ZAFAR MUHAMMAD vs Mst. ANWAR BIBI
This petition challenged a judgment of the Lahore High Court which affirmed the decision of the First Appellate Court in a property dispute. The respondent, Mst. Anwar Bibi, filed a suit claiming ownership of 1/3rd of the suit-land, alleging that her husband, the petitioner, had fabricated a Hiba Nama (gift deed) to transfer her land to himself through fraud and misrepresentation. The Trial Court initially dismissed the suit, but the First Appellate Court reversed this, finding the gift invalid due to the absence of proof regarding the delivery of possession, the offer, and the acceptance of the gift. Additionally, the identification of the donor during the mutation process was found to be suspicious. The High Court upheld this reversal, finding no illegality or misappreciation of evidence. The Supreme Court, upon review, held that the petitioner failed to prove the essential elements of a valid gift and failed to demonstrate any legal error in the lower courts' concurrent findings. Consequently, the petition was dismissed, affirming the respondent's ownership rights.
- What are the essential elements required to prove a valid Hiba (gift) of land?
- Can a mutation based on a disputed gift be upheld if the donor's identification is proven to be doubtful?
- Does the failure to prove the delivery of possession invalidate an alleged gift of land?
ORDER
' KHALIL-UR-REHMAN RAMDAY, J.---This petition is directed against,a judgment dated 29-3-2000 passed by the Lahore High Court in Regular Second Appeal No,123 of 1985 whereby the judgment of the First Appellate Court dated 30-9-1985 which had set aside the dismissal of the suit filed by Mst.
Anwar Bibi respondent and had resultantly decreed her suit, had been affirmed.
2. Mst. Anwar Bibi respondent had filed a suit in the Court of a learned Civil Judge at Boorey Wala stating therein that she was owner, to the extent of 1/3rd, of the suit-land; that she was the wife of Zafar petitioner who had abandoned her about five years prior to the filing of the suit and had contracted second marriage with one Mst. Amiran and that the petitioner-defendant had manoeuvred a false and fabricated Hiba Nama allegedly gifting the suit-land in favour of the said defendant and it had consequently been prayed that a decree be passed in favour of the plaintiff- respondent that she was the owner of the suit-land and that the mutation in question transferring the plaintiff-respondent's land in favour of the petitioner-defendant was based on fraud and misrepresentation and was thus ineffective against her rights. Through his judgment dated 3-2- 1985, the learned Trial Judge dismissed the said suit but on an appeal filed by the plaintiff, which was allowed by a learned Additional District Judge at Vehari vide judgment and decree dated 30- 9-1985, the judgment and decree of the learned Trial Judge was set aside and the plaintiff's suit was decreed. Zafar defendant-petitioner then approached the Lahore High Court with the above- mentioned second appeal which was dismissed by the Honourable Lahore High Court through its judgment which is now being impugned before us.
3. We have heard the learned counsel for the petitioner and have also examined the available record.
4. It had been found by the learned First Appellate Court that the defendant could not establish delivery of possession in pursuance of the alleged gift and that the alleged donee had also not been able to prove the factum of offer by the donor transferring the suit-land by way of gift and its acceptance by the alleged donee and that in the circumstances it could not be held that a valid gift of the suit-land had been made by the plaintiff in favour of the defendant. The learned First Appellate Court had also found that the alleged identification of the plaintiff at the time of the entering and the attestation of the mutation in question was also a doubtful affair as the Lamberdar who had allegedly identified her at the said occasion did not belong to the same locality where the plaintiff was residing. The said learned Court had also noticed deficiencies in the testimony of Sikander (D.W.2) and having thus considered all aspects of the matter, had found that Zafar defendant had failed to prove Issue No,5 which was the crucial issue of the case.
5. The learned Single Judge in the High Court was of the opinion that the defendant-appellant had not been able to show that the judgment of the learned First Appellate Court suffered from any illegality or from any misreading or misappreciation of the evidence available on record. Even before us, the learned counsel for the petitioner could not point out any illegality or misreading/non-reading of any evidence.
6. In this view of the matter, we find no merit in this petition which is accordingly dismissed. .