MUKHTAR AHMAD vs Mst. RASHEEDA BIBI and another
This is a petition for leave to appeal arising from a concurrent judgment of the Lahore High Court and two lower courts which granted the respondent, Mst. Rasheeda Bibi, a 2/5th share in the property of her late grandfather, Badar Din, on the basis of inheritance through her predeceased father under Section 4 of the Muslim Family Laws Ordinance, and concurrently declared a gift mutation in favor of the petitioner, Mukhtar Ahmad, to be fraudulent. The core legal questions involved the validity of the gift mutation executed in favor of the petitioner when the donor was old and bedridden, and the correct determination of the inheritance share of an orphaned grandchild under Islamic law and statute. The Supreme Court of Pakistan held that the concurrent findings of fact regarding the fraudulent and fictitious nature of the gift mutation were well-founded and warranted no interference. However, the Court modified the extent of the share, holding that the respondent is entitled to a 1/5th share rather than a 2/5th share, as she inherits through her predeceased father whose proper share under Sharia was subject to further distribution.
- Whether a gift mutation executed by an old and bedridden donor can be set aside as fraudulent when the original mutation and daily dairy are not properly proved?
- Can the Supreme Court interfere with concurrent findings of fact recorded by three lower forums regarding the validity of a gift?
- What is the correct share of inheritance for an orphaned grandchild under Section 4 of the Muslim Family Laws Ordinance 1961 when read with Islamic jurisprudence?
- Section 4, Muslim Family Laws Ordinance 1961
' SARDAR MUHAMMAD RAZA, J.---This is a petition for leave to appeal against the judgment, dated 26-4-2001 passed by an Hon'ble Single Judge of Lahore High Court in Civil Revision No,885 of 2001 on the basis whereof Mst. Rasheeda Bibi the respondent happened to be granted a concurrent decree by all the three Courts below, whereby she became the owner of 2/5th share in the entire property of her grandfather Badar Din.
2. Badar Din admittedly was the owner of the suit-land who died on 12-7-1987. He had two wives, namely Mst. Attri Bibi and Mst. Jew Bibi. From Mst. Attri Bibi he had a son named Mukhtar Ahmad and a daughter named Mst. Sardaran while from Mst. Jew Bibi he had a son named Bir Din. Bir Din had predeceased his father Badar Din and thus, the share of inheritance, allegedly to the extent of 2/5th, has successfully been claimed by Mst. Rasheeda Bibi the granddaughter, under section 4 of the Muslim Family Laws Ordinance.
3. Badar Din having died on 12-7-1987, he is said to have had gifted away his entire property vide Mutation No,78 attested on 17-5-1987 in favour of his son Mukhtar Ahmad. Such gift mutation is also challenged by Mst. Rasheeda Bibi on the ground that it is forged, fictitious and fraudulent. That her grandfather Badar Din was an old man of 120 years and that for one year prior to his death he had completely been bedridden due to paralysis. That the mutation was fraudulently got attested by Mukhtar Ahmad in order to disinherit his sister Mst. Sardaran Bibi and more specifically his niece Mst. Rasheeda Bibi who happened to be his step-niece.
4. From the evidence on record it has been proved the gift mutation was fraudulent. Even the original mutation was not produced in Court. Taut Patwar' is produced as Exh.P-3 but the same appears to have been entered on the basis of daily Dairy No,420, dated 10-5-1987 but such daily dairy has never been produced to prove, as to, whether the donor had personally come to get the daily diary entered and to make an offer of gift. The witnesses alleged that the donor had appeared on one occasion alone and had accepted the factum of gift and that the gift was attested on one and the same day; whereas, the mutation was entered on 10-5-1987 and was attested on a different day on 17-5-1987. D.W.1 has admitted that Badar Din was bedridden and had suffered some injuries and therefore, the Tehsildar and his staff had gone to his house to enter the mutation. This proves the factum of his having been bedridden as well as suffering from some ailment.
5. All the questions of fact involved in the instant case have perfectly been appreciated by all the three Courts below and thus, this Court does not require to interfere with the findings.
6. One thing deserves to be taken notice of. It is the Shari share of Mst. Rasheeda Bibi. No doubt, if she happened to inherit through her father Bir Din, her father would be entitled to 2/5th share in the property but she being the only daughter will inherit 1/2 share from the property of Bir Din while the remaining would go to other colleteral's i.e, Mukhtar Ahmad and Mst. Sardar Bibi. She in fact is entitled to 1/5th share and not 2/5th share.
7. Accordingly, the petition is accepted, it is converted into appeal and partly allowed by modifying the impugned judgment to the effect that Mst. Rasheeda Bibi respondent shall be entitled to inherit 1/5th share and not 2/5th share from the property of her grandfather Badar Din. Parties to bear their own costs.
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