' ABDUL LATIF KHAN, J.---Through the instant petition, the petitioners have called in question the judgment and decree dated 1-11-2010 passed by learned Additional District Judge-VII, D.I.Khan vide which he dismissed their appeal filed against the judgment and decree dated 24-11-2009 of learned Civil Judge-V, D.I.Khan.
2. Brief facts leading to the instant petition are that Mst. Ashoo Bibi (now dead and represented by her legal heirs i,e, petitioners) filed a suit for declaration and perpetual-cum-mandatory injunction to the effect that the suit property, fully described in the heading of plaint, is the joint ownership of the parties as per their legal heirs being inheritance of Khan Mohammad and that Mutation No,1292 dated 23-3-1952 on behalf of Khan Mohammad in favour of defendant No,1 and Mutation No,2005 dated 15-6-1971 in favour of defendants Nos.2 and 3 and subsequent mutations and entries in the revenue papers pertaining to the suit property being wrong, illegal, forged, fabricated are liable to cancellation and correction. She also sought possession of 27 kanals 15 marlas out of the suit property.
3. The suit was contested by the respondents/defendants by submitting their written statement.
The learned trial court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments, the learned Civil Judge-V, D.I. Khan dismissed the suit vide judgment and decree dated 24-11-2009.
4. Aggrieved of the same, the petitioners filed an appeal which was also dismissed by learned Additional District Judge-VII, D.I.Khan vide judgment and decree dated 1-11-2010, hence the instant petition.
5. Learned counsel for the petitioners argued that gift Mutations Nos.1292 attested on 23-3-1952 and 2005 attested on 15-6-1971 are the result of fraud, as the donor has not made any gift in favour of alleged donees. He contended that donor, Khan Mohammad deceased, predecessor of parties contracted two marriages. From first marriage, plaintiff and two other daughters and respondent No,1 were born and in second marriage, gave birth to two sons and four daughters, all respondents in the case, plaintiff has been deprived of her legal share through impugned mutations fraudulently attested in favour of respondents. He argued that disputed mutations do not contain the signatures of donor and donees, besides marginal witnesses and are liable to cancellation. He added that procedure has been violated during the course of attestation of mutations, which makes the same as illegal. He contended that burden of proof has been wrongly placed upon the petitioners and Courts below have erred in law to observe in this regard. He added that the evidence produced by the plaintiff has not been evaluated in proper perspective and non-suited illegally. He contended that the transfer of possession has not been effected at the time of alleged gift or even after attaining majority by the alleged minors. He further argued that ingredients of gift are lacking in the instant case, rather vehemently stressed that no gift has since been given by the donor and donees have committed fraud by getting mutations attested in their favour. He added that impugned judgments are passed in disregard of Order XLI, Rule 31, C.P.C, as non-speaking and ambiguous orders have been passed by the Courts below.
6. As against that, learned counsel for the respondents contended that delayed suit has been filed and being hopelessly time barred is liable to be dismissed. It was argued that only plaintiff, one daughter has instituted the suit and none else out of legal heirs of Khan Mohammad, deceased donor, has questioned the mutations, nor came forward to support the contention of plaintiff. He added that Gama, respondent No,1, was aged about 13/14 years at the time of Hiba through Mutation No,1292 in the year 1952, whereas respondents Nos.2 and 3 were aged about 3/4 years, in the year 1971 at the time of attestation of second gift Mutation No,2005 attested in 1971, so being minors were not capable of committing fraud. He contended that donor Khan Mohammad died in the year 1995 and in his life time, none objected the gift and are estopped to do so by now, at the belated stage. It was further argued that no evidence has been produced by the plaintiff to prove fraud, if any, committed by the minors, nor particulars of fraud were given in plaint, as required under the law. He added that plaintiff has been non-suited by Courts below concurrently and nothing wrong has been pointed out by the petitioners to reverse the same. He added that signatures on the mutations were not the requirement of law in the year 1952 and in case of later mutation too, it was not necessary, even then one marginal witness, has thumb impressed it and thus the objection is without any substance.
7. I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their able assistance.
8. The disputed property was originally owned by Khan Mohammad son of Yaqoob, donor, predecessor in interest of the parties. He contracted two marriages. The plaintiff along with her other daughters and respondent No,1, Gama, born of first wife, whereas two sons, respondents Nos.2 and 3 and four daughters were given birth from second wedlock. He made gifts in favour of his son Gama, from first wife in the year 1952 vide Mutation No,1292 to the extent of 167 kanals 6 marlas and gift Mutation No,2005 was attested on 15-6-1971 in faveur of respondents Nos.2 and 3, his sons, from second wife, in respect of landed property measuring 275 kanals 9 marlas. He remained alive till 1995. None questioned the gifts during his life time, however, after about four years of his death, in the year 1999, the plaintiff, who happens to be his daughter, filed the instant suit, wherein both the gift mutations were challenged on the ground that donor has never made the gift and it is the result of fraud, committed by the donees. It is pertinent to note that none except the plaintiff, out of legal heirs of donor, assailed the gifts, nor came forward to support her claim. The bald allegations of fraud made in the plaint in omnibus manner, without giving any particulars, as required under Order VI, Rule 4, C.P.C, which is reproduced as follows:-- "Particulars to be given where necessary. ---In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items, if necessary) shall be stated in the pleading."
' The bare reading of the provision requires the party alleging fraud has to give the particulars, the mode and manner of commission of fraud. No evidence to this effect produced. P.W.3, son of the plaintiff has simply repeated the version of fraud without the aid of any proof. The vital aspect of the instant matter is that donees of both of the gift mutations i,e, respondents Nos.1 to 3, were minors at the time of attestation of mutations and were incapable to commit fraud and thus the plaintiff was under obligation to prove as to how fraud was committed or even expected from those who are minors. No explanation put forward in this regard by the plaintiff though P.Ws examined as P.W.-3 to PW-5.
9. The defendants are admittedly shown in possession of the suit property, both in the revenue record and oral evidence. Though possession was not transferred at the time of gift but delivery of ,possession was not necessary, as the donees were admittedly minors at the relevant time as it is not material in case of minors. Much stress has been laid by the petitioners' counsel on this point but not fatal, for the reason that general rule of Mohammadan law prescribes delivery of possession as one of the important ingredients but exception also provided in case where father gifted property in favour of minor son or by a guardian to his ward and possession of father or guardian after the declaration of gift, would amount to possession on behalf of the donee/ minor.
Even the delivery at a subsequent stage, would cure the deficiency of non-delivery of possession and in no eventuality would make the gift invalid, due to non-delivery of possession in case of minor and ward.
10. The real sister of respondent No,1 Gama, donee, namely Mst. Waziran appeared as DW-1 who deposed that her father had made gift in favour of Gama, respondent No,1 and further gifted certain property in favour of respondents Nos.2 and 3. Needless to mention that she being affectee of the gifts made in favour of respondents, admitted the gifts which shows that donor had in fact gifted the property and mutations were validly attested. Gama appeared as DW-4, Sher Zaman, respondent deposed as DW-5 and Mohammad Aslam appeared as DW-6. All the witnesses were subjected to searching and taxing cross-examination but nothing adverse to the stance of defence, was extracted and as such the defendants succeeded to prove that gifts were validly made by the donor in favour of the donees and plaintiff failed to make out a case for interference.
11. Under Mohammadan Law, gift can be made orally without the aid of any instrument like registered deed and mutation. Though mutation does not create title, yet it is attested in public gathering and entries made therein can be taken as evidence. It carries endorsement by the revenue officer, regarding its contents, however, subject to proof.
12. First gift mutation attested in the year 1952. The provision of law relating to attestation of mutation does not require any witness to sign the same, at the relevant time, hence objection raised to this effect holds no water. The subsequent mutation attested in the year 1971 no doubt does fall within the domain of provisions of section 42 of West Pakistan Land Revenue Act, 1967 which provides the mode and manner for the attestation of mutation but gives no impression of being mandatory in nature, as the entire, West Pakistan Land Revenue Act, 1967 is silent regarding penalty in case of non-adhering to procedure prescribed in section 42 of the Act. The disputed mutation has been attested by Ghulam Sarwar lumberdar, as marginal witness, duly endorsed by revenue officer circle. In such scenario, signature of donor or donee is not required upon the mutation under the law. The gift has already been proved through oral evidence. The remarks column reveals that statement of the donor recorded to the effect that previously he has gifted certain property and the donees were born later on, therefore in order to satisfy their right, this mutation for gift was entered at the instance of donor. This report/statement made, verified by Qanoongo and endorsed/attested by revenue officer in public gathering, would in no case be termed as defective and amounts to sufficient compliance of referred provision. In fact the matter is to be dealt with in broader legal sense and not to confine to the minor procedural issues. The object and aim of the donor has to be visualized with special reference to his statement in column of remarks in Mutation No,2005, recorded by the patwari. He had two wives admittedly. He gifted certain land to only son born of previous wife and later on out of second marriage, two sons born to whom he made gift to equalize their right. He had the right to use his property as liked. Under Islamic law even, there exists no bar against gift made by the owner/donor in favour of anyone and was not bound to assign any reason for making gift. Both the learned courts below properly evaluated the factual as well as legal position and arrived at a correct conclusion by non-suiting the petitioners.
13. For the reasons mentioned above, the instant revision petition being bereft of any merit is hereby dismissed, leaving the parties to bear their own costs.