MUHAMMAD BASHIR vs MIRZA And Other
This appeal by leave of the Supreme Court of Pakistan examines whether the High Court was justified in second appeal in interfering with concurrent findings of fact by the lower courts that an ostensible gift was genuine. The core legal question involved whether the transaction in dispute, registered as a gift, was in reality a sale intended to defeat a superior right of pre-emption. The Supreme Court held that the lower courts failed to examine the evidence in its true perspective, noting that the appellant was unrelated to the donor, belonged to a different village, and failed to establish any adoption or natural obligation justifying such a valuable gift. The Court dismissed the appeals and upheld the judgment of the High Court decreeing the pre-emption suit, laying down the principle that concurrent findings of fact based on a misreading or failure to properly appreciate the evidence can be interfered with by appellate courts.
- Whether the High Court in second appeal can interfere with concurrent findings of fact regarding the nature of a transaction?
- Does an ostensible gift made to an unrelated person without established ties constitute a sale to defeat pre-emption?
- What is the effect of failing to properly evaluate oral and documentary evidence on record by the lower courts?
ALI HUSSAIN QAZILBASH, J.--Leave in these appeals was granted to examine whether the High Court in second appeal has justifiably interfered with the findings of fact that an ostensible gift was in fact a sale.
Certain lands entered in Khata Nos.10 and 12, situate in Mian A.I Faqiran estate, Tehsil and District Sheikhupura, owned by Mst. Fatima were transferred in the name of Muhammad Bashir appellant as gift vide Mutations Nos.49 and 50 attested on 20-6-1970. These transfers were pre-empted by one Bahawal who alleged that in order to defeat his superior right of pre-emption the transactions have been given a colour of gift. As a result of the contest the trial Court vide its judgment dated 16-3-1974 held that Bahawal respondent has failed to establish that the gifts were in fact sale and thus, dismissed his suits. The appeals filed by Bahawal were also dismissed by the learned District Judge, Sheikhupura, on 5-3-1976. Bahawal respondent was, however, successful in the High Court where his suits were decreed.
3. We have heard the learned counsel for the parties. As the record stands, we think, the appeals have no merit inasmuch as both the learned trial and the first appellate Courts have failed to examine the evidence on record in its true perspective. In this case, from the side of Bahawal respondent as many as seven witnesses have appeared. Of them, besides Bahawal respondent (now represented by his L. R's) Chiragh and Nazir Ahmad are the lessees of the lands in dispute, Muhammad Akram P.W.5 is the Patwari who had entered the mutations, and Rehmat Khan P.W.6 had identified the parties at the time of attestation of mutations. The appellant appeared as his own witness and produced two official witnesses. From the careful perusal of the statements of the witnesses it has become quite clear that Mst. Fatima had in fact sold the lands to Muhammad Bashir appellant but in order to frustrate the right of the respondent the transactions were given the colour of gift. The record also shows that the appellant is not related to Mst. Fatima, he belongs to a different village and tehsil and there is also nothing on the record that Mst. Fatima was, in any way, so obliged to the appellant that she would give him by gift such a valuable property. The fact that Mst. Fatima had adopted the appellant as a son has also not been established. The view that we take in the matter is that these appeals have no force and are dismissed with costs.
Cited by 4 cases
- NAZAR KHAN vs Mst. HASSAN BEGUM and anothers 2013 MLD 913
- SAID MUHAMMAD vs ALLAH DITTA 2010 YLR 638
- Hashmat Ali vs Mst. Rasheedan Bibi & 2 others 2004 C.L.R. 1295
- GHULAM RASOOL vs MUHAMMAD HAFEEZ and 2 others 1996 CLC 1161