2025 CLS 17

Other citations: 2023 LHC 2050 = 2025 CLC 140

[Lahore High Court]

Before Shahid Bilal Hassan, J

Abdul Karim—Petitioner

versus

Mst. Ruqqia Begum (deceased) through L.Rs. and others—Respondents

Civil Revision No.77 of 2010, decided on 31^st March, 2023.

HEADNOTES

Muhammad Shahzad Shaukat and Taha Shaukat, Advocates for the petitioner.

Malik Noor Muhammad Awan, Ejaz Khalid Khan and Saima Hanif, Advocates for respondents No.1 to 3.

Shahzad Mahmood Butt, Advocate for respondent No.4(a).

Mirza Hafeez Ur Rehman and Mian Ejaz Latif, Advocates for respondents No.4(c to e).

Muhammad Mahmood Chaudhry and Muhammad Zeeshan, Advocates for respondent No.4(ii).

Azmat Ullah Chaudhry, Advocate for respondents No.4(vi to viii).

Date of hearing: 31^st March, 2023.

JUDGMENT

Shahid Bilal Hassan, J:-Succinctly, Umar Din, father of the petitioner owned considerable property inclusive of properties in dispute i.e. land measuring 127-Kanals and 14-Marlas, situated in Chak No.125-GB and land measuring 162-Kanals 03-Marlas located in Chak No.119-GB, Tehsil Jaranwala District Faisalabad; that Umar Din executed a registered power of attorney dated 29.09.1994 in favour of Abdul Aziz, his real son, allegedly for the purpose and intent of getting formal gifts in favour of the petitioner, incorporated in the revenue record; that pursuant to the powers vested in him by Umar Din, the said Abdul Aziz got entered and attested mutation No.440 dated 08.02.1995 and mutation No.612 dated 09.02.1995, on the basis of entries in Roznamcha Waqiati. The respondents No.1 to 3/ plaintiffs challenged the said gifts in favour of the petitioner by instituting a suit for declaration and permanent injunction, on 23.04.1995, with the precise allegations that the power of attorney in favour of Abdul Aziz was fraudulent and based on fabrication and it was further contended that Umar Din deceased was suffering from paralysis and was incapacitated, therefore, unable to appoint his attorney. The petitioner alongwith Abdul Aziz, Rasheeda Begum and Amtul Shakoor contested the suit by submitting written statement and controverted the averments of the plaint. Out of the divergent pleadings of the parties, the learned trial Court framed as many as 12 issues inclusive of “Relief”. Both the parties adduced their oral as well as documentary evidence. On conclusion of trial, the learned trial Court vide judgment and decree dated 07.05.2002 dismissed suit of the respondents No.1 to 3, who being aggrieved and dissatisfied preferred an appeal and the learned appellate Court vide impugned judgment and decree dated 21.12.2009 accepted the appeal and set aside the judgment and decree dated 07.05.2002 passed by the learned trial Court; hence, the instant revision petition.

2.           Heard.

3.           The pivotal document, where-around the whole case revolves, is purported general power of attorney Ex.D2 executed in favour of Abdul Aziz by Umar Din deceased. It is stance of the present petitioner that the said document was executed only to gift out the suit property in favour of the petitioner but recital of the same was not as such rather the said document divulges that it was not executed for a specific purpose of gifting out the suit property to the petitioner. It is wrong to assume that every general power of attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object is must contain a clear separate clause devoted to the said object; however, as observed above no such separate clause has been found to have been mentioned in the purported general power of attorney. In this regard reliance is placed on Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others (PLD 1985 Supreme Court 341). When the position is as such, the said power of attorney cannot be utilized for effecting a gift by the attorney without intentions and directions of the principal to gift the property, which intentions and directions must be proved on record, which have not been proved in this case. Reliance in this regard is placed on Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others (2016 SCMR 1781).

4.           Apart from the above, the said document i.e. Ex.D2 has not been proved as per mandate of Article 79 of the Qanun- e-Shahadat Order, 1984, because only one marginal witness namely Abdul Razzaq has been produced as D.W.3 whereas the second marginal witness namely Abdul Hai has not been brought into the witness box for the reasons best known to the petitioner and even no evidence with regards to his inability to appear in the witness box has been produced by the petitioner, so the adverse presumption as per mandate of Article 129(g) of Qanun-e-Shahadat Order, 1984 arises against the petitioner that had the said witness been produced before the Court in witness box, he would not have supported the stance of the petitioner. The statement of scribe cannot be equate with the statement of marginal witness. In this regard reliance is placed on Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others (2021 SCMR 415) and Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 Supreme Court 538) wherein it has been held:-

’14. As regards the scribe he was not shown or described as a witness in the said agreement, therefore, he could not be categorized as an attesting witness.’

Moreover, the D.W.1, Faheem Ashraf Naib Tehsildar, who performed the duty as local commission for recording the statement of Umar Din for the purpose of execution and registration of general power of attorney, deposed that he received an order on 28.09.1994 from Tehsildar but he did not produce any such order during course of his evidence. Furthermore, allegedly the stamp paper was purchased by Umar Din himself (but this fact stood negated from original general power of attorney when the same was brought on record by de­sealing envelope in presence of learned counsel for the parties and it was found that there was not writing as to who purchased the same) and the Katchehry was at a distance of half a furlong; had Umar Din been not suffering from any disease or was not paralyzed what thing prevented him from going to the Katchehry for the purpose of execution of the general power of attorney or even execution of the gift mutations i.e. disputed mutations in favour of the petitioner. This fact strengthens the stance of the respondents No.1 to 3 that Umar Din was incapacitated and was suffering from paralyze so he was unable to appoint a general attorney and it seems that whole the story has been maneuvered only to deprive the respondents No.1 to 3 from their rights of inheritance in the estate of deceased Umar Din.

5.           In addition to the above, the petitioner could not lead evidence as to when, where and at what time as well as in whose presence the donor/Umar Din deceased made offer to gift out the property in dispute, which was accepted by him (the petitioner), where-after possession was delivered to be him, which ingredients are necessary to be pleaded and proved especially when the other legal heirs are going to be deprived of, because the same was necessary to be proved by leading cogent and reliable evidence, which is lacking in this case. In this regard reliance is placed on Faqir Ali and others v. Sakina Bibi and others (PLD 2022 Supreme Court 85), wherein it has invariably been held that:-

‘It is trite that a gift in order to be valid and binding on the parties must fulfill three conditions, namely (i) declaration of gift by the donor, (ii) acceptance of gift by the done, and (iii) delivery of possession of the corpus. A valid gift can only be effected orally if the afore-noted prerequisites are complied with and proved through valid and cogent evidence………………………. It has repeatedly been held that beneficiary of a document is not only bound to prove execution of the document but also to prove the gift by producing cogent and reliable evidence that the three necessary requirements of a valid gift namely, offer, acceptance and delivery of possession have been fulfilled, to the satisfaction of the Court.’

Moreover, in the said Faqir Ali case it has been held that:-

‘Although stricto sensu, it was not necessary for a donor to furnish reasons for making a gift yet no gift in the ordinary course of human conduct could be made without reason or justification, be it natural love and affection for one or more of his children who may have taken care of the done in his old age and thus furnished a valid basis and justification for the donor to reward such effort on the part of the done by way of making a gift in his/her favour. In the wake of frivolous gifts generally made to deprive female members of the family from benefit of inheritance available to them under Sharia as well as law, the Courts were not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice was done to a legal heir who otherwise stood to inherit from the estate of a deceased predecessor or relative and that the course of inheritance was not bypassed or artificially blocked.’ (Underline for emphasis)

Here, in this case, it is an admitted fact on record that the donor Umar Din was an old aged person and the respondents No.1 to 3 being daughters were not associated with the proceedings of alleged making of gift in favour of the petitioner by purported general attorney Abdul Aziz. No plausible evidence has been brought on record by the petitioner as to enjoying of sound and good health with sound mental health by Umar Din at the time of execution of alleged general power of attorney in favour of Abdul Aziz. Moreover, Umar Din, died on 17.02.1995 after about 8/9 days of making of disputed mutations of gift by his purported attorney in favour of the petitioner, and as observed above no specific instructions and directions were issued by him (Umar Din) with regards to making of gift in favour of petitioner to the alleged attorney, which fact also casts aspersions about the authenticity and veracity of the disputed mutations especially when the original transaction has not been pleaded and proved by the petitioner. In judgment reported as Fareed and others v. Muhammad Tufail and another (2018 SCMR 139) the Apex Court has held that:­

‘— a done claiming under a gift that excludes an heir, is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed.’

6.           Mutation per se is not a deed of title and is merely indicative of some previous oral transaction between the parties; so whenever any mutation is challenged burden squarely lies upon the beneficiary of such mutation to prove not only the mutation but also the original transaction, which he was required to fall back upon, which event in this case has not been proved by the petitioner.

7.           In view of the above, it can safely be held that when the petitioner could not legally prove the foundational document i.e. general power of attorney in favour of Abdul Aziz, the subsequently disputed mutations pertaining to gift in favour of the petitioner would also collapse. Therefore, the learned appellate Court has rightly cancelled the mutations No.440 dated 08.02.1995 (Ex.P3) and 612 dated 09.02.1995 (Ex.P4).

8.           Pursuant to the above, the learned appellate Court has not committed any material illegality and irregularity while passing the impugned judgment and decree rather vested jurisdiction has rightly been exercised while appreciating evidence on record minutely and construing law on the subject in a judicious manner. It is a settled principle, by now, that in case of inconsistency between the findings of the learned trial Court and the learned Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary. Reliance is placed on Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).

9.           For the foregoing reasons, the revision petition in hand comes to naught; hence, the same is hereby dismissed. No order as to the costs.

Petition dismissed