Validation of gift deed.
سندھ ھائیکورٹ کی جانب سے 28.10.2009 کو گفٹ ڈیڈ کی درستگی کو صیح قرار دیا اور مداخلت کرنے والوں کی جانب سے دھوکہ دہی اور غیر ضروری اثر و رسوخ کے الزامات کے باوجود۔ عدالت نے زور دیا:
1. **ویلڈٹی برقرار**: گفٹ ڈیڈ، 60% حصہ مدعی کو اور 40% مدعا علیہ کو منتقل کرتا ہے، کو درست قرار دیا۔ کیونکہ اسے قانونی طور پر انجام دیا گیا، رجسٹر کیا گیا اوروالد کو گواہ بنایا گیا تھا۔
2. **قانونیت کا قیاس**: رجسٹرڈ دستاویزات میں درستگی کا اندازہ ہوتا ہے۔ دھوکہ دہی کے الزامات میں تعمیل کے وقت ذہنی خرابی کے ٹھوس ثبوت نہیں تھے۔
3. **سٹیٹس کو برقرار**: حتمی فیصلہ تک، عدالت نے جائیداد کی ملکیت کو محفوظ رکھا اور ناقابل تلافی نقصان کو روکنے کے لیے فریق ثالث کے مفادات کو روک دیا۔
4. **علیحدہ قانونی کارروائی**: مداخلت کرنے والوں کو گفٹ ڈیڈ کو آزادانہ طور پر چیلنج کرنے والے علیحدہ مقدمے میں اپنے دعووں کی پیروی کرنے کی اجازت تھی۔
یہ فیصلہ جائیداد کی منتقلی میں قانونی طریقہ کار پر زور دینے اور رجسٹرڈ دستاویزات کے تنازع میں ثبوت کے بوجھ پر ایک نظیر قائم کرتا ہے۔
IN THE HIGH COURT OF SINDH AT
KARACHI
SUIT NO.1685 OF 2023
Mst. Shahida Khatoon….………….…………………..…..…Plaintiff
Versus
Zahid Rehman……………..…………………………..……Defendant
Abdul Moiz Jafri, Advocate, for the Plaintiff.
Zohaib Hussain Jagirani, for the Defendant.
Muhammad Asghar Awan, along with Harchand Rai,
Advocates, for the Interveners
Dates of hearing :
22.02.2024 and 07.03.2024
ORDER
YOUSUF ALI SAYEED, J. – The Suit pertains to an
immovable property measuring 1506 square yards, bearing
No. 301/7A, Street No.23, Block 3, Delhi Mercantile
Cooperative Housing Society, Karachi (the “Suit Property”),
which had been allotted by the aforementioned Society to the
mother of the parties, namely Mst. Saeeda Khatoon (the
“Deceased”), with a Form “A” Sub-License being executed in
her favour on 30.09.1980, whereafter a double storey
bungalow was constructed by her thereupon.
2. The Plaintiff claims joint ownership of the Suit Property
on the strength of a Declaration of Oral Gift dated
28.10.2009 executed by the Deceased and registered at
No. 1744 of Book No.1 by the Sub-Registrar III, Gulshane-Iqbal Town, Karachi with M.F. Roll No. 5024 (the
“Gift”), as per which a 60% share is said to vest with her
and the remaining 40% with the Defendant, being one of
her brothers.
3. Through the Suit, the Plaintiff has sought a declaration of
title as well as the partitioning of the Suit Property, or in
the alternative, that the same be sold with the proceeds
being distributed between both parties in accordance
with their shares. It has also been sought that the
Defendant be restrained from dispossessing her from the
Suit Property or otherwise creating any third-party
interest therein pending final determination of the
matter. That claim proceeds on the basis of the Gift,
coupled with the mutation of the Suit Property shown to
have been carried out in the names of the parties in the
records of the Society, with an Allotment Letter dated
16.04.2015 having been issued evincing their admission
as its members in place of the Deceased, and it being
averred that whilst they have remained in join possession
of the Suit Property since virtually the time of the Gift, a
recent breakdown in their relations attributed to
oppressive behavior on the part of the Defendant has
sown discord and given rise to a serious apprehension of
dispossession at his hands, necessitating the Suit.
4. On the other hand, seven other children of the Deceased
(collectively the “Interveners”) have come forward while
seeking to be added as parties, having also filed Suit No.
Nil (-2033)/23 so as to impugn the Gift as having been
obtained through fraud and undue influence, and
seeking its cancellation whilst asserting a share in the
Suit Property as her heirs. Their case for joinder is based
on their professed status as heirs of the Deceased, with
paragraphs 7 to 11 of their respective Affidavits reading
as follows:
“7. That, I say that our deceased mother namely
SAEEDA KHATOON W/o Khalil-ur-Rehman in her
life time wanted to distribute shares amongst the all
legal heirs according to Muhammadan law but due
to ill health she executed Irrevocable General Power
of attorney dated 21/01/1997, in my favour being
one of her legal heir, duly registered by SubRegistrar T Div.-II-A bearing Registration No.63, in
respect of her immovable property in question,
whereby she nominated me as authorized &
responsible individual to sell the suit property and
distribute the shares amongst all the legal heirs
subsequently.
8.
That, I say that despite the clear existence and
validity of the afore mentioned Irrevocable General
Power of Attorney, a disturbing tum of events
unfolded, Plaintiff & Defendant have taken
advantage of the deceased mother's vulnerable state
due to her illness. With apparent malafide
intentions and ulterior motives, they manipulated
and persuaded her into signing a Gift Deed on the
ominous date of October 28, 2009. This Gift Deed
pertained to her immovable suit property, a
significant and valuable asset.
9.
That, I say that it is crucial to underscore the
circumstances under which such Gift Deed was
obtained secretly with fraudulently manner by the
plaintiff &defendant, therefore they had not shared
with the rest of legal heirs. It is submitted that the
plaintiff & defendant are accused for conducting
their motives in secrecy and deliberately withhold
such information from me as well as other
interveners/objectors. The clandestine nature of
this transaction raises grave concerns about the
integrity of the process at a time when the deceased
mother was undoubtedly facing health challenges
and was potentially incapable of fully grasping the
implications of the Gift Deed, whereas the both
plaintiff & defendant have exploited her
vulnerability for their personal gain which raises
questions about the ethics and morality actions, as
well as their commitment with the other legal heirs
of the deceased, from such alleged acts of plaintiff &
defendant, it is clearly proved that how they have
managed to deprive the other legal heirs from their
respective share from the suit property.
10. That, I say that the plaintiff & defendant by
orchestrating the signing of the Gift Deed without
the knowledge or consent of me as well as other
interveners / objectors have violated the very
essence of family trust and unity, such actions have
been manifested from the beginning till now, as they
wanted to deprive the other legal heirs of their
rightful share in the suit property.
11. That, I say that such situation created by the
Plaintiff & defendant, has caused significant
distress among the other legal heirs / interveners by
managing intentionally with ill motives to deprive
the other legal heirs / interveners from their legal
shares, whereas the Plaintiff & defendant remained
silent and did not disclosed for almost 14 years
about such alleged managed Gift Deed and after the
death of mother & father I & my brothers & sister /
intervener / objectors approached to the Plaintiff &
Defendant and requested to sale out suit property
for distribution of their shares amongst the legal
heirs of deceased mother but the Plaintiff &
defendant kept the interveners on promise that they
both are not well off therefore they are residing at
deceased mother's suit property and due to
economic condition of country the value of suit
property has been decreased, so waiting for suitable
time. In the month of May, 2023 I and other
interveners/objectors once again requested the
Plaintiff & Defendant that handover photo copy of
documents of suit property as we may sale the suit
property, then Defendant showed photo copy of Gift
Deed dated 28/10/2009 to us and we become very
astonished that how Plaintiff & Defendant managed
such Gift Deed, keep it secretly about 14 years and
never ever disclosed with us /the
interveners/objectors nor showed such documents
to us / legal heirs of deceased prior to May, 2923.”
5. For his part, the Defendant has essentially echoed the
contentions of the Interveners, with it being stated in
Paragraphs E to H of the Preliminary Objections raised
through his written statement that:
“E. That the plaintiff and defendant were well aware
with the facts that their deceased mother had
instructed / authorized the brother of the parties,
namely Sultan Rehman S/o Khlil-ur-Rehman, to
sell the suit property and distribute the share
amongst all the legal heirs according to
Mohammadan law and in this respect, she, in her
life time executed Irrevocable General Power of
attorney dated: 21/01/1997, in favour of all legal
heirs, duly registered by Sub-Registrar T Div.-II-A
bearing Registration No.63, in respect of her
immovable property, whereby she nominated her
son as authorized individual to sell the suit property
and distribute the shares among all the legal heirs
subsequently.
F.
That the plaintiff enticed the defendant into
getting their mother sign and register a Gift Deed
discreetly, secretly and without knowledge of the all
other legal heirs to devour the suit property for their
personal gain, leaving their mother with the belief
that she was actually signing the document for
distributing shares to all the legal heirs. This was to
be accomplished by taking advantage of the ill
health of their late mother and father as they were
not mentally alert and were incapable of
understanding the true motives and implications of
their misdeed.
G. That the plaintiff convinced the defendant with
malafide intentions to obtain the signature of their
late mother on the Gift Deed dated 28/10/2009 and
get it registered insecrecy and without the
knowledge of other legal heirs. Further the
defendant fell prey to her pleadings for personal
gainas greed had overcome me.
H. That the defendant agreed to pleadings by
plaintiff, Defendant managed his mother to sign and
register Gift Deed to have the whole suit property in
their name as per 60/40% share by misleading the
facts and deceiving their mother.” [sic]
6. The interlocutory applications pending within that
framework are:
(a) CMA No. 16046/2023, under Order 39 Rules 1 & 2
CPC, whereby the Plaintiff has sought to restrain the
Defendant from interfering with her possession of
the Suit Property and creating any third-party
interest in respect thereof; and
(b) CMA No. 1670/2024, under Order 1, Rule 10 CPC,
whereby the Interveners have sought to be added as
defendants.
7. Proceeding thereon, learned counsel appearing on behalf
of the Plaintiff argued that the instrument of Gift had
been lawfully executed by the Deceased of her own
accord whist of sound mind, without any undue
influence, duress or coercion and, had then been
registered for good measure, hence validly conferred title
of the Subject Property on the parties. He submitted that
contention of the Interveners that the Deceased was ill
and in a vulnerable state at the time of execution of the
Gift was false, and was belied by the fact that the
Deceased had herself appeared before the Registrar with
along with both beneficiaries to have the same registered.
Moreover, the husband of the Deceased (i.e. the father of
the parties), namely the late Khalil-ur-Rehman, was one
of the witnesses to the Gift. Per learned counsel, such
facts and circumstances demonstrated that the Gift was
not one that had been obtained in secrecy and completely
dispelled the version of the Interveners and showed that
they had concocted a false narrative in an attempt usurp
the Suit Property. He submitted that the Interveners had
advanced a grossly exaggerated case as to the Deceased
being of ill-health at the time of execution of the Gift
Deed, whereas she had very much been in her senses
and had in fact lived on for approximately eight years
thereafter without challenging its validity or calling for its
revocation, and her husband had also lived on for
approximately nine years after the execution of the Gift
Deed, without raising any challenge in the matter.
8. Conversely, learned counsel appearing for the Defendant
and Interveners fell back on the contentions raised
through the respective pleadings and presented their
arguments while reiterating their challenge to the Gift.
9. Having heard the arguments, it falls to be considered that
the mere assertion of fraud or undue influence is not
sufficient of itself to vitiate a registered instrument, which
carries a presumption of correctness and legitimacy. The
assertions made by the Interveners and Defendant are of
a vague and general nature, with no material having been
placed on record to even suggest at this stage that either
the Deceased or her husband were of feeble mind or
otherwise labouring under any impairment at the time of
the Gift.
10. Under the given circumstances, in view of the Gift and
the admitted fact of possession of the Suit Property
vesting jointly with the Plaintiff and Defendant, a prima
facie case for preservation thereof stands established,
with the balance of convenience being in favour of
maintaining the status quo pending final determination
of the mater and it being apparent that an element of
irreparable loss would be occasioned in the event of
dispossession or creation of any third-party interest. As
for the Interveners, it is apparent that they may advance
their claim through their own Suit, as is already pending,
which would fall to be determined on its own terms.
11. That being so, CMA No. 16046/2023 stands allowed with
the ad-interim order made on 17.10.2023 for preserving
the possession of the Suit Property and restraining the
creation of any third-party interest therein being
confirmed, and CMA No. 1670/2024 being dismissed.
JUDGE
Comments
Post a Comment