Rasaal Hasan Syed, J. This civil revision is directed against judgments and decree of the courts below whereby suit for declaration with consequential relief instituted by the petitioner was dismiss ed and the appeal thereagainst did not succeed.
2. Mst. Kamalan Bibi, petitioner herein, along with her sister Mst. Lalo Bibi instituted a suit for declaration to challenge mutation No. 528 dated 14.3.1984 and No. 539 dated 28.3.1984 in respect of alleged oral gift in favour of Gul Sher and Muhammad Sher, respondent No.2 and predecessor-in-interest of respondent Nos. 3 to 9, respectively, on grounds of fraud and collusion and being inoperative on their right of inheritance to the extent of 1/3 share in the property. The suit was resisted, written statements were filed by respondent Nos. 2 to 9 wherein the assertions of petitioner were denied. Issues were framed and evidence recorded; whereafter the suit was dismissed by learned Civil Judge, Bhakk ar vide judgment and decree dated 08.3.2010. The petitioner preferred appeal thereagainst which ended in dismissal vide judgment dated 25.5.201 1 of learned Addl. District Judge, Bhakkar . In the instant petition, the judgments and decrees of two courts below are now under challenge.
3. Heard. Record perused.
4. Scrutiny of record available with the petition reveals that Muhammad Nawaz son of Alam deceased, was the predecessor-in-interest of the parties, who was survived by two daughters and two sons, namely, Mst. Kamalan Bibi, Mst. Lalo Bibi, Gulsher and Muhammad Sher alias Kareeta. In their suit, the petitioner and her sister Mst.
Lalo Bibi claimed that they were owners of 1/3 share in the estate of their deceased father; after his demise they were being paid share from the produce by the respondents who stopped doing so a year before the filing of the suit and claimed that the property stood transferred in their name. On inspection of revenue record it transpired that the respondents had fraudulently procured two mutations of alleged oral gift in their favour notwithstanding the fact that their deceased father Muhammad Nawaz had never made any gift nor transferred any part of hisrd rd property in his lifetime; nor had he ever appeared before the revenue officials or ever thumb-marked or signed the revenue papers pertaining to the alleged mutations of gift and that the entire story of gift was mere fiction. In paragraph "5" of the plaint it was specifically pleaded that late Muhammad Nawaz son of Alam, the predecessor-in- interest of the parties never made any gift in favour of respondent No.2/Gul Sher and late Kareeta (now represented by respondent Nos. 3 to 9) and that the deceased never appeared before the revenue officers nor recorded any statement and that the entire proceedings were fictitiously and collusively managed with mala fide and in cahoots with the revenue staff as also the alleged witnesses of the mutations . In paragraph "6" of the plaint it was alleged that mandatory ingredients of gift were never fulfilled, no offer or acceptance was ever made; nor was the possession ever transferred under any oral gift and that the plea of gift was a mere concoction. Perusal of the corresponding paragraphs "5" and "6" of the written statement, filed by respondent Nos.2 to 9 jointly , shows that the specific assertions of petitioner in corresp onding paragraphs of the plaint were evasively responded as "incorrect" and that it was asserted that the mutations of oral gift were correctly attested. Necessary particulars i.e., time, date, place and the particulars of the witnesses in whose presence the oral gift was alleged to be made, were not mentioned nor was it specifically claimed that any declaration and acceptance of oral gift was ever made. So much so that the venue of alleged oral gift and the period before the alleged attestation of mutation was not mentioned.
5. In the evidence, petitioner produced Mst. Lalo Bibi as P.W.1 who specifically deposed that no gift was ever made by their father Muhammad Nawaz in favour of his sons and that after his demise, the respondents had been giving them share in the produce and that two years prior to her statement this was stopped and that upon inspection of revenue record, it came to their knowledge that the respondents had fraudulently got transferred the land in their favour . It was further deposed that before his demise, their father was unable to walk, and he was not mentally sound. P.W.2 Sarfraz, the husband of the petitioner , also entered appearance in the witness-box and deposed that the deceased was suffering from paralys is, his age was 80 years and that the respondents had committed fraud who procured the mutations of gift by producing some fictitious person and that the mutations were fraudulently got attested. Gul Sher respondent appeared as D.W.1 and in his statement, he deposed that the land was transferred in favour of Gul Sher and Muhammad Sher alias Kareeta and that they were in possession of the property and that the mutation was attested by Naseer Ahmad Khan and that the petitioners never claimed any share of batai .
Perusal of the statements-in-chief of D.W.s, clearly show that D.W.1, the beneficiary of alleged gift did not mention time, date, date, month, or year of the alleged oral gift nor did he depose as to the venue of the alleged gift. He did not even deem it necessary to depose on oath as to whether any declaration and acceptance of oral gift was ever made and, if so, in whose presence and on what occasion this happened before the attestation of mutations. On being asked, he expressed his ignorance as to the area of land which was mutated in his favour. He claimed that both the mutations were attested one after the other; but he was unable to depose about the area that was part of second alleged gift. In the cross-examination it was stated that the mutation was attested by Qasim and Naseer Ahmad who had died and denied the suggestion that the witnesses were alive and admitted that both the witnesses had children. Muhammad Ramzan appeared as D.W.2 who deposed that the land was transferred in favour of Gul Sher and Kareeta sons of Muhammad Nawaz and that the daughters were not given their share.
During cross- examination he deposed that the mutations were attested with a difference of 15 to 16 days and that they bore his thumb-impression. He admitted that the children of Qasim and Naseer Ahmad were alive. It is manifest from the statement that even this witness also did not depose as to the time, day, date, year or venue of the alleged oral gift nor he claimed that any oral gift was made before the mutations in his presence.
6. In cases where oral gift is claimed it is imperative for the beneficiary to allege foundational ingredients of the gift including time, date and place of the alleged gift in the pleadings and, thereafter , to prove the same. It is also necessary to disclose the names of witnesses in whose presence the alleged declaration and acceptance of oral gift was enacted. In the absence of such disclosure no evidence could be led and even if any evidence comes on record the same is liable to be ignored. Reference can be made to "Saddaruddin (since deceased) through LRs. v. Sultan Khan (since deceased) through LRs and others" (2021 SCMR 642), "Sheikh Ishtiaq Ahmad and others v. Muhammad Usman Ali Sheikh and another" (2021 SCMR 1277 ), "Binyameen and 3 others v.
Chaudhry Hakim and another" (1996 SCMR 336) and "Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others" ( 2015 SCMR 1698 ).
7. Apart from the foundational omissions in the written statement and evidence as noted supra, the other aspect of the matter is that neither the patwari who allegedly entered the mutation in the roznamcha waqiati was produced nor copy of roznamcha waqiati itself was adduced. Even the revenue officer who allegedly attested the mutations was also not produced in evidence. The mutations did not bear thumb-impression or the signatures of late Muhammad Nawaz the alleged donor . It was essential requirement of law that the respondents should have given full particulars of oral gift in the written statement along with the names of the persons who were allegedly present at the time of making of oral gift and also mention the names of the persons who were present at the time of attestation of mutations of oral gift or who had allegedly identified the owner . These essential particulars were obviously missing in the written statemen t as also in the statements of D.W.1 and D.W.2. The revenue officer and the patwari were also not produced as witnesses. Samandar Khan, Qasim, Naseer Ahmad, the alleged witnesses to the mutations were not produced. The respondents did not claim in the pleadings or in statements-in-chief that the witnesses to the mutations, namely , Naseer Ahmad and Qasim had died. It was only in cross-examination that stance was taken that they were not alive although it had been suggested to the contrary . It was necessary for the respondents to produce the death certificate of the witnesses to prove their death or to produce some male member of the family of these witnesses in evidence to confirm the stance of alleged death; but best evidence in this respect was withheld. There was no explanation even about absence of Samandar Khan who was shown to have identified the alleged donor in one mutation. Article 80 of Qanun-e-Shahadat Order , 1984, mandates that if any witness is not found or has died, the factum of such death must be specifically proved. No effort was made to prove death of either of the three witnesses which obviously stimulated strong inference contra the respondents.
8. In "Muhammad Nawaz and others v. Sakina Bibi and others" (2020 SCMR 1021 ) it was observed to effect that where the defendants in a suit neither mentioned the date, time, place or names of the witnesses in whose presence the oral gift was made in the pleadings nor produced evidence before the trial court, they could not be allowed to improve their case as set up in the written statement, in their evidence on the principle of secundum allegata et probate i.e. a fact must be alleged by a party before it is allowed to be proved. Considering the effect of absence of date, time, place and the names of the witnesses in whose presence the oral gift was allegedly made, in the written statement as also in the evidence, it was observed that the benefici ary on whom the onus to prove the oral gift rested, shall be deemed to have utterly and miserably failed to prove the same in the manner prescribed by law. Reference can be made to "Naveed Akram and others v. Muhammad Anwar" (2019 SCMR 1095 ). In "Muhammad Sarwar v. Mumtaz Bibi and others" (2020 SCMR 276) also it was observed to the effect that the beneficiary of the gift was required to specify the date, time and place as to the foundational elements of offer and acceptance of such gift that disinherited the sisters.
9. In "Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others" (2021 SCMR 73) it was observed to the effect that the revenue authorities must also be extra vigilant when purported gifts are made to deprive daughters and widows from what would have constituted their share in the inheritance of an estate. The concerned officers must fully satisfy themselves as to the identity of the purported donor/transferee and strict compliance must be ensured with the applicable laws. Cases in point are "Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others" (2016 SCMR 986) and "Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others" (2018 SCMR 30) wherein it was ruled to the effect that purported gifts and other instruments used to deprive female family members including daughter and widows are contrary to law and public policy. In "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1) it was observed to the effect that often male members of the family deprive entitled female relations of their inheritance and, in doing so, law was violated and that when vulnerable women were at times compelled to relinquish their inheritance in favour of their male relations such relinquishment of fended public policy and was contrary to shariah.
10. Perusal of the record of the instant case shows that no such efforts were made to ensure identification of the persons who had appeared before the revenue officer at the time of attestation of disputed mutations. Rather the mutations were attested in a casual manner without being conscious of the mandatory obligations of the revenue officers. The revenue officers did not attempt to find out the extraordinary reasons for depriving the daughters from inheritance or awarding special favour to the sons to the exclusion of the daughters . So much so that the daughters were not even summoned to find out as to whether any such transaction of gift was being made in reality by their father and also to their knowledge. Even perusal of the order of revenue officer does not indicate any special reason from the donor to deprive his daughters from their share of inheritance. It has been consistently ruled that where the exclusion of legal heirs is claim ed by way of gift, there should be evidence to justify the disinheritance of other legal heirs from the gift. Reference in this respect can be made to the rule in "Mst. Kulsoom Bibi and another v. Muhammad Arif and others" (2005 SCMR 135), "Ghulam Haider v. Ghulam Rasool and others"
(2003 SCMR 1829 ) and "Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others" ( 2002 SCMR 1938 ).
11. In the instant case neither in the pleadings nor in the evidence, the respondents , who were under heavy onus to not only establish the actual oral gift by propositus in their favour . No special reasons were, however , asserted or proved for such discrimination against the daughters or causing their disinheritance. Curiously the learned courts below did not consider the matter in this legal perspective at all and in oblivion of the consistent rule on the subject, proceeded to assume that the mere attestation of mutations shall suffice to assume the declaration and acceptance of gift and transfer of possession; little appreciating that the mutations were not document of title and that where the transaction itself was in issue, the beneficiary was legally obligated to discharge the onus by alleging and proving through credible evidence, the prerequisites of a valid oral gift; which in this case was conspicuously missing. Even the khasra girdawari for the year 1984 - 85 was not produced to support the plea of transfer of possession and non-production thereof was obviously fatal to the stance of respondents as to the alleged transfer of possession under any alleged oral gift.
12. As to the objection of limitation, the view taken by the courts below is based on erroneous understanding of law.
The dispute in this case related to the right of inheritance of sisters (daughters of the deceased) which the brothers, respondents, were illegally attempting to usurp. In suchlike cases the consistent view is that on the opening of succession, the property automatically devolves upon the legal heirs and that efflux of time does not extinguish the right of inheritance and that the limitation in such matters, starts from the date when right of any co-sharer/inheritor is denied by someone. Reference can be made in this respect to "Mst. Suban v. Allah Ditta and others" (2007 SCMR 635) where it was observed to the effect that it was well-established that as soon as owner of a property dies succession to the property opens which gets automatically and immediately vested in the heirs and that such vesting is not dependent upon any intervention or any act on the part of state and that limitation against co- inheritors would start running not from the time of the death of their predecessor-in-interest nor even from the date of mutation, if there be any, but from the date when the right of any such person was denied. In the instant case the plea raised by petitioner was that the respondents had been paying the share of produce till a year before the institution of the suit and that on stoppage of such supply, the revenue record was inspected, from which it transpired that fraud had been committed and that the suit was instituted immediately thereafter. Not only in the pleadings but also in the statement of P.W.1 this fact was affirmed which could not be dislodged in cross- examination. This being so, the objection to the limitation was illusory and not well-founded.
13. Another aspect of the issue was that consistent rule is that in the absence of legal and valid deed/document of relinquishment for transfer of property on the part of sisters, the possession of the co-owners/brothers could only be construed as possession on behalf of all the co-owners including the sisters. In "Mst. Gohar Khanum and others v. Mst. Jamila Jan and others" (2014 SCMR 801) it was observed to the effect that male relative claimant of relinquishment having failed to show any document or deed of relinquishment, sale, transfer or gift that could establish that the female relative had relinquished her interest in the disputed property or had actually conveyed or transferred the same in favour of claimant constituted absence of affirmative act on the part of lady and that in such cases it could not be said that property came to vest entirely in the male relative. In "Mahmood Shah v. Syed Khalid Hussain Shah and others" (2015 SCMR 869) it was observed to the effect that the co heirs become co- owners in the property simultaneous with the moment of their predecessor 's death and such succession does not need the intervention of any functionaries of revenue department and that possession of one of the co-heirs or number of them shall be deemed to be on behalf of even those who were out of possession. In "Mst. Namdara and 3 others v. Mst. Sahibzada and 2 others" (1998 SCMR 996) it was ruled to the effect that co-sharers hold the property for and on behalf of all the co-owners and any adverse entry in the revenue record for mere non- partition in the profits of the property shall not amount to ouster of a co-sharer and that brothers cannot legally claim adverse possession against sisters and, even lesser , their ouster . In "Fareed and others v. Muhammad Tufail and another" (2018 SCMR 139) it was observed to the effect that if the plea of oral gift could not be proved then mere claim of possession by donee was insuf ficient to maintain the claim of valid gift. The objection as to limitation being untenable is rejected as such.
14. One of the objections taken on behalf of the respondents was that the suit was initially filed by Mst. Kamalan Bibi and Mst. Lalo Bibi and that co-plaintiff Mst. Lalo Bibi did not prefer an appeal or file revision and, therefore, the right of petitioner to maintain the revision petition on the strength of evidence already produced, could not sustain. This objection is devoid of force. Order XLI, Rule 4, C.P.C. envisaged that where there are multiple plaintiffs or defendants and decree appealed from proceeded on any ground common to all the plaintiffs or defendants, any one of the plaintiffs or defendants, as the case may be, could appeal from the whole decree and, thereupon, the appellate court could reverse or vary the decree in favour of all the plaintiffs or defendants.
Order XLI, Rule 33, C.P.C also invests the court with the authority to make any order or pass any decree that ought to have been passed or made and to pass or make such further order or decree as the case may require and such authority could be exercised notwithstanding that the appeal was as to only part of the decree and may be exercised in favour of all or any of the parties, including respondents, though such respondents may not have preferred an appeal or file cross-objections. On the touchstone of the principle, the first appellate court and also this Court, could competently reverse the entire decree at the instance of one of the plaintiffs. In the instant case, in the revision petition that has been filed by one of the co-plaintiffs, the Court is not denuded of its jurisdiction to set aside the impugned decree raising common questions and founded on common grounds in respect of the petitioner herein and co-plaintif f in the suit. The objection raised is, therefore, held to be sans substance.
15. At the fag end of the case an objection was also raised that concurrent findings of fact could not be disturbed in revisional jurisdiction. This assumption is not well-founded. In "Asmatullah v. Amanat Ullah through Legal Representatives" (PLD 2008 SC 155) it was ruled to the effect that while exercising jurisdiction conferred by section 115, C.P.C. the Court could interfere when the concurrent findings of fact recorded, are based on insuf ficient or inadmissible evidence, misreading or non-consideration of material evidence, erroneous assumptions of fact or patent errors of law or reveal arbitrary exercise of power or abuse of jurisdiction or where the view taken is demonstrably unreasonable which is not in consonance with material eviden ce. Similar view was taken in "Abdul Sattar v. Mst. Anar Bibi and others" (PLD 2007 SC 609). In "Mst. Naziran Begum through Legal Heirs v. Mst. Khurshid Begum through Legal Heirs" (1999 SCMR 1171) it was observed to the effect that the findings on a question of fact arrived at by the first appellate court that are not based on evidence or are result of conjectures or fallacious appraisal of material evidence on record, are not immune from scrutiny by this Court pursuant to exercise of its powers under sections 100 or 115, C.P.C. In the present case as observed supra neither in the pleadings nor by the evidence produced, the constitutive ingredients of oral gift were established, and no admissible or credible evidence was adduced to either support the plea of gift itself or to prove its actual transaction. The findings of the courts below are based on fallacious factual assumptions and misapplication of law. The view adopted also suffered from inconsistency with law declared by the superior courts on pivotal aspects on anvil. In the obtaining conditions the concurrently recorded findings could neither be considered sacrosanct nor immune to interference. The objection, therefore, raised being legally untenable, is repelled.
16. For the reasons hereinabove, this revision petition is accepted . Resultantly the judgments of the courts below are set aside, and the suit of the petitioner is decreed as prayed for with costs throughout.