1. The petitioners, who have been deprived from their right of inheritance guaranteed by the Allah Almighty and the Law of Land by their brother as usual using the device of a gift mutation, filed a suit for declaration, challenging the gift mutation No.7942, dated 02.02.1992, on the grounds, that the father of the parties to the case namely Muhammad Ibrahim died on 22.04.2001, leaving behind the two daughters (the petitioners) and one son (respondent) to mourn his death. The deceased father left the suit land in legacy, which was being cultivated by deceased Ibrahim in his life time and after his death his only son Muhammad Sharif, the respondent herein; when the petitioners demanded their shares from the legacy as per the law, respondent firstly put off the matter on different pretext but finally refused to give the share to the petitioners and stated, that the suit property has already been transferred in his name by way of gift mutation by the father of the parties to the case; the petitioners on coming to know hurriedly contacted to the concerned patwari, and it came into their knowledge that the respondent with the connivance of the revenue staff through a fake document (alleged gift) has transferred the land in his favour and lastly prayed that the petitioners are admittedly legal heirs of deceased Ibrahim, so are entitled to get the suit property to the extent of their share.
2. The suit was contested through written statement by the respondent wherein he stated, that the suit land was transferred by way of gift mutation by deceased Ibrahim firstly in favour of his grandsons but subsequently the same was transferred in favour of the respondent/real son of the deceased Ibrahim and further, the gift was made with the prior consent of the petitioners.
3. The learned trial court after completing all the codal formalities decreed the suit vide judgment dated 24.02.2010, against which an appeal was filed by the respondent, which was allowed and the suit of the petitioners was dismissed vide judgment & decree dated 28.08.2010.
4. Heard. Record perused.
5. The story of instant case depicts the constant and longstanding behavior prevailing in the sub-continent of the brothers to deprive their sisters from their secured and guaranteed right of inheritance through different modes. In this case, the respondent, who is the real brother of the petitioners is depriving the petitioners from their right of inheritance on the basis of a gift mutation of suit land dated 02.02.1992. The following events are necessary to take into consideration to decide the fate of the alleged gift claimed by the respondent:
i. The alleged gift firstly was made, as claimed by the respondents, by deceased father of the parties to the case, in favour of his grandsons (sons of respondent) but subsequently through another rapt roznamcha, the gift of the same land was made in favour of the respondent Muhammad Sharif on the same day through same mutation (Exh.D11).
ii. There are serious nature of cuttings on the alleged mutation but no explanation to this effect is available on the mutation or in the record and further no application was filed by the respondent to rectify the aforesaid cuttings. In fact, the cuttings which had been made on the mutation and also admitted by the witnesses appeared on behalf of the respondent are sufficient to declare the gift deed null and void and in effective qua the rights of the petitioners.
iii. The respondent himself appeared in the witness box but did not utter even a single word about the date, time and place of making of the oral gift and names of witnesses in whose presence the alleged oral gift was made.
iv. The petitioners while filing the suit and appearing in the witness box specifically asserted that the alleged gift is product of fraud and no gift was made by the father of the petitioners but this important part of the examination in chief has not been cross examined and further the petitioners also stated in the evidence, that late Ibrahim, father of the petitioners did not mark his thumb impression or mentioned his National Identity Card number over the gift deed but this part has not too been cross examined by the respondents. By this way the claim of the petitioners has gone un-rebutted and is admission on the part of the respondent.
v. The thumb mark of deceased Ibrahim is not available over the gift mutation. This fact is sufficient to declare the gift deed unlawful and product of fraud.
vi. The respondent while appearing as witness stated, that consent of the petitioners was obtained by his late father Ibrahim in the presence of Shafee and Muhammad Ishaq but none of these persons were produced as witness in the witness box to corroborate the version of the respondent.
vii. The respondent who appeared as DW1, stated, that firstly the suit land was gifted in favour of Abdul Rehman and Ismail, grandsons of late Ibrahim and thereafter the names of the aforesaid grandsons were crossed and the name of the respondent was written.
viii. The respondent has claimed that firstly the gift of suit land was made by deceased Ibrahim in favour of his grandsons, but the mandatory ingredients of gift i.e. offer, acceptance and delivery of possession are missing and same is the position in the case of subsequent alleged gift made in favour of respondent. Needless to observe, that under the law, the respondent was required to prove the oral gift independently that of the gift mutation.
ix. To prove the alleged gift, the respondent did not produce the scribe or signatory of the gift or any official from the revenue staff. The alleged gift deed (Exh.D11) was produced in the statement of learned counsel, which otherwise is not admissible in evidence. Reliance is placed on the esteemed judgment of the Hon’ble Supreme Court of Pakistan cited as“Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others” (PLD 1973 Supreme Court 160), wherein it is ruled, that except the judicial record, all other documents, even if exhibited, can only be read in evidence if the signatory or the scribe appeared in the Court.
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