' The petitioner filed a suit against the respondents, who are sons of her brother, alleging that she is the owner of suit land; that she has never gifted away the same to the respondents and that mutation No, 146 attested on 18-9-1973 purporting to evidence gift of the suit land by her in favour of the respondents is illegal. The respondents filed a written statement denying the allegations of the petitioner. Issues were framed by the learned trial Court. Evidence of the parties was recorded.
The suit was dismissed vide judgment and decree dated 26-2-1989. An appeal filed by the petitioner was heard by the learned District Judge, Khushab, who dismissed the same on 13-6-1989.
2. Learned counsel for the petitioner argues that the ingredients of a valid gift under the Muslim Law have not been proved in the present case and the learned Courts below acted with material irregularity in the exercise of their respective jurisdictions, while dismissing the suit and appeal of the petitioner. Learned counsel for the respondents, on the other hand, tries to support the impugned judgment and decree.
3. Records of the learned trial Court had been summoned. I have gone through the same with the assistance of the learned counsel for the parties. I find that the learned Courts below have misread the pleadings of the parties; they have failed to read the evidence on record and have not been able to comprehend the real controversy to be resolved. An examination of the plaint shows that the petitioner specifically mentioned that she is ' 'and there was no question of gifting away the land to the respondents. She of course, denied making any declaration and categorically stated that she never delivered possession of the land to the respondents under the gift. A perusal of the written statement reveals that the respondents in reply to said specific contention did not even allege as to why the petitioner made a gift of the suit land in their favour. There is no mention in the written statement at all that the gift was made for natural love and affection. There is no allegation in the written statement as to why the petitioner would have gifted away her property to the respondents in the presence of her own progeny. The petitioner entered the witness-box as P.W.3.
She stated on oath that she has three sons; that the respondents are the sons of her brother; that she did not make any gift of the land in favour of the respondents; that she did not deliver the possession to the respondents; and that she is in possession of the land, which is being cultivated by her sons. In cross-examination, it was not suggested to her that she had made the gift out of love and affection for the respondents; that she had made a declaration of the gift; that the gift was accepted by the respondents; and that the possession was delivered by the petitioner to the respondents. Of course, there is nothing in the cross-examination to show that the petitioner was confronted with Some extraordinary circumstances, which led her to give away her land to the respondents in presence of her three sons. According to the settled legal position, it will be deemed that her statement had been accepted as it is. Ahmad Khan one of the respondents entered the witness box as D.W.5. Even he did not state that the petitioner had so much love and affection for them that she preferred them to her own sons and made a gift of the land to them. He did state that the respondents used to serve her, but the said statement is of no help to the respondents, as it was not suggested to the petitioner while she was in the witness-box that the respondents had been serving her.
4. Under section 25 of the Contract Act 1872 all contracts without consideration are void. An exception has been made in favour of a gift made for natural love and affection between persons standing in near relation to each other. In the present case, said consideration has not even been alleged, what to speak of its proof. I may refer here to the case of Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCM R 818).
' Mr. Justice Saeeduzzaman Siddiqui (as his lordship then was) made the following observation at page 824 of the report "love and affection cannot be expressed by any attorney on behalf of the donor. The sentiments which were the consideration for gift must be established to have come from the donor. Gifts are voluntary and gratuitous transfer from the donor to the donee. The essentials of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee."
' Mr. Justice Muhammad Afzal Zullah (as his lordship then was) in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) made the following observation at page 22 of the report:- "Section 25 declares all those agreements void which are without consideration except for the exception created by the law itself. Amongst the exceptions it is provided that whenever the agreement is expressed in writing and is registered and is made on account of natural love and affection between the parties standing in a near relation to each other or whenever it is promised to compensate wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compelled to do, in such-like cases the agreement would be enforceable contract. Firstly, the contract which has been declared void under section 23 of the Contract Act cannot be revived and given life, merely because it suffered from another serious infirmity; and which other infirmity could be overcome by a resort to the aforementioned exceptions. Secondly, it might be very rare that a male co-heir would relinquish his right for a female heir. Experience shows that it has always been the reverse. The flow of love cannot be so unnatural. Therefore, the rules devised by the Privy Council for the Pardanasheen ladies as contracting parties and the one referred to above emanating from the public policy, would lead to another principle; that in cases like the present one there will be a presumption otherwise; namely, that it was not on account of natural love but on account of social constraints which would be presently referred to, that "relinquishment" has taken place. Similarly in the light of the entire discussion the second exception would also be not attracted as the presumption would be that such easy devices are always coined to justify relinquishment by females in favour of males."
5. In the above state of pleadings and evidence, there was no valid gift either under the principles of Mahomadan Law or within the meaning of section 25 of the Contract Act, 1872. The mere fact that the' learned Courts below were fully satisfied that the under Muslim Law or a gift contemplated by section 25 of the Contract Act 1872. The impugned judgments are, therefore, not only contrary to law, but are perverse. The C.R. Is allowed and both the judgments and decrees under revision are set aside. The result would be that the suit of the petitioner stands decreed with costs throughout.