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Official Citation: 2024 YLR 615
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Allah Ditta through L.Rs. and another vs Mst. Qudrat Bibi through L.Rs. and 2 JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-31, officially reported as 2024 YLR 615. In this matter between Allah Ditta through L.Rs. and another and Mst. Qudrat Bibi through L.Rs. and 2 JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 615
Court Name: Islamabad High Court Judge(s): Arbab Muhammad Tahir Title:Allah Ditta through L.Rs. and another vs Mst. Qudrat Bibi through L.Rs. and 2
JUDGMENT
Reported As: 2024 YLR 615 Result: Appeal dismissed Judgment JUDGMENT ARBAB MUHAMMAD TAHIR, J. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") is directed against judgment and decree dated 31.01.2017 passed by the learned Civil Judge-East, Islamabad through which, the learned Civil Court decreed the suit for declaration, cancellation of Mutation No.226 dated 04.04.1981, mandatory and permanent injunction, which was filed by respondent No.1. (Mst. Qudrat Bibi) (who passed away during pendency of the present appeal and now being represented by her legal heirs viz respondents Nos. 1A to 1F), in the following terms:-- "In light of my issue-wise discussion and findings, the plaintiff succeeded in establishing her case regarding declaration of her entitlement to receive share in the legacy of her father and cancellation of Mutation No.226, dated 04.04.1981, therefore, to that extent the decree is passed in favour of plaintiff and against the defendants. The mutation shall stands cancelled to the extent of share of plaintiff only." 2. The necessary facts forming background of the present appeal are that Allah Ditta (appellant No.1) (who passed away during pendency of the present appeal, and now being represented by his legal heirs viz appellants Nos. 1A to 1F), Matloob (appellant No.2) (hereinafter collective be referred to as "the appellants") are the real brothers of Mst. Qudrat Bibi (respondent No.1), sons/daughter of one Muhammad Boota) who owned "Malkiati" as well as "Shamliati" land measuring 74 Kanals and 11 Marlas bearing Khewat Nos.27, 41, 50, 58/116, 162/360, 184, 185 and 226, Qitta 10, falling in the Revenue Estate Khadreppar, Tehsil and District Islamabad (hereinafter referred to as "the suit land"); that after the death of Muhammad Boota, the said property devolved upon his children
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namely, Allah Ditta, Matloob (the appellants), Mst. Qudrat Bibi (respondent No. 1) and two other sisters namely Amina Bibi and Zainab Bibi; that out of the total land left behind by Muhammad Boota, the appellants received their shares which came to 31 Kanals and 19 Marlas each vide inheritance Mutation No.186 dated 25.01.1979, whereas according to 1/4 forth share, respondent No. 1's share came to 10 Kanals and 13 Marlas; that after the death of Muhammad Boota, the appellants in collusion of the revenue officials, got transferred the entire land of Muhammad Boota in their own name vide mutation No. 226 dated 04.04.1981 (hereinafter referred to as "impugned Mutation") and thus deprived respondent No.1 from her share in the inherited property. 3. The said suit was resisted by the appellants by way of filing their joint written statement. It has been pleaded in the written statement that the other two sisters of respondent No.1 namely Zainab and Amina Bibi ("hereinafter collectively referred to as "sisters") did not file the suit against the appellants since they knew the very fact that they had validly with their free will and consent along with respondent No.1 jointly have transferred their title along with possession in favour of their real brothers viz the appellants. It has further been pleaded in the written statement that respondent No.1 along with others sisters named above, entered into a bargain with the appellants in consequent whereof all the three sisters with their free will and consent, after fulfilling the legal requirements, transferred their respective shares in the appellants' favour by executing the impugned Mutation. The divergence in the pleadings of the parties was summed up by the learned trial Court by framing the following issues:-- 1. Whether the plaintiff has got cause of action? OPP 2. Whether mutation No.226, dated 04.04.1981 had illegally been incorporated which is ineffective upon the right of plaintiff? OPP 3. Whether the plaintiff is entitled to get decree as prayed for? OPP 4. Relief. 4. After evaluating pro and contra evidence adduced by the parties, and hearing the contentions of the learned counsel for the respective parties, the learned trial Court finally decreed respondent No.1's suit in terms mentioned in paragraph-1 supra. Hence, this appeal. 5. Learned counsel appearing on behalf of the appellants contended that the findings arrived at by the learned trial Court are erroneous in nature; that the appellants categorically resisted the suit as well as the proceedings, but their stance was not taken into account; that the. impugned judgment and decree are against the law as well as facts and thus not sustainable in the eye of law; that the appellants had objected to the jurisdiction of the learned Court below as well as raised objection regarding limitation, but the learned Court below dispelled the said objections; that the issues framed by the learned Court below were not properly discussed/adjudicated upon; that one sister of the appellants namely Mst. Zainab Bibi had appeared as DW-1 and endorsed the stance of the appellants as to the Mutation in question; that, the said DW also admitted that at the time of the impugned Mutation, possession of the suit land was also delivered to the appellants; that the appellants' sisters including respondent No.1 appeared before, the revenue authorities/revenue officers, whereby they had categorically admitted the fact regarding transfer of the suit land in the appellants' favour; that all these facts were ignored by the learned trial Court; that the appellants' other two sisters, save respondent No.1, had not challenged the mutation in question; that the suit filed by respondent No.1 was bad in law due to the reason of mis-joinder and non-joinder; that the learned trial Court did not apply its mind judicially while rendering the impugned judgment and decree; that the impugned judgment and decree suffer from illegality and thus deserve to be interfered with; that the impugned judgment and decree are the result of mis-reading and non- reading of the evidence/record available before the learned Court below, concluded the learned counsel for the appellants; learned counsel has prayed for the present appeal to be allowed. While concluding the arguments, he relied upon the cases reported as PLD 1979 SC 890 1980 CLC 1483
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Peshawar PLD 1981 SC 165, NLR 1982 Revenue 50, 1983 CLC 1124, PLD 1986 SC 35, 2002 YLR 1680, 2003 CLC 1805, PLD 2004 SC 351, PLD 2005 SC 775, 2006 SCMR 170, 2008 SCMR 1425 and 2011 SCMR 8. 6. Conversely, learned counsel appearing on behalf of the respondents has opposed the contentions advanced by the learned counsel for the appellants by contending that the impugned judgment and decree passed by the learned Court below are based on well appreciation of the available record; that the impugned judgment and decree take into account all the factual as well as legal aspects of the dispute in question; that the appellants deprived respondent No.1 of her inheritance in the suit land; that the appellants after the death of their father have continuously been claiming themselves to be the exclusively owners of the suit land, thereby depriving respondent No.1 of her share in the legacy; that in the year 1981, the appellants fraudulently transferred the entire inherited land in their own names vide impugned mutation which is not just illegal, but also ineffective upon respondent No.l's right; that the private respondents were kept in dark at the time of transferring the suit land; that the said private respondents did not sign or thumb impress the impugned mutation; that the said impugned mutation was carried out on the back of the private respondents; that respondent No.1 in her life time had requested the appellants to give her inheritance in the ancestral land, but to no avail; that no sooner respondent No.1 came to know about the impugned mutation, and after refusal by the appellants, promptly instituted the suit, which has correctly been decreed in her favour; that the learned trial Court has applied its judicial mind by scrutinizing all the pros and cons of the matter. Learned counsel prayed that the appeal in hand be dismissed with costs. While concluding the arguments, he placed reliance on the cases reported as 2000 CLC 680 [Karachi), 2010 SCMR 342, 2019 SCMR 524, 2020 SCMR 276, 2020 SCMR 2033, 2020 SCMR 352, 2021 SCMR 179, 2021 CLC 579 (Sindh), 2022 SCMR 346, 2022 SCMR 1009 and 2022 SCMR 1054. 7. Heard the contentions advanced at the bar and perused the record with able assistance of the learned counsel for the parties. 8. Perusal of the record would transpire that on 03.02.2014, a suit for declaration, cancellation of mutation No.226 dated 04.04.1981, mandatory and permanent injunction was filed by Mst. Qudrat Bibi/respondent No. 1, seeking inter alia a relief to the effect that mutation No.226 dated 04.04.1981 (i.e. the impugned mutation) and all other entries made subsequent thereto in the revenue record, be declared as illegal and of no legal effect. Appellant No.1 also passed away on 15.01.2022 (i.e. during the pendency of the present appeal). Allah Ditta and Matloob (i.e. Appellants Nos.1 and 2) as well as Mst. Qudrat Bibi (respondent No.1) are real brothers and sister inter se. Respondent No.1 in her suit claimed that the predecessor in interest of the said parties (i.e. Muhammad Boota) owned Malkiyati and Shamilati land in Revenue Estate Khadreppar, Tehsil and District Islamabad falling in Khewat Nos.27, 41, 50, 58/116, 162/360, 184, 185, 226, Qitta 10 which land comes upto 74 Kanals and 11 marlas. After the death of Boota, the said property was devolved upon his legal heirs (i.e. the appellants) and respondent No.1 including the other two sisters. Respondent No.1 in her suit further asserted that out of the said land, the appellants received 31 Kanals and 19 Marlas as part of their respective shares through mutation No.186 dated 25.01.1979 whereas her share came to 10 Kanals and 13 Marlas according to 1/4 calculation. She in her suit, further asserted that in the year 1981, after the demise of her father, her brothers viz the appellants in connivance of the revenue officials, succeeded in transferring the entire inherited land in their own names vide impugned mutation, thereby deprived respondent No.1 of her legal shares in the inherited property. 9. It is not disputed that the predecessor in interest of the appellants as well as respondent No.1 had owned the above mentioned land. It is also an admitted fact that respondent No.1 had no issue regarding Mutation No.186 dated 25.01.1979. The sole issue that respondent No.1 had was with respect to the impugned mutation (i.e. Mutation No.226 dated 04.04.1981) on the ground that the
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said Mutation was made after she was kept in dark. The suit filed by respondent No.1 was disputed by the appellants by way of filing their written statement. The divergent pleadings of the parties were transformed into the formation of the above-mentioned issues. In the written statement, the appellants had categorically admitted the ownership of the suit land. The entire thrust of their stance was that the other two sisters i.e. Zainab Bibi and Amina Bibi had not been impleaded in the suit nor have they any grievance against the appellants since they knew the fact that they have already, with their free will and consent, transferred the title and ownership of the suit land in the appellants'. For the sake of clarity, paragraphs Nos.02 and 04 of the facts in the said written statement, are relevant, which are reproduced as under:-- "2. That para No.2 is correct. However, it is further clarified that the other real sisters of the plaintiff namely Zainb and Aimna Bibi have not been impleaded in the instant suit nor they have filed any suit against the answering defendants as they knowing this fact that they have validly with their free will and, consent along with the plaintiff jointly have transferred their title along with possession in favour of the their real brothers i.e. answering defendants in the presence of the marginal witness i.e. lumberdar of the concerned revenue estate in a public gathering, hence they have never agitated any such matter against the answering defendants till today. 4. that para No.4 as stated is incorrect, however, it is further clarified that the predecessor interest of the parties died in the year 1978 and his inheritance mutation has been sanctioned in favour of his legal heirs in Jan. 1979 - and subsequently in the year 1981 the plaintiff along with her other two real sisters entered into a bargain with the answering defendants as a result of which all the three sisters with their free will and consent after fulfillment of all essential and legal requirements have validly transferred their share in favour of the answering defendants by executing mutation No.226, dated 04.04.1981 which was duly sanctioned in a public gathering in the concerned revenue estate i.e. Village Khadraipure Tehsil and District Islamabad in the presence of two marginal witnesses who are also the lumberdar of the concerned area/revenue estate and since then the answering defendants are enjoying the possession of the suit land as an owner and throughout this period, the plaintiff as well as the other two real sisters of the parties have never objected or raised or made any sort of hindrance into the rightful ownership as well as possession of the answering defendants." (Emphasis supplied). 10. In the said written statement, the appellants assert that respondent No.1 and the other two sisters had validly transferred their shares in the appellants' favour with their free sweet will and consent by executing the impugned mutation. They further assert that the said transaction took place in the presence of the Lumberdar as well as two other marginal witnesses. The said Lumberdar is purportedly said to have been passed away hence, he could not be produced as a defense witness to substantiate the appellants' version. Zainab Bibi, one of the sisters of the appellants and respondent No.1, appeared as DW-1 and deposed that Lumberdars Junaid and Mehrban had recognized us (the sisters) during "Jalsa-e-Aam"/mass rally and asked us regarding transfer of the suit land in the appellants' favour and our answer to that query was in the affirmative. The said defense witness did not depose as to the date, time and year of the "Jalsa-e- Aam"/mass rally, during which the said Lumberdars asked her and her sisters regarding the said fact. The record is completely silent as to this fact. 11. Furthermore, during the cross-examination, DW-1 had categorically admitted that she does not know as to how much land did his father namely, Muhammad Boota owned and how much of land did come into her share from the legacy of her father. She further admitted that when her father Muhammad Boota had passed away, she did not take possession of her share in the inherited land. Furthermore, during the course of cross-examination, she deposed that she does not know any Lumberdar, she further testified that she does not know as to whether she appeared before
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any Tehsildar and/or Patwari. Moreover, she admitted that respondent No.1 did not transfer the suit land as Hiba in the appellants' favor. She also deposed that she does not know Chan Khan (sic), Lumberdar, volunteered that who is he? It was further admitted by her that the suit land is a joint property and the same has not been partitioned as yet. The stance taken by the said DW is self- contradictory inasmuch as on the one hand, she deposed that in a "Jalsa-e-Aam"/mass rally, the Lumberdars had asked her about the transfer of the suit land in the name of her brothers viz the appellants, but on the other hand, she during cross-examination, admitted that she does not know any Lumberdar and that she also does not know as to whether she appeared before any Tehsildar or a Lumberdar. She, however, candidly admitted that at the instance of the appellants, she came to the Court and that too, under compulsion and duress. This is an added reason which casts sufficient doubt on the veracity of the mutation in question. 12. Another important aspect of the matter is that the appellants assert that their sisters including respondent No.1 had entered into a bargain, but no documentary evidence in this regard was produced. Moreover, appellant No.2, who is also the beneficiary of the impugned mutation, appeared as DW-2 and had testified that he does not know as to whether respondent No.1 had given any stamp paper mentioning the fact as to such a bargain/agreement. Needless to observe that the onus to prove the factum and ingredients of the gift is on the beneficiary who claims such a gift and which is specifically denied and/or challenged by the other legal heirs. 13. In the written statement, it has been pleaded that respondent No.1 along with her other two sisters namely Zainab and Amina had transferred their shares in the appellants' favour, but during the cross-examination, DW-2 admitted that neither there is any thumb impression of respondent No.1 nor her Identity Card Number is mentioned on the impugned mutation. He further admitted during cross-examination that at the time of the registration of the said mutation/ inheritance, the appellants had not handed over possession of the shares in the inherited property to their sisters. He further admitted the fact that at the time of the impugned mutation, neither the husband of respondent No.1 nor her sons were made as witnesses. As mentioned above, the Lumberdar namely, Mehrban, has purportedly passed away and his son appeared before the Court as DW-3 and verified the signature of his father on the mutation in question. 14. In the case at hand, neither the pedigree of the parties nor the progeny of heirs is involved rather the question of deprivation of a legal heir from her share in the legacy of her father is involved. Respondent No.1 was deprived of her legal shares by the appellants by way of executing the impugned mutation i.e. No.226 dated 04.04.1981. The evidence so produced by the appellants during the trial would make it abundantly clear that the appellants virtually assert that the transfer of the shares by their sisters including respondent No.1 in their favour was indeed a gift/hiba, which cannot be revoked at any stage. In order to prove the fact as to gifting of the suit land in the appellants' favour, the appellants were under an obligation to prove such a fact by adducing sufficient evidence inspiring confidence in terms of Articles 119 and 120 of the Qanun-e-Shahadat Order, 1984, which are reproduced as under:- "119. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 120. Burden of proving fact to be proved to make evidence admissible: The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence." (Emphasis supplied). 15. The appellants could not produce any independent witness in order to prove the fact regarding voluntarily transferring of the shares of the inherited land by their sisters including respondent No.1 through mutation in question. None others, except appellant No.2, who was indeed a beneficiary of the mutation in question, appeared as DW-2. Although Zainab Begum, the appellants' sister
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appeared as DW-1 but the said defense witness showed her inability and ignorance regarding her appearance before the revenue authorities. The said DW also did not know the quantum of the land which her father left behind him. The appellants place their case on the impugned mutation, which itself endorses the fact that it is a Hiba mutation. In order to prove the execution of such a mutation and/or its attestation, at least two attesting witnesses were required to have been produced in terms of Article 79 of the Qanun-e-Shahadat Order, 1984. Article 79 of the said Order is reproduced as under:- "79. Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of given Evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." (Emphasis supplied) 16. The appellants could not produce two attesting witnesses of the impugned mutation. They only produced the son of the Lumberdar as DW-3, who just identified the signatures of his late father. Since the impugned mutation did not take place in his presence, hence, he cannot be termed to be an attesting witness of the same. Therefore, his evidence leads no support to the appellants' case. 17. Furthermore, it is my view that the provisions of the Transfer of Property Act, 1882 could not be interpreted such as would make the said provisions applicable to Hiba/Gifts. In order to prove a gift/hiba, it is mandatory that the donor must be free from all sorts of coercions, duress and undue influence at the time of making a gift. It is also mandatory that the thing which is being gifted ought to come necessarily into the possession of the donee himself/herself so as to give effectiveness to gift/hiba. The appellants claim that all the three sisters including respondent No.1 with their free will and consent transferred their shares in the appellants' favour. Had respondent No.1 transferred her share in the appellants' favour, she being a donor could not have instituted a civil suit against the appellants/dances praying inter alia for cancellation of the impugned mutation. The appellants' other sister also categorically admitted during the course of cross- examination that she came to the Court under compulsion, meaning thereby, her statement was procured without her will and consent. These factors negate the appellants' version that the mutation in question had validly and lawfully been made. Taking such a view, I am fortified by the wisdom enunciated by the Hon'ble Supreme Court in the case titled Abid Hussain and others v. Muhammad Yousaf and others (PLD 2022 Supreme Court 395), whereby it was held as under:- "7. The Transfer of Property Act, 1882, has no application to the hiba/gift envisioned and encapsulated under the Muslim Law and for this reason, sections 123 and 129 of the Transfer of Property Act can neither surpass nor outweigh or preponderate the matters of oral gifts contemplated under the Muslim law for which a registered instrument or indenture is not mandatory. All orthodox and unequivocal annotations and explications based on Islamic Jurisprudence vis-a-vis "Hiba" have unambiguously emphasized and underlined the fact that the donor should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making gift and he must be major and the owner of the property which is intended to be gifted; the thing gifted should be in existence at the time of hiba; the thing gifted should be such to benefit from which is lawful under the Shariat; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come in the possession of the donee himself or through his representative/guardian for an effective hiba. Under the Muslim law, the constituents and components of a valid gift are tender, acceptance and possession of property. A Muslim can
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devolve his property under Muslim law by means of inter vivos (gift) or through testamentary dispositions (will). Islamic law does not make any distinction between movable or immovable property with regard to the conception of hiba, rather any property may be gifted by any person having ownership and dominion over the property intended to he gifted on fulfilling requisite formalities. It is also obligatory that the donor divest and dissociate himself downrightly from the dominion and ownership over the property of gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with delivery of possession of the property and ensure that donee has secured physical ascendency over the property in order to constitute…
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