2022 S C M R 64
[Supreme Court of Pakistan]
Present: Qazi Faez Isa and Yahya Afridi, JJ
Mst. PARVEEN (DECEASED) through LRs.---Petitioners
Versus
MUHAMMAD PERVAIZ and others---Respondents
Civil Petition No. 4349 of 2018 and C.M.A. No.10079 of 2018, decided on 4th November, 2021.
(On appeal against the judgment dated 13.09.2018 passed by the Lahore High Court, Lahore, in C. R. No. 1724 of 2016)
(a) Supreme Court Rules, 1980---
----O. XII, R. 1 & O. XIII, R. 1---Constitution of Pakistan, Arts. 184(2)(d) & 185(3)---Suit for cancellation of a gift deed---Gift deed not mentioning any value therein---Where High Court had over turned the judgment in appeal and consequently dismissed the suit, whether the petitioners (plaintiffs) should have filed an appeal under Art. 185(2)(d) of the Constitution or a petition for leave to appeal under Article 185(3) of the Constitution---Held, that the plaint, which sought the cancellation of the gift mutation, it was stated that the suit was valued at two hundred rupees for the purposes of court fee---No specific mention of valuation was made therein in terms of the Suits Valuation Act, 1887---Gift mutation did not mention any amount or value, therefore, the plaintiffs were entitled to value the suit as they deemed appropriate and they valued it at two hundred rupees for purposes of court fee and three courts (below) accepted this --- In such circumstances a petition under Art. 185(3) of the Constitution had to be filed; Art. 185(2)(d) of the Constitution, which was in respect of appeals, was not applicable---Petition for leave to appeal was converted into appeal and allowed.
Gul Jan v. Naik Muhammad PLD 2012 SC 421; Muhammad Inayat v. Fateh Muhammad 2003 SCMR 875; Zafar Iqbal Hameed Khan v. Ashiq Hussain 2005 SCMR 1371; Taza Gul v. Fazal Subhan 2006 SCMR 504; Muhammad Nawaz v. Sardara 2008 SCMR 1593 and Mahmood Hussain Larik v. Muslim Commercial Bank Ltd. 2009 SCMR 857 distinguished.
(b) Supreme Court Rules, 1980---
----O. XII, R. 1 & O. XIII, R. 1---Constitution of Pakistan, Arts. 185(2) & 185(3)---'Appeal to Supreme Court' and 'Petition for leave to appeal before the Supreme Court'---Limitation period for filing---Discrepancy---Supreme Court Rules, 1980 ('the Rules') prescribed 30 days period for filing of an appeal under Art. 185(2), whereas a period of 60 days was provided for a petition for leave to appeal in terms of Art. 185(3) of the Constitution---Supreme Court observed that the Rules prescribed double the period for the filing of a petition to that for filing an appeal which was surprising because an appeal was filed as of right; that to attend to such discrepancy it may be appropriate to amend the Rules; that one simple way of doing this, without adversely affecting the accrued rights of any party, could be by amending O. XII, R. 1 of the Rules by substituting the stated period of 30 days mentioned therein for filing an appeal and bring it at par with the period in which a petition may be filed, that is, 60 days---Supreme Court directed the Registrar to bring the said issue to the attention of the Chief Justice who may place it for consideration in the next Full-Court meeting.
(c) Islamic law---
----Inheritance---Legal heir relying on a gift deed to exclude other heirs from their share in the inheritance---Proof---On the death of a Muslim his/her property devolved upon his/her legal heirs---However, if any heir sought to exclude the other legal heirs, by relying on a purported gift the beneficiary of such gift must prove it.
(d) Punjab Land Revenue Act (XVII of 1967)---
----S. 42(7)---Gift---Proof---Male heirs (brothers) resorting to a purported gift deed to deprive female heirs (sisters) from their share of inheritance---Held, that in the present case the gift was stated to have been witnessed by three persons, and even if it be accepted that two of the said witnesses had died by the time the evidence was recorded, the third witness, was alive but he was not brought to testify as a witness in support of the gift, therefore, an adverse presumption may be drawn that if he did come to testify he would not have supported the gift---Furthermore only one of the two donees (sons) testified in support of the gift and the other donee, did not do so nor did he execute a power of attorney in favour of his brother, authorizing him to give evidence on his behalf---Purported donor of the gift was also not identified as required by S. 42(7) of the Punjab Land Revenue Act, 1967, therefore, it could not be said that the person who was presented before the Revenue authorities was the donor---Purported gift also suffered from the defect of non-acceptance by donees and the further defect of not mentioning that the possession of the land allegedly gifted was handed over to the donees---Resultantly, gift mutation in favour of the brothers, was set aside and declared to be of no legal effect---Supreme Court directed that the estate in question shall be distributed amongst all the legal heirs in accordance with the applicable Muslim laws of inheritance; that the concerned Revenue authority shall incorporate the names of the legal heirs in the revenue record and if the brothers had sold/transferred any portion of the land to any third party the sisters' shares shall be adjusted from their brothers' available shares.
(e) Islamic law---
----Inheritance---Frequent practice of male heirs resorting to fraud and other tactics to deprive female heirs from their share of inheritance---Supreme Court observed that while such deprivation caused suffering to those deprived, it also unnecessarily taxed the judicial system of the country, resulting in a needless waste of resources; that each and every day that a male heir deprived a female heir was also an abomination because it contravened what has been ordained by Almighty Allah.
Munawar Iqbal Duggal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.
Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Respondents.
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