Muhammad Sarwar vs Maqsoodan Bibi etc.

HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

C.R. No. 537 of 2015

Muhammad Sarwar (deceased) through L.Rs Versus Mst. Maqsoodan Bibi and others

JUDGMENT

Date of hearing 29.09.2026.

Revision-petitioners Mr. Saghir Ahmad Bhatti, by Advocate.

Respondent No. 1 Syed Kabir Ahmad Mehmood, by Advocate.

Respondents No. 2 (Impleaded as proforma to 5 respondents) Nemo.

Sultan Tanvir Ahmad J:- Mst. Maqsoodan Bibi / respondent No. 1 instituted the suit on 28.07.2008 (the ‘suit’) seeking a declaration against tamleeq mutation No. 794 dated 31.01.1994 and the subsequent mutations sanctioned on the same day in respect of the property detailed in the suit (the ‘suit property’). The learned trial Court decreed the suit vide judgment and decree dated 24.10.2013, and the findings so recorded were affirmed by the learned Appellate Court vide judgment and decree dated 03.04.2015. Hence, the instant revision petition.

2.Mr. Saghir Ahmad Bhatti, learned counsel for the revision-petitioners has argued that the learned Appellate Court has declared that Muhammad Sarwar is a bona fide purchaser and this finding was never challenged, therefore, it attained finality. He stated that despite this declaration,

protection under section 41 of the Transfer of Property Act- 1882 (the ‘Act’) is not provided to the revision-petitioners, which is against the settled principles. Added that even otherwise, the findings of the learned two Courts below are result of misreading of evidence.

3.Conversely, Syed Kabir Ahmad Mehmood, learned counsel for respondent No. 1 has opposed this revision- petition.

4.Heard. Record perused.

5.Admittedly, the suit property is part of the estate of Muhammad Ishaque-deceased, who left behind Mst. Hajran- deceased (his wife), Muhammad Rasheed (respondent No. 2), Mst. Maqsoodan Bibi (respondent No. 1) and Mst. Maqboolan Bibi. The inheritance mutation with respect to the given estate of Muhammad Ishaque-deceased was brought into effect on 18.01.1994. Soon thereafter, on 31.01.1994, gift mutation No. 794 by Mst. Maqsoodan Bibi (respondent No. 1) in favour of Mst. Hajran-deceased was effected. Somehow, on the same day, gift mutation No. 795 by Mst. Hajran-deceased in favour of Muhammad Rasheed (respondent No. 2) was carried out, who then through mutation No. 796 attempted to pass on the suit property to his sons on the same day i.e. 31.01.1994. As per the revision- petitioner”s claim, he has purchased the suit property from Imran Ali and Haroon Ali (respondents No. 3 and 4) sons of Muhammad Rasheed, in the year 2008 through mutation No. 1575 dated 18.02.2008 / Exh.P-6, which admittedly is dependent on the genuineness and authenticity of gift mutation Nos. 794 (Exh.P-2), 795 (Exh.P-3) and mutation No. 796 (Exh.P-4) dated 31.01.1994 (hereinafter the three mutations dated 31.01.1994 together shall be called as the ‘mutations’).

C.R. No. 537-2015 3

6.Respondents No. 2 to 5 being beneficiaries of the gift were required to prove the genuineness and contents of the mutations, in addition to the presence of ingredients of the gift. Muhammad Rasheed appeared as DW-1 and deposed that the factum of gift was brought in writing in the presence of lambardar and thereafter they have not appeared before any officer. In the whole pleadings and the examination of Muhammad Rasheed, date, time and place of the gift are conspicuously missing. Muhammad Rasheed remained most important witness who claimed that Mst. Maqsoodan Bibi (respondent No. 1) made gift of the suit property to her mother. In his examination-in-chief he never stated that respondent No. 1 has actually handed over the possession to her mother. In the absence thereof gift was not complete. His witness namely, Hassan Din who appeared as DW-2, admitted that the possession was with Muhammad Rasheed since the death of his father (Muhammad Ishaque) and then he had been continuously cultivating the suit property.

7.Admittedly, respondent No. 1 is an illiterate parda nashin lady. It is repeatedly settled that in such situation a lady must be given independent advice from reliable and trustworthy sources so as to ensure that she fully understand the transaction and consequence of parting with the property. Reference can be made to Pervaiz Akhtar1,Ghulam Farid and another2,Ghulam Muhammad3 and Abdul Aziz4 cases.

8.Fraud and exploitation of females vis-à-vis their right of inheritance, which have remained prevalent in our society, “Pervaiz Akhtar vs. Mst. Farida Bibi and others” (PLD 2023 Supreme Court 628).

“Ghulam Farid and another vs. Sher Rehman through L.Rs”

(2016 SCMR 862).

“Ghulam Muhammad vs. Zohran Bibi and others” (2021 SCMR “Abdul Aziz vs. Mst. Zaib-un-Nisa and others” (PLD 2022 Supreme Court 504).

are evident in the present case from the successive gift mutations sanctioned on the same day, i.e., the gift by Mst. Maqsoodan Bibi in favour of her mother, the subsequent gift by her mother in favour of Muhammad Rasheed and thereafter, the gift by Muhammad Rasheed in favour of his sons. This sequence of transactions reflects the zeal and intent to deprive Mst. Maqsoodan Bibi of her inheritance. The findings recorded by the learned two Courts below, to this extent, do not suffer from any perversity or illegality resulting in injustice so as to warrant interference by this Court in its revisional jurisdiction.

9.Now coming to the claimed protection under section 41 of the Act, which remained the main focus during arguments by the learned counsel for the parties. Section 41 of the Act reads:-

“...Transfer by ostensible owner.- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it:

Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith...”

The above enshrines the principle of equity that where one man allows another to hold himself out as the owner and a third person purchases the property, for value, from the apparent owner in the belief that he is the real owner, the man who so allows is not permitted to recover upon his hidden title, unless it can be shown that purchaser had direct or constructive notice, of the real title. The purchaser is also required to exercise a reasonable care to ascertain the power

to transfer by the ostensible owner and good faith. This is exception to the rule that “he gives not who hath not”. No person can transfer or grant a right, title or property to another that they do not actually possess themselves.

10.The above exception requires establishing the following four conditions by the one who claims protection:-

(i)The transferor is the ostensible owner ;

(ii)He is so by the consent, express or implied, of the real owner ;

(iii)The transfer is for consideration; and (iv) The transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

If any of the conditions fails, the shield of section 41 of the Act is not available.

11.The second condition to claim protection under section 41 of the Act requires that the real owner allows another to hold as an apparent owner and the real owner does so by consent, expressly or impliedly. This condition is in addition to the remaining conditions. The principle is that when one of the two parties has to suffer by an act of the third party, the one who enabled the third to occasion the loss, must sustain.

12.In Muhammad Afzal5 the case involving an issue of inherited land, the Honourable Supreme Court has observed as under:-

“...Even otherwise one of the foremost conditions for the plea under section 41 of the Act, that the Transferor must be shown as ostensible owner but here the transferor was neither in actual and physical possession nor he had been shown in the Revenue Record as “Muhammad Afzal vs. Matlooob Hussain and others” (PLD 2006 Supreme Court 84).

in possession of his share but rather plaintiffs or their predecessor had been shown to be in physical possession of the property in dispute...”

13.In Muhammad Shamim through Legal Heirs”6 case the question of inheritance of daughters was involved who were entitled to succeed and stepped into the shoes of their father on his death. The Court ruled as under:- “...whereas the principle that an innocent buyer should not suffer for the fraud practiced by the seller; the doctrine of Caveat emptor i.e. let the buyer beware, that the purchaser has only himself to be blamed if he is wronged, due to his fault also has to be kept in view. It is also well-established that a vendor cannot pass on to the vendee anything better than he himself holds. Therefore, it is the vendee who is to apply maximum care before going for a transaction of sale/purchase...”

In “Ghulam Rasool” and others”7 case it is noted that merely on account of an error committed in revenue record, without involvement of real owner, he cannot be deprived from the title of the property. Similarly, learned Peshawar High Court in Murad Ali Khan8 case observed as under:- “10. One of the essential ingredients required for giving benefit of Section 41 of the Act was that when the original owner gives any express or implied consent or similar representative to the buyer or purchaser. It was also found that the person from whom defendant No. 3 had purchased the property had not been in physical possession of the property in dispute. Their entry as ostensible owner have no doubt been existing in the revenue record but in a case where express or implied consent of the other person

“Muhammad Shamim through Legal Heirs vs. Mst. Nisar Fatima through Legal heirs and others” (2010 SCMR 18).

“Ghulam Rasool and others vs. Noor Muhammad and others”

(2017 SCMR 81).

“Murad Ali Khan and another vs. Sarwar Khan and 40 others”

(2024 YLR 1803).

interested in such property had not been available and such persons have also been in physical possession of the property in dispute, then transfer by the ostensible owners cannot be dealt protected under Section 41 of the Act ibid...”

(Emphasis supplied)

Besides this there is a line of judgments settling that the four conditions must co-exist.

14.Coming back to the facts of the present case. Respondent No. 1 maintained that Muhammad Rasheed / respondent No. 2 during the relevant period was giving share in the proceeds of the yield from the suit property. She also deposed the same in her examination-in-chief. She was asked questions in this regard which were confidently answered by her. Hassan Din appeared as DW-2, however, could not state with any certainty that claim of aforesaid proceeds / hissa bitai by respondent No. 1 is incorrect. He belonged to the same village where the suit property is located but he kept on denying the relevant questions in this regard for want of knowledge. The claim of giving hissa bitai was thus, proved on the touchstone of preponderance of evidence. The delay, if any, lost importance. At the same time, it is also manifest that no consent, implied or expressed, was ever given by Mst. Maqsoodan Bibi (respondent No. 1).

15.There is another important factor which also escaped the view of the learned Appellate Court. From the evidence led by the revision-petitioners it is amply clear that the possession of the suit property was with Muhammad Rasheed since the death of his father. This possession was not given by him to his sons, who were five to eight years old at the time of execution of mutation No. 796 and Muhammad Rasheed was continuously cultivating the suit property. Needless to observe that the revision-petitioners claimed that

Muhammad Sarwar-deceased after due verification had purchased the suit property from sons of Muhammad Rasheed but they were not having the possession.

16.The subsequent conduct of the revision-petitioners is also relevant. Muhammad Sarwar”s appeal against Muhammad Rasheed and his sons was dismissed on 28.10.2014 because they opted not to deposit process fee to their extent. They never raised any challenge to this. The dismissal, to this extent attained finality. In the present revision, they have only impleaded Mst. Maqsoodan Bibi / respondent No. 1 as a contesting party, whereas, alleged ostensible owners (Muhammad Rasheed, Imran Ali and Haroon Ali), merely impleaded as proforma respondents in the array of parties. This revision petition is pending for the last eleven years. No request is made to issue any notice to them. It appears that attempt is being made to deprive Mst. Maqsoodan Bibi from lawful share and her right of inheritance. In the circumstances, I am not inclined to grant any relief to the revision-petitioners. Needless to say that the learned Appellate Court has already observed that the revision-petitioners can claim consideration from Imran Ali and Haroon Ali.

17.In view of the above discussion, this revision petition is dismissed. No order as to costs.

(Sultan Tanvir Ahmad) Judge Approved for Reporting Announced in open Court on 07.10.2026.

Judge Rana Zahid Bashir