Mst. Tahira Samina and others vs Javed Saeed Tariq and others

JUDGM ENT

AM IN-UD-DIN KHAN, J. Through this single judgment we intend to decide CPLA No.723 of 2021 as well as CPLA No.724 of 2021 as both the petitions have been filed against the single consolidated judgment passed by the High Court.

2. Brief facts of the case are that Malik Pervaiz Saeed Tariq predecessor of the petitioners and Javed Saeed Tariq respondent No. 1 were real brothers. Predecessor of the petitioners purchased the suit house through sale deed registered on 3 June 1991 and subsequently a gift deed was got registered in favour of his younger brother/respondent on 18 July 1991. Predecessor of the petitioners will be mentioned as plaintiff whereas Javed Saeed Tariq as defendant in the instant judgment. Plaintiff filed a suit for declaration, cancellation and permanent and mandatory injunction on 12 May 2011. In the suit, it is pleaded that defendant being his younger brother, resident of United Kingdom asked him to execute registered gift deed as he requires to show some financial as well as monetary strength, therefore, gift deed of suit house was got registered. Subsequently, after 20 years of gift deed when defendant tried to get the property transferred in his name in the cantonment record on the basis of gift deed, the cause of action accrued to the plaintiff and he filed a suit for declaration and cancellation etc. on 12 May 2011. Defendant thereafter after more than one year of filing of the suit by the plaintiff filed a suit for possession of the house on 8 September 2012. Both the suits were consolidated and proceedings were held in the suit filed by the predecessor of the petitioners. Learned trial court framed the consolidated issues, recorded evidence of both the parties and vide consolidated judgment and decrees dated 30 January 2017 dismissed both the suits. Both the parties preferred their respective appeals. The learned first appellate court allowed the appeal filed by the defendants and decreed the suit of the defendants whereas appeal filed by the plaintiff-predecessor of the petitioners was dismissed vide judgment and decrees dated 13 February, 2017. The petitioners preferred two Civil Revisions. Both the revisions were dismissed. Hence, these petitions for leave to appeal.

3. After hearing the learned counsel for the petitioners, a notice was issued to the other side on 14 February 2023 and an injunctive order was also issued. We have heard the learned counsel for the parties and gone through the record of the case as well as judgments passed by the three fora below.

4. Admittedly, plaintiff and thereafter his legal heirs are in possession of the suit property. The gift deed is unilateral whereas mother of the donor and alleged donee was a witness to the said document. Defendant was admittedly not available in Pakistan at the time of preparation and registration of the said gift deed, therefore, no question of acceptance and offer of gift as well as delivery of possession in favour of donee/defendant. The mother was not produced by either of the parties. As defendant has pleaded that the suit property was purchased from the funds provided by him sent from United Kingdom in the account of the mother of the parses to the suit or the plaintiff. When questioned to the learned counsel for the defendant whether it is proved on record that the suit house was purchased with the funds provided by the defendant, learned counsel for the defendant/respondent frankly admitted that it is not available on the record through any documentary evidence though there is oral evidence available on the file. Further that how the defendant claims completion of gift when acceptance of offer of gift as well as delivery of possession is missing in this case, learned counsel could not establish both these necessary ingredients for completion of a valid gift. So far as filing of suit to challenge the gift after 20 years of registration of gift is concerned, admittedly just before filing of the suit the defendant got entered the mutation of gift in his name, on the basis of said impugned gift in the Cantonment record which gave cause of action to the plaintiff. The stance of the plaintiff in this situation is correct and covers the point of limitation when gift deed was first time used against him which gave him the cause of action. Otherwise, he and thereafter his legal heirs are in possession of the suit house till today. Even otherwise, though the gift deed is registered on but the ingredients of a valid gift mentioned in section 149 of Mahomedan Law by D.F Mulla are not fulfilled, therefore, the plaintiff who challenged the gift deed and prayed cancellation thereof was entitled to a decree. All the three fora below have not considered the legal as well as factual aspects noted supra, therefore, the findings recorded against the -plaintiff/petitioners are not sustainable under the law, same are reversed. The suit filed by the plaintiff-petitioners stands decreed. As the defendant has based his claim of possession of the suit house on the basis of gift deed which stands cancelled, therefore, the decree granted to the defendant by the learned first appellate court as well as maintained by the High Court are also not sustainable under the law. In this view of the matter, both these civil petitions are converted into appeal and allowed. Resultantly, the suit filed by the plaintiff (predecessor of the petitioners) stands decreed with no order as to costs whereas suit of the defendant stands dismissed.