2018 C L C 1535
[Balochistan]
Before Muhammad Ejaz Swati, J
Mst. MAH KHATOON and 3 others ----Petitioners
Versus
FEROZ and another ----Respondents
Civil Revision No.293 of 2016, decided on 27th April, 2018. (a) Islamic law ---
----Inheritance---Gift (Hiba -bil-Iwaz) ---Disinheritance of legal heir due to disobedience ---Scope -
--Plaintiff was deprived of his legal share from the inheritance due to disobedience and gift
mutation was made in favour of defendants ---Suit filed by the plaintiff against the said mutation
of gift was decreed concurrently ---Validity ---Plaintiff was deprived from the inheritance of his
father due to disobedience and gift mutation was attested in favour of defendants ---Ground of
disobedience to hold the impugned gift as valid had no sanctity nor on this sole object lawful heirs could be deprived from inheritance ---Muslim owner could validly transfer his property only
through the mode recognized by Islam and not otherwise ---Muslim could gift away his property
to anyone but in case transfer was made with intent to deprive the heirs of their rights of
inheritance on the ground not recognized by law then same would be void--- Impugned gift was
made by the father in his life time in favour of defendants i.e. daughters to deprive the son from
inheritance on negative reason which was forbidden under the law ---Object of donor, in the
present case, was to deprive the plaintiff of his legal share in his property ---Findings recorded by
the Courts below with regard to plea of 'Aaq' (exclusion from inhertance) taken by the
defendants were based on proper declaration that impugned mutation was invalid on that ground---Impugned gift was Hibba -bil-Awez for an amount of Rs.2,00,000/ - and plaintiff would be
liable to return the said amount to the defendants ---No other illegality or irregularity had been
pointed out in the impugned judgments and decrees passed by the Court below ---Revision was
dismissed in circumstances.
1994 MLD 283; 2011 CLC 275; 2002 YLR 1320; 2011 YLR 697 and PL D 2013 Lah.
264 ref.
Mst. Kulsoom Bibi and others v. Muhammad Arif and others, 2005 SCMR 135; Mst.
Nusrat Zohra v. Mst Azhra Bibi PLD 2006 SC 15; Muhammad Ismail through Legal Heirs and
others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Muhammad Yaqoob v. Feroze Khan and others 2003 SCMR 41 and Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 rel.
(b) Islamic law ---
---Gift ---Ingredients ---Gift was transfer of property or right by one person to another ---Essentials
of gi ft were declaration by the donor, acceptance of gift by the donee and delivery of possession
of subject matter of gift to donee.
Bahlol Kasi for Petitioner.
Ms. Syeda Tehmina Samad for Respondent No.1.
Date of hearing: 30th March, 2018.
JUDGMENT
MUHAM MAD EJAZ SWATI, J. ---Late Muhammad Ameen son of Gahor Khan was
owner of property bearing Khasra Nos. 987 and 988, Measuring 11, 7/16 poles situated in Mohal
Karez Sanyar Mouza Ahmed Khanzai, Tappa Kechi Baig Tehsil City, Quetta (property in dispute). He ha d one son namely Feroz i.e. respondent No.1 (plaintiff), five daughters i.e.
petitioners Nos.1 to 3 (defendants Nos.1 to 3) (unmarried) and Bibi Farida and Bibi Naik (married) (not parties). Late Muhammad Ameen in his lifetime vide deed dated 14th May 2009, disinherited his son Feroz i.e. respondents No.1 (plaintiff) and publications thereof were made in daily newspaper "Jang", Quetta dated 13th June 2009, which reads as under:
2. After the above publication, late Muhammad Ameen in his lifetime gifted his above
property in dispute to his unmarried three daughters i.e. petitioners Nos.1 to 3 vide Mutation No.1554 dated 24th July 2009 (impugned mutation) and now 13 small shops are constructed over the same, which had been rented out to various tenants by the petitioner No.4 (defendant
No.4), who is brother -in-law of the plaintiff. After the death of the predecessor in interest of the
parties in the year 2012, the respondent No.1 (son)/plaintiff brought a suit for Declaration, Possession, Partition and Cancell ation of Mutation entries and contended that after the death of
his father when he obtained revenue documents, he came to know about the impugned mutation. The validity of the impugned mutation of gift was challenged in the suit.
3. The petitioners (defendants) contested the suit by way of filing written statement. At
paragraph No.6 of the written statement filed by the petitioners (defendants Nos.1 to 4), it was replied as under:
"That contents of para No.6 are incorrect because the plaintiff has no legal authority to ask the defendant regarding the payment of rent because plaintiff was disobedient son of Muhammad Ameen thereafter is not entitled for any kind of benefit pertaining to the property which has been gifted to defendants Nos.1 to 3 by means of Intiqal No.2963."
4. Out of pleadings of the parties, following issues were framed:
1. Whether the property in question was validly transferred on the names of
defendants Nos.1 to 3?
2. Whether there remains any right of plaintiff in the disputed property after its transfer through Hibbah to the defendants Nos.1 to 3 by their father?
3. Whether the plaintiff is entitled the relief claimed for?
4. The relief?
5. The respondent No.1 (plaintiff) produced three witnesses, while the petitioners
(defendants Nos.1 to 3) also produced three witnesses and got recorded their statements through attorney.
6. The learned Senior Civil Judge -II Quetta (hereinafter the "trial Court") vide
judgment/decree dated 16th March 2016 (hereinafter the "impugned judgment/dec ree") decreed
the suit in favour of the plaintiffs and declared the impugned mutation contrary to law and held that all the legal heirs of late Muhammad Ameen are entitled to have their respective shares. On appeal filed by the petitioners, the learned Additional District Judge -III, Quetta (hereinafter the
"appellate Court") vide judgment/decree dated 18th June 2016 (hereinafter the "impugned judgment/decree") dismissed the appeal.
7. Learned counsel for the petitioners contended that the impugned mutation of gift was
made by the donor in the year 2009 in favour of the petitioners Nos.1 to 3, as they were
unmarried and having no source of income; that the impugned mutation of gift was valid and in accordance with law; that two married sisters had not challen ged the gift; that the impugned
mutation of gift was carried out in the year 2009 and late Muhammad Ameen died in the year 2012, but the plaintiff never challenged the same in the lifetime of his father, therefore, he had no locus standi to challenge the s ame in the instant suit; that fact of disinheritance ( ) of the
respondent No.1, was neither taken in the written statement nor any issue was framed in this respect, therefore, the findings of the trial Court and the appellate Court are departure from the pleadings of the parties; that no evidence was produced by the plaintiff to prove that the impugned mutation of gift was not sanctioned by late Muhammad Ameen in his lifetime.
The learned counsel for the respondent No.1 contended that the petitioners (defe ndants) at
paragraph No.6 of the written statement specifically taken the plea of disinheritance of the respondent No.1 (plaintiff) that he was disobedient son of late Muhammad Ameen, therefore, was not entitled for any benefit pertaining to impugned gift and in respect of validity of gift issue No.1 was framed; that the impugned gift was to deprive the lawful heirs from inheritance, therefore, was not valid; that the concept of disinheritance is neither recognized in Islam nor any law validates such gift; that besides pleading, the evidence produced by the petitioners (defendants) including 'Aaq nama' Ex -D/1 clearly demonstrates that the impugned mutation of
gift was result of disinheritance , which has rightly been determined by the trial Court and the appellate Court as contrary to law and invalid. Learned counsel for the respondent No.1 placed
reliance on the judgments reported in (1994 MLD 283), (2011 CLC 275), (2002 YLR 1320),
(2011 YLR 697) and (PLD 2013 Lahore 264).
8. Having heard the learned counsel for the parties and perused the record. The validity of
the mutation of Ex -P/1 had been challenged by the plaintiff that he had been deprived from the
inheritance. On the other hand, the petitioners (defendants) pleaded that since the respondent
No.1 was disobedient, therefore, he was not entitled to have his share. The plaintiff (respondent No.1) produced three witnesses, who stated that the plaintiff being legal heir of late Muhammad Ameen was entitled to have his share. The petitioners' witness i.e. DW -2 Hashmatullah
Qambrani produced Aaq- Nama Ex -D/1. The attorney for the petitioners Sanaullah in his
statement contended that late Muhammad Ameen in his lifetime disinherited the respondent No.1, as he was indulged in intoxication and was disobedient, and his father due to said reason validly gifted the property in dispute to the petitioners Nos.1 to 3.
9. A gift is transfer of property or right by one person to another. According to section 149
of the principle of Muhammadan Law by D.F Mulla, there are thre e essentials of valid gift.
Firstly declaration of gift by donor, secondly acceptance of gift by donee and thirdly delivery of possession of subject matter of gift to donee. The perusal of evidence available on record shows that there is no cloud between t he parties in respect of impugned mutation of gift. The
respondent No.1 had challenged the validity of impugned gift on the ground that the object of impugned gift was to deprive the respondent No.1, therefore, was not valid. In the case titled Mst. Kulsoom Bibi and others v. Muhammad Arif and others, (2005 SCMR 135), the Hon'ble Supreme Court of Pakistan observed as under:
"In the instant case it is a gift which tantamounts to disinheriting the closest of the legal heirs or, even if genuine, it otherwise practically disinherits the legal heirs. In such given
circumstances, when, through a gift, deprivation of legal heirs is involved, either intended or unintended, the burden to prove original transaction of gift with all its ingredients strongly rests, upon the beneficiaries of such gift. This Court, in similar circumstances,
had nullified a transaction of gift in case of Muhammad Ashraf (1989 SCMR 1390), where the question arose as to why in the presence of legal heirs, particularly the children, the donor would have gifted out the entire land to a nephew. Quite recently in case of Barkat Ali (2002 SCMR 1938), this Court once again reiterated such principle holding that in cases of gifts, resulting into disinheriting of the legal heirs, the burden to prove original transaction of gift squarely rests upon the donees. Such burden has not been touched at all, much less proved."
In the case titled Mst. Nusrat Zohra v. Mst. Azhra Bibi (PLD 2006 SC 15), the Hon'ble
Supreme Court observed as under:
"It is well- settled by now that" the powers of a Muslim to dispose of the property by way
of gift are unfettered. A gift cannot be invalidated only because the heirs are deprived of their shares. But where the material facts are concealed by the donee, such a gift can be declared invalid on such account."
10. In the instant case, to prove the validity of the impugned gift, the petitioners had firstly
raised plea at paragraph No.6 of the written statement that since the respondent No.1 was disobedient, therefore, he was dep rived from the inheritance by his father late Muhammad
Ameen and created the impugned gift in favour of the petitioners Nos.1 to 3. The petitioners also
produced Aaq memo. Ex -D/1 and in this respect, a publication in newspaper "Jang" Quetta has
annexed alo ng with the petition. The ground to hold the impugned gift as valid taken by the
petitioners has no legal sanctity nor on this sole object lawful heirs of deceased could be deprived from inheritance. The contention of the petitioners (defendants) that disobedient son is
not entitled to inherit has no force as under the Islamic Law, there is no institution of
disinheritance for a disgruntled son/daughter depriving him/her from the inheritance. A Muslim
owner can validly transfer his property only through the mode recognized by Islam and not
otherwise. A Muslim can gift away his property to anyone, but in case, the transfer is made with intent to deprive the heirs of their right of inheritance on the ground not recognized by law, the transfer would be void. In the instant case, the impugned gift was made by the father in his
lifetime in favour of the petitioners Nos.1 to 3 (defendants) i.e. three daughters to deprive the son i.e. the respondent No.1 from inheritance on negative reason, which is forbidden under the law. The provisions contained in section 53 of the Transfer of Property Act (TP), Act can be conveniently relied upon, which reads as under:
"Fraudulent transfer: --Every transfer of immovable property made with intent to defeat or
delay the creditors o f the transferor shall be voidable at the option of any creditor so
defeated or delayed".
In this respect, the Hon'ble Supreme Court of Pakistan in the case titled Muhammad
Ismail through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others, (2002 SCMR 1938) observed as under:
"In the instant case no reason is furnished for such gift. At the most one can import the
love and affection of the grandson but the same seems to be unreasonable in the presence of one and the only son of the donor. Rather there is a negative reason for making gift, in that, Barkat Ali had three daughters as well and it was rightly apprehended that in case of the death of Barkat Ali, property would also be inherited by his daughters, the real sisters of Muhammad I smail. There is overwhelming reason for the grant of gift which seems to
be mala fide and which is why it was assailed by the very son of the donor."
In the case titled Muhammad Yaqoob v. Feroze Khan and others, 2003 SCMR 41, the
Hon'ble Supreme Court of Pakistan observed as under:
"We are of the considered view that factum of gift could not be proved by adducing cogent and convincing evidence. Besides that there appears to be no justification for the exclusion of legal heir from the inheritance of Sher Za man (donor) which makes the
authenticity and genuineness of the gift doubtful."
In the case titled Fareed and others v. Muhammad Tufail and another, 2018 SCMR 139,
the respondent Muhammad Tufail was disinherited from his share in the legacy of Gomaan through mutation of Tamleek pursuance of registered Tamleek deed dated, the Hon'ble Supreme
Court of Pakistan observed as under:
"The principal issue, whether the respondent -plaintiff Muhammad Tufail could claim as a
legal heir of Gomaan, is settled by a concu rrent finding of fact given by three learned
Courts below. In the light thereof the rule laid down by this Court in Kulsoomo Bibi v.
Muhammad Arif (2005 SCMR 135) and Ghulam Haider v. Ghulam Rasool (2003 SCMR 1829) that a donee claiming under a gift that e xcludes an heir, is required by law to
establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed. In the present case there is no evidence of declaration of
gift or of its acceptance on record. Th e mere transfer of possession to a donee is not
sufficient to constitute a valid gift under the law."
11. From the evidence produced by the parties, it is clear on record that the real object of late
Muhammad Ameen in executing the impugned gift was to deprive the respondent No.1 of his legal share in his property. The case pleaded in the written statement and in evidence by the
petitioners that disobedient son i.e. respondent No.1 is not entitled to inherit his share, is
untenable, as to deprive the leg al heirs of their right of inheritance through Aaq- Nama has no
legal sanctity. The findings rendered by the trial Court and the appellate Court with regard to plea of 'Aaq' taken by the petitioners are based on proper declaration that the impugned mutation of gift was invalid on this ground. It is important to mention here that the impugned gift was Hibba -bil-Awez and it appeared that in lieu of gift, donee had paid Rs.200,000/ - (Rupees Two
Lac), therefore, the respondent No.1 (plaintiff) is liable to retur n the amount of Rs.200,000/ - to
the petitioners Nos.1 to 3. No other illegality or irregularity has been pointed out by the learned counsel for the petitioners to warrant interference in the impugned judgments/ decrees by this Court in exercise of its revi sional jurisdiction.
In view of the above, Civil Revision Petition No. 293 of 2016, is dismissed. Parties are
left to bear their own costs.
ZC/47/Bal Revision dismissed.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,
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