Can husband gift property to wife in Pakistan | can you gift your wife a house.
Can husband gift property to wife in Pakistan
Yes husband can gift properly to her wife but he will have to follow all the law relates.
Following high court judgement is on topic, in which property was gifted to wife, and she defend her property and won the case
can you gift your wife a house.
Yes it is possible. Following high court case law is on topic and tell the details about it.
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دلچسپ اور انصاف پر مبنی فیصلہ ھے۔ پٹشنر نے کیس فائیل کیا کہ مرنے والے نے بیوی کو پراپرٹی ھبہ نہیں کی اور پٹواری کے ساتھ ملی بھگت کر کے انتقال کروایا گیا ھے۔یہ کہ مرنے والا تین جار سال بیمار رہا ھے اور بستر مرگ پر تھا کہ بیوی نے ملی بھگت کر کے ھبہ اپنے نام کروا لیا اور انتقال بھی کروا لیا۔
کیس کیا استقرار چق کا اور پرماننٹ انجنکسن کا۔
اب یہ بات پٹشنر نے پرو کرنی تھی کہ بیمار تھا اور مرگ الموت تھا اور ملی بھگت ھوئی ھے پٹواری کے ساتھ مل کر
پٹشنر کوئی میڈیکل پیش نہ کر سکا اور نہ ہی کوئی اور ثبوت جس سے یہ ثابت ہو سکے کہ بیمار تھا۔ ڈاکٹر کا نام بتایا مگر ڈاکٹر کو گواہ کے طور پر پییش نہیں کیا۔ لہزا کیس ثابت نہیں ھوا۔
جبکہ بیوی نے ثابت کیا کہ خاوند خود پٹواری کے پاس گیا اور بیان ریکارڈ کروایا اور خاوند نے خود ھی تحصیلدار کے پاس بیان ریکارڈ کروایا۔ اور محرک بھی واضح ھے کہ میاں بیوی بے اولاد تھے اور خاوند نے بیوہ کے مستقبل کی حفاظت کے لیے ھبہ کیا۔
ٹرائیل کورٹ نے کیس خارج کر دیا جس کہ بعد ڈسٹرکٹ جج نے اپیل خارج کر دی اور پھر ھائیکورٹ نے بھی فیصلہ برقرار رکھا۔
Lahore High Court Case laws on gifted property to wife.
Stereo.HCJDA-38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
C.R. No.661 of 2012
Mst. Samina Kausar and others
v.
Mst. Nasreen Bibi and others
J U D G M E N T
Dates of hearing
15.11.2023
Petitioners by
Hafiz Jamil Ahmad Naqeebi,
Advocate.
Respondent No.1 by
Muhammad Azam Warraich,
Advocate.
Respondent Nos.2 to 6 Nemo.
Rasaal Hasan Syed, J. The petitioners in this civil
revision have challenged the judgments and decree of the
courts below whereby their suit for declaration with
consequential relief was dismissed by the learned Civil Judge
on 02.3.2011 which judgment was affirmed in appeal by
learned Addl. District Judge vide judgment dated 31.1.2012.
2.
Facts from which the instant case stems are that the
petitioners instituted a suit for declaration to challenge
mutation Nos. 133 and 206 dated 27.5.2005 claiming that the
same were a result of connivance with the revenue staff and
that late Ghulam Nabi their paternal uncle was suffering from
paralysis and was mentally incapacitated because of this
condition from differentiating between right and wrong and
that he was bedridden on account of his illness and remained
so for about 3½ years and that during his prolonged illness
mutations were got attested against his consent. Suit was
2
Page-2
resisted, issues were framed and evidence recorded.
Petitioners Zareena Kausar and Samina Kausar appeared as
P.W.1 and P.W.2 and also produced three other witnesses in
their support as P.W.3 to P.W.5. Respondent No.1 appeared
as D.W.1 and produced D.W.2 and D.W.3 to fortify her
stance. She also tendered in evidence documents Ex.D-1 to
Ex.D-4. On considering the evidence and submissions pro and
contra the learned Civil Judge dismissed the suit while
concluding that the petitioners failed to produce any medical
evidence in support of the allegations of serious illness and
mental incapacity allegedly suffered by the deceased Ghulam
Nabi before his death nor could they establish their case by
any credible evidence. In appeal the learned Addl. District
Judge duly reexamined the entire evidence and affirmed the
findings recorded by the Trial Court.
3.
Heard.
4.
From the narrative given supra it is manifest that in
their suit for declaration with consequential relief the
petitioners claimed that late Ghulam Nabi son of Abdul Ghani
owned land measuring 21 kanals, 18 marlas in khata No.52,
khatuni No. 96/97 in Mauza Nehal Garh, Tehsil and District
Narowal as per register haqdaran for the year 1999-2000; that
he also owned land measuring 05 kanals, 09 marlas in khata
No.45, khatuni No.100 as per register haqdaran for the year
1999-2000 in Mauza Bhattian Devan, Tehsil and District
Narowal which land on his death devolved upon the
C.R. No.661 of 2012
Page-3
petitioners and respondent Nos. 2 to 6 and respondent No.1 to
the extent of 3/4th and 1/4th shares respectively. It was asserted
that late Ghulam Nabi was paternal uncle of petitioners and
maternal uncle of respondent Nos. 2 to 6 while respondent
No.1/Mst. Nasreen Bibi was his widow. Petitioners claimed
that about 3¼ years before the filing of the suit Ghulam Nabi
had a stroke of paralysis, who became bedridden and was
unable to walk or to identify any person and was also unable
to distinguish between good or bad and that respondent No.1
was living with him as his wife during the period of such
illness who in connivance with the revenue staff got the suit
land transferred in her own favour through mutation Nos. 133
and 206 dated 27.5.2005 by fraud and that Ghualm Nabi was
on deathbed suffering from marz-ul-maut who had lost his
senses and died on 02.7.2006. With these allegations the
petitioners sought annulment of the mutations and claimed
3/4th share in the property. Based on the plea and assertions
made in the plaint the Trial Court framed five issues out of
which issues Nos.1 to 3 are relevant. These are reproduced
below for facility of reference:
“ISSUES:-
1.
Whether the original owner of suit property
Ghulam Nabi died during Marz-Ul-Mout? OPP
2.
Whether the defendant No.1 in collusion with
the revenue authority fraudulently transferred
the disputed property in her name through
mutation Nos.133, 206 dated 27.5.2005 and
same mutations are ineffective upon the rights
of plaintiff? OPP
3.
Whether the plaintiffs have no cause of action
to institute the present suit? OPD
C.R. No.661 of 2012
Page-4
5.
After considering the evidence the findings recorded by
the learned Civil Judge were that the petitioners/plaintiffs
could not prove their case. In substance the basis of the
findings of the learned Civil Judge were that the petitioners
did not produce any medical evidence to prove that the
deceased was suffering from the ailment alleged or he could
not walk or speak or was mentally incapable of taking
decisions. The learned Civil Judge took note of the fact that
P.W.1 (plaintiff No.2) in her cross-examination stated that
her uncle was not given any medical treatment nor did he
ever ask for medical treatment while P.W.2 (plaintiff No.1)
claimed such treatment of the deceased through one
Dr. Parvaiz but he was never produced in the witness-box.
As regards the testimony of P.W.3 Muhammad Ashraf, his
testimony was disbelieved as he admitted that he never
accompanied late Ghulam Nabi for medical treatment and
that he did not know the name of the doctor who ever
declared Ghulam Nabi as mentally incapacitated. As to the
statement of P.W.5 who identified the mutations under
challenge and also appeared for the petitioners, it was
observed that he admitted that he identified Ghulam Nabi
when he was asked by the patwari as to whether he knew
Ghulam Nabi or not and that he also put his signatures on the
mutations.
6.
The crux of findings was that the petitioners having
taken specific stance about the alleged illness of the deceased
C.R. No.661 of 2012
Page-5
Ghulam Nabi which according to them continued for 3¼
years, they were under heavy onus to prove the plea and they
also were under heavy onus to establish fraud but had failed
to do so. The non-production of medical evidence was also
sufficient to disbelieve their version. The learned Addl.
District Judge in appeal reexamined the entire evidence and
observed that the petitioners failed to produce any medical
certificate or medical evidence or so much as a prescription
of competent medical practitioner. There was no evidence on
record to prove that the deceased Ghulam Nabi had ever
received medical treatment before his death. Dr. Parvaiz was
claimed to be medical attendant of Ghulam Nabi was never
produced nor any application was made for summoning the
said doctor in evidence and, therefore, the petitioners had
failed to discharge the onus to prove their case. As against
the evidence of petitioners, respondent No. 1 appeared in the
witness-box as D.W.1 who deposed that the oral gift was
made 14 months prior to the death of Ghulam Nabi and that
the witness Asghar Ali Bhatti, Naib Nazim Union Council,
had accompanied D.W.1 to the patwarkhana of the mauza.
He was also pattidar of the same village/mauza and
identified the deceased. He appeared as witness for the
petitioners/plaintiffs as P.W.5 and attempted to extend
corroborative support to the petitioners but he could not deny
that he had identified Ghulam Nabi before the patwari and
tehsildar and that he had signed the register of mutation an
C.R. No.661 of 2012
Page-6
that he always used to sign after reading the contents of
writing and all these facts proved that Ghulam Nabi did
appear before the patwari and tehsildar of the mauza for
attestation of mutations and that there was no evidence of
fraud and collusion. With these amongst other reasons the
learned Addl. District Judge dismissed the appeal.
7.
Learned counsel for the petitioners could not point out
any misreading or non-reading of evidence by the courts
below whereby the suit of the petitioners was concurrently
dismissed. On review of the entire evidence it is discernable
that the petitioners’ stance for seeking indulgence against the
mutations was based on the plea that due to attack of
paralysis the deceased Ghulam Nabi suffered from serious
ailment including mental unsoundness, inability to recognize
anyone, inability to walk or speak or talk, inability to identify
anyone, inability to decide between right or wrong and
inability to perform his day-to-day affairs. And that he was in
the state of marz-ul-maut during which period the mutations
were got attested. In the first instance the petitioners did not
allege in the plaint that the deceased ever remained under
medical treatment of a doctor or that they had ever provided
medical treatment to him for such alleged illness. By
attributing unsoundness of mind, the petitioners in fact were
alleging insanity. Question in this case was as to whether the
petitioners had been able to establish the plea of mental
unsoundness or disability as claimed. In Muhammad Munir
C.R. No.661 of 2012
Page-7
and others v. Umer Hayat and others (2023 SCMR 1339) it
was observed to the effect that the evidence of layman,
especially relatives like son, daughter, wife, etc. may be
relevant but being biased and exaggerated it cannot be
conclusive. In law where the treatment is claimed to be by a
qualified medical practitioner the appearance of such expert
in the witness-box is necessary and non-production of such
person without any plausible explanation would amount to a
serious evidentiary flaw. In the instant case the plaint was
silent as to the medical treatment of the deceased by any
particular doctor or specialist for the illness claimed. P.W.1
who was one of the plaintiffs in the case stated that their
paternal uncle late Ghulam Nabi was not given any medical
treatment by them nor did he ask for it. P.W.2 claimed
medical treatment by one Dr. Parvaiz as well as by many
other doctors from time to time but none of them was
produced in evidence. In view of the assertions as to the
nature of the disease, the deceased was allegedly suffering
from it was incumbent on the petitioners to have produced
some medical evidence of a specialist or the person who was
allegedly treating the deceased in his lifetime.
Notwithstanding the same, no effort was made nor any
application was filed for production of Dr. Parvaiz or any
other doctor under whose treatment the deceased, according
to petitioners, had allegedly remained. The non-production of
such evidence was a pivotal flaw in the case of the
C.R. No.661 of 2012
Page-8
petitioners which fact was rightly taken note of by the courts
below to disbelieve their stance. As to the claim that on
account of paralysis the deceased Ghulam Nabi had lost his
senses and was unable to recognize or to perform his
quotidian functions and that he was passing through the state
of marz-ul-maut; paralysis asserted could not automatically
entail the inference of mental incapacitation or
incomprehension which had to be specifically proved qua the
disputed document in view of the rule supra.
8.
The plea of the petitioners of the deceased suffering
from marz-ul-maut itself also could not be proved by any
medical evidence or other evidence worthy of consideration.
Reference in this respect can be made to the case of Mst.
Chanan Bibi and 4 others v. Muhammad Shafi and 3 others
(PLD 1977 SC 28) where it was observed that:
“…The law applicable to the case is not in controversy. If the
gift by Rajwali was made under, what the Privy Council
described in Arabi Ghulam Arif v. Saiboo 34 I A 167 as
"pressure of the sense of the imminence of death" then the
gift would be hit by doctrine of marz-ul-maut. The same
criterion was accepted by this Court in the case of
Shamshad Ali Shah noticed earlier. Both these precedent
cases set out the following factors which the Court should
consider to sustain the conclusion that the impugned
transaction was made under such pressure:
"(i) Was the donor suffering at the time of the gift from a
disease which was the immediate cause of his death?
(ii) Was the disease of such a nature or character as to
induce in the person suffering the belief that death would be
caused thereby, or; to engender in him the apprehension of
death?
(iii) Was The illness such as to incapacitate him from the
pursuit of his ordinary avocations-a circumstance which
might create in the mind of the sufferer an apprehension of
death?
(iv) Had the illness continued for such a length of time as to
remove or lessen the apprehension of immediate fatality or
to accustom the sufferer to the malady
C.R. No.661 of 2012
Page-9
The first is essentially a question of fact and the best
evidence could be that of a medical attendant who treated
the deceased at the relevant time. It is noteworthy that in
various cases cited at the Bar some doctor or Hakim had
appeared to testify to the condition of the patient at or about
the time the impugned instrument was executed. Evidence
of laymen particularly of relatives may be relevant. But it
cannot be conclusive particularly when it is partisan and
exaggerated. In the instant case, it was admitted by Ghulam
Fatima plaintiff that though Rajwali remained under the
treatment of a Hakim at Bhera but he was not examined. I
consider this as a serious drawback in the plaintiff's case.
The burden of proof of issue relating, marz-ul-maut lay
heavily on the plaintiff, and the oral evidence did not inspire
the confidence of the trial Judge...
…Thus it is wrong to suggest that stroke of paralysis is
immediately dangerous to life and that merely because
Rajwali was suffering from paralysis it must be inferred that
he was under pressure of the sense of the imminence of
death.”
Reference may also be made to Safi Ullah v. Ghulam Jabbar
and four others (PLD 1955 Lah. 191) wherein the gift was
challenged on the ground that the deceased suffered from
prolonged illness and was bedridden before his death and
that he executed the gift on 24.3.1948 and died on 28.8.1948;
it was observed to the effect that mere long drawn illnesses
like paralysis or gout per se were insufficient to sustain plea
of marz-ul-maut.
9.
Curiously, the petitioners claimed that late Ghulam
Nabi had been suffering from paralysis for more than three
years and that during this period as per P.W.1 he was not
provided any medical treatment but as per P.W.2 he had been
treated by one Dr. Parvaiz who was not produced as a
witness nor did the petitioners produce any medical evidence
like medical certificate or doctor’s prescriptions to prove that
the man was suffering from unsoundness of mind. Crucial
C.R. No.661 of 2012
Page-10
point for determination in the instant case was the plea of
insanity or unsoundness of mind at the time of attestation of
mutations and best evidence to prove it could be of medical
attendant/expert who treated the petitioners’ predecessor at
the relevant time but he was not examined nor any plausible
explanation was furnished as to why he was not produced in
evidence. Burden of proving the alleged unsoundness of
mind was in the first instance on the petitioners who had
failed to discharge it by producing any credible evidence.
10. As against this respondent No.1 appeared as D.W.1 and
deposed on oath that the suit land was transferred in her
favour through impugned mutations, she was in possession
thereof and that the transaction was made 14 months before
the death of Ghulam Nabi and that he was not suffering from
any ailment which could affect his mental state or rendered
him incapacitated from dealing with his day-to-day affairs
and that the deceased was living with her till his death. She
was supported by D.W.2 and D.W.3 who used to visit late
Ghulam Nabi and deposed that the deceased had
acknowledged before them about the attestation of mutation
and of gifting the property and that he was physically and
mentally capable to deal with his day-to-day affairs and that
the respondent No.1 was in possession of the property. The
significant factor is that the respondent No.1 was married to
the deceased, the couple remained issueless but lived happily
together. P.W.2 herself admitted that the deceased and
C.R. No.661 of 2012
Page-11
respondent No.1 had good relations and both were living
together. Knowing well that he was issueless and that his
wife served him throughout by giving good and dutiful
company, being issueless, it would be not unusual that
difficulty which the widow could potentially suffer or
undergo if she was not protected with sufficient resources in
case of his demise and, being so, the motive appeared to be
justified and obvious. It is not a case of gifting of the entire
property to a daughter by ignoring the sons or to a son by
ignoring the daughters. Rather it was the case where the
couple who was issueless and the property was being
transferred by the husband to the wife in lifetime to provide
protective coverage.
11. Another factor pertinent in the case was that petitioner
Nos.1 and 2 claimed to be paternal nieces of deceased while
respondent Nos.2 to 6 claimed to be maternal nieces who
were not joined as plaintiffs, despite having same
claim/interest in the inheritance of deceased who neither
filed any suit nor supported the petitioners in the present case
and rather opted to stay away from the proceedings.
Petitioners could not give any plausible justification for their
not joining in the case with them and only claimed that for
some unavoidable reason they could not be joined. Obvious
inference shall be that they did not support the petitioners as
they knew that their maternal uncle had validly transferred
the property to his issueless wife. The mutations were
C.R. No.661 of 2012
Page-12
attested on 27.5.2005, Ghulam Nabi remained alive for 14
months after attestation but he never challenged the
mutations and, therefore, the petitioners could not challenge
the validity of the gift made by the deceased who had
acquiesced to the transaction by his conduct and action. As
such the petitioners have no locus standi or cause of action to
file the suit.
12. For the reasons supra, the findings of the courts below
do not suffer from any error of law or misreading of the
record. No ground is made out for interference. In result,
instant revision petition is without substance which is
accordingly dismissed.
(RASAAL HASAN SYED)
JUDGE
ANNOUNCED IN OPEN COURT ON 28.11.2023
JUDGE
APPROVED FOR REPORTING
JUDGE
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