Falak Sher etc. vs Irshad Begum

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

Civil Revision No.561/2016

Falak Sher etc. vs. Irshad Begum

JUDGMENT

Date of Hearing: 23.09.2026 Petitioners by: Kh. Nadeem Mushtaq, Advocate.

Respondent by: Proceeded against ex-parte vide order dated Anwaar Hussain, J. The question before this Court for determination, in its revisional jurisdiction, is as under:

Whether a challenge by legal heirs to an oral gift followed by mutation can be repelled merely for want of particulars of fraud under Order VI Rule 4 of the Code of Civil Procedure, 1908 (“CPC”), without independently examining whether the beneficiary has pleaded and proved the very transaction from which his or her title flows?

The question assumes added significance where the challenge is founded upon circumstances surrounding the transaction, including the seriously deteriorating health of the donor, and the alleged gift is followed shortly thereafter by his death. Put differently, can a perceived deficiency in the case of the challenger be allowed to become proof of the beneficiary’s title? It is in this setting that the concurrent findings of the Courts below fall for examination.

2.The petitioners claim to be the legal heirs of one Muhammad Sharif/husband of the respondent, who died on 05.04.2011. Admittedly, Muhammad Sharif was issueless. The petitioners instituted a suit for declaration, permanent and mandatory injunction against the respondent, challenging gift mutation dated 22.02.2011, in her favour, on the ground

that the same was forged and fraudulent and had been procured to deprive them of inheritance, particularly when the donor was suffering from marz- ul-maut (death illness). The suit was contested by the respondent and, after framing of issues and recording of evidence, the Trial Court, through judgment dated 08.06.2015, dismissed the same, inter alia, on the ground that particulars of fraud had not been disclosed. The said finding was maintained by the Appellate Court below through judgment dated 16.01.2016. Hence, this civil revision.

3.Learned counsel for the petitioners contends that the Courts below erred in holding that particulars of fraud had not been disclosed, inasmuch as old age and infirmity of the donor were specifically pleaded in paragraph 2 of the plaint and acknowledged by the respondent. Adds that death of Muhammad Sharif within about 11⁄2 months of the impugned mutation lends further support to the plea that he was seriously unwell and the alleged gift was not voluntary. Further contends that, being beneficiary of the gift, it was for the respondent to prove not only the mutation but also the factum and essential ingredients of the oral gift, whereas even the particulars thereof were not disclosed in the written statement. In support of his contentions, places reliance on cases reported as Mst. Parveen (deceased) through LRs v. Muhammad Pervaiz and others (2022 SCMR 64), and Abdul Majeed and others v. Mst. Khalida Bibi (deceased) through L.Rs. and others (2026 SCMR 587).

4.The respondent engaged Mr. Shafqat Hussain Chaudhry, Advocate, whose power of attorney is available on record. However, on the last date of hearing, i.e., 10.09.2026, no one entered appearance on her behalf despite the name of said learned counsel being reflected in the cause list, issued for the said date. The respondent was, therefore, proceeded against ex parte. Even today, the name of learned counsel for the respondent is reflected in the cause list but neither the respondent nor her counsel is in attendance.

5.Arguments heard. Record perused.

6.There is no cavil with the proposition that a party alleging fraud must plead the material facts constituting it and a vague assertion that a transaction is fraudulent or has deprived the plaintiff of inheritance would not satisfy the mandate of Order VI Rule 4, CPC. The requirement serves an important purpose: a party accused of fraud must know the case it is required to meet. It cannot, however, be converted into a rule whereby failure of the challenger to describe the mechanics of a transaction which he asserts never occurred becomes proof that the transaction did occur. This distinction assumes particular importance where an oral gift is asserted, for the facts concerning its declaration, acceptance, witnesses, time, place and delivery of possession ordinarily lie within the peculiar knowledge of those who set up and claim through it. In cases of this nature, therefore, particulars of fraud may also emerge from the circumstances in which the transaction is alleged to have been brought about—for instance, advanced age or serious illness of the donor, incapacity to understand or participate in the transaction, impersonation or absence before the revenue authority, absence of declaration or acceptance, or other circumstances casting doubt upon the free and conscious act of the donor. Therefore, what constitutes sufficient particulars must consequently be examined in the factual setting of each case rather than through a rigid or formulaic test.

7.Two distinct burdens are thus involved. The first rests upon the person impeaching the transaction on the ground of fraud; the second upon the person who asserts an oral gift as the source of his or her title. They may intersect on the facts, but they neither merge nor extinguish each other. Failure to prove one circumstance alleged in support of fraud does not affirmatively establish declaration, acceptance or delivery of possession. Equally, insistence upon particulars of fraud cannot relieve the beneficiary of proving the transaction from which title is claimed. This distinction is particularly significant where the consequence of the alleged gift is to

exclude persons who would otherwise succeed to the estate by operation of law. The Court must, therefore, examine the challenge and the asserted gift together, while keeping their respective burdens conceptually distinct.

8.Having above legal analysis in sight, the record of the case has been perused. Both the Courts below proceeded substantially on the premise that since the petitioners had failed to discharge the initial burden of pleading fraud with precise particulars, no burden ever arose for the respondent to establish the gift. The relationship between the alleged donor and donee (husband and wife) was also taken into account while considering delivery of possession. The latter circumstance may undoubtedly bear upon the manner in which possession is capable of being delivered between spouses; it cannot, however, dispense with proof of the gift itself. Nor could Order VI Rule 4, CPC be employed to eclipse the respondent’s independent obligation, as beneficiary, to establish the transaction from which she claimed title.

9.The fact that the petitioners are nephews ()بھتیجے, rather than children of the donor, also does not alter this principle. Their degree of relationship may be relevant to the surrounding probabilities of the transaction, but if they are otherwise legal heirs under the applicable law, their succession upon the death of donor Muhammad Sharif arose by operation of law and could be displaced only by establishing a legally valid inter vivos disposition. The validity of the gift, therefore, could not turn merely upon the perceived strength or weakness of the petitioners’ allegation of fraud.

10.Moreover, the Courts below appear to have overlooked paragraph 2 of the plaint and its corresponding reply in the written statement, which are reproduced in juxtaposition below:

وجابدوعی دوعی

رعیضدوعیوااعقیت2 ہیہکرقفہرمن.2 ہیہکوتمیففیعضارمعلوہےنےکالعوہ.2" "ےہ۔ رہایناورفلتخمامیبرویںںیمالتبماھتاکیف رعہصکتزریالعجراہےنلچرھپےنیتحہک وبےنلےسیھبآرخیدونںںیماقرصاھت۔

The above pleadings assume significance beyond merely showing that illness had been pleaded. The petitioners specifically asserted deteriorating health, prolonged treatment and, importantly, that during his last days Muhammad Sharif had become incapable even of speaking. The respondent did not deny these assertions, specifically or even evasively; instead, she described the paragraph as factual. The factual foundation regarding the seriously deteriorating physical condition of the donor thus stood admitted. An admitted fact need not be proved. This admission is material because the alleged gift was not a transaction remote in time from the donor’s illness. The mutation was recorded on 22.02.2011 and Muhammad Sharif died on 05.04.2011, hardly 11⁄2 months later. Proximity of death, standing alone, would not establish marz-ul-maut; however, viewed together with an admitted state of serious and progressive illness, it becomes a circumstance requiring judicial evaluation rather than one capable of being brushed aside.

11.The admission in the pleadings does not stand alone. The assertions of the petitioners in respect of the deteriorating health of the donor were not generated for purposes of the present litigation. They formed part of contemporaneous judicial proceedings recorded on 30.03.2011—barely over a month after the purported gift mutation and only six days before Muhammad Sharif died, which is independent and contemporaneous material on record bearing directly upon the donor’s physical condition. The petitioners produced a copy of an execution petition titled Ameer Begum v. Muhammad Yaqoob and order dated 30.03.2011 passed thereof as Exh.P3. It shows that Muhammad Sharif had stood guarantor in the said

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matter and, pursuant to warrants of arrest, was brought to the Executing Court in a car/ambulance parked outside the said Court owing to his ill health. The Reader of the said Executing Court was deputed to ascertain his condition and it transpired that Muhammad Sharif was unable to speak or converse. Considering his condition, the Executing Court released him on humanitarian grounds. Operative part of order of the Executing Court reads as under:

رقمر ےہ۔ نکیل اضنم دمحم رشفی ےک01.04.2011 لسم ھذا ںیم اترخی یشیپ30.03.2011’’ رگاتفرےیکاجےنیکوہجےسلسمآجشیپوہیئ۔رہظم بیلف ےناضنمدمحمرشفیوکشیپایکےہوجہک دعاتلےسابرہاکراضنموموجدےہدعاتلےکرڈیرآفصومحمدےکذرےعیاضنموکداھکیایگسجوک اشیپبیکیکلنیگلوہیئےہ ۔وجہکوبلاچلہنرکاتکسےہاوراسےکاپوںوسےھجوہےئںیہاسومعقرپ راہج ریمض ریشب اڈیووٹیک ےن اجنمبن اضنم واکتل انہم دالخ ایک ےہ۔ العج رکواےن یک ادتساع ےہ ۔ اضنمیکاحتلتخسرخابےہ۔ ادنرںیوصرتاحلاضنموکالعجیکرضورتےہ۔دہاتییکاجیت ‘‘ےہہکاضنموکیفاولتقااسنین مہردیےکتحتوھچڑااجےئ۔

More importantly, the above-quoted material forms part of contemporaneous judicial proceedings and carries a presumption of regularity and correctness. Neither its authenticity was questioned nor was any evidence led to dislodge what stood recorded therein. In-fact, their significance is further reinforced by the evidence of respondent who appeared as DW-1, and when confronted stated as under:

"۔۔۔ہیطلغےہہکوتمیفوفتوہےنےسلبقدشدیامیبراھت۔ہیدرتسےہہکرشفیوتمیفوکوقعیبےک "دقمہمںیمدعاتلںیماوبمیسنیلںیمرٹسرچیرپڈالرکشیپایکاھت۔

The respondent herself acknowledged the serious illness of the deceased donor in paragraph 2 of the written statement, though she subsequently attempted to resile from that position during cross- examination. Significantly, in the same breath, she admitted that the donor had been brought to the Court’s premises in an ambulance, all within a span of about one month, which circumstance, instead of supporting her denial, materially corroborates the pleaded condition of his serious illness.

Moreover, the Courts below erred by not appreciating that DW.2 namely, Muhammad Aslam, who was one of the attesting witness of the impugned mutation, was related to the respondent. DW.2 stated as under:

""ہیدرتسےہہکریمیریشمہہاراشدمگیبیکاھبیبےہ۔

Clearly, DW-2 was an interested witness and his statement cannot be relied upon to oust legal heirs of the deceased Muhammad Sharif. Similarly DW.3 namely, Muhammad Yousaf who was second attesting witness of the impugned mutation, during his cross-examination, deposed as under:

""ہیطلغےہہکوقعیبےکدقمہمںیمرشفیوکرٹسرچیرپاوبمیسنیلںیمدعاتلالےئےھت۔ DW-3 went to the extent of denying that the donor was ever brought on a stretcher. Read cumulatively with paragraph 2 of the written statement and the respondent's own cross-examination admitting arrival of Muhammad Sharif in an ambulance, these materially divergent versions undermine the credibility of the defence evidence regarding the donor’s physical condition at the relevant time. Thus, the physical condition of the donor reflected in the judicial record was not merely left unrebutted; the relevant statement was also acknowledged from the respondent’s side in evidence. The Courts below, therefore, could not have simply overlooked such material evidence while assessing the physical condition of the donor at the relevant time.

12.The matter has another legal dimension. Marz-ul-maut is not established merely because a person was ill when a transaction was made and died thereafter. The inquiry is whether the illness was causally connected with death; whether its nature was such as to generate an apprehension of death in the sufferer; whether it incapacitated him from pursuing his ordinary avocations; and whether its duration was such as to preserve or diminish the apprehension of imminent fatality. These considerations, recognized in case of Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others (PLD 1994 SC 650), make the donor’s

actual physical condition and capacity at the time of the transaction central to the inquiry.

13.Tested against that standard, the circumstances here could not have been treated as legally insignificant. The respondent admitted the pleaded deteriorating condition; the independent judicial record shortly thereafter depicts Muhammad Sharif as unable even to enter the Court, incapable of speaking or conversing, with swollen feet and in a condition sufficiently grave for the Executing Court to release him on humanitarian grounds for treatment; and he died six days thereafter. The mutation itself had been recorded only about five weeks before those judicial proceedings. Whether these circumstances ultimately constituted marz-ul-maut had to be determined on the totality of evidence, but they unquestionably supplied a substantial evidentiary basis for the plea and demanded scrutiny of the donor’s capacity and of the asserted transaction. The Courts below could not, consistently with the record, dispose of that plea on the footing that serious illness had not been substantiated at all or the particulars of fraud has not been given with precision.

14.The above discussion brings this Court to examine the oral gift itself; the law whereof is settled. A party relying upon it must establish the three essential ingredients: a clear and unequivocal declaration by the donor, acceptance by the donee and delivery of possession. A mutation is a record of an asserted transaction; it is not a substitute for proof of the transaction from which the asserted title flows. Therefore, where an oral gift is disputed by persons who would otherwise inherit, the beneficiary cannot discharge the burden merely by producing the mutation. The underlying gift must stand independently established through cogent, reliable and confidence- inspiring evidence. In case of Muhammad Sarwar v. Mumtaz Bibi and others (2020 SCMR 276), the Supreme Court of Pakistan emphasized the obligation of the beneficiary to establish the factum and essential ingredients of the gift and noticed, in particular, absence of particulars regarding the date, time and place of the alleged gift and the witnesses

before whom declaration and acceptance took place as fatal. The principle assumes even greater clarity from case of Mst. Parveen supra. The beneficiary must prove that the gift was made, accepted and completed in accordance with law. The position has most recently been reiterated in case of Abdul Majeed supra, where the Supreme Court again emphasized that offer, acceptance and delivery of possession are indispensable ingredients and that the oral gift and the mutation recording it involve distinct evidentiary requirements. The same principle has been held in case of Noor Muhammad and others v. Ghulam Haider and others (CPLA No.1103-

L/2016).

15.When the respondent’s case is examined against this settled standard in respect of proof of an oral gift, a fundamental deficiency emerges at the threshold. Her written statement does not disclose the date, time or place at which Muhammad Sharif allegedly made the oral gift; the persons in whose presence the declaration was made; and the manner in which she accepted it. These are not peripheral details. They constitute the factual anatomy of an oral gift. Where the very transaction is denied, its beneficiary cannot rely upon the resulting mutation while leaving the transaction itself without a pleaded and proved factual foundation.

16.The error committed by the Courts below, therefore, lies not merely in appreciation of an isolated piece of evidence but in the legal framework through which the entire controversy was viewed. The petitioners’ obligation to furnish particulars of the fraud alleged by them was treated as though it were the source of the respondent’s title: once that challenge was considered deficient, the gift was virtually allowed to prove itself. The law does not permit that inversion of burdens.

17.This Court is cognizant of the fact that concurrent findings undoubtedly command respect, however, concurrence does not shield a

finding produced by material misreading or non-reading of evidence, or by application of an erroneous rule regarding burden of proof. Revisional jurisdiction is not an invitation to reappraise evidence merely to substitute one possible view for another; but where material evidence is excluded from consideration and one party’s burden is employed to dispense with the independent burden resting upon the other, the error travels beyond appreciation of evidence and enters the domain of legality. The resulting finding, though concurrent, ccannot claim immunity merely by reason of its concurrence.

18.For what has been discussed above, the legal question framed is answered in the terms that a deficiency in furnishing particulars of fraud with precision cannot, by itself, operate as proof of an independently asserted oral gift or absolve its beneficiary from establishing the essential ingredients thereof, particularly where the effect of such gift is to exclude the legal heirs of the donor from inheritance. Even otherwise, the present case was not one of complete absence of particulars: the seriously deteriorating health and illness of the donor at the relevant time had been specifically pleaded and stood admitted by the respondent herself.

19.Consequently, this petition is allowed, the impugned judgments and decrees passed by both the Courts below are set aside and the suit instituted by the petitioners is decreed as prayed for.

(ANWAAR HUSSAIN)

Judge Approved for reporting.

Judge

Announced in Open Court. Dictated on the same date and finalized on 29.09.2026.

Akram