IJAZ UL AHSAN, J.---Through this common judgment, we propose to decide Civil Petition No.157-L of 2020 and Civil Appeal No.6 of 2020 as common questions of law and fact are involved and both these petitions arise out of a common judgment dated 10.12.2019 rendered by the Lahore High Court, Lahore in Civil Revisions Nos.1701 and 2364 of 2015.
2. Civil Appeal No.6 of 2017 has been filed by Imran Ali, etc. assailing the judgment of the Lahore High Court, Lahore dated 10.12.2019 while Civil Petition No.157-L of 2020 has been filed by Muhammad Nawaz, etc. against the said judgment.
3. The petitioners as well as the Appellants herein are aggrieved of a judgment of the Lahore High Court, Lahore dated 10.12.2019. Through the impugned judgment, Civil Revision No.1701 of 2015, filed by the petitioners was dismissed while the Civil Revision No.2364 of 2015 filed by the Respondents was allowed to the extent that the judgment of the first appellate Court was set aside. The Appellate Court vide its judgment and decree dated 21.05.2015 had modified the judgment and decree of the trial Court to the extent that it allowed the claim of Imran Ali, etc who had purchased 6 kanals 9 marlas of land from Muhammad Idrees-Respondent No.5, to be taken out of his share in inheritance.
4. The brief facts necessary for decision of this /is are that Mst. Sakina Bibi and Mst. Safia Bibi, Respondents Nos.1 and 2, respectively, filed a suit for declaration alleging that their father Ghulam Muhammad, who died on 20.07.2005 was owner of land measuring 154 kanals 10 marlas comprised in Khewat No.13, Khatuni Nos .36 to 37, situated at village Ledheywala, Tehsil Muridke, District Sheikhupura. His legal heirs consisted of Mst. Sakina Bibi, Mst. Safia Bibi and three sons, Muhammad Nawaz, Muhammad Riaz and Muhammad Idrees, who were defendants Nos.1 to 3 in the suit. It was alleged that the said sons had fraudulently obtained their father's thumb impressions on certain papers on the pretext of obtaining a loan. Thereafter, they used the said papers fraudulently to get a gift mutation bearing No.452 dated 28.06.1999 sanctioned in their favour thereby depriving the respondents of their share in he inheritance. Muhammad Idrees, one of the sons, further alienated land measuring 6 kanals 9 marlas in favour of Imran Ali, Wan Ali and Rizwan Ali, all minors at the relevant time.
5. After conducting proceedings, the trial Court decreed the suit in favour of Mst. Sakina Bibi and Mst. Safia Bibi vide judgment and decree dated 01.10.2014 and cancelled the impugned mutation. Two appeals were filed; one by Muhammad Nawaz etc, sons of the deceased and the other by Imran Ali, etc. (Appellant in C.A. No.6/2020).
The appeal filed by Muhammad Nawaz, etc was dismissed while the appeal filed by Imran Ali, etc was partially allowed to the extent that their right in the land that they had purchased from Muhammad Idrees measuring 6 kanals 9 marlas was saved. The said judgment of the learned Additional District Judge was challenged by way of two Civil Revisions before the Lahore High Court, Lahore. The Civil Revision filed by Muhammad Nawaz, etc. was dismissed while the one filed by Mst. Sakina Bibi, etc was allowed and the judgment of the learned Additional District Judge was set aside to the extent of modification of the judgment of the trial Court by the Appellate Court.
6. Learned counsel for the petitioners has argued that there was sufficient material on record showing that the mutation was validly sanctioned in view of the fact that the deceased Ghulam Muhammad had personally appeared before the Halqa Patwari and in the presence of witnesses placed his thumb impression on all relevant documents which resulted in sanction of the gift mutation. He further submits that DW-2, DW-3 and DW-4 confirmed this fact by stating that they were not only land owners in the village but were also present at the time that the mutation was sanctioned. He further maintains that there was no need to mention the time, date and venue of the oral gift in the written statement filed by them in response to the suit because the very fact of Ghulam Muhammad's going to the Halqa Patwari and getting the mutation sanctioned by itself established that there was an intent, and offer on the part of the Doner to gift the property in favour of his sons.
The Donees, by their very presence will be deemed to have accepted the offer. He has kept mum about delivery of possession despite being specifically asked to show delivery of possession from the record. He further maintains that the judgments and decrees of the lower fora suffer from misreading, non-reading of evidence and misapplication of the relevant principles of law on the subject.
7. Learned counsel for Imran Ali, etc. (Appellants in Civil Appeal No.6 of 2020) maintains that they, acting through their guardian were bona fide purchasers having purchased land measuring 6 kanals 9 marlas from Muhammad Idrees for valuable consideration. He maintains that even if the gift is declared invalid and the mutation is struck down, Muhammad Idrees being one of .the sons and a legal heir would still be entitled to inherit from the estate of his late father. He submits that his share is likely to be much in excess of 6 kanals 9 marlas. It would therefore be unjust and inequitable to allow to Muhammad Nawaz to take the benefit of his own fraud while he had received valuable consideration from the appellants for the same. He therefore maintains that the High Court erred in law in ignoring this fact which had clearly been noted by the learned first appellate Court correctly holding that the transaction between Muhammad Idrees and Imran Ali could be saved in the interest of justice, equity and fair play. He therefore prays that the judgment of the first appellate court to the extent that it has saved the right of Imran Ali, etc to retain land measuring 6 kanals 9 marlas out of the share of Muhammad Idrees may be revived and upheld.
8. We have heard the learned counsel for the parties and gone through the material available on record.
Admittedly, Mst. Sakina Bibi and Mst. Safia Bibi are daughters of Ghulam Muhammad-deceased. They categorically stated in the plaint that fraud was committed with them by their brothers in terms of gift mutation bearing No.452, dated 28.06.1999 which was fraudulently and invalidly sanctioned in favour of the defendants in the suit namely Muhammad Nawaz etc., The sons being beneficiaries of the gift mutation were required by law to prove not only the validity of the mutation but more importantly the oral gift which was the basic transaction which was purportedly implemented through the gift mutation in question.
9. We note that the defendants in the suit neither mentioned the date, time, place or names of the witnesses in whose presence the oral gift was made in their written statement nor in the evidence produced by them before the trial Court. Even otherwise they could not have improved up on their case set up in the written statement in their evidence on the principle of "Secundum allegata et Probata", meaning, a fact must be alleged by a party before it is allowed to be proved. The petitioners were able to produce only one witness namely Nazeer Hussain Shah-DW-2, who claimed to be present when the oral gift was allegedly made. Even he was not able to disclose the date, time or venue of the oral gift. We also notice that in the cross-examination, DW-2 admitted that at the time of alleged gift mutation Ghulam Muhammad, the donor was about 80 years old. He also admitted that at the time of attestation of the gift mutation no Patidar was present but claimed that he witnessed the mutation in his capacity as a Patidar. DWs 3, 4 and 5 also deposed on the same lines and more significantly failed to utter even a single word about the oral gift or time, date and venue of the same. We are therefore, satisfied that the beneficiaries on whom the onus to prove the oral gift lay, utterly and miserably failed to prove the same in a manner prescribed by the law.
10. Even otherwise, three Courts have concurrently held that the petitioners had failed to prove the oral gift.
Further, even the validity of the mutation could not be proved on account of failure on the part of the petitioners to produce the most material witnesses and withholding the best evidence i.e the concerned Tehsildar and other revenue functionaries. Further DW-7 categorically admitted in his evidence that their father Ghulam Muhammad continued to own the property till his death. This statement proved to be the proverbial "last nail" in the coffin of the case of the petitioners, which was already on a very weak and flimsy foundation. Therefore, we find no reason to interfere in the well reasoned findings of the lower fora which are fully supported by the record.
Further the impugned judgment is based upon the settled principles of law on the subject.
11. For the aforenoted reasons, we do not find any merit in this petition (C.P.L.A. No.157-L/2020). It is accordingly dismissed. Leave to appeal is refused.
12. As far as Civil Appeal No.6 of 2020 is concerned, we find substance in the argument of the learned ASC for Imran Ali etc. that the Appellants were bona fide purchasers, had paid valuable consideration for the same and had not noticed the dispute regarding validity of the gift or the gift mutation. Therefore, the first appellate Court was correct in modifying the judgment and decree of the trial Court to the extent that transaction relating to sale of land measuring 6 kanals 9 marlas by Muhammad Idrees in their favour was saved. Learned counsel for the Respondents has not raised any serious objection amongst the same.
13. Having heard the learned ASC's for both sides, we also notice that on account of the mutation having been declared invalid and illegal, the land would revert back to the legal heirs of Ghulam Muhammad. It is settled principle of jurisprudence that no person can be allowed to take the benefit of his own fraud. Further permitting Muhammad Idrees to inherit his entire share would amount to giving him a premium for his fraud considering that he has admittedly sold and received valuable consideration for land measuring 6 kanals 9 marlas. In addition the rights of Imran Ali will unfairly be prejudiced, who being bona fide purchaser without notice were not at fault, penalizing them in this way would be unjust and unfair. Being one of the sons of the deceased, Muhammad Idrees would be entitled to a share in the estate of his deceased father by way of inheritance which would be more than 6 kanals 9 marlas. Therefore, it is just, fair and appropriate that out of the share of Muhammad Idrees, land measuring 6 kanals 9 marlas which he has already sold in favour of the appellants should be allowed to be retained by them and to that extent the judgment and decree of the revisional Court/High Court is liable to be modified and the judgment and decree of the first appellate Court is liable to be revived and upheld. Order accordingly.
14. The appeal is accordingly allowed to the extent as aforesaid. There is no order as to costs.