Pakistan Case LawM4. KISHWARA and 6 others Versus SHER AZAM and 4 others
This matter arises from a petition for leave to appeal filed by the plaintiffs against the judgment of the Peshawar High Court dated 20-3-1993, which dismissed their civil revision and upheld the concurrent findings of the lower courts. The core legal question concerns whether the lower courts committed misreading and non-reading of evidence while upholding an unregistered gift deed and subsequent mutation regarding the disputed land. The Supreme Court held that the concurrent findings of the three courts below were based on a proper appreciation of evidence, noting that the donor had validly executed the gift in favor of the respondents who had cared for her after she was turned out by her brother. Consequently, the Court found no ground of misreading or non-reading of evidence. The petition for leave to appeal was refused, affirming the validity of the concurrent findings upholding the gift transaction.
- Whether concurrent findings of lower courts regarding the execution of a gift deed can be interfered with on the ground of misreading of evidence?
- Does a gift executed by an unmarried sister in favour of her nephews in equal share, due to her brother's second marriage and neglect, constitute a valid transaction?
- Is an unregistered gift deed given effect through a revenue mutation legally sustainable when its execution is duly proved by evidence?
ORDER
FAZAL ILAHI KHAN, J. ---Leave to appeal is prayed for in this petition by the petitioners/plaintiffs against the judgment of the learned Peshawar High Court, Peshawar, dated 20-3-1993 in Civil Revision No, 401 of 1986.
Sher Afzal, now dead and survived by his L.Rs, who are petitioners herein, instituted the present_ suit against Sher Azam etc. Respondents/defendants in the Court of Additional Civil Judge, Swabi to the effect that he was the owner in possession of the suit land described in the heading of the plaint, through inheritance from his sister Mst. Nasaibay. That Mutation No, 12048 attested on the basis of an unregistered deed dated 27-7-1975 was void and ineffective on his rights. The suit was contested by the respondents by filing their joint written statement. The learned trial Judge after framing issues and recording evidence of the parties dismissed the plaintiffs' suit. It was held that property in dispute was validly gifted in favour of the respondents through the deed dated 27-7- 1975 and that its execution was duly proved. The petitioners' appeal and revision both failed in the Court of Additional District Judge and the learned High Court vide judgments dated 12-4-1986 and 20-3-1993, respectively. The concurrent findings of the three Courts below have been challenged before us on the ground of misreading and non-reading of evidence.
We have heard the learned counsel for the petitioners and perused the available record. Mst. Nasibay sister of Sher Afzal in her lifetime executed the document on 27-7-1975 whereby she gifted half of her property in favour of Hussain Khan and Misal Khan sons of Umar Khan and the remaining half in favour of Sher Azam son of Sher Afzal.
This deed was given effect in the Revenue Record through Mutation No, 12048 attested on 26-4- 1977. Sher Azam donee and the beneficiary is the son of Sher Afzal plaintiff who appeared in the witness-box and has stated that the document was correctly executed in their favour. That it was scribed by a school master of the village and witnessed by its marginal witnesses. He has further stated that his father had contacted a second marriage and had turned out Mst. Nasibay and since then she was residing with them. That Mst. Nasibay was unmarried and she had brought him up.
In view of the statement of Sher Azam there is logic in Mst. Nasibay action in making gift of her property in favour of the sons of her brothers in equal share and in depriving Sher Afzal because of his second marriage. No misreading or non-reading of evidence is pointed out. Leave is, therefore, refused.
Judges on this bench
- Fazal Ilahi Khan582 judgments
- Wali Muhammad Khan585 judgments