PLJ 2018 Quetta 158
Present : MUHAMMAD EJAZ SWATI , J.
Mst. MAH KHATOON and 3 others --Petitioners
versus
FEROZ and another --Respondents
C.R. No. 293 of 2016, decided on 27.4.2018.
Specific Relief Act, 1877 (I of 1877) --
----S. 42--Suit for declaration, possession, partition and cancellation of mutation decreed --
Appeal --Dismissed --Disinherited --Challenge to --Revisional Jurisdiction --Evidence produced by
parties, it is clear on record that real object of late Muhammad Ameen in executing impugn ed
gift was to deprive Respondent No. 1 of his legal share in his property --Case pleaded in written
statement and in evidence by petitioners that disobedient son i.e. Respondent No. 1 is not entitled
to inherit his share, is untenable, as to deprive legal heirs of their right of inheritance through
Aaq-Nama has no legal sanctity --Findings rendered by trial Court and appellate Court with
regard to plea of ‘ Aaq’ (ﻋﺎق )taken by petitioners are based on proper declaration that impugned
mutation of gift was inva lid on this ground-- It is important to mention here that impugned gift
was Hibba -bil-Awez and it appeared that in lieu of gift, donee had paid Rs.200,000/ - (Rupees
Two Lac), therefore, Respondent No. 1 (plaintiff) is liable to return amount of Rs.200,000/ - to
Petitioners No. 1 to 3--No other illegality or irregularity has been pointed out by learned counsel
for petitioners to warrant interference in impugned judgments/decrees by this Court in exercise
of its revisional jurisdiction. [P. 163] B & C
Muhammada n Law --
----S. 149-- Essentials of valid gift-- Validity of gift--Object of 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 --Perusal of evidence available on record shows that there is no cloud between
parties in respect of impugned mutation of gift --Respondent No. 1 had challenged validity of
impugned gift on ground that object of impugned gift was to deprive Respondent No. 1, therefore, was not valid --Civil revision was dismissal. [P. 161] A
2005 SCMR 135, ref .
Mr. Bahlol Kasi, Advocate for Petitioner.
Ms. Syeda Tehmina Samad, Advocate for Respondent No. 1.
Date of hearing: 30.3.2018.
JUDGMENT
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 had one son namely Feroz i.e.
Respondent No. 1 (plaintiff) five daughters i.e. Petiti oners No. 1 to 3 (defendants No. 1 to 3)
(unmarried) and Bibi Farida and Bibi Naik (married) (not parties). Late Muhammad Ameen in
his lifetime vide deed ( ﻋﺎق ﻧﺎﻣہ ) dated 14th May 2009, disinherited his son Feroz i.e. Respondent
No. 1 (plaintiff) and publi cations thereof were made in daily newspaper “Jang”, Quetta dated
13th June 2009, which reads as under:
''ﻣﯿﮟ اﭘﻨﮯ ﺑﯿﮣﮯ ﻓﯿﺮوز ﺧﺎن وﻟﺪ ﻣﺤﻤﺪ اﻣﯿﻦ ﮐﻮ ﺑﻮﺟہ ﻧﺎﻓﺮﻣﺎﻧﯽ اﭘﻨﯽ ﻣﻨﻘﻮﻟہ اور ﻏﯿﺮ ﻣﻨﻘﻮﻟہ ﺟﺎﺋﯿﺪاد ﺳﮯ ﻋﺎق ﮐﺮﺗﺎ
ﻔﻊ و ﻧﻘﺼﺎن ﮐﺎ ﺧﻮد ذﻣہ دار ﮨﻮ ﮔﺎ۔''ﮨﻮں۔ آﺋﻨﺪه ﺟﻮ ﮐﻮﺋﯽ اس ﺳﮯ ﻟﯿﻦ دﯾﻦ ﮐﺮﯾﮕﺎ وه اﭘﻨﮯ ﻧ
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 No. 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 Cancellation of Mutation entries and contended that after the death of his father when he obta ined 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 No. 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 Defendant No. 1 to 3 by means of Intiqal No. 2963. “
4. Out of pleadings of the parties, following issue s were framed:
1. Whether the property in question was validly transferred on the names of defendants No.
1 to 3?
2. Whether there remain any right of plaintiff in the disputed property after its transfer
through Hibbah to the defendants No. 1 to 3 by thei r 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
No. 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/decree” ) 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”) vid e 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 Petitione rs No. 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 challenged the gift; that the impugned mutation of gift was carried out in the ye ar 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 same in the instant suit; that fact of disinheritance ( ﻋﺎق
)of the Responde nt 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 plaintif f 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 (defendants) 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 ( ﻋﺎق )is neither recognized in Islam
nor any law validates such gift; that besides pleading, the evidence produced by the petitione rs
(defendants) including ‘Aaq’ nama Ex -D/1 clearly demonstrates that the impugned mutation of
gift was result of disinheritance ( ﻋﺎق
,)which has rightly been determined by the trial Court and
the appellate Court as contrary to law and invalid. Learned cou nsel 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- Nam
(ﻋﺎق ﻧﺎﻣہ ) Ex-D/1. T he attorney for the petitioners Sanaullah in his statement contended that late
Muhammad Ameen in his lifetime disinherited ( ﻋﺎق
)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 No. 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 three 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 the 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 & others v. Muhammad Arif & 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 truncation 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 truncation 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 t he 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 c ase, 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 deprived from the inheritance by his father late Muhamma d
Ameen and created the impugned gift in favour of the Petitioners No. 1 to 3. The petitioners also produced Aaq memo. Ex - D/1 and in this respect, a publication in newspaper “Jang” Quetta has
annexed alongwith 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 a s under the Islamic Law, there is no institution of
disinheritance ( ﻋﺎق
)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 b y the father in his
lifetime in favour of the Petitioners No. 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 of the transferor shall be voidable at the opti on of any creditor so
defeated or delayed “.
In this respect, the Hon’ble Supreme Court of Pakistan in 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 i nstant 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 gif t, 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 Ismail. 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 Zaman (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 for his share in the leg cy 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 concurrent finding of fact given by three learned Courts bel ow. 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 excludes an heir, is required by law to establish the or iginal 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. The 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 pr operty. 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 legal 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’ (ﻋﺎق
)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 return the amount of
Rs.200,000/ - to the Petiti oners No. 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 revisional jurisdiction.
In view of the above, Civil Revision Petition No. 293 of 2016, is dismissed. Parties are left to
bear their own costs.
(M.M.R.) Civil revision dismissedThis 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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