' SYED SAJJAD HASSAN SHAH, J.---Rahimullah and eight others plaintiffs/petitioners have sought the indulgence of this Court against the judgment and decree dated 30-6-2004 passed by the learned Additional District Judge Lahore, whereby the appeal filed by the petitioner assailing the judgment and decree dated 31-1-2003 passed by the learned Civil Judge Lahore was dismissed, whereas the appeal of respondent No,1 arising out of the same judgment and decree, the suit was partially decreed in favour of the petitioners and the appeal of the defendants/respondents accepted the suit was dismissed in toto.
1. Brief facts of the case are that the plaintiffs/petitioners have filed the suit seeking declaration to the effect that the land detailed in the plaint was the ownership of Khan Baz deceased, after his demise being legal heirs (his daughters) were entitled to their Shari share i.e. 22-14 kanals, out of 61-13 kanals, the total ownership of said Khan Baz. Since a gift Mutation No,740 dated 7-9-1983 and a sale Mutation No,826 dated 5-2-1987 shown to have been attested on behalf of Khan Baz A deceased in favour of his son respondent No,1. They have also challenged, exchange Mutation No,62 dated: 10-2-1993 attested by respondent No,1 in favour of respondents Nos.4 and 5 and sought the cancellation of said mutations as well as correction of Revenue Record and decree for perpetual injunction and possession as being fraudulent, collusive against the Sharia law, eventually deprived the plaintiffs/ petitioners from their right of inheritance in the property of their father. The suit Was contested by the respondents by filing their written B statement, after framing issues evidence was recorded. The learned trial Court seized of the matter granted decree to the extent of prayer of cancellation of gift Mutation No,740, while rest of the suit was dismissed. Both the parties feeling aggrieved challenged the impugned judgment and decree by filing separate appeals. The partial judgment and decree passed in favour of the plaintiffs/petitioners was dismissed on acceptance of the appeal of the defendants/respondents, thus, the appeal and suit of plaintiffs/petitioners both were dismissed.
2. The learned counsel appearing on behalf of the plaintiffs/ petitioners argued that Khan Baz the predecessor of the parties was an old and decrepit person and was unable to enter into transactions of sale and gift, as he was aged about more than 80 years, therefore, he has made no gift at all in favour of his son, the respondent No,1, as there is not an iota of evidence available on record, to substantiate the transfer of disputed property through gift by deceased Khan Baz. He further highlighted the prerequisites of gift and tried to persuade the Court that no pre-condition of a valid gift has been proved, therefore, learned trial Court has passed the decree justly, lawfully and properly, but the learned appellate court has illegally and unlawfully set aside the partial judgment and decree passed by the learned trial Court, while disputing the validity of sale transaction, contended that on the one hand son is claiming, that in the last days of his life he has rendered the services to his father, on the other hand he asserted that the sale transaction was effected in between the father and son in respect of the property measuring more than 40 Kanals allegedly purchased in sale consideration of Rs,20,000, the average market value of suit property prevailing in those days as worked out by patwari halqa and brought on record, as Exh.P.W.1/1, the value of the property was more than Rs,294815.20, he further contended that neither possession was transferred nor any sale consideration was paid, the proceedings of attestation of mutations and the entries made therein are dubious and speaking volumes about the fraud. The proceedings conducted, collusively by respondent No,1 and the Revenue Officer, as the entries made in gift mutation were interpolated and altered from sale to gift. Moreso the provisions contained in section 42 of the Land Revenue Act 1967 violated by the revenue officials, as haphazardly attested the mutations while concealing the true facts from the plaintiffs/petitioneRs, He further contended that the plaintiffs/petitioners acquired the knowledge of mutations few days prior to the institution of suit.
3. The learned counsel for the defendants/respondents while rebutting the arguments contended that Khan Baz was healthy and capable to enter into transaction and had transferred the property through mutations in favour of his son defendant No,
1. He urged that gift mutation was attested after completion of all the formalities required for a valid gift, likewise, sale mutation was also attested at the instance of Khan Baz, the transferor had received the sale consideration, he argued that the present litigation is initiated at the instance of attorney of the plaintiffs/petitioners, whereas, plaintiffs/petitioners, notwithstanding, the step sisters of the defendant/respondent No,1, having no grudge in connection with the attestation of mutations. He further argued that a bulk of documentary and oral evidence was produced in order to prove the stance of the defendants/respondents, therefore, the instant petition may be dismissed.
4. Arguments of the learned counsel for the parties considered and record carefully perused.
5. The dispute is in between the step-brother and sisters, by virtue of attestation of the mutations disputed herein, the plaintiffs/petitioners have completely deprived of their rights in legacy of their father. Initially the entries made in the gift Mutation No,740 attested on 7-9-1983, as it transpires from perusal of column No,13, it was recorded as sale transaction, the evidence as well as the nature of entries in the said mutation are self explanatory that word " " had not been entered at the time of entry of, mutation by Patwari Halqa as the relevant column which is meant for recording the kind of land, the date of mutation and the nature of mutation, in the column No, 15 at first instance, it was recorded as No alteration or interpolation made in this column but column No, 1 recorded, whereas the said words interpolated and entered as " ,CC;{{URDU TEXT}} , from this mutation, the presence of alleged donee cannot be spelled out at the time of alleged attestation of mutation. Similarly the report of field Kanungo is also altered as evident from mutation. Assuming for a moment that the mutation was entered at the instance of Khan Baz, he was an old and feeble, depending upon his son residing with him, not shown as to have accompanied by his son and also not discernible from the entries of Mutation No,740 that the gift was accepted by the alleged donee, no mention that possession was delivered qua the gifted land. This mutation was entered on 1-9-1983 and was attested on 7-9-1983. Whereas, under section 42 of the Land Revenue Act, 1967, such mutation when entered by Patwari Halqa in the register of mutations, legally bound to have recorded the same in Roznamcha Waqiati and to obtain the signature or thumb impression in token of correctness of the statement recorded by Patwari in Roznamcha Waqiati.
6. It is to be displayed upon some conspicuous place for general information. The Patwari Halqa to produce the register of mutations for the purpose of attestation of mutations to the Revenue Officer, after expiry of fifteen days from the date of entry of mutation, but in this case extraordinary haste shown for unknown reasons. The validity of gift transaction is subject to the completion and fulfilment of the prerequisites laid down in law, reference can be made of "The Principle of Muhammandan Law" by D.F. Mulla, for convenience sake, section 149, reproduced as under.
"S. 149---The three essentials of a gift... It is essential to the validity of 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 behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Sec. 150, if these conditions are complied with the gift is complete.
7. As laid down in section ibid, there are three essential ingredients of the valid gift, firstly declaration of gift by donor, secondly acceptance of gift by donee and thirdly delivery of possession of subject matter of gift. Perusal of evidence available on record shows the possession has not been delivered to the donee, moreso, the acceptance of gift has not been proved on behalf of the donee, likewise, no cogent, convincing and confidence inspiring evidence has been brought on record, whatever, evidence is available the factum of gift not supported rather contradicted, as earlier pointed out that the entries recorded in register of mutation, manipulated and chaffed as referred to above by alteration and variation, therefore, the conduct of the defendants/respondents shows that no such gift was made by Khan Baz. It is quite evident from the record that Khan Baz was more than 80 years of age, as stated by D.W.4 Syed Mehmood Bacha in his cross-examination that at the time of attestation of mutation Khan Baz Baba was elder to me rather he was of the age group of my father. As far as delivery of possession is concerned, it is candidly admitted by D.W.10 Muhammad Siddique defendant No, 1 in his cross-examination that the management and administration of the suit land was with my father till the time of his death and after his death the management of the suit property is being done by myself".
8. In view of section 150, Muhammadan Law ibid, delivery of possession for the declaration of valid gift is essential, the section reads as under:-- "S.150---Delivery of possession---(1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible".
9. As per provisions of law, the delivery of possession should be made to validate the gift, in this case the disputed property was susceptible to the delivery of actual possession, despite that the respondent No,1/donee got the possession after the death of donor, thus, the non delivery of possession makes the alleged gift as invalid, reference of section-148 is made as under:-- "S.148--- Relinquishment by donor of ownership and dominion--It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subjects of the gift.
10. The mode and manner of the proceedings of entry and attestation of mutation of gift is invariably seemed to have been followed, to deprive the daughters of Khan Baz, the step-sisters of defendant/respondent No,1, from the recovery of their Shari share in the property of their father, such transaction apparently meant to defraud the creditors of late Khan Baz, because of the reason that they were entitled to the inheritance after his death but immediately before the death and in age of 80 years, the defendant/respondent No,1 has taken the benefit of fiduciary relations as Khan Baz father of the parties was in the effective control of his son the respondent No,
1. There is nothing brought on record to show, his good faith, as desired by Article 127 of Qanoon-eShahadat Order-1984 reads as follow:-- "A.127--- Proof of good faith in transactions where one party is in relation of active confidence: When there is a question as to the good faith of a transaction between the parties one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
11. In view of the above mentioned provision of law, the defendant/respondent No,1 has failed to discharge onus of proof placed on his shoulders under the law.
12. The above referred gift transaction, when examined, besides the aforestated provisions of law, section 6 of Transfer of Property Act is also attracted to the facts and circumstances of instant case. The provision contained in section 6 of Clause (h), are as under:-- "S.6--- What may be transferred... Property of any kind may be transferred except as otherwise provided by this Act or by any other law for the time being in force.
(a) ..........................................................................................................................
(b) ..........................................................................................................................
(h) No transfer can be made
(1) insofar as it is opposed to the nature of the interest affected thereby; or
(2) for unlawful object or consideration within the meaning of section 23 of the Contract Act, 1872; or
(3) to a person legally disqualified to be transferee.
13. Since the transfer vide impugned mutation has not been made for lawful object and consideration but to deprive the sisters of the defendant/ respondent No,1 from their legal rights in the property of their father, therefore, the transaction of gift can not be saved under the law. In this connection section 2 of the Contract Act can be referred with advantage.
S.2---Interpretation Clause---In this Act the following words and expressions are used in the following senses unless, a contrary intention appears form the context:-- ' Section 2 clause-(g) "Void agreement:. An agreement not enforceable by law is said to be void.
' As the above mentioned gift is apparently derogatory to the above referred provisions of law and does not fulfil the pre-requisites of a valid gift.
14. Moreover, the transaction of gift is not sustainable in view of the policy of the Muslim jurists expounded in cases, reproduced as under, the case titled "Sardar Ahmed Khan v. Mst. Zamroot Jan", reported as PLD 1950 Peshawar 45.
"It.Is the policy of the Muslim jurists to prevent any interference with the course of devolution of property amongst the testator's heirs as laid down in the Holy Quran The gift in order to be effective should be a genuine transaction and not merely a plan to achieve some ulterior object. It is true that the necessary effect of almost all the gifts will be disinheritance of one or the other of the heirs of the donor but then it should be the effect and not the real object of the gift, if the real object of the gift is disinheritance of an heir, it will be bad in law.
15. The principle enunciated in above mentioned case law has been followed in the case titled "Barkat Ali v. Mst. Barkat Bibi and another", reported in 1991 MLD 2707.
(i) Concurrent Findings...
' Suit challenging gift...Decree passed in---Decree confirmed by appellate Court...Challenge to...Courts below have concurrently decided question of fact relating to influence of petitioner over his father... Finding has not been shown to have resulted from any jurisdictional error or misreading or non-reading of some material evidence ..Held: Undeniable object of alleged gift being to benefit son at cost of married daughter, it is not possible to interfere in exercise of discretionary power of revision on account of substantially just decision between parties having been concurrently made by two courts below.
' Same principle has been followed by this Court in case titled Mst. Khalida Bibi v. Mst. Daryai Khanum and others reported 1994 MLD 2339.
(b) Muhammadan Law--- ---Gift--- Gift intended to disinherit an heir would be a sham transaction and therefore, nugatory in the case titled Mukhtar Ahmed v. Mst. Rasheeda Bibi and others reported in 2003 SCMR. 1664 Honourable Supreme Court observed reproduced as under:-
16. It is also observed by the honourable apex Court of the Country that in the wake of frivolous gift, the females in the family deprived of, the course of inheritance prevalent at present time, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is to be done to the rightful owneRs,
17. In view of the above factual and legal position obtained in the instant case, it is by now crystal clear that any transaction whereby the rightful heir is being deprived of by her/his propositus or any other person deriving the advantage of the legal incapability and old age of a close relative, the transaction would be hit by the provisions mentioned above and could be declared as unlawful and nugatory to the Principles of Islamic Law.
18. The sale Mutation No,826 attested on 5-2-1987 in favour of defendant/respondent No,1, has also been challenged by present petitioner, the respondent in this respect produced the Revenue Officer, testified the attestation of mutation and also stated material facts relating to the said mutation, the witnesses D.W.5 to D.W.9 have also been produced, who have testified about the alienation of the suit property through sale mutation, besides, the defendant/respondent No,1 himself was examined, his evidence is consistent, however, there is no proof of sale consideration as paid to Khan Raz father of the parties, anyhow, revenue officer who appeared before the learned trial Court, examined as D.W.7 namely Muhammad Zaib Khan Exh-Naib Tehsildar Swabi, admitted as correct entries and signatures in Mutation No,826, same was attested in open gathering, besides, other Mutations have also been attested by this witness, nothing has been brought on record to rebut the evidence produced by the defendant/respondent in support of mutation of sale, in such circumstances, when both the courts below declared the transaction of sale as genuine one, therefore, this court will not enter into controversy, which has been unanimously decided by both the courts below, and the contention of the defendant/respondent No,1 supported by evidence in this respect.
19. In view of above discussion, this revision petition is partially accepted. Mutation No,740 attested on 7-9-1983 is declared unlawful, un-Islamic and void, therefore, same is cancelled, the entries made in revenue record on strength of the said mutation be corrected, thus, the ,judgment of appellate Court modified and set aside to this extent and rest of the judgment is maintained, the judgment and decree passed by learned trial Court is restored. No order as to costs.