MUHAMMAD FAFIEEM WALI, J.- Petitioner, through the instant petition, has called in question the vires of Judgment & Decree dated 26.08.2020 of the leaned Additional District Judge-Paharpur, D.I.Khan, whereby his appeal against Judgment & Decree dated 21.09.2019 of learned Civil Judge-II D.I.Khan was dismissed, and thereby decree passed in favour of respondents No.1 was concurrently maintained.
2. Facts of the case in brief are that the respondent No.1 instituted a suit for cancellation of gift mutation No.1723 attested on 23.02.2000 in favour of the petitioner, on the ground that the same is based on fraud and is ineffective upon her rights. She further contended in the plaint that she neither appeared before the Revenue Officer nor recorded her statement and also not affixed her thumb impression to gift her property to petitioner. Petitioner denied the contents of plaint and claimed that the mutation in question was legally and validly entered and attested. After framing issues and recording evidence of parties, the learned trial Court (Civil Judge-II Paharpur, D.I.Khan) decreed the suit of respondent No.1 vide Judgment dated 21.09.2019. The appeal of petitioner thereagainst was dismissed vide Judgment/decree dated 26.08.2020 by the learned Additional District Judge Paharpur, D.I.Khan and the petitioner has filed the instant revision petition before this Court against concurrent findings of the facts recorded by the courts below.
3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
4. Record transpires that the respondent No.1 had challenged the authenticity of gift mutation No.1723 dated 23.02.2000 claiming the said mutation to be fake, forged and fraudulent one as she never gifted the same to petitioner and she, being a parda nasheen and aged lady, has been defrauded by the defendant No.1 (respondent No.2 herein), whereas, the petitioner claimed to have obtained a portion of suit property from the said defendant No.1 by way of a valid gift. Record further transpires that the petitioner was also a witness of impugned gift mutation and after attesting impugned mutation, the defendant No.1 transferred a portion of land to the petitioner; hence, petitioner claims protection under Section 41 of the Transfer of Property Act, and as such, rights of petitioner are subservient to the rights of respondent No.2 (then defendant No.1). Being beneficiary, a heavy burden was lying upon the defendants (now petitioner and respondent No.2) to prove the episode of alleged gift by giving details of offer and acceptance besides telling time, date, place and witnesses of such offer & acceptance. Mere entry and attestation of the gift mutation does not ipso-facto overcome the need of evidence for the proof of offer and acceptance; and witnesses of a gift mutation too cannot be assumed to be the witnesses of the episode of offer and acceptance, as they are only the witnesses of mutation. Moreover, respondent No.2 being donee and petitioner being attesting witness of mutation, were required to give details of time, date, place and witnesses of the purported offer and acceptance in their written statements but they omitted and even their evidence too is silent in this regard. While rendering this view, I am fortified by the dictum laid down by the worthy Apex Court in the cases titled "Mrs. Khalida Azhar Vs. Viqar Rustam Bakhshi and others" (2018 SCMR 30) and "Peer Baksh through LRs and others Vs. Mst. Khanzadi and others" (2016 SCMR 1417).
5. The gift mutation was attested on 23.02.2000, which was only a formality to document the gift, and gift should have been completed prior to entry and attestation of said mutation. In-fact 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 i.e. (1) declaration of gift, (2) acceptance of the gift, and (3) delivery of the possession of the subject of the gift. 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. As discussed above, first two ingredients of gift i.e. declaration of gift and acceptance of the gift could not have been established; nevertheless, if both these ingredients are kept aside, then the third ingredient i.e. "delivery of possession of the subject of gift" is also missing in the instant case and possession was not delivered at the time of making the alleged gift or at the time of attestation of gift mutation on 23.02.2000. Patwari Halqa in his statement, recorded on 18.07.2016 as PW-2, while making reference of the Khasra Girdawari, in unequivocal words deposed that the respondent No.2 as well as present petitioner were not having the possession of suit land till the year 2004.
Moreover, there is no entry pertaining to change of possession in favour of respondent No.2 and then the petitioner in the record of rights. It clearly indicates that the gift was not complete prior to impugned mutation, and therefore, without fulfilling the ingredients constituting a valid gift, the entry and attestation of impugned gift mutation was illegal and unlawful.
6. Moreover, the respondent No.1 was a parda nasheen lady with advance age. She was a married lady having four sons, who are now respondents No.1/1 to 1/4, but none from her relatives in prohibited degree was associated with the gift mutation to identify her; and both the witnesses of mutation who also identify her, are not the relatives of respondent No.1. Record is also silent about the fact that whether the respondent No.1, who as an illiterate and parda observing old lady, was having any independent advice from her nears & dears, or that, she was amply made acquainted with and explained that the document, on which she was going to impress her thumb, would permanently deprive her and her sons from the landed property and she would be no more owner.
The beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her. While rendering this view, I am fortified by the dictum laid down by the worthy Apex Court in the case titled "Ghulam Muhammad vs. Zohran Bibi and others" (2021 SCMR 19).
7. In this male dominated society where the female legal heirs are consistently deprived even of their `Sharai' shares in inheritance matters like sisters, the principle of caution in protecting the legitimate rights of the illiterate parda observing lady, must be applied vigorously and rigidly. In this context the worthy supreme Court, in the case of "Phul Peer Shah Vs. Hafeez Fatima" (2016 SCMR 1225) was pleased to hold: In a case of such transaction with old, illiterate/rustic village 'Pardo Nasheen' lady onus to prove the transaction being legitimate and free from all suspicions and doubts surrounding it, can only be dispelled if the lady divesting herself of a valuable property, the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree. Amongst this condition, the predominantly followed are as follows: a) That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences;
(b) that she was having independent advice from a reliable source/person of trust to fully understand the nature of the transaction;
(iii) that witnesses to the transaction are such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her;
(iv) that the sale consideration was duly paid and received by the lady in the same manner; and
(v) that the very nature of transaction is explained to her in the language she understands fully and she was apprized of the contents of the deed/receipt, as the case may be.
8. As far the contention of petitioner to allow him to produce additional evidence to record statement of Tehsildar who attested the impugned mutation, is concerned, the same cannot be entertained at this belated stage; and if he is allowed to record statement of Tehsildar, even then, in the absence of proof of a valid gift coupled with the fact that respondent No.1 being parda nasheen, illiterate and old lady was neither identified by any close blood relative nor she was having any independent advice, such statement of Tehsildar would not be sufficient to change the fate of case. As the purported gift by respondent No.I in favour of respondent No.2 has not been proved rather it is observed that impugned gift mutation No.1723 by itself was illegal and unlawful as the same was executed without fulfilling the ingredient of a valid gift, therefore, petitioner cannot seek cover of the provisions of Section 41 of Transfer of Property Act, 1882, particularly when he was also having hands in gloves with the respondent No.2 in executing the mutation No.1723. An illegal mutation cannot be perpetuated by saving subsequent transfers. Hence, doctrine of sinker is very much applicable to the present case and petitioner would have to sink and sail together with the respondent No.2.
9. While dealing with the office objection as to deposit of the court fee, record manifests that the value of suit was not determined and therefore, petitioner has affixed minimum court fee stamps worth Rs.500/- with the instant petition which is sufficient and office objection is therefore expunged.
10. Considering the above facts, circumstances and legal position, petitioner has failed to point out any illegality or infirmity committed by the learned Trial Court as well as learned Appellate Court while passing impugned judgments, which do not call for any interference by this Court.
Consequently, concurrent finding passed by both the Courts below are maintained and instant Civil Revision stand dismissed with no order as to cost.