Khalid Javed & 2 Others Vs Azra Bibi etc

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

CR No. 42779 of 2023

Khalid Javed & 02 others vs.

Azra Bibi & 02 others

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 16.12.2025 Mr. Iftikhar Ahmad Chohan, Advocate for petitioners. Mr. Mohsin Murtaza Cheema, Advocate for respondent Nos. 1 and 2.

Through this civil revision, the petitioners have called in question judgments and decrees dated 18.03.2021 and 24.05.2023 passed by both the courts below, whereby suit for declaration and possession filed by respondent Nos. 1 and 2 against them has concurrently been decreed.

2.Learned counsel for the petitioners points out that Akbar Ali, owner of the suit property, was father of petitioner No.1 and respondents and grandfather of petitioner Nos. 2 and 3 who had gifted the same to Khalid Javaid (Petitioner No.1) in his life time, which gift was not challenged by Akbar Ali during his life time and after his death, the respondents without proving that said Akbar Ali had no knowledge of the transfer during his life time could not challenge gift deed in favour of petitioner No.1. For that purpose, he relies upon the judgment reported as Mst. Rabia Gula and others vs. Muhammad Janan and others (2022 SCMR 1009).

3.On the other hand, learned counsel for respondent Nos. 1 and 2, who are daughters of Akbar Ali (deceased), has defended the impugned judgments by stating that alleged gift in favour of petitioner No.1 was oral and he

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was required to prove the said gift by proving date, time and place where offer and acceptance for said gift was made and possession was delivered which has not been done, therefore, the impugned judgments and decrees, decreeing the suit for declaration filed by respondent Nos. 1 and 2 for setting-aside said gift mutation is justified. In support of his contention, he relies upon the judgment reported as Mrs. Khalida Azhar vs. Viqar Rustam Bakhshi and others (2018 SCMR 30). Respondent No.3, Muhammad Javaid son of Akbar Ali, who himself was impleaded as defendant No.2 in the suit, has not entered appearance and has been proceeded against ex-parte vide order of this Court dated

4.Heard. Record perused.

5.It is not denied that Akbar Ali was father of petitioner No. 1 as well as respondents whereas petitioner Nos. 2 and 3 are sons of petitioner No.1. Said Akbar Ali was owner of the land measuring 73-kanals and 17- marlas, which petitioner No.1 claims was transferred to him vide gift mutation No.754 dated 31.01.2011. Akbar Ali, predecessor-in-interest of the parties died thereafter on 29.09.2011, whereafter petitioner No.1 through mutation No.777 dated 11.10.2011 and 861 and 862 dated 11.09.2014 transferred portions of property to respondent No.3 as well as petitioner Nos. 2 and 3 respectively. Respondent Nos. 1 and 2, who were daughters of Akbar Ali, claimed share in inheritance, where-after on coming to know of gift in favour of petitioner No.1 they filed a suit for declaration and possession on 03.12.2024 challenging the transfer of property to petitioner No.1 through gift and further transfer to respondent No.3 and petitioner Nos. 2 and 3. The said suit was contested by the petitioners and after

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recording of evidence was decreed by the trial court and appeal there-against filed by the petitioners was dismissed by upholding the decision passed by the trial court.

6.The grievance raised by the petitioners is that Akbar Ali, predecessor-in-interest of the parties had not challenged the said gift during his life time and respondents have failed to show that he had no knowledge of the gift in his life time, therefore, could not challenge the same in view of judgment mentioned above, whereas respondents claimed that Akbar Ali deceased before his death was old and ill and was dependent on others for his day to day affairs, he never intended to transfer the suit property to petitioner No.1 and during his lifetime had no knowledge of the transfer of his property to petitioner No.1 through oral gift.

7.Be that as it may, gift mutation in favour of petitioner No.1 was made on 31.01.2011 and Akbar Ali died on 29.09.2011 which was within 08 months of making of the gift, therefore, in this scenario where oral gift was challenged by his daughters while seeking share in inheritance, petitioner No.1 was required to prove the genuineness of the same by producing cogent evidence, whereas petitioner No.1 did not appear in the witness box to defend the said claim. Respondent No.1 through evidence supported her claim that father of the parties had not gifted property to petitioner No.1, hence, non- appearing in the witness box by petitioner No.1 himself was fatal to his stance of valid gift taken in the case. Although he produced his son/petitioner No.2 in evidence who himself is also a defendant being subsequent transferee from petitioner No.1, who, of his own showing while appearing as DW-1, stated that he was not available in Pakistan when the said gift was

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made, hence, his evidence relating to oral gift was based on hearsay and not worthy of any credit. Moreover, even Ijaz (DW-2) and Riaz (DW-3) who supported the said transaction as witnesses were not aware of the time, date and place where offer and acceptance for gift was made and possession of property was delivered for completion of oral gift entered in the revenue record, which is a legal requirement of law as mentioned in the judgment reported as Muhammad Nawaz & others vs. Sakina Bibi & others (2020 SCMR 1021), whereby beneficiary of gift is required to establish the afore referred ingredients through cogent evidence, which requirement of law is enforced by courts through strict compliance in cases where the gift has been made in favour of male heirs to deprive female heirs from their share in inheritance, therefore, respondent Nos. 1 and 2 had successfully proved non-existence of the gift and petitioners could not negate the same through cogent evidence. In similar situation, the Supreme Court in the judgments reported as Mst. Aksar Jan and others vs. Mst. Shamim Akhtar and others (2025 SCMR 88), Islam-ud-Din through LRs and others vs. Mst. Noor Jahan through LRs and others (2016 SCMR 986), Khaliqdad Khan and others vs. Mst. Zeenat Khatoon and others (2010 SCMR 1370) and Muhammad Rafiq vs. Mst. Ghulam Zaharan Mai and another (2023 SCMR 988) has put strict onus on the beneficiary of gift and on their failure to prove the same through cogent evidence, set-aside gift transactions in favour of male heirs where the sole purpose of the said transaction was to deprive females from their share in inheritance. Moreover in case of Mrs. Khalida Azhar (Supra) it has been held that in addition to the proof of aforementioned facts, the beneficiary is required to prove that the entry in

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the revenue record was validly made by following the procedure provided in Section 42 of the Land Revenue Act, 1967 otherwise the said transaction would be set aside as not proved. In the present case, the petitioners have not been able to establish that the procedure for entry of oral gift in the revenue record was properly adopted hence, the same would also go against them.

8.The reliance of the petitioners on the judgment of Mst. Rabia Gula (supra) to claim that respondent Nos. 1 and 2 could not challenge the gift made in their favour by the original owner (predecessor of the parties) without establishing that he had no knowledge of the gift transaction is of no help to the petitioners in the instant case for the reason that in the afore referred matter, the donor remained alive for 23 years after entry of gift mutation in the record and had not challenged the same during his lifetime, therefore, proof of lack of his knowledge of the said transaction for such a long period was treated as a basic ingredient for computing the limitation period for challenging the said gift whereas in the instant case the alleged donor died within eight months of entry of gift mutation and in the meantime, has been claimed to be dependent upon others for his day to day affairs, which makes the case distinguishable on facts. Even otherwise, as the original gift in favour of petitioner No.1 by his father has not been established through cogent evidence, therefore, the subsequent transactions which are superstructures of the same transaction are also not sustainable and would collapse alongwith the base upon which the same are standing. Reliance may be placed on the judgment reported as Baja through L.Rs. and others v. Mst.Bakhan and others (2015 SCMR 1704) and Mst. Jameela Begum vs. Qadeer Ahmad (2018 YLR 66).

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9.Consequently, the petitioners have failed to point out any illegality, jurisdictional defect, mis-reading and non-reading of evidence available on record in reaching the decision by both the courts below to warrant interference by this Court in the concurrent findings.

10.For what has been discussed above, this petition being devoid of any merit is dismissed.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *

APPROVED FOR REPORTING