Major(Rtd) Fareed Jan vs Mst:Sanobar Abdullah Jan

2012 Y L R 506

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Major (Rtd.) FAREED JAN---Petitioner

Versus

Mst. SANOBAR ABDULLAH JAN and 8 others---Respondents

Civil Revision No.679 and C.M. No.721 of 2011, decided on 16th September, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Gift-deed---Proof---Scope---Plaintiff claimed that he along with defendants being the legal heirs of deceased were entitled to inherit the suit house to the extent of their respective 'shari shares'---Predecessor of the parties had purchased property in question in the name of his wife/mother of the parties who was a "benami" owner---Plaintiff had sought declaration to the effect that the transfer of leasehold rights along with its superstructure built thereon by the mother in favour of defendants through an un registered gift-deed was the result of fraud, collusion, misrepresentation and undue influence as the mother, being an old lady was under active influence of defendants---Predecessor of the parties was a businessman and his wife was a housewife having no independent means of her livelihood, wife in circumstances, was dependant on her husband being a 'pardanashin' lady---Predecessor of the parties had raised construction---Propositus of the parties died in the year 1974---Defendants having alleged their claim on the basis of a gift-deed, strong and cogent evidence was required to prove the execution of the alleged gift-deed, but they had failed to lead such evidence--- Findings of two courts below being the result of misreading and non-reading of material

evidence on the record and mis-appreciation of law on the subject, could not be left to remain in the field---Judgments and decrees of the two courts below were set aside and suit of the plaintiff was decreed to the extent that he along with defendants, was entitled to inherit the same according to their respective 'shari shares', in circumstances.

Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859 rel.

Javed Iqbal Gulbela for Petitioner.

Khalid Khan for Respondents Nos. 2 and 3.

Date of hearing: 16th September, 2011.

JUDGMENT )

MAZHAR ALAM KHAN MIANKHEL, J.---Plaintiff/petitioner has filed instant revision petition against the concurrent findings of the two Courts below whereby his suit for declaration was dismissed by the Civil Judge-VII, Peshawar vide her judgment and decree dated 29-6- 2010 and his appeal thereagainst also met the same fate when learned Additional District Judge- VII, Peshawar vide judgment and decree dated 7-2-2011 dismissed his appeal.

2.A suit for declaration was filed by the present petitioner that he along with defendants 1 to 6 being the legal heirs of Abdullah Jan were entitled to inherit the suit house bearing Survey No. 632-B situated at Rafiqui Lane, Peshawar Cantt. to the extent of their respective `Sharai' shares as their predecessor was the actual lease-holder of the plot in question which was purchased in the name of his wife i.e. defendant No.1, mother of petitioner and defendants Nos. 2 to 6. Construction over the plot was also made by him. The defendant No.1 had no, her own means to purchase the lease-hold rights of the plot in question or to raise the construction. So, she was a 'Benami' owner. He had also sought declaration to the effect that the transfer of lease hold rights along with its superstructure built thereon by defendant No.1 in favour of defendants Nos.2 and 3 through unregistered gift-deed dated 3-12-1980 is the result of fraud, collusion, misrepresentation and undue influence as defendant No.1 being an old and dependant lady was

under the active influence of defendants 2 and 3. He has also claimed possession of his respective share through partition and recovery of mesne profits of the suit house. His said claim was denied by the defendants and also refused by the Courts below.

3.Learned counsel for the petitioner by referring to the averments made in the plaint submitted that the parties being the L.Rs. of the prepositus are entitled to inherit the suit property as per their respective 'Sharai' shares. The defendant being 'Benami' owner had no right to transfer the entire property in the names of defendants 2 and 3 and transfer by her in the name of defendants 2 and 3 vide alleged unregistered gift-deed dated 3-12-1980 is illegal, unlawful, fraudulent and the result of undue influence as she had no independant advice being a poor old lady fully dependent on defendants 2 and 3. His next contention was that after the death of defendant No.1 during the pendency of suit, the plaintiff and defendants 2 to 6 have become entitled to inherit the share of their mother according to `Shariah'. Regarding the gift, he contended that it was the burden of defendants 2 to 3 to have proved it to be a genuine and valid gift made by the donor, their mother, with her free-will and consent but both the defendants have bitterly failed to discharge their legal burden of proof. Dismissal of suit by the forums below is the result of misreading and non-reading of the evidence by misappreciating the law on the subject which are liable to reversal by grant of decree in favour of petitioner.

4.As against that, learned counsel for the Bdefendant/respondents contended that defendant No.1 was the actual owner of the suit house having every right as an owner to transfer the same and rightly so, she transferred the suit house by way of gift in favour of defendants 2 to 3, her real daughters. The gift was a legal and genuine gift in accordance with law and all the pre- conditions of the gift i.e. the offer, acceptance and delivery of possession were complied with, so, the findings of the two Courts below are not only in accordance with law but being concurrent on factual aspect of the case cannot be set aside in revisional jurisdiction of this Court.

5.Learned counsel for the parties were heard and record of the case was perused.

6.Perusal of the record would reveal that the relation between the parties is admitted. The predecessor of the parties namely Abdullah Jan was a businessman and it has also not been rebutted on the record that his wife namely Mst. Sanobar, defendant No.1, was a housewife having no independent means of her livelihood and as such she was dependant on her husband being a 'Pardanashin' lady. On the face of it, it is established that it was the Abdullah Jan, predecessor of the parties, who purchased the lease-hold rights of the suit property from defendants Nos. 8 and 9 and then raised construction over the same. It has also been established on the record that the prepositus of the parties died in the year 1974. The alleged transfer through

gift by defendant No.1 in favour of defendants Nos.2 and 3 was made through an unregistered deed dated 3-12-1980 and later on entries in the record of defendant/ respondents 8, 9 were made/corrected in the names of defendants 2 and 3. However, such an incorporation in the record of respondents would be nothing but for fiscal purposes only and this incorporation by itself would not be sufficient to create title in their name unless the beneficiaries of the transaction of gift prove the actual transaction in their favour to be valid and genuine in accordance with the provisions of Mohammedan Law.

7.If for the sake of arguments, ownership of defendant No.1 is considered genuine, then defendants 2 to 3 being the beneficiaries of the alleged gift-deed in their favour, under the above- referred settled principle of law, were obliged to prove the genuineness of the gift in their favour through independent evidence. The evidence available on the record would reveal that both the ladies failed to prove the factum of gift in their favour. They were supposed to lead evidence regarding the special circumstances which led the old lady to part with her proprietary rights in the suit house and alienate the same through alleged gift in favour of defendants 2 and 3 only by excluding her other children. The other material circumstance, making the stance of defendants 2 and 3 fishy and suspicious, is the unregistered deed in their favour. No doubt, under Mohammedan Law, a valid gift can be made orally but it is not the case of defendants. They have alleged it to be on the basis of a deed then under the law, a strong and cogent evidence was required to prove the execution of the deed and existence of gift. They have failed to lead such evidence. No doubt, possession of the suit house was with the defendants as they were living with defendant No.1 in the suit house and it has Balso not been established on the record that their possession was under the gift. Had there been no gift in favour of defendants 2 and 3, then in that case, the plaintiff and defendants 2 to 6 would have inherited the property to the extent of their respective shares. So, proof of gift in favour of defendants 2 and 3 was more essential in the circumstances of the case that it was a genuine gift with the independent advice and free consent of the donor. Reference can be made to the case of Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 1859).

8.So, in this view of the matter, the findings of the two Courts below would reveal that the same were based on no evidence and were against the law which has resulted into grave injustice to the petitioner and defendants 4 to 6 so such concurrent findings would not be immune from interference by this Court in its revisional jurisdiction. The findings of the two Courts below are the result of misreading and non-reading of the material evidence on the record and misappreciation of law on the subject and said findings cannot be left to remain in the field.

8.Thus this revision petition is allowed and the judgment and decrees of the two Courts below are set aside and the suit of the plaintiff/petitioner is decreed to the extent that he along with defendants 2 to 6 are entitled to inherit the same according to their respective 'Sharai' shares. Costs shall follow the events.

H.B.T./357/P Petition allowed.

B