1. These appeals assail the judgment dated 27th June 2012 of the learned Single Judge of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) at Swat, whereby Civil Revision No. 470 of 2003 filed by Mst. Noor Jahan (“the respondent”) was allowed and the suit filed by the respondent was decreed as prayed for, whereas, Civil Revision No. 604 of 2003 filed by the Islam-ud-Din and others (“the appellants”) was dismissed.
2. Leave to appeal was granted in Civil Petition No. 414-P of 2012 vide order dated 28th November 2013 to examine, “whether the question of validity of gift in favour of the petitioners/appellants allegedly made by the deceased Haji Saharney Khan was rightly examined by the revisional Court in its true perspective or otherwise”. However, Civil Appeal No. 94-P of 2012 was filed as of right.
3. Haji Sahraney (“the deceased”) died in the year 1990-1991. The deceased owned a house, four shops, godowns with rooms and corridors (hereinafter “the said properties”) in addition to agricultural lands which the respondent contended remained in his ownership till his death. The appellants however relied upon a document in the Pashto language dated 26th June 1989 (hereinafter “the said document”) whereby the said properties were stated to have been “given” to his three sons (Islam-ud-din, Rehmanud-din and Shahab-ud-din) by the deceased. The appellants also relied upon the three mutation entries in respect of the agricultural lands all of which were made on 8th June 1989 and attested on 22nd June 1989. The respondent filed Suit No. 43-L of 1999 on 22nd February 1999 against the appellants praying that she is entitled to a 1/12th share being her share as per shariah in the estate of the deceased, who was her late father. The said suit was partially decreed vide judgment dated 24th February 2001 by the Illaqa Qazi, District Swat in terms that the respondent was found only entitled to her share in agricultural lands but not in the said properties as the said properties had been gifted by the deceased to the three sons as per the said document. Both sides filed appeals against the said judgment, Appeal Nos. 76/13 and 86/13 of 2001 respectively. The Appeals were dismissed vide common judgment dated 10th April 2003. The judgment of the Appellate Court was in turn assailed by both sides in revision petitions, which were disposed of vide judgment dated 27th June 2012; Civil Revision No. 470 of 2003 which was filed by the respondent was allowed and the suit of the respondent was decreed as prayed for, whereas Civil Revision No. 604 of 2003 which was filed by the appellants was dismissed.
4. The learned counsel for the appellants Mr. Gulzarin Kiani stated that the impugned judgment of the High Court was not sustainable in law, as the said document constituted a valid gift which was proved in accordance with law and it had not been specifically assailed by the respondent in her plaint. It was also contended that the said properties which had been gifted were in long standing possession of the sons. As regards the mutations the learned counsel stated that the deceased had divested himself of the said agricultural lands in his lifetime. The learned counsel prayed that the impugned judgment be set aside and the suit of the respondents be dismissed with costs. Reliance was also placed upon the cases of Bashir Ahmad v. Taja Begum (PLD 2010 Supreme Court 906), Gul Rehman v. Gul Nawaz Khan (2009 SCMR 589), Iftikhar-ud-Din Haidar Gardezi v. Central Bank of India Ltd., Lahore (1996 SCMR 669) and Sailajananda Pandey v. Lakhichand Sao (AIR (38) 1951 Patna 502).
5. Mr. Zahoor ul Haq Chisti, the learned counsel for the appellants Ahmed Saeed and Muhammad Rasheed both sons of Sarof Khan, stated that they had in good faith purchased from the three sons of the deceased 4 kanals and 11 marlas of land vide Mutation No. 500 dated 3rd June 1997, which was attested on 12th June 1997 by the revenue authorities, and the three sons had admitted the sale, therefore, their ownership rights thereto should not be disturbed, particularly as they were purchasers for value and had no notice of any other person’s or persons’ interest therein. It was further contended that the revenue record had only disclosed the three sons as owners of the said land that was sold/bought.
6. On the other hand, the learned counsel for the respondents supported the impugned judgment of the High Court, which according to him did not suffer from any legal or factual defect. He stated that in the written statement filed by the appellants who were the other heirs of the deceased reference was made to the partitioning of the property by the deceased in his lifetime but this was never proved / established by them. The case of Muhammad Ejaz v. Khalida Awan (2010 SCMR 342) was cited with regard to the necessary ingredients of gifts and that if a gift deed purports to make a transfer of immovable property in praesenti it needs to be registered whereas the necessary ingredients of gifts were not present in this case and the said document was also not registered. He further contended that neither the mutations in respect of the agricultural lands nor the said document (purported gift) was established in accordance with law, since the requisite witnesses to prove the same were not produced. It was alleged that the mutations and the purported gift were devices to deprive the respondent and the other daughters of the deceased from their rightful inheritance. That since the appellants had taken shelter behind the said document of which the respondent had no knowledge therefore not challenging the same was of no consequence, and it was for the appellants who relied thereon to prove the same, which they failed to do. He said that no reliance can be placed on the written statement to the extent of the other daughters of the deceased since the same was on the basis of a general power of attorney the original whereof was not produced.
7. We have heard the arguments of the learned counsel for the parties and have gone through the record. The issue under dispute is the validity of the mutations and the purported gift as per the said document. We shall first take up the matter of the three mutations Nos. 36, 59 and 107 all of which are dated 8th June 1989 and shown to be attested by the revenue authorities on 22nd June 1989. The attesting witnesses of all the three mutations are Muhammad Rashid son of Maula and Akbar Jan son of Mehr Jan, however, only one witness (Muhammad Rashid) was produced and no any reason was given for the non-production of Akbar Jan. Article 79 of the Qanun-e-Shahadat Order, 1984 stipulates that a document “shall not be used in evidence until two attesting witnesses at least have been called for the purpose of proving its execution”. Moreover, even though the Patwari Halqa was produced by the respondent as PW-4 he was not questioned about the validity of the said mutations. The Tehsildar who attested the mutations was also not produced, and no explanation for his non-production was forthcoming from the appellants. On all the three mutations against the name of the deceased a thumb impression is affixed, but no effort was made to confirm the authenticity thereof. Incidentally, there is no signature of the deceased on the mutations whereas the said document is purportedly signed by the deceased (without affixing his thumb impression) even though the said document and the mutations were made at about the same time; this inconsistency remained inexplicable.
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