1. MUHAMMAD AMEER BHATTI, J.---This revision petition is directed against the judgment and decree dated 20.05.2010 passed by the learned first Appellate Court accepting the appeal of respondents Nos.1 to 4 while setting-aside the judgment and decree dated 31.01.2007 of the learned trial Court, in consequence whereof the suit of the petitioners was dismissed.
2. The facts relevant for disposal of this revision petition are that predecessorin-interest of respondents Nos.1 to 4 and father-in-law of the petitioners namely Abdul Ghafoor being owner of the property-in-dispute alleged to have alienated the land in favour of the petitioners by way of purported oral gift. It is noticed that on 09.09.1986 suit for partition on the basis of purported oral gift was filed by impleading present respondents Nos.1 to 4 and their father/donor as defendants. It is matter of record that summonses-notices were issued for appearance of defendants therein for 30.10.1986. But on 13.09.1986 i.e. after four days of institution of the suit, an application on behalf of father was moved by the alleged attorney, husband of one of the petitioner namely Abdul Rehman and by making the consenting statement, the suit was got decreed. Acquiring knowledge about the decree, the females (present respondents Nos.1 to 4) filed an application under Section 12(2), C.P.C. for setting-aside the decree, which was accepted vide order dated 27.01.1998, however, order was reversed in revision on 14.05.1998. Consequently, Writ Petition No.1892/1998 filed in High Court was accepted on 04.12.2003. The petitioners went-up before Hon'ble Supreme Court but remained unsuccessful as the Civil Petition was dismissed vide judgment dated 29.01.2004 and decision of the learned trial Court was maintained. Thereupon, the proceedings in the suit commenced and during proceedings on an application seeking amendment in the plaint converted into a suit for declaration. Respondents Nos.1 to 4 filed the written statement and from divergent pleadings of the parties issues were framed and parties led their evidence. At the end of trial, the suit was decreed by the learned trial Court concluding that the gift was validly made in favour of the petitioners, appeal whereof, preferred by respondents Nos.1 to 4, was accepted vide impugned judgment dated 20.05.2010 resulting in dismissal of suit. Hence, this revision petition. 3.Learned counsel for the petitioners contends that the petitioners have successfully proved on record the validity of gift by producing cogent evidence, which was properly appreciated by the learned trial Court; hence, the reasons recorded by the learned first Appellate Court are injudicious, based on misreading and non-reading of evidence of the parties and also contrary to touchstone settled principle of law enunciated by honourable Supreme Court in cases reported as Mst. Saadia v. Mst. Gul Bibi (2016 SCM R 662), Noor Din and another v. Additional District Judge, Lahore and others (2014 SCM R 513), Mst. Nagina Begum v. Mst. Tahzim Akhtar and others (2009 SCM R 623), Raja Hamayun Sarfraz Khan and others v. Noor Muhammad (2007 SCM R 307), Mst. Nusrat Zohra v.
2. Mst. Azhra Bibi and others (PLD 2006 Supreme Court 15), Riaz Ullah Khan v. Asghar Ali and 2 others (2004 SCM R 1701), Muhammad Sadiq v. Sardar and others (1995 SCM R 710) and Muhammad Bashir v. Allah Ditta and others (1994 SCM R 1870).
3. Conversely, learned counsel for respondents Nos.1 to 4 vehemently supported the judgment of the learned lower Appellate Court and for that matter he also placed reliance on documentary evidence available on record.
4. 4.I have heard the learned counsel for the parties, examined the record of the case with their able assistance and gone through the case-law cited at bar.
5. 5.I deem it appropriate to reproduce the abstract of the judgment of the learned first Appellate Court, which is as under:-- "The alleged donee had two real sons and three daughters. There was no sound reasonings for him to donate his property to her daughter in laws. It seems an improbable and un-natural transaction.
6. On record there is no proof of any services rendered by the respondent in favour of Mirza Abdul Ghafoor. It is worth mentioning that during the cross-examination PW.7 and PW.8 admitted that at the time of offer and acceptance ladies were not present in the place where alleged oral gift took place. For gift the basic requirements are donee, donor and acceptance of gift and delivery of possession but in the present case the factum of acceptance by donee and delivery of the property to donee is missing. Therefore, the learned trial court mis-read the evidence and committed gross illegality while deciding the suit. Mirza Abdul Ghafoor has not gifted the property to Barjees ur Rehman and Inayatur-Rehman. This oral gift is in fact debarring the legal heirs of the deceased. The respondent has failed to prove oral gift, therefore, I accept the appeal and set aside the judgment and decree of the learned trial court and dismiss the suit. However all the property of Mirza Abdul Ghafoor shall be divided over all the legal heirs of the deceased as per their share. Mst.
7. Bargees-ur-Rehman wife of Mirza Abdur Rehman had died and she sold shop No.B-IV-126 to respondent Nos.4, 5 and 6 invalidating the gift the whole property shall devolve on the legal heirs of Mirza Abdul Ghafoor deceased therefore, his son who is husband of said Barjees-ur-Rehman shall also inherit the share from the property in question. So the shop sold by his wife to respondents Nos.4, 5 and 6 be adjusted from share of his husband at the time of partition in order to protect valuable rights of respondents Nos.4, 5 and 6 who are protected under Sec.41 of the Transfer of Property Act."
8. When the above-noted finding of learned first appellate Court was confronted with regard to the deficiency in evidence available on record qua three important prerequisites/ingredients of a valid gift, i.e. offer, acceptance and delivery of possession, the learned counsel for the petitioners referred to some excerpts of oral evidence of the witnesses of gift to contend that the requisite ingredients of a valid gift have been fulfilled. The examination of testimony of PW.7 and PW.8 reveals that neither the donees were present at the time of offer made by the donor nor any one, legally entitled, on their behalf, made acceptance nor it could be substantiated that possession was handed over to the petitioners-donees, actually or impliedly.
9. Another fateful aspect of the case is that the most important document Exh.P-17, available at page 211 of this file, is a registered gift deed dated 26.06.1990 through which the donor Abdul Ghafoor, transferred his 1/3rd share from the disputed shops in favour of his one daughter. The language of the said deed leaves no room for this Court to reach on conclusion except to declare that no property was gifted to the petitioners by the owner and the entire narrative was fake and fabricated. Document says that at the time of executing that document, he claimed himself as an exclusive owner of the entire property out of which he had gifted 1/3rd share whereas the claim of the petitioners was that the remaining 2/3rd of that property had already been gifted to them through the purported oral gift in the year 1986 and on his instructions the statement had been made in the suit during earlier round of litigation. Had it been the position, it was a good time for the donor to declare through this document about his intention of transferring of ownership of the remaining 2/3rd portion of property describing the oral gift in favour of the petitioners and lending its legitimacy but here the position is otherwise inasmuch as he claimed himself exclusive owner of the whole property including 2/3rd claimed through the purported oral gift from Abdul Ghafoor donor.
10. Another document Exh. P-6, available at Page 206 of the file (executed in the year 1990), referred to by the learned counsel for the respondents, has been examined, which reveals that through this registered document, the owner (purported donor) of the land transferred his portion of property in favour of her disabled granddaughter. Yet another document, a Power of Attorney Exh.P-29 (at Page 231 of this file), was also executed in favour of husband of one of the petitioner namely Atta- ur-Rehrnan to deal with the affairs of the property. This was also got registered.
11. Referring all these three documents, it can safely be concluded that owner of the property was in the habit of getting every document registered after its execution. Then question does not arise that he had transferred his major portion of property, rather almost maximum property in favour of the petitioners-daughters in -law, even without executing a document what to talk of oral one. 6.The case law referred to by the learned counsel for the petitioners on oral gift as well as the written gift or unregistered gift deed, enunciated by august Supreme Court, is not applicable to the facts and circumstances of this case rather the same supports the case of respondents-females who have been deprived of from their legitimate rights. There is no doubt in mind of this Court that Muslim donor had an absolute power to alienate his property by way of gift provided he was of sound mind, in proper health and gift was made in exercise of his independent and voluntarily discretion. I am fortified by a judgment reported in Muhammad Bashir v. Allah Ditta and others (1994 SCM R 1870) wherein it was held that: "As regards the first contention a Muslim donor has unfettered power to alienate his property by way of gift or otherwise during his lifetime provided he is in proper state of health and in exercise of his independent voluntary discretion."
7. It is also settled law that burden always lies on the beneficiary to prove the authenticity and validity of gift by producing the direct confidence inspiring evidence with regard to offer, acceptance and handing over of possession the three important prerequisites of a valid gift, which are found missing and the petitioners have miserably failed to prove the oral gift. It is also settled law; as per dictum laid down by Hon'ble Supreme Court in a case reported as Muhammad Shafi and others v. Sultan Mahmood and others (2010 SCM R 827) and Muhammad Hassan v. Khawaja Khalil-ur-Rehman (2007 SCM R 576) wherein it has been held:-- "In case of divergent findings of the two Courts below, the High Court will have to give due attention to the findings of the Appellate Court unless it suffers from grave irregularity or the same are perverse or the reasons given by the Appellate Court are not sustainable. Moreover, that was a revision petition before it which is a discretionary jurisdiction and the exercise undertaken by the High Court meets the said requirement."
12. In view of the guidelines given by apex Court in cited case, I am of the definite view that the learned first Appellate Court has neither committed any illegality and irregularity nor the findings are perverse and reasons recorded therein are in conformity with law as well as evidence available on record, leaving no room to exercise a discretionary jurisdiction provided under Section 115, C.P.C.
13. 8.Before parting with judgment, it is imperative to mention here that respondents 5 to had purchased some land from Barjees-ur-Rehman, one of the petitioners and their rights have been protected by the learned first Appellate Court in terms mentioned in its judgment. Neither respondents Nos.1 to 4 nor the petitioners have challenged this part of the judgment of the learned lower Appellate Court rather conceded by the learned counsel for the parties. Therefore, the findings on this score are also upheld and rights of respondents Nos.5 to 7 stand safeguarded in the same terms.
9. In view of the above, this revision petition having no merit stands dismissed E with no order as to costs.