Oral Gift by the Plaintiff

Citation Name : 2012 SCMR 1373 SUPREME-COURT Side Appellant : NOOR MUHAMMAD Side Opponent : Mst. AZMAT-E-BIBI S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Alleged oral gift deed by plaintiff in favour of her step-brothers---Plaintiff having no knowledge of the relevant mutation of gift---Beneficiaries (defendants) failing to prove genuineness of said mutation of gift through credible evidence---Effect---High Court interfering with concurrent judgments and findings of courts below in revisional jurisdiction---Scope--- Plaintiff (respondent) had inherited the suit property from her father---Defendants (appellants), who were step-brothers of the plaintiff, got mutated the suit land in their favour on the basis of an oral gift vide the impugned mutation---Plaintiff challenged the impugned mutation by way of declaratory suit, which was dismissed by the Trial Court and appeal filed thereagainst was also dismissed by the First Appellate Court---High Court in its revisional jurisdiction reversed the concurrent judgments and decrees of both the courts below on the ground that impugned mutation was not a bona fide transaction; that there was no report in "Roznamcha Waqiati" about the transaction; that the report made by the plaintiff's step-father regarding the oral gift in favour of the defendants was not credible; that onus was on the defendants to prove that there was a valid gift, and that there being no sanctity attached to such a fraudulent transaction, the limitation would not come in the way of justice---Contentions of the defendants were that the High Court had interfered with concurrent judgments and findings of fact in revisional jurisdiction which was not tenable in law and was beyond the parameters laid down under S.115, C.P.C.; that the High Court had ignored the other relevant entries in "Roznamcha Waqiati" and the statement of the revenue patwari; that the plaintiff herself was present at the time of the impugned mutation; that the impugned mutation stood incorporated in the subsequent "Jamabandies"/Record of Rights and a presumption of truth was attached to such entries; that a "Punchayat" was conveyed by the elders of the family where the plaintiff was told that she had made the oral gift and impugned mutation was genuine and that she should withdraw the suit, but the plaintiff resiled, and that the High Court had incorrectly decided the question of limitation by observing that the transaction in question was a fraudulent and void transaction---Validity---High Court had interfered with concurrent findings of fact because it found that those findings not only reflected misreading of evidence but also were against the law, and that the report purportedly made by the plaintiff's step-father to the effect that she wanted to give her land to her step-brothers (defendants) had not been proved by leading credible evidence---Plaintiff had allegedly given valuable agricultural land to her step-brothers vide the impugned mutation of gift without any ostensible reason and notwithstanding the fact that she had her own children to look after---Person who had purportedly identified the plaintiff at the time of the attestation of the impugned mutation was never examined---Plaintiff shifted to a different city after her marriage and she kept receiving her share of the produce from the suit land, which was being cultivated by the defendants---Explanation regarding knowledge of impugned mutation, given by the plaintiff in her cross-examination was sufficient to prove that she had no prior knowledge of the impugned mutation and further that the entries of "Jamabandies" were not challenged earlier because she was not aware of them---No unimpeachable evidence was led by the defendants to prove that the plaintiff was present at the time of the attestation of the impugned mutation or that she had instructed her step-father to make a gift in favour of her step-brothers (defendants)---Statement of "Naib Tehsildar" who attested the impugned mutation would be of no avail as he had admitted in his cross-examination that he neither knew the parties personally nor the persons who allegedly identified the donor (plaintiff)---Endorsement of the fact that impugned mutation was attested in a public gathering (Jalsa-e-Aam) did not exist on record---Contention of the defendants that the "Panchayet" decided the matter in their favour was not borne out either from the pleadings or the evidence led as firstly, there was no specific plea in the written statement regarding the same; second ly there was nothing in evidence to indicate that those who constituted the "Panchayet' were consensually agreed upon and gave a verdict to the effect that the impugned gift mutation was voluntarily made by the plaintiff---One of participants of the "Panchayet" had stated in his examination-in-chief that the plaintiff was asked to take oath on the Holy Quran as to whether she had consented to the gift or not, but she refused to do so---Such an argument was not tenable because bringing the Holy Quran in such matters was alien to the law and could not be a substitute for leading positive evidence on the point in issue---Contention of defendants that impugned mutation was reflected in subsequent "Jamabandies", therefore, presumption of truth is attached to it, was not tenable as presumption so attached stood rebutted in the present case since defendants failed to lead positive evidence that plaintiff herself appeared to make the gift; since there was evidence to the effect that the plaintiff had been getting her share of produce from the suit land, and since she had moved to another city and only filed the suit when the dispute arose and she checked the revenue record to find out that she had been deprived of her land fraudulently--- appeal was dismissed, in circumstances.