P L D 2026 Islamabad 57

 P L D 2026 Islamabad 57

Before Sardar Ejaz Ishaq Khan, J

Mst. SAMINA NAZ and others ---Appellants

Versus

TARIQ USMAN and others ---Respondents

R.F.As. Nos. 101 and 102 of 2016, decided on 28th October, 2025.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Islamic law---Gift with condition---Owner of suit

property had two wives and during his lifetime he gifted the same in

favour of his second wife---After the death of second wife appellant /

plaintiff claimed her right on the plea that the gift was with condition

to use the house during lifetime only---Validity---Gift of a property with

limiting condition of a life interest only takes effect as an absolute gift

and the condition limiting the gift to be for the life of the donee only is

void under Islamic law---Suit house constituted sole exclusive property

of second wife by virtue of valid gift under Islamic law free from

limiting condition of life estate---Appellant / plaintiff had become

stranger to suit property and carried no locus standi to challenge

validity of transaction of sale of suit house to respondent / defendant---

In absence of any reversionary interest in suit house vesting in her or

other heirs of deceased owner of suit house, merits of challenging the

transaction documents for sale of suit house as fabricated withered

away---Suit filed by appellant / plaintiff claiming inheritance share in

suit house also failed---Appeal was dismissed, in circumstances.

Mst Niaz Begum v. Waris Khan 1995 MLD 690 and Akbar Waheed v.

Karachi Development Authority 1993 MLD 87 rel.

Ajam Naz Malik for Appellants.

Mian Abdul Razzaq for Respondents.

Date of hearing: 24th February, 2025.

JUDGMENT

SARDAR EJAZ ISHAQ KHAN, J.---The captioned appeals are decided

by this common judgment as both arise out of a consolidated judgment

of the learned trial court.

2. One Raja Iftikhar Abbasi married his second wife Durr-e-

Shahwaar in 1978. Iftikhar had three children from his first marriage,

Nisar Abbasi, Obaid Ahad and Sajida Naseem. Admittedly, Durr-e-

Shahwaar lived with Iftikhar in his House No. 225, Street No. 74, G-9/3, Islamabad, which is the suit property in these cases. Iftikhar died in

1985, without having any children with his second wife. Durr-e-

Shahwaar died on 19.04.2010. About a month before her death, she

entered into an agreement to sell dated 17.03.2010 (ATS) with Tariq

Usman for 9 million Rupees, with the ATS recording receipt of 8

million Rupees of the sale consideration by Durr-e-Shahwaar. Since

Dur-e-Shahwaar died issueless, her three brothers Colonel Asif,

Muhammad Azam and Muhammad Sheryar became the natural heirs

of her estate.

3. Tariq Usman filed Suit No. 723/2010 on 19.09.2010 for specific

performance of the ATS. Initially, only the three brothers of Durr-e-

Shahwaar and the CDA were impleaded as parties. The sons of late

Iftikhar stepped forward and asked to be impleaded, whereupon the

trial court directed for them to be impleaded qua heirs from Iftikhar's

first marriage. During the pendency of the litigation, both the sons

Nisar and Ubaid also passed away. Nisar's widow, Samina Naz and her

four children were also impleaded. Samina and her children

(grandchildren of the late Iftikhar) remained the main contestants to

Tariq's suit for specific performance and, for convenience, are

hereinafter referred to collectively as "Samina". In parallel, Samina

filed Civil Suit No. 605/2011 for declaration, partition, possession and

injunction, denying any title of Durr-e-Shahwaar in the suit property

or, in the alternative, claiming that she would be entitled only to 1/8th

of the share of the suit property and that they, being the lawful heirs of

the late Iftikhar, were entitled to the rest of the share in the suit

property. Both the suits were consolidated and decided by the

impugned judgment dated 05.03.2016, allowing Tariq's suit for specific

performance and dismissing Samina's suit.

4. Tariq's suit for specific performance was premised primarily on

four documents: (i) the ATS (Ex. P1), (ii) Nikahnama recording the date

of registration of marriage as 01.01.2010 (Ex. P2), (iii) Iqrarnama

declaring the gift of the suit house by Iftikhar to Durr-e-Shahwaar as a

dower gift (Ex. P3), and (iv) an application dated 24.02.1985 (Ex. P4) by

Iftikhar to the CDA for the transfer of the suit house to Durr-e-

Shahwar. Samina claimed in the written statement and in the plaint in

her counter-suit that the four aforesaid documents were fabricated

and forged. The learned trial Court after dealing with the evidence

concluded that the onus probandi to prove Ex.Pl to P4 as fabricated

and forged lay on Samina, which she had been unable to discharge.

5. At the heart of this dispute lies the question whether Iftikhar did

gift the suit suit house to Durr-e-Shahwaar. It so happened that in the

testimony of DW-3, who was a record keeper of the CDA, surfaced a

copy of a gift deed executed on stamp paper dated 17.02.1985, which was exhibited as Ex. DW-3/16. The said gift deed expressly recorded

that Iftikhar had gifted the suit house to Durr-e-Shahwaar out of love

and affection, and that he had handed over the possession of the suit

house to Durr-e-Shahwaar. The gift deed declared the suit house as the

exclusive property of the done, but also purported to limit the gift to

the donee's lifetime only and, after the donee's death, Nisar Ahmed

Abbasi and Ubaid Ahad, the sons of the donor, were to be the owners

of the said house. It is this Exhibit DW-3/16 that, in my humble view,

acquires the prime importance in deciding these appeals.

6. Learned counsel for Samina submitted that Ex. DW-3/16 was only

a photocopy, that the original was not produced

1, and that the

objection to the admissibility of this photocopy was duly raised during

the testimony of DW-3, that was dealt with by the trial Court observing

that the question of its admissibility will be decided in the final

judgment, but such decision was never rendered. It therefore becomes

important to see whether this gift deed could validly be considered as

secondary evidence in this case. In my humble view, it can be

considered as secondary evidence under Article 76 of the Qanun-e-

Shahadat Order, 1984 (QSO), which lists the instances in which

secondary evidence of documents may be given. Clause (b) of Article

76 stipulates that secondary evidence of a document may be given:

when the existence, conditions or contents of the original have been

proved to be admitted in writing by the person against whom it

is proved or by his representative in interest.

7. The contents of the gift deed in their most essential aspects

effectuate the grant of an absolute gift of the suit property to the

donee, albeit for her life only. Now this fact has been expressly

pleaded by Samina in paragraph 6 of her written statement as follows:

"Deceased Durr-e-Shahwaar had only right to stay in the suit

property till her lifetime".

This statement could not have been made by anyone, especially one

interested in the suit house, without the knowledge of the gift

aforesaid. Further, paragraph 4 of the plaint in Samina's counter-suit

reads as follows:

That Mst. Durr-e-Shahwaar after the death of the deceased Iftikhar

Raja Abbasi started living along with deceased Nisar Ahmed

Abassi (predecessor-in-interest of the plaintiff) for some period

of time and remained receiving an amount of Rs.1,500/- per

month from deceased Nisar Ahmed Abbasi and was legally bound to deliver the peaceful possession of the suit property to

the plaintiff.

The aforesaid paras in Samina's written statement and in her suit

correspond exactly to the contents of the gift deed and have been

made in writing in her pleadings. These paragraphs are a candid

admission that Durr-e-Shahwaar was a donee of the gift of the suit

house, albeit the term of the gift is contested. Therefore, the contents

of the gift deed as confirmed by the written admission in the aforesaid

paras of Samina's written statement and her plaint are admissible,

whereby Samina admits that Durr-e-Shahwaar was a donee of the gift

of the right to live in and to receive the rent of the suit house. It is also

settled law that admissions in pleadings are conclusive under Article

113 QSO, and are to be distinguished from 'evidentiary admission'

under Article 45: Mst. Niaz Begum v. Waris Khan (1995 MLD 690) and

Akbar Waheed v. Karachi Development Authority (1993 MLD 87). The

gift per the gift deed is then also corroborated by the transfer

application (Exh-P4) moved by the late Iftikhar himself under

Application No. 2071 dated 24.02.1985.

8. It is settled law that the gift of a property with the limiting

condition of a life interest only takes effect as an absolute gift and the

condition limiting the gift to be for the life of the donee only is void

under Muslim law. Learned counsel for Tariq aptly cited several

judgments of the Supreme Court giving effect to section 164 in Mulla's

Principles of Muhammadan Law, which reads as follows:

164. Gift with a condition. When a gift is made subject to a condition

which derogates from the completeness of the grant, the

condition is void, and the gift will take effect as if no conditions

were attached to it.

It is not necessary to cite all the judgments referred to by the

learned counsel for Tariq. It suffices to cite the following passage from

Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others (PLD

1991 SC 466), holding that a condition attached to the gift of land

making it operative in favor of the donee only for the lifetime would

be void and that, if a life estate had to be created through a gift, it had

to take the form of waqf. The Supreme Court observed as follows:

The only question to be resolved now is: whether, condition

attached to the gift of land making it operative in favour of the

donee only for the lifetime would be valid and operative

or would be rendered void on account of the Islamic

dispensation as the validity of the gift has to be and is being

examined under the light of the Islamic Law. As already

mentioned the decision from Lahore in the case of Farid having examined this question with reference to the case-law by then

available, resolved this controversy with the view that the

condition would be void. The gift would be operative as that of

the corpus in perpetuity in favour of the donee carrying all the

necessary implications accordingly. In the work on Islamic Law

by Mulla, under Paragraph 153, considerable case-law (citing

dozens of rulings including those of Privy Council) has been

noted in support of the proposition that when a gift is made

subject to a condition which derogates from the completeness of

the grant, the condition is void and the gift will take effect as if

no conditions were attached to it.

9. Article 2(4) of the QSO reads as follows:

A fact is said to be proved when, after considering the matters

before it, the Court either believes it to exist, or considers its

existence so probable that a prudent man ought, under the

circumstances of the particular case, to act upon the supposition

that it exists.

Expanding on the aforesaid Article, the Supreme Court held in

Salamat Ali and others v. Muhammad Din and others (PLD 2022 SC

353) as follows:

The conceptual analysis of this clause shows that in order to prove a

fact asserted by a party, it does not require a perfect proof of

facts, as it is very rare to have an absolute certainty on facts.

This provision sets the standard of a 'prudent man' for

determining the probative effect of evidence under the

'circumstances of the particular case'. The judicial consensus

that has evolved over time is that the standard of

'preponderance of probability' is applicable in civil cases...

10. Considering all the above facts cumulatively, coupled with that

Durr-e-Shahwaar being the lawfully wedded wife of Iftikhar is an

admitted fact per paragraph 2 (on facts) of Samina's written statement,

read with the further admitted fact that she lived in that house both

when her husband was alive and thereafter for another 25 years until

her death in 2010, coupled yet further with the admission in Samina's

suit that her father paid Rs.1,500/- per month rent to Durr-e-Shahwar

for her life, leads me to conclude, on a balance of probabilities, that

the suit house was duly gifted by the late Iftikhar Abbasi to Durr-e-

Shahwaar. For the reasons aforesaid, I also conclude that the gift was

an absolute gift and the condition of it being limited to her lifetime

only was void.

11. With these conclusions, Samina's challenges to Tariq's suit must

fail. The challenge mounted by learned counsel for Samina to the genuineness of the Nikahnama and the Iqrarnama for being forged

documents become legally inconsequential because, even if the Court

were to hold that the documents Exh-P1 to P4 were fabricated

documents, it would not benefit Samina in the least because, for being

Durr-e-Shahwaar's exclusive property, the suit house would devolve

on her brothers and Samina would still get nothing as a result.

However, for the sake of completeness, it is appropriate to deal with

the objections raised by the learned counsel for Samina to the

evidence led by Tariq.

A) Counsel submitted that the nikahnama (Ex. P2) dated 01.01.2010

was forged. His reason for so claiming was that the nikahnama

carried the columns for CNIC numbers in the form that came

into existence after the NADRA Citizenship Rules of 2002 were

made and that, in 1978, when Iftikhar and Durr-e-Shahwaar got

married, the form of nikahnama was the one prescribed under

the Muslim Family Law Ordinance, 1961, and West Pakistan

Family Courts Rules, answer to that objection is that the

nikahnama in question gives the date of 01.01.2010 in row

number 24, which is for the date of registration of the

nikahnama and not the date on which the nikah was

solemnized; that date in the aforesaid nikahnama is recorded in

row number 20 as 23.07.1978. The objection

therefore becomes irrelevant and remains so also by the fact

that the marriage relationship between Iftikhar and Durr-e-

Shahwaar is admitted in Samina's written statement.

B) The second objection by the learned counsel was based on

various items of cross-examination of Tariq on the line that

Tariq never met Durr-e-Shahwaar nor saw her signing the ATS

or receiving, the sale consideration. Such questions were

answered by Tariq stating that that he was in communication

with Durr-e-Shahwaar's brothers, who stated that, for being a

Pathan and advanced in age, she would not come out before

other men, which is a perfectly valid explanation when

considered from the perspective of one who is only interested in

purchasing a property and has been shown the requisite

documents and has carried out his due diligence of the CDA's

record.

C) The next objection was that if the gift was genuine then Durr-e-

Shahwaar should have got the property transferred in her name

during the 25 years that she lived in that house since 1985 until

2010 after her husband's death. The answer to this objection

surfaces in the testimony of DW-3, wherein he cited no less than

6 applications by Durr-e-Shahwaar to the CDA for the transfer of the house in her name with the copies of applications duly

exhibited in his testimony, and also by the proceedings before

the Ombudsman initiated by Durr-e-Shahwaar for transfer of the

suit property in her name. The CDA remained unable to effect

the transfer because, in parallel, Nisar Abbasi had also lodged.

applications before the CDA for transfer of the house in

Iftikhar's children's names as heirs and obviously CDA could not

in view of two competing applications and without a decision of

the civil, Court in this respect proceed to transfer the property in

Durr-e-Shahwaar's name.

12. For the foregoing reasons, once I have concluded that the suit

house constituted the sole and exclusive property of Durr-e-Shahwaar

by virtue of a valid gift under Islamic law free from the limiting

condition of a life estate, Samina becomes a stranger to that property

and carries no locus standi to challenge the validity of the transaction

of sale of the suit house to Tariq. In the absence of any reversionary

interest in the suit house vesting in her or other heirs of the late

Iftikhar Abbasi, the merits of her written statement challenging the

transaction documents for the sale of the suit house as fabricated

wither away. For the same reason, Samina's suit claiming an

inheritance share in the suit house also fails. Both the appeals are

dismissed.

MH/212/Isl. Appeals dismissed.