' This civil revision calls in question two concurrent judgments and decrees of the Civil Judge and Additional District Judge, Samundri, passed on 8-12-1.996 and 21-10-1997 respectively, deciding lis against the petitioner.
2. Petitioner filed a suit for declaration challenging mutation of gift No.1274 dated 15-6-1994 made by her mother Mst. Aisha Bibi in favour of the respondent. Petitioner claimed in her plaint that she being an heir of late Mst. Aisha Bibi was entitled to inherit her to the extent of 1/3 share but the respondent has got a mutation of gift attested in his favour, which is result of impersonation, fraud and collusiveness with the Revenue field staff and thus being against law, facts, fictitious and fraudulent, is liable to be annulled. She further pleaded that Mst. Aisha Bibi at the time of sanctioning of mutation was of hundred years old and being infirm and ailing, was neither capacitated to judge her good or bad nor was in a position to give any statement before any Revenue Officer. Petitioner also claimed in the plaint that her mother was not happy with the respondent and thus there was no question of making gift in his favour to the exclusion of the petitioner. Petitioner also prayed for a decree for permanent injunction, restraining the respondent from claiming any title on the basis of mutation subject of suit and from alienating the property in question by any means whatsoever.
3. Respondent who is a real brother of the petitioner and son of the propositus Mst. Aisha Bibi, being a defendant in the suit, controverted the allegations in the plaint and pleaded that gift by his mother was a conscious act of the landlady, which cannot be challenged by the petitioner. He also raised certain preliminary objections like cause of action, estoppel and valuation of the suit for the purposes of court-fee and jurisdiction.
4. Learned trial Court framed as many as nine issues arising out of controversial pleadings of the parties and after recording evidence of the parties on 8-12-1996 dismissed the suit of the petitioner holding the gift in favour of the respondent to be lawful.
5. Petitioner agitated the matter before the Appellate Court by filing an appeal, which was also dismissed on 21-10-1997 by the learned Additional District Judge.
6. I have given my thoughtful mind to the respective contentions of the learned counsel for the parties and have also examined the record appended with this petition. Petitioner appeared as P.W.1 and denied gift by her mother P.W.2, Muhammad Ali and P.W.3, Muhammad Hanif supported her stand. She also produced many documents including copy of death certificate of Mst. Aisha Bibi (.Exh.P.4) and copy of Khasra Girdawari (Exh.P.2). Death certificate of Mst. Aisha Bibi clearly shows that she was ninety years old and in view of her such an advanced age and denial of gift by the petitioner while in the witness-box, onus of proving a lawful gift by the donor (Mst. Aisha Bibi) heavily shifted on the shoulders of the respondent to prove not only the mutation itself, but also the transaction of gift, which was by an illiterate, villager and old/ailing lady. The respondent also stood in active fiduciary relationship with the donor and thus from this angle as well he was required to produce foolproof evidence to prove the transaction of gift. Respondent in order to prove the case has produced two witnesses. D.W.1 is Bashir Ahmed, who is his attorney who supported the averments of the written statement filed by the respondent. He admitted that Mst. Aisha Bibi was 80/90 years old and claimed that she was all healthy and died only of fever. He further deposed that Mst. Aisha Bibi had two daughters and a son, the respondent and admitted in cross- examination that the other sister of the parties has died. D.W.2 is Abdul Hafeez, who claims to have signed the mutation subject of litigation. This witness deposed that Mst. Aisha Bibi was 70/80 years old and she transferred her land in favour of his son. In cross-examination, this witness stated that Mst. Aisha Bibi was 80/90 years old and the mutation in question was entered on the request of Mst. Aisha Bibi. He further goes on to depose that on the day when the mutation was entered, their signatures/thumb impressions were not obtained, which were subsequently obtained in presence of the officer attesting the mutation. This witness made a self contradictory statement regarding place of attestation of mutation as on the one place he says that mutation was attested at the Lorry Adda of Samundri, whereas on another place, he says that mutation was attested in the vicinity of Chak No.465 A while sitting in a plot. This evidence coupled with Exh.D.2 Jamabandi for the year 1991-92 and copy of mutation Exh.D.3, is the entire eviden produced by the respondent.
None of the D. Ws. Has deposed that Mst. Aisha Bibi ever offered to the respondent regarding her intention to make gift in his favour, which was accepted by him. As a matter of fact, the transaction of gift is not at all proved by the respondent. Copy of Khasra Girdawari produced by the petitioner as Exh.P.2 shows that the land in question is not in possession of the respondent, which clearly proves that Mst. Aisha did not deliver possession of the land to the respondent. Mutation No.1274 appears to have been witnessed by two persons. The other witness Nazir Ahmad Khan son of Khuda Bakhsh has not been produced and the obvious presumption is that had he come to the witness box, must have deposed against the respondent. Both the Courts below have returned findings that the petitioner could not prove ailing health of Mst. Aisha Bibi or'her incapacity to make the gift in question, but on the face of the record, I am of the view that both the Courts below have not properly comprehended the dispute and have given findings which are contrary to the record.
Exh.P.4 death certificate clearly shows that the donor was of 90 years old and she died just after 18 days of the making of the alleged gift, which on the face of it, shows the incapacity of the donor to make the gift in question. Though there is no evidence, worth the name, to show that Mst. Aisha Bibi ever gifted her land in favour of the respondent, yet if it be assumed for the sake of argument that the mutation in question was got attested by her, there is no evidence to show, as to whether vendor being an illiterate villager with ailing health and advanced age, was provided any independent advice, before parting with her immovable property. In absence of any proof of ingredients of valid gift by a Muslim, as enshrined by the Honourable Supreme Court of Pakistan in the case of Alif Khan v. Mst. Mumtaz Begum and another 1998 SCM R 2124, I am clear in my mind that it was a measure to exclude the petitioner from inheriting property of her D mother by her real brother. Such practice has already been disapproved by the Honourable Supreme Court in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.
7. The petitioner though was not needed to prove by negative evidence that gift through Mutation No.1274 was not made, yet she brought evidence on the file as discussed above, that the gift by Mst. Aisha Bibi was not made and thus judgments and decrees of the two Courts below being result of misreading and non-reading of the evidence on the file, are tainted with material irregularity, I accordingly set aside the same and grant the petitioner a decree as prayed for to the extent of her share in the estate of Mst. Aisha Bibi i.e. 1/3rd share. This petition accordingly succeeds, with costs throughout.