MUHAMMAD AKRAM Versus MUHAMMAD ASLAM
ORDER
ABDUL WAHEED KHAN, J.--- Mst.Naazran Begum gifted 8-marlas property through registered gift deed dated 10-9-1999 in favour of her son Muhammad Akram petitioner and also 1-Marla property in favour of her daughter defendant No.3 Mst.Sakina Bibi, through a Mutation No.23248 dated 20-9-1999. Respondent No.1/plaintiff Muhammad Aslam filed a suit for declaration and permanent injunction challenging the said gifts. The suit was contested by the defendants by filing the written statement. They also filed an application under Order VII Rule 11, C.P.C. on the ground that the defendants Mst.Naazran Begum was owner of the property and she was alive, therefore, the suit was not maintainable during her life time. The application was accepted by the Civil Court through order dated 20-1-2004 with the observation that Mst.Naazran Begum was still alive and in her presence the plaintiff had no locus standi to challenge the gift deeds by filing a suit and that every Muslim who is major and sane had a right to gift his property. The respondent/plaintiff assailed the said order through an appeal and the District Judge Pakpattan through the impugned judgment dated 8-5-2004 set aside the order of the Civil Court dated 20-1-2004 and remanded the case to the Civil Court with the directions to decide the case afresh, after framing of issues and recording of evidence of the parties. Through the impugned order, the appellate court further observed that, under Order VII Rule 11, C.P.C. the plaint can be rejected on three grounds i.e. non-existence of cause of action, deficiency of Court-fee and the suit being barred by any law and also that the order passed by Civil Court was not maintainable under law. According to the District Judge, the proper course to be adopted by the Civil Court was to frame issues and decide the case on merits after recording of evidence.
2. The contentions of the counsel for the petitioner/defendant are that the gift deed could not be challenged by other than the donor during her life time and that the Civil Court has rightly rejected the plaint.
3. Conversely, the contentions of the counsel for the respondent/plaintiff are that the respondent/plaintiff Mst.Naazran Begum had no authority to deprive the respondent from her inheritance.
4. Arguments of the counsel for the parties have been heard and record perused. The admitted fact is that the respondent/plaintiff filed a suit challenging the vires of the gift deed in favour of Muhammad Akram his brother and Mst.Sakina Bibi his sister made in their favour by their mother in her life time. Law is very much clear on the point that the respondent/plaintiff had no right in the estate of his mother at the time of filing of the suit during her life, thus he had no locus standi to challenge the gift deed made by his mother on the ground of undue influence. In case reported as Muhammad Arshad and another v. Ltd. Col. S.Mazhar Hussain Shah and another (1979 CLC 699) it has been held as under:--
"It is indeed true that an heir apparent under Muslim law is possessed of a mere possibility to inherit, and he may inherit nothing if his predecessor disposes of the property. Therefore, an owner might challenge himself a gift made by him, on the ground that it had been made under coercion. If the owner does not choose to do so, his heir apparent cannot sue the donee, because the decree if passed would only benefit the owner who again would own the property and might gift it again. No benefit would accrue to the heir apparent. He does not therefore have a locus standi to institute a suit."
5. In this view of the matter, the Civil Court has rightly rejected the plaint by observing that the plaintiff had no locus standi to file the suit challenging the gift deed in favour of his brother and sister during the life time of his mother through a well-reasoned order which has illegally been set at naught by the appellate court through the impugned judgment. The appellate court fell in error while remanding the case to the Civil Court through the impugned judgment. Resultantly, this petition is allowed and the impugned judgment of the appellate court dated 8-5-2004 is set aside with no order as to cost.
H.B.T./M-301/L Petition allowed.