It is also settled principle of law that when the donor deposed on oath that he/she did not appear before the revenue officer for attestation of mutation and gift was not made by him/her,...

2023 CLC 1217

It is also settled principle of law that when the donor deposed on oath that he/she did not appear before the revenue officer for attestation of mutation and gift was not made by him/her, onus would shift upon the beneficiar y to prove attestation of mutation as well as transaction reflects therein.

Pre-dominant conditions regarding transactions with the Pardanasheen ladies.

In order to constitute a valid gift under law, there must be pivotal requirement, which is the mark-able delivery of possession by the donor and taking of the possession by the donee. This requirement is so critical that gift is said to only take effect from the date on which the requisite possession of the property is delivered to the donee; not from the date on which the declaration was actually made. Delivery of possession hence become concomitant of the gift and so serious that without delivery of possession to the donee, the gift is held void even if it was made through a registered document. In “Principles of Mohammadan Law”, a famous book by D.F. Mulla, the principle of delivery of possession is described in Para No.150 and Para No.152 .

It is well settled principle of law that fraud vitiates even the most solemn transaction. Any transaction based on fraud would be void. Limitation does not run against void transaction. Mere efflux of time did not extinguish the right of any party. Notwithstanding the bar of limitation the matter can be considered on merit so as not to allow fraud to perpetuate.

Article 80 of Qanoon-e-Shahadat Order, 1984, provides the procedure how to prove when no attesting witness is found. It is obligatory upon the petitioner to prove this fact that his witnesses had been died or cannot be traced out. 

In case of oral gift, the onus is always on the donee to prove through cogent and concrete evidence that the donor made gift to him voluntarily, without duress and with all senses; that he accepted the same, and that the possession was delivered to him towards completion of that transaction. If any of the ingredient/component is missing, the claim of the donor would be rejected outrightly.

If Statute governing proceedings does not prescribe period of limitation then proceedings instituted there under would be governed by Limitation Act, 1908 but where law under which proceedings have been instituted prescribes period of limitation then benefit of section 5 of the said Act cannot be availed unless the same had been made applicable as per section 29(2) of the Limitation At, 1908.

It is well established by now that in a case where certain objections are raised by the office it should be held to be time barred unless objections/deficiency, pointed out by the office are made good or removed within time specified by the office. If the objections are not removed within the given period and in the meanwhile the limitation expires, the petition would become barred by time.

The limitation is not a mere technicality and once it expires, the right accrued in favour of the other side by operation of law cannot lightely be taken away.