KHADIM HUSSAIN vs Mst. MANSAB MAI and otherss
This matter originated as a civil suit filed by Mst. Mansab Mai seeking a declaration that she was the daughter and legal heir of Hussain Bakhsh, and challenging the validity of Mutation No. 1151, which recorded an oral gift of land in favor of the petitioner, Khadim Hussain. The core legal question was whether the petitioner had successfully established the validity of the alleged oral gift, particularly given that the mutation was sanctioned after the donor's death. The trial court decreed the suit in favor of the respondent, a decision affirmed by the appellate court and subsequently by the High Court in civil revision. The Supreme Court dismissed the petition for leave to appeal, holding that the concurrent findings of the lower courts were sound. The Court affirmed that a beneficiary of an oral gift bears a heavy burden of proof to establish the gift's validity. Crucially, the Court noted that the petitioner failed to prove possession of the land or the factum of the gift, and the documentary evidence revealed the donor's thumb impressions were affixed after his death.
- Does the beneficiary of an oral gift bear the burden of proving the validity of the gift?
- Can a mutation sanctioned after the death of the donor be considered valid if the factum of the gift is not established?
- Are concurrent findings of fact by lower courts subject to interference in a petition for leave to appeal?
' KHALIL-UR-REHMAN RAMDAY, J.--- Mst. Mansab Mai respondent filed a suit in the Court of a learned Civil Judge at Ali Pur in March, 1992 seeking a declaration that she was a daughter and thus an heir of Hussain Bakhsh and that Mutation No,1151 sanctioned on 31-12-1991 on the strength of a gift allegedly made by her father Hussain Bakhsh in favor of Khadim Hussain defendant-petitioner was illegal, fraudulent and consequently ineffective against her rights. The said suit was decreed by the learned trial Judge through a judgment, dated 27-11-2001. An appeal filed against the said judgment by Khadim Hussain petitioner was dismissed affirming the findings and conclusions reached by the learned trial Judge. Both these judgments were then questioned by Khadim Hussain petitioner before the Multan Bench of Lahore High Court through Civil Revision No,190/D of 2002 which petition was dismissed in limine through order, dated 7-3-2002.
2. Hence this petition.
3. In affirming the concurrent findings of the two subordinate Courts, the learned High Court had found that the petitioner-defendant being the beneficiary of an oral gift allegedly made in his favor carried a heavy burden to prove a valid gift allegedly made by the donor. The mutation in question had been admittedly sanctioned after the death of the alleged donor. The case of the defendant- petitioner, however, was that the said gift had, in fact, been made to him about three years prior to the death of donor but it was found by all the learned Courts that he could neither prove his possession of the land in question under the said gift nor he could establish the factum of gift having been made in his favor. Besides examining the oral as well as documentary evidence produced by the petitioner defendant, it had also been noticed by the learned Courts that the alleged thumb-impressions of the donor on the statement made by him which appeared on the mutation did not appear under the order of the Assistant Commissioner, dated 18-12-1991 when the alleged donor had made the statement in question but appeared under the orders, dated 31-12- 1991 when the alleged donor was not in this world any more.
4. Having heard the learned counsel for the petitioner at some length, we find that no exception could be taken to the consistent findings of the three learned Courts.
5. This petition is, therefore, without merit and the same is accordingly dismissed. Leave refused.