SHAHID BILAL HASSAN J. Succinctly , the petitioner , Mst. Ghafoori Bibi, instituted a suit for declaration to the effect that she was daughter of one Bhoo p Khan, who was owner in possession of land measuring 135-Kanals 15- Marlas falling in Khata No.127 Khatuni No.369 Khasra Nos.310, 332, 333, 334, 335, 390, 391, 392, 394, 295, 401, 411, 418, 419, 423, 424, 911, 933 and 404, situated at Mauza Babliana Autar , Tehsil & District Kasur; that father of the petitioner Bhoop Khan died on 20.07.1986 by will of God and respondents No.1 to 3 purportedly by mala fide acts transferred the disputed property in their names through registered gift deed No.369 dated 03.08.1986, which is liable to cancelled.
The suit was contested by the respondents while submitting written statement wherein they controverted the averments of the plaint and raised dif ferent legal as well as factual objections.
The divergence in pleadings of the parties was summed up into following issues by the learned trial Court:-
1. Whether the plaintiffs have filed the previous suit regarding the same lis pending before this Court, if so, its effect on the maintainability of the present suit? OPP
2. Whether the present suit is time barred? OPD
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the plaintiffs have no cause of action to file the present suit? OPD
5. Whether the defendants are entitled for the special costs? OPD
6. Whether the proper court fee has been affixed in the plaint, if so, what will be proper court fee in this case? OPP
7. Whether the registered Hiba Nama dated 03.08.1986 is based on the fraud and misrepresentation hence void and ineffective upon the rights of the plaintiffs? OPP
8. If the issue No.7 is decided in affirmative whether the plaintiff is entitled for the decree of the suit as prayed for?
OPP
9. Relief.
Both the parties adduced their oral as well as documentary evidence in support of their respective contentions. On conclusion of trial, the learned trial Court, vide impugned judgment and decree dated 18.01.201 1, dismissed suit of the petitioner/plaintif f. The petitioner being aggrieved of the said judgment and decree preferred an appeal but remained unsuccessful vide impugned judgment and decree dated 24.10.2012, which has culminated in filing of the revision petition in hand challenging the vires, legality and sanctity of the impugned judgments and decrees passed by the learned Courts below , respectively .
2. Learned counsel for the petitioner has stressed upon that the father of the petitioner/plaintif f died on 20.07.1986 while the impugned registered gift deed No.369 was registered on 03.08.1986, approximately after 13 days of demise of the donor/father of the petitioner , while the mutation was sanctioned in 19.02.1987, after seven months of death of the father of petitioner; that no question of limitation arises in cases of fraud, thus, the suit was within time after gaining knowledge of fraud at the hands of the respondents No.1 to 3 by the petitioner; that the impugned judgments and decrees are against law and facts of the case, rather the same are based on misreading and non-reading of evidence on record; that the learned Courts below have failed to apply independent judicious mind and have knocked out the petitioner on technical grounds; that the impugned judgments and decrees have been passed in a summary manner arbitrarily; that material illegalities and irregula rities have been committed; that the impugned judgments and decrees are based on surmises and conjectur es; hence, the same are not sustainable in the eye of law; that this Court has ample power to undo the concurrent judgments and decrees when the same are found perverse and arbitrary as well as result of misreading and non-reading of evidence on record, in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908. Therefore, the revision petition in hand may be accepted and by setting aside the impugned judgments and decrees, suit of the petitioner may be decreed as prayed for. Relies on Islam-Ud-Din through L.Rs. and others v. Mst. Noor Jahan through L.Rs. and others (2016 SCMR 986), Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801), Mian Ghayassuddin and others v. Mst. Hidayatun Nisa and others (2011 SCMR 803), Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938 ) and Isfiaan Haider v . Muhammad Hussain and 2 others ( 2017 CLC 352 Lahore).
3. Naysaying the above submissions, learned counsels representing the respondent No.2 & 3 has supported the impugned judgments and decrees and has prayed for dismissal of the revision petition in hand, whereas learned counsel for the respondents No.5 and 7 has submitted that the respondents No.5 and 7 have no objection on acceptance of revision petition in hand.
4. Heard.
5. Ingredients for a valid gift are: offer, acceptance and delivery of possession. When sanctity of a gift is challenged or called into question, the beneficiary has not only to prove the valid execution of gift deed or mutation but also the original transaction. Reliance is placed on judgment reported as Peer Baksh through LRs and others v. Mst.
Khanzadi and others (2016 SCMR 1417 ). However , in the present case, perusal of the alleged registered gift deed, brought on record as Ex.P3 and Ex.D1, goes to divulge that the same does not find mentioned the factum of original transaction that as to when the offer was made by the donor , which was accepted by the donees and thereafter possession was delivered to the donees. Even the same does not disclose the names of witnesses in whose presence such transaction took place and the place where such inciden t occurred. Moreover , the said pivotal document does not disclose as why the donor had excluded his other legal heirs i.e. the daughters and wife and for what reason he had gifted out the disputed property to his sons i.e. respondents No.1 to 3. All this shows that the respondents No.1 to 3 have failed to discharge the heavy burden of proving the valid gift in their favour . In a judgment reported as Faqir Ali and others v. Sakina Bibi and others (PLD 2022 Supreme Court 85), the Apex Court of the country has held:- '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 had specifically ordained that the daughters are entitled to a specified share by way of inheritance in the 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 and notwithstanding the bar of limitation. Courts would not act as helpless by stands and allow a fraud to perpetuate.?
In the said judgment, it has further been held:- "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 establishe d 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."
6. In the present case, admittedly the donor namely Bhoop Khan was an old aged person i.e. about 90 years of age and even his date of death is considered as has been disclosed and relied upon by the respondents No.1 to 3 i.e. 10.10.1986, the execution of disputed gift deed Ex.P3/Ex.D1 on 29.07.1986 cannot be said to have been executed with free consent and without any duress or influence, especially when it has come on record that he (Bhoop Khan) was suffering from some disease and no evidence has been brought by the respon dents No.1 to 3 showing that the donor Bhoop Khan was a healthy man and was enjoying good mental condition at the time of execution of alleged registered gift deed Ex.P3/Ex.D1. No evidence has been brought on record depicting that the alleged gift deed was read over to Bhoop Khan, the donor and made him understand the consequences of the same, especially when he (Bhoop Khan) was living at the mercy of the respondents No.1 to 3. Moreover , no documentary proof with regards to death of marginal witnesses of the registered gift deed Ex.P3/Ex.D1 has been brought on record. Muhammad Waheed D.W.2 is only witness of registration proceedings and no transaction of alleged oral transaction of gift was made in his presence, thus, his evidence has no value with regards to original transaction of gift. In judgment reported as Muhammad Boota through L.Rs v. Mst. Bano Begum and others (2005 SCMR 1885 ), it has been held:- '-------The petitioner in fact wants to deprive his real sister from the legacy of their parents on the basis of alleged gift deed executed in his favour by Mst. Saira Bibi, their real mother , who by no stretch of imagination could deprive her real daughter from the share due without any justifiable reasons which are badly lacking in this case which otherwise does not appeal to logic and reason. The gift deed was admittedly executed by an ailing and 80/85 years old woman who had suffer an attack of paralysis and lost her memory , (attention is invited to the statement of Mst.
Anwar Bibi) and therefore, it should have been substantiated by worthy of credence evidence which could not be done. The petitioner could not show as to when the offer made by the donor and when it was accepted.'
7. Nothing has been brought on record to show that at the time of alleged execution of gift deed Ex.P3/Ex.D1, some independent advice was available to the donor Bhoop Khan, which was necessary keeping in view his old age, especially when through the said document the real daughters and wife were going to be excluded to get their shares. In judgment reported as Mian Ghayassuddin and others v. Mst. Hidayatun Nisa and others (2011 SCMR 803 ), the Apex Court of the country held:- `The onus was heavily placed on the shoulders of petitioners to have proved that the transaction of gift was effected without exercising undue influence over the donor or that she had independent advice at the relevant time and that she had effected the transaction with her free will and consent.'
The said ratio was further reiterated in judgment reported as Rab Nawaz and others v. Ghulam Rasul (2014 SCMR 1181). In judgment reported as Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417 ) it was held:- 'The petitioner was under an obligation to establish the ingredients of the gift claimed by him under the impugned mutations. However , no particulars whatsoever of the time, date, place and witnesses of the declaration of the gift made by Ghulam Muhammad deceased in favour of the petitioner have been provided in his pleadings nor any evidence could be produced by him in this behalf. This is fatal to the petitioner's plea. Admittedly Ghulam Muhammad deceased was a patient of paralysis and was above 85 years of age when the disputed gift mutations were recorded on his statement in 1974. He is justifiably claimed to be in frail physical condition at the time.'
8. So far as the argument that the petitioner was party in an earlier suit instituted by Mst. Sajida and others and was well in knowledge about execution of registered gift deed in favour of the respondents No.1 to 3 as she alongwith other defendants in that suit submitted joint written statement and admitted the valid execution of registered gift deed in favour respondents No.1 to 3, therefore, she is estopped to institute the suit; in this regard, it is observed that the petitioner has unequivocally denied the submission of written statement and joining of proceedings in that suit or appointing a counsel for representing her in the said suit; therefore, when the position was as such, it was bounden duty of the respondents to prove the said fact by producing the learned counsel who represented the petitioner in earlier suit so as to prove that she herself engaged him as her counsel and on her instructions written statement was submitted but in this regard they have failed. Even, the stance taken up by the petitioner that Mst. Sajida Bibi, etc. withdrew the suit when their shares were satisfied by making payment to them and this factum remained un-rebutted as no evidence otherwise has been brought on record by the respondents No.1 to 3. Thus, it can safely be held that the limitation would run from the date of knowledge, which has been pleaded as 15 days prior to institution of suit, hence the suit is well within time, even the efflux of time does not extinguish the right of inheritance and limitation does not run against a void transaction. See Peer Baksh through LRs and others v . Mst. Khanzadi and others ( 2016 SCMR 1417 ).
9. Pursuant to the above discussion it is observed that the learned Courts below have failed to adjudicate upon the matter in hand by appreciating law on the subject; thus, the Courts below have misread evidence of the parties and when the position is as such, this Court is vested with authority to undo the concurrent findings as has been held in Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630 ) and Ghulam Muhammad and 3 others v . Ghulam Ali (2004 SCMR 1001 ).
10. In view of the above, while placing reliance on the judgments supra as well as judgments reported as Islam- Ud-Din through L.Rs. and others v. Mst. Noor Jahan through L.Rs. and others (2016 SCMR 986), Mst.
Khalida Azhar v. Viqar Rustam Bakhsh and others (2018 SCMR 30), Muhammad Nawaz and others v.
Sakina Bibi and others (2020 SCMR 1021 ) and Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179), the revision petition in hand is allowed, impugned judgments and decrees are set aside, consequent whereof the suit of the petitioner is decreed as prayed for . No order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.