Faqir Ali and others vs Samna Bibi and others

ORDER

IJAZ UL AHSAN, J.---This appeal is directed against a judgment of the Lahore High Court, Lahore dated 06.12.2013 passed in Civil Revision No. 233 of 2011 filed by Respondents Nos.1 and 2. Through the impugned judgment, the learned High Court set aside the two concurrent judgments of the trial Court and the appellate Court and decreed the suit of the Respondents.

2. Briefly stated the facts necessary for disposal of this Appeal are that land measuring 332 kanals 9 marlas situated in the revenue estate of Wahgray, Tehsil Ferozewala, District Sheikhupura was owned by Muhammad Ali son of Allah Bakhsh, predecessor in interest of the parties to these proceedings. As per death certificate, the said Muhammad Ali died on 22.06.1999 at the age of 90 years. On 02.04.2004, the Respondents instituted a suit for declaration against the Appellants and thereby sought cancellation of mutations Nos. 204, 207 and 250 in favour of the Appellants on the ground of fraud and collusion. The Appellants herein contested the suit, while Jameel Ali Respondent No.4 in the Civil Revision filed a conceding written statement. It may be noted that Majeedan Bibi who is one of the daughters of the deceased Muhammad Ali has not challenged the judgment of the High Court and has been impleaded as a Respondent. The suit of Respondents Nos.1 and 2 was dismissed by the trial Court, vide judgment and decree dated 20.10.2006. The same was appealed by them. However, such appeal was also dismissed, vide judgment and decree dated 27.11.2010. The Respondents therefore approached the High Court in its revisional jurisdiction.

Through the impugned judgment dated 06.12.2013, the revision petition was accepted and the suit filed by Respondents Nos.1 and 2 was decreed.

3. The learned Advocate Supreme Court for the Appellants submits that the High Court was not vested with the jurisdiction to upset the concurrent findings of fact recorded both by the trial Court as well as the appellate Court. Ile maintains that the primary consideration for exercise of revisional jurisdiction by the High Court is that findings recorded by the Courts below were either contrary to law or based on misreading and non-reading of material evidence effecting the ultimate outcome of the case. He argues that no such misreading/non-reading has been highlighted in the impugned judgment. It is further submitted that the Appellants were in possession of the suit land ever since the disputed gifts were made by their late father which was evident from the entries in the Register Haqdaraan e Zameen that by itself was a strong piece of evidence carrying presumption of genuineness of the disputed gifts. He further submits that the gifts were fully proved by production of cogent and reliable evidence. He also maintains that the findings of the High Court relating to the question of limitation are not sustainable as the Respondents were unable to prove the allegation of fraud. He further maintains that the gifts were never challenged by the Respondents during the lifetime of the donor and it was not a case of inheritance. As such, the High Court misdirected itself in ignoring the point of limitation. He finally argues that the case of Ghulam Ali v. Ghulam Sarwar Naqvi (PLD 1990 SC 1) relied upon by the High Court had no relevance to the facts and circumstances of the present case and the High Court erred in law in upsetting the concurrent findings of two Courts below without just cause, reason or justification.

4. The learned Advocate Supreme Court for the Respondents on the other hand has defended the impugned judgment and has- cited most of the cases relied upon by the High Court in the impugned judgment.

5. We have heard the learned counsel for the parties at length and carefully gone through the record. The case of the Appellants was that their father Muhammad Ali during his lifetime gifted land measuring 140 kanals 8 marlas in favour of Niamat Ali and Jameel Ali, vide gift mutation No.

204. dated, 21.09.1985 land measuring 70 kanals 4 marlas in favour of Munir Ali through gift mutation No.207 dated 14.12.1984 and land measuring 14 kanals 7 marlas vide mutation No.250 dated 06.02.1988.

6. Respondents Nos.1 and 2 who are sisters of the Appellants had challenged the validity of the aforesaid gifts on the ground of fraud and collusion. In view of the fact that the Appellants were beneficiaries of the gifts through which Respondents Nos. 1 and 2 who are admittedly legal heirs of the deceased Muhammad Ali were deprived of their inheritance; the onus was on the Appellants to prove the gifts. It is trite that a gift in order to be valid and binding on the parties must fulfill three conditions, namely (i) declaration of gift by the donor, (ii) acceptance of gift by the donee, and (iii) delivery of possession of corpus. A valid gift can also be effected orally if the aforenoted prerequisites are complied with and proved through valid and cogent evidence. A written instrument is not a requirement under the Muhammadan Law nor is the same compulsorily registerable under the provisions of the Registration Act, 1908. However, strict compliance of the aforenoted mandatory conditions is required and registration of the document is of no help if any of the aforenoted conditions are not satisfied. It has repeatedly been held that beneficiary of a document is not only bound to prove execution of the document but also to prove the gift by producing cogent and reliable evidence, that the three necessary requirements of a valid gift namely, offer, acceptance and delivery of possession have been fulfilled, to the satisfaction of the Court.

7. Perusal of the statement of Faqir Ali, Appellant No. 1 who appeared as DW-8 shows that he did not utter a single word regarding the necessary ingredients of a gift. Likewise, the statement of Munir Ali, Appellant No.2 who appeared as DW.10 is equally deficient in this regard. The apparent and obvious failure on the part of the Appellants to prove the oral gift was fatal to their claim and it could not by any stretch of the language or the settled principles of law be said that a valid gift had been made by Muhammad Ali deceased in their favour. We find that the lower fora misread the evidence and drew the wrong conclusions in recording findings that a gift had been proved.

We note that the gift mutations were attested in the year 1985 onwards and the suit for their cancellation was filed in 2004. It is on this basis that it has been argued that the suit was barred by time. In view of the fact that Respondents Nos.1 and 2 had challenged the gift mutations on the ground of fraud and collusion, we do not find any force in the contention of learned Advocate Supreme Court for the Appellants that the suit was barred by time. It is settled law that where fraud and collusion are alleged and established, the question of limitation does not and cannot help the beneficiary of such fraud and collusion.

8. Although stricto sensu, it is not necessary for a donor to furnish reasons for making a gift yet no gift in the ordinary course of human conduct can be made without reason or justification be it natural love and affection for one or more of his children who may have taken care of the donee in his old age and thus furnished a valid basis and justification for the donor to reward such effort on the part of the donee by way of making a gift in his/her favour. In the case of Barkat Ali v.

Muhammad Ismail (2002 SCMR. 1938) this Court has already taken notice of the fact that in the wake of frivolous gifts generally made to deprive female members of the family from benefit of inheritance available to them under Sharia as well as the law, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to a legal heir who otherwise stands to inherit from the estate of a deceased predecessor or relative and that the course of inheritance is not bypassed or artificially blocked. In the present case, no reason is available on the basis of which the alleged gift appears to have been made. The only reason furnished by Faqir Ali, DW.8 and Munir Ali, DW. 10 in their statements before the trial Court was that their father Muhammad Ali had transferred the suit land to gain divine favour of God by pleasing Him and the exact words used were "Allah Waasty" It is therefore clear and obvious to us that natural love and affection was not the consideration of the gift and instead as alleged by the aforenoted two witnesses the intention behind the transaction was to please God, the Almighty.

Even if that claim is accepted as true, it is ex facie hard to understand how depriving his real daughters of their rightful share in the inheritance/estate of the donor could be interpreted as an act which would please God, the Almighty Who has specifically ordained that the daughters are entitled to a specified share by way of inheritance in the E estate of their father on his demise. It therefore appears that the gifts were only a device to deprive the daughters from inheritance and the gift mutations were sanctioned to bypass the law of inheritance and to disinherit the daughters. In this background, the High Court in our opinion was correct in coming to the conclusion that the gift was based on a fraudulent intent. It is settled law that fraud vitiates even the most solemn transactions and any transaction that is based upon fraud is void F and notwithstanding the bar of limitation. Courts would not act as helpless by stands and allow a fraud to perpetuate.

9. We have also considered the argument of learned Advocate Supreme Court for the Appellants that reliance by the High Court on Ghulam Ali's judgment (supra) was inapt. We have gone through the said judgment and find that ratio of the same is fully attracted to the facts and circumstances of the present case and reliance of the High Court on the said judgment was well considered and justified. The ratio of Ghulam Ali judgment was reiterated in the case of Muhammad Anwar v. Khuda Yar (2008 SCMR 905) holding that possession of one or more of the legal heirs would be deemed to be that of their deceased predecessor in interest and limitation would not run against a co-sharer. We therefore find that the High Court correctly reversed the findings,of the lower fora on the question of limitation having come to the conclusion that the said fora had misapplied the law on the subject.

10. We also find that a transaction which is based on an oral gift has two parts, namely the fact of the oral gift which has to be independently established by proving through cogent and reliable evidence the three necessary ingredients of a valid gift as noted above. However, that is not enough. The second ingredient i.e. mutation on the basis of an oral gift has to be independently established by adopting the procedure provided in the Land Revenue Act and the rules framed thereunder as well as the evidentiary aspects of the same in terms of the Qanun-e-Shahadat Order, 1984.

11. After having gone through the entire evidence produced by 'the Appellants in support of their suit and seen in the background of the contents of the pliant, we have come to the conclusion that neither the fact of the oral gift nor the fulfillment of all legal procedural formalities as well as evidentiary requirements of proof of valid entries and sanctioning of the mutation had adequately and properly been fulfilled, in order to independently prove the oral gift as well as entry and sanctioning of the mutations. In the absence of proof of both independent transactions, the suit of the Appellants could not have succeeded and further the transactions in question were even otherwise found to be fraudulent and designed to bypass and subvert the process of law on the basis of which Respondents Nos.1 and 2 were entitled to a share in the assets of their predecessor being his real daughters.

12. The learned Advocate Supreme Court for the Appellants has not been able to convince us that there was any jurisdictional or legal defect, error or flaw in the impugned judgment or that the High Court exceeded its powers in exercising the revisional jurisdiction under section 115, C.P.C. We find that the judgment of the High Court is well reasoned, takes note of all material aspects of the case, correctly applies the relevant principles of law on the subject and is based upon the record. It does not admit of any interference in our appellate jurisdiction.

13. For the reasons recorded above, we do not find any merit in this appeal. It is accordingly dismissed with no order as to costs.