PLJ 2023 Peshawar 114
Present: Syed Arshad Ali, J.
RAHMAN GHANI--Petitioner
versus
YAQOOB KHAN and 17 others--Respondents
C.R. No. 48-P of 2018, decided on 7.12.2022.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revision Petition--Gift mutation--Illiterate lady--DW-2 was not said about mode and manner of gift mutation--Gift mutation was beard thumb-impression of doner in presence of local commission--Local Commission was not produced in trial Court--Doner was never appeared before revenue officer in support of alleged gift--Vacitating and wavering statement--Untrue witness--Validity of gift--Haste exhibited in attestation of mutation--Fraudulent and indecent transaction--Question of whether suit of plaintiff was within time--Suit was decreed--Appeal--Accepted--Challenge to--Burden of prove--Doner admittedly had never appeared before revenue officer as her alleged statement in support of gift was recorded by local commission but he had never been produced before Court-- DW-1 appeared before Court, he too could not say before Court that her aunt donor had gifted property to them--Vacillating and wavering statement of Ali Haider was not inspire confidence as on one hand he is defending his own property which he probably illegally occupies belonging to defendants and on other hand he is also protecting interest of his son--Thus, he has rendered himself as untrue witness, his testimony is of no consequence--Not only defendants who are beneficiary of gift mutation have failed to establish gift; but such like gifts were disapproved by Apex Court--It is explanation of plaintiff that he did not know about any such mutation and at one point of time when he had to get copy of revenue record, disputed mutation came to his notice--It was burden of defendants to have establish that disputed gift mutation was in knowledge of donor and he had waived up her right during her lifetime--Haste exhibited in attestation of mutation that was attested but on same day a commission was appointed who recorded alleged statement of donor clearly shows that it was a fraudulent and indecent transaction--Revision petition allowed. [Pp. 119 & 120] C, D, E, F, G, H & I
2020 SCMR 352, 2019 SCMR 1930, 2017 SCMR 1476 &
PLD 1990 SC 1 ref.
Volunteer Transaction--
----The transfer of property through gift which too from an illiterate lady is well settled that it is beneficiary of gift to proof before Court that it was a volunteer transaction, essential ingredient i.e. offer to transfer property as a gift to donee and donee had accepted said offer and has also received possession of property. [P. 117] A
Ref. 2018 SCMR 30, 2016 SCMR 862.
Mutation--
----Mutation is not a proof of title and a beneficiary thereunder must prove original transaction upon which mutation is based.
[P. 117] B
1992 SCMR 1832, 2008 SCMR 855, & 2016 SCMR 1417 ref.,
2021 SCMR 73.
Mr. Zia-ur-Rehman, Advocate for Petitioner.
Mr. Inayat-ur-Rehman, Advocate for Respondents.
Dates of hearing: 7.12.2022.
Judgment
Haji Noor Ahmad Shah was survived by a son Dheran Shah and a daughter Mst. Khanam Jan. On 25.11.1996, his inheritance Mutation No. 187 was attested in favour of Dheran Shah and Mst. Khanam Jan. On the said date i.e. 25.11.1996; the disputed Mutation No. 189 was also attested whereby; Mst. Khanam Jan had allegedly gifted her share in the legacy of Haji Noor Ahmad Shah in favour of the children of Dheran Shah.
2. The perusal of this mutation would show that one Jalal Khan who was appointed as a local commission to record the statement of Mst. Khanam Jan which was recorded and according to which, she had gifted the suit property in favour of the legal heirs of Dheran Shah; the defendants. This mutation carries the thumb impression of Khanam Jan, Abdul Khaliq Lumberdar and Ali Haider the husband of Khanam Jan. Dheran Shah died somewhere in 1996 and accordingly his inheritance Mutation No. 188 was attested on 28.11.1996.
3. Mst. Khanum Jan died somewhere in 2006. She was survived by Rahman Ghani the plaintiff and her husband who are her legal heirs.
4. On 18.02.2013, Rahman Ghani the only son of Mst. Khanam Jan had challenged the disputed gift Mutation No. 189 dated 25.11.1995 mainly on the ground that her mother had never gifted the property to children of Dheran Shah and thus entries in the revenue record are illegal. The legal heirs of Dheran Shah contested the suit on various legal and factual grounds including the issue of limitation and waiver.
5. The disputed Mutation No. 189 dated 25.11.1996 was produced by AOK, Katlang District Mardan who appeared before the Court as PW-1(A) whereas, the revenue record was produced by the Patwari Halqa Amir Muhammad who appeared before the Court as PW-1. According to the revenue record, the legal heirs of Dheran Shah are in continuous possession of the suit property. The plaintiff in support of his claim himself appeared before the Court as PW-3.
6. Muhammad Ghani one of the legal heir and attorney of Dheran Shah appeared before the Court as DW-1. He in his examination-in-chief has supported the said mutation, however, he could not narrate the fact that when and in whose presence the disputed property was gifted to him and his siblings. Even he has not stated that the disputed property was offered to them by their aunt as a gift and they had accepted the same.
Abdul Khaliq who is also a witness of the mutation appeared before the Court as DW-2. He states that he is a witness to the disputed mutation which bears the thumb impression of Mst. Khanam Jan/doner and her husband Ali Haider. This witness too does not say about the mode and manner of the alleged gift through which the disputed property was gifted to the defendants, legal heirs of Dheran Shah. The defendants had also produced Ali Haider the husband of Mst. Khanam Jan and father of the plaintiff in their defense but their testimony went against them, therefore, he was declared hostile. His cross-examination would reflect that both the parties are closely related to each other. Mst. Khanam Jan who was sister of Dheran Shah was married to Ali Haider whereas, her own sister was married to Dheran Shah and thus the defendants are his nephews whereas, the plaintiff is his son. This witness also admits that defendants have never claimed their share in the property of their mother which is in his possession.
7. The learned trial Court through its judgment dated 29.07.2015 has held that since the essential ingredients of gift could not be established, therefore, the suit was decreed, whereas, the learned appeal Court keeping in view the issue of limitation and waiver which was decided against the plaintiff has allowed the appeal and dismissed the suit.
8. In the present case, two crucial issues are involved for determination of this Court; firstly, the validity of the disputed mutation and secondly, whether the suit of the plaintiff Rahman Ghani was within time. Regarding the transfer of property through gift which too from an illiterate lady is well settled that it is the beneficiary of the gift to proof before the Court that it was a volunteer transaction, the essential ingredient i.e. offer to transfer the property as a gift to the donee and the donee had accepted the said offer and has also received the possession of the property. “Mrs. Khalida Azhar vs. Viqar Rustam Bakhshi and others (2018 SCMR 30), Ghulam Farid and another vs. Sher Rehman through LRs (2016 SCMR 862).”
9. Similarly, it is also established law that mutation is not a proof of title and a beneficiary thereunder must prove the original transaction upon which the mutation is based. “Hakim Khan vs. Nazeer Ahmad (1992 SCMR 1832), Muhammad Iqbal vs. Mukhtar Ahmad (2008 SCMR 855), Peer Bakhsh through LRs and others vs. Mst. Khanzadi and others (2016 SCMR 1417).”
10. However, the most crucial aspect of the case is when the matter relates to legacy of a female and in any legal proceedings, the male member of the family most particularly brother and other near relativeclaim that the said female had gifted the said property to them without any consideration, this claim has never been approved by our Supreme Court as a valid transaction. In this regard, I would like to seek guidance from the judgment of Apex Court in the case of “Atta Muhammad and others vs. Mst. Munir Sultan (Deceased) through her legal heirs and others (2021 SCMR 73)” the relevant para is reproduced as under:
9. The revenue authorities must also be extra vigilant when purported gifts are made to deprive daughters and widows from what would have constituted their shares in the inheritance of an estate. The concerned officers must fully satisfy themselves as to the identity of the purported donor/transferee and strict compliance must be ensured with the applicable laws, as repeatedly held by this Court, including in the cases of Islam-ud-Din v. Noor Jahan (2016 SCMR 986) and Khalida Azhar v. Viqar Rustan Bakhshi (2018 SCMR 30). Purported gifts and other tools used to deprive female family members, including daughters and widows, are contrary to law (shariah in such cases), the Constitution and public policy. In Abid Baig v. Zahid Sabir (2020 SCMR 601) this Court reiterated what it had held thirty years earlier in the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1), as under:
11. We cannot be unmindful of the fact that often times male members of a family deprive their female relatives of their legal entitlement to inheritance and in doing so shariah and law is violated. Vulnerable women are also sometimes compelled to relinquish their entitlement to inheritance in favour of their male relations. This Court in the case of Ghulam Ali8 had observed that relinquishment’ by female members of the family was contrary to public policy and contrary to shariah. It would be useful to reproduce the following portion from the decision of this Court:
“Here in the light of the foregoing discussion on the Islamic point of view, the so-called “relinquishment” by a female of her inheritance as has taken place in this case, is undoubtedly opposed to “public policy” as understood in the Islamic sense with reference to Islamic jurisprudence. In addition it may be mentioned that Islam visualised many modes of circulation of wealth of certain types under certain strict conditions. And when commenting on one of the many methods of achieving this object, almost all commentators on Islamic System agree with variance of degree only, that the strict enforcement of laws of inheritance is an important accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy.
In other words, the disputed relinquishment of right of inheritance, relied upon from the petitioner’s side, even if proved against respondent, has to be found against public policy. Accordingly the respondent’s action in agreeing to the relinquishment (though denied by her) being against public policy the very act of agreement and contract constituting the relinquishment, was void.”
11. Let us now proceed with the present case on the touchstone of law laid down by the Apex Court as stated above. It is the case of the defendants that the suit property was gifted to them. The only witness to the said mutation Abdul Khaliq though appeared before the Court and it is his testimony that the said mutation contains the thumb impression of donor but this witness has never stated that in what manner and in whose presence Mst. Khanam Jan had gifted the property to her nephews. Mst. Khanam Jan admittedly had never appeared before the revenue officer as her alleged statement in support of the gift was recorded by one Jalal Khan who was appointed as local commission but the said Jalal Khan had never been produced before the Court. Similarly, when the only beneficiary of the alleged gift; the defendants DW-1 Muhammad Ghani appeared before the Court, he too could not say before the Court that her aunt Mst. Khanam Jan had gifted the property to them, he only supports the attestation of mutation which was a subsequent event only for the purpose of changes in the revenue record. As far as the vacillating and wavering statement of Ali Haider is concerned, the same does not inspire confidence as on one hand he is defending his own property which he probably illegally occupies belonging to the defendants and on the other hand he is also protecting the interest of his son. Thus, he has rendered himself as untrue witness, hence, his testimony is of no consequence.
12. In view of the above, not only the defendants who are the beneficiary of the gift mutation have failed to establish the gift; but such like gifts were disapproved by the Apex Court as held in the case of Atta Muhammad (Supra).
13. Moving on to the issue of limitation. Admittedly, the mutation was attested on 25.11.1996 and Mst. Khanam Jan had died in the year, 2006 and the suit was filed in the year 2013, however, in this regard it is the explanation of the plaintiff that he did not know about any such mutation and at one point of time when he had to get copy of the revenue record, the disputed mutation came to his notice.
14. In our society normally when the brother is in possession of the property, his sisters do not demand their share, however, this would not mean that his sisters had transferred the property to the brothers. Thus, it was the burden of defendants to have establish that the disputed gift mutation was in the knowledge of Mst. Khanam Jan and he had waived up her right during her lifetime.
15. Even otherwise, the haste exhibited in the attestation of mutation that is to say when on 25.11.1996 not only the inheritance mutation of Haji Noor Ahmad Shah was attested but on the same day a commission was appointed who recorded the alleged statement of Mst. Khanam Jan and then on the same day the mutation was attested; clearly shows that it was a fraudulent and indecent transaction. Thus, in my humble view, the limitation does not run against such kind of transaction. “Shabla and others vs. Ms. Jahan Afroz Khilat and others (2020 SCMR 352), Fazal Ellahi deceased through legal heirs vs. Mst. Zainab Bibi (2019 SCMR 1930), Khan Muhammad through LRs and others vs. Mst. Khatoon Bibi and others (2017 SCMR 1476), Mahmood Khan vs. Syed Khalid Hussain Shah (2015 SCMR 869), Mst. Gohar Khanum vs. Mst. Jamila Jan (2014 SCMR 801), Rehmat Ullah and others vs. Salem Khan and others (2007 SCMR 729), Arshad Khan vs. Resham Jan and others (2005 SCMR 1859) and Ghulam Ali and others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).”
16. In view of the above this petition is allowed. The impugned judgment and decree of the learned appeal Court dated 12.12.2017 is set aside and as a consequence thereof the impugned judgment and decree of the learned trial Court is restored and the suit of the plaintiff stands decreed.
(Y.A.) Petition allowed
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