MUHAMMAD TUFAIL and 4 others vs AKBAR ALI and 4 others
This matter arises from a petition for leave to appeal against the judgment of the Lahore High Court, which accepted a revision petition and set aside the concurrent judgments and decrees of the two courts below that had dismissed a civil suit challenging a gift mutation. The property in dispute was originally owned by Rahim Bakhsh and inherited by his heirs according to Muslim Law. A gift mutation regarding land was executed by Mst. Maryam Bibi and her sisters in favor of their nephews. Mst. Maryam Bibi challenged the gift as fraudulent and void. The trial and appellate courts initially upheld the gift, but the High Court reversed this, drawing inferences against its validity because the elderly, illiterate Pardanashin donor had her own children and lacked independent advice from her husband or sons, and the mutation was sanctioned in a different village. The Supreme Court held that the High Court's findings were well-reasoned, based on established facts, and in accord with the law regarding property disposal by old, illiterate Pardanashin women, requiring strong proof of independent advice from close male relatives which the petitioners failed to provide. The petition was accordingly dismissed.
- Whether a gift executed by an old, illiterate Pardanashin lady requires strong proof that she had independent advice from her close relatives?
- Can a High Court in revision set aside concurrent findings of fact when the gift transaction is shrouded in suspicious circumstances and lacks proof of valid execution?
- Does the absence of male relatives' presence or advice at the time of sanctioning a gift mutation by an elderly female donor affect the validity of the gift?
' MUNIR A. SHEIKH, J.---The petitioners seek leave to appeal against the judgment of a learned Judge in Chambers of the Lahore High Court, Lahore, dated 29-6-1999, whereby revision petition filed by the respondents has been accepted and the judgments and decrees of the two Courts below have been set aside.
2. The property in dispute was admittedly owned by Rahim Bakhsh the predecessor-in-interest of the parties which was inherited by them according to Muslim Law. No mutation of inheritance was sanctioned for about 6 years after the death of said Rahim Bakhsh, the original owner. Two mutations were sanctioned simultaneously i.e, Mutation No,2729 of inheritance and Mutation No,2733 of gift through which land measuring 69 Kanals was gifted by Muhammad Din and his three sisters namely Mst. Maryam Bibi, Mst. Fatima Bibi and Mst. Zainab Bibi to Tufail and Talib sons of Muhammad Din.
3. Mst. Maryam Bibi deceased, the predecessor-in-interest of the respondents filed a civil suit challenging the legality of the gift on the ground that she never made the gift of her share in the land to the sons of her brother and the gift' mutation was the result of fraud and misrepresentation.
The trial Court after considering the evidence of Haji Khan, Lambardar D.W.3, Taj Din, husband of one of the sisters of Mst. Maryam Bibi D.W.4 and Muhammad Din D.W.5, the father of the respondents, came to the conclusion that the factum of valid gift had been proved, therefore, the suit was dismissed through its judgment, dated 16-9-1984.
4. Appeal filed by Mst. Maryam Bibi, deceased before the First Appellate Court was also dismissed through judgment, dated 17-5-1987 against which revision, petition filed by her has been accepted through the impugned judgment and the gift of the share in the land of Mst. Maryam Bibi has been declared to be not valid. It may be mentioned here that Mst. Maryam Bibi died during pendency of the revision petition.
5. The learned Judge in Chambers of the High Court observed that Mst. Maryam Bibi had her own sons and daughters and there was no reason whatsoever brought on record as to why and under what circumstances she was compelled to make gift in favour of the petitioners, her nephews.
Learned counsel argued that for making a valid gift no consideration whatsoever was necessary as held by the learned Judge in Chambers of the High Court as the gift can be made for love and affection.
6. The learned Judge of the High Court has raised an inference against the factum of gift on the grounds:---
(a) Mst, Maryam Bibi had her own sons and daughters and there was no reason as to why in presence of them she would gift the land to her nephews.
(b) It was not established on record that she while making gift had the advice of her husband.
7. Learned counsel for the petitioners submitted that Muhammad Din D.W.5 stated in the evidence that at the time of sanctioning the mutation the sons and husband of Mst. Maryam Bibi were present.
8. From the proceedings of the mutation and other evidence brought on record it is not made out that any one of them was present and mere bald statement of Muhammad Din was not sufficient to prove that they were present at the time of sanction of the mutation.
9. It is also worth-mentioning that the mutation of gift was sanctioned in another village and not the village where the property was situated. In her statement Mst. Maryam Bibi deposed that she was about 80 years old, as such, she must be about 75 years old when the alleged mutation was sanctioned.
10. We have also noticed that Mst. Zainab Bibi the other donor i.e, the sister of Mst. Maryam Bibi had a daughter who was married to petitioner No,1, the donee. It was also stated that Mst. Zainab Bibi had no male issue, therefore, she had reason to make the gift to her nephew who is also her son- in-law. The findings recorded by the High Court E based on inferences drawn by it from the fact, established and do not suffer from any illegality which are in accord with the law laid down by the superior Courts in respect of the disposal of property by an old illiterate Pardanashin lady. It has been consistently held that strong proof should be given that she had the advice of her relatives in suchlike cases such as husband and sons but' the petitioners had failed toprove the same.
For the foregoing reasons the impugned judgment does not suffer from any illegality, therefore, finding no merit, in this petition it is hereby dismissed and .
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