2024 S C M R 24
Mst.TAHIRA SAMINA and others versus JAVED SAEED TARIQ and others ---
Civil Petitions Nos .723 and 724 of 2021
Gift deed --- Suit for declaration , cancellation and permanent and mandatory injunction challenging the gift deed --- Limitation --- Cause of action ,years accrual of --- Plaintiff filed his suit to challenge the gift deed 20 after its registration --- Admittedly just before filing of the suit the defendant got entered the mutation of gift in his name , on the basis of said impugned gift in the Cantonment record which gave cause of action to the plaintiff --- Stance of the plaintiff in this situation is correct and covered the point of limitation when gift deed was first time used against him which gave him the cause of action.
Gift --- Pre - requisites not established --- Suit for declaration , cancellation and permanent and mandatory injunction challenging the gift deed --- Plaintiff filed a suit for declaration , cancellation and permanent and mandatory injunction pleading that the defendant being his younger brother , was resident of United Kingdom and asked him to execute registered gift deed of the subject as he was required to show some financial as well as monetary strength , therefore , gift deed of house was got registered --- Subsequently , after 20 years of gift deed when defendant tried to get the property transferred in his name in the Cantonment record on the basis of gift deed , he filed the suit --- Defendant thereafter after more than one year of filing of the plaintiff's suit filed his own suit for possession of the house --- First Appellate Court decreed the suit for possession filed by the defendant , which decree was maintained by the High Court --- Validity --- Admittedly , plaintiff and thereafter his legal heirs were in possession of the suit property till date --- Gift deed was unilateral whereas mother . of the donor ( plaintiff ) and alleged donee ( defendant ) was a witness to the said document --- Defendant was admittedly not available in Pakistan at the time of preparation and registration of the said gift deed , therefore , no question of acceptance and offer of gift as well as delivery of possession in favour of donee / defendant arose --- Mother was not produced by either of the parties --- Defendant pleaded that the suit property was purchased from the funds provided by him sent from United Kingdom in the account of the mother of the parties , however there was no documentary proof available on record to such effect --- Though the gift deed was a registered one but the ingredients of a valid gift mentioned in section 149 of Mahomedan Law by D.F Mulla were not fulfilled , therefore , the plaintiff who challenged the gift deed and prayed for cancellation thereof was entitled to a decree --- Petitions for leave to appeal were converted into appeals and allowed , suit filed by plaintiff was decreed ; the gift deed stood cancelled , therefore , the decree granted to the defendant by the first appellate court and maintained by the High Court was not sustainable under the law
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