Liaqat Ali Vs Shahnaz Akhtar

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

C.R. No.58611 of 2019

Liaqat Ali vs. Shahnaz Akhtar

JUDGMENT

Date of Hearing: 18.02.2025 Petitioner by: Mr. Saeed-ul-Hassan Jaffrey, Advocate.

Respondent by: Mr. Malik Muhammad Iqbal, Advocate.

َوا ْع ِدلُوا بَيْنَ أَ ْوالَ ِد ُك ْم،ََّللا َّ فَاتَّقُوا

(Fear Allah and be just to your children) 1

Anwaar Hussain, J. The respondent instituted a suit for declaration alongwith permanent injunction against the petitioner contending that predecessor-in-interest of the parties, namely, Niamat Ali was owner in possession of the suit property, detail whereof is given in para No.1 of the plaint of the suit, through registered Haqdaran-e-Zamin for the year 1988-89 whereas the petitioner illegally and unlawfully, with connivance of officials of the Revenue Department, Punjab, got sanctioned a gift/hiba in his favour through mutation bearing No.1344 dated 27.02.1999, however, said deceased Niamat Ali neither gifted the suit property to the petitioner nor he appeared before any Revenue Official for the recording of the impugned mutation. The suit was contested by way of filing written statement. Issues were framed. After recording of the evidence, the suit was decreed, vide judgment and decree dated 24.01.2019, which has been upheld by the Appellate Court below through judgment dated 13.05.2019.

Sahih al-Bukhari, Haidth No. 2587.

C.R. No.58611 of 2019

2.Learned counsel for the petitioner submits that the impugned gift/hiba was well within the knowledge of the respondent as she was residing in the same village. Adds that she had not instituted the suit against the impugned mutation in the life of her donor/father, rather, the same was instituted after one and half years of the death of the donor/father. Further contends that the reason for giving away the property to the petitioner was the anger of the donor/father for the respondent on account of her marriage without consent of the donor/father. Avers that the Trial Court has referred to the incorrect names of the witnesses produced by the parties, which is an error and can only be rectified if the matter is remanded to the said Court.

3.Conversely, learned counsel for the respondent has supported the impugned findings.

4.Arguments heard. Record perused.

5.Factual matrix of the case highlights that the donor who happens to be real father of the parties transferred the suit property to the son—petitioner, as he was unhappy with the daughter— respondent, and the donor wanted to exclude the respondent— daughter from the inheritance. So even if the gift was genuine, whether the same was lawfully made. This is the nub of the matter.

6.Before proceeding further to determine the controversy, it will be appropriate to address the argument of learned counsel for the petitioner that matter needs to be remanded as there is disconnect and discrepancy as to the names of the witnesses mentioned in the judgment of both the Courts below and those who actually appeared and deposed before the Trial Court. In this regard, this Court is of the opinion that request of learned counsel for the petitioner to remand the matter is not tenable inasmuch as

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the disconnect is a clerical mistake, rather than substantial error affecting the outcome of the case. Moreso, when there is no denial that as many as three witnesses including herself were produced by the respondent and the petitioner produced six witnesses including himself and the entire evidence recorded by the Trial Court is available before this Court, which has supervisory jurisdiction to rectify errors without remanding the matter where no prejudice is caused.2 In fact, procedural and clerical errors should be rectified by this Court instead of remanding the matter, ensuring expeditious justice.

7.Adverting to the legal question formulated hereinabove, it is trite that Islamic law permits individuals to distribute their wealth, during their lifetime, through gifts, which is a voluntary transfer of the property by one person (the donor) to another (the donee), without any consideration. The essential elements of a valid gift are, a declaration of gift by the donor; acceptance of the gift by the donee; and the delivery of possession. However, such gifts must be given in good faith, without the intention to cause harm or injustice to the other rightful heirs. Islamic teachings emphasize fairness in dealings, particularly among family members. The Prophet Muhammad (Sallallahu Alaihi Wasallam) advised against favoritism among children as quoted hereinabove. This command of the Holy Prophet (Sallallahu Alaihi Wasallam) implies that a father should not show undue favoritism in gift-giving, especially if it results in an unjust exclusion of the other rightful heirs. The Messenger of Allah also said as under:

َ َلر ار ا َل اَل او او ا

َلر ارض اَل

(No harm should be inflicted or reciprocated)

Surya Dev Rai v. Ram Chander Rai & Ors (2003) 6 SCC 675.

Sunan ibn Majah | | سنن ابن ماجہHadith No 2341.

C.R. No.58611 of 2019

The above quoted saying of the Holy Prophet (Sallallahu Alaihi Wasallam) lays down the fundamental principle of preventing harm. Moreover, Islamic law provides for the rights of legal heirs and does not permit acts aimed at circumventing the fixed shares of inheritance as prescribed in the Holy Book. The Quran clearly states as under:

َلُأٱَلَِّ حََلُا َِل ا ِ َر ٱكذِِ َل َ ُم اك َرَلَ ُِ ٱَ ا ِ َلِۤف َلُهٱ ُایا ِی ُصَل ُ نی ٱَ ٱذ َ ”ِۚٱ Allah (thus) directs you as regards your Children's (Inheritance): to the male, a portion equal to that of two females” 4 The above quoted verse from the glorious Quran establishes fixed shares for the heirs, ensuring justice and balance. Any act aimed at disrupting this balance is deemed impermissible. Therefore, if a father gifts his property to his son alone, with the sole intention of depriving his daughter of her rightful inheritance, the father inflicts harm (—)ضرارboth material and moral. Such a gift is considered unjust and contrary to the teachings of Islam. The rationale is that such transactions contradict the fundamental objectives of Shariah, which seeks to uphold justice and equity in the family matters.

8.Put otherwise, Islamic Law allows owner of property to gift the same out of love and affection, and not out of anger for a third party (more particularly if that party is legal heir) permitting the donor to abuse of this right to circumvent the obligatory rules of inheritance. Therefore, any attempt to use gift/Hiba as a tool to deprive lawful heirs is legally and morally impermissible under the Islamic Jurisprudence. Hence, the impugned gift/hiba even if was made by the donor in favour of the petitioner was not in accordance with law.

Surah An-Nisa 4:11 (The Meaning of Holy Quran by Abdullah Yousaf Ali)

C.R. No.58611 of 2019

9.Even otherwise, the reason for depriving the respondent does not hold much water and is belied from the chronological happenings. It is noted that alleged anger against the respondent, on part of the donor, resulting in the alleged gift was triggered by the love marriage of the respondent, which she contracted in the year 1980. However, the said marriage had been ended in divorce and subsequently her second marriage was solemnized in the year 1981, whereas the impugned gift mutation was sanctioned on 27.02.1999 and as per statement of the petitioner’s own witness (DW-1), the donor had participated in the second marriage. DW-1 stated as under:

ت ت "انہشزےکاخودناکنامدمحمامکلےہ۔ دمحمامکلاسیکھتاکنحےکوقدمہیعاکوادلیھبشالماھت۔اکنح ریمے ہن ںیہ۔ دطختس داھکےئ ےئگ ایبین ےھ ہکریمے ہنEx-DW1/1 رپ دطختسEx.P2 ناہم "ںیہ۔ناپاکنحںیمشالماھت۔

(Emphasis supplied)

Had there been any ill-will subsisting with the donor against the respondent, the former would not have participated in the second marriage ceremony of the respondent. Moreover, it also belies logic that having participated in the second marriage of the respondent, which depicts the cordial relations between the donor (father) and the respondent (daughter), the initial anger in the year 1980 would have persuaded the donor/father to give the entire property to the petitioner (son) just to deprive the respondent (daughter), from her inheritance after lapse of more than 19 years.

10.Matter can be examined from another angle. Perusal of evidentiary resume of the petitioner’s side reveals that the donor’s anger towards the respondent (his daughter) motivated him to give away his entire property to the petitioner, which indicates that the

C.R. No.58611 of 2019

donor was under significant distress, stemming from the embarrassment caused by the respondent’s first marriage, which took place without the consent of the donor/father. This assertion of the petitioner, even if accepted, (although the donor admittedly participated in the second marriage of the respondent), itself exhibits that the donor was under continuous distress lasting for 19 years. This raises a question as to whether gift offered by a person in such a state of continuous distress is valid under Section 16 of the Contract Act, 1872 (“the Act”), which reads under:

“16. “Undueَلinfluence” defined.—(1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other.

(2)In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-

(a)where he holds, a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b)where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3)Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

Nothing in this subsection shall affect the provisions of section 111 of the Evidence Act, 1872.”

(Emphasis provided)

C.R. No.58611 of 2019

Section 16 defines “undue influence” as a circumstance in which one party is able to dominate the will of another, either through actual authority or by exploiting a fiduciary or other vulnerable relationship, including instances where mental or bodily distress compromises a person’s capacity for rational decision-making. In this case, even if the donor’s anger is accepted as a motivating factor, the cumulative analysis of the evidence on record suggests that he was unduly influenced by the petitioner, potentially lacking the requisite mental capacity to make a fully rational and free decision. Consequently, under Section 19-A of the Act, such a transaction may be considered voidable and the respondent was fully justified in questioning the oral gift, as legal heir of the deceased Niamat Ali.

11.Even otherwise, the petitioner failed to prove the oral gift mutation, which is witnessed by only one witness, namely, Yaseen, who was never produced by the petitioner/defendant in order to substantiate the genuineness of the impugned gift transaction. There is no evidence on record to establish that the said witness was not available. No effort was made on part of the petitioner to lead secondary evidence if the said Yaseen was not available. In this manner, the best evidence available with the petitioner was withheld that brings the case of the petitioner within the clutches of illustration (g) to Article 129 of the Qanun-e- Shahadat Order, 1984, which contemplates that an adverse presumption is to be drawn against the party, who withholds the best evidence5.

12.Suffice to state that the revisionary power of this Court is limited in matters of concurrent findings of the Courts below and this Court would, as a settled law, not interfere in the concurrent Dilshad Begum v. Mst. Nisar Akhtar (2012 SCMR 1106).

C.R. No.58611 of 2019

findings of the Courts below unless the same are found to be illegal, materially irregular, infected with misreading of evidence, jurisdictional defect or procedural impropriety. Despite arguing the case at full length, learned counsel for the petitioner could not point out any illegality, irregularity, misreading of evidence, jurisdictional defect or procedural impropriety in the impugned findings of the Courts below.

13.In view of the above discussion, this Court is of the opinion that the petitioner failed to prove the valid execution of the gift mutation. Both the Courts below have correctly decreed the suit of the respondent. As a natural corollary, this petition, having no merit is dismissed.

(ANWAAR HUSSAIN)

JUDGE

Approved for reporting

Judge Maqsood*