FAREED and others vs MUHAMMAD TUFAIL and another

ORDER

UMAR ATA BANDIAL, J.---The respondent Muhammad Tufail filed a suit for being wrongly disinherited from his share in the legacy of Gomaan vide a mutation of Tamleek No, 749 dated 21.3.1985 incorporated in pursuance of registered Tamleek deed dated 17.3.1985 (Exh.P-7). The impugned judgment-dated 27.4.2009 by the learned High Court has set aside the result rendered by the learned Appellate Court and restored the judgment of the learned Trial Court dated 29.6.1993 to decree the respondent's suit. Consequently, the entitlement of respondent- Muhammad Tufail as heir in the legacy of deceased Gomaan stands affirmed by rejecting the registered Tamleeknama and the consequential mutation mentioned above.

2. The principal issue, whether the respondent-plaintiff Muhammad Tufail could claim as a legal heir of Gomaan, is settled by a concurrent finding of fact given by three learned Courts below. In the light thereof the rule laid down by this Court in Kulsoom Bibi v. Muhammad Arif (2005 SCM R 135) and Ghulam Haider v. Ghulam Rasool (2003 SCM R 1829) that a donee claiming under a gift that excludes an heir, is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed. In the present case there is no evidence of declaration of gift or of its acceptance on record. The mere transfer of possession to a donee is not sufficient to constitute a valid gift under the law. Furthermore, in the judgment of this Court reported as Barkat Ali v. Muhammad Ismail (2002 SCM R 1938) a gift deed as in the present case must justify the disinheritance of an heir from the gift. This is also lacking in the present gift deed which has not been proven satisfactorily as Ijaz Ahmed Khan, Advocate who identified Gomaan before the sub-Registrar was not produced before the learned Trial Court nor was the sub-Registrar or the scribe of the documents.

3. In the circumstances, we consider that the learned High Court has rightly rejected the registered gift-deed. Since the impugned mutation is merely a consequential act, the same also lacks legal validity. This appeal is accordingly fails and the same is therefore dismissed.