GUL ZARIN KIANI, J. - This petition under Article 199 of 1973- Constitution was against two orders passed in the lower Courts, by which an application to recast an issue and shift its onus of proof to donee-defendants was dismissed.
2. Relevant facts for decision of this petition in brief are:- Mil. Said Begum owned some land at Mahal Kharian. By a deed registered on 19.11.1986, she was alleged to have gifted it, in favour of Sikandar Khan and his brother Fazal Qadir. She died on 26.2.1989. Her son and two daughters brought a suit against the donees for annulment of the gift deed, on account of fraud, fabrication and misrepresentation etc. Alongwith the donees, other heirs of Mst. Said Begum were impleaded as defendants No.3 to 5 in the suit. Her son Muhammad Aslam was shown to be in collusion with the doness and it was stated that he was a privy to fraud committed in relation to the making of gift of the land in dispute by Mst. Said Begum. After receiving of written statements from the defendants in the suit, the trial Court settled appropriate issues on 24.6.1990, and fixed the suit for taking of evidence from the parties. Material issue in the suit touching the impugned gift was issue No.1. It read, "Whether the gift deed No.2319 dated 19.11.1986 in favour of defendants No.1 and 2 is based on fraud, undue influence, mis-representation and without consideration?OPP". Later, an application was submitted on behalf of the plaintiffs under Order XIV, rule 5 of Civil P.C. For recasting of issue No.1 and shifting its onus of proof to the other side. The application was resisted by the opposite side. On 1.6.1991, the application was dismissed by the trial Court. An application for revision of the order also failed on 12.4.1993. Thereupon, the present petition in constitutional jurisdiction was filed by the plaintiffs.
3. Execution of the gift deed was questioned by the heirs of the donor on grounds of fraud, fabrication, misrepresentation, undue influence and want of consideration. Plaint specifically averred that Mrt. Said Begum did not make a gift of her land in favour of the donees. It was also averred that she had not executed the questioned gift-deed. Her heirs, therefore, were not bound by it. The done sought to uphold the gift in their favour as a voluntary act of Mst. Said Begum. She is already dead and is unable to speak on the act attributed to her. In face of clear denial of execution of the gift-deed by her, it was for the donees to prove a valid gift of the land in their favour. They were required to prove affirmatively the gift in their favour. Onus of proof rested upon them. Therefore, instead of framing issue No.1 in its existing form, the trial Court ought to have framed issue No.1 as given below:- "Whether, Mrt. Said Begum made a valid gift of the land in dispute in favour of Sikandar Khan and Fazal Qadir by a deed registered on 19.11.1986. If so, its effect on the rights of the parties? OPD"
4. This view about the frame of issue and placement of one of proof regarding it found support from clear observations in the cases of Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Karachi 324, Muhammad Sher and 2 others v. Muhammad Azim and another PLD 1977 Lahore 729, Imam Ali Shah and others v. Ahmad Shah and others PLD 1977 Karachi, 688, Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC (AJ&K) 138, Noor Alam v. Mehdi and 2 others 1990 CLC 321, Said Jamal and others v. Ghulam Zohra and others 1992 CLC 1714.
5. For the aforesaid reasons, I would accept the petition; set aside the impugned orders of the lower Courts and recast issue No.1 in the manner indicated above by placing its onus of proof on the donee-defendants. There shall be no order as to costs in this petition-. It may be observed that there shall be no bar for the trial Court to raise other appropriate issues arising from the pleadings or to amend other existing issues for bringing them in the line with the pleadings of the parties.