P L D 2026 Peshawar 53

 P L D 2026 Peshawar 53

Before Muhammad Faheem Wali, J

RUSTAM KHAN ---Petitioner

Versus

Mst. PATHANI through Legal Heirs and others ---Respondents

Civil Revision No. 178-D of 2020, decided on 12th June, 2023.

(a) Transfer of Property Act (IV of 1882)---

----S. 41---Specific Relief Act (I of 1877), S. 39---Suit filed by lady for

cancellation of gift mutation---Necessary details as to time, date,

place, witnesses, offer and acceptance of such gift not proved---

Effect---Respondent(lady plaintiff) had challenged the authenticity

of gift mutation claiming the said mutation as fake, forged and

fraudulent one as she never gifted the same to petitioner and she,

being a parda nasheen and aged lady, had been defrauded by the

respondent/defendant, whereas, petitioner claimed to have obtained

a portion of suit property from the said defendant by way of a valid

gift---Record transpired that the petitioner was also a witness of

impugned gift mutation and after attesting impugned mutation, the

respondent / defendant transferred a portion of land to the

petitioner; hence, petitioner claimed the protection under S.41 of

the Transfer of Property Act and as such, the rights of petitioner

were subservient to the rights of respondent/ defendant)---Being

beneficiary, a heavy burden was lying upon the defendants to prove

the episode of alleged gift by giving details of offer and acceptance

besides telling time, date, place and witnesses of such offer and

acceptance---Mere entry and attestation of the gift mutation does not

ipso facto overcome the need of evidence for the proof of offer and

acceptance and witnesses of a gift mutation too cannot be assumed

to be the witnesses of the episode of offer and acceptance, as they

are only the witnesses of mutation---Moreover, respondent being

donee and petitioner being attesting witness of mutation were

required to give details of time, date, place and witnesses of the

purported offer and acceptance in their written statements but they

omitted and even their evidence was silent in said regard---

Petitioner failed to point out any illegality or infirmity committed by

both the Courts below while passing impugned judgments for

cancellation of gift mutation---High Court maintained the

concurrent findings passed by both the Courts below---Revision,

filed by defendant, was dismissed, in circumstances.

Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR

30 and Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417 ref.

(b) Gift---

----Validity---Essential ingredients---A transaction which is based on

an oral gift has two parts, namely the fact of the oral gift which has

to be independently established by proving through cogent and

reliable evidence the three necessary ingredients of a valid gift i.e.

(1) declaration of gift, (2) acceptance of the gift and (3) delivery of

the possession of the subject of the gift; however, this is not enough-

--The second ingredient i.e. mutation on the basis of an oral gift has

to be independently established by adopting the procedure provided

in the Land Revenue Act and the Rules framed thereunder as well as

the evidentiary aspects of the same in terms of the Qanun-e-

Shahadat, 1984.

(c) Specific Relief Act (I of 1877)---

----S. 39---Suit filed by lady for cancellation of gift mutation---Parda

nasheen lady---Transaction qua her property---Requirements---

Respondent/plaintiff, a parda nasheen lady of advanced age, was

married having four sons, but none from her relatives in prohibited

degree was associated with the gift mutation to identify her and

both the witnesses of mutation, who allegedly identified her, were

not her relatives---Record was also silent about the fact that whether

the respondent, who was an illiterate and parda observing old lady,

was having any independent advice from her near and dear ones, or

that, she was amply made acquainted with and explained that the

document, on which she was going to impress her thumb, would

permanently deprive her and her sons from the landed property

and she would be no more its owner---The beneficiary of any

transaction involving parda nasheen and illiterate women has to

prove that it was executed with free consent and will of the lady;

that she was aware of the meaning, scope and implications of the

document she was executing---Lady should be made aware and

understand the implications and consequences of the transaction

and should have independent and objective advice either of a

lawyer or a male member of her immediate family available to her--

-Petitioner failed to point out any illegality or infirmity committed

by both the Courts below while passing impugned judgments for

cancellation of gift mutation---High Court maintained concurrent

finding passed by both the Courts below---Revision, filed by

defendant, was dismissed, in circumstances.

Ghulam Muhammad v. Zohran Bibi and others 2021 SCMR 19 ref.

(d) Pardanashin lady---

----Transaction(s) relating to such lady---Pre-conditions---In a male

dominated society where the female legal heirs are consistently deprived even of their 'Sharai' shares in inheritance matters, like

sisters, the principle of caution in protecting the legitimate rights of

the illiterate parda observing lady must be applied vigorously and

rigidly---In a case of transaction of valuable property with old,

illiterate/rustic village 'Parda Nasheen' lady, onus to prove the

transaction, being legitimate and free from all suspicions and

doubts surrounding it, can only be dispelled if the following

mandatory conditions are complied with and fulfilled through

transparent manner and through evidence of a high degree:- (i) that

the lady was fully cognizant and was aware of the nature of the

transaction and its probable consequences; (ii) that she was having

independent advice from a reliable source/person of trust to fully

understand the nature of the transaction; (iii) that witnesses to the

transaction were such, who were close relatives or fully acquainted

with the lady and were having no conflict of interest with her; (iv)

that the sale consideration was duly paid and received by the lady in

the same manner; and (v) that the very nature of transaction was

explained to her in the language she understood fully and she was

apprised of the contents of the deed/receipt, as the case may be.

Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225 ref.

(e) Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Specific Relief Act (I of 1877), S. 39---Suit filed by

lady for cancellation of gift-mutation---Additional evidence---Scope---

Permission sought to produce additional evidence of Tehsildar who

attested the impugned mutation---Validity---Such contention of

petitioner could not be entertained at belated stage and if he was

allowed to record statement of Tehsildar, even then, in the absence

of proof of a valid gift coupled with the fact that respondent

/plaintiff being parda nasheen, illiterate and old lady was neither

identified by any close blood relative nor she was having any

independent advice, such statement of Tehsildar would not be

sufficient to change the fate of case---Petitioner failed to point out

any illegality or infirmity committed by both the Courts below while

passing impugned judgments for cancellation of gift mutation---High

Court maintained concurrent findings passed by both the Courts below---Revision, filed by defendant, was dismissed, in

circumstances.

Muhammad Anwar Awan for Petitioner.

Ghulam Muhammad Sappal, Rehmatullah Khan and Miss Maria

Khan for Respondents.

Date of hearing: 12th June, 2023.

JUDGMENT

MUHAMMAD FAHEEM WALI, J.---Petitioner, through the instant

petition, has called in question the vires of Judgment and Decree dated

26.08.2020 of the leaned Additional District Judge-Paharpur, D.I.Khan,

whereby his appeal against Judgment and Decree dated 21.09.2019 of

learned Civil Judge-II D.I.Khan was dismissed, and thereby decree

passed in favour of respondents No.1 was concurrently maintained.

2. Facts of the case in brief are that the respondent No.1 instituted a

suit for cancellation of gift mutation No. 1723 attested on 23.02.2000 in

favour of the petitioner, on the ground that the same is based on fraud

and is ineffective upon her rights. She further contended in the plaint

that she neither appeared before the Revenue Officer nor recorded her

statement and also not affixed her thumb impression to gift her

property to petitioner. Petitioner denied the contents of plaint and

claimed that the mutation in question was legally and validly entered

and attested. After framing issues and recording evidence of parties,

the learned trial Court (Civil Judge-II Paharpur, D.I.Khan) decreed the

suit of respondent No. 1 vide Judgment dated 21.09.2019. The appeal of

petitioner thereagainst was dismissed vide Judgment/decree dated

26.08.2020 by the learned Additional District Judge Paharpur, D.I.Khan

and the petitioner has filed the instant revision petition before this

Court against concurrent findings of the facts recorded by the courts

below.

3. Arguments of the learned counsel for parties heard and record

gone through with their valuable assistance but for the sake of brevity,

without reproducing the arguments of the counsels, same will be

adequately dealt with at appropriate stages in this judgment.

4. Record transpires that the respondent No.1 had challenged the

authenticity of gift mutation No. 1723 dated 23.02.2000 claiming the

said mutation to be fake, forged and fraudulent one as she never gifted

the same to petitioner and she, being a parda nasheen and aged lady,

has been defrauded by the defendant No.1 (respondent No.2 herein),

whereas, the petitioner claimed to have obtained a portion of suit

property from the said defendant No.1 by way of a valid gift. Record

further transpires that the petitioner was also a witness of impugned gift mutation and after attesting impugned mutation, the defendant

No.1 transferred a portion of land to the petitioner; hence, petitioner

claims protection under Section 41 of the Transfer of Property Act, and

as such, rights of petitioner are subservient to the rights of respondent

No.2 (then defendant No.1). Being beneficiary, a heavy burden was

lying upon the defendants (now petitioner and respondent No.2) to

prove the episode of alleged gift by giving details of offer and

acceptance besides telling time, date, place and witnesses of such offer

and acceptance. Mere entry and attestation of the gift mutation does

not ipso-facto overcome the need of evidence for the proof of offer and

acceptance; and witnesses of a gift mutation too cannot be assumed to

be the witnesses of the episode of offer and acceptance, as they are

only the witnesses of mutation. Moreover, respondent No.2 being

donee and petitioner being attesting witness of mutation, were

required to give details of time, date, place and witnesses of the

purported offer and acceptance in their written statements but they

omitted and even their evidence too is silent in this regard. While

rendering this view, I am fortified by the dictum laid down by the

worthy Apex Court in the cases titled "Mrs. Khalida Azhar v. Viqar

Rustam Bakhshi and others" (2018 SCMR 30) and "Peer Baksh through

LRs and others v. Mst. Khanzadi and others" (2016 SCMR 1417).

5. The gift mutation was attested on 23.02.2000, which was only a

formality to document the gift, and gift should have been completed

prior to entry and attestation of said mutation. In-fact a transaction

which is based on an oral gift has two parts, namely the fact of the oral

gift which has to be independently established by proving through

cogent and reliable evidence the three necessary ingredients of a valid

gift i.e. (1) declaration of gift, (2) acceptance of the gift, and (3) delivery

of the possession of the subject of the gift. However, that is not enough.

The second ingredient i.e. mutation on the basis of an oral gift has to

be independently established by adopting the procedure provided in

the Land Revenue Act and the rules framed thereunder as well as the

evidentiary aspects of the same in terms of the Qanun-e-Shahadat

Order, 1984. As discussed above, first two ingredients of gift i.e.

declaration of gift and acceptance of the gift could not have been

established; nevertheless, if both these ingredients are kept aside, then

the third ingredient i.e. "delivery of possession of the subject of gift" is

also missing in the instant case and possession was not delivered at

the time of making the alleged gift or at the time of attestation of gift

mutation on 23.02.2000. Patwari Halqa in his statement, recorded on

18.07.2016 as PW-2, while making reference of the Khasra Girdawari,

in unequivocal words deposed that the respondent No.2 as well as

present petitioner were not having the possession of suit land till the

year 2004. Moreover, there is no entry pertaining to change of possession in favour of respondent No.2 and then the petitioner in the

record of rights. It clearly indicates that the gift was not complete

prior to impugned mutation, and therefore, without fulfilling the

ingredients constituting a valid gift, the entry and attestation of

impugned gift mutation was illegal and unlawful.

6. Moreover, the respondent No.1 was a parda nasheen lady with

advance age. She was married lady having four sons, who are now

respondents Nos. 1/1 to 1/4, but none from her relatives in prohibited

degree was associated with the gift mutation to identify her; and both

the witnesses of mutation who also identify her, are not the relatives

of respondent No.1 . Record is also silent about the fact that whether

the respondent No.1, who as an illiterate and parda observing old lady,

was having any independent advice from her nears and dears, or that,

she was amply made acquainted with and explained that the

document, on which she was going to impress her thumb, would

permanently deprive her and her sons from the landed property and

she would be no more owner. The beneficiary of any transaction

involving parda nasheen and illiterate women has to prove that it was

executed with free consent and will of the lady, she was aware of the

meaning, scope and implications of the document that she was

executing. She was made to understand the implications and

consequences of the same and had independent and objective advice

either of a lawyer or a male member of her immediate family

available to her. While rendering this view, I am fortified by the

dictum laid down by the worthy Apex Court in the case titled "Ghulam

Muhammad v. Zohran Bibi and others" (2021 SCMR 19).

7. In this male dominated society where the female legal heirs are

consistently deprived even of their 'Sharai' shares in inheritance

matters like sisters, the principle of caution in protecting the

legitimate rights of the illiterate parda observing lady, must be applied

vigorously and rigidly. In this context the worthy Supreme Court, in

the case of "Phul Peer Shah v. Hafeez Fatima" (2016 SCMR 1225) was

pleased to hold:

In a case of such transaction with old, illiterate/rustic village 'Parda

Nasheen' lady onus to prove the transaction being legitimate and

free from all suspicions and doubts surrounding it, can only be

dispelled if the lady divesting herself of a valuable property, the

following mandatory conditions are complied with and fulfilled

through transparent manner and through evidence of a high degree. Amongst this condition, the pre-dominantly followed are

as follows:

(i) That the lady was fully cognizant and was aware of the nature of

the transaction and its probable consequences;

(ii) that she was having independent advice from a reliable

source/person of trust to fully understand the nature of the

transaction;

(iii) that witnesses to the transaction are such, who are close

relatives or fully acquainted with the lady and were having no

conflict of interest with her;

(iv) that the sale consideration was duly paid and received by the

lady in the same manner; and

(v) that the very nature of transaction is explained to her in the

language she understands fully and she was apprized of the

contents of the deed/receipt, as the case may be.

8. As far the contention of petitioner to allow him to produce

additional evidence to record statement of Tehsildar who attested the

impugned mutation, is concerned, the same cannot be entertained at

this belated stage; and if he is allowed to record statement of

Tehsildar, even then, in the absence of proof of a valid gift coupled

with the fact that respondent No.1 being parda nasheen, illiterate and

old lady was neither identified by any close blood relative nor she was

having any independent advice, such statement of Tehsildar would not

be sufficient to change the fate of case. As the purported gift by

respondent No. 1 in favour of respondent No.2 has not been proved

rather it is observed that impugned gift mutation No.1723 by itself was

illegal and unlawful as the same was executed without fulfilling the

ingredient of a valid gift, therefore, petitioner cannot seek cover of the

provisions of Section 41 of Transfer of Property Act, 1882, particularly

when he was also having hands in gloves with the respondent No.2 in

executing the mutation No.1723. An illegal mutation cannot be

perpetuated by saving subsequent transfers. Hence, doctrine of sinker

is very much applicable to the present case and petitioner would have

to sink and sail together with the respondent No.2.

9. While dealing with the office objection as to deposit of the court

fee, record manifests that the value of suit was not determined and

therefore, petitioner has affixed minimum court fee stamps worth

Rs.500/- with the instant petition which is sufficient and office

objection is therefore expunged.

10. Considering the above facts, circumstances and legal position,

petitioner has failed to point out any illegality or infirmity committed

by the learned Trial Court as well as learned Appellate Court while

passing impugned judgments, which do not call for any interference

by this Court. Consequently, concurrent fmding passed by both the Courts below are maintained and instant Civil Revision stand

dismissed with no order as to cost.

MQ/37/P Revision dismissed.