1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the judgment dated 25-8-1985 of the Lahore High Court; whereby the appellant's Civil Revision was dismissed.
2. ' The facts and point noted for grant of leave to appeal are as under:- "The appellant was the owner of 164 kanals and 4 marlas of land in Mahal Nainwal Jagir of Tehsil Kasur. On 28-10-1966, a mutation of gift on his behalf was attested in favour of his 3 daughters and Fajroo, respondent. It may be mentioned that Fajroo was the son of his late wife's brother. Under the gift 5/6th share in the land was given to Fajroo while 1/6th share therein was given to his daughters On 24-7-1977, the appellant filed a suit for a declaration that he had not made any gift in favour of Fajroo and that the latter's name had been added in the mutation through fraud and misrepresentation. The suit was dismissed by the trial Court and the appellant's appeal before the District Judge and revision before the High Court failed."
3. ' It is contended that the High Court as well as the subordinate Courts failed to notice a material circumstance that there was no reason at all why the appellant should have made any gift in favour of Fajroo and that the area given to him should be 5 times more than that gifted to his own daughters. It is also contended that even if there was a gift, it remained inchoate on account of non-delivery of possession.
4. We have heard both the learned counsel at considerable length and have also gone through the record. It is unfortunate that some of the very important pieces of evidence having aibstantial effect one way or the other have not been 43 correctly read. The appellant in his statement had made two categorical statements. One, that the possession of the land in dispute notwithstanding the gift claimed by the respondent of 5/6th share in the property in dispute, was not with the donee. This was not a bare statement of possession. The appellant/donor had also asserted that he had installed a tubewell in the land. This part of the statement of the donor/appellant was not at all properly challenged in cross-examination. Any explanation worth the name neither in the evidence nor by the learned counsel for the respondent has been given as to why the appellant himself who remained alive challenged the claim of the respondent, should have deprived his own 3 daughters (with whom there is even no allegation that he had any estrangement) of 5/6th of his property and why he should have gifted such a valuable property to somewhat remote relation; namely, the son of the brother of his wife. The remote in the sense that he has his own daughters and also children from his own daughters. The only explanation that the donor had treated the respondent as his {{URDU TEXT}} runs counter to the principles of Islam on the question of adoption as well as counter to the principles regarding protection of the interest of female relations in Islam as elaborately dealt with in the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1).
5. One of the respondent's witnesses admitted that when he appeared the possession of the land alleged to have been gifted to the respondent was with the appellant. The explanation that he had turned the respondent out from the land as if forcibly does not at all fit in with the story relating to the gift. Learned counsel for the respondent repeatedly emphasized the point that there was no reason for the Revenue authorities to have entered a wrong mutation regarding gift and also having attested it. Although we are not concerned with how and why it has happened, the learned counsel failed to explain why the appellant could have made the gift by depriving his own 3 daughters. The mutations by the Revenue authorities unless they were also cheated by some contrivance need not be gone into any further. Another possible explanation that the appellant/donor might have fallen out with the daughters on account of the behaviour of his sons- in-law is also untenable. If it is so then the gift in the same mutation to daughters becomes unexplainable. The donor himself who is alive has disowned the gift. The delivery of possession to the respondent has not been established. The circumstances fairly strong, lead to the only reasonable and irresistible inference that the appellant had not made any gift to Fajroo.
6. 'It might be due to a frustration on account of any family estrangement between the two sides, may be of marriages, money or property, that a fake transaction was intended to be accomplished, but the appellant having discovered it within the period of limitation though late, duly challenged it.
7. ' In the light of the foregoing discussion we allow this appeal, set aside the impugned judgment and decree the suit of the appellant with no order as to costs.