2011 C L C 1734
[Quetta]
Before Ghulam Mustafa Mengal and Muhammad Noor Meskanzai, JJ
Malik GHULAM AKBAR KHAN through L.Rs. and others ----Appellants
Versus
Al-Haaj ABDUL RAZIQ KHAN and another ----Respondents
R.F.As. Nos.5 and 6 of 2001, decided on 1st July, 2011.
(a) Civil Procedure Code (V of 1908) ---
----O. VII, R.1 ---Plaint ---Non-mentioning of speci fic cause of action and relief claimed
in the plaint ---Such relief could not be granted.
(b) Civil Procedure Code (V of 1908) ---
----O. VI, R.1 ---Pleadings ---Evidence produced beyond pleadings was inadmissible.
(c) Islamic law ---
----Gift---Preferential gift ---Exclusion of other co -heirs ---Scope ---Claim of preferential
gift in exclusion of other co - heirs is something which should have been proved
by donees and not by other co -heirs ---Preferential gift, which culm inates in
deprivation of rights of other legal heirs, requires to be proved in stricto
sensu.
(d) Islamic law ---
----Gift---Proof ---Attorney, statement of ---Non-appearance of donees ---Defendants
claimed to be the owners in po ssession of suit property on the basis of gift executed in
their favour by their predecessor -in-interest ---Validity ---Statement of attorney of
defendants lacked fulfilment regarding prerequisites of gift, who himself was neither a
witness of gift i.e. verb al or written nor for that matter in his statement he stated that offer
by donor was made and the same was accepted by donees pursuant to which properties
were gifted nor possession was delivered ---Lack of such version in statement of attorney
enfeebled th e instance of donees who did not appear before Court to verify and confirm
their claim regarding gift ---High Court discarded and disbelieved the whole ocular
evidence produced by donees as they failed to prove execution of gift in their favour and
directed to distribute the properties among all heirs of deceased owner in accordance with
their Sharai shares.
Phaphan v. Muhammad Bakhsh 2005 SCMR 1278; Muhammad Faisal v. State
Life Insurance Corporation 2008 SCMR 456; Nusrat Zohra v. Azhra Bibi PLD 2006 S C
15; 2007 SCMR 635 and PLD 1990 SC 1 ref.
2010 SCMR 342 rel.
(e) West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 42 ---Gift---Revenue record ---Entries ---Proof of ownership ---Scope ---Revenue
entries effected as per S.42 of West Pakistan Land Revenue Act, 1967, are a report i.e.
factum of acquisition of any right in an estate to Patwari and is a mere ministerial act
which do not confer or extinguish any right in property ---No witness or respectable is
required either to accompany the person to report acquisition of such an interest to
Patwari nor presence of two witnesses are necessary while entering of a mutation
under section 42 of West Pakistan Land Revenue Act, 1967 ---Even if donor of gift
himself does not go to Patwari for su ch purpose, the same is of no consequence.
(f) West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 42(7) ---Attestation of mutation ---Procedure ---Presence of the person whose right
has been acquired and identification of such person by at le ast two persons i.e. Lumbardar
or Member of Union Council etc. is inevitable.
2005 SCMR 911 rel.
(g) Islamic law ---
----Gift---Proof ---Revenue record ---Scope ---Except exhibition of revenue record none of
the witnesses of alleged gift were produced by donees ---Validity ---To prove factum of
gift donees did not state as to the persons before whom attestation as contemplated by
S.42(7) of West Pakistan Land Revenue Act, 1967, had died or were not available ---Gift
was doubtful in circumstances.
2000 S CMR 346 rel.
(h) Islamic law ---
----Gift---Preferential gift ---Proof ---Plaintiffs were illiterate and Pardanashin ladies who
were co -sharer in gifted properties ---In the garb of revenue entries, unless defendants
proved that not only the entries in re venue record but ingredients of gift were satisfied by
procuring independent, confidence inspiring and cogent evidence, plaintiffs could not be
deprived of their ancestral rights in circumstances.
(i) West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 42 ---Revenue entries ---Determination of title ---Scope ---Revenue entries itself do
not confer any right or title to a person in whose favour the same have been rendered.
2004 SCMR 1502 rel.
(j) Specific Relief Act (I of 1877) ---
----S. 42 --- Declaration of title --- Limitation --- Co-sharers --- When plaintiffs and
defendants are co -owners in the legacy of their predecessor -in-interest, no limitation
would run in such cases.
Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 and Muhamma d Saddique v.
Raj Begum 2008 CLC 61 distinguished.
(k) Specific Relief Act (I of 1877) ---
----S. 42 ---Declaration of title ---Gift, non -assailing of ---Effect ---Plaintiffs sought
recovery of their legal shares from the properties left by their predecess or-in-interest ---
Defendants contended that suit properties were gifted in their favour and as the gifts were
not assailed therefore, plaintiffs did not have any cause of action ---Validity ---Plaintiffs
could not be non -suited merely because gifts had not be en challenged ---To ascertain the
plaint, not only form but frame and substance of the plaint was to be taken into
consideration and adhered to.
(l) Administration of justice ---
----Relief, moulding of ---Scope ---Court is competent to mould any relief if party is
found entitled in accordance with his/their rights.
2006 SCMR 688 rel.
Malik Azmatullah Khan Kasi for Appellants.
M. Aslam Chishti and Behlal Kasi for Respondents.
Date of hearing: 4th April, 2011.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. --- Through this common judgment we
intend to dispose of R.F.As. Nos.5 and 6 of 2001 as both the appeals are arising out of
same judgment dated 11.12.2000, passed by learned Senior Civil Judge -I, Quetta in Suit
No.199 of 1999 whereby the suit has been partly decreed in favour of plaintiffs.
2. Facts relevant for disposal of instant appeals are that the plaintiffs/appellants
instituted a suit for declaration, cancellation of mutations, partition, possession,
injunction, mesne profits and co nsequential relief against respondents in the Court of
learned District Judge, Quetta which was later on transferred to the file of learned Senior
Civil Judge -I, Quetta. It was averred in the plaint that appellants Nos.1 to 3 are son and
daughters of late Bibi Dilbara legal heir of late Haji Abdullah Jan, whereas the appellants
Nos.4 to 7 and respondents Nos.1 to 5 are sons and daughters of late Haji Abdullah Jan.
Respondents Nos.6 to 19 are grandsons and granddaughter of late Haji Abdullah Jan, who
died in the month of January, 1988 leaving behind following properties: ---
(i) Property situated in Mahal Sirki Khurd, Mauza Sirki Tappa Saddar Kasi, having
Mutation No.1352 measuring 12 rod and 35 poles, bearing Khasra No.461.
(ii) Property bearing Khasra Nos.18 80/482, 1882/482, Mutation No.505, situated in
Mahal Chak Sirki, Mouza Kasi, Tappa Saddar Kasi, measuring 7 rod and 25 poles.
(iii) Property bearing Khasra Nos.605/129, 606/129, 130/131/732, 707/132,
157/158, Mutation No.1333, measuring 92 rod an d 4 poles (7 kittas) situated
in Mahal Chashma Tirkha Mouza Tirkha, Kasi, Tappa Saddar Kasi, Tehsil and
District Quetta.
(iv) Property bearing Khasra Nos.1835/9.8.5, 1792/16, 2060, 1849/16, Mutation
No.1184, measuring 4 rod and 12 poles, situated i n Mahal Khushkaba Kasi,
Mouza Shaldara, Tappa Saddar, Tehsil and District, Quetta.
(v) Property bearing 26 kittas, having Khasra Nos.305/308/309/310/313, Mutation
No.203, measuring 20,434 square feet, situated in Mahal and Mauza Ward No.48,
Tappa Urban, Te hsil and District Quetta (Shops and stores).
(vi) Property bearing Khasra Nos. 258/259/270/314, Mutation No.205, situated in
Ward No.47, Tappa Urban, Tehsil and District Quetta, measuring 60,774 square
feet (5 kittas).
(vii) Property bearing Khasra Nos. 24 4/247/248/246/243/245 Mutation No.237,
situated in Mauza Ward No.15, Tappa Urban, Tehsil and District Quetta,
measuring 1283 square feet (6 kittas), having old Khasra No.1451 Ward No.1.
(viii) Property bearing Khasra Nos. 360/1, 360/2, 360/3, 360/4, 360/5, 360/6, 360/7,
360/8, 360/9, 360/10, 360/11, 360/12, 360/13, 360/14, 360/15, 360/16, 360/17,
360/18, 360/19, 360/20, 360/22, 893/361, 894/361, 895/361, 896/361, 897/361,
898/361, 900/361, 901/361, 902/361, 904/361, 905/361, Intiqal No.52, measuring
1, 05,5 69 square feet (shops and open plot) situated in Ward No.28, Tappa urban,
Tehsil and District Quetta (old Ward No.13).
(ix) Property bearing Khasra Nos. 814/88, 815/88, 818/88, 817/88, Mutation No.91,
measuring 38,716, situated in Mahal and Mauza Ward No.4 9, Tappa Urban, Tehsil
and District Quetta (Old Khasra No.6335, old Ward No.19).
(x) Property bearing Khasra No.20, Khawat No.239 Khatooni No.263, measuring 2
rod and 38 poles, situated in Mahal and Mauza Khushkaba Karezat, Tappa Kechi
Baig, Ward No.48, Te hsil and District Quetta. (Note: - This is Shamlat property).
(xi) Property bearing Khasra Nos.58/126/150, 156/ 158/ 540/165, 166/167,
172/190/209/200 /213/217/ 218/ 219/ 225/489/490/493/499/501/504/505/538/506,
537/506, 507/510, 511/3, 143, 145/149/151/695 /443, 191/699/544/191, 717/702,
545/191, 714/719/191, 745/192, 747/191, 751/191, 753/191, 764/191, 769/191,
770/191, 774/191, 779/191, 782/191, 786/191, 788/191 Mutation Nos.1145, 323,
328, 341, 327, 324, 338, 336, 366, 490, 510, 406, 502, 370, 371, 372, 3 68, 367,
373, 492, 493, 367, 376, 519, 504, 379, 498, 500, 503, 495, 524, 614, 494, 374,
375, 520, 378, 489, 499, 501, 377, 505, 584, measuring 96 rods and 36 poles (50
kittas), situated in Chasma Hudda, Mouza Hudda, Tappa Saddar Kasi, Tehsil and
District Quetta.
(xii) Property bearing Khasra Nos. 17/ 59/ 279/ 329/ 334/ 347/ 391/ 399/ 113/
150/ 158/ 160/ 178/ 235/ 236/ 239/ 264/266/ 455/11/ 26/312/ 520/16, 330/379/
387/392/ 393/395/ 111/121/ 139/60/ 359/535/ 378/396/ 98/
144/159/233/237/240/461/482/242/368/ 370/ 385/ 251/ 252/ 253/ 337/ 354/ 366/
390/ 151/ 228/ 245/ 247/ 249/ 255/ 258/ 257/ 347, Mutation No.163, measuring
844 rods and 32 poles (69 kittas), situated in Mohal Chashma Baleli, Mouza
Baleli, Tappa Baleli, Tehsil and District Quetta.
3. After the death of late Haji Abdullah Jan the respondents instead of partitioning
the legacy left by their predecessor amongst heirs, in accordance with injunction of Islam,
illegally and in a concealing manner transferred property mentioned at S.No.1 to 9 in
favour of Abdul Khaliq, Abdul Raziq, Malik Abdul Sadiq, Abdul Malik and Abdul
Ghafoor by means of Intiqal -e-Warasat Nos.1352, 505, 1333, 1184, 203 and 205 attested
on 7th July, 1994, 26th June, 1995 and 2nd July, 1997 respectively while property
mentioned at S.N o.10 is still subsisting in the name of late Haji Abdullah Jan and the
remaining properties have been transferred in favour of respondents or their predecessor
by way of gift etc. in a suspicious manner during the `Marazul Mot' ( ) of
predecessor -in-interest of parties. It was further averred in the plaint that despite hectic
efforts appellants failed to know that how properties mentioned at S.Nos.11 and 12 have
been transferred in favour of respondents or their predecessors. Despite above, the
respo ndents (sons of late Haji Abdullah Jan) also disposed of certain properties depriving
daughters of late Haji Abdullah Jan from their shares.
4. The suit was contested by respondents Nos.1 to 3, 6 to 10 and 13 to 19 by way of
filing joint written statement wherein besides raising certain legal objections regarding
suit being barred by time, not maintainable, non -joinder of necessary parties etc. the same
was contested on merits as well. It was averred in the written statement that properties at
S. Nos.1 to 6 and 10 were in the name of their predecessor -in-interest at the time of his
death, however properties mentioned at S.Nos.3, 7, 8, 9, 11 and 12 were either transferred
in their names in early 60s and 70s as 'Hiba' which was accepted by donees and
possessio n was also delivered to them or the same was purchased by Dr. Abdul Malik
(respondent No.2) or late Abdul Sadiq in the name of his father as "Benamidar' as such; it
could not be said that the above referred properties were legacy left by late Haji Abdullah
Jan nor anybody has right over the same. Property mentioned at S.No.10 is "Shamlat
land" and is in possession of Jattak Tribe. So far properties at S. Nos.1, 2 and 4 to 6 are
concerned, though the same were in the name of late Haji Abdullah Jan at the tim e of his
death but the father during his life -time gave all these properties to his sons by means of
family arrangement. The daughters were either, paid proportionate to the value of
properties then existed or in the shape of jewelleries. The said family s ettlement was not
only accepted by all the legal heirs including daughters but the same was also acted upon.
The daughters were also beneficiaries of family settlement. The properties were usurped
by different persons/tribe and the sons recovered possessio n of same after
litigation/negotiations and spending lot of time and money. After recovery of possession
the properties were improved by spending millions of rupees.
5. After filing written statement by respondents, appellants submitted replication to
the written statement wherein it was averred that no limitation run against co -sharers
(appellants) because appellants came to know about facts of distribution of properties
amongst respondents in the month of January, 1999. No family settlement has ever been
made. The property can easily be partitioned between the co -sharers. Respondents have
themselves admitted that property mentioned at S.Nos.1 to 6 and 10 in the plaint were in
the name of late Abdullah Jan. According to them property at S.Nos.7, 8, 9, 11 an d 12
was gifted to them by predecessor in his life time. Properties at S.Nos.11 and 12 have
fraudulently been transferred. This fact can be detected from signatures of late Haji
Abdullah Jan put upon different other documents and one available on transferr ed
document. The witness of said document namely Ch. Abdul Ghani was a close friend of
respondent No.2 and was a Revenue official. Possession was never passed on to any of
respondent pursuant to gift. According to appellants, had late Haji Abdullah Jan giv en
properties to his sons by way of family arrangement; he would have transferred the same
in their names. Payment of proportionate shares to the daughters in shape of cash amount
or jewellery and fact of family settlement were also denied. With regard to raising
construction over certain properties, it was submitted that on small portion of land
construction has been raised which too from the pocket of late Haji Abdullah Jan in his
life-time. In agreement (Khangi -Taqseem Nama) dated 8th April, 1989 no refe rence to
any previous settlement has been made which means that nothing was done before the
said agreement. As per replication, had there been any settlement in the year, 1971 with
consent of all the parties, there would have been no necessity to enter int o agreement
(Khangi -Taqseem Nama) dated 8th April, 1989 which too without referring to earlier
settlement. So far Intiqal -e-Warasat is concerned, the same was effected without
producing any `Sharia Fatwa' and disclosing name of other legal heirs. The Intiq al-e-
Warasat itself contravenes the stand of respondents because, had there been any
settlement between the heirs of late Haji Abdullah Jan the same would have been acted
upon.
6. The learned trial Court initially framed following issues for determination: ---
1. Whether suit is time barred and liable to be dismissed?
2. Whether suit is not maintainable in view of legal objections (B), (C) and ( E) of
W/S?
3. Whether properties at Serial Nos.1, 2, 4, 6 and 10 of plaint have been given
to defendants as result of family settlement in 1971?
4. Whether properties at S. Nos.1 to 6 are not partitioned?
5. Whether properties at S. Nos.3, 7, 8, 9, 11, 12 have been given to defendants in
Hiba by late Abdullah Jan in 60s and 70s?
6. Whether plaintiffs are ent itled for relief claimed?
7. Relief?
7. After framing of above issues on 17th April, 2000 appellants filed an application
under Order XIV Rule 5 read with section 151, C.P.C. for framing additional proposed
issues. The application was contested by responde nts, however the learned trial Court
vide order dated 15th May, 2000 allowed the application by framing following two
additional issues: ---
1. Whether the properties left by late Haji Abdullah Jan have fraudulently and
fictitiously being transferred in fav our of the defendants, if so, to what effect?
2. Whether the defendants Nos.13 to 19 are falling within the category of legal heirs
of late Haji Abdullah Jan, as their father died in the life time of their grandfather?
8. After framing additional issues, t he parties were directed to adduce evidence in
support of their respective claims. Appellants produced following P.Ws.
(i) P.W.1 deposed that the parties are known to him. They are brothers and sister and
successors -in-interest of Haji Abdullah Jan. Haji A bdullah Jan had properties at
Kasi Road, Sirki Road, Jan Muhammad Road, Baleli, Hudda and Sabzal Road.
After death of Abdullah Jan defendants distributed the properties amongst
themselves. Nothing was given to daughters of Haji Abdullah Jan.
ii. P.W.2 depo sed that the parties are known to him. They are sons and daughters of
Haji Abdullah Jan. Haji Abdullah Jan had properties at Kasi Road, Akhtar
Muhammad Road, Jan Muhammad Road, Baleli, Hudda and Killi Shabo. After 1 -
1/2 years of death of Abdullah Jan he ca me to know that the daughters of late Haji
Abdullah Jan have been deprived from the legacy by the sons of Haji Abdullah Jan
and distributed the properties amongst themselves. Nothing was given to daughters
of Haji Abdullah Jan.
iii. P.W.3 deposed that the parties are known to him. They are sons and daughters of
Haji Abdullah Jan. Haji Abdullah Jan had properties at Sirki Road, Jan
Muhammad Road, Baleli, Hudda and Killi Shabo. Haji Abdullah Jan was survived
by four sons and eight daughters. After death of Ab dullah Jan his sons distributed
the properties amongst them and deprived their sisters from their sharai right. He
came to know about this fact after 1 -1/2 years of death of late Haji Abdullah Jan.
iv. P.W.4 Revenue official produced revenue record as Exh. P/1 to Exh.P/46.
v. Malik Azmat Ullah Attorney for plaintiff deposed that he is son of plaintiff No.1
Malik Ghulam Akbar who is son of Bibi Dilbara. The latter was elder daughter of
late Haji Abdullah Jan. She died in the year 1997 whereas Haji Abdullah Ja n died
in the year 1988. Defendants Nos.1 to 3 are brothers of Bibi Dilbara whereas
defendant Nos.4 to 7 are her sisters. Defendants Nos.13 to 19 are grandsons of late
Haji Abdullah Jan and sons of Abdul Sadiq who died in the year 1972. Defendants
Nos.6 to 10 are sons and daughters of Abdul Khaliq Khan elder son of late Haji
Abdullah Jan. Defendants Nos.13 to 19 does not fall within the definition of legal
heirs of late Haji Abdullah Jan because their father died in the life times of late
Haji Abdullah Jan. Properties of Haji Abdullah Jan are situated at Jan Muhammad
Road, Kasi Road, Arbab Khudai Dad Khan Road, Malik Mano Jan Road Hudda,
Sirki Road, Sadiq Shaheed Park, Chashma Baleli, Chashma Tirkha, Chashma
Hudda, Killi Shabo, Sariab Road and at different o ther places. After death of late
Haji Abdullah Jan defendants Nos.1 to 3, 6 to 10 and 13 to 19 with connivance of
each other and on the basis of fake 'Fatwa' during the period commencing from
1994 to 1997 -98 transferred the properties of late Haji Abdullah Jan on their
names. Plaintiffs were not aware of this fact. In the year 1999 they came to know
about the secret distribution of property. After coming to know about the
distribution of properties, plaintiffs obtained Intiqals of property from Tehsil and
it came to their knowledge that the defendants have transferred the properties of
late Haji Abdullah Jan on their names on the basis of fake `Hiba' and forged
signatures.
Thereafter in rebuttal respondents examined following defence witnesses: ---
i. D.W.1 Haji Muhammad Akbar deposed that parties are known to him. Haji
Abdullah Jan was survived by five sons and nine daughters. Haji Abdullah Jan had
several properties. Haji Abdullah Jan had transferred some properties in his life
time on the names of his sons . Sons of Haji Abdullah Jan are managing the
properties which were not gifted. Fate of said properties had not been determined
by Haji Abdullah Jan. He has no knowledge about the decision of Haji Abdullah
Jan regarding his sons. In the year 1970 -71 Haji A bdullah Jan gifted some land for
house to Malik Usman.
In cross -examination he stated that he has no knowledge about the properties
gifted by Haji Abdullah Jan to his sons. He admitted that was not made in his
presence.
ii. D.W.2 Jan Muhammad deposed that the parties are known to him. Haji Abdullah
Jan owned properties at Kasi Road, Baleli, Tirkha, Sariab Road, Deba, Arbab
Khudai Dad Road, Sooraj Ganj Bazar and Jan Muhammad Road. Haji Abdullah
Jan, in his life time gifted his properties to his sons and the daughters were given
cash and jewelleries.
In cross -examination he stated that he does not know which property was gifted by
Haji Abdullah Jan to his sons. He is not aware whether the gift transaction was
verbal or written. He admitted that gift was not made in his presence.
iii. D.W.3 Faiz Muhammad representative Sadar Qanoongo produced revenue record
Exh.D/1 to Exh.D/6. In cross -examination he stated that the Exh.D/1 is neither
signed by donee nor donor.
iv. D.W.4 Muhammad Ashraf son of Muhammad Rafiq was tenant of shop rented out
to him. He has not uttered a single word regarding gift.
v. D.W.5 Abdul Ghaffar son of Muhammad Hussain is also a tenant of shop rented
out to him. He has not uttered a single word regarding gift.
vi. D.W.6 Abdul Zahir is a ` Bazgar' (tenant) in the Agricultural lands of Haji
Abdullah Jan. He deposed that prior to him, his father was Bazger in the lands of
Haji Abdullah Jan. For the last 25 years he is Bazger. Initially the lands were not
levelled which were levelled by Malik S adiq. He further deposed that two tube
wells were installed by Malik Sadiq and one by Dr. Malik on the land in dispute.
Dr. Nasir also constructed a market on the land. Land produce was/is being,
received by Malik Sadiq, Dr. Malik and Dr. Nasir. 25/30 - years ago Malik Sahib
brought Patwari on the lands. At that time distribution had taken place. Haji
Abdullah Jan was alive and he had brought Patwari.
In cross -examination he stated that Haji Abdullah Jan used to visit the lands.
vii. Dr. Abdul Nasir attorne y for defendants deposed that Haji Abdullah Jan had five
sons and nine daughters. To avoid any complication, in his life time Haji Abdullah
Jan made decision regarding his properties. During 1961 -1979 he gifted properties
mentioned at S.Nos.7, 8, 9, 11 and 12 to his sons. Daughters of late Haji Abdullah
Jan was paid their proportionate share in shape of cash and jewellary. Plaintiffs
had knowledge of all the facts.
In cross -examination he admitted that after death of Haji Abdullah Jan there are no
document s which could show that the properties have been distributed. He also
admitted that apart from the properties gifted by Haji Abdullah Jan all the
properties were in the name of Haji Abdullah Jan even after his death. He admitted
that after 1995 in all the Intiqals only defendants were shown as legal heirs of late
Haji Abdullah Jan and it was not disclosed that Haji Abdullah Jan was also
survived by daughters. He admitted that all the Intiqals carried out on the basis of
`Hiba' were not witnessed by anybody
9. After recording evidence pro and contra, appellants filed written arguments,
however the respondents orally argued the case. The learned trial Court after evaluating
the evidence, written arguments and hearing counsel for respondents vide judgment and
decree dated 11th February, 2000 partially decreed the suit by setting aside mutations of
inheritance and cancelling the mutation of gift (Exh.D/1), however the suit to the extent
of remaining claims was dismissed.
10. Feeling aggrieved from the judgment an d decree referred to hereinabove, appellant
preferred R.F.A. No.5 of 2001 to the extent of findings on Issues Nos.5, 6 and 7 and non -
disposing of additional issues whereas the respondents since were also aggrieved of the
judgment and decree also preferred R.F.A. No.6 of 2001. This Court after hearing the
arguments passed judgment on 31 -12-2001. The judgment passed by this Court was
assailed before the Hon'ble Supreme Court of Pakistan and the Hon'ble apex Court vide
order dated 5 -5-2010 remanded back the ca ses to this court with directions to decide the
same after hearing the parties.
11. Malik Azmat Ullah Kasi, attorney for appellants filed written arguments, whereas
respondent's were represented by Mr. Muhammad Aslam Chishti, Advocate.
12. Malik Azmat Ulla h Kasi attorney for appellants urged in written arguments that
counsel for respondents has candidly conceded that respondents failed to substantiate
their claim regarding properties which have been transferred through INTIQAL -E-
WARASAT except one purchased by appellant No.2. Burden to prove Issue No.5 was
upon respondents who in support of said issue produced D.W.1, D.W.2 and recorded
statement of their attorney but perusal of statements of these witnesses would show that
the same are silent that when and i n which circumstances 'Hiba' transactions were carried
out. The witnesses contradicted each other regarding exact date, place and time of the
declaration of gift. On the contrary the witnesses categorically admitted that the lady co -
sharers have right in t he legacy left by their father. Perusal of documentary evidence
contravenes the stand taken by respondents. According to respondents properties in
Mohal and Mouza Chashma Baleli, Tappa Baleli were transferred on 20th October, 1979
whereas the alleged donee signed the same on 16th September, 1979 which reveal that
before declaration of gift by the donor, same was accepted by the donee. Disparity of
signatures of donee is visible on gift mutation and other documents. There are glaring
contradictions in the st atement of attorney of respondents who during recording his
statement tried to blow hot and cold in one breath. An amazing stand has been taken by
respondents that family settlement was arrived in the year, 1971 between the parties and
the daughters were p aid cash and jewellery. The respondents failed to substantiate their
claim because, had any family settlement arrived in the year, 1971 there was no need for
the late father to gift the other properties in the year, 1979 and onward. On one hand the
respond ents claim to be owners of the properties on the basis of 'Hiba' and on the other
hand the same were transferred in their name by Haji Abdullah Jan by means of Iqrar -
Nama/Khangi -Taqseem dated 8th April, 1989. Respondents failed to prove the three basic
requirements of gift namely (1) declaration (2) acceptance (3) delivery of possession.
This Court on one hand has to interpret the Holy Quran " NO SOONER A MUSLIM
DIES HIS PROPERTIES DEVOLVES UPON HIS LEGAL HEIRS " and on the other
hand this Court has to give v erdict on the question whether respondents No.13 to 19 can
be termed as legal heirs of late Abdullah Jan as their father has died in the year, 1972.
According to respondents in the year, 1971 owing to family settlement the properties
were distributed and t hey became owners of the same. On the contrary during arguments
a plea was raised that as per section 4 of the Muslim Family Law Ordinance, 1961 the
said respondents are legal heirs. According to learned counsel section 4 of Muslim Family
Law Ordinance, 19 61 only applies where attestation of mutation of inheritance has been
carried out. Under Articles 72 and 78 of Qanun -e-Shahadat Order, 1984 respondents are
bound to prove that a valid transaction has been made in their favour. To prove the
factum of 'Hiba' no witness was produced by the respondents. So much so none of the
donee appeared in the witness -box to confirm the fact. So far limitation is concerned, it is
constant view of Hon'ble Supreme Court that no limitation runs against a co -sharer and
the Isla m recognize that the brothers cannot legally claim adverse possession against
sisters and much less ouster. Admittedly properties have been transferred after the death
of late Haji Abdullah Jan and the same were not in the knowledge of appellants so it can
be presumed that the suit is well within time. He lastly urged that while dealing the
question of inheritance with the household, pardanasheen and illiterate ladies the Court
has only to see that the question of purported inheritance has been by -passed by the
brothers just to oust the lady co -sharers from the legacy left by their predecessor -in-
interest.
Whereas on the other hand Mr. Muhammad Aslam Chishti, learned counsel for
respondents in R.F.A. No.5 of 2001, vehemently opposed the submissions so advan ced
and the written arguments filed by appellants' learned counsel. He submitted that the suit
is hopelessly barred by time qua gift property --- subject -matter of Issue No.5. The
properties were gifted in lifetime of deceased Haji Abdullah Jan during the period
commencing from 1960 up to 1979. The gifts were made absolutely in accordance with
principle of Islamic Law i.e. offer by the donor, acceptance by the donees followed by
possession which is continuous till today.
The learned counsel for respondents strenuously urged that the trial Court
committed material irregularity in disbelieving the factum of gift qua property at S.No.7
for the simple reason that the signatures of donee are not available on mutation. It may
not be irrelevant to mention here tha t during pendency of the appeal he through Civil
Miscellaneous application filed copy of "Parth -e-Sarkar" wherein the signatures of
Abdullah Jan are apparently available. This document was brought on record without
objection of learned counsel for appellan ts, subject to all just exception. He emphatically
argued that the plaint is absolutely silent regarding the gifted property nor for that matter
the gift has been challenged in stricto sensu. The allegation regarding the gift in the plaint
are of general n ature which of course do not cover the gifted property to the respondents
made in their favour right from 1960 up to 1979. The plaint does not find mention a
specific cause of action regarding the gifted property, therefore, a relief if not claimed by
a pa rty, cannot be granted by the Court. Similarly any evidence if produced by the
appellants qua the gifted property cannot be considered as the same is beyond the
pleadings. The learned counsel stressed that the law on the subject stand settled that the
evidence beyond the pleading is inadmissible. The learned counsel strenuously urged that
the appellants were well aware regarding the transaction of Hiba because they were
satisfied, therefore, did not object at the relevant time nor for that matter soon after the
death of their father they challenged the transaction of Hiba. Learned counsel went on to
say that even the present proceedings also do not call in question the validity, propriety
and legality of the gift. Learned counsel contended that the burden to prove the issues was
upon appellants which they badly failed to discharge. Under such circumstances the trial
Court rightly decided Issue No.5 in favour of respondents. The longstanding Revenue
entries coupled with possession of property are sufficient en ough to prove the factum of
gift in favour of respondents. To substantiate his view reliance was placed on the
following judgments:: ---
(i) 2007 SCMR 1446 (Atta Muhammad v. Maula Bakhsh).
(ii) 2005 SCMR 1278 (Phaphan v. Muhammad Bakhsh).
(iii) 2008 SCMR 45 6 (Muhammad Faisal v. State Life Insurance Corporation.
(iv) PLD 2006 SC 15 (Nusrat Zohra v. Azhra Bibi);
(v) 2008 CLC 61 (Muhammad Saddique v. Raj Begum).
12. We have considered the contentions advanced by the parties' learned counsel and
have gone throug h the record minutely. The learned trial Court has framed as many as 7
issues. While dealing with Issue No.1 the trial Court has observed that the suit is within
time. It is pertinent to mention here that the respondents did not file cross -objections in
R.F.A. No.5 of 2001. We have gone through the record and found that the trial Court after
proper appraisal of material available on record, in the light of law of limitation has
rightly concluded that the suit filed by appellants was within time. In so far, Issue No.2 is
concerned, the objection raised in the written statement did not find favour to the
respondents because the trial Court after proper appreciation of law on the subject and
keeping in view facts and circumstances of the case has rightly reject ed the legal
objections. As far Issues Nos.3 and 4 are concerned, since these issues were subject -
matter of R.F.A. No.6 of 2001 which has been withdrawn and the defence have conceded
to the suit that the properties at S. Nos.1 to 4 except 1 have been held to be the legacy of
late Haji Abdullah Jan, as such the findings so rendered are hereby maintained to the
extent of 1/4th of property subject -matter of Mutation No.2056 (Exh.P/39).
13. Reverting to the crucial Issue No.5 of course subject -matter of R.F.A. No.5 of
2001, though while framing this issue, the learned trial Court did not determine onus to be
discharged by which party, however the learned trial Court has wrongly shifted burden of
this issue upon appellants. As the matter pertains to the legacy o f late Haji Abdullah Jan
and the parties are descendents of latter and the claim of preferential gift in exclusion of
other co -heirs is something which should have been proved by respondents and not by the
appellants. Analyzing the case from this perspecti ve we may observe that the trial Court
while dilating upon the issue fell in error by holding that the burden to prove this issue
was upon the appellants. The wordings of the issue leave no room for doubt that the
burden of proof was admittedly upon respon dents because it does not appeal to reason nor
appears to be rational that the appellants who proved that the property has actually been
given to respondents by Haji Abdullah Jan as Hiba. In such view of the matter the
evidence produced by the respondents is absolutely insufficient to prove the factum of
gift. The evidence produced by respondents has been referred to in para No.8. The
respondents have produced five D.Ws., besides recording statement of their attorney.
D.W.1 in his statement though stated th at Abdullah Jan had gifted some property in the
name of his sons, however in cross -examination he stated that he does not know that
which of his property was gifted by late Haji Abdullah Jan. He also admitted that the gift
was not made in his presence. Mor eover, he has not stated that the appellants were ever
aware of any gift in favour of sons of Haji Abdullah Jan. D.W.1 stated that the gift was
made in his presence in favour of Malik Usman but admittedly no property has been
gifted to respondents in prese nce of D.W.1. Perusal of above statement makes it crystal
clear that if the statement of D.W.1 is considered to be true, three ingredients of Hiba do
not find mention, therefore, the statement of D.W.1 is of no avail. D.W.2 though stated
that Abdullah Jan had gifted certain properties to his sons but in reply to a question he
stated that he has no knowledge about the properties of Haji Abdullah Jan which was
gifted by him. He has no knowledge that the gift transaction was oral or written. He
admitted that t he Hiba was not made in his presence. D.W.3 Faiz Muhammad
representative Saddar Qanoongo deposed that Exh.D/1 -A to Exh.D/6 -A are correct
according to their record. In cross -examination he stated that in Exh.D/2 the acceptance
was made only by Dr. Abdul Mal ik on behalf of others. It is pertinent to mention that no
power of attorney executed in favour of Dr. Abdul Malik pertaining to that period has
been produced nor in the written statement it has been claimed that the gift was
accepted by Dr. A bdul Malik on behalf of rest of the donees. D.Ws.4 and 5 are tenants
of the shops. The statements of these witnesses are absolutely silent regarding the factum
of delivery of possession of disputed land to respondents as donees. So much so not a
single wor d regarding the gift of the property in -question by Haji Abdullah Jan in favour
of his son has been uttered by them. D.W.6 is Bazger who categorically stated that Haji
Sahib predecessor -in-interest of parties (Haji Abdullah Jan) used to visit the property in
question but Haji Abdullah Jan has never expressed before the said witness that he has
gifted the property in question. The visits paid by Haji Abdullah Jan of course can be
treated a visit as owner of the property. The respondents in the written statem ent have
claimed the property either to have been gifted to them or have been purchased by them
or partitioned through family settlement meaning thereby the plaintiffs are not entitled for
any share from the property of Abdullah Jan as according to respond ents no legacy has
been left but on the contrary Abdullah Jan has gifted properties mentioned at S.Nos.3, 7,
8, 9, 11 and 12 in his life time before the witnesses. So it can easily be derived that, had
Haji Abdullah Jan gifted the properties or settled the same among the male descendents,
naturally the transaction may have been witnessed by some independent person. It will
not be out of place to mention here that the defendants Nos.4 and 5 have not filed the suit
but they did not appear in witness box confi rming that the daughters were paid cash or
they were compensated through jewellery and did not support the written statement as a
witness.
The ocular evidence produced by the respondents is not confidence -inspiring nor
for that matter satisfy/fulfil the s tandard of proof as required under the Islamic Law qua
the gift. Moreover, the statement of the attorney for the appellants lacks the fulfilment
regarding prerequisites of gift. It will not be out of place to mention here that the attorney
himself was neit her a witness of gift i.e. verbal or written nor for that matter in his
statement he stated that the offer by the donor was made and the same was accepted by
the donee pursuant to which properties were gifted nor possession was delivered. Lack of
such vers ion in the statement further enfeebles instance of respondents. It will not be
irrelevant to point out that none of the donees appeared before the court to verify and
confirm their claim regarding the gift. Under such circumstances, we have left with no
option but to discard and disbelieve the whole ocular evidence produced by the
respondents regarding the factum of gift. By holding this view we are fortified by the
dictum laid down in the judgment reported in 2010 SCMR 342. Relevant observations are
reprod uced hereinbelow: ---
"In the instant case, the parties are brother and sisters inter se. Exh.P.1 (gift deed)
recites that the donor (father) made a gift of the property in question in favour of
respondent No.1 (one of his daughters). The onus to prove the gift deed Exh.P.1 in all its
three facets, namely the declaration of gift by the donor, acceptance of the gift by the
donee and delivery of possession of the corpus of gift lay on the plaintiff -respondent. An
appraisal of evidence adduced by her does not prove the fulfilment of the requirements
regarding acceptance of gift by the donee and delivery of possession to her. While
appearing as P.W.1, she did not state that she had accepted the gift or possession of the
property was given to her. On the other ha nd, she merely stated that the possession of the
property was with her. Similarly P.W.3 Muhammad Zaman and P.W.4 Muhammad
Nawaz stated that the possession of the property was with the plaintiff. The gift deed was
executed on 15 -2-2002This 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.