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| Registered Hibba cancel |
Brief story of registered Hiba
Plaintiff claim that hiba deed was registered before Subregisterar and also in revenue record.
Civil court ne plaintiff ka dawa decree kar dia.
Or district court ne bhi civil court ka faisla barqarar rakha.
Magar High Court ne Revision main Hiba cancel kar ke bewa or beti ko hissa dene ka order kia.
Jiss ke baad Supreme Court ne qarar dia ke plaintiff/ appellant ne na registery pesh ki or na hi us ki masadqa copy.or intqal revenue record main revenue department ki milibhgat se daraj karwaia or
Appellant ne apni man or bhain ko apne haq se mahroom rakha or Appellant ko 5 lakh special cost (jurmana) kar dia. Or matwafi ki beti or bewa ko us ka hissa dalwa dia.
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SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Qazi Faez Isa
Mr. Justice Syed Hasan Azhar Rizvi
Civil Appeal No. 2613 of 2016
(On appeal from the order dated 03.11.2016 of
the Lahore High Court, Multan Bench passed in
Civil Revision No. 331-D/2013)
Muhammad Rafiq.
…Appellant
Versus
Mst. Ghulam Zoharan Mai & another.
…Respondents
For the Appellant(s)
: Raja Inaam Ameen Minhas, ASC.
a/w Appellant.
For Respondent No. 1
Respondent No. 2
:
:
Mr. Tahir Mehmood, ASC.
Syed Rifaqat Hussain Shah, AOR.
Ex-parte.
Date of Hearing
: 17.03.2023
JUDGMENT
Qazi Faez Isa, J. The learned counsel for the appellant states that
the High Court had allowed the Civil Revision without appreciating
that gift of land in favour of the appellant was made through a
registered gift deed dated 21 April 1993 by his father, namely,
Ghulam Muhammad, therefore, the impugned judgment is not
sustainable. By referring to exhibit P1 he states that this document
was sufficient to establish the gift by the donor, Ghulam
Muhammad, in favour of the donee (appellant herein) and the suit
filed by the daughter and widow of Ghulam Muhammad
(respondents herein) was misconceived. He submits that after the
execution of exhibit P1, and on its basis, the gift was also recorded
in the revenue records vide gift mutation No. 442, attested on 6
January 2008, therefore, the respondents should have arrayed the
revenue authority of Tehsil Dunyapur, District Lodhran, where the
land was situated, as a party to the suit, which was a necessary
requirement of the law. He further states that since the plaintiffs
had alleged fraud particulars of the fraud had to be provided,
which was not done. It is next contended that the suit was not filed
4-Civil Appeal No.2613 of 2016 (1).doc
- 2 -
during the lifetime of Ghulam Muhammad, and was filed beyond
the prescribed period of three years.
2.
We have heard the learned counsel, read the impugned
judgment and examined the referred to documents. Exhibit P1
purports to be a photocopy of the register maintained by the subregistrar of Lodhran. Primary evidence of the gift deed, purportedly
executed by Ghulam Muhammad, would be the gift deed itself, but
it was not produced. Exhibit P1 also does not constitute secondary
evidence, which would have been a certified copy of the gift deed,
but this too was not produced. Significantly, neither the gift deed
(primary evidence) nor a certified copy thereof (secondary evidence)
was produced and instead a photocopy of the sub-registrar’s
register was produced, and on this the appellant’s claim of the
purported gift was based. Incidentally, neither the sub-registrar
nor any officer/official from his office was produced/summoned by
the appellant to testify that the photocopy which was produced
was a true/certified copy from the said register. The appellant did
not produce any tangible evidence of the purported gift, let alone to
have established it.
3.
Upon death the estate of a deceased person devolves upon
his/her legal heirs. In this case, the legal heirs of Ghulam
Muhammad were his widow, son and daughter. Since the alleged
gift was denied, it was for the beneficiary thereof (the appellant) to
have established it. However, the appellant failed to establish the
gift in his favour. And, on the basis of a document which had no
legal significance the appellant sought to deprive his mother and
sister of their inheritance. Shares in the inheritance of a Muslim
deceased are prescribed in the Holy Quran.1 Twenty years have
passed since the death of Ghulam Muhammad during which time
his widow (respondent No. 2) passed away. In depriving the other
legal heirs the appellant acted dishonestly, illegally and violated
Qur’anic injunctions.
4.
As regards the contention of the learned counsel
representing the appellant that the particulars of the alleged fraud
1 Al-Qur’an, Surah An-Nisa (4) verses 11 to 14 and 176.
4-Civil Appeal No.2613 of 2016 (1).doc
- 3 -
were not provided, and that fraud was not established is not a
valid argument. It was for the beneficiary of the gift, who was the
appellant, to have established it. The appellant did not produce the
gift deed or its copy, let alone establish the purported gift in his
favour. What the appellant did, is what we have often noted on the
part of some male heirs, which is to deprive female heirs of their
inheritance, which constitutes fraud.
5.
With regard to the contention that a gift mutation entry was
made in the revenue record, which constituted independent
evidence, this is a fallacious argument. If the revenue authority
had changed the revenue record on the basis of exhibit P1 they did
not act in accordance with the law.2 They also did not issue notices
to the heirs of Ghulam Muhammad to consider any objection that
they may have had. To have acted on the basis of a purported
extract from the sub-registrar’s register and to have changed the
revenue record on this basis was not permissible. If revenue
officers/officials do not abide by the law governing them they can
be taken to task for transgressing the law. The appellant
fraudulently deprived the legal heirs of their share in the
inheritance and then sought to reinforce the fraud by getting the
revenue record changed and this was facilitated by the land
revenue authority. The suffering of the respondents
was
perpetuated by officialdom.
6.
We now attend to the contention of the learned counsel for
the appellant that since cancellation of gift mutation No. 442,
attested on 6 January 2008, by the revenue authority of Tehsil
Dunyapur, District Lodhran was also sought the respondents had
to array the said revenue authority as a defendant. The plaintiffs
(respondents herein) were not obliged to array the said authority
nor were obliged to produce/summon any officer/official of it as a
witness because the respondents had denied the gift and did not
rely upon the said gift mutation. It was the appellant who relied
upon the purported gift and the said gift mutation, therefore, he
had to establish the same. And, it was for him to have
produced/summoned the concerned officer/official from the sub-
2 Land Revenue Act, 1967, section 42.
4-Civil Appeal No.2613 of 2016 (1).doc
- 4 -
registrar’s office and from the revenue authority, which he did not
do. The objection to the belated filing of the suit is also not
maintainable as the plaintiffs had stated recent knowledge and
denial by the appellant and the appellant had failed to controvert
this.
7.
The appellant deprived his mother and sister from their
inheritance. Many females do not have the wherewithal to
approach the courts to obtain their rights. Those like the
respondents that do, suffer, and often have to wait for years, to get
what was rightfully theirs to begin with. The appellant proceeded
on the assumption, like some male heirs do, that even if they
eventually lose the case they would still get the usufruct of the
land by illegally retaining its possession over the years spent in
litigation.
8.
This appeal should never have been filed and we have no
hesitation in dismissing it, and do so with costs throughout. We
also impose special costs in the amount of Rs.500,000 (five
hundred thousand rupees) on the appellant as the defence taken
by him was vexatious and false.3 Costs to be paid by the appellant
to the surviving respondent. If costs are not paid the same shall be
recovered as arrears of land revenue from the appellant, and till
costs are paid they shall continue to constitute a charge on the
estate of the appellant.
9.
Before parting with this judgment, we would want to say that
learned counsel should reflect on how best to advise his clients,
and not become an instrument to perpetuate injustice. Copy of this
judgment be sent to the land revenue authority of Tehsil
Dunyapur, District Lodhran and to the Senior Member, Board of
Revenue, Punjab.
Judge
Islamabad
17.03.2023
Approved for Reporting
Rabbani*/
Judge
3
Section 35-B of the Code of Civil Procedure, 1908.
Zair nazar Judgement main Hiba hoa through power of attorney jabke donor was old age . Lake of evidence case kharaj hu gia appeal main faisla change hu gia. Magar High court ne trial court ka faisla bahal kar dia
Stereo. HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.77 of 2010
Abdul Karim
…Versus…
Mst. Ruqqia Begum (deceased) through L.Rs. and others
JUDGMENT
Date of Hearing: 31.03.2023
Petitioner(s) for: M/s Muhammad Shahzad Shaukat and Taha
Shaukat, Advocates
Respondent(s) for: M/s Malik Noor Muhammad Awan, Ejaz
Khalid Khan and Saima Hanif, Advocates for
respondents No.1 to 3
Mr. Shahzad Mahmood Butt, Advocate for
respondent No.4(a)
M/s Mirza Hafeez Ur Rehman and Mian Ejaz
Latif, Advocates for respondents No.4 (c to e)
M/s Muhammad Mahmood Chaudhry and
Muhammad Zeeshan, Advocates for
respondent No.4(ii)
Mr. Azmat Ullah Chaudhry, Advocate for
respondents No.4(vi to viii)
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
C.R. No.77 of 2010
2
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
C.R. No.77 of 2010
3
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.
C.R. No.77 of 2010
4
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 Qanune-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.’
C.R. No.77 of 2010
5
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
C.R. No.77 of 2010
6
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 aforenoted 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
C.R. No.77 of 2010
7
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
8
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
C.R. No.77 of 2010
9
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.
(Shahid Bilal Hassan)
Judge
Approved for reporting.
Judge
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