MUHAMMAD IQBAL Versus Mst. NARGIS BIBI

ASIM HAFEEZ, J.--- Decisions subject-matter are at variance. Trial court dismissed suit for declaration-cum-cancellation, instituted by respondents No.1 and 2 in terms of order of trial court of 09.04.2009, respondent No.2 withdrew her claim against the petitioners and suit to her extent was treated as withdrawn. Respondent No.1 s claim was directed against gift mutation No. 864, dated 25.04.2006 and gift mutation No. 866 dated 17.05.2006 in terms of former mutation the share of daughters, out of inheritance of their father, was allegedly gifted to their mother, and through subsequent mutation, mother gifted suit property to her sons - petitioners.

Appellate court allowed appeal, preferred by respondent No.1, set-aside the decree of the trial court and declared the mutations void and ineffective to the extent of rights of respondent No.1. Hence, this Revision.

2.Learned counsel for the petitioners contends that factum of gift mutation 864 was admitted by the daughters, whereby they gifted their respective shares to mother, who further gifted it to her sons. Adds that one of the daughters, Irshad Bibi, who was co-plaintiff with her sister / respondent No.1, withdrew claim, which per se manifest endorsement to the gift effected through mutation 864. Learned counsel read cross-examination of PW-2, husband of respondent No.1 to emphasize that same admitted legality of gift in favour of mother by daughters, which conceding statement was not appreciated by the Appellate Court, while reversing decision of trial court. Adds that DW-3, uncle of respondent No.1, stated that ladies were present on the day of execution of mutation and gave clear consent to gift property and all ingredients were fulfilled. Adds that mother appeared as witness [DW-5] and affirmed gift in favour of her sons, pursuant to gift by daughters. Learned counsel emphasized that mutations were executed and recorded accordingly and Revenue Officers, those who appeared as witnesses, confirmed factum of gift, whose evidence was direct and not rebutted.

3.Conversely, learned counsel appearing for respondent No.1 submits that details of alleged gift were not particularized in written statement; no evidence was produced to prove underlying transaction of gift, who emphasized that fraud is conspicuous from the fact that mutation of inheritance and mutation of gift were allegedly executed on same day and no direct evidence was produced that respondent No.1 intended to gift her share to mother. Cites the cases of Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179), Allah Ditta and others v. Manak alias Muhammad Siddique and others (2017 SCMR 402), Faqir Ali and others v. Sakina Bibi and others (PLD 2022 Supreme Court 85) and Mst. Hayat Bibi and others v. Alamzeb and others (2022 SCMR 13) .

4.Heard. Record perused.

5.Jurisprudence in cases, where daughter(s) alleged denial of due share of inheritance, particularly where common pattern of alleged transaction(s) was by way of gift amongst family members and consummated through a two-tier mechanism one leg of transaction relates to gift by daughters to the mother and thereafter gift was made by mother in favour of sons is well settled and parameters thereof are consistently followed. To evaluate such cases it is essential to scrutinize, inter alia , some common principles / factors; which are (i) whether illiteracy is pleaded as a ground to question transaction; (ii) if nature of the transaction was explained in clear and simplified terms, enabling her to make independent and uninfluenced decision and (iii) whether element of free will and voluntariness, pursuant to independent and direct advice, is established and proved by the beneficiary of the transaction [these factors are neither exhaustive nor treated to be the only factors, but same have had relevance to the facts involved]. Now aforesaid principles well-recognized and standard benchmark(s) - are applied to test the validity of the decision of the Appellate Court.

6.Respondent No.1 appeared as PW-1, who stated that she is an illiterate, she elaborated that no disclosure was made to her to explain that she was consummating transaction of gift, she averred she appeared for the execution of inheritance mutation and her knowledge was limited to said single transaction.

Factum of illiteracy and assertion that execution of inheritance and gift mutation 864 occurred on same day, are not in dispute. Existence / acknowledgment of these facts raise the standard of proof for the beneficiaries of the transaction, i.e., the petitioners. Whether she had received independent and simplified advice regarding nature and effect of alleged gift transaction . PW-1 denied it. DW-1 stated that ladies were accompanied by their husband but no other witness had categorically endorsed it, in clear and convincing terms. No credence could be extended to a disconnected assertion, not substantiated otherwise.

Learned counsel for petitioners read evidence of PW-2 [husband of first respondent] and tried to take advantage thereof. I read the statement differently, contrary to the reading of the learned counsel and alleged understanding of the trial court, which had dismissed the suit. Portion of the statement is reproduced.

7.PW-2 [husband of respondent No.1] accepted the fact that he did not accompany his wife at the time of alleged transaction and recording of alleged gift by daughters in favour of mother. This statement remained unrebutted, which clearly establish that respondent No.1 had not the privilege of getting an independent advice. If husband of respondent No.1 was present and everything was done with free will and voluntarily, why husband s signatures were not procured but uncle and revenue officers were preferred. This corroborates stand of respondent No.1. Hence, respondent No.1 had not received independent advice and explanation that two mutations were executed on same day. Principle laid down in the case of Syed Mansoor Ahmad v. Mst. Maqbool Begum and others (1990 SCMR 1259) is fully attracted, hence, alleged mutation, alleged to be executed by respondent No.1, requires strict proof of execution and availability of independent advice. And proof was missing.

8.There is another aspect. It is evident that intent of the daughters was alleged to be conveyed on 17/18 of March 2006, when it was claimed that ladies allegedly offered gift of property to their mother, but no evidence / explanation was provided to prove that ladies were accompanied with their husband(s). This is crucial and fell to the discredit of the petitioner(s). Learned counsel for petitioners had emphasized that one of the sisters, co-plaintiff, withdrew her suit and this leads to an adverse inference, implying that she did not intend to pursue her case and this tantamount to an endorsement qua gift transaction. Argument is misconceived. There is no automatic assumption of alleged endorsement. There is no explanation available that why she was not produced as witness, particularly when PW-1 stated that her sister was accordingly compensated. This deficiency is critical.

9.In view of the above, judgment of the trial court and evidence led by the beneficiaries fell short of standard benchmark(s), delineated in paragraph-5, supra, and conversely judgment of the Appellate Court is found well-reasoned, containing correct appreciation of the evidence and is in line with established jurisprudence. In these circumstances and evident deficiencies there appears no need to discuss any other issue, when availability of independent advice / counseling to the respondent No.1 regarding alleged transaction of gift was not established. Judgments cited discussed genuine principles governing transactions by Pardah-Nasheen ladies and documents executed by ladies, or at their behest, and standard of proof required by beneficiaries to defend disputed transaction. There is no dispute qua applicability of well-recognized principles of law and plethora of precedents.

10.This civil revision is found without merits and same is, hereby, dismissed. No order as to the costs.

MQ/M-196/L Revision dismissed.