' SALAHUDDIN PA NHWAR, J.--- Through instant application applicant seeks rejection of plaint.
Precisely, relevant facts are that Mrs.Suriya Iqbal Chishti filed suit for declaration, cancellation of documents, mandatory injunction and damages with following prayer. "a) Declare that Mrs. Suriya lqbal Chishti is the rightful legal owner of the property bearing 3/B-1 Zamzama Street, Clifton, Karachi. b) Cancellation of Gift Deed dated 21.12.2003; c) To restrain the Defendant/s from creating any third party interest over the said property till the pendency of the instant suit. d) To direct the Defendants Nos.2 and 3 not to register any sale/gift deed in relation to the suit property during the pendency of the instant suit. e) Award damages in the sum of Rs,10 Million. f) .......................................................................... g) ..............................................................................................
2. Learned counsel for defendant No,1 at the outset contends that during pendency of this suit plaintiff expired, thus legal heirs Nos.2, 3 and 4 were joined and such amended title was filed; Under Section 167 Subsection (2) legal heirs cannot challenge gift made by plaintiff's mother in favour of defendant No,1 (Daughter) as such gift falls within the scope of (Hiba); Plaintiff No,4 filed suit for possession against defendant No, 1, hence possession with defendant No,1 is not disputed; all the three essential ingredients of gift were. Completed, hence even donor cannot revoke the same, in case the gift is in favour of a person who is falling within the prohibitory decrees. He relied upon Section 167, Subsection (3) of Muhammadan Law. Further he contends that it is not disputed that father is the witness of that gift; he has not denied by filing affidavit, therefore, geniuses of this document is no more disputed. In support of his contention he relied upon 1987 SCMR 1492, PLD 1989 SC 362, PLD 1960 Lahore 130, PLD 1968 SC 54 and with further plea that periodically this suit stands abated under Article 77 of Limitation Act.
3. In contra, plaintiff No,2 who is present in the Court contends that plaintiff was patient of dementia, having age of 68 years, no possession was handed over to the defendant No,1, however, he has not denied his signature over the gift deed but contends that probably some intoxicate material was poured in his tea and he was taken to the DHA office for the signature of that gift deed. He also claims that two other properties were given to defendant No:1 but she sold out the same.
4. Learned counsel for DHA contends that still property is in the name of Mrs. Suriya Iqbal Chishti (plaintiff).
5. Learned counsel for plaintiff No,3 contends that as per Section 161 subsection (1) of Muhammadan Law, gift can be challenged and can be declared void by the civil Court. Plaintiff has categorically taken plea that such document is result of misrepresentation and fraud, hence requires evidence. He also contends that mutation, if any, affected in favour of defendant will not prevail if this Court reaches on the conclusion that basic ingredients of the law is missing; onus of probandi lays upon beneficiary who is the defendant No,1. Accordingly plaint is not liable to be rejected. In support of his contentions he has relied upon 2005 SCMR 135 relevant page 140 paragraphs 9 and 10, 1994 SCMR page 8081 (D)(sic), PLD 1956 WP-Lahore 716(a), 1994 SCMR 1939 relevant page 1941, 1997 MLD 432, 1997 CLC 1260.
6. I have heard the respective parties and have carefully examined the available material so also the relevant referred provisions.
7. Since it is a settled principle of law that while deciding application under Order VII, Rule 11, C.P.C..
Court has to assume that whatever mentioned in the plaint is correct and believable, however, admitted documents can be considered.
8. With regard to specific plea, taken by the learned counsel for the defendant No,1, for rejection of the plaint on the ground that since the donor has died hence her successors, within meaning of Section 167(2) of Mohammadan Law, cannot seek revocation of the gift. For a proper reply let's have a direct reference to relevant Section of Mohammadan Law which reads as: 'A gift may be revoked by the donor, but not by his heirs after his death.
288. It is the donor's law that will apply to a revocation and not that of the donee'
' From the above, it is quite clear that 'revocation' if made by the donor herself/himself is competent. The defendant No. 1 cannot deny to the fact that it was the donor herself who had filed the instant suit hence proposition is not applicable rather entirely misconceived for a situation where 'suit for revocation' is filed by the donor herself but he / she, as the case may be, dies during pendency of the suit. Such suit can well be continued by successors because it would be successors who would be entitled to inherit their shares in property for which revocation if would have been allowed by the Court during life time of the donor. Further, the Order XXII, rule 1 of the Code has made it clear that death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. In short, a suit competently filed by plaintiff cannot be rejected merely for reason of his/her died during the pendency of the suit because there is much difference in terms 'abating of proceedings' and 'rejection of the plaint.
9. Now, I would attend to the second plea of the learned counsel for the defendant No,1 that once gift is made in favour of one, falling within prohibitory decrees then same cannot be revoked. It should stand satisfied with reference to Section 167(4) of Mohammadan Law which reads as:-
(4) Once possession is delivered, nothing short of a decree of the Court, is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even to revoke the gift.
The above provision prima facie makes it clear that a decree of the Court is the only remedy for revocation of a gift in favour of any person, falling within prohibited degree, even after delivery of possession hence jurisdiction of the Court to try such suit is not open to an exception even by Mohammad an Law. Thus, both the pleas of learned counsel for the defendant No,1 are not of any help to seek rejection of the plaint which can otherwise be rejected on the grounds, described/detailed in Order VII, rule 11 of the Code. The pleas regarding gift to be valid or otherwise shall require evidence which alone is sufficient to bring a suit out of the purview of Order VII, Rule 11,, C.P.C.
10. In view of what has been discussed above, the application under Order VII, Rule 11, C.P.C. Is hereby rejected.
' Adjourned. Interim order passed earlier to continue till next date.