77/2007 Civil Revision Farida Gul Agha & others (Appellant) V/S Saeeda Bano Ahmed & Ors (Appellant)
Sindh High Court
Bench: Hon'ble Mr. Justice Nazar Akbar
Order Date: 26-FEB-16
(a) Islamic law--- ----Gift---Revocation of---Death of donor and donee---Effect---Suit was filed for cancellation of gift deed after the death of donee/beneficiary---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Donor being mother of donee was related to the donee within the prohibited degree---Donor could not revoke the gift after the death of donee even through court---Appellate Court had failed to appreciate that first burden of proof was on the plaintiff and unless it was discharged by evidence consistent with the pleadings the defendant could not be required to prove anything from his pleadings---Evidence of the parties had not been discussed by the Appellate Court and suit had been decreed---Findings recorded by the Appellate Court were contrary to evidence---Donor had already transferred suit property by way of gift by handing over possession and original title document to the donee---Requirements of Islamic Law had been complied with in the present case---No further act/action was required on the part of donor and donee---Actual physical dispossession of the donor from the suit property was not required in the present case---Cause of action had died/buried with the death of donor as gift might be revoked by donor but not by his legal heirs after his/her death---Suit filed by the donor had abated by her death---Proceedings after the death of donee were coram non judice---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances. Mulla's Muhammadan Law para. 167 ref. (b) Islamic law--- ----Revocation of gift after death of donee---Scope---Donor could not revoke the gift after the death of donee even through court. (c) Civil Procedure Code (V of 1908)--- ----S. 96---Appellate Court---Duty of---Appellate court was not supposed to write a fresh judgment of its own without commenting and explaining the circumstances for forming an opinion contrary to the opinion/reasoning of the Trial Court---Appellate court unless found the judgment of Trial Court suffering from improper treatment of evidence such as wrongly placing the burden of proof on the parties in deciding the issues between them or finding it in conflict with some law on the subject could not reverse finding of Trial Court---Appellate court had to meet the reasoning of the Trial Court in the first instance and thereafter reappraise the evidence on record while reversing the findings of Trial Court. Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 rel. (d) Qanun-e-Shahadat (10 of 1984)--- ----Art. 117---Burden of proof---Whoever approaches the Court of law to give judgment as to his legal right or liability dependent on the existence of facts which he asserts in the plaint, must prove that those facts exist.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.