A full sister would inherit both as a sister and if there was no residuary in the said above-named categories (as mentioned therein) then she would also take the remainder as a residue, and exclude those falling in a category below her, including ‘Consanguine Paternal Uncle’s Son’.

 A full sister would inherit both as a sister and if there was no residuary in the said above-named categories (as mentioned therein) then she would also take the remainder as a residue, and exclude those falling in a category below her, including ‘Consanguine Paternal Uncle’s Son’.

Civil Appeal No. 954/2014
Muhammad Sharif Vs Mst. Niamat Bibi






Section 17(a) of the Registration Act, 1908 requires that gifts of immovable property made by or through written documents require registration.

 Since the basis of the gift was the gift document we drew the attention of the learned counsel to Chapter VII of the Transfer of Property Act, 1882 and to its section 123, relevant portion whereof stipulates, that, ‘For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.’ We questioned how the gift document could be used to gift the House. The learned counsel responds by submitting that the gift was made orally as mentioned in the gift document, which is titled ‘Declaration of Oral Gift’. We have examined the gift document which states that the, ‘DONOR, hereby gift the above said property…’, that is, the House. It is thus clear that the gift document did not merely record an earlier oral gift but it was through the gift document that the House was purportedly gifted. The title of the gift document is inconsequential in view of its clear and unambiguous contents, which stated that the House was sought to be gifted by and through the gift document. The cited case of Bilawar Khan has no relevance to the facts of the instant case.

Section 17(a) of the Registration Act, 1908 requires that gifts of immovable property made by or through written documents require registration. Therefore, the gift document required registration. It would also require stamping pursuant to the Stamp Act, 1899. In the absence of the statutory requirement of registration of the gift document it could not be used to transfer the property to the petitioner.

Civil Petitions No. 1319 of 2020 & 1410 of 2021
Muhammad Farrukh Iqbal Versus Mrs. Ayesha Iram, etc.






Deposit the balance sale price

Admittedly, unlike Section 24 of the Pre-emption Act, which caste a duty upon the Court in a suit for pre-emption to require the plaintiff to deposit in Court 1/3rd of the sale price, there is no provision in the Specific Relief Act which upon filing of the suit seeking specific performance of an agreement in respect of an immovable property cast any duty on the Court or requires the vendee to first deposit the balance sale consideration, however, since the law of Specific Relief is based on the principles of equity and further that the relief of specific performance is discretionary and cannot be claimed as a matter of right, therefore, the Court in order to ensure the bona fide of the vendee at any stage of the proceedings may put him to terms.

Additionally, Section 24(b) of the Specific Relief Act, details the contracts which cannot be specifically enforced provides that specific performance of a contract cannot be enforced in favour of a person who has become incapable of performing or violates, any essential term of the contract that on his part remains to be performed. Therefore, the vendee while seeking specific performance/enforcement of a condition to be performed by the vendor must state that either he has performed all the conditions which under the contract he was bound to perform and/or that at all times right from the date of the agreement down to the date of filing the suit he has been ready and willing to perform/fulfill his part of the deal. He is not only supposed to narrate in the plaint his readiness and willingness at all material time to fulfill his part of the agreement but also is bound to demonstrate through supporting evidence such as pay orders, Bank statement or other material, his ability to fulfill his part of the deal leaving no doubt in the mind of the Court that the proceedings seeking specific performances have been initiated to cover up his default or to gain time to generate resources or create ability to fulfill his part of the deal. It is in that pursuit that the Court to weigh his capacity to perform and intention to purchase may direct the vendee to deposit the balance sale consideration. The readiness and willingness on the part of the vendee to perform his part of obligation also prima-facie demonstrates that the non- completion of the contract was not the fault of the vendee and the contract would have been completed, if it has not been renounced by the vendor.
it is to be kept in mind that strict non- compliance of the directions of the Court by a vendee to deposit the balance sale price while keeping the lis of specific performance alive has totally different consequence than the cases where the Court while directing the balance price terminates the lis or where the direction to deposit the balance sale price are issued at the instance of the vendor who has shown his readiness to perform his part of the contract. In the first instance, the Court does not lose its jurisdiction to review its order by extending time for depositing the balance sale price for the simple reason that the vendee on the face of denial or plea of termination of agreement has only to establish his bona fide / seriousness to standby his part of the commitment, whereas, in the second instance the Court ordinarily becomes functus officio and loses its authority on the lis and consequently has no jurisdiction to extend time for the deposit of the balance sale price. In the instant case not only the lis was alive but the order directing deposit of balance sale price did not stipulate the consequences for non-deposit which normally are the vacation of injunctive order or the dismissal of the suit, consequently, the order of the High Court non-suiting the appellant cannot be sustained and therefore, requires interference by setting it aside.

C.A.1767/2019
Muhammad Asif Awan v. Dawood Khan, etc













Bare reading of Section 9 of the Specific Relief Act dictate that in order to succeed in a suit filed under Section 9 of Act ibid the plaintiff must prove the four basic ingredients which are as under:-

  (i) He was in possession of the immovable property in suit;

(ii) that he had been dispossessed by the defendants;
(iii) that the dispossession was not in accordance with the law; and,
(iv) that the dispossession took place within six months of the filing of the suit.
While, deciding suit under section 9 of the Specific Relief Act, 1877, the above mentioned prerequisites must be followed in letter and spirit. The plaintiff was bound to prove that he was in possession of the suit property and had been dispossessed by the defendant other than in due course of law.

Writ Petition No.2939 of 2016.
Muhammad Ashraf Iqbal, etc. Versus Abid Hussain, etc.











Vehicle Tempered Chesis Plate, Refitted or Wellded etc will confiscated to state and never be return to bonafide purchaser, Last possessor or to accussed even acquited of the charges.

2020 SCMR 1420
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE YAHYA AFRIDI
CIVIL PETITION NO.800-P OF 2019
(Against the order dated 14.11.2019 passed by
Peshawar High Court, Peshawar, in W.P.362P/2019)
Government of KPK through Secretary Excise &
Taxation Department, Civil Secretariat, Peshawar and others
…Petitioner(s)
VERSUS
Sarfaraz Khan and another
…Respondent(s)
For the Petitioner(s): Malik Akhtar Hussain, Addl.AG KPK

On Court’s Notice:
For Respondent-1: Syed Hamad Ali Shah, Legal Officer KP Excise Dept.
Mr. Shakil Ahmed, Inspector Motor
Registration Authority Sargodha
In-person.
Date of Hearing: 28.05.2020

O R D E R

MUSHIR ALAM, J.— The petitioners, Government of KPK through
Secretary Excise & Taxation Department, Civil Secretariat, Peshawar and others, have impugned judgment dated 14.11.2019, passed by learned Division Bench of the Peshawar High Court, Peshawar, in W.P.362-P/2019, whereby the orders passed by the authorities seizing the subject vehicle were set aside.
2. Precise facts giving rise to the present controversy are that the subject vehicle bearing registration No.SGF-2992, Model
No.1989, having Chassis No.LN85-0010554, was seized on
27.01.2017. On forensic examination, it was found “welded and refitted chassis frame”. This action was challenged by the Respondent No.1 before the learned Peshawar High Court and the learned High Court in consideration of the fact that the record has neither been called from the concerned Excise and Taxation Officer Sargodha nor have they directed the petitioner to produce the same before it and such exercise of the authority was not in accordance with law and the impugned action was held to be without lawful authority and jurisdiction and the subject vehicle was ordered to be handed over to the Respondent-1 herein.
3. Notice was issued to the respondent, who claim to be the owner of the subject vehicle as well as excise department Sargodha and the Investigating Officer of Police, Peshawar.
4. Officer concerned from the excise department
appeared and produced original registration record of the subject vehicle. From the record, it appears that some alteration has been made in the vehicle and the Respondent claims that he has purchased the vehicle from Muhammad Yaqoob, whose name appears in the record at Page-38 of the Court file. However, the subject vehicle was seized on 27.01.2017 and during its seizure period, its ownership was transferred in the name of Respondent-1 on 04.02.2017. Therefore, the contention of the Respondent that he has purchased the vehicle from Muhammad Yaqoob is not borne out from the record. Even otherwise, under Section 33 of the Provincial Motor Vehicles Ordinance, 1965, applicable to both the Provinces of Khyber Pakhtunkhwa as well as Punjab, reads as
follow:
“33. Alteration in motor vehicle.(1) If a motor vehicle is so altered that the particulars contained in the certificate of registration are no longer accurate, the owner of the vehicle shall within fourteen days of the making of any such alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration of the vehicle to that authority together with the prescribed fee in order that particulars of the alteration may be entered therein
Provided that it shall not be necessary to report any change in the unladen weight of the motor vehicle consequent on the addition or removal of fitting or accessories, if such change does not exceed two per cent of weight entered in certificate of registration.
(2) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority.
Punjab Amendment
In Section 33, in subsection (1), for the words “entered therein” the words “updated in the record and shall issue a new certificate of registration and license number plates, if required” shall be inserted.”
5. In the Province of Punjab, Section 33 of the Ordinance was amended through the Provincial Motor Vehicle (Amendment) Act XLVIII of 2016, which requires that all such
additions/alterations shall be updated in the record and shall issue a new certificate of registration and license number plates, if required. Respondent No.1 states Rule 33 (ibid) is applicable when there is a change carried out by replacing the chassis numbers and there are different modes of change and adjustment for the purpose of modification and he has not done any change. It may be observed that Section 33 (ibid) as reproduced above does not distinguish alteration in the motor vehicles in any manner whatsoever. Any alteration effected in the vehicle is required to be reported within 14 days to the authority in whose jurisdiction the owner resides and the authority is required to issue a certificate of registration of the subject vehicle to the concerned authority where such alteration has to be entered into. In a case reported as Sultan Muhammad versus Collector Customs and another (2015 PTD 570) the question as to welding and refilled old chassis plate of the same vehicle amounts to altering of the original chassis number came up for consideration. Learned Bench after considering large number of cases in para-7 at page-586, opined (vi) & (viii) and at page-588 held:
(vi) “Tempering” of chassis number of the vehicle, include any alteration of the original chassis number of the vehicle, whether manual or otherwise OR cutting a piece of the frame and re-welding another piece thereon OR chassis number filled with welding material and then restamped.
(vii) ………….
(viii) Tempering of chassis number as a result of an accident of the vehicle could only be a valid ground, if the same was reported to and confirmed by the Motor Vehicle Authorities under Section 33 of the Motor Vehicle Ordinance, 1965.
……………………………..
Presenting documentation, relating to the said “tampered” vehicle from the Motor Vehicle Authority, without specific approval for the alteration in the chassis of engine number, as envisaged under section 33 of the Motor Vehicle Ordinance, 1965 (“Ordinance”) would be of no legal avail.
Moreover, allowing a vehicle, having “tampered” chassis number, even with registration book from the Motor Vehicle Authority, would surely offend and abuse the provisions of the Act/Ordinance and the Policy of the Federal Government reflected in Circular No.10(1)AS/2004 dated 11-12-2007 read with S.R.O. No.568(1)/2008, dated 11-6-2008.”
6. No such exercise was undertaken. Respondent
concedes that such alteration was not carried out by him but by the person from whom he has purchased the vehicle. The liability and responsibility vest on the person making such alteration in any manner whatsoever. If the Respondent has purchased the same without taking due care and complying with the
requirements of law, he cannot claim to be a bona fide purchaser. Needless to say that he may, if so advised, claim damages from the person from whom he purchased the subject vehicle.
7. In view of what has been discussed above, the
impugned judgment cannot be sustained. Accordingly, this petition is converted into appeal and allowed and the impugned judgment
is set aside.
Judge
Judge
Judge
ISLAMABAD
11th May, 2020

Mudassar/ “Approved for Reporting” 

Legal right through oral assertion but the best documentary evidence of which the case in its nature is susceptible is found in his favour then the documentary evidence in favour of a person should be given credence.

 There is a well known dicta that ‘a man can tell a lie but a document cannot’. If a person has or has been bestowed some legal right and he omitted to claim such legal right through oral assertion but the best documentary evidence of which the case in its nature is susceptible is found in his favour then the documentary evidence in favour of a person should be given credence.

CIVIL APPEAL NO. 1477 OF 2019
Muhammad Siddique VERSUS Senior Executive Vice President, PTCL and others





----Meaning and concept of "malicious prosecution"-

 2021 C L C 1008

Malicious prosecution---
----Meaning and concept of "malicious prosecution"---Basic ingredients for "malicious prosecution" to be an actionable tort---Suit for compensation on basis of malicious prosecution---Scope---Malicious prosecution may be defined as institution of criminal or civil proceedings for an improper purpose and without probable cause---Every criminal prosecution / inquiry which ended with clearing of accused, would not per se entitle such person / accused to file suit for compensation----Successful proceedings initiated under law of malicious prosecution required that original proceedings must have been malicious and without cause---Every person had right to set in motion governmental and judicial machinery for protection of rights but such person should not infringe corresponding rights of others by instituting improper legal proceedings in order commit harassment by way of unjustifiable litigation---To be an actionable tort, prosecution must have been malicious and terminated in favour of plaintiff and mere filing of complaint before police authorities on basis of an allegation was not a "legal wrong" for purpose of suit for malicious prosecution---Courts had to determine whether initiation of prosecution was with reasonable and probable cause and circumstances between parties were to be taken into consideration to determine state of mind of prosecutor and defendant---Mere jealousy and grudges would not be reasonable cause and it was an essential ingredient for a suit for compensation based on malicious prosecution that criminal prosecution against plaintiff were initiated with malice.
----"Prosecution"---Meaning of---Prosecution was a criminal proceeding in which an accused person was tried and a prosecution existed where criminal charge was made before a judicial officer or tribunal.
----"Malice"---Meaning of---Malice meant wrongful intention.
Conditions that have to exist for an action for malicious prosecution to be successful.
i) That Plaintiff was prosecuted by the Defendant; -
ii) That the prosecution ended in favour of the Plaintiff;
iii) That the Defendant acted without reasonable and probable cause;
iv) That the Defendant was actuated by malice (with improbable motive and not to further the ends of justice); and
v) That the proceedings had interfered with the Plaintiff's liberty and had also affected his reputation and the Plaintiff had suffered damages.






مختار عام مختار نامہ کی بنیاد پر مختار دہندہ کی غیر منقولہ اراضی بذریعہ ھبہ یا تملیک( gift)منتقل نہ کر سکتا ھے خواہ مختار نامہ میں اسے بذریعہ ھبہ یا تملیک(gift) اراضی منتقل کرنے کا اختیار بھی کیوں نہ دیا گیا ھو

 (i) Whether under the General Power of Attorney the attorney himself/herself can transfer the property of principal through gift.?

The gift can be made by the owner/principal only. The agent cannot himself or herself transfer the immovable property of principal through gift on the basis of any power of attorney even if the power of attorney contains the powers to transfer the property through gift. These powers can only be used for completion of codal formalities of the gift which must be by the owner/principal himself/herself. The attorney cannot transfer the property of principal himself/herself to anyone through gift and if that transfer is by the attorney himself/herself, that is invalid transfer. Even in case of transfer of immovable property of principal by attorney in favour of his kith and kin some principles have already been set up by this Court.
(ii) What necessary ingredients should be available for declaring a power of attorney an irrevocable power of attorney, whether by writing on the caption of a power of attorney irrevocable it becomes an irrevocable power of attorney.?

C.A.1498/2016
Ijaz Bashir Qureshi v. Shams-un-Nisa Qureshi & others
Mr. Justice Amin-Ud-Din Khan
Decided on 11-06-2021










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