Stereo. H C J D A 38.

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT.

JUDGMENT:

C.R. No.3264 of 2010

Mst. Hameedan Bibi and another Versus Muhammad Sharif

Date of Hearing: 18.03.2016 .

Petitioners by: Mian Muhammad Ali Kasuri, Advocate .
Respondent by: Mr. Muhammad Shehzad Shoukat, Advocate .

Ali Akbar Qureshi, J:- 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
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C.R. No.3264 of 2010

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
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C.R. No.3264 of 2010

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.
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C.R. No.3264 of 2010

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
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C.R. No.3264 of 2010

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. Relevant part of the judgment
(supra) is reproduced hereunder:-
“When I say that the document Exh. P.
E. is unproved, I have in mind the mandatory
provisions of section 67 of the Evidence Act,
which lay down that “if a document is alleged
to be signed or written wholly or in part by
any person, the signature or the handwriting
of so much of the document as is alleged to be
in that person’s handwriting must be proved
to be in his handwriting”. If the case of the
respondent was that the appellant had signed
the original of Exh. P. E. or the certificate
appended to it, it must have been proved that
it was in the appellant’s handwriting, for
which no effort whatsoever was made. In the
case of Bengal Friends & Co. v. Gour Benode
Saha & Co., this Court had expressed itself on
this point as follows:-
“Documents which are not copies of
judicial record, should not be received in
evidence without proof of signatures and
handwriting of persons alleged to have
signed or written them.”
I am of the view that even if such
documents are brought on record and
exhibited without objection, they remain on
the record as “exhibits” and faithful copies of
the contents of the original but they cannot be
treated as evidence of the original having
been signed and written by the persons who
purport to have written or signed them, unless
the writing or the signature of that person is
proved in terms of the mandatory provisions
of section 67 of the Evidence Act.”
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C.R. No.3264 of 2010

6. The afore-referred instances of the instant case which

relate to the alleged gift, are sufficient to believe that no gift
was made by late Ibrahim in favour of the respondent and in
fact this all was managed with the connivance of the
revenue staff by the respondent to deprive the petitioners
from their valuable right. This practice has already been
deprecated by the Hon’ble Supreme Court of Pakistan in the
landmark judgment cited as “Ghulam Ali and 2 others Vs.
Mst. Ghulam Sarwar Naqvi” (PLD 1990 Supreme Court
1), wherein the Hon'ble Supreme Court of Pakistan has
observed, that the women, who are weaker segment of the
society, should not be deprived from their right of
inheritance in the name of customs or by emotionally
exploiting them. The relevant portion of the judgment is
reproduced as under:
“As is discussed in the case of Haji Nizam
(approved in Mohammad Bashir’s case) which
was also a case of clash of Islamic principles
against those of other systems-a widowed
daughter-in-law, seeking maintenance for her
minor child against the grandfather, it is the duty
of the Courts within the permissible fields, as
specified therein, to enforce Islamic law and
principles. This case also required similar, if not
better, treatment. The scope of rights of
inheritance of females (daughter in this case) is so
wide and their thrust so strong that it is the duty of
the Courts to protect and enforce them, even if the
legislative action for this purpose of protection in
accordance with Islamic Jurisprudence, is yet to
take its own time.
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C.R. No.3264 of 2010

In the rural areas where 80% of the female

population resides, the inheritance rights of the
females are not as protected and enforced, as
Islam requires. Cases similar to this do come up
even to Supreme Court. In a very large majority of
them the Courts act rightly and follow the correct
rules. But it is a wide guess as to how many
females take the courage of initiation or
continuing the legal battle with their close one in
matters of inheritance, when they are being
deprived. The percentage is very low indeed.
Neither the Courts nor the law as at present it
stands interpreted, are to be blamed. The social
organizations including those in the legal field are
yet to show up in the rural area. They are mostly
managed by Urban volunteers. When will they be
able to move out of mostly managed by Urban
volunteers. When will they be able to move out of
sophisticated methods of American speech/
seminar system and all that goes with it, in the
enlightened urban society? It is a pity that while
an ubranised brother, who is labourer in a
neighbouring Mill, has the protection of such
mass of Labour Laws; which sometimes even
Courts find it difficult properly to count-right from
the definition of ‘rights’, up to the enforcement’
even in homes, through ‘Social Security’ Laws,
with web of network of ‘Inspectorates’ etc. who
are supposed to be helping him at every step, his
unfortunate sister, who is deprived of her most
valuable rights of inheritance even today by her
own kith and kin—sometimes by the urbanized
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C.R. No.3264 of 2010

brother himself, is not even cognizant of all this.

She is not being educated enough about her
rights. Nearly four decades have passed. A new
set up is needed in this behalf. Social
Organizations run by women have not succeeded
in rural field. They may continue for the urban
areas where their utility might also be improved
and upgraded. At the same time they need to be
equipped with more vigorous training in the field
of Islamic learning and teachings. They should
provide the bulk of research in Islamic Law and
principles dealing with women. It is not the
reinterpretation alone which is the need of the day
but a genuine effort by them for the reconstruction
of the Islamic concepts in this field. It cannot be
achieved by the use of alien manner or method
alone.”

7. As regard the recording of wrong entries in the

revenue record in the matter of inheritance the Honourable
Supreme Court of Pakistan in the judgment cited as “Mst.
Gohar Khanum and others v. Mst. Jamila Jan and others”
(2014 SCMR 801), (mentioned supra) has held as under:
“We have heard learned counsel for the
parties at great length and have also gone
through the impugned judgment and the record
with their assistance. The relationship between
the parties is undisputed. It is, therefore, clear
that on the death of Hashim, in accordance with
Islamic Sharia which was applicable to the
question of inheritance in this case, the petitioners
through their predecessor-in-interest Dost
Muhammad became owners of 2/3rd of the
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C.R. No.3264 of 2010

property while the respondents through their

predecessor Mst. Zaria Jan became owners
through inheritance of the remaining 1/3rd of the
land.
“The main emphasis of the learned counsel
for the appellants was that the suit was time
barred having been filed 50 years after the
mutation dated 31.08.1940. This contention, is
however, easily dispensed with as Mst. Zarina Jan
admittedly came to own a 1/3rd share of the land by
operation of law and not by any mutation. The
mutation was meant to record the legal entitlement
of Dost Muhammad and Mst. Zarina Jan. If the
mutation was erroneously made in favour of Dost
Muhammad, such mutation was not create title in
favour of Dost Muhammad in accordance with
Sharia Law of inheritance. Learned counsel for the
appellants repeatedly emphasized that Mst. Zaria
was fully aware of the decision and assertion of
title by her brother Dost Muhammad and Dost
Muhammad had also constructed a house on the
disputed land. This, however, does not attract the
provisions of Limitation Act in the circumstances
of the present case. Mst. Zarina Jan being the
sister was co-owner and the possession /
occupation of the land by her brother as the other
co-owner could only be construed as possessions
on behalf of all co-owners including Mst. Zarina.
In order to relinquish or transfer her interest in the
property, there had to be a positive and affirmative
act. We have not been shown any document or
deed of relinquishment, sale, transfer or gift which
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C.R. No.3264 of 2010

would establish that Zarina Jan had either

relinquished her ineptest in the disputed property
or actually conveyed or transferred the same in
favour of Dost Muhammad. In the absence of any
such affirmative act on the part of Mst. Zarina Jan,
it cannot be said that the property came to vest
entirely in Dost Muhammad.”
“It was next contended that Mst. Zarina Jan
did not appear in the witness box herself and
instead her daughter in law namely Mst. Karam
Jan appeared as P.W.1. The fact is that Mst.
Zarina Jan was close to 100 years old and it was
this exigency which required her to act through
her daughter in law. Since it is not disputed that
the brother and sisters were owners of the disputed
land by way of inheritance, the onus squarely fell
on the appellants to establish that the 1/3rd interest
of Zarina had been transferred in favour of Dost
Muhammad or that Zarina Had relinquished her
rights in the suit property. But this onus was not
discharged.”

8. Learned counsel for the respondent when confronted

with the aforesaid facts and the law, the learned counsel
although had no answer but repeated his arguments that the
gift was validly made in favour of the respondent with the
consent of the petitioners. As regards, the cuttings over the
gift deed the learned counsel could not offer any
satisfactory explanation and simply submitted, that the same
is related to the revenue staff but as regards the validity of
the gift deed because of these “cuttings” the learned counsel
could not refer any law.
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C.R. No.3264 of 2010

9. There is another aspect of the case relating to the

ingredients of gift. The mandatory requirements to prove a
gift i.e. offer, acceptance and delivery of possession is
missing in this case. The respondent could not prove
through any credible and confidence inspiring evidence the
aforementioned ingredients, therefore, it can safely and
conveniently be held that the alleged gift is product of fraud
and fabricated simply to deprive the petitioner from the
secured and guaranteed right. The learned appellate court,
as manifest from the findings, carelessly perused the record
and committed serious illegality and jurisdictional defect
while passing the judgment impugned herein.
In fact, as evident from the record and particularly
the revenue record, the respondent has played a havoc fraud
with their sisters to grab their shares granted by Allah
Almighty, therefore, is not entitled for any leniency.
10. The judgments referred by learned counsel for the
respondent, as appears from the aforesaid facts, are not
applicable.
11. Resultantly, this revision petition is allowed, the
judgment and decree dated 28.08.2010, passed by the
learned appellate court is set aside and that of learned trial
court dated 24.02.2010 is upheld. No order as to costs.

(Ali Akbar Qureshi)

Judge

Approved for Reporting.

Judge

*Zia-ur-Rehman Farooqi*