' SHAHID WAHEED, J. --- The petitioners through this civil revision under Section 115, CPC have challenged the validity and legality of the judgment and decree dated 27.11.2010 passed by the learned Additional District Judge, Ferozewala, who affirmed the judgment and decree dated 20.10.2006 passed by the learned Civil Judge, Ferozewala, whereby their suit for cancellation of documents, declaration and permanent injunction was dismissed.
2. Briefly the facts of the case are that land measuring 332 kanals, 9 marlas situated in revenue estate of Wahgray, Tehsil Ferozewala, District Sheikhupura, was owned-by Muhammad Ali son of Allah Bakhsh, predecessorin-interest of the parties to the suit. As per Death Certificate (Ex.P1), said Muhammad Ali died on 22.6.1999 at the age of 90 years. On 2.4.2004 the present petitioners instituted a suit for declaration against the respondents and thereby sought cancellation of mutations No, 204, 207 and 250 in favour of respondents No, 1 to 5 on the ground of fraud and collusion. The respondents No, 1 to 3, 5 and 6 contested the suit whereas respondent No, 4 submitted the conceding written statement. On divergent pleadings the learned Trial Court framed issues and directed the parties to adduce evidence in support of their respective claims. After recording evidence, the learned Trial Court dismissed the suit vide judgment and decree dated 20.10.2006. Feeling aggrieved the petitioners preferred an appeal before the learned Addl. District Judge, Ferozewala and the same was dismissed vide judgment and decree dated 27.11.2010. Hence, this petition.
3. Learned counsel for the petitioners in support of instant petition submits that the learned Trial Court disallowed Jameel Ali (respondent/defendant No, 4) to appear as witness thereby shutting out the evidence of a beneficiary of mutation No, 204 which if allowed would have strengthen the case of the petitioners; that transaction of Hiba was required to be proved independent of mutation proceedings but the respondents failed to prove the same; that Muhammad Shakeel Nasir (DW-2) who attested mutation No, 207 in favour of defendant No, 5 deposed that he had not visited the revenue estate of Wahgray to attest mutation No, 207 in head office and, thus, this attestation was against the provisions of Land Revenue Act, 1967; that Muhammad Hanif (DW-3) who entered mutation in dispute did not produce the entries of Rozenamcha Waqiati which was an essential requirement for attestation of mutation; that disputed mutation did not carry the statement of Muhammad Ali, alleged donor, to prove the transaction of gift; and, that the impugned judgments and decrees suffer from misreading and non-reading of evidence available on record and, thus, not sustainable in the eye of law.
4. On the other hand, learned counsel for respondent% No, 1, 2, 3, 5 and 6 has contested this petition and submitted that the petitioners/ plaintiffs were to succeed on the strength of their own case and not because of weakness of the respondents' plea. By placing reliance on the judgment passed in the case of Mian lqbal Muhammad 'Banday v. Muhammad Sadiq (PLD 1995 SC 351) he submitted that the petitioners had failed to prove their claim before the learned Courts below and now wanted to take advantage of the weakness of the evidence lead by the respondents; that the suit filed by the petitioners was patently barred by time and, thus, was rightly dismissed by the learned Courts below; that the suit was filed with mala fide intention and at the instigation of petitioners' sons; and that the judgments and decrees of the subordinate Courts cannot be interfered with on the ground that some other conclusion on the basis of appreciation of evidence can possibly be reached and in support of this contention he relied upon the case of Mubarrak All and others v. Khushi Muhammad and others (PLD 2011 SC 155). Learned counsel for respondent No, 4, however, supported this revision petition.
5. I have heard learned counsel for the parties and perused the record.
6. ' It is the case of respondents that their father, Muhammad Ali, during his life-time gifted land measuring 140 kanals, 8 marlas to respondents No, 3 and 4 vide gift mutation No, 204 dated 21.9.1985 (Ex.P4); land measuring 70 kanals, 4 marlas to respondent No, 5 through gift mutation No, 207 dated 14.12.1985 (Ex.P5) and land measuring 14 kanlas, 7 marlas vide mutation No, 250, dated 06.02.1988 (Ex.P3). The petitioners, who are sisters of the respondents, through suit for declaration challenged the validity of the aforesaid gift/mutations on the ground of fraud and collusion. In these circumstances as per principle laid down in the cases of Muhammad lqbal and another v.
Mukhtar Ahmad through L.Rs, (2008 SCM R 855), Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others (2001 SCM R 1591) and Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another (2010 SCMR 32) onus was on the contesting respondents to prove the gift. It is settled principle of law that a gift; in order to be valid and binding upon the parties, must' fulfill three conditions, that is, (i) declaration of gift by the donor; (ii) acceptance of gift by the donee; and (iii) delivery of possession of corpus. On the fulfilment of above three conditions a valid gift comes into existence. A valid gift can be effected orally, if the prerequisites are complied with.
Written instrument is not a requirement under the Mohammadan Law nor the same is compulsorily registerable under the provisions of the Registration Act, 1908. Only the completion of the above- stated three conditions is mandatory; and, registration of the documents would not be helpful if any of the afore-mentioned condition is not satisfied. The Hon'ble Supreme Court of Pakistan in the case of Mst. Kalsoom Bibi & another v. Muhammad Arif & others (2005 SCM R 135) has held that beneficiary under the document is bound not only to prove the execution of document but also to prove the actual factum of gift by falling back on three ingredients of proposal, acceptance and delivery of possession. In this perspective, I, with the assistance of the learned counsel for the parties have examined the evidence. The respondent No, 1, Faqir Ali, while appearing before the learned Trial Court as DW-8 has not stated a single word about the aforesaid essential ingredients of gift. Same is the position of other respondent i,e, Munir Ali, who appeared before the learned Trial Court as DW-10. The failure to clearly establish the requirement of gift was fatal to the claim of the contesting respondents and, therefore, it could not be said that a valid gift was made by Muhammad All in their favour. The contention raised by the learned counsel for the respondents that factual findings of the Courts below cannot be interfered by this Court in exercise of its revisional jurisdiction has no force for the reasons that the above-said aspects of the matter were not properly considered by the learned Courts below and, therefore, by misreading and non- reading of evidence available on record fell in error while dismissing the suit.
7. Hafiz Khalil Ahmad, learned counsel for thecontesting respondents, by raising objection with regard to limitation submitted that the suit was barred by time as the impugned gift mutations were attested in the year 1985 whereas the suit for their cancellation was filed' in the year 2004. I am afraid this contention has no force. The petitioners challenged the gift mutations attested in favour of the respondents on the ground of fraud and collusion. The fraud and collusion may be unearthed by lifting the veil of gift. Though it is not necessary for a donor to furnish reasons for making a gift yet no gift in the ordinary course of human conduct be made without reason or justification unless the donor is divested of power of reasons and logic and unless he is a person of unsound mind. The Hon'ble Supreme Court of Pakistan in the case of Barkat Ali through L.Rs, and others v. Muhammad Ismail through L.Rs, and others (2002 SCM R 1938) has held that in the wake of frivolous gifts generally made to deprive the females in the family from the course of inheritance prevalent at present times the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful owner and no course of inheritance is bypassed. In the instant case no reason has been furnished for making gift in the impugned mutations. However, the respondent No,
1. Faqir Ali (DW-8) and respondent No, 5, Munir All (DW-10) in their statements before the learned Trial Court stated that Muhammad Ali had transferred the suit land for God's sake {{URDU TEXT}}. It means that love and affection of sons was not the consideration of gift but instead the intention behind the transaction was to please God Almighty. If that was the intention of Muhammad Ali, then he could have not ignored his daughters and deprived them of their share from inheritance. This fact finds corroboration from the written statement of respondent No, 4/donor, who has supported the stance of the petitioners. Thus, it appears that only to deprive the daughters form inheritance, the impugned gifts were got sanctioned and for this reason it is held that the gift made in favour of contesting respondents was not valid rather it was based on fraud. It is well-settled principle of law that fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation the matter can be considered on merit so as not to allow fraud to perpetuate. In this regard reference may be made to the case of "Mst. Raj Bibi" (supra).
Besides above, the question of limitation with regard to claim of inheritance has been discussed by the Hon'ble Supreme Court of Pakistan in the case of Ghulam Ali and 2 others v. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and relevant extract thereof is reproduced below for facility of reference:--- "The main argument of the learned counsel in this behalf is that the mutation sanctioned in 1963 against the respondent and her failure to challenge it for a long period would constitute such a conduct which would render the petitioner's possession as adverse to her. In answer to the query that she having become a co-sharer immediately on the death of her father the plea of adverse possession against such a co-sharer would not be available to the petitioners, learned counsel further contended that the mutation which was sanctioned against her interest together with her conduct of not challenging the same for a very long term, would constitute her ouster and that being so the plea of co-sharership in this behalf would stand repelled.
' This controversy now stands finally settled by a recent judgment of this Court. It was held in 'Haft v. Khuda Yar' (PLD 1987 Supreme Court 453) that a similar adverse entry and non-participation in the profits of the property would not amount to an ouster. While taking note of the earlier case of 'Anwar Muhammad and others v. Sharif Din and others' (1983 SCMR 626) in extenso, it was observed that "wrong mutation conferred no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue".
' The suit in the said case was treated as having been "based on title and not for correction of revenue record". Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation.
' In the case of Anwar Muhammad the defendants in an inheritance case of similar nature, having failed in the High Court their plea of adverse possession and limitation was repelled by this Court with the following statement of facts, observations and findings:--- "The inheritance of Lakhwera was in dispute between the parties who are descendants from the same common ancestor. The plaintiff-respondents claimed that as heirs they were entitled to a particular share in this estate of Lakhwera and the mutations attested in 1907 and 1908 with regard to the devolution of his estate were not in accordance with law. The petitioners resisted the claim not on the ground that the plaintiffs were not heirs of Lakhwera according to Shariat or that their shares were different from those claimed by them but on the ground that a suit for declaration was not competent as they were in possession of the suit land, and that it was hopelessly barred by time. A number of issues were framed and the two Courts dismissed the claim of the plaintiffs-respondents but in second appeal it was held that the plaintiffs- respondents admittedly held the land jointly with the petitioners and that their possession over the land was through their co-sharers and the declaration of the property could be obtained by them and the Revenue record had to be consequently corrected to reflect it.
' The learned counsel for the petitioners has reiterated the points taken up earlier. His insistence is that in the Bahawalpur State before the enforcement of the Land Revenue Act, as the Settlement record shows, the settlement with record to the payment of land revenue was made with those persons who were in cultivating possession over the landexcluding altogether others who were out of such possession. It is contended that when Lakhwera died the petitioners were in possession of the land and were so recorded excluding the plaintiffs-respondents. Thus the learned counsel for the petitioners wants to transform into principle of inheritance. Such a claim is based neither on custom nor on Shariat. What law prevails in the matter of preparation of Revenue record or what practice is followed by the officers cannot be determinative of the devolution of the estate of a deceased person. It appears that the plaintiffs-respondents were the heirs of Lakhwera and entitled to inherit in the same manner as the petitioners. The land being joint there was no question of their remaining out of possession or the suit being time-barred. The possession of the one co-share is for the benefit of all the other co-sharers and a co-sharer is deemed to be in possession through his other co-sharers. Similarly because the mutations were attested in 1907 or 1908 does not bless the transaction with sanctity. These mutations conferred no right in the property and are at best arrangements made on the fiscal side for ensuring realization of land revenue and ensuring the correctness of the Revenue record for that purposes."
' The above-said principle has been reiterated by the Hon'ble Supreme Court in the case of Muhammad Anwar and 2 others v. Khuda Yar & 25 others (2008 SCM R 905) wherein it has been held that the possession of the legal heirs would be deemed to be that of their deceased predecessor-in-interest and limitation would not run against co-sharer. In view of the above cited principles laid down by the Hon'ble Supreme Court of Pakistan the objection qua the limitation is repelled and findings of the courts below in respect of issues No, 4 are reversed as the same suffer from mis-application of law.
9. In view of above, this petition is accepted the judgments and decrees dated 20.10.2006 and 27.11.2010 passed by the learned Courts below are set aside and the suit filed by the petitioners is