SHAHID BILAL HASSAN, J. This single judgment will dispose of the captioned civil revision as well as connected Revision Petition bearing No.963-D of 2003, as in both one and the same judgments and decrees have been called into question.
2. Tersely, Khuda Bukhsh, respondent and Nasir Ali along with Amir Ali both sons of Faiz Bukhsh, instituted two separate suits, for declaration, wherein they challenged the validity and veracity of Mutation No. 334 dated 10.04.1998 and order dated 09.02.1998 passed by AC-II, Kehror Pakka whereby he cancelled the mutations of gifts bearing Nos. 317, 318, 319 and 320, by maintaining that the same have wrongly been cancelled as the alleged donor Ghulam Ali deceased himself gifted out the property in his life time; thus, the subsequent inheritance Mutation No. 334 dated 10.04.1998, after cancellation of the above said gift mutations through order dated 09.02.1998, has been entered without any jurisdiction, illegally, which is liable to be set aside.
The suit was contested by the present petitioner (in both revision petitions) while submitting written statement who denied the averments of plaints and prayed for dismissal of the suits.
Out of the divergent pleadings of the parties the learned trial Court framed issues and vide impugned separate judgments and decrees in both the suits dated 15.03.2001, passed decrees in favour of the respondent(s)/plaintiff(s). The petitioner being aggrieved preferred two separate appeals, which were decided through impugned consolidated judgment and decree dated 17.06.2003 whereby appeals were dismissed; hence, the same has resulted in filing of the revision petitions in hand.
3. Heard.
4. Being a Muslim State, it is essential and sine qua non that the commandments ordained by ALLAH in the Holy Quran should and must be adhered to, but, of course, with a cricking and wrenching heart, it is observed that we, as a nation, have travelled far away from the teachings of Islam. With a heavy heart it is further observed that even in the 21st century, after more than 1400 years of emergence of Islam, a number of people try to deprive the females of their rights of inheritance despite the fact that ALLAH in a categorical and vivid way has ordained that:- 'And let those fear (in their behaviour toward orphans) who if they left behind them weak offspring would be afraid for them. So let them mind their duty to Allah, and speak justly.'
'Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies, and they will be exposed to burning flame.'
(Verses 9 and 10 of Surah An-Nisa (4) translated by Muhammad William Pickthall)
In the present case, a daughter/sister i.e. the present petitioner has been deprived of her right of inheritance for about 23 years from now, which must have been unbearably painful for her and she has breathed her last without enjoying the fruits of her rights with the inherited property of her father, despite the fact that the deceased Ghulam Ali, father of the parties, was admittedly suffering from some serious diseases before his death and even P.W.2 admitted that he was paralyzed about 3/4 days before his death.
Meaning thereby deceased Ghulam Ali was incapable of getting his statement recorded and even to understand the events of alleged gift, entered in the revenue record, in favour of the respondents/sons, by depriving the present petitioner/daughter. Despite appreciating this factum, the learned Courts below have passed the impugned judgments and decrees, which show their lack of legal and judicial acumen as well as understanding. In a recent judgment reported as Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179), the Apex Court of the country invariably held:-- '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 Principle of Policy as provided by Article 29(2) 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 been 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 Khlida Azhar v. Vigar Rustan Bakhshi (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.'
The same view has been reiterated and affirmed in Atta Muhammad and others v. Mst. Munir Sultan (Deceased) through her L.Rs. and others (2021 SCMR 73).
Here in this case, the facts and figures are almost the same as in the above said case, because in this case, as stated above, a daughter (petitioner) has been deprived of her share in inheritance through purported gift deeds, which were not proved by the respondents as per requirement of law, because the basic ingredients for gift i.e. offer, acceptance and delivery of possession are missing in the plaint, as the plaintiffs could not plea as to when, where and in whose presence the deceased Ghulam Ali made offer for gifting out the property, which was accepted in presence of such and such witnesses, whereafter possession was delivered to the respondents/sons as entering the mutation of gift a subsequent event and when the respondents failed to prove the prior event, entering of mutation and alleged Roznamcha are not helpful to them. Moreover, when a question mark was raised upon the health of deceased Ghulam Ali, it was incumbent upon the respondents/plaintiffs, being beneficiaries to bring on record cogent and plausible evidence showing that the said deceased was enjoying good health and was in good senses when he gifted out the property to them; as against them it has come on record that he was suffering from some serious diseases and was paralyzed about 3/4 days before his death, so in such an eventuality any transaction, allegedly made by him, cannot be said to be with an independent mind; thus, when the revenue officer/AC-II found him (Ghulam Ali) unable to make statement, he had rightly cancelled the alleged gift, mutations. With this backdrop, it is observed that the revenue officer has exercised his powers vigilantly and he seems to be a God-fearing person. It has been held in Muhammad Sarwar v. Mumtaz Bibi and others (2020 SCMR 276) that:-- `The petitioner also failed to independently prove the validity of the alleged gift mutation. This Court has held in a number of judgments that where the validity of a gift mutation is challenged, it is incumbent upon the beneficiary not only to prove the validity and legality of the gift mutation by producing all relevant evidence but it is also necessary that the gift itself be proved through cogent and reliable evidence. Both the said requirements were admittedly not met. Neither the alleged oral gift was proved by any credible evidence, nor was the legality or validity of the alleged gift mutation proved by producing credible evidence.'
Same is the case in hand, because the respondents could not prove the gifts itself and the gift mutations by producing cogent and reliable evidence, because they could not plead the names of witnesses in whose presence the alleged process of offer, acceptance and delivery of possession was made nor produced the marginal witnesses and revenue officials in support of their stance.
Even, it is on record that the possession of the disputed property was with the respondents under the deceased Ghulam Ali, father of the parties and it was not in pursuance of the alleged gift.
5. Another aspect in this case is that the respondents could not specifically plead and assert the date of death of deceased Ghulam Ali, after alleged gifts made in their favour and it has only been pleaded in paragraph No.2 of the plaint that deceased Ghulam Ali made offer to transfer the property through Tamleek in favour of plaintiff about two months before, which was accepted and deceased Ghulam Ali delivered the physical possession in pursuance of the tamleek to the plaintiff.
It is not clear whether two months before institution of the suit or before his death, so such a vague plea creates aspersions about the events of purported gift.
6. Pursuant to the above discussion, it is observed that the learned Courts below have failed to appreciate the true facts of the case and have committed material illegalities and irregularities while passing the impugned judgments and decrees, which cannot be allowed to hold field. Thus, by placing reliance on the judgments supra as well as Mst. Saadia v. Mst. Gul Bibi (2016 SCMR 662), the revision petition in hand and connected petition bearing C.R. No. 963-D of 2003 are allowed, impugned judgments and decrees are set aside, consequent whereof the suits titled "Khuda Bukhsh v. Allah Wasai, and others" and "Nasir Ali, and others v. Allah Wasai, and others" for declaration are dismissed with costs throughout.