Lahore 1159[ Multan Bench, ] Multan
Present: Ali Akbar Qureshi, J.
MUHAMMAD IMRAN and 4 others--Petitioners
MUHAMMAD AFZAL and 2 others--Respondents
C.R. No. 239-D of 2015, heard on 12.3.2015.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Muhammadan Law--Gift--Correction of mutation--Predecessor remained stuck to bed for about three years--Gift was product of fraud and misrepresentation to deprive from right of inheritance--Validity of gift was challenged by beneficiaries--Factum of gift--Ingredients of gift were missed--Signature of thumb impression--Validity--Petitioners who were one of legal heirs and also donees, had failed to prove fact through any reliable evidence, that gift was free from undue influence--Respondents had succeeded to prove through oral as well as documentary evidence, that predecessor of parties was patient of cancer and remained almost out of senses for about three years --Ocular as well as documentary, and finally reached to conclusion, that petitioners had miserably failed to prove ingredients of a valid gift as required by principle of Muhammadan Law. [P. 1162] A, B & C
2013 YLR 1856, ref.
Mr. Muhammad Ali Siddiqui, Advocate for Petitioners.
Nemo for Respondents.
Date of hearing: 12.3.2015
This Civil Revision calls in question the validity of the judgments and decree dated 19.02.2015 and 26.04.2011 passed by learned Courts below, whereby the suit for declaration filed by the respondents, was decreed.
2. The facts, as depicts from the record, are that the respondents/plaintiffs instituted a suit for declaration to challenge the correctness of Mutation No. 4431 dated 12.06.2001, entered into the revenue record on the basis of a gift allegedly made by the predecessor in interest of the parties to the suit, namely deceased Allah Bakhash, on the ground that from the first marriage of deceased Allah Bakhash, respondents, namely Muhammad Afzal and Muhammad Shaffi were born, whereas from the second marriage which was contracted with Mst. Kaneez Mai, Defendants No. 2 to 5 were born; that the petitioners with the connivance of the revenue staff, succeeded to enter the mutation on the basis of gift in the circumstances, when the predecessor of the parties, was seriously ill being patient of cancer; that the predecessor of the parties remained stuck to bed for about three years, and was not in a position even to walk, therefore, the mutation entered on the basis of the gift is product of fraud and misrepresentation with the intention to deprive the respondents/plaintiffs who are step brothers of the petitioners/ defendants, from their right of inheritance.
3. The suit was contested through written statement by the petitioners/defendants, wherein it was stated, that the mutation was entered strictly in accordance with law and with free consent of the predecessor of the parties.
4. Learned trial Court after framing necessary issues out of the divergent pleadings of the parties, recorded the evidence and finally decreed the suit, against which an appeal was filed by the petitioners, which too was dismissed and the decree passed by learned trial Court was maintained. Hence, this civil revision.
5. The record reveals, that parties to the suit are step brothers and sisters and legal heirs of deceased, namely, Allah Bakhash, who at the time of his death, left the suit property. It is not denied, that the predecessor of the parties remained seriously ill being patient of cancer for about three years and died on 20.11.2002, whereas the alleged gift was executed on 12.06.2001.
6. In this case, in fact it has been claimed by the petitioners, that a gift (Tamleek Nama) was executed by the predecessor of the petitioners, whereby he partitioned his property by way of gift among his children i.e. parties to the suit, but at the time of making the gift, the petitioner, namely Muhammad Imran was given 428-Shares, whereas the plaintiffs were given 10-Shares and other defendants were given 15-Shares out of the total legacy measuring 22-Kanals 18-Marlas, therefore, by this way, the petitioners are the major beneficiaries of the alleged gift and for this reason, defending the gift made by predecessor of the parties to the suit.
7. Another important aspect of the case which cannot be ignored, that the validity of the gift is being challenged by the beneficiaries who have been deprived from their due share, meaning thereby the factum of gift was not in their knowledge, therefore, it can safely be held, that two important ingredients of gift, i.e. offer and acceptance are missing in this case. Had the predecessor of the petitioners made the gift as alleged by the petitioners in favour of his would-be legal heirs, the signature/thumb impression could have been obtain from them in order to protect them from future litigation. The gift mutation Exh.P1 was perused with the assistance of learned counsel for the petitioners, which is silent about the signature or thumb impression of the other legal heirs. Further, one of beneficiaries, namely, Muhammad Afzal appeared in the witness box as PW-1, and stated, that the donor i.e. predecessor of the parties, namely, Allah Bakhash (deceased) was suffering from disease of cancer and was unable to walk before his death, whereas PW-2 stated, that the senses of deceased Allah Bakhash were not functioning properly for the last about three years before his death, and as evident from the record, this part of the examination-in-chief has not been cross-examined by the petitioners/defendants.
8. I am fortified by the esteemed judgments of the Hon’ble Supreme Court of Pakistan, in the case of “Muhammad Bashir v. Allah Ditta and others” (1194 SCMR 1870) and “Gull Sher and others v. Dost Muhammad and others” (2013 YLR 1856).
9. Even otherwise, it is very strange, that a father who is on death-bed being the patient of fatal disease i.e. cancer, can deprive his other sons and daughters by way of a gift.
10. Learned counsel for the petitioners submitted, that the petitioners have successfully proved the ingredients of gift by adducing the evidence and further submitted, that even otherwise, the gift is a registered document and cannot be questioned or set aside by the Courts below, relying on the evidence which is against the facts. Reliance is placed on “Muhammad Bashir v. Allah Ditta and others” (1194 SCMR 1870), “Aadut v. Noor Ahmad” (2012 MLD 802), “Gul Sher and others v. Dost Muhammad and others” (2013 YLR 1856) and “Muhammad Amin v. Mst. Shaista and 30 others” (2015 MLD 296).
11. The judgments referred by learned counsel for the petitioners do not support the cause of the petitioners. The first judgment cited by learned counsel for the petitioners i.e. “Muhammad Bashir v. Allah Ditta and others” (1194 SCMR 1870), wherein their lordships of the Hon’ble Supreme Court of Pakistan, have observed, that in the case of a gift made by the predecessor, the heir of the donor will have to prove, that the gift is not outcome of undue influence exercised by thedonee. The relevant Para is re-produced as under:--
“It is significant to mention that all the Courts below have unanimously held that the petitioner had failed to prove that the transaction of gift in respect of the suit land made by the donor was outcome of undue influence exercised by the respondent. This petition has no substance. It is accordingly dismissed and leave is refused.”
In this case, the petitioners who are one of the legal heirs and also the donees, have failed to prove the fact through any reliable evidence, that the gift in question is free from undue influence.
Another judgment which in fact supports the findings recorded by learned Courts below cited as “Gul Sher and others v. Dost Muhammad and others” (2013 YLR 1856), wherein it is observed, that in case, the gift has been made under“Marz-ul-Maut”, the nature of the disease will have to be proved. The relevant portion of the judgment is reproduced as under:--
“therefore by no stretch of imagination it can be said that the gift was under “Marz-ul-Maut” as the matter of gift is several months before his death, when nature of disease was also not proved. For proving a transaction during “Marz-ul-Maut” it is the basic fact which is required to be pleaded and proved that transferor was in fear of death and he transferred the property under the said fear. The disease was of such nature where fear of death was natural. No such facts have either been pleaded or proved.
10. In the light of what has been discussed above, the findings recorded by both the Courts below are in accordance with the law and facts on record, which need not be interfered with by this Court while exercising jurisdiction under Section 115 of the, C.P.C. Consequently, this civil revision having no force is dismissed with no order as to costs.”
The evidence and other record available on the file, particularly the death certificate of predecessor of the parties clearly proves, that the predecessor of the parties was patient of a fatal disease i.e. cancer. So by this way, it can safely be observed, that the respondents have succeeded to prove through oral as well as documentary evidence, that the predecessor of the parties was patient of cancer and remained almost out of senses for about three years, as stated by PW-2. The ratio of the judgments referred by learned counsel for the petitioners are against the petitioners.
12. Learned trial Court and especially learned appellate Court as evident from the findings, carefully examined the record, appreciated the evidence, ocular as well as documentary, and finally reached to the conclusion, that the petitioners have miserably failed to prove the ingredients of a valid gift as required by the principle of
Muhammadan Law, and the law declared by the Hon’ble Supreme Court of Pakistan, therefore, I see no reason to interfere with the well-worded and well-reasoned judgments of the learned Courts below.
13. Resultantly, this civil revision has no force, same is dismissed. No order as to costs.
(R.A.) Revision dismissed