Muhammad riaz Versus Mst. Najma Bibi
Rasaal Hasan Syed, J .--- This civil revision is directed against judgment and decree dated 21.11.2022 of learned Addl. District Judge, Sargodha in terms whereof appeal of respondent No.1/plaintiff was allowed, judgment and decree dated 16.6.2022 of learned Civil Judge, Sargodha was set aside and suit of respondent was decreed.
2. Facts of the case are that respondent No.1 instituted a suit for declaration with consequential relief asserting therein that the petitioner and respondent No.1 are real brother and sister; that their father Muhammad Bashir was owner of suit land which devolved in inheritance upon both of them; that petitioner had been paying her share in produce after the passing of their father and that a year prior to the filing of suit she proposed partition of the inherited property which the petitioner avoided and that on inquiry it transpired from the patwari that her brother Muhammad Riaz had fraudulently got attested a mutation of oral gift of the entire property in his own favour on 27.2.2009 as mutation No.1009. It was her case that no oral gift was ever made in favour of the petitioner and that the mutation of gift was entered and attested fraudulently in collusion with revenue officials and that her father died at an old age who on account of poor health in advanced years was unable to take any decision and that she had no notice or knowledge about the alleged gift, no declaration, acceptance and transfer of possession under any oral gift was ever made by the deceased and, in this backdrop, she claimed a declaration for annulment of the mutation. Suit was contested by the petitioner, issues were framed and evidence was recorded whereafter learned Civil Judge dismissed the suit vide judgment and decree dated 16.6.2022. Respondent No.1 preferred an appeal thereagainst which was allowed by learned Addl. District Judge Sargodha vide judgment dated 21.11.2022 whereby the judgment and decree dated 16.6.2022 of learned Civil Judge was set aside and her suit was decreed. Against this judgment dated 21.11.2022 in appeal, the present revision is filed.
3. Heard.
4. Submissions made by learned counsel for the parties have been considered with reference to documents on record viz. pleadings, oral and documentary evidence and findings of both the courts below. It is evident therefrom that respondent No.1 filed a suit for declaration to challenge the mutation of oral gift No. 1009 dated 27.2.2009. Her claim was that she was real sister of petitioner and that they were real daughter and son of late Muhammad Bashir who died on 14.10.2010 and owned the suit land which devolved upon both of them as legal heirs and that after demise of their father petitioner used to give the share of produce to her and that a year before the filing of suit she suggested that the property may be partititioned which was avoided by the petitioner and that on inquiry from patwari it transpired that the petitioner had fraudulently got transferred the suit property on the basis of fictitious oral gift from their father and that in point of fact no such oral gift was ever made by the deceased in his lifetime who was suffering from number of diseases and was in advanced years with incapability to either take any decisions or make any gift nor did he ever make any such gift and that she was entitled to her share in the inherited property and that the mutation of oral gift was nothing but a fraudulent device by the petitioner in collusion with the revenue officials.
5. Contrarily the stance of petitioner was that oral gift was made by the deceased and that mutation was lawfully attested and that the suit was not maintainable. In view of the fact that petitioner had claimed oral gift in his favour which had the effect of disinheriting the sister from their father s estate, being beneficiary thereof, petitioner had to establish the oral gift along with the attendant circumstances in which it was allegedly made by the father to the disinheritance of his own daughter. As the beneficiary of such oral gift it was pivotal for the petitioner to allege the foundational ingredients of oral gift viz. date, time and place of alleged gift in the pleadings and, thereafter, to prove the same in evidence. It was also imperative to disclose the name of witnesses in whose presence the alleged declaration and acceptance of oral gift took place. In the absence of such disclosure neither any evidence could be led and even if evidence came on record it was liable to be ignored. Reference can be made to Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR 336).
6. In Muhammad Nawaz and others v. Sakina Bibi and others (2020 SCMR 1021) it was observed to the effect that where the defendants in a suit neither mentioned the date, time, place or names of the witnesses in whose presence the oral gift was made in the pleadings nor produced evidence before the trial court they could not improve their case as set up in the written statement in their evidence on the principle of secundum allegata et probate meaning that a fact must be alleged by a party before it is allowed to be proved. Considering the effect of non-mentioning of date, time, place or the names of witnesses in whose presence the oral gift was alleged to be made in the written statement as also in the evidence, it was observed to the effect that the beneficiary, on whom the onus to prove the oral gift rested, shall be deemed to have failed to prove the same in the manner prescribed by law. Reference may also be made to Naveed Akram and others v. Muhammad Anwar (2019 SCMR 1095) where similar rule was reiterated. In Muhammad Sarwar v. Mumtaz Bibi and others (2020 SCMR 276) also it was observed to the effect that the beneficiary of the gift was obligated to specify the date, time and place the offer was made and accepted to disinherit the sisters.
7. It was the case of the respondent that petitioner did not mention all the ingredients of gift viz. date, time and place of alleged gift. The petitioner in this regard relied on his written statement, copy whereof is available at page 60 of instant file, in which date, time and place of the gift are not mentioned neither in the portion of pleadings captioned preliminary objections nor in the section on facts in paragraph Nos.1 to 4; rather in paragraph No.5 three lines were inserted in handwritten form while the rest of the document is computer typed. In paragraph No.6 of the written statement in the first line it is stated that the petitioner had not deprived the respondent from any legal share and that his father in presence of witnesses Imtiaz Ali son of Muhammad Munir and Muhammad Nazir son of Ali Muhammad on 09.2.2009 offered the gift which was accepted by petitioner and possession was handed over to the petitioner. Controversy was raised that the contents of paragraphs Nos.5 and 6 of the written statement which were handwritten were incorporated subsequently and that the same did not bear any initials of the counsel or the defendant and that there was no official recognition of the said insertion.
8. While appearing as D.W.1 the petitioner was cross-examined at length in respect of these lines who was unable to give any satisfactory reply. Even the counsel for the petitioner did not appear in the witness-box to support the handwritten additions in the pleadings which could even then not succeed as still the material ingredients of oral gift viz. date, time and place as to when alleged declaration was made or its acceptance or transfer of possession were missing and, therefore, the attempt to lead evidence on time and place of oral gift was inadmissible. Even otherwise it is observed that the petitioner attempted to improve his stance in evidence by alleging that it was the house of deceased where the gift was made in the presence of Mst. Najma Bibi. The facts which have not been alleged in the written-statement, the evidence to that effect being inadmissible was rightly discarded. The learned Addl. District Judge minutely examined the entire evidence and rightly concluded that the petitioner being beneficiary of the oral gift was bound to prove the alleged gift mutation No.1009 dated 27.2.2009 which he failed to do and that the mutation of gift was alleged to be attested in the presence of lumberdar of village who was not produced in evidence nor any reasons whatsoever were shown before the court below in this regard.
9. In revision petition petitioner alleged that lumberdar had died, therefore, could not be produced in evidence. No effort was made to prove this fact before the courts below nor was any documentary proof filed before the trial court and, therefore, the explanation could not be entertained at this belated stage. The petitioner s effort to prove the oral gift through D.W.5 was rightly not accepted for the reason that the document does not disclose necessary ingredients of gift such as date, time and place and also the names of witnesses in whose presence the oral gift was made. It was maintained that Muhammad Bashir had made his statement that he had gifted the land to his son Muhammad Riaz and allegedly had given possession thereof. The document was not signed or thumb-marked by late Muhammad Bashir and no particulars of Muhammad Bashir with reference to his CNIC number were given, original document was not produced and there was no date mentioned in the document nor was there any date of alleged oral gift. So much so that the statement of D.W.5, the former patwari in itself was unsatisfactory and was rightly disbelieved. Mutation copy was produced in evidence which was admitted by revenue officer to have no thumb-impression of Muhammad Bashir. Appearing as D.W.6 the revenue officer also admitted that he did not personally know Muhammad Bashir and that he did not ask any reason qua the transaction from him nor did he know that Muhammad Bashir was 85 years of age. He did not know that due to age he could not walk. He admitted that there was no photograph of Muhammad Bashir affixed on the mutation nor were there any particulars of CNIC and he did not record any reasons for transaction by Muhammad Bashir nor he knew as to how many children he had. The perusal of statement shows that mutation was attested mechanically without compliance with legal provisions. In Atta Muhmmad and others v. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73) it was observed to the effect that the revenue authorities must also be extra vigilant when purported gifts are made to deprive daughters and widows from what would have constituted their shares in the inheritance of an estate. The concerned officers must fully satisfy themselves as to the identity of the purported donor/transferor and strict compliance must be ensured with the applicable laws as repeatedly held including in the cases of Islam ud Din v. Noor Jehan (2016 SCMR 986) and Khalida Azhar v. Viqar Rustan Bakhshi (2018 SCMR 30) and that the purported gifts and other devices used to deprive female family members including daughter and widows are contrary to law (Shariah in such cases), the Constitution of the Islamic Republic of Pakistan, 1973 and public policy. In the case of Ghulam Ali v. Mst Ghulam Sarwar Naqvi (PLD 1990 SC 1) it was observed to the effect that often times male members of a family deprive their female relatives of their legal entitlement to inheritance and in doing so Shariah and law are violated and that vulnerable women are also sometimes compelled to relinquish their entitlement to inheritance in favour of their male relations and that relinquishment by female members of the family was contrary to public policy and contrary to Shariah.
10. It has been consistently ruled that where exclusion of legal heirs is claimed by way of gift there should be evidence to justify the disinheritance of other legal heirs from the gift. Reference can be made in Mst. Kalsoom Bibi v. Muhammad Arif (2005 SCMR 135), Ghulam Haider v. Ghulam Rasool (2003 SCMR 1829) and Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938). In the instant case neither in the pleadings nor in the evidence the petitioner who was under heavy onus to not only establish the actual oral gift by propositus in his favour not only could not discharge it effectively but also was unable to establish any special reasons for discriminating the daughter or causing her disinheritance who neither asserted nor proved any special reasons. Curiously the learned Civil Judge did not consider the matter in its proper legal perspective and also the consistent rule on the subject and proceeded to assume that the mere attestation of mutation was good enough to assume the declaration and acceptance of gift and transfer of possession little appreciating that mutation is not document of title and that where transaction itself was in issue the beneficiary was legally obligated to discharge the onus by alleging and proving through credible evidence the prerequisites of a valid oral gift which in this case was missing and, therefore, the learned Addl. District Judge rightly set aside the judgment and decree of learned Civil Judge and allowed the appeal.
11. As to the objection of limitation the dispute in this case related to the right of inheritance of daughter of the deceased which the brother was illegally attempting to usurp. In suchlike cases the consistent view is that on the opening of succession the property automatically devolved upon legal heirs and that efflux of time did not extinguish the right of inheritance and that limitation in such matters started from the date when right of any co-sharer/inheritor is denied by someone. Reference can be made to Mst. Suban v. Allah Ditta and others (2007 SCMR 635). Plea raised by the respondent in the instant case was that the petitioner had been paying the sister share of produce till a year before the institution of the suit and that on its stoppage the record was inspected from which it transpired that a fraud had been committed and that the suit was filed immediately thereafter. In Mst. Gohar Khanum and others v. Mst. Jamilan and others (2014 SCMR 801) it was observed to the effect that main emphasis of the learned counsel for the appellants was that the suit was time-barred and that if mutation was made which was under cloud of challenge it would not create title in his favour in accordance with Islamic Law of Inheritance and that provisions of the Limitation Act, 1908 did not readily attract if circumstances were established. Respondent being the sister was co-owner and the possession/occupation of the land by her brother through tenant as the other co-owner could only be construed as possession on behalf of all co-owners including Mst. Najma Bibi. In Mehmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869) it was observed to the effect that the co-heirs become co-owner in the property immediately after the demise of their predecessor and such succession does not need the intervention of any functionaries of revenue department and that possession of one of the co-heirs or number of them would be deemed to be on behalf of even those who were out of it. In Mst. Namdara and 3 others v. Mst. Sahibzada and 2 others (1998 SCMR 996) it was observed to the effect that co-sharers hold the property for and on behalf of all the co-owners and any adverse entry in the revenue record for mere non-partition in the profits of the property would not amount to ouster of a co-sharer and that brothers cannot legally claim adverse possession against sisters and muchless ouster. In Fareed and others v. Muhammad Tufail and another (2018 SCMR 139) to the effect that it was observed that if the plea of oral gift could not be proved then mere claim of possession of the donee was not sufficient to constitute a valid gift under the law. The objection as to limitation being untenable is, accordingly, rejected.
12. For the reasons supra there is no merit in this revision petition which is dismissed .
JK/M-111/L Revision dismissed.