Shahid Waheed, J.--The plaintiff has filed this petition to seek revision of the decree dated 05.10.2010 of the learned first Appellate Court whereby appeal of Respondents No, 1 and 2 against the decree dated 29.05.2009 of the learned Trial Court was accepted and her suit was dismissed.
2. Dispute in this case initially related to land measuring, 23 Kanals 16 Marlas situated within the revenue estate of Munday, Tehsil and District Chakwal which was owned by the present petitioner (Mst. Ghulam Zainab) and her sister, Hameeda Begum. The said property stood transferred in the name of their nephew, Mudassar Hussain (Respondent No, 2), who is son of Gulastar Hussain (brother of the present petitioner) on the basis of oral gift. The transaction of gift was got recorded in the revenue record by Gulastar Hussain on the basis of power of attorney dated 04.04.1981 (Ex.D- 7) vide Mutation No, 5644 dated 20.07.1998 (Ex.P-15). The petitioner alongwith her sister Hameeda Begum on 18.04.2003 instituted a suit against the respondents and sought a decree for declaration to the effect that Mutation No, 5644 dated 20.07.1998 was illegal and ineffective upon their rights. A prayer was also made that respondents be restrained from interfering in their possession over the suit land. The allegations of the plaint were that the predecessor of Respondent No, 1, that is, Gulastar Hussain was the real brother of the petitioner; that consequent upon the death of the petitioner's father, Gulastar Hussain, brought the petitioner to Chakwal for the purpose of transfer of license of .12-bore gun; that for the said purpose the thumb impressions of the petitioner were obtained on certain blank papers; that Gulastar Hussain taking advantage of illiteracy and Parda of the petitioner fraudulently got executed general power of attorney dated 04.04.1981 in his favour; that subsequently on the basis of said power of attorney Gulastar Hussain got sanctioned gift Mutation No, 5644 dated 20.07.1998 in favour of his son i,e, Mudassar Hussain (Respondent No, 2); and, that the petitioner had not gifted the suit land in favour of Respondent No, 2 and, therefore, Mutation No, 5644 dated 20.07.1998 was illegal being result of fraud and misrepresentation.
3. The allegations of the plaint were contested by Respondents No, 1 and 2 whereas Respondent No, 3 (brother of the petitioner) filed a conceding written statement. During trial, the sister of the petitioner i,e,, Mst. Hameeda Begum (Plaintiff No, 1) made a request that she be allowed to withdraw the suit to her extent. This request was allowed and consequently the suit to the extent of Mst. Hameeda Begum was dismissed as withdrawn vide order dated 07.10.2005. Subsequently the present petitioner filed an amended plaint seeking declaration to the effect that Mutation No, 5644 dated 20.07.1998 (Ex.P-15) to the extent of her land measuring 11 Kanals 18 Marlas was void.
4. On pleadings, issues were framed and evidence was led. After appraising evidence the learned Trial Court relying upon the case of Muhammad Jalil and 4 others vs. Muhammad Sarni and 8 others (PLD 2007 Lahore 467) held that the brother of the petitioner, Gulastar Hussain, on the basis of general power of attorney dated 04.04.1981 (Ex.D-7) could not make a gift and transfer the suit land in favour of his real son, as it was the sole prerogative of the petitioner to decide as to whom the gift was to be made. Upon the above stated findings the claim of the petitioner was allowed vide judgment dated 29.05.2009 and consequently Mutation No, 5644 dated 20.07.1998 was declared illegal and void. The decree was accordingly drawn on 29.05.2009.
5. The Respondents No, 1 and 2 assailed the decree of the learned Trial Court through an appeal under Section 96, CPC before the learned Addl. District Judge, Chakwal. On appeal, the learned Addl. District Judge held that power of attorney dated 04.04.1981 (Ex.D-7) fully authorized Gulastar Hussain to make a gift of the suit land and thus Mutation No, 5644 dated 20.07.1998 (Ex.P-15) was valid.
6. This is a case of variant findings of the learned Courts below in respect of transaction whereby the suit land stood transferred in the name of Respondent No, 2 through gift which was made by Gulastar Hussain on the basis of power of attorney dated 04.4.1981 (Ex.D-7). The petitioner through this petition Seeks revision of the findings of the learned first Appellate Court on the basis of principle settled in the cases of Haji Faqir Muhammad and others vs. Pir Muhammad and another (1997 SCMR 1811) and Mst Naila Kausar and another vs. Sardar Muhammad Bakhsh and others (2016 SCMR 1781). It is contended on behalf of the petitioner: (i) that in the said cases the Hon'ble Supreme Court of Pakistan settled two principles: firstly, that an attorney cannot utilize the power conferred upon him to transfer the property to himself or to his kith and kin without special and specific consent and permission of the principal; and, secondly, that power of attorney cannot be utilized for effecting a gift by the attorney without intentions and direction of the principal to gift the property; (ii) that in the light of afore-stated principle of law Gulastar Hussain, predecessor of Respondent No, 1, on the basis of power of attorney dated 04.04.1981 (Ex.D-7) could not transfer the suit land through gift in favour of his real sent i,e, Respondent No, 2 as neither the specific consent and permission of the petitioner was obtained nor the same was proved by producing convincing evidence; and, (iii) that this aspect of the matter was not taken into consideration by the learned first Appellate Court and thus it fell into error while reversing the findings of the learned Trial Court.
On being confronted with the afore-noted arguments learned counsel appearing on behalf of Respondents No, 1 and 2 by referring to the statement made by Gulastar Hussain before the learned Trial Court as DW-1 submitted that the petitioner of her own free will made gift at her house; and, that Gulastar Hussain on the basis of power of attorney dated 04.04.1981 (Ex.D-7), only got recorded the transaction of gift in the revenue record vide Mutation No, 5644 dated 20.07.1988 (Ex.P-15) and thus in these circumstances the principle settled in the afore-cited precedents does not attract to the present case. The arguments canvassed by respondents' counsel appeared to be convincing at first blush but after reading the contents of the written statement the same were found of no substance. Respondents No, 1 and 2 in their joint written statement did not state that the petitioner had herself made the gift at her house; and, that Gulastar Hussain was asked to get the said transaction recorded in the revenue record on the basis of alleged power of attorney dated 04.04.1981 (Ex.D-7). The statement made by Gulastar Hussain (DW-1), before the learned Trial Court was beyond the pleadings and, therefore, could not be relied upon. The afore-stated facts and circumstances lead to the conclusion that Gulastar. Hussain without getting express and specific permission of the petitioner transferred the suit land in favour of his real son on the basis of power of attorney dated 04.04.1981 (Ex.D-7) and, therefore, the same could not be held valid; and, that the findings of the learned Trial Court being valid were erroneously reversed by the learned first Appellate Court.
7. There is another aspect of the matter. Under the Islamic Law, a gift, in order to be valid and binding upon the parties, must fulfill three conditions: (a) a declaration of the gift by the donor; (b) acceptance of gift by the donee; and, (c) delivery of possession of corpus. On the fulfillment of above three conditions a valid gift comes into existence. The onus of proof of transaction of gift recorded in the revenue record in the form of mutation was essentially upon its beneficiary to establish that same was result of conscious application of mind of donor and not under influence of fraud played with her. Since it was a case of transaction of oral gift, the Respondents No, 1 and 2 being beneficiary, were required to first state in the pleadings the date, time, place and persons in whose presence the gift was made and thereafter to prove the essential ingredients of gift by producing convincing evidence. In this regard reference may be made to the cases of Bashir Ahmad and another vs. Muhammad Rafiq (2002 SCMR 1291) and Khaliqdad Khan and others vs. Mst. Zeenat Khatoon and others (2010 SCMR 1370). In the present case, the Respondents No, 1 and 2 in their written-statement had not disclosed the date, time, place and name of persons before whom the transaction of gift took place. This omission was fatal. Even otherwise the statement of Gulastar Hussain which he made before the learned Trial Court as DW-1 was also silent about the date and time on which the petitioner made a declaration of gift of the suit land in favour of her nephew and its acceptance. Same is the status of the statements of other witnesses who appeared on behalf of respondents. The failure to clearly establish the twin requirements of making and acceptance of gift was fatal to the claim of the respondents-defendants.
Consequently, it could not be said that a valid gift was made by the petitioner in favour of her nephew, i,e, Respondent No, 2.
8. Another facet of the case which, was ignored by the first appellate Court is that the petitioner is a Pardanashin illiterate lady. The Hon'ble Supreme Court of Pakistan in the case of Mst. Rasheeda Bibi and others vs. Mukhtar Ahmad and others (2008 SCMR 1384) has settled the following points which should be taken into consideration by the Courts with regard to gift deed or transaction of gift made by a Pardanashin lady:--
(i) Whether the plaintiff (donor) had any friendly advice before executing the deed and by a person whom the Court considers as being genuinely interested in her welfare?
(ii) Whether the document was explained to her and whether she really had the capacity to understand its consequences?.
(iii) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?
(iv) Whether the entire transaction 'was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?
In the present case, there is no evidence on the file by the respondents that the petitioner (donor) had any friendly advice before making gift that transaction of gift was explained to her; and that transaction was result of conscious application of petitioner's mind. This aspect of the matter suggests that the Mutation No, 5644 dated 20.07.1998 was not valid; and, that the claim of the petitioner as set out in the plaint was justified.
9. Since the judgment and decree of the learned first Appellate Court are not in consonance with the principle settled by the Hon'ble Supreme Court of Pakistan, as discussed above, the same cannot be held valid. This petition is, therefore, accepted. The judgment and decree dated 05.10.2010 passed by the learned Addl. District Judge, Chakwal are hereby set aside and consequently the judgment and decree dated 29.05.2009 of the learned Trial Court are restored with no order as to costs.