MAULVI ANWARUL HAG, J.-- On 16.12.1980 the petitioner filed a suit against the respondents.
According to the plaint the respondents are her brothers. The suit land was owned by the father of the parties, namely, Abdul Wahid on whose death it devolved upon his widow and the said children and mutation No. 52/121 was attested on 19.1.1956. The mother proceeded to gift her 1/8 share in favour of the petitioner vide mutation No. 222 attested on 29.3.1965; that the respondents without the knowledge of the petitioner got sanctioned mutation No. 172 on 19.2.1973 purporting to be of a gift of the suit land by the petitioner in favour of her brothers. According to the plaint the petitioner is a Parda Nashin and uneducated lady and she did not make any gift in favour of her brother and that she did not deliver possession under any gift; that she did not appear before any Revenue Officer in the matter of mutation; that earlier a suit was filed that was withdrawn to file a fresh suit.
The respondents put in a written statement asserting that the petitioner had made a valid gift in their favour- and delivered possession to them; they admitted the petitioner's plea that Yaqoob was her tenant but stated that Yaqoob had been told by the petitioner to attorn to. Them. Issues were framed. Evidence of the parties was recorded. The learned Trial Court decreed the suit vide judgment and decree dated" 20.3.1983. A first appeal filed by the respondents was however, allowed by a learned Additional District Judge, Faisalabad who dismissed the suit of the petitioner on 22.5.1984.
2. Learned counsel for the petitioner contends that the learned Additional District Judge has proceeded to misread the pleadings as well as the evidence on record while proceeding to set aside the judgment and decree passed by the learned Trial Court. According to the learned counsel the respondents had failed to prove a valid gift having been made in their favour. The learned counsel for the respondents, on the other hand, argues that the onus to prove the issues as they were, was on the petitioner and she had failed to discharge the burden and the learned Additional District Judge has correctly approached the matter and consequently, the impugned judgments and decrees should not be interfered with.
3. I have gone through the copies of the record appended with this Civil Revision. I have already referred to the respective pleadings of the parties above. A plan reading of the pleadings would show that it was the respondents who were claiming transfer of suit land by the petitioner in their favour by means of a gift. The burden thus lay heavy upon them to prove that a valid complete gift had been made in their favour by the petitioner and that the mutation had been validly attested.
The petitioner has appeared in the witness box as P.W. 5 He stated that she was married 27/28 years ago and thereafter she is residing with her in-laws in Chak No. 58/GB, Faisalabad; that sh.e has a son and a daughter; that she observes Parda; that she has never appeared before any officer for making gift and neither had she affixed her thumb impression on any document before any officer and that the respondents had been paying the share of produce to her. I find it rather strange that not a word was suggested to her in the cross-examination as to why in the presence of her own progeny and having been under no obligation to the respondents, living with her husband in her house with her children; she proceeded to make the gift of the land to the respondents. She, however, denied having appeared before the Tehsildar and to have made a gift to her brothers and to have delivered possession to them under the gift. Even if the onus of any issue was upon the petitioner, the same stood sufficiently discharged by the said statement made by her in the witness box. In order to support their version the respondents produced the record of the mutation. Manzoor Ahmed, Patwari, D.W. 2 stated that he entered the mutation and Zainab Bibi put her thumb impressions. Shehzaduz Zeman, Lumbardar and Abadan Jat Identified her. In his cross-examination he admits that he did not know Zainab Bibi personally arf4"is 19i aware that she was not a resident of his Chak. He also stated that the woman who appeared before him as Zinab Blbi was in a Abadan appeared as D.W. 3 ad stated that he was present when mutation No. 172 was attested and Zainab Bibi had affixed her thumb impressions and made a statement of gift before a Tehsildar. In his cross-examination he admits that Zainab Bibi resides in Chak No. 58/GB (witnesses from 65/GB). He states that he is not aware as to who brought Zainab Bibi. Then he states that many persons were present and was asked as to who is the Khewatdar, whereupon Hassan Muhammad respondent No. 2 asked him that he should put his thumb impressions for identification. He says that he is not aware as to who put thumb impressions apart from him on the mutation. Further admits that after putting his thumb impression he left and remaining thumb impressions were not put in his presence. Also admits that at the time of mutation the land was being cultivated by Hassan Muhammad. Shehzaduz Zaman has appeared as D.W.
4. Hesitates that he knows Zainab Bibi and that she had appeared before the Tehsildar and made a statement of gift; that he had signed that Zainab Bibi had put her thumb impressions and at that time Abadan D.W. 3 was also present. In his cross-examination he states that when all the thumb impression had been affixed he preceded to put his signatures. Now Abadan has to say otherwise and both the witnesses exclude each others presence at the time of mutation. D.W. 6 is Hassan Muhammad, respondent NO. 2. He has stated that the petitioner had proceeded to gist away the suit land to them; that Yaqub was the tenant who was informed by the petitioner to hand over possession to them and he delivered possession to them. In his cross- examination he proceeds to state I. That the petitioner herself got the mutation entered and she had ' informed him of the date when the mutation was to be sanctioned. His entire statement is silent as to why the petitioner proceeded to gift the land to the respondents. The evidence led by the respondents is discrepant. The learned Trial Court has very rightly read and apprised the evidence.
The learned Additional District Judge proceeded to fail to read the evidence in its proper perspective in the light of respective pleadings of the parties on the ground that onus of the issues was on the petitioner when it was the burden of the respondents to prove a valid gift in their favour.
As stated by me above the respondents have not come out with any reason in their pleadings or while questioning the petitioner in the witnesses box as to why the gift was made. Admittedly she had her own children. E he is under no obligation whatsoever to the respondents. She is living with her husband in her house. The respondents have not even alleged any service having been rendered by them to the petitioner. Neither has it come on record that the petitioner has so much love and affection for the respondents that she would gift away her land in the presence of her own children.
4. The present is one of those rare cases where a parent in the matter of disposal of her property has preferred the daughter to the son. It has been argued before me that the gifted property constitutes that portion of the land which had been gifted by the mother to the daughter. Even if it be so, the petitioner was under no legal or moral constraint to have transferred the land so gifted to her by mother to her brothers. To my mind the case is covered by the case of Ghulam A.I and 2 others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and in the absence of any reason forthcoming for the gift, the same even if it be assumed that it was validly made by the petitioner shall be deemed to be void, on the , principles laid down in the said judgment by the Supreme Court of Pakistan.
5. I am, therefore, of the opinion that the learned Addl. District Judge has acted with material irregularity in the exercise of his jurisdiction while proceeding to set aside the judgment and decree of the learned Trial Court in the face of the pleadings, evidence and the attending circumstances of the case. This Civil Revision is accordingly allowed. The judgment and decree dated 22.5.1984 of learned Additional District Judge, Faisalabad is set aside while mat passed by the learned Trial Court on 20.3.1983 decreeing the suit of the petitioner is restored with costs throughout.