of mutation. The registered deed and mutation were attested fraudulently and in collusion with concerned officials in favour of defendant/ petitioner on behalf of late Sohbat Khan. Plaintiffs/respondents are parda-observing ladies, they were unaware of the attestation of the registered deed and mutation. They have acquired the knowledge, after 8/9 years, when the inheritance mutation of Sohbat Khan was sought to be entered.
27. DW-4 Saeed-ur-Rehman's who is closely related to the defendant/petitioner candidly admitted that Sohbat Khan was an old and feeble person and was suffering from various diseases, he stood as witness of the disputed mutation, it is important to note that he has neither seen the mutation nor testified that it is the same mutation which was signed by him, he has further deposed that the mutation was attested in his Hujra.
28. D.W.5 Shahzad Gul had also testified that he is the witness of Mutation No.4361, but he too has not seen the original mutation, therefore, could not testify that he had signed the disputed mutation, this witness had also deposed that Sohbat Khan was aged about 85 years and he was not consistent with the other witnesses, while saying that the mutation was attested in the Hujra of defendant/ petitioner, he admitted that Shobat Khan was an old and feeble person and he was incapable to resist even a simple and an ordinary disease. He further admitted that only the disputed mutation was attested in the Hujra of defendant/petitioner and no other mutation was attested in his Hujra, moreover, he stated that he stood witness to only mutation in the name of defendant/ petitioner and he also admitted that Sohhat Khan was admitted in the hospital for treatment as he was sick.
29. DW-3 Haji Muhammad Jan the defendant/petitioner denied that the mutation was attested in his Hujra and stated that it was attested in Tehsil Charsadda, he has shown ignorance about the diseases being suffered by his father. D.W.6 has also admitted that Sohbat Khan was a man of an extreme old age about 80/90 years, further admitted that Sohbat Khan was weak, feeble and ailing person, he also admitted that some time on account of attack, he used to have been mentally paralyzed.
30. In view of the above account of evidence, the question of gift transaction have not been proved, all the same, the important, supportive and truth oriented evidence is lacking about the proof of transaction of gifts, in as much as the Revenue Officer, the Sub-Registrar were the important witnesses, likewise the Patwari Halqa was not brought in witness box to prove the transaction of gift, more so Patwari Halqa, who had entered the mutation and was aware of all relevant facts and circumstances regarding the mutation, can testify much more about the authenticity or otherwise of the gift transaction. The petition writer and the stamp vendor were the witnesses also played pivotal role in finalization of the transaction of gift, but they have not brought in the witness box to depose about the actual facts of the case. In this scenario, the Court can legitimately draw the presumption against the defendant/ petitioner, that had they were produced, but were not supporting the case of the defendant/petitioner. Above all, the same by virtue of attestation of the above referred gift-deeds, the plaintiffs/ respondents have been deprived of the property of their father, but no reason for such deprivation has been brought on the record, notwithstanding, that for attestation of the said documents, love and affection shown for the son, but no ground has been mentioned to deprive the females from the course of inheritance of their father, to my mind when reason for gift is given, equally the reason for depriving the other heirs, specially females (daughters) must be given. In the present circumstances when the society has been victimized by the materialism, the socio economic and civic values have also been disparaged, therefore, eventually some individuals in lust of grabbing of property attempts to overcome all legal and illegal barriers to achieve their nefarious ends, whereof deprive their sisters/daughters from their due rights against the command of Almighty Allah in the property of their propositus. In such circumstances, the legal provisions respecting proof of documents of transfer of the immovable property, strictly to be adhered to in their letter H and spirit, so that the rightful owners would not be deprived of their rights in the property, more so, technicalities would not be followed in order to bar the remedy.
31. In support whereof reference can be made to a case titled Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs, reported as 2002 SCMR 1938, relevant portion is given in paragraphs 5 and 6 reproduced as under:-- 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 reasons or justification, unless the donor is divested of all the powers of reasonings and logic and unless he is a person of unsound mind. In the were frivolous gifts, generally made to deprive females in the family from the course of inheritance, prevalent at present time, the Courts are not divested of the powers to scrutinized the reasons and justification for a gift, so that no injustice is done to the rightful owners and no course of inheritance is bypassed.
It is further observed in para-6 of the judgment that in the instant case no reason is furnished for such gift, at the most one can import the love and affection of the grandson, but the same seems to be unreasonable in the presence of one and the only son of the donor, rather there is a negative reason for making gift, in that, Barkat Ali had three daughters as well and it was rightly apprehended that in case of the death of Barkat Ali, property would also be inherited by his daughters, the real sisters of Muhammad Ismail, there is over whelming reason for the grant of gift which seems to be mala fide, and which is why it is assailed by the very son of the donor.
32. In such circumstances, the reasons must be furnished to justify the alienation made by depriving other lawful heirs of an old, feeble, illiterate and ailing father, in this view of matter reliance can be placed in a case titled Muhammad Akram and another v. Altaf" Ahmed reported in PLD 2003 Supreme Court 688 (e), reproduced as under:-
(e) West Pakistan Land Revenue Act (XVII of 1967)... ---S.42---Mutation attestation of..Proof...Most important entities in connection with the attestation of mutation were the Patwari Halqa who had to enter the mutation and the Revenue Officer who was to attest the same. Both said functionaries having not been produced and examined in the Court, the mutation in question could not be said to have been proved.
33. In a case titled Mst. Hameeda Bibi and 3 others v. Chaudhry Attaullah Advocate reported in PLD 1998 Lahore 183, wherein the mutation was not thumb impressed or signed by donors and donees and the same was not attested in Jalsa-e-Aam, as it was admitted in the instant case by the witnesses of the defendant, that only this mutation was attested in Hujra of the defendant/petitioner, more so, the defendant/petitioner had been in possession and managing the suit property during the life time of his father. In this view of the matter, the dictum laid in the above referred judgment is applicable to the facts of the instant case, the paragraph-16 of the judgment is reproduced as under:-- "It could not be established from the record; that the gift was made by deceased Ibrahim in his life time. The revenue record, produced on record, proved that Ibrahim, remained in possession of the property throughout,- during his life time and managed as well as administered the same and that at no stage, the property was put under the control of the petitioners. The plea that the delivery of possession was not necessary, is without any legal substance to complete the gift, declaration, acceptance of gift and delivery of possession, simultaneously with the declaration and acceptance were mandatory. No convincing evidence could be produced of lacking of declaration or acceptance of gift during the life of time of Ibrahim. Delivery of possession could not be proved.
The property was in possession of a tenant Imam Ali".
34. Since, no proof has been furnished that the possession was delivered to the defendant/petitioner under the gift transaction on this count too the gift transaction is liable to be declared as invalid and unlawful.
35. On behalf of the defendant/ petitioner the question of limitation has also been agitated that the suit of the plaintiffs/respondents was barred by limitation, therefore, was liable to be dismissed.
Perusal of record shows that the plaintiffs/respondents are the real sisters of the defendant/petitioner, being parda-- nasheen ladies, after the death of their father they were unaware of the position concerning the property of the their father. They have neither appeared before any authority nor they have consented to the disposition of property through the disputed gift, more so, the defendant/petitioner has failed to prove the transaction of gift on behalf of his father in his favour and as earlier it is declared that the suit property has not been gifted out and the proceedings of execution of gift mutation and registered deed are unlawful and result of fraud and collusion. In such circumstances, no period of limitation is prescribed under any provision of law, thus, the period of limitation would be reckoned under Article 120 of Limitation Act, when the plaintiffs/ respondents had acquired the knowledge of the impugned gift, reliance placed on a case titled Arshad Khan v. Mst. Resham Jan reported in 2005 SCMR 1859 reproduced as under:--
(d) Gift... ...Fraud..Gift transaction based upon fraud... Limitation computation of.... In cases of fraud, limitation would start from the date of knowledge and not from the date of fraud.
36. In this connection, it is not out of place to mention that the learned trial Court returned its findings about the issues Nos.4, 5 and 7 including limitation as below:-- "The issues are neither pressed nor proved, therefore, all these issues decided accordingly."
37. The defendant/petitioner has not challenged these findings in the appellate Court by filing cross-objection or appeal, therefore, same can not be challenged at this stage, therefore, the objection is hereby repelled.
38. In view of the above discussion, the judgment and decree passed by learned appellate court is in accordance with law and not suffering from any illegality or jurisdictional error, based upon legal and factual reasonings, whereby on acceptance of appeal the suit of the plaintiffs/ respondents was decreed is therefore, upheld and the judgment and decree passed by learned trial Court being based upon illegal exercise of jurisdiction and misapplication and misconception of law, without lawful reasonings, rightly declared as the result of material illegality and irregularity and was set aside.
39. This petition is being without any substance and lawful reasonings reasonings is hereby dismissed. No order as to costs.