Akhtar Ali etc Vs Mst. Bakhti Farosha etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 318-M/2023

(Akbar Ali and others Versus Mst. Bakht Farosha and others) Present:

Mr. Shah Faisal Khan, Advocate for petitioners.

Muhammad Amin, Advocate for respondent.

Date of hearing: 08.12.2025

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- This revision petition has been filed by Akbar Ali and ten others to call in question the judgment and decree dated 22.05.2023 passed by the learned Additional District Judge-III, Swat in Civil Appeal No. 08/13 of 2019 along with Cross Objections No. 01/11 of 2022, whereby the appeal and cross-objections were dismissed and the judgment and decree dated 17.12.2018 rendered by the learned Civil Judge-V/Illaqa Qazi, Swat in Civil Suit No. 51/1 was maintained, resulting in cancellation of registered General Power of Attorney No. 221 dated 26.12.1991 and the consequent gift mutation No. 123 dated 23.05.1992, besides granting other reliefs in favour of the plaintiff/respondent.

2.Briefly stated, the respondent/plaintiff Mst. Bakht Farosha instituted a civil suit for declaration, cancellation of General Power of Attorney and Mutation dated 23.05.1992 Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

based thereon along with injunctive relief with the assertion that she was one of the legal heirs of late Mian Muhammad, whose estate devolved upon his two sons and six daughters through inheritance. It was pleaded that in the year 1991, a General Power of Attorney No.221 dated 26.12.1991 was obtained in favour of her maternal uncle Muhammad Rashad (since deceased) for pursuing litigation before the Land Commission and other forums. According to the plaintiff, being a parda- nasheen and illiterate lady, she reposed trust in her close relatives and affixed her thumb impression without knowledge of the contents or consequences of the document. It was further alleged that the attorney, acting in collusion with defendants and revenue officials, misused the said authority and illegally transferred the plaintiff’s inherited share in favour of her brothers through gift mutation No.123 dated 23.05.1992, without her consent, declaration of gift, acceptance or delivery of possession, rendering the transaction fraudulent, void and ineffective upon her lawful rights. Consequential relief of possession and injunction was also sought. On the other hand, the contesting defendants, including the present petitioners, filed written statements controverting the claim of respondent/plaintiff. Their consistent stance was that the General Power of Attorney was validly executed, duly registered, and voluntarily thumb-impressed by the plaintiff and Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

other sisters with full knowledge and consent. It was pleaded that the attorney was fully authorized inter alia to alienate the property by way of gift, sale or exchange, and that in pursuance thereof, the plaintiff along with her sisters lawfully gifted their respective shares to their brothers defendants No.09 and 10 through the impugned mutation. The allegations of fraud, misrepresentation and misuse of authority were categorically denied. It was further pleaded that the suit was hopelessly time- barred, having been instituted after more than two decades of the impugned mutation, and that the plaintiff had remained silent despite knowledge of the transaction, thereby disentitling her to any relief on account of limitation, estoppel and acquiescence. Subsequent transferees also claimed protection of their transactions on the basis of valid title flowing from the gift mutation whereas defendant No.15 filed his cognovits. The learned trial Court, after framing of issues and recording the evidence of the parties, decreed the suit vide judgment and decree dated 17.12.2018. Aggrieved therefrom, the petitioners preferred appeal, while Mst. Fehmida Bibi, who is the daughter of Hukam Farosha (deceased), a sister of the plaintiff, preferred Cross Objections No. 01/11 seeking dismissal of the suit, asserting that her mother had validly and willingly consented to the transfer of the suit property through gift in favour of her brothers. It is further pertinent to note that she had remained ex Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

parte before the learned trial Court and subsequently filed the aforesaid cross-objections before the appellate Court solely to support the case of the petitioners. After hearing the arguments, the learned appellate Court dismissed both the appeal and cross- objections vide judgment dated 22.05.2023, whereby the judgment and decree dated 17.12.2018 passed by the learned trial Court was maintained, giving rise to the present revision petition.

3.Arguments heard and record perused.

4.Both the learned Courts below, on a thorough appraisal of pleadings and evidence, have concurrently decreed the suit by holding that the petitioners/defendants failed to establish a valid gift in accordance with law, and that the impugned General Power of Attorney No.221 dated 26.12.1991 and the consequential gift mutation No.123 dated 23.05.1992 were ineffective upon the rights of the plaintiff. It is not in dispute that the said power of attorney is a registered instrument; however, the crux of the respondent/plaintiff’s case throughout has been that the instrument was executed for the limited and genuine need of management of the estate and representation before the Courts, and that being an illiterate parda nasheen lady, she was not made aware of its purport in the sense of an outright divestment of her proprietary rights. A Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

bare perusal of the General Power of Attorney1 itself furnishes the background and the motivating cause for its execution. The relevant portion reads:

”۔۔۔۔۔۔ ہک رقمان زانہن ذات وہےن یک اینبد رپ رپدہ یک لمکم اپدنبی رکےت ںیہ۔ سج یک جہ ااقتنالتجادنارااجتاجر،ےسرقماناےنپاےنپتیکلماجدیئادیکدہگناتشاجرریپجیدقمامت درگی رضجری ارم ےک رسا اجنم ےس ااصاتلَ َ اقرص ںیہ۔ ذٰہلا اس ےلسلس ںیم امومں ےئ وخد یمسم دمحم اراشد جدل اریم ایمن رموحم اسنک گیگرام سک ابوبزی وک اتخمر اعم رقمر رکےک اایتخر دےتی ںیہ۔ “ہک۔۔۔۔۔۔۔

The above recital is not a casual narrative; it is the very foundation of the authority that the female executants, due to strict observance of parda, declared themselves personally unable to manage their properties and to attend courts and revenue offices for litigation, mutations and entries, and therefore appointed their maternal uncle as attorney for administrative convenience and representation. In this admitted setting, the purported plea that the instrument was intended as a vehicle to strip the sisters of their inheritance in favour of the brothers was rightly treated by both the Courts below as requiring strict proof, particularly because an intra-family gift which extinguishes female inheritance is not a routine commercial act; it is an exceptional disposition which, in our social milieu, is frequently alleged to have been procured through undue influence or concealment. Significantly, if the Page 213 of the revision file Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

sisters had, in fact, consciously resolved to gift their shares to the brothers, the transaction could conveniently and transparently have been reduced into a direct gift instrument at the time of registration rather than resorting to a general authority crafted on the plea of parda and inability. The very architecture and recitals of the attorney thus support the respondent’s stance that the dominant object was management/representation, and the alleged gift was not shown to be her free, intelligent and fully understood act. The General Attorney, while dealing with the property of the principals, including the respondent/plaintiff, was legally obliged to act with due care, transparency and diligence, keeping in view the peculiar and sensitive circumstances of the case.

Since the alleged alienation through the purported gift was an intra-family transaction between real siblings, the fiduciary duty of the attorney stood further heightened, requiring him to seek and obtain the informed and express consent of the respondent/plaintiff prior to undertaking any such act. In the absence of such consent, the attorney could not lawfully proceed to effect a gratuitous transfer that extinguished the proprietary rights of his principal. Reliance in this regard is placed on Haji Faqir Muhammad and others v. Pir Muhammad and another2, wherein the apex Court ruled:

“8. This being so the law propounded by this Court on the scope of the holder of a general power of attorney in

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alienating the property of his principal in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself, he should in his own interest obtain the consent of the principal failing which the principal is at liberty to repudiate the transaction.”

Consequently, the inference drawn by both the Courts below that the alleged gift was asserted without satisfactory proof of consent and comprehension, cannot be termed perverse or contrary to the record.

5.In addition, the attorney, even when armed with authority, remained duty-bound under the agency principles embodied in the Contract Act, particularly Sections 214 and 215, to act with reasonable diligence, keep the principal informed in matters of difficulty and, where the dealing is for the benefit of close relations and is potentially disadvantageous to the principal, to obtain informed consent after disclosing material circumstances. An elaborate discussion to this effect too can be found in Faqir Muhammad’s case supra. For clarity, the relevant observations of the apex Court are reproduced below:

“7. The conclusion arrived at by the learned Judge in Chambers of the High Court lends ample support from the law laid down by this Court in Fida Muhammad v. Pir Muhammad Khan (deceased) though Legal Heirs and others (PLD 1985 SC 341), and (2) Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818). In the case of Fida Muhammad (supra) which was followed in the latter case of Mst. Shumal Begum (supra) notwithstanding an authority to alienate principal's property, this Court has held that the Attorney is not absolved from his two essential obligations, amongst other:--

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

"firstly in cases of difficulty (and it will be a case of difficulty if the Power of Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communication with the principal and seeking to obtain his instructions, and

secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. The following two examples given under section 215 of the Contract Act are illustrative of the intention of the law:--

(a)A directs B to sell A's estate. B buys the estate for himself in the name of C.A., on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts or that the sale has been disadvantageous to him.

(b)A directs B to sell A's estate B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A. B informs A that he wishes to buy the estate for himself, but conceals the discovery of the mine. A allows B to buy, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option.

In the precedent of Mst. Shumal Begum (1994 SCMR 818) Said Nawab, father of appellant and respondents Nos. l and 3, and husband of respondent No.4 executed a general power of attorney in favour of Said Ghawas (respondent No.2) his son-in-law who was married to one of former's daughter, namely, Mst. Gulzar Begum (respondent No.1). The general power of attorney, inter alia, included power to sell and transfer the landed properties of Said Nawab situated in Villages Maneri Bala and Aneri Payan. Said Ghawas on the basis of the general power of attorney executed by Nawab Khan gifted the lands in favour of his wife Mst. Gulzar Begum a few months before the death of Said Nawab. After the death of Said Nawab, her other two daughters Mst. Shumal Begum and Kimkhwab Begum filed two civil suits to challenge the attestation of Mutations Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Nos.22833 dated 24-10-1982 and 2985 dated 23-10-1992 acting as attorney of Said Nawab. The trial Judge dismissed both the suits on contest, but on appeal filed by the appellants-plaintiffs, the Appellate Court reversed the judgment and the decree of the trial Court and decreed both the suits. However, the Civil Revision filed by the respondents Nos.1 and 2 before the High Court against the appellate judgment and the decree succeeded and the judgment and the decree of the trial Court was restored by the High Court. Leave to appeal was granted by this Court in both the cases to examine, inter alia, the validity of the gift mutations got attested by the attorney of Said Nawab in favour of his wife and daughter of the former. This Court, apart from reiterating the law laid down in the case of Fida Muhammad (supra) had further elaborated it in the following paragraph:--

"It is to be kept in view that a gift in the present case was allegedly based on consideration of love and affection of Said Nawab for his daughter Mst. Gulzar Begum. Love and affection cannot be expressed by any attorney on behalf of the donor. The sentiments which were the consideration for gift in the present suit must be established to have come from the donor. Gifts are voluntarily and gratuitous in the present suit transfer from the donor to the donees. The essential of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the e property by the donor in favour of the donee where gift, is made through a person authorised by the donor, the intention of donor to make the gift must be established in clear terms. In such a case the authority given by the donor in favour of another person to make a gift of his property besides containing the power to make the gift must also clearly specify the property and the donee in the case. In the cases before us gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis of the power of attorney executed in his favour by Said Nawab cannot be upheld for two reasons, Firstly, the power of attorney executed in favour of respondent No.2 by the deceased Said Nawab did not contain any specific provision authorising him to make a gift of his properties and secondly, even if we assume that such power was given, there is no indication in the said document that the donor intended to make gift of all Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

his properties in favour of the wife of respondent No.2 (the donor)."

(Emphasis supplied)

In light of the above-referred pronouncements, both the Courts below have correctly treated the attorney’s role as fiduciary in character and found no reliable material to show that the respondent/plaintiff was taken into confidence, instructed the attorney, or consciously and intelligently authorized a gratuitous transfer excluding her from inheritance. The petitioners’ emphasis remained confined to proving the existence of the attorney and the formal attestation of mutation, while the law required them to prove the substance of the gift itself, a burden which, on concurrent findings, they failed to discharge.

6.Furthermore, Defendants No. 9 & 10, being

beneficiaries, asserted that the gift was oral, later reflected through Mutation No.123 dated 23.05.1992. In this scenario, the petitioners particularly beneficiaries of the purported gift were under a legal obligation to prove the gift independently of the mutation, because a mutation is merely a revenue entry and does not, by itself, create or extinguish title; it only records a transaction which must stand on its own legal legs. On the petitioners’ own showing, three distinct events were involved:

(i)execution/registration of General Power of Attorney No.221 dated 26.12.1991, (ii) the alleged oral hiba, and (iii) attestation Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

of Mutation No.123 dated 23.05.1992. Each of these events required proof on its relevant level, particularly the second event, i.e, the gift, which under Islamic law is completed only upon proof of its essential ingredients: declaration by donor, acceptance by donee, and delivery of possession of the corpus.

The pleadings and evidence, as concurrently appreciated by both the Courts below, remained conspicuously deficient on these fundamentals: no clear particulars of the alleged hiba in terms of date, time, venue, persons present, and the manner of offer and acceptance were pleaded or proved. The settled legal position emerging from the record is that where a gift is set up with the effect of excluding close heirs from their lawful share in inheritance, the entire burden of strict proof squarely rests upon the alleged donee/beneficiary. Such a gift cannot be presumed, inferred or sustained on conjectures or defective documentation. Petitioners No. 8 & 9, being the beneficiaries of the purported gift, had failed at the very inception to discharge this burden, as the purported gift was statedly oral without any evidence regarding the date, time and place as well as the witnesses in whose presence such declaration was made. Thus, the alleged gift has remained wholly unproved. Similarly, the marginal witnesses, admittedly available, were not produced to substantiate the transaction behind the mutation. Thus, the mutation entry in the revenue record, having been effected on Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the basis of such an unestablished oral gift and based only on the General Power of Attorney without issuance of notice to the affected heirs, was itself legally infirm and could not validate an otherwise non-existent transaction. The Courts below have, therefore, rightly held that the beneficiaries had failed to establish any tangible, lawful or bona fide gift, and that the attempt to deprive the sister/plaintiff of her inheritance was not only illegal but tainted with fraud and dishonesty. The defence was found to be vexatious and false reinforcing the principle that inheritance rights cannot be defeated through unproven and fabricated claims of gift. Reliance in this regard is placed on Muhammad Rafiq v. Mst. Ghulam Zuharan Mai and another reported in 2023 SCMR 988.

7.The objection of the petitioners that the particulars of fraud alleged by respondent/plaintiff were not specifically pleaded or proved is misconceived and overlooks the settled legal principle governing disputes of this nature. Where a transaction is set up by a party to exclude or defeat the lawful inheritance of a female heir, the onus shifts squarely upon the beneficiary of such transaction to establish its legality, genuineness and compliance with law. In the present case, the alleged gift was the sole basis on which the petitioners sought to divest the respondent/plaintiff of her inherited share. Therefore, it was incumbent upon the petitioners, especially the Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

beneficiaries of the purported gift, to prove the existence, execution and validity of the gift through cogent and legally admissible evidence. The failure to establish the oral gift coupled with the absence of proof of the essential ingredients of a valid gift, itself furnishes a clear inference of fraud. Such conduct, where male heirs rely on unsubstantiated assertions of gift to deprive female heirs of inheritance, has repeatedly been deprecated by the superior Courts and is recognized as a fraud upon law, rather than a mere pleading deficiency on the part of the aggrieved female heir. This point was taken notice of by the apex Court in Muhammad Rafiq’s case supra holding that:

4.As regards the contention of the learned counsel representing the appellant that the particulars of the alleged fraud were not provided, and that fraud was not established is not a valid argument. It was for the beneficiary of the gift, who was the appellant, to have established it. The appellant did not produce the gift deed or its copy, let alone establish the purported gift in his favour. What the appellant did, is what we have often noted on the part of some male heirs, which is to deprive female heirs of their inheritance, which constitutes fraud.

8.Besides, the plea of limitation, though urged with emphasis, was rightly repelled. In cases of inheritance and co- ownership, limitation does not start to run merely from an entry in revenue record; rather, time begins to run when the right to sue accrues i.e, when there is clear and unequivocal denial of the co-heir’s right or an act amounting to ouster. The respondent’s case, accepted by both Courts below, was that she Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

continued to approach her brothers through elders/Jirgas and only instituted suit upon specific denial and loss of hope of amicable resolution. In such circumstances, mere efflux of time or existence of a disputed mutation does not, by itself, extinguish inheritance rights, particularly where the very transaction is found to be void/ineffective for want of proof of a valid gift. It is settled law that the principles of acquiescence, estoppel, waiver and limitation cannot ordinarily be invoked by one heir against another where both derive title from a common predecessor. Such pleas may be available only where the parties do not trace their rights to the same source; however, in the present case, both sides admittedly derive their interest from a common predecessor, therefore the learned Courts below have rightly examined and corrected the legal infirmity. The Supreme Court of Pakistan in Muhammad Zubair & others v.

Muhammad Sharif & others3 held that the right of inheritance cannot be defeated even by res judicata, as no procedural rule can override the mandate of Shariah. Similarly, in Ghulam Ali & others v. Mst. Ghulam Sarwar Naqvi4, Mst. Shahro & others v. Mst. Fatima & others5 and Mst. Brikhna v. Faiz Ullah Khan & others6, it was consistently held that pleas of limitation, estoppel, waiver and adverse possession are not maintainable

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against a co-sharer claiming inheritance. In Shabla & others v.

Mst. Jehan Afrosh Khilat & others7, the apex Court reiterated that limitation does not run in matters involving female inheritance rights, and that a co-sharer is deemed to be in possession of every inch of joint property until lawful partition.

Likewise, in Agha Syed Mustaque Ali Shah v. Mst. Bibi Gul Jan & others8, it was held that limitation laws have no application to inheritance disputes and that an heir in exclusive possession holds the property constructively on behalf of all heirs. The same principle was reaffirmed in Peer Bakhsh through LRs & others v. Mst. Khanzadi & others9, holding that efflux of time does not extinguish inheritance rights.

9.As regards the petitioners’ ancillary contention that certain properties were allegedly purchased by them and that no issue was framed in that regard, the objection is misconceived for more than one reason: firstly, the principal controversy before both Courts was the validity/effect of the alleged gift vis- à-vis the respondent’s share; secondly, the petitioners did not lay the requisite evidentiary foundation to bring the alleged purchases within a determinative controversy affecting the respondent’s adjudicated share; and thirdly, no prejudice is shown to have been caused on this score warranting revisional

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interference, particularly in the face of concurrent findings on the core issues. Likewise, the grievance about certain applications allegedly remaining undecided is of no legal consequence where the omitted applications were not shown to be decisive of the controversy, and where the judgments under challenge reflect conscious adjudication on the pivotal questions of authority, fraud/consent, proof of gift and accrual of cause of action. Revisional jurisdiction is not meant to unsettle concurrent findings on mere procedural objections unless a jurisdictional error, material irregularity, or perversity is established. Here, the reasons recorded by both the Courts below are anchored in the record and the governing legal principles; hence, no case for interference is made out.

10.As a sequel to the above discussion, the petition in hand is dismissed being devoid of merits with no order as to costs.

Announced Dt:08.12.2025 -Sd-

JUDGE

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah