' SYED SAJJAD HASSAN SHAH, J.- Through the instant petition, the petitioner-plaintiff Muhammad Akram Khan has called in question the judgment and decree dated 6-1-2011 passed by learned Additional District Judge-V, D.I. Khan whereby the appeal filed against the judgment and decree dated 14.10.2009 of learned Civil Judge, Kulachi, District D.1. Khan was dismissed.
2. Briefly stated facts of the case are that petitioner-plaintiff Muhammad Akram Khan filed a suit against respondents-defendants Nos.1 to 3 i,e, Muhammad Iqbal and his two sons Muhammad Israr and Muhammad Aitebar and his sisters Mst. Bakhtora Bibi, Mst. Guizar Bibi and Mst. Shamshad Bibi pro forma respondents-defendants Nos.4 to 6 for declaration to the effect that he and pro forma respondents-defendants entitled to the legacy of his father, to the extent of 5/7 share of house and agricultural property fully detailed in the plaint and the respondents-defendants Nos.1 to 3 have no concern with the entire ownership of their predecessor Abdullah Jan, thus, the alienation made through Hibba in respect of house through registered deed No,6 dated 14-6-1999 and gift of agricultural property through Mutation No,417 1 attested on 29-5-2000 in favour a respondent-defendant No,1 is against law, fraudulent, mala fide and in collusion with the revenue staff just to deprive the petitioner-plaintiff and respondents-defendants Nos.4 to 6 from the succession of their said predecessor.
' The petitioner-plaintiff averred in the plaint that his predecessor was not in proper senses, thus, was not capable to alienate the suit property through deed and mutation which were given effected by incorporating in the revenue record and same also requires correction in the revenue record. As a consequential relief, he prayed for perpetual injunction restraining the respondents- defendants Nos.1 to 3 from further alienation of the suit property. In relief "Bay", he prayed for possession through partition' to the extent of 2/7 share. He further asserted in the plaint that the parties are the descendants of Abdullah Jan deceased and after his death, the petitioner-plaintiff and respondents-defendants Nos.4 to 6 being his son and daughters are entitled to 3/7 and 2/7 shares respectively. All of them are in possession of the suit property which is not the exclusive ownership of responden 'defendant No,
1. He further asserted that two months prior to the institution of suit, the respondent-defendant No,1 claimed ownership of the entire house and the agricultural property in which the petitioner-plaintiff approached the revenue officials, where on inspection of revenue record, it transpired that respondent-defendant No,1 got registered in his name the entire property of their father Abdullah Jan. The respondent-defendant No,1 while committing fraud, prepared bogus and fabricated documents in his favour which are based on mala fide, void and the result of coercion.
3. The suit was contested by respondents-defendants Nos.1 to 3 by filing their written statement wherein they refuted the claim of the petitioner-plaintiff and asserted that the petitioner-plaintiff being disobedient was declared as "Aaq" by his father and the petitioner-plaintiff put forth the concocted story about grabbing of their property by respondents-defendants Nos.1 to 3. The learned trial Court framed issues arising out of the divergent pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of the learned counsel for the parties, the learned Civil Judge, Kulachi dismissed the suit of the petitioner- plaintiff vide judgment and decree dated 14-10-2009. Feeling aggrieved from the judgment and decree of the learned trial Court, the petitioner-plaintiff filed appeal which was also dismissed by learned Additional District Judge-V, D.I. Khan vide judgment and decree dated 6-1-2011. Hence, the instant revision petition by the petitioner-plaintiff.
4. The learned counsel for the petitioner-plaintiff contended that the alienation made by Abdullah Jan, the predecessor of the parties is revolving around the sole reason that he was deprived of the property on account of his disobedience. He further contended that this ground cannot be availed by the respondents- defendants Nos.1 to 3 because there is no concept of such declaration in the Islamic system of law. He further argued' that neither the respondents-defendants nor the predecessor (father) of the petitioner-plaintiff pinpointed any valid reason while depriving the petitioner-plaintiff and his daughters/pro forma respondents-defendants from their shares in his legacy, however, the disposition of property to have made in collusion with the revenue staff, the respondent-defendant No,1 managed the alienation' of the property owned by their father who'was ailing and mentally incapable to alienate the suit property. He further contended that no gift was made in favour of respondents-defendants Nos.1 to 3 because neither the pre-requisites of the gift have been proved nor cogent and convincing evidence brought on record constituting the valid gift in their favour.
5. As against that, the learned counsel for respondents-defendants Nos.1 to 3 contended that the gift was legally made and the respondents-defendants Nos.1 to 3 have successfully proved the ingredients of gift. He further contended that the petitioner-plaintiff had not claimed the suit property in the life time of his father and after his death, the filing of suit clearly amounts to pressurizing and blackmailing the respondents-defendants Nos.1 to 3 in order to deprive them from' their right of ownership in the suit property. He further contended that the petitioner-plaintiff was disobedient and insolent, therefore, he was deprived of the property by the predecessor. The learned counsel supported the judgments and decrees passed by the learned Courts below.
6. I have considered the arguments of learned counsel for the parties and carefully examined the record.
7. In the instant case, no reason except abdication of the petitioner-plaintiff has been shown for transfer of entire suit property in favour of Muhammad Iqbal and his two sons by Abdullah Jan, his father, where after the petitioner-plaintiff and pro forma respondents- defendants have been deprived of their rights in respect of the suit property. The reason, shown is not recognized under the Islamic Law. There is no cavil that the owner of the property has got every right to alienate his ownership according to his/her wishes but when father of two sons and three daughters opted to have transferred his entire holding including the residential house in favour of respondent- defendant No,1 excluding his another son and daughters apparently tantamounts, the extending benefit to one of them to the exclusion of others. True that for such a transfer, the transferor is not bound to furnish any reason/explanation, however, in the circumstances of the instant case, he had to explain that why the disposition of his entire property to have made in the name of one of his prospective heir. Every legal act under the Muhammadan Law is regarded as an obligation and validity of every obligation depends on the faculty or capacity of the persons doing the act to consider freely and rationally the consequences resulting therefrom. If the person is by virtue of an inherent or super imposed and accidental disqualification, incapable C of exercising his volition in a rational manner and with perfect reasoning any obligation entered into by him is null and void.
The one amongst other conditions is, therefore, necessary for the validity of any disposition of property is following. "Understandingly and freedom". Because the petitioner-plaintiff contended herein that Abdullah Jan, his father, to have transferred the entire agriculture property and the residential house in favour of his son the respondent-defendant No,1 vide registered deed and mutation as referred to above. However, the petitioner-plaintiff had challenged the above transfer as fraudulent, result of fiduciary relation and in collusion with revenue staff. Though being the beneficiary, the transferee was obliged to have proved the transfer in his favour as voluntary and the result of the free consent of donor but all those persons who had played a pivotal role in execution of above stated D deed and mutation, they were the persons who have seen the proceedings by the transferor in favour of transferee but in absence of their testimony, the secrets have gone unveiled and could not be disclosed. Undoubtedly, these were the legal requirements, to have been clarified and the donee has to prove by leading all available evidence that the porosities departed with his property on his free-will and the transaction of gift was free from all doubts, fraud and fabrication it was essential even for the reason that the learned counsel for the respondent-defendant stated at bar that the predecessor of the parties was residing with the respondent-defendant and he had been enjoying effective control and dominated his will, thus he transferred his entire property to the respondent-defendant while excluding the petitioner-plaintiff and pro forma respondents-defendants. It is worth to say that in support of his claim the petitioner-plaintiff has made a detail statement before the trial Court, alleging therein about, fraud and illegal exclusion of the petitioner-plaintiff and pro forma respondents-defendants of their share from the legacy of their father, but no cross-examination was conducted on behalf of the respondent-defendant No,1, which clearly denotes the admission of claim of the petitioner-plaintiff.
Moreover, the age of Abdullah Jan recorded in the order of Registrar as 70 years. And it is admitted fact that after two years of execution of deed he had passed away. In the afore-stated circumstances of the instant case, the intent and purpose was to exclude the petitioner-plaintiff and the daughters, the pro forma respondents-defendants from the .Legacy of their father, and the fraudulent and collusive deed of transfer of house and mutation pertaining to the agriculture land had prepared, shown to have got attested in his favour. Thus, the necessary corollary would be that the grounds stated by the petitioner-plaintiff have not been controverted in his cross-examination by the opposite party, thus amounted admission on his part. The above stated' reasons, coupled with the joint residence of donor and donee, one can arrive at the conclusion that the gift was not the result of free and independent consent of the donor. In such circumstances, the law leans in favour of nullifying the gift. Muhammadan Law contains no specific rules relating to the obligations imposed on the person enjoying the fiduciary relations to the donor. The Court from Indian jurisdiction went even to this extent that while deciding the proprietary and validity of the gift, that it would be invalid which contravenes the principle of gift which has been recognized by English courts of equity with regard to person standing in a fiduciary relationship; to the donor who was a Muhammadan lady, apparently possessed the requisite capacity as enunciated by the Muhammadan Law.
8. Now keeping in view the prevailing circumstances, the matter to be adjudged in context with the norms and values of society.In this regard I rely upon a Paragraph from Muhammadan Law by Syed Ameer Ali Fifth Edition by Raja Said Akbar Khan:- "We must endeavour, so far as we can, to ascertain the true principles upon which that law was founded, and to administer it with a due regard to the rules of equity and good conscience, as well as to the laws, and the state of society and circumstances which now prevailing in this country"
9. As stated herein above, the residential property owned by Abdullah Jan, the predecessor of the parties, was alienated through gift in favour of respondent-defendant No,1, however, perusal of the registered deed (Exh.D.W.2/5) reveals that no reason has been mentioned that why the entire residential house gifted and the same is the case to Mutation No,4171 referred to above. Apart from that, respondent-defendant was examined as D.W.2, took somersault and stated that the house was purchased by him from one Faizullah Khan for a sale consideration of Rs,25,000/-. Here it is difficult to believe the story of alienation of property belonging to Abdullah Jan, predecessor of the parties, because on the one hand, the respondent-defendant No,1 claimed that it was transferred in his favour by the donor and on the other hand, he claimed to have purchased the same by incurring his own .Expenses. Had this been so, why had he got it alienated in his favour as gift, inasmuch, as he produced a sale *agreement in his favour.. Whenever, the gift is made with intention to defraud creditors, it cannot be declared as lawful one. In this context, section 140 of D.F.
Mulla's Principles Muhammadan Law is reproduced as under:--- "Gift, with intent to defraud creditors.-- There must be in every gift a. Bona fide intention on the part of the donor to transfer the property from the donor to the donee (b) A gift made with intent to defraud the creditors of the donor is voidable at the option of the creditors. Such intention however cannot be inferred from the mere fact that the donor owed some debts at the time of the gift."
' In the instant case, the gift is the result of fraud as it involves or implies injury to person or property of another which is forbidden under the law. In support of the above stated point, the provisions contained in section 53 of Transfer of Property Act, 1882 can be conveniently relied upon which run as under:--- "53. Fraudulent transfer. ---(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be viodable at the option of any creditor or delayed."
' An identical question came for consideration before the august Supreme Court in case titled Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others (2002 SCMR 1938) wherein it was held 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 overwhelming reason for the grant of gift which seems to be mala fide and which is why it was assailed by the very son of the donor."
' The case titled Muhammad Yaqoob through legal heirs. v. Feroze Khan and others (2003 SCMR 41) can also be referred wherein it was held that:--- "We are of the considered view that factum of gift could not be proved by adducing cogent and convincing evidence. Besides that there appears to be no justification for the exclusion of legal heirs from the inheritance of Sher Zaman (donor) which make.s the authenticity and genuineness of the gift doubtful."
10. It appears from the evidence on the record that the gift is made just to deprive the petitioner- plaintiff and pro form respondents-defendants, who are the spessuccessionis of the alleged donor, and extending benefit to the other son namely Muhammad Iqbal respondent-defendant No,
1. Creating of such gift is forbidden under the Islamic law.
11. It is cardinal principle of law that when a document is challenged on the grounds of fraud, collusion, coercion or the result of undue influence and mala fide, thus, the bounden duty of beneficiary of K document is to prove the same by leading all the available convincing and cogent evidence. Both the above stated gift deed and mutation were challenged by the petitioner-plaintiff but the only witness namely Pir Mast Ali Shah was examined as D.W.1 but his statement could not be considered sufficient to substantiate the claim of the petitioner-plaintiff, because neither he seen his signature nor testified that the document bears his signatures.
Moreso, no other document signed by the witness has been produced for comparison with the disputed one. Likewise, the witnesses of the mutations were not examined. Even otherwise, the mutation does not confer any title and it is always used for fiscal purposes, thus, its proof as required under the law must be furnished by the beneficiary. In the instant case, neither the Sub- Registrar who registered the document was produced as witness nor the Revenue Officer was examined who attested the mutation nor the Patwari who entered the mutation and particularly the Lumberdar and other M respectable of the locality including the Councillor as required under section 42 of the Land Revenue Act to substantiate the claim of the respondent-defendant No,l.
There is not an iota of evidence available on the record that offer, acceptance and delivery of possession have been made by the alleged donor to the donee which are the essential requirement of a valid gift as required under section 149 of Muhammadan Law which says that:--- "149. The three essentials of a gift--- 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 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."
' To support the above aspect of the case, reference made of case titled Ch. Muneer Hussain. v.
Mst. Wazeeran Mai alias Mst. Wazir Mai (PLD 2005 SC 658 wherein it was observed that:- "Therefore, with reference to Article 78 of Qanun-e-Shahadat, 1984, it was held that 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 handwriting; the said Articles places emphasis on the proof of identity of author of questioned documents and this Article does not say that mere proof of handwriting/signatures/thumb-impressions of executant will prove truth of the said document."
The respondent-defendant No,1 attempted to deprive of his real brother and sisters from the above stated rights, however, he could not prove that Abdullah Jan did appear in person before the Sub-Registrar and Revenue Officer and he admitted the gift transaction in presence of Sub- Registrar and no person stood witness to support the contention of gift at the time when the registered deed was attested. Similarly, the mutation has also not been proved as mentioned hereinabove by producing requisite evidence i,e, Revenue Officer S and Sub-Registrar. Moreover, there is no- mention that the donor had delivered the possession in pursuance of gift, in absence whereof, the question of validity of gift does not arise, hence the gift is void ab initio. Both the learned Courts below have not adverted to the above aspects of the case and declared the gift as valid one. The judgments of the learned Courts below are the result of misconception of law on the subject, thus, cannot, be maintained.
12. For the reasons mentioned above, the revision petition is accepted, the impugned judgments and decrees of the learned Courts below are set aside and suit of the petitioner-plaintiff is hereby decreed as prayed for, leaving the parties to bear their own costs.