PLJ 2018 Lahore 829
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 27--Specific Relief Act, (I of 1877), S. 9--Category of psychological fact--Religious faith--Transactions of gift was challenged through declaratory suit on basis of fraud and misrepresentation--Question of--What was belief of deceased--Whether in matter of religious faith he adhered to shia faith or sunni discipline--Determination--Although psychological fact, that is, faith of a person is incapable of direct proof and no principle of universal application is available to determine it yet diagnosis whereof may be made through: (i) direct disclosures by word of mouth by deceased; (ii) circumstantial evidence of conduct of deceased; and (iii) opinion of witnesses--In present case onus was upon plaintiff to displace presumption that deceased Ghulam Qadir was not Sunni but Shia--Neither there was any offer and acceptance of gift nor there was any occasion to make any gift in favour of Fatima Bibi; that her deceased father neither appeared before any revenue officer nor he thumb marked any document in this regard; that possession of land was also not delivered to Defendant No. 1; and, that Defendant No. 1 through fraud and in collusion with revenue staff got transferred suit land in his favour by way of a fake oral gift so as to deprive her of her right of inheritance--Fraud and collusion alleged by plaintiff may also be unearth from intention and motive of Defendant No. 1--It is to be noted that Defendant No. 1 was not legal heir of deceased Ghulam Qadir nor in ordinary circumstances was entitled to get suit property--Though it is not necessary for a donor to furnish reasons for making a gift yet no gift in ordinary course of human conduct be made without reason or justification unless donor is divested of power of reasons and logic and unless he/she is a person of unsound mind--Defendant No. 1 had neither led any evidence to establish fact that Ghulam Qadir in his life time was aware about transaction of gift nor explained reasons as to why Ghulam Qadir had not made gift directly to him; and, that why, land was firstly transferred in name of Fatima Bibi and from her, it was gifted to him on same date--All these facts show nothing but fraud on part of Defendant No. 1, so as to deprive plaintiff of her right of inheritance--Since Defendant No. 1 had failed to justify disinheritence of plaintiff--It is well settled principle of law that fraud vitiates even most solemn transaction, as such any transaction based on fraud would be void and notwithstanding bar of limitation matter can be considered on merit so as not to allow fraud to perpetuate--It is declared that Mutation No. 3847 dated 16.06.1998, Mutation No. 3760 dated 17.02.1998, Mutation No. 3846 dated 16.06,1999 and Mutation No. 3850 dated 26.08.1999 are illegal, void ab-initio and ineffective upon rights of plaintiff; and, that plaintiff is entitled to get her share as per Sunni school of thought from inheritance of deceased Ghulam Qadir--Injunction as prayed for in plaint is also granted and thus Defendant No. 1 is restrained to interfere in possession of plaintiff and also to further alienate or transfer suit land to any other person on basis of above said mutations--Decree in above terms be issued--No order as to costs--Civil revision accepted.
[Pp. 838, 839, 842, 843 & 844] A, B, I, J, K & L
Gift--
----Essential--Beneficiary of transaction--Defendant No. 1 was bound not only to prove disputed mutations but also to prove actual factum of gift by falling back on three ingredients, that is, (i) declaration of gift by donor; (ii) acceptance of gift by donee; and, (iii) delivery of possession of corpus--Acceptance of gift was a personal act and, therefore, it was required to be proved by donee through his own statement and attorney cannot substitute donee under law. [Pp. 841 & 842] E & G
Written Statement--
----Name of witnesses--Declaration and acceptance of Gift--Requirement of Gift--Defendant No. 1 neither in his written statement stated date, time, place and name of witnesses before whom declaration and acceptance of gift was made nor any of witness who appeared on behalf of defendants made any statement that proposal and acceptance of gift was made in his presence--Failure to establish twin requirement of gift i.e. proposal and acceptance of gift was fatal to claim of Defendant No. 1--This aspect of matter was not considered by either of Courts below and thus, their findings on Issue No. 2 & 3 cannot be approved. [P. 841] F
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 117--Burden of proof--Legal right or liability--Question of whether person upon whom burden lies has been able to discharge his burden--Determination--It is clear that there can be no dispute that a person who attacks a transaction as sham, bogus, fraudulent and fictitious must prove same--Initial burden to prove said negative fact would stand discharged moment a person substantiates his allegations prima-facie by making a statement on oath and onus would be shifted to other side to prove that transaction in question was bona fide and legal--It is well established principle of Qanun-e-Shahadat that misplacing burden of proof may vitiate judgment--It is also equally and undoubtedly true that burden of proof may not be of much consequence after both parties lay evidence, but while appreciating question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates judgment as it has happened in instant matter where Courts below illegally and erroneously failed not to cast burden on Defendant No. 1 by clearly misconstruing whole case and thus resulted into recording of findings which are wholly perverse--It is settled principle of law that neither presumption of correctness nor that of truth to contents of mutation is attached under law--Once existence of a transaction itself has been questioned by a party in suit, it was legal obligation of person claiming benefit thereunder to prove same--Civil Revision accepted. [Pp. 840, 841 & 842] C, D & H
Mr. Naveed Shehryar Sheikh and Ms. Fatima Malik, Advocates for Petitioner.
Mr. Muhammad Zaman Mangat, Advocate for Respondent
No. 1.
Mr. Muhammad Nawaz Bosal, Advocate for Respondent No. 2 & 3.
Date of hearing: 17.4.2018.
PLJ 2018 Lahore 829
Present: Shahid WAheed, J.
versus
MUHAMMAD KHAN, etc.--Respondents
C.R. No. 955 of 2015, heard on 17.4.2018
Judgment
This application in revision is of the plaintiff and arises from a dispute relating to land measuring 27-Kanals 4-Marlas, which was owned by Ghulam Qadir, who was her real father and step brother of Defendant No. 1, Muhammad Khan. Vide gift Mutation No. 3847 dated 16.06.1999 (Exh.P-3) and gift Mutation No. 3760 dated 17.02.1998 (Exh.P-4), land measuring 15-Kanals, 4-Marlas and 12-Kanals respectively stood transferred in the name of Mst. Fatima Bibi, who was mother of Ghulam Qadir. Subsequently vide Mutation No. 3846 dated 16.06.1999 (Exh.P-1) and Mutation No. 3850 dated 26.08.1999 (Exh.P-2), the land mentioned in Mutations No. 3760 and 3847 were transferred in the name of Defendant No. 1, Muhammad Khan, by way of oral gifts. On 12.04.2008 the plaintiff challenged the above transactions of gift through a declaratory suit on the ground of fraud and misrepresentation with the assertion that her deceased father, Ghulam Qadir being follower of Shia faith had never made any gift in favour of his mother Mst. Fatima Bibi. Subsequently, the Defendant No. 1 on 15.10.2008 instituted a suit under Section 9 of the Specific Relief Act, 1877, against the plaintiff and 4 others seeking a decree for possession. It was alleged in the plaint that the plaintiff along with four others had illegally dispossessed him (Defendant No. 1) from the suit land. During trial of the suits Muhammad Munir and Nazir filed application under Order I Rule 10,, CPC for their impleadment as defendants. Since they were cousins (Chachazad) of Ghulam Qadir, their application was allowed and they were impleaded as Defendants No. 2 & 3 in plaintiffs suit. The Defendants No. 2 & 3 also contested the allegations made in the plaint. They in their written statement maintained that Ghulam Qadir belonged to Sunni school of thought; and, that the plaintiff was entitled to inherit only 1/2 share of the property of her deceased father, Ghulam Qadir.
2. Both the said two suits were consolidated. On pleadings, the Trial Court vide order dated 04.06.2009 framed consolidated issues. Parties to the suits led evidence in support of their respective claims before the Trial Court. After appraising evidence, the Trial Court dismissed both the suits through consolidated judgment dated 23.02.2012 and resultantly two decree sheets were accordingly prepared. The plaintiff and Defendant No. 1 through separate appeals challenged the said decrees of the Trial Court. Both the appeals met the same fate and were dismissed through two separate decrees which were issued vide consolidated judgment dated 11.03.2015. The plaintiff now seeks revision of the decrees of the Courts below which were issued in her suit. It is made clear that the decrees issued in the suit of Defendant No. 1 are not the subject matter of this revision application and, therefore, issues relating to it would not be discussed.
3. In the present case, the prime fact in issue was as to what was the belief of the deceased, Ghulam Qadir, that is to say, whether in the matter of religious faith, he adhered to Shia faith or Sunni discipline. At this juncture it would be apposite to state here that the fact in issue means any fact from which either by itself or in connection with other facts the existence, non-existence, nature or existence of any right, liability or disability, asserted or denied in any suit or proceedings necessarily follows. The word “fact” has been defined in Article 2(d) of the Qanun-e-Shahadat, 1984 and includes:--
(i) Anything, set of things, or relation or things, capable of being perceived by the senses; and
(ii) Any mental condition of which any person is conscious.
According to J. Bentham, Rationale of Judicial Evidence (Vol.6, 1838-43,
“A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exist, not generally but in reference to the particular matter in question.”
In this perspective the Trial Court settled two issues. The first was Issue No. 1 (whether plaintiff Tahira Parveen is owner in possession of the suit property as sole heir of her Shia father, Ghulam Qadir, as averred in the plaint? OPP), whereas the second was Issue No. 13-A (whether father of plaintiff Mst. Tahira Parveen was belonging to Shia school of thought? OPP). Upon the decision of said two issues would depend as to what law would govern the succession to the estate of the deceased, Ghulam Qadir.
4. The first witness PW-1 who appeared before the Trial Court to prove that the deceased Ghulam Qadir was not Sunni but Shia was plaintiff herself. She was the real daughter of deceased Ghulam Qadir. She in her examination-in-chief stated that her father belonged to the Shia sect. During the course of cross-examination she admitted that funeral prayer of her father was offered by a Sunni Molvi. She, however, voluntarily stated that in her village funeral prayers of Sunni and Shia were offered by the same Molvi; that her Nikah was solemnized by a Sunni Molvi; that she also professed Shia faith; and, that Nikah of defendant was also solemnized by a Sunni Molvi. The plaintiff was also cross-examined by the counsel of Defendants No. 2 & 3. During this cross-examination the plaintiff also stated that her father belonged to Shia sect whereas mother was of Sunni faith; that her grand-father (Dada) and grand-mother (Dadi) were Shias; that no mosque of Shia sect was available in their village Mousa Seeray and, therefore, Sunni and Shia offered prayers together in the same mosque; that there were four or five mosques in their village; that there was no Imambargah in their village; that sometimes her father offered Juma prayer at Mauza Dhaal and sometimes at home; that her father used to observe Iftar timing according to Mauza Dhaal; and, that she did not remember the name and sect of the Molvi who offered the funeral prayer of her father. The second witness who appeared on behalf of the plaintiff was Umer Hayat (PW-2). This witness in his examination-in-chief stated that Ghulam Qadir belonged to Shia faith. During cross-examination he stated that funeral prayer of Ghulam Qadir was offered by a Sunni Molvi. This witness was also cross-examined by the counsel of Defendants No. 2 & 3. In this cross-examination, PW-2 stated that plaintiff was his neice; that plaintiffs grand-father (Dada ) and grand-mother (Dadi) were of Shia faith; that plaintiff’s father used to offer Eid prayer under the Imamat (leadership) of Sunni Molvi; that plaintiffs funeral prayer was offered by a Sunni Molvi namely Noor-ul-Haq; that plaintiffs Nikah was also solemnized by a Sunni Molvi; that before 1986 plaintiffs father was Sunni but later on he professed Shia faith; that he did not know in whose presence plaintiffs father professed Shia faith. He, however, voluntarily deposed that he used to arrange Majlis at the house of his brother, namely, Muhammad Khan.
5. On the other hand the nephew (Bhanja) and attorney of Defendant No. 1, namely, Iftikhar appeared before the Trial Court as DW-1. He in his examination-in-chief stated that father of the plaintiff was Sunni. During cross-examination, he deposed that Defendant No. 1 (Muhammad Khan) and his mother were Sunni by faith. This witness further stated that he and his wife were followers of Shia faith. The Defendant No. 1 in support of his claim also produced Sher Muhammad (DW-2), who in his statement stated that Ghulam Qadir was Sunni. Another witness who appeared on behalf of Defendant No. 1 was Saee Muhammad (DW-3). He was husband of the sister of Defendant No. 1. This witness in his statement stated that Ghulam Qadir was Sunni.
6. Defendant No. 2, Muhammad Munir, as his own witness appeared before the Trial Court as DW-4. He was cousin (Chachazad) of the deceased Ghulam Qadir. He in his examination-in-chief stated that Ghulam Qadir was Sunni by faith; that Ghulam Qadir used to offer prayer according to Sunni creed; that Ghulam Qadir died professing Sunni faith; and, that his funeral prayer was offered by Sunni Molvi Noor-ul-Haq. During cross-examination he stated that mutation regarding inheritance of Ghulam Qadir was sanctioned as per Shia sect; that appeal against the said mutation was preferred before DDO(Revenue) by the defendant which was allowed; that deision of the DDO (Revenue) was reversed by the EDO (Revenue); that mother of Defendant No. 1 was Sunni; that Majlis had been arranging at the house of Defendant No. 1; that there were five or six houses of Shia community in Mauza Serray; that there was no Molvi or Imambargah of Shia sect in Mauza Serray; that all persons belonging to Shia faith of Mauza Serray used to offer Eid prayer in Mauza Dhaal. The Defendant No. 2 produced Syed Mureed Hussain (DW-5). He was Khateeb of Masjid Hussainia of Mouza Dhaal. This witness in his statement deposed that the distance between Seeray and Mauza Dhall was two miles and that Ghulam Qadir was Sunni. During cross-examination he stated that he knew all the persons belonging to Shia faith of Moauza Seeray. The last witness was Muhammad Rafiq (DW-6). He was lumberdar of Mouza Seeray and stated before the Trial Court that Ghulam Qadir was Sunni by faith.
7. Now a question arises as to what would be the principle of law to evaluate the above stated evidence led by the parties of the suit for determination of faith of deceased Ghulam Qadir. In order to find out answer to this question, it is essential to survey the relevant case law. The first case which may be referred is “Saiyid Rashid Ahmad vs. Mst. Anisa Khatoon” (AIR 1932 PC 25). In that case no suggestion had been made in the pleadings or in the arguments that parties were not Sunni Muhammadan governed by the ordinary Hanafi Law. The Court had to decide the question of Muhammadan Law relating to Talak and it was held that as there was no such suggestion mentioned in the record, the Hanafi Law should be applied.
The second case is “Akbarally v. Mahomedally” (AIR 1932 Bom 356). In that case Tyabji, J. observed: “it is not easy however to conceive of a case so devoid of all other circumstances from which the religion of the parties can be inferred, that this presumption from numbers should effectually come into operation.”
In the case of “Mst. Iqbal Begeum v. Mst. Syed Begum” (AIR 1933 Lahore 80), the plaintiff who was the sister of the last holder alleged that the deceased was a Sunni but the defendants who were the daughters of the last holder denied that fact. The onus of proving that the deceased was a Shia was held to be on the defendants. The above stated principles were reiterated by a Division Bench of this Court in case of “Mst. Sardar Bibi v. Muhammad Bakhsh and others” (PLD 1954 Lahore 480) and the Hon’ble Supreme Court of Pakistan in the case of “Pathana vs. Mst. Wasai and another” (PLD 1965 SC134).
In the case of “Hussuin v. Mansoor Ali and 5 others” (PLD 1977 Karachi 320) the dispute was with regard to the administration of estate of late Mohatrama Fatima Jinnah, the sister of the founder of Pakistan Quaid-e-Azam Muhammad Ali Jinnah. Inter-alia, the question for consideration was whether late Mohatrama Fatima Jinnah practised Sunni/Hanafi faith during her life time and remained a Sunni until the time of her death. One of the arguments was that funeral prayer at the time of death of Quaid-e-Azam as well as that of the deceased was held according to the Sunni manner and was led by Sunni Pesh Imam and, therefore, it be declared that Mohatrama Fatima Jinnah died professing Sunni faith. This argument was repelled and the Court observed that the fact that funeral prayers were performed according to the manner of her particular sect was not by itself sufficient for decision as to the religious belief held by the deceased himself or herself, for obviously the matter of funeral ceremony would be in the hands of those who were incharge of the same and it was conceivable in fact it had been so held that such persons might arrange such ceremonies not strictly according to the religious faith of the deceased but for their own reasons in some other manner.
This Court in the case of “Zohran Mai v. Mst. Siftan and others” (1983 CLC 2559) has held that question of sect of a person cannot be determined: (i) by opinion of parties but can be inferred from facts creating presumption one way or other; and, (ii) merely from sect to which his relatives belonged.
In the case of “Amir Ali v. Gul Shaker and 10 others” (PLD 1985 Karachi 365), the Division Bench of Sindh High Court has held that it is not necessary that a Mussalman must either be a Sunni, or, a Shia and it may well be that he is free from all sectarian feelings, sentiments and faith; and, that if it is not established that deceased was a Sunni or Shia then his estate has to be distributed in accordance with pure Muslim Law, as is stated in Quran in Sura Nisa.
This Court in the case of “Mst. Jantan through Mazhar Hussain v. Mst. Manzooran Bibi others” (2005 YLR 233) held that donation receipts could only prove monetary contributions to an organization, but could not be proof of donor’s faith, which would require independent, clear and indisputable evidence for its proof or disproof.
The Hon’ble Supreme Court of Pakistan in the case of Mst. Ghulam Ayesha alias Ilyas Begum etc. v. Sardar Sher Khan, etc.” (2006 SCJ 313) has held that flying of Alam of Hazrat Abbas on house of deceased would be proof of fact that deceased was of Shia faith.
In the case of Pathana and others v. Allah Ditta (2008 YLR 589) the presumption that the deceased was Sunni was not at all displaced either by the respondent or by the petitioner and, therefore, it was held that deceased was a Sunni.
The full Bench of Hon’ble Supreme Court of Pakistan in the case of “Ghulam Shabbir and others v. Mst. Bakhat Khatoon and others” (2009 SCMR 644) has held that the initial presumption in Pakistan is that a Muslim is a Sunni until the contrary is proved; and, that the burden to prove that the deceased was Shia is on the person alleging him to be not Sunni but Shia.
Finally, the Hon’ble Supreme Court of Pakistan in the case of Muhammad Bashir and others vs. Mst. Latifa Bibi through L.Rs (2010 SCMR 1915) while reversing the judgment rendered by this Court reported as “Mst. Latif Bibi and 8 others v. Muhammad Bashir and 10 others” (2006 CLC 1076) has held that no principle of universal application is available to determine the faith of a person and determination whereof depends on the surrounding circumstances, the way of life, the paternal faith and faith of other kith and kins.
8. Having carefully examined the case-law on the question in issue, I am of the view that although the psychological fact, that is, faith of a person is incapable of direct proof and no principle of universal application is available to determine it yet diagnosis whereof may be made through: (i) direct disclosures by word of mouth by the deceased; (ii) circumstantial evidence of the conduct of the deceased; and (iii) opinion of witnesses. In the present case onus was upon the plaintiff to displace the presumption that deceased Ghulam Qadir was not Sunni but Shia. The plaintiff appeared before the Trial Court as her own witness as PW-1 and produced her distant relative, Umer Hayat, PW-2. The statements of these two witnesses were deficient to prove that Ghulam Qadir was Shia. Mere their statement that Ghulam Qadir and his parents professed Shia faith was not sufficient particularly when PW-2 in his cross-examination admitted that till 1986 Ghulam Qadir was Sunni by faith and later on he professed Shia creed. The plaintiff was required to produce the person(s) before whom Ghulam Qadir denounced Sunni faith. This was not done. None of the witnesses particularly deposed as to the mode or manner of performance by Ghulam Qadir of his alleged Shia faith, prayers, rites, its practices, ceremonies and mandates. The witnesses also failed to disclose their source, basis and reason that the deceased Ghulam Qadir was a Shia. Similarly, no witness was produced to show that the deceased ever attended Zuljinah/Tazia/Taboot/Alam or the Muharram processions. The documentary evidence, that is, certificates (Mark-A to Mark-C) issued by different private Shia institutions were of no avail for two reasons: firstly, the scribes of these two certificates were not produced; and secondly, these private documents were tendered in the statement of the counsel, which itself is not permissible as per principle settled in the case of “Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others” (PLD 2010 SC 604). The conclusion, therefore, is that inference drawn by the Courts below fairly arose on that evidence and was indeed, in all probability, is in accord with the facts. No fault could, therefore, be found with the appreciation of the evidence by the Courts below in revisional jurisdiction of this Court. Consequently the findings of the Courts below under Issue Nos. 1 & 13-A that deceased Ghulam Qadir died professing Sunni/Hanafi creed are maintained and upheld.
9. Now, I address the other fact in issue. This is the case in which transactions of gift incorporated in Mutations No. 3760, 3847, 3846 and 3850 were questioned by the plaintiff on the ground of fraud and misrepresentation. The Trial Court, therefore, framed Issue No. 2 i.e. whether mutations of Hibba No. 3760 (17.02.1998), 3847 (16.06.1999), 3846 (16.06.1999) and 3850 (26.08.1999) are against law and facts, null and void on rights of plaintiff Tahira Parveen? OPP; and, Issue No. 3 i.e. whether plaintiff Tahira Parveen is entitled to the decree for declaration along with consequential relief for perpetual injunction as prayed for? OPP. The onus to prove the said issues was placed upon the plaintiff. The Courts below decided these issues on the basis of provisions of law contained in Order VI Rule 4,, CPC which contemplates that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and items if necessary) shall be stated in the pleading. Applying the above said provisions of law, the Issue No. 2 was decided against the plaintiff on the ground that the plaint of the plaintiff was lacking particulars of fraud. I am afraid the Courts below while returning findings on this issue not only mis-read and non-read the contents of plaint but were also misdirected in law. The contents of plaint of the plaintiff were required to be appraised on the basis of two fundamental facts of the case, that is, firstly, that the plaintiff is real daughter of the deceased Ghulam Qadir whereas Defendant No. 1 is step brother of Ghulam Qadir; and, secondly, that initially, the suit land stood transferred through oral gift by way of two mutations i.e. Mutation No. 3760 dated 17.02.1998 and Mutation No. 3847 dated 16.06.1999 in favour of Fatima Bibi, who was mother of Ghulam Qadir and subsequently the said land stood transferred in favour of Defendant No. 1 by way of Mutation No. 3846 dated 16.06.1999 and 3850 dated 26.08.1999. The allegations of the plaintiff were that Defendant No. 1 was a cunning and sneak person; that neither there was any offer and acceptance of gift nor there was any occasion to make any gift in favour of Fatima Bibi; that her deceased father neither appeared before any revenue officer nor he thumb marked any document in this regard; that possession of the land was also not delivered to Defendant No. 1; and, that the Defendant No. 1 through fraud and in collusion with the revenue staff got transferred the suit land in his favour by way of a fake oral gift so as to deprive her of her right of inheritance. Aforestated allegations pointing fraud and misrepresentation in the sanctioning of disputed mutations as per principle settled in the case of “Mst. Kulsoom Bibi and another v. Muhammad Arif and others” (2005 SCMR 135) were sufficient to meet the requirements of Order VI Rule 4,, CPC.
10. The other ground which prevailed upon the Courts below to decide Issue No. 2 & 3 against the plaintiff was that she had failed to prove the allegation of fraud and misrepresentation. Again the approach of the Courts below to evaluate the evidence available on record was incorrect. The general rule is incumbit probation qui dicit, non qui negat i.e. the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. It is an ancient rule founded on consideration of good sense and should not be departed from without strong reasons [See Joseph Constantine Steamship Line Ltd. V. Imperial Smelting Corporation Ltd. (1941) 2 All ER 165 at 179)]. Article 117 of the Qanun-e-Shahadat, 1984 defines “burden of proof” which clearly lays down that whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the Qanun-e-Shahadat, 1984 has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged; the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until the Court arrives at such conclusion, it cannot proceed on the basis of weakness of the other party. In view of this legal position of Qanun-e-Shahadat, 1984, it is clear that there can be no dispute that a person who attacks a transaction as sham, bogus, fraudulent and fictitious must prove the same. Initial burden to prove the said negative fact would stand discharged the moment a person substantiates his allegations prima-facie by making a statement on oath and the onus would be shifted to the other side to prove that the transaction in question was bona fide and legal. In this regard reference may be made to the cases of “M. Krishnaswami Naidu v. Secretary of State represented by Collector of Tanjore and others” (A.I.R. (30) 1943 Madras 15) “Inayut Ali Shah v. Anwar Hussain” (1995 CLC 1906), “Muhammad Aslam v. Muhammd Tufail and 2 others” (1995 CLC 1061). In the case on hands, the plaintiff as her own witness appeared before the Trial Court and reiterated the allegation of fraud and misrepresentation on oath and, thus as per above stated principle of law the Defendant No. 1 was required to prove not only the validity of the disputed mutations but also to prove the bona fide and legality of transactions of gift incorporated therein. The facts of the case and principles of law applicable thereto were not properly appreciated and the Courts below misdirected themselves by misplacing the burden of proof and recording in the impugned judgment that the plaintiff had failed to prove Issue No. 2. Since the Courts below misplaced burden of proof, they clearly vitiated their own judgments. It is well established principle of the Qanun-e-Shahadat that misplacing burden of proof may vitiate judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter where the Courts below illegally and erroneously failed not to cast the burden on Defendant No. 1 by clearly misconstruing the whole case and thus resulted into recording of findings which are wholly perverse.
11. It was the case of Defendant No. 1 that firstly his step brother Ghulam Qadir during his life time gifted the suit land to his mother Fatima Bibi vide Mutation No. 3847 dated 16.06.1999 (Exh.P-3) and Mutation No. 3760 dated 17.02.1998 (Exh.P-4); and, that subsequently Fatima Bibi transferred the said land through oral gift in his favour vide Mutation No. 3846 dated 16.06.1998 (Exh.P-1) and Mutation No. 3850 dated 26.08.1999 (Exh.P-2). According to principle settled in the cases of “Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others” (2001 SCMR 1591) Mst. Kalsoom Bibi & another v. Muhammad Arif & others (2005 SCMR 135) “Aurangzeb through L.Rs and others v. Muhammad Jafar and another” (2007 SCMR 236) and “Rehmatullah and others v. Saleh Khan and others” (2007 SCMR 729), “Aurangzeb through L.Rs and others v. Muhammad Jafar and another” (2007 SCMR 236), “Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs” (2008 SCMR 855) and “Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another” (2010 SCMR 342).”Allah Ditta and others v. Manak alias Muhammad Siddique and others” (2017 SCMR 402) and “Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others” (2018 SCMR 30), the beneficiary of the transaction, that is, Defendant No. 1 was bound not only to prove the disputed mutations but also to prove the actual factum of gift by falling back on three ingredients, that is, (i) declaration of gift by the donor; (ii) acceptance of gift by the donee; and, (iii) delivery of possession of corpus. In this perspective, I have examined the evidence available on record. The Defendant No. 1 neither in his written statement stated the date, time, place and name of witnesses before whom the declaration and acceptance of gift was made nor any of the witness who appeared on behalf of the defendants made any statement that proposal and acceptance of gift was made in his presence. Failure to establish the twin requirement of gift i.e. proposal and acceptance of gift was fatal to the claim of Defendant No. 1. This aspect of the matter was not considered by either of the Courts below and thus, their findings on Issue No. 2 & 3 cannot be approved.
12. There is another aspect of the matter which has prompted me to interfere with the findings of the Courts below. The acceptance of gift was a personal act and, therefore, it was required to be proved by the donee through his own statement and attorney cannot substitute the donee under the law. In the present case Defendant No. 1 i.e. Muhammad Khan was donee of the transaction of gift as incorporated in Mutation No. 3846 dated 16.06.1999 (Exh.P-1) and Mutation No. 3850 dated 26.08.1999 (Exh.P2) and thus he was required to appear before the Trial Court as his own witness to make statement with regard to date, time, place and name of witnesses before whom he made the declaration to accept the offer of gift. Instead of appearing as his own witness, the Defendant No. 1 produced his attorney Iftikhar as DW-1. His statement as per principle settled in the cases of “Shah Nawaz and another v. Nawab Khan” (PLD 1976 Supreme Court 767) “Mst. Gumbad and others v. Member, Board of Revenue and others” (1996 SCMR 1755) “Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another” (2010 SCMR 342) was of no avail to prove the transaction of gift and thus the gift incorporated in the impugned mutations stood unproved.
13. It is settled principle of law that neither presumption of correctness nor that of truth to the contents of mutation is attached under the law. Once the existence of a transaction itself has been questioned by a party in suit, it was legal obligation of the person claiming benefit thereunder to prove the same. Most important entities in connection with the attestation of mutation were the Patwari Halqa who had to enter the mutation and the Revenue Officer who was to attest the same. The Defendant No. 1, thus, as per principle settled in the cases of “Muhammad Akram and another v. Altaf Ahmad” (PLD 2003 Supreme Court 688) “Sher Baz Khan and others v. Mst. Malkani Sahibzadi Timing and others” (PLD 2003 Supreme Court 849) was required to produce the said two persons in the witness box to prove the valid attestation of the mutations in question. The Defendant No. 1 neither produced the Patwari Halqa nor Revenue Officer who sanctioned the impugned mutations and thus the inference which may be drawn is that defendants had failed to prove the valid sanctioning of the impugned mutations.
14. The fraud and collusion alleged by the plaintiff may also be unearth from the intention and motive of Defendant No. 1. It is to be noted that Defendant No. 1 was not the legal heir of deceased Ghulam Qadir nor in the ordinary circumstances was entitled to get the suit property. Though it is not necessary for a donor to furnish reasons for making a gift yet no gift in the ordinary course of human conduct be made without reason or justification unless the donor is divested of power of reasons and logic and unless he/she is a person of unsound mind. The Hon’ble Supreme Court of Pakistan in the case of “Barkat Ali through L.Rs and others v. Muhammad Ismail through L.Rs and others” (2002 SCMR 1938) has held that in the wake of frivolous gifts generally made to deprive the females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful claimant and no course of inheritance is bye passed. In the instant case, no reason has been furnished for making gift in the impugned mutations. The attorney of Defendant No. 1, that is, Iftikhar, however, while appearing before the Trial Court as DW-1 stated that Ghulam Qadir had transferred the suit land in favour of Fatima Bibi for God’s sake (اللہ واسطے). It means that love and affection of mother was not the consideration of gift but instead the intention behind the transaction was to please God Almighty. If that was the intention of Ghulam Qadir, he could not ignore his real daughter (plaintiff) and deprive her of her share of inheritance, ordained by the Allah Almighty. Even otherwise the fraud and collusion stood established from the date itself i.e. 16.06.1999 on which date the alleged gift Mutations No. 3847 and 3846 were sanctioned. The Defendant No. 1 had neither led any evidence to establish the fact that Ghulam Qadir in his life time was aware about the transaction of gift nor explained the reasons as to why Ghulam Qadir had not made gift directly to him; and, that why, the land was firstly transferred in the name of Fatima Bibi and from her, it was gifted to him on the same date. All these facts show nothing but fraud on the part of Defendant No. 1, so as to deprive the plaintiff of her right of inheritance. Since the Defendant No. 1 had failed to justify the disinheritence of the plaintiff, the disputed gift mutations as per principle settled in the case of “Fareed and others v. Muhammad Tufail and another” (2018 SCMR 139) cannot be held valid. In view of above, findings of the Courts below in respect of Issue No. 2 & 3 are reversed and the said issues are decided in favour of the plaintiff.
15. Lastly, I would address the question of limitation which was the subject matter of Issue No. 7. It is well settled principle of law that fraud vitiates even the most solemn transaction, as such any transaction based on fraud would be void and notwithstanding the bar of limitation the matter can be considered on merit so as not to allow fraud to perpetuate. In this regard reference may be made to the case of Mst. Raj Bibi and others v.
not run against the void transaction nor efflux of time extinguishes the right of inheritance. In view of above settled principles of law, the objection of Defendant No. 1 qua limitation is repelled.
16. The other issues i.e. Issue No. 5,6,8,9 and 10 were neither pressed before the first Appellate Court nor during the course of arguments before this Court and, therefore, there is no need to dilate upon them.
17. The upshot of the above discussion is that this application in revision by setting aside the judgments and decrees of the Courts below is accepted and consequently it is declared that the Mutation No. 3847 dated 16.06.1998, Mutation No. 3760 dated 17.02.1998, Mutation No. 3846 dated 16.06.1999 and Mutation No. 3850 dated 26.08.1999 are illegal, void ab-initio and ineffective upon the rights of the plaintiff; and, that the plaintiff is entitled to get her share as per Sunni school of thought from the inheritance of the deceased Ghulam Qadir. Injunction as prayed for in the plaint is also granted and thus Defendant No. 1 is restrained to interfere in the possession of the plaintiff and also to further alienate or transfer the suit land to any other person on the basis of above said mutations. Decree in above terms be issued. No order as to costs.
(M.M.R.) Civil revision accepted
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