SHAHID BILAL HASSAN, J. Facts in concision are as such that the petitioners instituted a suit for declaration alongwith permanent injunction against the respondents to the effect that they are owners of the property measuring 29-Kanals 19-Marlas comprising Khewat No. 3 & 4 vide inheritance mutation No.44 and Rapt No.17 dated 11.09.1996, situated at Mauza Sayed Mohal, Tehsil Kamalia; That they are in possession through `Chakotadar' and alleged oral gift mutation No.45 vide Rapt No.2 dated 30.09.1996 on behalf of petitioners in favour of their mother Mst. Sattan Bibi and subsequently the alleged oral gift mutation No.46 dated 16.10.1996 on behalf of Mst. Sattan Bibi in favour of the respondents are against law and facts, based on fraud, conspiracy, forged, result of collusion and ineffective upon the rights of the petitioners/plaintiffs, therefore, the same are liable to be cancelled.
The suit was contested by the respondent No. while submitting written statement wherein he controverted the averments of the plaint and raised different legal as well as factual objections, whereas respondent No.2 submitted conceding written statement in favour of the petitioners/ plaintiffs: The divergence in pleadings of the parties was summed up into issues by the learned trial Court.
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 judgment and decree dated 03.05.2018 decreed the suit in favour of the petitioners/plaintiffs. The respondent No.1 being aggrieved of the said judgment and decree preferred an appeal and the learned appellate Court vide impugned judgment and decree dated 11.12.2020 accepted the appeal, set aside the judgment and decree date 03.05.2018 and dismissed suit of the petitioners; hence, the instant revision petition.
2. Learned counsel for the petitioners has argued that the impugned judgment and decree is against law and facts of the case; 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 by the petitioners; that the impugned judgment and decree is based on misreading and non-reading of evidence on record; that the learned appellate Court has failed to apply independent judicious mind and has knocked out the petitioners on technical grounds; that the impugned judgment and decree has been passed in a summary manner arbitrarily; that material illegalities and irregularities have been committed; that the impugned judgment and decree is based on surmises and conjectures; hence, the same is not sustainable in the eye of law. Therefore, the revision petition in hand may be accepted and by setting aside the impugned judgment and decree, suit of the petitioners may be decreed by restoring the judgment and decree dated 03.05.2018 passed by the learned trial Court.
3. Naysaying the above submissions, learned counsel representing the respondent No.1 has supported the impugned judgment and decree and has prayed for dismissal of the revision petition in hand. Respondent No.2 has already been served personally but no one is present on his behalf, therefore, he is proceeded against ex parte.
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 especially on the basis of fraud and misrepresentation, 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, the respondent No.1 has failed to lead evidence showing that as to when the offer was made by the donors i.e. the present, petitioners to their mother Mst. Sattan Bibi, which was accepted by the donee and thereafter possession was delivered to the donee i.e. Mst. Sattan Bibi where-after the mutation No.45 was entered and attested in, favour of Mst. Sattan Bibi. Even the names of witnesses in whose presence such transaction took place and the place where such incident occurred has not been pleaded and proved by the respondent No.1. Moreover, the respondent No.1 has also not been able to lead evidence showing that as to when, where and in whose presence Mst. Sattan made offer of gifting the suit property to the respondents, which was accepted by them and thereafter she transferred the possession to the respondents and mutation No.46 was entered and executed in their favour.
Only solitary statement of the respondent No.1 is on record and no other witness i.e. marginal witnesses of the disputed mutations, Patwari Halqa and Revenue Officer who attested the mutations have been produced by the respondent No.1. All these facts lead me to conclude, especially after submission of conceding written statement by the respondent No.2, that the transaction of alleged gift mutations No.45 and 46 have been maneuvered by the respondent No.1 only to deprive the petitioners of their valuable rights in inherited property. All this show that the respondent No. 1 has failed to discharge the heavy burden of proving the valid gift in favour of the respondents. 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 wider Sharia as well as the law, the Courts are not divested of the powers 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 All 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 coining 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 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 a 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.
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:
6. Nothing has been brought on record to show that at the time of execution of alleged gift mutation No.45 why the petitioners excluded their near and dear ones. Appearance of the petitioners and even Mst. Sattan Bibi before the revenue officer for the purpose of getting the disputed mutations sanctioned has not been proved because, except solitary statement of the D.W.1 no other evidence in this regard is available on record. 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 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.'
7. Fraud vitiates the most solemn transaction; therefore, in this particular case, it can safely be held that the limitation would run from the date of knowledge; therefore, 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. Reliance is placed on Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417).
8. Pursuant to the above discussion it is observed that the learned appellate Court has failed to adjudicate upon the matter in hand by appreciating law on the subject; thus, the learned appellate Court has misread evidence of the parties and when the position is as such, this Court is vested with authority to undo the same in exercise of supervisory jurisdiction under section 115, Code of Civil Procedure, 1908.
9. 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 /Islam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179), the revision petition in hand is allowed, impugned judgment and decree dated 11.12.2020 passed by the learned appellate Court is set aside, consequent whereof the suit of the petitioners is decreed by restoring the judgment and decree dated 03.05.2018 passed by the learned trial Court. No order as to the costs.