SNATCHING OF SHARE OF SISTERS IN INHERITANCE THROUGH GIFT..... LATEST LEGAL VIEW OF PAKISTANI COURTS

                

GIFT MUTATION BY SISTER IN FAVOR OF BROTHER               

  -Suit for declaration---Power of attorney---Pardanasheen lady---Execution of document---Burden of proof ---Malafide---Proof of --Limitation---Transfer of property by the attorney in favour of his relative---Effect---Contention of plain tiff was that she was owner in possession ofsuit property and impugned mutation in favour of defendant was fake and fictitious---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Suit mutation was entered and attested by the attorney in favour of his wife without takin g the vendor lady in to confidence---Vendor lady was confided by her brother for obtain in g power of attorney that her property would be managed by him under the said authority---Entry with regard to sale, mortgage, exchange, or gift was a cyclostyle one which in normal course was mentioned as a routin e matter---Had it been intended to alienate her property in favour of wife ofthe defendant then registered deed at the same time could have conveniently been attested---Principal might repudiate the sale if agent had bought the estate for himself in the name of someone else and sale was disadvantageous to the principal---Defendant had transferred the plain tiff's property in favour of his wife without acquainting principal who was a pardanasheen lady---Rights of pardanasheen ladies should be protected when it was established that same had been usurped by male members of the family---Burden of proof with regard to documents purported to have been executed by pardanasheen lady affecting her right or interest in the immovable property would be on the person claiming the right or interest under the deed---Beneficiary of said document was required to prove that contents of deed were understood by the lady and it was her free and intelligent act---If executant of said document was illiterate then same must have been read over to her---Mere efflux of time would not sanctify the action based on fraud and misrepresentation---Time would run from the date when right to sue would accrue and fraud and misrepresentation came in the knowledge---When mutation was challenged on the basis of fraud and misrepresentation then beneficiary would be bound to prove origin al transaction through cogent and trustworthy evidence---Beneficiary would have to face the consequences on failure to prove the genuineness of the transaction---Mere entry of mutation did not create any right as same was not a document of title---Revenue record would be main tained only for fiscal purposes which did not create nor extinguish right of a party unless proved to the satisfaction of court that same was genuinely entered in to and attested after payment of consideration with free consent of vendor---Beneficiary of mutation had failed to prove genuineness of the transaction---Impugned mutation was not sustainable in circumstances---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored---Revision was allowed in circumstances 2016  YLR  1883     PESHAWAR-HIGH-COURT

                 Specific Relief Act (I of 1877), S. 42---Constitution of Pakistan, Art. 199---Constitutional petition---Plain tiffs filed suit for declaration on basis of in heritance from their mother who was daughter of predecessor, challenging gift mutation s executed by the predecessor in favour of his son---Defendants filed application under O.VII, R.11, C.P.C. on ground of limitation, which was dismissed by Trial Court but the same was accepted by revisional court and plain t was rejected---Contention raised by plain tiffs was that only statement made in plaint should have been taken in to consideration in stead of partition proceedings or other facts not forming part of plaint, and that limitation was mixed question of law and facts, as starting point of limitation was date of knowledge---Validity---Plain t alone had to be taken in to consideration for order under O.VII, R.11, C.P.C.---Plain tiff had challenged gift mutation s after more than sixty years and had claimed in heritance from deceased mother who had not challenged the mutation s by her father in favour of her brother in her life time---Plain t was barred by law of limitation calling for its rejection under O.VII, R.11, C.P.C.---Impugned order of appellate court did not suffer from illegality or irregularity to call any interference---Constitutional petition was dismissed in circumstance 2016  PLD  18     PESHAWAR-HIGH-COURT

                 mutation on the basis of inherited share---Proof ---Predecessor of plain tiffs filed suit for declaration claiming herself to be owner of suit property, which she, along with defendants, mother and brother , had inherited from her father---Trial Court decreed the suit and appeal filed by defendants was dismissed---Contention raised by defendants was that they had been in possession of suit property since mutation had been attested in their favour on basis of gift , and that suit was time barred---Validity---Predecessors of parties had derived their titles from one person, who was origin al owner of suit property---Predecessor of plaintiffs, along with her mother, had gifted her share in favour of her brother , predecessor of defendants, who had later gifted suit property in favour of defendants---Entries in revenue record showed that defendants and their predecessor had been in continuous possession of suit property---ingredients of valid gift had been proved by long standing entries in revenue record---gift mutation had never been challenged by predecessor of plain tiffs durin g her lifetime, and her successors were, therefore, precluded from challenging validity of said gift mutation after her death---Impugned gift had not been challenged for more than fifty years after death of donee---Heavy burden lay on beneficiaries to prove authenticity of impugned gift mutation , as predecessor of plain tiffs was illiterate pardanasheen lady---High Court, partially allowing revision petition, modified impugned judgment and decree to the effect that same was maintained to extent of share of predecessor of plaintiffs and set aside to the extent of share of mother which she had transferred in favour of predecessor of defendants through gift mutation ---Revision petition was partially allowed in circumstances. 2016  YLRN  6     PESHAWAR-HIGH-COURT

                 Essentials principles and effect---Deed in question revealed that the husband had transferred his share of property to his wife (plain tiff) in lieu of dower---Transaction was gift from husband to wife and was not sale, therefore, examination of witnesses (stricto sensu) was not necessary as matter was between spouses---Scribing or registration of document was not required---gift , according to Islamic Law could be effected even orally---gift was transfer of property by one person to another without any exchange or consideration, accepted by or on behalf of the other (donee)---intention of donor must be specified and clear---No specific form or writing was required for a valid gift ---Though word 'gift ' had not been used in the document in question yet use of specific language was not required, rather, intention of donor had to be seen---Defendant, in the present case, was brother of deceased husband of plain tiff and got in heritance mutation attested in his favour in order to deprive plain tiff of the property---Judgments and decrees of courts below were set aside---Revision was accepted.  2015  PLD  111     PESHAWAR-HIGH-COURT

                 inheritance---Right of daughter, uterine brothers and sisters in in heritance---gift /donation of inherited share, proof as to---Mother donated/gifted her share, which she had inherited from husband, in favour of her daughter, a min or at the relevant time---mutation was directly sanctioned in name of the daughter on basis of said gift ---Daughter died issueless and inheritance mutation was sanctioned in names of her (daughter's) mother and husband---Uterine brother s and sisters of the daughter filed suit for declaration claiming that all said mutation s were illegal and unlawful as their mother had not donated/gifted her share to the daughter---Trial Court after recording evidence and hearing parties dismissed the suit---Appellate Court decreed the same on ground that no fraud was committed and gift mutation in favour of the daughter was rightly entered; however uterine brother s and sisters as such, along with their mother, were entitled to their respective shares out of remainder of legacy left by the daughter as her husband was entitled only to 1/2 share in legacy---Validity---Daughter being min or at the time the gift was made to her was unable to manage to get share of her mother by way of donation and entry in the inheritance mutation in connivance with anyone---Mother had not challenged said gift mutation in her life time---No fraud was alleged---Mother and husband of daughter were entitled to their respective legal share and remainder of legacy of the daughter was to be distributed among uterine brother s and sisters---gift mutation was rightly entered in the name of the daughter in revenue record---Trial Court committed serious jurisdictional error by not attending said aspects of case and wrongly interpreted available record---Appellate Court rightly appreciated the record and reached fair conclusion---High Court dismissed petition and affirmed judgment and decree passed by appellate Court.  2015  MLD  1225     LAHORE-HIGH-COURT-LAHORE

                 inheritance--- Share, relinquishment of --- Burden of proof ---mutation relating to inherited property entered exclusively in name of brother at the exclusion of sister---brother alleged that his sister was fully aware of such mutation and did not challenge it for fifty years, and that he had also constructed a house on the disputed property---Validity---in order to relinquish or transfer interest in property, there had to be a positive and affirmative act---No document or deed of relinquishment, sale, transfer or gift was brought on record to establish that sister had either relinquished her interest in the disputed property or had actually conveyed or transferred the same in favour of her brother ---in the absence of any such affirmative act on part of sister, it could not be said that the property came to vest entirely in the brother ---Onus fell squarely on the brother to establish that interest of sister had been transferred in his favour or that sister had relinquished her rights in the disputed property---brother failed to discharge such onus..  2014  SCMR  801     SUPREME-COURT

                 Limitation Act (IX of 1908), Art. 120---Suit for declaration, recovery of possession and perpetual in junction---Plain tiff claimed suit property to have been gifted to him by his deceased mother (donor) through gift deed dated 22-11-1986, thus, her in heritance mutation was wrongly attested on 29-3-1987---Proof ---Deed Writer being an Advocate not having Register regarding deeds deposed as plain tiffs witness that he had scribed gift Deed at plain tiffs directions, but in absence of donor, who was sitting away from his office in plain tiffs motorcar; and that serial number appearing on gift deed had not been written by him---Such statement of Deed Writer was materially negated by plain tiff and margin al witness of gift deed---Evidence on record showed that on very next day after executing alleged gift deed, donor was got admitted in Hospital, whereafter four days she was shifted to intensive Care Unit and died there on same day---Death certificate of donor showed that in crucial days she was suffering from mortal sickness, thus, she could not be expected to understand signing of gift deed---Death of donor within six (6) days (i.e. on 27-11-1986) after execution of gift deed on 22-11-1986 had created a serious din t in plain tiffs case and doubt in respect of its execution rendering same to be in valid---Contents of conceding written statement filed by one defendant (plain tiffs brother ) had not only been denied by him subsequently, but had not been corroborated by evidence on record---in heritance mutation of donor had been entered and attested at in stance of such brother of plaintiff, but at time of its attestation, he had not introduced factum of gift deed by his mother in favour of plaintiff---According to son of said brother of plaintiff, his father had informed plain tiff about attestation of mutation ---Plaintiff had arranged and produced gift deed after 23 years and never challenged in heritance suit earlier, but filed suit on 26-1-2010 on basis of gift deed, when other legal heirs of deceased donor made application dated 31-10-2010 to Deputy Commissioner for partition of suit land---Nothing on record to show that in heritance mutation was collusive or fictitious---Presumption of truth would attach to the entries of inheritance mutation in absence of any credible evidence in its rebuttal---Suit filed by plaintiff after 23 years of attestation of in heritance mutation was time barred---Revenue record showed plain tiff to be in possession of suit land as join t sharer (hissedar) as one of legal heirs of deceased and not on basis of gift deed---Plain tiff and his another brother had earlier claimed property left by their father on basis of an oral gift , but they failed upto High Court---Such lis showed previous conduct of plain tiff to be habitual and chronic litigant---Plain tiff had failed to prove declaration of gift by donor, its acceptance and delivery of possession, in absence whereof gift could not be declared as valid---Suit was dismissed in circumstances. 2013  CLC  724     PESHAWAR-HIGH-COURT

                 West Pakistan Land Revenue Act (VII of 1967), S.39---Suit for declaration of title of property---Suit of plaintiff was dismissed by Trial Court, but the same was decreed by Appellate Court in favour of the plain tiff---Entry of mutation ---Scope---Plain tiff had contended that the defendants fraudulently and illegally had the mutation of the suit land entered in their favour and that the plain tiff had never gifted the suit property to them----Validity---Plain tiff had denied the factum of gift ---Suit property was inherited by the plaintiff---Defendants had alleged that the plain tiff thumb-marked mutation of suit land in their favour , however, no expert witness was produced to prove that such thumb marks were affixed by the plain tiff---Defendants were not conferred any right of ownership by mere entry of mutation in their names, which had not been established through reliable evidence---Revenue record would not by its own force, be sufficient to prove the genuineness of the transaction to which it purported, unless the genuineness of the same was otherwise proved---Such documents, being part of the public record, were admissible in evidence, but they by their own force, would not prove the genuineness and execution of that to which they relate, unless the transaction covered by them was substantiated from an in dependent and reliable source---Plain tiff had her own family, therefore, there was no ostensible reason for her to give her property in favour of her brother s (defendants)---Judgment of the Appellate Court did not suffer from any illegality---Revision was dismissed 2013  YLR  1354     LAHORE-HIGH-COURT-LAHORE.

                 Suit for declaration of title---Plaintiff was the real sister of the defendant and had challenged the mutation of tamleek of the suit land in favour of the defendant---Defendant assailed the fin din gs of the Appellate Court in favour of the plain tiff---Validity---When any transaction on behalf of a sister in favour of a brother in shape of relinquishment of a right of in heritance or transfer of property received in in heritance by a sister was challenged before a court by the alleged donor, and when the plain tiff made statement on oath before the court about the in validity of such a transaction, then the onus to prove such a transaction as a valid one, shifted on the side which was the beneficiary of the said transaction---Defendant, being beneficiary of impugned transaction was bound under law to prove not only the mutation , but in dependent of the impugned mutation , was bound to prove the alleged gift in his favour by proving the ingredients of gift which were offer, acceptance and delivery of possession---Defendant not only failed to establish the transaction of gift independent of the mutation but also failed to establish the offer, acceptance and delivery of possession of the suit land---High Court declined to interfere with the findings of appellate court---Revision was dismissed.. 2013  MLD  108     LAHORE-HIGH-COURT-LAHORE