ABDUL HAMEED BALOCH J. The petitioners/defendants assailed judgment and decree dated 26th June, 2015 (impugned judgment and decree) passed by Majlis-e-Shoora Kalat at Mastung, (appellate court), whereby the appeal filed by respondents Nos. 1 to 4/plaintiffs against the judgment and decree dated 24th November, 2014 of Qazi Sarawan at Mastung (trial court) was allowed and suit was decreed.
2. Concise facts of the case are that the respondents Nos. 1 to 5/plaintiffs filed a suit for declaration, permanent injunction, possession of inheritance of late Malik Muhammad Anwar against the petitioners/ defendants and respondents Nos. 5 to 7/ defendants in the court of Qazi Sarawan at Mastung alleging therein that the plaintiffs and fathers of Respondents Nos.1 to 5 are legal heirs of late Malik Muhammad Anwar, who left land bearing Khatooni No. 1/1, khasra No.7 Qitas, measuring 10 rods 18 poles, Khatooni No. 30/34 Khasra No. 9 Qitas, measuring 10 rods 24 poles, khatooni No. 112/117 Khasra No. 4 Qitas measuring 16 rods 11 poles situated at Mouza Ahmed Khotay Tappa Paring Abad, Tehsil and District Mastung. The father of the defendants died two and half years ago prior to the death of father of plaintiffs. The father of the defendants was lone brother of plaintiffs. The defendants clandestinely transferred whole inherited property to their names depriving the plaintiffs from their legal share.
3. The defendants Nos. 2, 3 and 5 filed joint written statement and contested the claim of the plaintiffs stating that paternal grand father of defendants had transferred the land in the names of defendants on 24th March, 2012 through gift and possession was also given to the defendants.
They have planted different trees over the land in question without any prohibition. While defendant No. I filed separate written statement and admitted the contention of the plaintiffs.
4. On the basis of divergence of pleadings the learned trial court framed issues. The contesting parties led pro and contra evidence in support of their respective claims. On conclusion the trial court vide judgment and decree dated 24th November, 2014 dismissed the suit of the plaintiffs.
Being aggrieved the plaintiffs filed appeal before Majlis-e-Shoora, who vide impugned judgment and decree dated 26th June, 2015 allowed the appeal and decreed the suit; hence the petitioners are before this court.
5. Learned counsel for the petitioners contended that the judgment of the appellate court is against the dictum laid down by superior courts. The same is based on presumption, assumptions.
The plaintiffs have not prayed for cancellation of gift. The petitioners/defendants proved the factum of gift through evidence and transfer mutation. The burden of proof under Article 117 of Qanun-e-Shahadat Order, 1984 (Order 1984) was on the plaintiffs to prove their case on their own strength. The statements of the plaintiffs are hearsay and have no relationship with the parties. The plaintiffs failed to produce cogent evidence. The donor of gift was suffering from Marz-ul-Maut. The learned counsel placed reliance on Khalil Ahmed v. Abdul Jabbar Khan, 2005 SCMR 911 and Ghulam Hussain v. Muhammad Bilal, 2010 CLC 837.
6. Conversely the learned counsel for the respondents contended that the gift mutation is based on fraud and misrepresentation. The alleged donor behind the back and without knowledge of the plaintiffs transferred the inherited property to his name depriving female legal heirs. The petitioners failed to produce any witness before whom the donor gifted the property to defendants. The learned counsel placed reliance on Rab Nawaz v. Ghulam Rasul, 2014 SCMR 1181 and Raees Ahmad v. Jannat Bibi, 2018 CLC Note 57.
7. Heard and perused the record. Prior to discussing the evidence of the parties it would be relevant to reproduce the relevant provision of law which deals with gift. Under the Muhammadan Law Chapter-XI is in regard of gifts. Under section 147 of Muhammadan Law there is no compulsory that gift should be in writing. Under the referred to section there is no embargo on oral gift. Section 149 relates to essentials of gift, which reads as under: "149. The three essentials of a gift.---It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in 5.150. If these conditions are complied with, the gift is complete."
8. On perusal of referred to provision the beneficiary of gift (donee) has to prove the ingredients of valid gift i.e. offer, acceptance and possession. Parties admitted that the properties in question in settlement record are in the name of Malik Muhammad Anwar (predecessor of plaintiffs and father of defendants); secondly the parties are legal heirs of deceased.
9. The petitioners/ defendants alleged that through gift the suit property was transferred in their names in the record of right. In such circumstances the burden of proof lie on petitioners/defendants to prove that the donee gifted mutation to them according to settled principles of law.
10. The plaintiffs produced Muhammad Azam Patwari who produced mutations as Ex: P/1, Ex: P/2 and Ex: P/3. It appears from Ex: P/1 that suit properties were transferred in the names of plaintiffs on 24th March, 2012 in the revenue record. It appears from transfer/mutation that Muhammad Anwar (father of plaintiffs) appeared through application and verbally stated that he has gifted the properties to defendants and possession has also been handed over to the donee. The referred to transfer further disclose that the donor was identified by Moulvi Muhammad Ismail and Muhammad Karim. Both of them signed the transfer mutation as identifier.
11. The defendants' witness Shakar Khan aged 20 years replied in cross-examination that he was not present at the time of gift, laterally heard. After two years he got knowledge about the gift. DW- 2 Muhammad Azam Patwari produced transfer Mutation No. 89 of Khatooni No. 1/1, 30/34, 112/117 as Ex: D/1. The witness on query mulled that Ex: D/1 was not prepared in his presence. DW-3 Zahoor /Ahmed aged 22 years in cross-examination stated that he has no knowledge of date and month of gift. He was not present at the time of gift. The gift was made through writing. DW-4 Ghulam Mustafa produced the record of mutation of khatooni No. 1/1, 30/34 and 112/117 as Ex: D/2. The witness stated that the gift was made orally. The attorney of defendants Nos. 3 and 5 Muhammad Yameen (defendant No.2) aged 27 years in cross-examination replied that the time of gift beside donor and donee identifier Moulvi Muhammad Ismail and Muhammad Karim were present and they both are alive.
12. The scanning of evidence of beneficial of gift deed (defendants) reveals that they are not consistent with regard to factum of gift. None of the witness stated date, time, month and place of gift and in whose presence the gift was done. The witnesses produced by the defendants are 20 or 22 years old with no close relationship with the parties. It is not appeal-able that an aged person without calling his near relatives made gift before non family members. As per Ex: P/1 the donor was identified by Moulvi Muhammad Ismail and Muhammad Karim, who signed the gift transfer mutation but with known reason the defendants withheld them. Under Article 29 (g) of Qanun-e- Shahadat Order 1984 (Order 1984) when the parties failed to produce best evidence without any reason the presumption could be drawn that if the witnesses produced they should not state in his/their favour. As per record the only two referred persons were most important witnesses. The other witnesses of the defendants clearly stated that they were not present at the time of gift.
Reliance is made to the case of Naveed Akram v. Muhammad Anwar, 2019 SCMR 1095, in which it was held: "7. We find that petitioner No.1 who had signed the agreement did not dispute his signatures.
Further absence of Muhammad Akron: from the witness box was fatal to the petitioners' case. In terms of Article 129 of the Qanun-e-Shahadat Order, 1984 there was a strong presumption against Muhammad Akram for withholding the best evidence. The agreement to sell stood established in accordance with law through overwhelming evidence. The testimony of the witnesses produced by the Respondent withstood the test of cross-examination and was found to be credible. Further, transfer of the property by way of gift in favour of his sons by Muhammad Akram was obviously a device to deprive the Respondent of his right that has accrued to him by reason of execution of the agreement to sell and payment of earnest money. Even otherwise, the gift could not be proved. Neither the date of attestation nor the name or place when the oral gift was made could be established. Further, no witness in whose presence the oral gift was made was examined. The mere fact that gift mutation was entered is insufficient to establish a valid gift which could have the effect of defeating the rights of the Respondent. Even otherwise, the lower fora correctly found that the mutations were undertaken under questionable circumstances which also involved tampering and antedating for which no plausible or legally sustainable explanation was forthcoming. Even otherwise, the gift and the resultant mutation need to be independently proved.
In the instant case, there was complete failure on the part of the petitioners to prove the oral gift through production of credible witnesses."
13. There is no evidence on record why the father had deprived his daughters from the legacy at the time of extreme old age. There is no evidence on record that the plaintiffs/ daughters were unsound, disobedient to their father. For the reason he was compelled/ bent upon to deprive them from their share in inheritance. Though there is no cavil to this proposition that the donor is free to gift his whole or part of property to anyone of his choice but when some legal heirs are required to deprive others it is imperative upon the beneficiary to bring a motive for depriving them from their due share. Reliance is placed on case Barkat Ali through legal heirs v. Muhammad Ismail through legal heirs, 2002 SCMR 1938, wherein it was held by their lordship: "---Gift---Furnishing of reasons and justifications of making gift by the donor---Necessity--- Courts not divested of powers to scrutinize the reasons and justification for a gift so that no injustice was done to the rightful owners and no course of inheritance was bypassed.
Though it is not necessary for a donor to furnish the reasons for making a gift yet no gift in the ordinary course of human conduct is made without reason or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. In the wake of frivolous gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justifications for a gift so that no injustice is done to the rightful owners and no course of inheritance is bypassed"
"---Gift---Validity---No reason had been furnished by the donor for the gift made to the grandson---Love and affection of the grandson seemed to be unreasonable in the presence of one and the only son of the donor---Son of the donor had two daughters as well and there was apprehension to the donor that in case of death of his son property would also be inherited by his daughters which was a negative reason for making said gift by the donor---Grant of gift, in circumstances, seemed to be mala fide."
The relevant paras of the judgment cited as Muhammad Bakhsh v. Ellahi Bakhsh (Deceased) through Umar Khan and others (2003 SCMR 286), is reproduced as under:- "Fact that donor died 14 days after execution of gift would strengthen the stance that donor was not in good health and execution of gift deed was dubious."
"Gift would be invalid when it deprives legal heirs of their shares according to the Holy Quran."
Reliance is also placed on Allah Ditta v. Manak alias Muhammad Siddique, 2017 SCMR 402. It was held therein: "2. Heard. We find that the instant case is founded upon misreading and non-reading of the evidence on the record which lapses have been cured by the learned High Court. In this context, it may be mentioned the relationship inter se the alleged donor and the petitioners is of uncle and nephew(s). The consideration for the gift as alleged by the respondent, that he has been looking after the alleged donor has not been proved on the record. It seems unnatural that a person could deprive his own children and dole out the property to others, may be nephews. The alleged donor had his own children; besides the mutation of transfer of immovable property is only a manifestation of the oral transaction and it does not carry any presumption of correctness, particularly in the circumstances when it has been assailed by the person affected by the same.
In the instant case, the petitioners assert that a gift had been made by Abdul Haq deceased in their favour and subsequently the mutation was attested, but in the entire evidence led by them they have not been able to prove through positive evidence the day, venue, the persons in whose presence the alleged gift was made, the time thereof the month and year and even the consideration. Simpliciter that a tehsildar who sanctioned the mutation appeared and deposed that the mutation was validly attested by itself would not serve the purpose of the petitioners who as the beneficiaries thereof had to prove the gift in unequivocal terms, particularly considering the fact that the revenue officer never stated that he knew Abdul Haq personally and that the gift for valid consideration was made in his presence; besides there are quite a few lapses committed by the revenue authorities in connection with the alleged sanction of the mutation, as has been highlighted in the impugned judgment which has made the mutation dubious and much credence cannot be given to his statement."
Further, reliance is also placed on Wali Muhammad Khan v. Mst. Amina, 2018 SCMR 2090. It was held therein: "13. We may observe that this case is yet another sad example of brothers depriving their sisters of their inheritance by contrived means. There was no reason why a mother would want to exclude her daughters of their inheritance, and all the moreso, when the share of each son was twice that of each daughter. The courts exercise extreme caution when faced with gifts' which deprive the female members of a family. This Court has held, that, gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful owners and no course of inheritance is bypassed. The appellants had completely failed to establish the gift in their favour. It was not established that the person presented before the revenue officer, whose statement he recorded, was actually Mst. Part. Only one person (Muhammad Zaman) who was not an immediate family member, identified the lady in parda and this person was an interested person. It was not established that Mst. Pari understood, what she was doing and the consequences of her actions nor that she did not do so under compulsion, undue influence or advantage. The brothers deprived their sisters of their share in the property left by their mother and the brothers perpetuated this injustice for about two decades which was finally corrected by the learned Judge of the High Court whose judgment we affirm. The result therefore is that we dismiss this appeal with costs throughout."
14. Mere transfer mutation is not proof of valid gift. Gift mutation should be proved independently.
No witness of oral gift was produced in whose presence the property was orally gifted to defendants. Reliance is placed on Muhammad Nawaz v. Sakina Bibi 2020 SCMR 1021. It was observed therein: "13. Having heard the learned ASC's for both sides, we also notice that on account of the mutation having been declared invalid and illegal, the land would revert back to the legal (heirs of Ghulam Muhammad. It is settled principle of jurisprudence that no person can be allowed to take the benefit of his own fraud. Further permitting Muhammad Idrees to inherit his entire share would amount to giving him a premium for his fraud considering that he has admittedly sold and received valuable consideration for land measuring 6 kanals 9 marlas. In addition the rights of Imran Ali will unfairly be prejudiced, who being bona fide purchaser without notice were not at fault, penalizing them in this way would be unjust and unfair. Being one of the sons of the deceased, Muhammad Idrees would be entitled to a share in the estate of his deceased father by way of inheritance which would be more than 6 kanals 9 marks. Therefore, it is just, fair and appropriate that out of the share of Muhammad Idrees, land measuring 6 kanals 9 marlas which he has already sold in favour of the appellants should be allowed to be retained by them and to that extent the judgment and decree' of the revisional Court/High Court is liable to be modified and the judgment and decree of the first appellate Court is liable to be revived and upheld. Order accordingly."
In view of above the instant revision petition filed by the petitioners being devoid of merit is dismissed and judgment and decree dated 26th June, 2015 passed by Majlis-e-Shoora Kalat at Mastung is upheld. No orders as to costs.