-Gift mutation--Property was gifted by attorney--Non-producing of original power of attorney--

 PLJ 2021 SC 195

Constitution of Pakistan, 1973--

----Art. 185(3)--Gift mutation--Property was gifted by attorney--Non-producing of original power of attorney--Burden to establishment of execution of power of attorney--Non-obtaining of permission regarding of secondary evidence--Deprivation of sublings of their inheritance--Frivolous litigation--Challenge to--Petitioner was not wrongly deprived of land which he stated was gifted to him--Said land was not directly gifted to petitioner by his father, but was stated to have been gifted to him by Muhammad Safdar, who was stated to be Khushi Muhammad’s attorney--Burden to establish that Khushi Muhammad had executed said power of attorney lay upon petitioner and all more so as it was on its basis that gift was made in favour of petitioner--However, original of said power of attorney was not produced nor permission to produce secondary evidence was obtained--Petitioner also gave no reason as to why his father, would execute a power of attorney, nor why he would not appoint anyone from amongst his two sons and three daughters--Petitioner deprived his siblings of their inheritance and managed to do so for about twenty two years compelling an heir to file a suit to claim what was legally theirs--petitioner then filed a frivolous appeal and followed it with a frivolous revision, which he did not want to get decided--Judgment of Civil Judge is legally sound--It would be highly unfair to keep legal heirs deprived of what they are entitled to, both under law of Pakistan as well as under law of Almighty Allah by permitting petitioner to continue to abuse process of law and unnecessarily procrastinate matters--Petition dismissed.             [Pp. 196 & 197] A, B, C, D & E

Mr. Tauseef Ijaz Malik, ASC and Mr. Ahmed Nawaz Ch., AOR (Absent) for Petitioner.

Not represented for Respondent.

Date of hearing: 25.3.2021.

 PLJ 2021 SC 195
[Appellate Jurisdiction]
Present: Qazi Faez Isa and Sardar Tariq Masood, JJ.
BASHIR AHMAD ANJUM--Petitioner
versus
MUHAMMAD RAFFIQUE and others--Respondents
C.P. No. 1127 of 2020, decided on 25.3.2021.
(On appeal against the order dated 04.03.2020 passed by Lahore High Court, Lahore in C.R. No. 167103 of 2018)

Order

Qazi Faez Isa, J.--Learned counsel states that a suit was filed by the petitioner’s brother, Muhammad Raffique (Respondent No. 1) challenging the gift Mutation No. 1571 which was attested on 27 November 1997, whereby their father Khushi Muhammad gifted 49 kanals and 13 marlas to the petitioner. In addition to the petitioner and Respondent No. 1, the other legal heirs of Khushi Muhammad were their three sisters (Respondent Nos. 2, 3 and 4). The suit was decreed. The learned counsel submits that appeal against the decision of the learned Civil Judge was disposed of on a technicality by the learned Additional District Judge and the learned Judge of the High Court dismissed the civil revision for non-compliance as the petitioner had failed to arrange for his representation and also did not proceed with the case himself. Learned counsel states that the petitioner was neither heard on merits by the appellate nor by the revisional Court.

2. The dispute pertains to the estate of Khushi Muhammad who died almost twenty two years ago. Since only one Court had considered the case on merits, we spent some time to ensure that the petitioner was not wrongly deprived of the land which he stated was gifted to him. The said land was not directly gifted to the petitioner by his father, Khushi Muhammad, but was stated to have been gifted to him by Muhammad Safdar, who was stated to be Khushi Muhammad’s attorney. On our query, the learned counsel stated that Muhammad Safdar was the petitioner’s brother-in-law.

3. We have read the judgment of the learned Civil Judge who noted that the original power of attorney in favour of Muhammad Safdar was not produced. The learned Judge also noted that the official of the District Registration Office who came to testify denied his office having the record of the said power of attorney. The burden to establish that Khushi Muhammad had executed the said power of attorney lay upon the petitioner and all the more so as it was on its basis that the gift was made in favour of the petitioner. However, the original of the said power of attorney was not produced nor permission to produce secondary evidence was obtained. The repository of the record, that is, the District Registrar’s Office denied execution of such power of attorney and it did not exist in their record. It also came in evidence that Khushi Muhammad at the relevant time was a very old man; the petitioner contended that he was in his eighties and the Respondent No. 1 said that he was a hundred years old. The petitioner also gave no reason as to why his father, Khushi Muhammad, would execute a power of attorney, nor why he would not appoint anyone from amongst his two sons and three daughters. Moreover, if Khushi Muhammad was able to have gone to the District Registrar’s office to

execute the said power of attorney, he could easily have also gone to the Revenue Office to directly gift his land to the petitioner. It appears that the sole purpose of introducing the fictitious power of attorney was to get around the legal constraint of an attorney benefitting himself, which would have cropped up if the petitioner had produced a power of attorney in his own favour.

4. When a Muslim dies, his legal heirs become owners of his estate at the very moment of his death to the extent of their shares as determined by shariah. Sadly, the petitioner deprived his siblings of their inheritance and managed to do so for about twenty two years compelling an heir to file a suit to claim what was legally theirs. The petitioner then filed a frivolous appeal and followed it with a frivolous revision, which he did not want to get decided. The judgment of the learned Civil Judge is legally sound. And, with regard to the aforesaid points, no tenable rebuttal was forthcoming. In these circumstances, it would be highly unfair to keep legal heirs deprived of what they are entitled to, both under the law of Pakistan as well as under the law of Almighty Allah by permitting the petitioner to continue to abuse the process of the law and unnecessarily procrastinate matters. This petition is accordingly dismissed with costs throughout. Copy of the order passed today to be sent to the respondents.

(Y.A.)  Petition dismissed