1. ' Nasim Ali and other respondents Nos. 1 to 5 in this petition, who are grandsons of Dadu Khan deceased and whose father Muhammad Riaz, real brother of Muhammad Shafi petitioner, has since died, filed a suit seeking declaration to the effect that they are heirs of Dadu Khan deceased, hence are entitled to inherit him and that mutation of gift No,659 in relation of land measuring 509 Kanals 12 Marlas situate in village Kanial, 'Tehsil Fateh Jang, District Attock owned by Dadu Khan deceased sanctioned on 20-4-1989 in favour of Muhammad Shafi petitioner is against facts, is illegal, is based upon fraud and is inoperative against their ownership rights. In the alternative grant of a decree for joint possession to the extent of land measuring 78 Kanals 4 Marlas out of land referred to above. This suit was contested by Muhammad Shafi petitioner, who is a defendant in the suit, on the grounds that the suit is not maintainable in its present form; that the plaintiffs have no cause of action who are estopped to file this suit due to their conduct; that he is in possession of the land as a co-sharer hence a declaratory suit is not maintainable and that the land in question has since been alienated in his favour through Mutation No,659 in question on the basis of an oral gift created in lieu of services rendered by him, therefore, the suit is liable to be dismissed. On the basis of the pleadings of the parties, learned trial Court settled the following issues:---
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiffs are estopped to file the present suit by their own words and conduct?
OPD
(3) Whether Dadu Khan deceased never gifted the suit property to the defendant No,1, and in fact the mutation in favour of defendant No,1 is based on collusion and fraud, misrepresentation and is thus ineffective on the rights of the plaintiffs? OPP
(4) Whether Dadu Khan deceased was mentally derailed, was old and sick and he never appeared during proceedings of mutatibn? OPP
(5) Relief ' In support of their respective contentions, the parties led evidence. Plaintiffs produced Waheed Ahmad, Registry Moharrir as P.W.1, who stated that he has been a Reader of Zaheer Ahmad, Naib- Tehsildar. Muhammad Gulzar P.W.2 stated that he has been a Chowkidar of the village and that Exh.P1 is the death entry of Dadu Khan. P.W.3 Sultan Khan stated that Dadu Khan was known to him.
2. He was sick and mentally imbalanced. He further stated that mutation of inheritance of Dadu Khan was not attested in his presence and further that mutation in question has been got sanctioned by the defendant in order to deprive the plaintiffs from inheritance of the deceased. In his cross- examination he has admitted that the land in question is in possession of defendant No,1 and further that he is not in a position to state as to whether Dadu Khan was in a proper mental condition when he created gift in favour of Muhammad Shafi defendant P.W.4 Mushtaq Ahmad, Revenue Moharrir, D.C. Office, did not make any material statement. P.W.5, Zaheer Ahmad proved that writing of Naib-Tehsildar Exh.P1/1. Nasir Ali one of plaintiffs appeared as P.W.6 and corroborated the plaintiffs version as alleged in the suit and stated that the mutation in question is a result of fraud and collusion and is intended to deprive the plaintiffs to inherit their grandfather. Besides oral evidence, plaintiffs produced copy of Mutation No,659 Exh.P1, copy of Jamabandi for the year 1984- 85 Exh.P2 copy of application Exh.P3 copy of judgment dated 4-12-1991 rendered by Special Judge Exh.P4, copy of judgment rendered by the High Court Exh.P5, copy of the inquiry report Exh.P6, copy of the death entry of Dadu Khan Exh.P7, copy of pedigree-table for the year 1979-80 Exh. P8, copy of Shajra Nasab for the year 1985-86 Exh.P9, copy of Mutation No,656 Exh. P10, copy of Mutation No,658 Exh. P11, copy of Mutation No,652 Exh. P12 and closed his evidence.
2. As against the above evidence, the defendants-petitioners produced Muhammad Fazil Patwari as D.W.1 who stated that mutation of oral gift No,659 was sanctioned in the name of Muhammad Shafi which was attested by Masood Nawaz Khan, Naih-Tehsildar and that in the Jamabandi for the year 1985-86, the entry of "{{URDU TEXT}}" is there. During cross-examination the witness has shown ignorance about the registration of criminal case against Muhammad Hussain Patwari, who had entered mutation in question and Masood Nawaz Khan, Naib-Tehsildar who had sanctioned it.
3. He had admitted that as per entries of the mutations, it is Muhammad Shafi himself, who got the mutation entered. He has further stated that Challan No,11 dated 4-5-1989 regarding payment of District court-fee was placed on record after the mutation had already been sanctioned.
4. Muhammad Ishaq P.W.2 had stated that mutation of gift in question was sanctioned in his presence and Dadu Khan deceased made a statement admitting the contents thereof as correct in his presence. He stated that mutation bears the thumb impressions of Dadu Khan deceased, Dar Khan, the other witness as well as his own signatures. According to the witness Dadu Khan deceased was in proper mental condition then the mutation in question was sanctioned and further that Mohammad Riaz father of the plaintiffs had died two years after the sanctioning of the mutation who had not filed any suit challenging the mutation of gift in question. In cross- examination the witness has admitted that the plaintiffs are sons and daughters of Muhammad Riaz who was in service in Wah Factory. During those days, the witness has further stated that the deceased was living with Muhammad Shafi. He has also shown ignorance with regard to the exact date and place of entering and date of sanctioning of the mutation in question. The witness has shown ignorance about the names of the parties to other 3/4 mutation which according to the witness had been sanctioned on that date, in his presence. According to him Malik Muhammad Sultan, Manzoor Shah were the witnesses of the mutation in question who did not however formally attest the mutation in question. Registration of a criminal case against the Patwari Maga and Naib- Tehsildar as a result of entry of mutation and factor of arrest of the Patwari is also admits by the witness. The witness has further stated that Dadu Khan had died after a period of 4 months after the mutation in question was sanctioned. Malik Muhammad Baqa D.W.3 has also made a similar statement as has been made by Muhammad Ishaq D.W.2, but in cross-examination the witness stated that on the date and time of sanctioning of the mutation in question no other mutation was sanctioned and further that he had gone to the spot just by chance. The witness has admitted that Dadu Khan had been sick for the last about three months and that after about 4 months from the date of sanctioning of the mutation, he had died. Registration of a criminal case against .Patwari and Naib-Tehsildar etc., in relation to the mutation in question has also been admitted. The witness has further stated that Manzoor Shah was not present on 20-4-1989 although according to the statement of Muhammad Ishaq D.W.2, Manzoor Shah was present on the date of attestation of mutation. Muhammad Shafi himself has appeared as D.W.4 and has supported his case. The witness has admitted that mutation in question was not got attested by Muhammad Amin and Malik Patti Daran and Lumbardar of the village who according to him were not on good terms with him. He has admitted that the plaintiffs are heirs of his father and that the criminal case in relation to the mutation in question was registered and he as well as the witness and Muhammad Hussain Patwari who had entered the mutation were arrested in the case. He has further stated that at the time of sanctioning of gift he was already in possession of the land in dispute. .
3. After scanning of the evidence produced by the parties, learned trial Court vide judgment and decree, dated 1-3-1993 decided issues No, 3 and 4 in the manner that Dadu Khan was held not proved to be insane or mentally derailed but mutation in question has been held to be based on collusion and having been sanctioned in absence of Dadu Khan deceased. Issues No, 1 and 2 were decided against the defendants and not pressed. Resultantly, on the basis of findings rendered on issues No, 3 and 4 the suit was decreed in favour of the respondents. Aggrieved of this judgment and decree, the petitioner filed regular first appeal which has been dismissed by the learned Additional District Judge, Attock vide judgment and decree, dated 11-5-1993, hence this civil revision has been filed by him against the judgments and decree.
4. Mr. Mtihammad Fayyaz Ahmad Khawaja, Advocate learned counsel for the petitioners has argund that the impugned judgments are illegad and are based upon misreading of evidence and therefore, the two Courts below have exercised their jurisdiction illegally and with a material irregularity while passing a decree in favour of the respondents. Elaborating his arguments, learned counsel has taken me through the evidence and has contended that there is absolutely no evidence produced by the plaintiffs on the basis whereof it could be said that the mutation of gift was not ot sanctioned by Dadu Khan deceased during his lifetime. It is contended that the mutation in question was neither challened by Dadu Khan during his lifetime nor by Muhammad Riaz predecessor in interest of the plaintiffs and therefore, the plaintiffs besides being estopped to file the suit are also not entitled to agitate the same. According to the learned counsel petitioner was arrested in a criminal case registered in relation to the mutation in question but was discharged along with his co-accused, therefore, it stands established that the mutation in question is gunuine. Learned counsel has pointed out the following portion of statement of Sultan.
5. Khan P.W.3, which according to him has been misread by the Courts below:--- {{URDU TEXT}} and hence has argued that the impugned judgments are liable to be set aside.
5. I have considered the arguments addressed by the learned counsel for the petitioner and has also gone through the record. The respondents are grandsons of Dadu Khan deceased.
6. Muhammad Riaz their father has since died. The defendant-petitioner is real son of Dadu Khan deceased. According to the witness produced by the petitioner himself particularly Malik Muhammad Baqa D.W.3, Dadu Khan deceased was sick for the last 3 months and had died about 4 months after attestation of the mutation in question. Muhammad Ishaq D.W.2 has also made a similar statement with regard to the period of death after attestation of the mutation saying that Dadu Khan died about 4 months after the attestation of the mutation in question. The mutation was got entered by Muhammad Shall himself. It has not been got attested before the Revenue Officer either by Lumbardar or by a Councillor of the village or any other Pattedar. In the written statement, case of the petitioner is that he is in possession of the land in question as co-sharer. No independent evidence about the transaction of gift in question has been led except the evidence in relation to the sanctioning of the mutation. There are serious discrepancies amongst the statements of the D.Ws with regard to the sanctioning of the mutation in question. According to Muhammad Ishaq D.W.2, 3/4 other mutations were also sanctioned at the date and time of attestation of the disputed mutation whereas according to Malik Muhammad Baqa D.W.3, who claims to be another witness of the mutation, no other mutation was sanctioned in his presence.
7. The Revenue Officer has not appeared as a witness to depose that he had sanctioned the mutation in question. The Patwari who has entered mutation also has not appeared as a witness.
8. There is evidence on record that a criminal case was registered against the petitioner, the witness of mutation in question, Muhammad Hussain Patwari and the Naib-Tehsildar, although they were discharged by the Police Authorities. Although the onus of the issues was on the plaintiffs yet it being negative, stands sufficiently discharged by the statement of P.Ws. Produced by the plaintiffs.
9. Positive had to be proved by the defendant-petitioner who was relying upon the transaction in question. The misreading, which has been pointed out by the learned counsel for the petitioner is not there and the two Courts below do not appear to have misread this portion of the evidence produced in the case. Except the alleged misreading as pointed out earlier, learned counsel for the petitioner has not been able to point out any other portion of evidence which according to him has either been misread or omitted from consideration. It is an established legal proposition of law that concurrent findings of fact rendered by the Courts below are not liable to be interfered with in exercise of the revisional jurisdiction of this Court merely on the ground that the evidence has not been properly appreciated. Present is a case where neither the evidence has been misread nor omitted from consideration nor is there any erroneous appreciation of evidence. Proving sanctioning of a mutation is, therefore, not a sufficient evidence of transaction of gift in question in support whereof no independent evidence has been produced. In case of Mst. Bibi Mukhtar v. Mst.
10. Amrezan and another PLD 1968 Pesh. 169, at page 171, it has been held as under:--- "It is indeed gravely disquieting to note large number of cases coming before the Courts in which mutations have been attested by the Revenue Officers on the strength of admission of the alienors when in fact the alienors had no knowledge of the transactions at all, or of cases where some other persons have personated the real alienors, or of cases where the vendors had agreed to sell a small area of land but as a result of collusion of the vendees with the Revenue Officers much larger area than the one agreed to be sold is entered and the Mutation Officers without disclosing the true facts have attested the mutations. I am aware of the presumption which is attached to the official acts under section 35 of the Evidence Act to the mutation proceedings, but would venture to say that the evidence of the Mutation Officers should be accepted with very great caution in view of large number of cases coming before the Courts in which the Revenue Officers have colluded with the parties and falsely come forward to depose about the transactions. This being the situation, the Courts must insist on some evidence other than the mutation proceedings in support of the sale and any person who relies solely on the mutation proceedings without ob aining anything in black and white evidencing the transaction would do so at his risk."
11. ' Consequently concurrent findings of fact rendered by the two Courts below on issues No,3 and 4 are unexceptionable and hence are upheld.
5. Transaction in dispute is even otherwise invalid in law. The plaintiffs-respondents are admittedly heirs of Dadu Khan deceased who is said to have gifted the whole land which was owned and possessed by him. He was suffering from ailment for the last about 3 months prior to the alleged date of attestation of the mutation and died about 4 months thereafter. It appears that the sole object of getting the mutation in question sanctioned was to deprive the lawful heirs of the deceased from inheriting him. There is no cavil with the proposition that a genuine and valid gift can be created as a result whereof the c lawful heirs may be deprived of inheritance yet a transaction of gift sole object whereof is the deprivation of the expected lawful heirs to the deceased to inherit him is not valid. This view is supported by the law declared in case of Sardar Ahmad Khan and others v. Mst. Zamroot Jan PLD 1950 Pesh. 45 at pages 49-51 of which report, it has been held as under:--- ' The gift deed, however, in any view, is bad on account of the fact that in executing it, Mian Muhammad wanted to disinherit Tila Muhammad rather than give away the property to his minor grandsons. It is also bad on account of the fact that it is not a completed gift. A reference has already been made to the contents of the Will, which Mian Muhammad made on the 12th of June, 1943, seventeen days after the execution of the gift deed in which he made it perfectly clear that he was extremely annoyed with Tila Muhammad and did not want him to inherit any of his property.
12. Muhammad Ayub, who had been working with Mian Muhammad and Faqir Muhammad, the sister's son of Mian Muhammad, the decree-holder's witnesses, have specifically stated on solemn affirmation that Mian Muhammad executed the gift deed in order to disinherit his son Tila Muhammad. There is no reason why should Faqir Muhammad favour Mst. Zamroot Jan more than his cousins, the two grandsons of Mian Muhammad. The statements of these witnesses are materially corroborated by what Mian Muhammad himself said about Tila Muhammad in the Will.
13. The evidence, produced by the judgment-debtors, also corroborates, though not directly, the statement of these witnesses. They produced Mst. Sifat Jan, Mirza Abdul Hakim, Gul Muhammad, a brother of Mian Muhammad and Mst. Amir Begum, the mother of the two minors, Mst. Sifat Jan stated that Mian Muhammad disinherited Tila Muhammad because the entire immovable property had been purchased with the earnings of Agha Muhammad, which obviously is incorrect because Mian Muhammad himself stated in the gift deed that the immovable property was not only acquired by him, but was also constructed by him at his own expense. Mirza Abdul Hakim, a deed- writer, stated that Mian Muhammad made the gift of his property, because he wanted to disinherit Tila Muhammad, Gul Muhammad, the brother of Mian Muhammad also said in his evidence that Mian Muhammad disinherited Tila Muhammad, because he had already given him enough. It is significant that none of these witnesses, nor Mst. Amir Begum alleged that Mian Muhammad gifted the property in favour of his grandsons as a token of his love and affection or for their maintenance and education. An intelligent study of the Muslim Law regarding the testamentary disposition possessed by a Muslim will show that it is the policy of the Muslim Jurists to prevent any interference with the course of devolution of property amongst the testators' heirs as laid down in the Holy Quran. The law would be the same if a certain transaction, though on the face of it, a gift, is in fact a device to deprive a lawful heir of his share in the property. No person can be permitted to defeat the object of Muslim Law by entering into such colourable transactions. It is an admitted principle of law that a gift intended to defeat or defraud the creditor is voidable. On the same principle a gift intended to disinherit an heir would be a sham transaction and, therefore, nugatory.
14. The gift in order to be effective should be a genuine transaction and not merely a plan to achieve some ulterior object. It is true that the necessary effect of almost all the gifts will be disinheritance of one or the other of the heirs of the donors, but then it should be the effect and not the real object of the gift. If the real object of the gift is disinheritance of an heir, it will be in my opinion, bad in law.
15. ' The view to some extent gets support from Chaudhri Mehdi Hassan and others v. Muhammad Hasan, decided by their Lordships of the Privy Council and reported in 28 All. (ILR) page 439. In this case a gift deed was held to be fictitious and Benami, and therefore, invalid and void. During the course of the judgment their Lordships observed as under:- "By the Muhammadan Law (by which the present case is governed) a holder of property may in his lifetime give away the whole or part of his property if he complies with certain forms; but it is incumbent upon those who seek to set up such a transaction to show very clearly that those forms have been complied with. It may be by 'deed of gift simply, or by, deed of gift coupled with consideration. If the former, unless accompanied by delivery of the thing given, so far as it is capable of delivery, it is invalid. If the latter (in which case delivery of possession is not necessary), actual payment of the consideration must be proved, and the bona fide intention of the donor to divest himself in presenting of the property, and to confer it upon the donee must also be proved."
16. ' The learned counsel for the appellants has cited 11 Moore's Indian Appeals page 517 (Nawab Umjad Ally Khan v. Mst. Mohumdee Begum and others). This case has absolutely no relevancy to the facts of the present case. It was a case where a father of the Shia sect had gifted Government Promissory Notes to his son. The gift was accompanied by delivery of possession and transfer into the son's name. Their Lordships held that the law of succession ab intestato applies only to the assets which constitute the succession.
17. ' 55 Bom. (ILR), page 238 has also been cited by the learned counsel for the petitioner. In this case also the intention of the donor was to disinherit one of his sons, but then the gift was completed by the delivery of possession to the donee and their Lordships held that the gift was perfectly a valid document. They did not get into the question whether if the intention of the donor was to disinherit a particular person, the gift would still be valid or void.
18. ' Apart from the fact that it is abundantly clear on the record that the real object of Mian Muhammad in executing this gift was to deprive Tila Muhammad of his legal share in his property after Mian Muhammad's death, there is overwhelming evidence to show that the gift was imperfect, and Mian Muhammad did not divest himself in presenting of his ownership in the subject-matter of the gift. In the gift-deed just at the end it is noted that the property was being gifted to the minors through one Muhammad Ayub. There is nothing on the record to show as to who this Muhammad Ayub is. No effort has been made to produce this person in the witness box to show that he took the possession of the property from Mian Muhammad on behalf of the minors after the execution of the gift deed. There is no other evidence produced to show that Mian Muhammad handed over the possession of the gifted property to anyone for the minors. Normally, Mian Muhammad being the grandfather was the natural guardian of his minor grandsons and it was not necessary for him to hand over the possession of the property to the minors, but then he himself chose to name a person, who was to do the needful in order to complete the gift. Under the circumstances it was necessary that he should have handed over the possession to that person.
19. The evidence that Mian Muhammad after the gift left the house and started living with his brother Gul Muhammad is to say the least absolutely unreliable. It has been stated by Gul Muhammad, the judgment-debtors' witness, and admitted by Mst. Amir Begum, their mother, in their respective statements that Tila Muhammad continued to live in one of the two gifted houses uptil his death. If the gift were a completed transaction. Tila Muhammad would have been the first person who would have been turned out of the house and not Mian Muhammad. Faqir Muhammad, the decree-holder's witness, has stated with regard to the other property that he used to realize its rent for Mian Muhammad, which shows that Mian Muhammad remained in possession of the entire property even after the gift. The judgment-debtors have made no effort to prove that they or anybody else on their behalf recovered the rent of the gifted property. Mst. Amir Begum in her statement said that Abdur Rehman, brother of Faqir Muhammad, used to collect rent for the minors. Abdur Rehman has not been put into the witness box. So the only evidence on the point is the statement of Faqir Muhammad P.W., which as has already been remarked. I have no reason to disbelieve."
20. ' Consequently, I hold that the mutation in question was got sanctioned with the sole object of depriving the respondents from inheriting Dadu Khan deceased and no genuine transaction of gift ever took place, hence the same is void and inoperative against the rights of the plaintiffs- respondents in whose favour a decree on the basis of inheritance as per Muslim Personal Law has been passed and hence substantial justice has been done, as such, I am not inclined to exercise my discretionary revisional jurisdiction in favour of the petitioner as per law declared in case of M/s. Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore (PLD 1954 Lahore 575). Hence this revision petition is dismissed in limine.