' By virtue of Mutation No,474 attested on 27-9-1972, Rab Nawaz became owner (in column of cultivation) of land represented by Field Survey Nos.419, 420, 421 and 422 to the extent of 256/324 share, equivalent to 12 Kanals and 16 Marlas, situated in Mauza D.I. Khan. About six years thereafter he died and the inheritance Mutation No,1381, dated 29-8-1978 was attested in favour of Mst.
Zainab widow, Falak Sher son and Mst. Mumtaz Bibi alias Mannu daughter of deceased Rab Nawaz.
Admittedly, Mst. Mumtaz Bibi got 75/324 share out of suit Khasra No, by inheritance. Falak Sher became owner of the share of his sister as result of gift Mutation No,4267, dated 7-1-1985 while by another Mutation No,5567, Falak Sher sold the land to Ghulam Hassan and Mushtaq sons of Makhna. Mst. Mumtaz Bibi took exception when she came to know about Mutations Nos.4267 and 5567. She filed a suit for declaration of her title and confirmation of possession over her share to the extent of 75/324, equivalent to 3 Kanals and 15 Marlas, by challenging the validity of Mutation Nos.4267 and 5567 against Falak Sher and two otheRs, In alternate she also prayed for a decree for possession of the suit land to the extent of her share.
2. Briefly, the case of the plaintiff is that she is a Purdahnasheen lady and defendant No,1 who is her brother, is greedy and dexterous person. After her marriage she started living with her husband in Village Musa Khar, Tehsil and District D.I. Khan. When she obtained Fard Jamabandi of the suit land on 15-4-1987, she came to know that she had been deprived by him (Falak Sher) by getting Mutation No,4367 attested in his favour indicating the transfer of land on her behalf by way of gift.
Thereafter, defendant No,1 sold the suit land to defendants Nos.2 and 3 through Mutation No,5567.
According to plaintiff, she neither gifted nor transferred her share to any one including defendant No,1 and Mutation No,4267 being illegal, pseudo, and offspring of fraud etc., is ineffective on her rights. Similarly, Mutation No,5567 further alienating her share is also ineffective on her rights and both the mutations are liable to cancellation. The suit was resisted by defendant No,1, who in his written statement, besides raising several preliminary objections, did not admit the allegations of the plaintiff and pleaded that the gift of the suit property in his favour was out of her free-will.
According to him, the Rukhsati of the plaintiff had not yet taken place, when her statement was recorded on mutation but her husband was fully aware of the same and whose consent was also obtained. Defendants Nos.2 and 3 also submitted joint written statement and in view of divergent pleadings of the parties, 8 issues were framed. On consideration of evidence led by the parties, the learned trial Judge passed decree in favour of the plaintiff against defendant, vide his judgment and decree, dated 26-9-1994. Defendants Nos.2 and 3 preferred appeal before the learned District Judge, D.I. Khan, who on the acceptance of the appeal, dismissed the suit of the plaintiff holding that the plaintiff gifted out the suit property and the Mutation No,4267 was rightly attested in favour of defendant No,
1. Feeling aggrieved, the plaintiff has come in revision.
3, The petitioner and respondent No,1 are closely related and latter stands in fiduciary relation to the former and, therefore, he has to exercise and establish good faith in dealing with her General rule is that good faith and absence of fraud, undue influence is to be presumed, However, there is an exception where fiduciary or quasi-fiduciary exists. This important exception is reflected in Article 127 of the Qanun-e-Shahadat, The burden of proof shifts to respondent No,1 to establish that the gift Mutation No,4267 was rightly attested. But the learned counsel for the respondent submitted that his client had led sufficient evidence in support of his assertion that the gift mutation was rightly attested. He heavily and proudly relied upon the statements of Allah Wasaya (D.W.2) and Khuda Bakhsh (D.W.3) in support of his assertion that being cousins of the plaintiff, they identified her before the Commissioner and she transferred the land by way of gift to her brother. It is on record, notably in the statement of the plaintiff, that at the time of death of her father she was minor and her mother was, and continues to be mentally deranged. She was not cross-examined on this point. The petitioner claims that she was married in 1984 and since then she is living away with her husband but the plea taken by respondent No,1 in the written statement is that her Rukhsati had not taken place when she made gift in his favour by making a statement before the Girdawar on the mutation. The crucial point is that whether at the time of making statement before the commission, she had independent advice or not. It is to be established by the respondent No,1 that independent advise was available to her. Respondent No,1 did not appear in the witness-box and learned counsel for the respondents has placed reliance on the statements of D.W.2 and D.W.3.
There is nothing on the record to suggest that she had any access to her husband. As regards her mother, suffice to say that she was mentally retarded and she as well as the plaintiff depended solely on respondent No,
1. Allah Wasaya, appearing as D.W.2, stated that the plaintiff before the Local Commissioner (Qanungo) deposed that she was alienating her whole ancestral property to her brother Falak Sher and then she thumb-marked the statement. Khuda Bakhsh (D.W.3) stated that the plaintiff gave statement to the Qanungo to the effect that "she will not be owner and will not claim regarding the inheritance of her father". In other words, she abandoned her rights. There is difference between the gift and abandoning the rights. Again all the property which she got from her father was the subject of gift. The two witnesses never stated that she declared her intention to gift the suit land or that respondent No,1 accepted the gift. The case of Inche Noriah Binte Muhammad Tahir v. Sahik Allie Bin Omar Bin Abdullah AIR 1929 PC 3, is very relevant to the facts of the present case, wherein it was held:-- "Held: that the relations between the donor and donee were sufficient to raise the presumption of the influence of the donee over the donor and to render it incumbent upon him to prove that the gift was spontaneous act of the donor acting under circumstances which enabled her to exercise an independent will, and which justified the Court in holding that the gift was the result of the free exercise of her will."
' It was further held:-- "Independent legal advice is not the only way in which the presumption of undue influence can be rebutted, nor does the fact that independent legal advice was given, rebut the presumption, unless it be shown that the advice was taken."
Gist of the above discussion is that respondent No,1 has totally failed to establish that the plaintiff being his sister, had gifted out her share in his favour of her free-will and the resultant mutation attested in his favour was correct and genuine. This being the position, the revision petition in hand merits acceptance.
' Accordingly, by accepting this revision petition, the judgment and decree of the appellate Court is vacated and that of the trial Court is restored. There is no order as to costs.