MIRZA VIQAS RAUF, J. The root cause of controversy inter se parties herein is the mutation No.8352 dated 12th June, 1972 whereby land measuring 57-Kanal 3-Marla, hereinafter referred to as "suit land", owned by the respondent was purportedly gifted to Hayat (deceased), predecessor-in- interest of the petitioners. Factual background of the matter in issue is that respondent is the daughter of Muhammad Khan, who contracted two marriages. Mst. Seesan is the step sister of respondent who is the offspring of first marriage of Muhammad Khan. After death of first wife, Muhammad Khan contracted marriage with Rano, sister of Hayat (deceased) who was maternal uncle of respondent. It would not be out of place to mention here that in return, marriage of Mst.
Seesan was conducted with Hayat (deceased). After the birth of the respondent, Muhammad Khan passed away, as a sequel "suit land" devolved upon the respondent as part of legacy. By way of impugned mutation, "suit land"- as well as land owned, by Mst. Seesan was shown to be gifted in favour of Hayat (deceased), who was alive at that time. The respondent challenged the gift mutation by filing a suit for declaration, possession and permanent injunction with the assertion that at the time of attestation of gift mutation, she was minor and she never gifted the suit land in favour of Hayat (deceased), who practiced fraud and misrepresentation. It is averred in the plaint that the respondent attained the knowledge about the impugned gift mutation six months prior to the institution of the suit when Hayat (deceased) transferred his property to his sons through private partition.
2. Suit was resisted by the petitioners, who submitted their written statement, wherein they controverted the assertions contained in the plaint. Bar of limitation was also pleaded as a hurdle in the way of respondent. After having analyzed the divergent pleadings of the parties, the learned trial Court framed multiple issues and then proceeded to record the evidence of the parties. On completion of evidence, suit was decreed vide judgment dated 26th July, 2011 against which the petitioners though have preferred an appeal before the learned Additional District Judge, Talagang (Chakwal) but same was dismissed vide judgment and decree dated 22nd May, 2013, hence this petition under section 115 of the Code of Civil Procedure (V of 1908), hereinafter referred to as "C.P..C.".
3. Learned counsel for the petitioners have mainly assailed the concurrent findings of the Courts below on the ground of limitation; he urged that suit was though badly barred by time but this material question was not attended by both the Courts below. Learned counsel added that even no issue was framed to this effect. Learned counsel emphasized that evidence has not been properly appraised by the Courts below and as such concurrent findings are tainted with material irregularities.
4. Conversely, learned counsel for the respondent submitted that at the time of alleged gift, respondent was since minor so impugned mutation is void ab initio. Learned counsel contended that suit was well within time from the date of knowledge and as such question of limitation was rightly decided by the Courts below in favour of the respondent. Learned counsel argued that the petitioners being the beneficiaries were obliged to prove the impugned mutation but no cogent evidence was produced to this effect. It is argued with vehemence that there are concurrent findings of facts, which are unexceptionable.
5. Heard. Record perused.
6. By way of impugned gift mutation, the respondent and her step sister Mst. Seesan were divested from their properties in favour of Ilayat (deceased). From the perusal of impugned gift mutation (Exh.P2), it clearly reveals that it was incorporated on the basis of statement of Mst. Seesan only. As per claim of the respondent, she was not only minor at that time but even did not attend the proceedings of mutation. On the contrary, the petitioners pleaded that the respondent was major and she herself executed the gift mutation in favour of their father.
7. The matter in controversy was encapsulated by the learned trial Court in the form of various issues but to my mind' issue No.1 is most pivotal, which is reproduced below: - Whether the impugned mutation No.8352 dated: 12.06.1972 is liable to be set-aside being result of fraud and undue influence and attested in minority age of the plaintiff? OPP It would not be out of context to mention here that issue qua limitation was not specifically framed.
The effect of the same thus shall be examined first.
8. There is no cavil that the petitioners while resisting the suit raised a preliminary objection that suit is barred by time but no specific issue was framed to this effect nevertheless issue No.5 was clearly treated as such and the Courts below have also attended the question of limitation thereunder. The contention of learned counsel to this effect thus holds no water. So far non- framing of necessary issue is concerned, suffice to observe that issues can only be framed from the respective pleadings of the parties as is ordained in Order XIV of "C.P.C.". The petitioners pleaded issue of limitation as one of their defence and in view thereof learned Trial Court though did not specifically framed an issue but issue No.5 was framed in a generic sense, which was treated as such. This aspect is clearly evident from the judgment passed by the learned trial Court.
The petitioners have never moved for re-casting or amendment of issue. Even otherwise, mere non-framing of an issue by the Court will not affect the vires of the judgment if it is established that the parties while leading their evidence were well conscious and aware of the matter in issue and they have led the relevant evidence to that effect. Reference in this respect, if needed, can be made to Abdul Karim v. Haji Now' Badshah (2012 SCMR 212). The relevant extract from the judgment supra is reproduced below:- "7. In the absence of miscarriage of justice due to non framing of issue on a particular controversy in the matter, like where Court did not allow the parties to lead their evidence in support of their contentions for want of issue, if on a question of fact a specific issue required to be framed in the light of the pleadings of the parties is not framed but parties have led evidence in support of their respective stances, the decision on such question can be rendered in the light of evidence available on record without framing the issue.
In the case of Fazal Muhammad Matti v. Saeeda Akhtar (1993 SCMR 4), it was held:-- "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift.
The non-framing of a specific issue in such circumstances is inconsequential."
The same view was further reiterated by the Honourable Apex Court in the cases of Eada Khan v.
Mst. Ghanwar and others (2004 SCMR 1524) and Muhammad and 9 others v. Hasham Ali (PLD 2003 Supreme Court 271). Even this Court in the case of Mst. Saeeda Akhtar Sadiq through Special Attorney v. - Tauqir Akhtar (2006 CLC 1430) has adopted the sample principles.
9. Adverting to the core issues as to the validity of impugned gift mutation and limitation, it is observed that mutation was mainly questioned by the respondent on the ground that at the time of its attestation, she was not only minor but she did not participate in the proceedings. To this effect, she asserted in her plaint that she born in the year 1958 whereas this fact was seriously refuted by the petitioners on the other hand. From the mere glimpse of the gift mutation (Exh.P2), can be observed with naked eyes that mutation was attested merely on the statement of Mst.
Seesan and the respondent was not present at that time. The first and foremost question which thus emerges is as to whether the respondent was minor at the relevant time?
10. To the above effect one of the attesting witnesses of mutation namely Sarwar Khan was examined as PW1, who stated that at the time when mutation was sanctioned, only Mst. Seesan was present. In furtherance, Noor Khan appeared as PW-2 whereas respondent herself entered in the witness-box as PW-3. She also tendered documentary evidence in support thereof, more pertinent to which is copy of National Identity Card (Exh.P1). In order to counter the claim of the respondent, Abdul Ghafoor, one of the petitioners, appeared as DW-1. In addition, the petitioners produced copy of birth certificate as Exh.D2 to show that the respondent was major at the time of attestation of mutation.
11. After having analyzed the respective evidence of the parties, more particularly the National Identity Card (Exh.P1) and the birth certificate (Exh.D2), an inference can safely be drawn that the respondent was born in the year 1958. Even if date of birth mentioned in the birth certificate is to be taken into consideration which was 20.11.1955, the respondent's age becomes 16 1/2 years at the time of attestation of mutation.
12. In terms of section 3 of the Majority Act, 1875, every child having less than age of eighteen years is deemed to be minor. Section 11 of the Contract Act, 1872 ordains that every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. In other words, it can be said without any hint of doubt that a minor cannot enter into any contract.
Chapter 11 of Muhammadan Law by Dinshah Farduji Mullah (D.F. Mulla's) deals with the gifts. Para- 139 postulates that every Muhammadan of Sound mind and not a minor may dispose of his property by gift. It is thus duly established on the record that the respondent was minor at the time of attestation of gift mutation, which was sanctioned on the basis of statement of Mst. Seesan, who was neither the guardian of the respondent nor she was authorized to enter into such transaction on behalf of respondent. In view thereof, gift mutation is clearly a void instrument.
13. Now coming to the question of limitation vehemently raised by learned counsel for the petitioners, it is observed that in terms of Section 6 of the Limitation Act, 1908, where a person entitled to institute a suit or proceeding or make an application for the execution of a decree is, at the time from which the period of limitation is to be, reckoned, a minor, or insane, or an idiot, he may institute the suit or proceeding or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the First Schedule or in section 48 of the "C.P.C.". By virtue of Article 120 of the Limitation Act, 1908, the respondent was obliged to bring her suit challenging the validity of gift mutation in ordinary circumstances within six years when the right to sue accrued. The respondent was since minor at the relevant time, so under Section 6 of the Limitation Act, 1908, she was obliged to institute the suit within said period after becoming major.
14. It is claim of the respondent that she was having no knowledge about the attestation of mutation and she attained the knowledge six months prior to the institution of suit when the donor transferred the "suit land" in favour of his sons through private partition. To this effect, she has also produced cogent and convincing evidence, which has been duly appraised by both the Courts below persuading them to adjudge the issue of limitation in favour of respondent. Guidance in this respect can be sought from Yar Muhammad Khan and others v. Sajjad Abbas and others (2021 SCMR 1401). In somewhat similar circumstances, in the case of Sultan v. Muhammad Hussain (2006 MLD 659) this Court held as under:- "5. Now the question remains, whether the mutation of gift when not challenged by petitioners Nos.2 and 3 within three years after attaining the age of majority, can the suit be dismissed as being out of limitation? The answer has been provided by the judgment reported as Riaz Ahmad and 2 others v. Additional District Judge and 2 others (1999 SCMR 1328), in which it has been clearly held:-- "The mutation was attested on the basis of a gift, validity of which was challenged on the ground that a gift obtained from a minor is void and unlawful in the eye of law and no rights came to vest in the petitioners on the basis of the alleged gift or the mutation gift attested on the basis of said transaction. Such transaction made by a minor cannot be rectified after attaining majority in view of the law laid down by this Court in the Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258). Moreover, respondent No.3/plaintiff in possession of other property in the Khata as co-sharer and, therefore, being a co-sharer in the Khata no limitation would run against her, specially when the case of the plaintiff/respondent No.3 in that the cause of action accrued to her at the time of denial of title which occurred one week before filing of the suit. It is well-settled that wrong mutation confers no right in the property as Revenue Record is maintained only for the purpose of ensuring realization of land revenue and co- sharer can file a suit for declaration due to denial of rights by the co-sharer and the limitation would, start in such cases on the denial of title."
15. There is yet another important aspect, there was a serious challenge to the validity of the impugned gift mutation, so the petitioners being beneficiaries of the same were though obliged to prove its genuineness by first pleading necessary details of the gift transaction followed by unimpeachable evidence but they badly tailed to discharge the onus of proof. Guidance in this respect can be sought from Faqir Ali and others v. Sakina Bibi and others (PLD 2022 Supreme Court 85). The relevant extract from the same is reproduced below: -
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 has 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 inutations 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 gilt 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.
9. We have also. considered the argument of the learned Advocate Supreme Court for the Appellants that reliance by the High Court on Ghulam Ali's judgment (supra) was inept. We have gone through the said judgment and find that ratio of the same is fully attracted to the facts and circumstances of the present case and reliance of the High Court on the said judgment was well considered and justified. The ratio of Ghulam Ali judgment was reiterated in the case of Muhammad Anwar v. Khuda Yar (2008 SCM R 905) holding that possession of one or more of the legal heirs would be deemed to be that of their deceased predecessor in interest and limitation would not run against a co-sharer. We therefore find that the High Court correctly reversed the findings of the lower fora on the question of limitation having come to the conclusion that the said fora had misapplied the law on the subject.
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 established 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.
11. After having gone through the entire evidence produced by the Appellants in' support of their suit and seen in the background of the contents of the pliant, we have come to the conclusion that neither the fact of the oral gift nor the fulfillment of all legal procedural formalities as well as evidentiary requirements of proof of valid entries and sanctioning of the mutation had adequately and properly been fulfilled, in order to independently prove the oral gift as well as entry and sanctioning of the mutations. In the absence of proof of both independent transactions, the suit of the Appellants could not have succeeded and further the transactions in question were even otherwise found to he fraudulent and designed to bypass and subvert the process of law on the basis of which Respondents Nos.1 and 2 were entitled to a share in the assets of their predecessor being his real daughters.
16. It appears from the record that Courts below have arrived at concurrent conclusion after due appraisal of evidence and contra view in exercise of revisional jurisdiction is not permissible. There are concurrent findings of facts recorded by both the Courts below, which are apparently rested upon sound reasoning. The petitioners have failed to point out any misreading and non-reading of evidence. The revisional jurisdiction is not meant to unearth another possible view from the evidence, contra to the findings rendered by two Courts of competent jurisdiction. The revisional jurisdiction is to be exercised, while keeping in view the principles enshrined in section 115 of "C.P.C.".
The superior Courts are always reluctant to interfere with the concurrent findings, unless some patent illegality or material irregularity crept up on the record or pointed out by the petitioner(s).
The exercise of revisional powers is always guided by the necessary pre-conditions laid down in the above referred provision of law. The scanning of evidence and the perusal of impugned judgments does not reflect any illegality or material irregularity justifying interference by this Court.
Guidance in this regard can be sought from Ghulam Qadir and others v. Sh. Abdul Wasdood and others (PLD 2016 Supreme Court 712), Mst. Zarsheda v. Nobat. Khan (PLD 2022 Supreme Court 21) and Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13).
17. For the foregoing reasons, instant petition being devoid of any merits, is dismissed with no order as to costs.