Anwaar Hussain, J. This application, under Section 12(2) of the Code of Civil Procedure, 1908 ("CPC") is directed against the order dated 19.05.2014, passed in Civil Revision bearing No.1593 of 2005 filed by respondent No.5, namely, Zafar Iqbal ("respondent/petitioner"), whereby the said petition was allowed and the findings of the Courts below, impugned therein, were set aside, and it was declared that the deceased Muhammad Aameen (present respondent No.1) had transferred the suit property measuring 64 Kanal in favour of the respondent/petitioner, through the impugned gift mutation.
2. By way of factual background, it has been noted that the deceased Muhammad Aameen contracted two marriages. Through his marriage with Mst. Zulekhan, the respondent/petitioner was born whereas from his wedlock with respondent No.2, namely, Mst. Rani, the applicants, proforma respondent No.6 (daughters) and respondents No.3 and 4 (sons) were born. The respondent/petitioner sought declaration that 64-Kanal of property was given by his father/deceased Muhammad Aameen by way of gift, however, subsequently, the deceased Muhammad Aameen and respondents No.3 and 4 (step brothers of the respondent/petitioner), alongwith their mother--respondent No.2, got attested oral gift mutation No.937 dated 08.07.1996, on the basis of Rapt No.474 dated 02.07.1996 in respect of whole of his property in their favour. The suit was contested by respondents No.2 to 4 as also deceased Muhammad Aameen, who, initially denied the parentage of the respondent/petitioner and endorsed the factum of alienation of the entire property by way of oral gift in favour of respondents No.2 to 4. After recording of evidence, the Trial Court, through judgment and decree dated 26.04.2003, dismissed the suit of the respondent/petitioner, whereafter the appeal preferred by the respondent/petitioner was also dismissed, through judgment and decree dated 12.01.2005. Both the findings were challenged by the respondent/petitioner through C.R. No.1593 of 2005, which was accepted, vide impugned order dated 19.05.2014, whereby the judgments and decrees of both the Courts below were set aside, and the suit of the respondent/petitioner was decreed against which respondents No.2 to 4 filed Civil Petition for leave to appear before the Supreme Court of Pakistan that was dismissed as withdrawn.
3. In this factual backdrop, the application under Section 12(2), CPC has been filed on 11.01.2021 with the averments that the respondent/petitioner approached the Trial Court with a malafide intention to usurp the property belonging to the deceased Muhammad Aameen by giving a wrong pedigree table by not disclosing that the deceased Muhammad Aameen had daughters (the applicants and proforma respondent No.6) as well, born from the wedlock of former with respondents No.2, namely, Mst. Rani and on account of this fraud, has managed to deprive the applicants and proforma respondent No.6 from their lawful share in inheritance in the property belonging to the deceased Muhammad Aameen, who has sworn an affidavit dated 01.01.2021 in favour of the applicants that he intended to distribute his entire property to all of his legal heirs, including the applicants and proforma respondent No.6.
4. Learned counsel for the applicants submits that the applicants who are daughters of the deceased Muhammad Aameen (original owner of the property/donor) were deprived by the respondent/petitioner from their share in inheritance by practicing fraud. Conversely, learned counsel for respondents No.2 to 4 has submitted that the applicants are daughters of Mst.
Rani/respondent No. 2 [arrayed as respondent No. 1(vi) also] and real sisters of respondents 3 and 4 who are also arrayed as respondents No.1(vii) and 1(viii) as legal heirs of the deceased Muhammad Aameen, who died during pendency of the present proceedings, and the said respondents (respondents No.2 to 4) are willing to surrender the share in favour of the applicants and proforma respondent No.6, proportionally, as far as the same is in their ownership, possession and control of the said respondents.
5. Learned counsel for the respondent/petitioner avers that the impugned order by this Court was passed on 19.05.2014 whereas the application has been filed on 11.01.2021, beyond limitation, and it belies logic that the applicants were not aware about the litigation, which remained pending for a considerable period of time against the deceased Muhammad Aameen, who was predecessor of the applicants and the respondents, more so, when the proforma respondent No.6 instituted a separate suit for declaration against the respondent/petitioner and others, including the applicants, in which the applicants were personally served. Draws the attention of this Court to the documents appended with written reply, filed by respondent/petitioner, to present application under Section 12(2), CPC. Places reliance upon case reported as Mst. Rabia Gula and others v.
Muhammad Janan and others (2022 SCMR 1009) in support of his contentions.
6. Arguments heard. Record perused.
7. The crux of contentions of the applicants is that the respondent/petitioner who happens to be their stepbrother and the beneficiary of the gift of suit property from the deceased Muhammad Aameen failed to disclose their existence while seeking a declaration as the owner of the said property and such non-disclosure vitiates the sanctity of the judicial proceedings and constitutes fraud upon the Court. Therefore, the fundamental issue for consideration before this Court is to determine whether some of the legal heirs of a deceased donor are clothed with locus standi for filing of an application under Section 12(2), CPC against the judgment, determining the validity of gift, passed in a suit instituted by another legal heir--donee (respondent No.5) against the donor, during the lifetime (of the donor), on the ground that the applicants were deprived of inheritance by not being made party to the suit. Put otherwise, whether the matter is one of inheritance and the applicants were deprived from their lawful share in the suit property and the applicants have right to challenge the validity of the gift made by predecessor-in-interest of the parties in favour of the respondent/petitioner, when said predecessor himself contested the matter and conceded the claim of the respondent/petitioner.
8. Section 12(2), CPC provides a remedy against judgments obtained through fraud or misrepresentation. For an application under this provision to succeed, the aggrieved party has to establish that there was a deliberate suppression or concealment of material facts; and that such suppression directly led to an erroneous judgment, thereby prejudicing the applicant(s). In the present case, the donor--deceased Muhammad Aameen was a party to the litigation initiated by the respondent/petitioner that challenged the subsequent transfer in favour of respondents No.2 to 4, including 64 Kanal of the land, which was earlier given to him through a gift mutation. The deceased Muhammad Aameen had full opportunity to protect his interests and was competent to assert any claim of concealment. In fact, the deceased Muhammad Aameen initially denied not only the gift in favour of the respondent/petitioner but also his parentage, however, when the respondent/petitioner preferred the appeal against dismissal of his suit, the deceased Muhammad Aameen appeared on 12.01.2005, and acknowledged parentage of the respondent/petitioner as also the execution of the gift in the following terms: (Emphasis supplied)
Despite the statement of the deceased Muhammad Aameen in favour of the respondent/petitioner, the appeal was dismissed, merely on the ground that after giving away entire property to respondents No.2 to 4, the deceased Muhammad Aameen was no more owner of 64- Kanal of land earlier given to the respondent/petitioner, which error was rectified by this Court through impugned order dated 19.05.2014, which reads as under: "7. Paternity of petitioner was also disputed by respondent No.1 while appearing in the witness-box but in the application made under Section 151 of The Code of Civil Procedure, 1908, before the learned Additional District Judge, Depalpur, said respondent admitted that petitioner is his son. In his statement dated 28th of April, 2004, he also admitted his relationship with petitioner.
Though statement of respondent No.1 referred to was not acted upon in its totality by the learned appellate Court on the ground that said statement has been made when he is not owner of the property but his statement admitting his relationship with the petitioner cannot be ignored being "admission" on the part of respondent No.1 which was not objected to when his statement was recorded."
Moreover, the fact that deceased Muhammad Aameen, after recording the statement before the Appellate Court below, did not raise any objections regarding the applicants' rights, when C.R. No. 1593/2005 was decided in favour of the respondent/petitioner, during his lifetime is of paramount importance. Therefore, this Court is of the opinion that legal heirs of a litigant--deceased Muhammad Aameen, including the applicants, had no locus standi to challenge the judgment determining the validity of the gift made by their predecessor.
9. Matter can be examined from another angle so as to determine whether the applicants' claim pertains to the inheritance law. Right of inheritance arises only upon the death of an individual and relates to the property forming part of his estate at the time of demise. However, in the present case, the disputed property was gifted away by predecessor of the parties, during his lifetime, thereby ceasing to be part of his estate. This Court is of the opinion that a gift, once validly executed, precluded the donor--deceased Muhammad Aameen, from reclaiming ownership or modifying its legal consequences. Since the property in question had already vested in the respondent/petitioner through a legally recognized gift, neither respondents No.2 to 4 nor the applicants can lay any claim over it, under the subsequent gift mutation dated 08.07.1996 or the inheritance law, respectively.
10. However, the applicants maintain that had their relationship with the deceased Muhammad Aameen been disclosed, the outcome of the proceedings would have been materially different and this suppression of fact amounts to fraud. The argument is misconceived. To constitute fraud under Section 12(2), CPC, there must be an intentional act designed to deceive the Court. The applicants' primary contention rests on the alleged non-disclosure of their existence by way of submission of incorrect pedigree table of the donor--deceased Muhammad Aameen. Mere non- mentioning of certain family members (the applicants and proforma respondent No.6), does not amount to fraud unless it demonstrably alters the fundamental basis of a judicial decision, which is not the position in the present case inasmuch as the dispute was between the respondent/petitioner and respondents No.2 to 4, to whom the property was given away as gift although part thereof (64-Kanal) was earlier given to the respondent/petitioner and the deceased Muhammad Aameen--the donor, actively participated in the legal proceedings. Moreover, once the order dated 19.05.2014, in C.R. No.1593 of 2005 was passed in favour of the respondent/petitioner, the same was never challenged by him before the Supreme Court of Pakistan as admittedly, it was only respondents No. 2 to 4 who filed CPLA No. 1733-L of 2014.
Meaning thereby that predecessor of the applicants conceded to the impugned decree dated 19.05.2014 and the applicants can only step into his (their predecessor/donor) shoes. In short, the donor having actively participated in the prior legal proceedings and conceded the validity of the gift transaction, estops his legal heirs from raising belated claims under the pretext of fraud. In this manner, the applicants were not legal heirs for the purpose of gifted property, as it had already been transferred, in favour of the respondent/petitioner, before demise of the deceased Muhammad Aameen.
11. The applicants have laid significant emphasis on the affidavit purportedly sworn by the deceased Muhammed Aameen, asserting his intention to distribute his entire property equitably among all the legal heirs, including his daughters--the applicants and proforma respondent No.6.
However, the credibility and legal weight of this assertion are fundamentally undermined by the judicial proceedings wherein the deceased Muhammed Aameen personally appeared before the Appellate Court below and unequivocally recorded his statement in favor of the respondent/petitioner, namely Zafar Iqbal. It is a well-established principle of law that judicial proceedings are presumed to be conducted fairly, regularly, and with due process of law.
Therefore, mere allegation of fraud, collusion or undue influence, without cogent and unimpeachable evidence, cannot vitiate the solemnity of the Court proceedings. In the present case, the appearance of the deceased Muhammed Aameen before the Appellate Court below and his express confirmation of the paternity of the respondent/petitioner as also claim of the gift nullifies the applicants' contention that his subsequent affidavit should be given overriding consideration. The legal maxim "Allegans Contraria Non Est Audiendus" (one who contradicts his own statement is not to be heard) is fully applicable here, more so, when the deceased Muhammad Aameen remained alive for 7 years after passing of the impugned order dated 19.05.2014 before purportedly giving an affidavit dated 01.01.2021, to support claim of the applicants but did not himself challenge the impugned order dated 19.05.2014 before the Supreme Court or before this Court by filing an application under Section 12(2), CPC, and died during the pendency of the present application filed by the applicants. Therefore, the said affidavit is of no help to the applicants.
12. In view of above discussion, the applicants' claim that the proceedings culminating into passing of order and decree dated 19.05.2014 in favour of the respondent/petitioner were fraudulent is untenable. No deliberate deception can be inferred where a legally competent donor contested the making of gift and later on acquiesced to the validity of such transfer once the decision was made against him. On a comprehensive evaluation of the facts and applicable legal principles, this Court holds that the present application under Section 12(2), CPC is not maintainable, as the claim of fraud is not substantiated by cogent evidence; and the dispute does not pertain to inheritance but to a concluded gift transaction, executed during the donor's lifetime.
13. For what has been discussed above, the application in hand is dismissed.