CH. MUHAMMAD IQBAL, J.---Through this civil revision, the petitioner has challenged the legality of judgment and decree dated 11.10.2004 passed by the learned Additional District Judge, Kabirwala (District Khanewal) whereby appeal of the respondents was accepted while setting aside the judgment and decree dated 16.12.2002 passed by (Mr. Fazal Zada Khan), the then learned Civil Judge, Kabirwala and dismissed the suit of the petitioner .
2. Brief facts of the case are that the petitioner / plaintif f filed suit for declaration against the respondents / defendants alleging therein that plaintif f and defendant are siblings of Noor Ali who was owner of land measuring 161-Kanals 5-Marlas situated in Mouza Noonawala, Tehsil Kabirwala, District Khanewal. Said Noor Ali during his life time orally gifted out (Tamleek) his entire land in favour of the petitioner/plaintif f being his only son in January , 1995. Noor Ali died in the year 1998 and his inheritance mutation No.60 dated 27.08.1998 was entered and sanctioned in the revenue record accordi ng to the respective shares of the parties of the lis and after knowledge the petitioner filed suit claiming that he is owner of total land on the basis of oral Tamleek, as such, inheritance mutation is liable to be cancelled.
Respondents filed contesting written statement. Learned trial court framed issues, recorded pro and contra evidence of the parties and decreed the suit in favour of the petitioner . Feeling dissatisfied with the above said judgment and decree, the respondents preferred an appeal which was accepted by the learned appellate court vide judgment and decree dated 11.10.2004 while setting aside the judgment and decree dated 16.12.2002 of the learned trial court dismissed the suit of the petitioner . Hence, this civil revision.
3. I have heard the arguments advanced by the learned counsel for the parties and gone through the record with their able assistance.
4. From the perusal of the plaint, it reveals that the petitioner claimed that his father Noor Ali orally gifted the entire land to him during his life time in January 1995 but he neither disclosed the specific / exact date, time, place nor the names of the witnesses it whose presence the oral gift transaction of the suit land was made in his favour . No mandatory ingredients of oral gift such as offer, acceptance and delivery of possession have been mentioned in the plaint. Even in the statement of PW-2 and PW-3 the description of exact date, time, place and the names of the witnesses has not been deposed which flaw is fatal. Reliance is placed on the case titled as Peer Baksh through LRs and others v . Mst. Khanzadi and others (2016 SCMR 1417 ).
5. As per record, the oral gift of suit land is main controversy in this case. The co-existence and proof of necessary constituents of a valid gift i.e. offer by the donor , acceptance by donee and delivery of possession are sine qua non and any infirmity in proof o the above constituents vitiate the validity of gift transaction. It was bounden duty of the donee I beneficiaries of the transaction, to prove the validity of the gift such as the offer was made by the donor and acceptance of the offer of gift by the donee as well as delivery of posses sion of gifted property through believable evidence with exact information of day, date, time and presence of the witnesses but in this case the beneficiary/petitioner has failed to prove the mandatory ingredients of a valid gift which oust the substratum of their stance. Moreover if a gift mutation is challenged, the beneficiary has to fall back upon the primary transaction which has to be proved through trustworthy corroborative evidence to that effect, but here in this case no such proof has been furnished with regard to the exact time, place and date of the oral gift as well as the offer, acceptance and delivery of possession, as such, the petitioner failed to prove the alleged oral gift as prescribed under the law which is fatal to his stance. Reliance is placed on the cases titled as Muhammad Iqbal and another v. Mukhtar Ahmad through LRs (2008 SCMR 855), Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1 ). Furthermore in the case of Mrs. Khalida Azhar v . Viqar Rustam Bakhshi and others (2018 SCMR 30 ), the Hon'ble apex Court held as under:- However , the said respondent was still required to prove a valid gift of the land by his father , grandmother , uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased, it was absolutely necessary for the respondent No.1 to have proved all the essential ingredients of the gift independent of the gilt mutations, Exh.DW - 7/1 to DW-7/5. He was essentially required to prove that the donees have offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him. He was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him. However , neither has the respondent No.1 divulged such details nor has he produced any person who witnessed the happening of any of the above. Although proving and verifying the authenticity of the gift mutation and its attestation, would not have been sufficient, without proving the transaction embodied therein, as noted above, however , the respondent No.1 has failed ever to prove the authenticity and veracity of the mutations and its attestation, as none who allegedly witnessed the attestation of the mutations been produced, neither the revenue officer nor the Lumbardars or the other witnesses whose names find mention in the attestation, or any or them who participated in the relevant Jalsa-e-aam/assembly been produced by respondent No.1, although there could have been a possibility that with the passage of long period of time, none of the above person may have survived, or may not have been traceable, but such also has not been claimed by respondent No.1. He has also not been able to say positively as to whether the signature of the person who witnessed the gift attestations, were obtained by the revenue office in the regis ter of mutation as required in terms of subsection (7) of Section 42 of the West Pakistan Land Revenue Act, 1967. The respondent No.1 thus having failed to prove the essential elements of gift in his favour , and having also failed to prove the authenticity and veracity of the relevant attestation, no valid gift of the subject land can be presumed in his favour , the respondent No.1 is, therefore, liable to share the land with the appellant to the extent the appellant is entitled to inherit in accordance with Sharia, and also to pay to her the amount of mesne profit in respect of her such share in the land at the rate of Rupees eight thousands (Rs.8000-) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the date the possession of the land to the extent of her share is delivered to her after proper partition and demarcation by the revenue authorities which entire exercise shall be concluded within two months from the date hereof. In addition to the amount of mesn e profit the respondent No.1 shall also pay to the appellant the amount of markup accrued thereon at the bank rate on year to year basis and till the time the entire amount is paid".
6. Para Nos. 149 and 150 of the Muhammadan Law contains three important prerequisites of a valid gift such as un-coerced and explicit offer of the gift by doner , acceptance of the gift by the donee and delivery of possession' under the very gift to the donee are mandatory in nature and absence of any ingredient render the very gift as invalid but in this case the above said ingredients have neither been asserted nor proved by the petitioner . The Hon'ble Supreme Court of Pakistan in a judgment titled as Mst. Sadia v. Mst. Gul Bibi (2016 SCMR 662) held as under:-
14. Indeed, it a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment or past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity , but the other important thing is the proof of fulfillment of three conditions of a valid gift "of fer', "acceptance" and "delivery of possession".
Reliance can also be placed on the cases titled as Allah Ditta and others v. Manak alias Muhammad Siddique and others (2017 SCMR 402), Naveed Akram and others v. Muhammad Anwar (2019 SCMR 1095 ) and Muhammad Sarwar v. Mumtaz Bibi and others (2020 SCMR 276); In a latest case, the Hon'ble Supreme Court of Pakistan while deciding the Civil Petition No. 4459 of 2018 titled as Farhan Aslam and others v. Mst. Nuzba Shaheen and another vide order dated 27.1 1.2020 has held as under:- "5.... Violating the law of inheri once, which in the case of Muslims is the shariah, and exploiting the most vulnerable members of society is wholly unacceptable. An heir inherits property to the extent of his/her share the very moment his/her predecessor passes away . But the petitioners have audac iously managed to deprive the respondents of their inheritance from Mansab Khan.
6. Almighty Allah commands: `Let those (disposing of an estate) have the same fear in their minds as they would have for their own if they had left a helpless family behind; Let them fear Allah, and speak words of appropriate (comfort)?'
"Those who unjustly eat up the property of orphans, eat up a fire into their own bodies: They will soon be enduring a Blazing Fire'.
(Respectively verses 9 and 10 of Surah An-Nisa (4), translated by Abdullah Yusuf Ali, 'The Holy Qur'an, Translation and Commentary' .)
7. In the present case a widow and an orphan ('yatama' in Arabic) were depriv ed of their inheritance for over sixteen years which must have been excruciatingly painful for them. The petitioners did not abide by the aforesaid verses and forgot what had been made incumbent: `And come not nigh [near] to the orphan's property , except to improve it'.
(Verse 152 of with (6) Al-Anam of the Holy Qur'an, translation by Abdullah Yusuf Ali, 'The Holy Qur'an Translation and Commentary')
If the petitioners had remembered that they too will face Ultimate Justice they may have acted better .
8. The Constitution of the Islamic Republic of Pakistan (the 'Constitution') safeguards property (including inherited property) under Article 24(1) of the Constitution and protection of women and children is guaranteed by Article 25(3) of the Constitution. The Constitution sets out the goals which the people of Pakistan have set out for themselves in the 'Principles of Policy', which include the protection of 'mother and the child' (Article 35) and require the 'promotion of social justice and eradication of social evils' (Article 37). Depriving a mother and her child from their inheritance does not protect them but preys on them. Such conduct is a prevalent social evil and inherently unjust. It is expected that the organ and authority of the State will act in accordance with the Principles of Policy as provided by Article 29(1) of the Constitution. Therefore, claims by orphans and widows alleging that they have been deprived of their inheritance must be expeditiously decided by the concerned organ and authority of the State, including the courts.
9. The revenue authorities must also be extra vigilant when purported gifts are made to deprive daughters and widows from what would have constituted their shares 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, as repeatedly held by this Court, including in the cases of Islam-ud-din v Noor Jahan (2016 SCMR 986) and Khalida Azhar v. Viqar Rustam Bakhsh i (2018 SCMR 30). Purported gifts and other tools used to deprive female family members, including daughters and widows, are contrary to law (shariah in such cases), the Constitution and public policy . In Abid Baig v. Zahid Sabir (2020 SCMR 601) this Court reiterated what it had held thirty years earlier in the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1), as under:
11. We cannot be unmindful of the fact that often times male members of a family deprive their female relatives of their legal entitlement to inheritance and in doing so shariah and law is violated. Vulnerable women are also sometimes compelled to relinquish their entitlement to inheritance in favour of their male relations. This Court in the case of Ghulam Ali had observed that 'relinquishment' by female members of the family was contrary to public policy and contrary to shariah. It would be useful to reproduce the following portion from the decision of this Court: "Here in the light of the foregoing discussion on the Islamic point of view the so-called "relinquishment" by a female of her inheritance as has taken place in this case, is undoubtedly opposed to "public policy" as understood in the Islamic sense with reference to Islamic jurisprudence. In addition it may be mentioned that Islam visualised many modes of Civil Petition No. 4459 of 2018 5 circulation of wealth of certain types under certain strict conditions. And when commenting on one of the many methods of achieving this object, almost all commentators on Islamic System agree with variance of degree only that the strict enforcement of laws of inheritance is an important accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy .
In other words, the disputed relinquishm ent of right of inheritance, relied upon from the petitioner's side, even if proved against respondent, has to be found against public policy . Accordingly the respondent's action in agreeing to the relinquishment (though denied by her) being against public policy the very act of agreement and contract constituting the relinquishment was void."
6. Plaintif f while appearing as PW-1 in his statement has stated that gift was made in the presence of Ahmad Ali and Mukhtar Ahmad as well as in presen ce of respondents/sisters but nobody raised any objection thereto but the said oral gift was not incorporated in the revenue record due to illness of his father . In his statement the petitioner has made unauthorized improvements as the names of the witnesses were not mentioned in the plaint, as such, evidence produced by the petitioner is D out of pleadings which cannot be considered or discussed, rather are liable to be ignored while deciding the lis. Reliance is placed on the cases titled as Zulfiqar and others v. Shandat Khan (PLD 2007 SC 582), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914), Combined Investment (Pvt.) Limited v. Wali Bhai and others (PLD 2016 SC 730) and Moiz Abbas v . Mrs. Latifa and others (2019 SCMR 74 ).
7. The learned trial court has failed to appreciate the legal and factual aspects of the case and decreed the suit whereas the learned appellate court through a well-reasoned judgment has dismissed the suit of the petitioner and has committed no illegality . It is well settle d that in the event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence.
Reliance is placed on the case titled as Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398 ).
8. In view of above, this civil revision is dismissed being devoid of any force with no order as to costs.