' ALI AKBAR QURESHI, J.---The petitioners, who have been deprived from their right of inheritance guaranteed by the Allah Almighty and the Law of Land by their brother as usual using the device of a gift mutation, filed a suit for declaration, challenging the gift mutation No,7942, dated 02.02.1992, on the grounds, that the father of the parties to the case namely Muhammad Ibrahim died on 22.04.2001, leaving behind the two daughters (the petitioners) and one son (respondent) to mourn his death. The deceased father left the suit land in legacy, which was being cultivated by deceased Ibrahim in his life time and after his death his only son Muhammad Sharif, the respondent herein; when the petitioners demanded their shares from the legacy as per the law, respondent firstly put off the matter on different pretext but finally refused to give the share to the petitioners and stated, that the suit property has already been transferred in his name by way of gift mutation by the father of the parties to the case; the petitioners on coming to know hurriedly contacted to the concerned patwari, and it came into their knowledge that the respondent with the connivance of the revenue staff through a fake document (alleged gift) has transferred the land in his favour and lastly prayed that the petitioners are admittedly legal heirs of deceased Ibrahim, so are entitled to get the suit property to the extent of their share.
2. The suit was contested through written statement by the respondent wherein he stated, that the suit land was transferred by way of gift mutation by deceased Ibrahim firstly in favour of his grandsons but subsequently the same was transferred in favour of the respondent/real son of the deceased Ibrahim and further, the gift was made with the prior consent of the petitioners.
3. The learned trial court after completing all the codal formalities decreed the suit vide judgment dated 24.02.2010, against which an appeal was filed by the respondent, which was allowed and the suit of the petitioners was dismissed vide judgment and decree dated 28.08.2010.
4. Heard. Record perused.
5. The story of instant case depicts the constant and longstanding behavior prevailing in the sub- continent of the brothers to deprive their sisters from their secured and guaranteed right of inheritance through different modes. In this case, the respondent, who is the real brother of the petitioners is depriving the petitioners from their right of inheritance on the basis of a gift mutation of suit land dated 02.02.1992. The following events are necessary to take into consideration to decide the fate of the alleged gift claimed by the respondent:-- i. The alleged gift firstly was made, as claimed by the respondents, by deceased father of the parties to the case, in favour of his grandsons (sons of respondent) but subsequently through another rapt roznamcha, the gift of the same land was made in favour of the respondent Muhammad Sharif on the same day through same mutation (Exh. D11). ii. There are serious nature of cuttings on the alleged mutation but no explanation to this effect is available on the mutation or in the record and further no application was filed by the respondent to rectify the aforesaid cuttings. In fact, the cuttings which had been made on the mutation and also admitted by the witnesses appeared A on behalf of the respondent are sufficient to declare the gift deed null and void and in effective qua the rights of the petitioners. iii. The respondent himself appeared in thee witness box but did not utter even a single word about the date, time and place of making of the oral gift and names of witnesses in whose presence the alleged oral gift was made. iv. The petitioners while filing the suit and appearing in the witness box specifically asserted that the alleged gift is product of fraud and no gift was made by the father of the petitioners but this important part of the examination in chief has not been cross-examined and further the petitioners also stated in the evidence, that late Ibrahim, father of the petitioners did not mark his thumb impression or mentioned his National Identity Card number over the gift deed but this part has not too been cross-examined by the respondents. By this way the claim of the petitioners has gone un-rebutted and is admission on the part of the respondent. v. The thumb mark of deceased Ibrahim is not available over the gift mutation. This fact is sufficient to declare the gift deed unlawful and product of fraud. vi. The respondent while appearing as witness stated, that consent of the petitioners was obtained by his late father Ibrahim in the presence of Shafee and Muhammad Ishaq but none of these persons were produced as witness in the witness box to corroborate the version of the respondent.
Vii. The respondent who appeared as DW1, stated, that firstly the suit land was gifted in favour of Abdul Rehman and Ismail, grandsons of late Ibrahim and thereafter the names of the aforesaid grandsons were crossed and the name of the respondent was written. Viii. The respondent has claimed that firstly the gift of suit land was made by deceased Ibrahim in favour of his grandsons, but the mandatory ingredients of gift i,e, offer, acceptance and delivery of possession are missing and same is the position in the case of subsequent alleged gift made in favour of respondent.
Needless to observe, that under the law, the respondent was required to prove the oral gift independently that of the gift mutation. ix. To prove the alleged gift, the respondent did not produce the scribe or signatory of the gift or any official from the revenue staff. The alleged gift deed (Exh.D11) was produced in the statement of learned counsel, which otherwise is not admissible in evidence. Reliance is placed on, the esteemed judgment of the Hon'ble Supreme Court of Pakistan cited as "Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others" (PLD 1973 Supreme Court 160), wherein it is ruled, that except the judicial record, all other documents, even if exhibited, can only be read in evidence if the signatory or the scribe appeared in the Court. Relevant part of the judgment (supra) is reproduced hereunder:- "When I say that the document Exh. P. E. Is unproved, I have in mind the mandatory provisions of section 67. Of the Evidence Act, which lay down that "if a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting". If the case of the respondent was that the appellant had signed the original of Exh.P.E. Or the certificate appended to it, it must have been proved that it was in the appellant's handwriting, for which no effort whatsoever was made. In the case of Bengal Friends and Co. v.
Gour Benode Saha and Co., this Court had expressed itself on this point as follows:- "Documents which are not copies of judicial record, should not be received in -evidence without proof of signatures and handwriting of persons alleged to have signed or written them."
' I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence. Act."
6. The afore-referred instances of the instant case which relate to the alleged gift, are sufficient to believe that no gift was made by late Ibrahim in favour of the respondent and in fact this all was managed with the connivance of the revenue staff by the respondent to deprive the petitioners from their valuable right. This practice has already been deprecated by the Hon'ble Supreme Court of Pakistan in the landmark judgment cited as "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 Supreme Court 1), wherein the Hon'ble Supreme Court of Pakistan has observed, that the women, who are weaker segment of the society, should not be deprived from their right of inheritance in the name of customs or by emotionally exploiting them. The relevant portion of the judgment is reproduced as under:-- "As is discussed in the case of Haji Nizam (approved in Mohammad Bashir's case) which was also a case of clash of Islamic principles against those of other systems-a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in Accordance with Islamic Jurisprudence, is yet to take its own time.
' In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct rules. But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/ seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an urbanised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of 'rights', up to the enforcement' even in homes, through 'Social Security' Laws, with web of network of `Inspectorates' etc. Who are supposed to be helping him at. Every step, his unfortunate sister,~ who is deprived of her most valuable rights of inheritance even today by her own kith and kin-sometimes by the urbanised brother himself is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed new set up is needed in this behalf Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone."
7. As regard the recording of wrong entries in the revenue record in the matter of inheritance the Honourable Supreme Court of Pakistan in the judgment cited as "Mst. Gohar Khanum and others v.
Mst. Jamila Jan and others" (2014 SCM R 801), (mentioned supra) has held as under:- "We have heard learned counsel for the parties at great length and have also gone through the impugned judgment and the record with their assistance. The relationship between the parties is undisputed. It is, therefore, clear that on the death of Hashim, in accordance with Islamic Sharia which was applicable to the question of inheritance in this case, the petitioners through their predecessor-in-interest Dost Muhammad became owners of 2/3rd of the property while the respondents through their predecessor Mst. Zaria Jan became owners through inheritance of the remaining 113rd of the land.
"The main emphasis of the learned counsel for the appellants was that the suit was time barred having been filed 50 years after the mutation dated 31.08.1940. This contention, is however, easily dispensed with as Mst. Zarina Jan admittedly came to own a 1/3rd share of the land by operation of law and not by any mutation. The mutation was meant to record the legal entitlement of Dost Muhammad and Mst. Zarina Jan. If the mutation was erroneously made in favour of Dost Muhammad, such mutation would not create title in favour of Dost Muhammad in accordance with Sharia Law of inheritance. Learned counsel for the appellants repeatedly emphasized that Mst. Zarina was fully aware of the decision and assertion of title by her brother Dost Muhammad and Dost Muhammad had also constructed a house on the disputed land. This, however, does not attract the provisions of Limitation Act in the circumstances of the present case. Mst. Zarina Jan being the sister was co-owner and the possession / occupation of the land by her brother as the other co-owner could only be construed as possessions on behalf of all co-owners including Mst.
Zarina. In order to relinquish or transfer her interest in the property, there had to be a positive and affirmative act. We have not been shown any Document or deed of relinquishment, sale, transfer or gift which would establish that Zarina Jan had either relinquished her ineptest in the disputed property or actually conveyed or transferred the same in favour of Dost Muhammad. In the absence of any such affirmative act on the part of Mst. Zarina Jan, it cannot be said that the property came to vest entirely in Dost Muhammad."
"It was next contended that Mst. Zarina Jan did not appear in the witness box herself and instead her daughter in law namely Mst. Karam Jan appeared as P.W.1. The fact is that Mst. Zarina Jan was close to 100 years old and, it was this exigency which required her to act through her daughter in law. Since it is not disputed that the brother and sisters were owners of the disputed land by way of inheritance, the onus squarely fell on the appellants to establish that the 1/3rd interest of Zarina had been transferred in favour of Don Muhammad or that Zarina had relinquished her rights in the suit property. But this onus was not discharged."
8. Learned counsel for the respondent when confronted with the aforesaid facts and the law, the learned counsel although had no answer but repeated his arguments that the gift was validly made in favour of the respondent with the consent of the petitioners. As regards, the cuttings over the gift deed the learned counsel could not offer any satisfactory explanation and simply submitted, that the same is related to the revenue staff but as regards the validity of the gift deed because of these "cuttings" the learned counsel could not refer any law.
9. There is another aspect of the case relating to the ingredients of gift. The mandatory requirements to prove a gift i,e, offer, acceptance and delivery of possession is missing in this case.
The respondent could not prove through any credible and confidence inspiring evidence the aforementioned ingredients, therefore, it can safely and conveniently be held that the alleged gift is product of fraud and fabricated simply to deprive the petitioner from the secured and guaranteed right. The learned appellate court, as manifest from the findings, carelessly perused the record and committed serious illegality and jurisdictional defect while passing the judgment impugned herein.
In fact, as evident from the record and particularly the revenue record, the respondent has played a havoc fraud with their sisters to grab their shares granted by Allah Almighty, therefore, is not entitled for any leniency.
10. The judgments referred by learned counsel for the respondent, as appears from the aforesaid facts, are not applicable.
11. Resultantly, this revision petition is allowed, the judgment and decree dated 28.08.2010, passed by the learned appellate court is set aside and that of learned trial court dated 24.02.2010 is upheld.
No order as to costs.