SHAHID BILAL HASSAN J. Initially, a suit for declaration with consequential relief was instituted by the present petitioner alongwith her sisters namely Shamim Akhtar and Razia Bibi against their three brothers i.e. respondents No.1 to 3 challenging the vires and validity of disputed gift mutation No.1315 dated 31.10.2002 allegedly sanctioned in favour of respondents No.1 to 3. However, later on, Mst. Razia Bibi withdrew suit to her extent on 29.10.2011, who was transposed as defendant No.4 in the suit. Subsequently, Mst. Shamim Akhtar, after making her statement on oath in the Court and supporting stance of the present petitioner, also withdrew suit to her extent on 24.02.2014 but she was not transposed as defendant and continued as plaintiff. The respondents No.1 to 3 contested the suit by filing written statement, who controverted the averments of plaint and prayed for dismissal of the suit. The defendant No.4/respondent No.4 Mst. Razia Bibi filed separate written statement in support of version of the respondents No.1 to 3. The divergence in pleadings of the parties was summed up into nine issues including "Relief" on 25.11.2013. Both the parties adduced their oral as well as documentary evidence. The learned trial Court vide impugned judgment and decree dated 31.03.2014 dismissed the suit. The petitioner being aggrieved of the said judgment and decree preferred an appeal but the same was also dismissed vide impugned judgment and decree dated 20.04.2015 by the learned appellate Court; hence, the instant revision petition.
2. Heard.
3. Ingredients for a valid gift are: offer, acceptance and delivery of possession. When sanctity of a gift deed or mutation is challenged or called into question, the beneficiary has not only to prove the valid execution of gift deed or mutation but also the original proceedings of gift. 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, perusal of the plaint shows that the respondents have failed to plead the time, date, place and names of witnesses in whose presence their mother Mst.
Sardaran Bibi made offer of making gift in their favour, which was accepted by them, whereafter possession was delivered to them after execution of mutation in dispute (Ex.P1). Even the plaint does not disclose the names of witnesses in whose presence such transaction took place.
Moreover, the said pivotal document (Ex.P1) does not disclose as why the donor had excluded his other legal heirs i.e. the daughters and for what reason he had gifted out the disputed property to his sons i.e. respondents No.1 to 3. All this shows that the respondents No.1 to 3 have failed to discharge the heavy burden of proving the valid gift in their favour. 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 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 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 coming 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 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.'
4. In the present case, admittedly the donor namely Mst. Sardar Bibi was an old aged person i.e. 75/80 years of age and was living with the respondents No.1 to 3, so the execution of gift mutation under duress and fear as well as compulsion cannot be ruled out and it cannot be said to have been executed with free consent especially when before executing any such transaction in favour of the respondents No.1 to 3, her sons, she was not allowed to take her daughters in confidence or consult them. No evidence has been brought on record depicting that the alleged gift mutation was read over to Mst. Sardar Bibi, the donor and made her understand the consequences of the same, especially when she was living at the mercy of the respondents No.1 to 3. D.W.3 namely Sabir Hussain, Patwari Halqa, who entered the disputed mutation, during cross examination deposed that he did not know Mst. Sardaran Bibi personally and he did not enter her CNIC number in his register; that Mst. Sardaran Bibi was identified by five persons came with her.
None of the P.Ws. including P.W.7 Ghulam Sarwar, one of the plaintiffs/respondents deposed that why the disputed property was gifted to the respondents No.1 to 3 by Mst. Sardaran Bibi, whereas in plaint, the plaintiffs/respondents No.1 to 3 pleaded that the same was gifted in lieu of services and out of affection. 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.'
5. Nothing has been brought on record to show that at the time of alleged execution of gift mutation Ex.P1, some independent advice was available to the donor Mst. Sardaran Bibi, which was necessary keeping in view her old age, especially when through the said document the real daughters were going to be excluded to get their shares. 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 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.'
6. Pursuant to the above discussion it is observed that the learned Courts below have failed to adjudicate upon the matter in hand by appreciating law on the subject; thus, the Courts below have misread evidence of the parties and when the position is as such, this Court is vested with authority to undo the concurrent findings as has been held in Sultan Muhammad and another v.
Muhammad Qasim and others (2010 SCMR 1630) and Ghulam Muhammad and 3 others v.
Ghulam Ali (2004 SCMR 1001).
7. 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 Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179), the revision petition in hand is allowed, impugned judgments and decrees are set aside, consequent whereof the suit of the petitioner is decreed, gift mutation No.1315 dated 31.10.2002 is cancelled and the revenue officer(s) is directed to pass inheritance mutation in respect of disputed property in favour of legal heirs of Mst. Sardaran Bibi according to their shares. No order as to the costs.