Citation Name : 2003 MLD 384 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD SIDDIQUF
Side Opponent : SHABBIR HUSSAIN
Specific Relief Act 1877 ----S.42---Suit for declaration ---Benami transaction---
Doctrine of advancement, applicability of---Plaintiff had claimed that he purchased suit shop for a consideration and paid the amount thereof, but got sale deed executed in the name of defendant who was his minor son as Benami--- Defendant having denied title of plaintiff, need to file suit arose---Defendant had pleaded that consideration was paid by him without disclosing any source of income as at the time of sale transaction, defendant was minor ---Trial Court decreed the suit, but Appellate Court dismissed the suit, assuming that plaintiff had purchased the suit shop in the name of his son with the intention that shop would be owned by his son by way of gift by his father in his favour ---Validity-- Approach of Appellate Court was hot in consonance with law---Appellate Court proceeded to apply doctrine of advancement provided for in English Law which presumed that if a purchase was made by a person in the name of a child or wife then child or wife would be considered as purchasers for valuable consideration---Said doctrine was not applicable in Pakistan and there was no such presumption in law of Pakistan---Decision as to whether transaction was a Benami or whether same amounted to a gift , was one of intention---Presumption was that where it was proved that property was purchased in the name of son by the father, son was a Benami and father was a real owner---Appellate Court had acted with material irregularity in exercise of its jurisdiction while passing judgment and decree whereby suit of plaintiff was dismissed
Citation Name : 2002 MLD 651 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : TAUS KHAN Side Opponent : MUHAMMAD SHUAIB Islamic Law ---gift of undivided property in favour of minor ---Delivery of possession---Donee being minor at the-time of making of gift of property in his favour, delivery of possession of gift ed property to him by the donor was not sine qua non for the validity of the gift ---Delivery of possession of gift ed property to other donee who was major at the time of making of gift , was also not necessary because said property at relevant time had not been partitioned--- Possession of such donee could be regulated and validated by subsequent delivery of possession after partition of, said property---gift of specified Khasra numbers out of the joint poperty on which donor had possession, would be justified subject to adjustment at the time of partition of property.
Citation Name : 2001 CLC 1007 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : SHAMSHER Side Opponent : YAR MUHAMMAD KHAN Islamic Law gift ---gift to minors---Islam had though prescribed that for validity of gift delivery of possession was necessary, but where property was gifted, away to the minor s, delivery of possession to the minor s was not necessary.
Citation Name : 2001 CLC 807 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHEEDAN Side Opponent : ABDUL GHAFOOR Islamic Law gift ---Validity---gift in favour of wife and minor children by donor was found to be invalid by Appellate Court simply on ground that possession of land was not delivered to the donees---Donees as per entries in Register Haqdaran-e-Zamin were recorded to be the owners and in possession thereof through a tenant---Effect---Where gift was made by donee to wife or minor children, physical departure of donor from gift ed land and delivery of actual possession to donees was not necessary---Appellate Court having acted with material irregularity in exercise of its jurisdiction and its findings being based on misreading of evidence, judgment and decree passed were set aside by High Court.
Citation Name : 2000 PTD 2034 GAUHATI-HIGH-COURT-INDIA
Side Appellant : ROOPCHAND MANOJ KUMAR Side Opponent : COMMISSIONER OF INCOME-TAX Income Tax ----Cash credits---Genuineness of cash credits---Income-tax Officer adding credit in names of two minor girls to income of assessee-firm---Creditors genuine persons and identity of creditors -proved---Creditworthiness of creditors proved as amount of loan was accumulation of income on account of customary gifts in Hindu society received by minor girls ---Assessee-firm belonged to maternal uncle of creditors---Cash credits genuine and amount cannot be added to income of assessee---Indian Income Tax Act, 1961, S.68.
Citation Name : 1999 SCMR 1328 SUPREME-COURT
Side Appellant : RIAZ AHMAD Side Opponent : ADDITIONAL DISTRICT JUDGE Specific Relief Act 1877 S. 42---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration due to denial of rights by co-sharer---Plaintiff's suit was dismissed by Trial Court on ground of limitation---Appellate Court and High Court decreed plaintiff's suit---Validity---Defendant's plea that suit was barred by time was repelled by Appellate Court and High Court---Mutation in question was attested on basis of gift , validity of which was challenged on ground that gift obtained from minor (plaintiff) was unlawful in the eye of law and no rights came to vest in defendants on basis of alleged gift or mutation got attested on basis of said transaction---Such transaction made by minor could not be ratified after attaining majority---Held: Plaintiff being in possession of other property in Khata as co-sharer, no limitation would run against her, specially when case of plaintiff was that cause of action accrued to her at the time of denial of title which occurred one week before filing of suit; wrong mutation would confer no right in property, for, Revenue Record was maintained only for purpose of ensuring realization of land revenue; co-sharer could file suit for declaration due to denial of rights by other co-sharers and limitation would start in such case on denial of title---No justification was pointed out to interfere with well-reasoned judgment of High Court---Leave to appeal was refused in circumstances.
Citation Name : 1998 CLC 935 KARACHI-HIGH-COURT-SINDH
Side Appellant : IMDAD ALI KHAN Side Opponent : DEPUTY COMMISSIONER, HYDERABAD Sindh Encumbered Estates Act 1896 Ss. 3 & 7---Civil Procedure Code (V of 1908), 0.1, R.9---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Alternate remedy--Availing of---Maintainability---Government functionary appointed as Manager of estate of minor to save the same from going waste at the hands of minor 's father who was also appointed guardian of minor ---Validity---Petitioner (father) having challenged appointment of Manager, neither minor , nor his mother (on whose application Manager had been appointed) were impleaded as respondents in Constitutional petition---Petitioner was although natural guardian of his minor son yet his interests being in conflict with those of minor , it was necessary to implead minor either through his mother or to seek appointment of guardian ad litem to protect minor 's interest--- Constitutional petition was, thus, barred on such ground alone---Petitioner, however, having questioned appointment of Manager by way of civil suit, and thus, alternate remedy being available and, in fact having been availed of by petitioner, basic precondition for exercise of jurisdiction under Art. 199 of the Constitution had not been satisfied---Besides, discretionary relief under Art. 199 of the Constitution could only be granted to person who had approached Court with clean hands---Petitioner himself had stated that he executed gift s in favour of his minor son to avoid surrender of land under Martial Law Regulation No.115---Such intention of petitioner would manifest intended fraud on law, therefore, he could not be allowed to take advantage of his own fraud in exercise of equitable jurisdiction of High Court--Petitioner being trustee of minor 's property could not be allowed to misappropriate minor 's property or to convert the same to his own use--Appointment of Manager of minor 's property even if was without jurisdiction same need not be set aside if no injustice was caused--- Petitioner admittedly was not interested in protecting interest of minor, i.e., owner of property but was attempting to misappropriate the same---Petitioner, therefore, had no locus standi to institute Constitutional petition which was not maintainable in
Citation Name : 1998 PTD 2309 ALLAHABAD-HIGH-COURT-INDIA
Side Appellant : COMMISSIONER OF WEALTH TAX Side Opponent : SUNEHARI LAL GARG Wealth Tax ---- Net wealth---Exemption---gift s made by assessee to his minor children between 31-3-1964 and 1-4-1972---Amounts chargeable to gift tax or exempted under S.5 of gift Tax Act during period 31-3-1964 to 1-4-1972---Scope of proviso to SA(1)(a) of Wealth Tax Act---Value of such gift s not includable in net wealth of assessee even for assessment years 1972-73 and subsequent years--- Indian Wealth Tax Act, 1957, S 4(1)(a).
Citation Name : 1997 CLC 1800 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : MUHAMMAD SARWAR Side Opponent : GHULAM BI Muhammadan Law ----gift ---gift deed not coupled with the delivery of possession of corpus to the donee --Validity---Essentials---gift out of a joint property is valid without formally delivering the possession to donee---Locus standi to challenge such gift . If a donor is himself in actual physical possession of the corpus the delivery of possession would normally require actually putting up the donee in physical possession of the same but there may well be cases where the possession is not with the donor himself or where the donee is already in possession jointly or severally with the donor or where the donee is a minor and the donor is a minor 's guardian it would not be a condition precedent for completion of a possession in exercise of his individual right has no locus standi to challenge the gift as he challenges the same not through the donor but in spite of and against him.
Citation Name : 1996 MLD 1146 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD HANEEF Side Opponent : UMER DARAZ KHAN Muhammadan Law ----gift ---Validity---gift deed indicated that there was offer by donor in favour of donee regarding giving house in question, in gift ; there was acceptance of said gift by the father of donee on his behalf for donee was minor at that time, but the third ingredient which was most important to constitute valid gift i.e., delivery of possession of gifted property by donor to donee was however, missing---gift deed nowhere contained that possession of house in question, was ever delivered to donee, nor there was any endorsement to the effect that possession of same was received on behalf of donee by his father---Claim of donee about delivery of possession of house in question, was not supported by his witness---Other two attesting witnesses had not been examined by donee-gift in question, was thus, not a valid gift and did not create any right or title in favour of alleged donee in circumstances.
Citation Name : 1995 PTD 1274 RAJASTHAN-HIGH-COURT-INDIA
Side Appellant : COMMISSIONER OF WEALTH TAX Side Opponent : A.S. RATHORE Wealth Tax ---- Transfer of assets ---Assessee having bank account in name of minor son---Assessee gifting that amount to minor son---Interest accruing on amount gift ed not includible in wealth of assessee--Indian Wealth-tax Act, 1957, S.4(1)(a)(ii). Citation Name : 2007 MLD 50 LAHORE-HIGH-COURT-LAHORE Side Appellant : MUHAMMAD ASHRAF Side Opponent : IMAM BAKHSH ---gift ---Validity---gift of entire property in favour of plaintiff by his deceased brother--gift was challenged by three minor sons left behind by the deceased--- Neither one of the marginal witnesses nor scribe of the gift deed was examined by plaintiff---Later on plaintiff produced his brother but his name as a witness appeared to have been interpolated subsequently---Courts below had, for good reason, disbelieved the factum of gift ---None of grounds mentioned in S.100, C.P.C. which could have justified interference in impugned decree in second appeal, was pointed out.
Citation Name : 1995 MLD 1593 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : FATIMA Side Opponent : NOORUL HUDA Civil Procedure Code --Order XLI of C.P.C. Appeals from Original Decrees ----OXLI, R.25 & S.115---Revision against remand of case---Case was remanded on the ground that Trial Court should have determined whether house in question, was situate in specific Khasra number in view of "Patwari Halqa's statement that house in question was situate in said Khasra--Patwari's such statement was not based on Revenue .Record but on his oral statement, which was of no .legal effect---Plaintiff's statement and evidence that house in question, was given to her mother by her father-in-law on the eve of her mother's marriage with donor's son in lieu of dower and that after the death of her mother and father, she was the sole owner was falsified by the statement of plaintiff's next friend and uncle who had admitted that plaintiff's father was alive and was residing at a specified place along-with his second wife---During the lifetime of plaintiffs own father, her uncle could not act as a legal guardian and next friend of plaintiff who was minor ---Alleged gift through an unregistered document could not be considered in evidence for having been executed not by the husband of petitioner's mother but her father-in-law--Petitioner also failed to prove that house in question, was given to defendants on payment of "Khakshora" or that she had received any rent---Plaintiff's suit suffering from such defects and drawbacks, could not have been remanded merely on the basis of Patwari's oral statement for determining as to whether house in question was situate in specific Khasra number---Order of remand was set aside and plaintiffs suit was dismissed in circumstances.
Citation Name : 1995 CLC 130 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : ABDUL KARIM Side Opponent : MUHAMMAD AKRAM Limitation Act 1908 ----Art. 91---Cancellation/revocation of gift deed--- Limitation---Cause of action for cancellation/revocation of deed would start from its registration--Once period of limitation starts running it would not sto p running except where disability (minor ity, fraud etc.) was attached to plaintiff--- Plaintiff having attained majority long before the institution of suit and no other disability having been pleaded, suit for cancellation of deed was time-barred, having been filed after about 12 years of registration of deed.
Citation Name : 1994 SCMR 1333 SUPREME-COURT
Side Appellant : NOOR NISSA Side Opponent : NAZIR AHMAD KHAN LUGHMANI Martial Law Regulation 1972 No. 115 ----Para. 7---Constitution of Pakistan (1973), Art. 185 (3)---Punjab Court of Wards Act (II of 1903), S. 16---Land under superintendence of Court of Wards---Decrees were consent decrees and had been passed by the Civil Court before 20-12-1971 which was the cut off date mentioned in para. 7 of the Regulation---Such decrees had attained finality as they were not challenged in competent forums---Disability under S. 16 of the Punjab Court of Wards Act, 1903 could not be equated with disability wherein transfer was void on the ground that a Muslim minor of relevant category could not make a gift as it was not permissible under Muhammadan Law---Federal Land Commission having no jurisdiction to set aside or ignore such decrees of the Civil Courts which could be set aside and challenged in higher Courts, High Court was justified in setting aside order of the Land Commission---Leave to appeal was refused against the order of High Court in circumstances.
Citation Name : 1992 CLC 1567 KARACHI-HIGH-COURT-SINDH
Side Appellant : HABIBULLAH Side Opponent : SHAMIM AKHTAR Muhammadan Law gift ---Proof---Conduct of donor---Father, after gifting property in question to his minor children was managing affairs of such property in his capacity as guardian of donees---Photo stat of various tenancy agreements executed between donor and tenants of gift ed property during last fourteen years showed that such agreements were executed by the donor on behalf of donees as their guardian---Rent receipts of property in question also showed that donor issued receipts to various tenants on behalf of donees---Donor in his petition before High Court acted as guardian of donees in respect of gift ed property---Such documentary evidence prima facie, supported donees' contention that property in question, was gift ed in their favour by donor.
Citation Name : 1988 CLC 1633 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABDULLAH Side Opponent : MAQBOOL AHMAD Muhammadan Law gift --Validity of--Delivery of possession of gift ed property by donor to donee was necessary--Where gift was made by grandfather to his minor grandson who was under the care and custody of donor grandfather, change of possession of gift ed property, held, was not necessary--After declaration of gift by donor-grandfather who occupied position of de facto guardian of donee grandson possession of donor of gift ed property would be presumed to ' be on behalf of minor donee.
Citation Name : 1988 CLC 1007 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAHZAD AHMAD Side Opponent : ADDITIONAL DISTRICT JUDGE, BAHAWALPUR Code of Civil Procedure 1908 ---S.141--Objection petition--Doctrine of lis pendens--Petitioners' father agreed :o give land in dispute to his wife in lieu of her dower and suit filed by latter to recover dower ended in compromise-- Objection petition was filed by minor sons of petitioner in execution proceedings, instituted by wife, on ground that said property stood gift ed to them from their father--Again amendment in objection petition was sought to assert that gift had been completed before entry and attestation of mutation--Petitioners father and guardian through said amendment appearing to have invented a device to deprive his wife of property given to her in lieu of dower--Transaction of gift , held, was hit by doctrine of lis pendens and in order to negate this doctrine an amendment had been sought so as to predate transaction of gift --Amendment in objection petition disallowed in circumstances.
Citation Name : 1988 MLD 1676 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD SADIO KHAN Side Opponent : MUHAMMAD SALEEM KHAN Muhammadan Law ---gift --gift from father to minor children or from husband to wife--Formal acceptance not necessary.
Citation Name : 1988 CLC 1122 KARACHI-HIGH-COURT-SINDH
Side Appellant : ALTAFUR REHMAN Side Opponent : MASOOD AHMED KHAN Guardians and Wards Act 1890 Ss. 7, 8 & 9--Appointment of guardian of insane minor --Application for--Jurisdiction of Court--Permanent residence of insane minor girl was at place 'K' and father of such minor who had made gift in her favour at place 'K' and also had died there--District Court at place 'K' and not at place 'L', held, would have jurisdiction to entertain and decide application for appointment of guardian of such minor , even if minor at present was residing at place 'L'.
Citation Name : 1987 CLC 2011 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MAHTAB ELAHI Side Opponent : GHULAM RASOOL Muhammadan Law ---gift --Possession--gift made by father in favour of his minor child-Delivery of physical possession to donee not necessary for completion and validity of gift --Held, there should be a bona fide intention to make gift and an acceptance of gift --gift by owner should show that he was divesting himself of ownership of gift ed property and was conferring same on donee--Mere recital of transfer of constructive possession in gift deed was sufficient to complete and validate a gift in favour of one's minor child.
Citation Name : 1987 CLC 1765 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL HAI Side Opponent : HASEENA KHATOON Civil Procedure Code --Order XL of C.P.C. Appointment of Receivers O. XL, R. 1--Appointment of receiver--House in dispute falling in the share of minor plaintiff being issue of a predeceased son of ancestor and his claim to ownership thereof stronger than claim of defendant who was in possession and raised plea of gift of said property in his favour--Plaintiff making serious allegations of waste and mismanagement and misappropriation of property in hands of defendant who was enjoying full residential facilities in house and also collecting rent from tenants of six shops annexed to residential units--Receiver appointed by Court in circumstances in respect of property in suit to take all past accounts.
Citation Name : 1986 MLD 801 LAHORE-HIGH-COURT-LAHORE
Side Appellant : KHUDA BAKHSH Side Opponent : FEDERAL LAND COMMISSION Provisional Constitution Order 1981 ---Paras 7 & 29--Constitution of Pakistan (1973), Art.199--Federal Land Commission--Suo motu revisional jurisdiction-- Mutation of gift -Federal Land Commissioner finding that donor accepted gift on behalf of minor sons invalidated gift and reviewed mutation without actually affording donor or donees an opportunity of being heard although orders passed on file to serve them with notice and impugned order of Federal Land Commission showing that parties had been served--Contention that a presumption of regularity was attached to official acts and that recital be accepted as correct, held, was not tenable.
Citation Name : 1986 MLD 2355 FEDERAL-LAND-COMMISSION
Side Appellant : STATE Side Opponent : DILAWAR KHAN Martial Law Regulation 1972 No. 115 ---Paras. 7 & 29-- gift -- Genuineness and bona fides of-Requirements--Mutation duly entered and sanctioned--Change of ownership reflected in subsequent Jamabandi-- Khasra Girdawari showing possession of donees subsequent to transaction of gift -- to tality of evidence and circumstances in which gift s were made, held, would prove genuineness and bona fides of gift --minor donees present before Revenue Officer to make statement accepting gift would not be material-Such acceptance would be implicit where gift s were made by father of donees when they were minor --Transfer of possession to minor children, would not be necessary in a gift made by father. Citation Name : 1984 CLC 2330 KARACHI-HIGH-COURT-SINDH Side Appellant : MAHMOOD QADRI Side Opponent : O. S. D., FEDERAL LAND COMMISSION ---Para. 7 - Constitution of Pakistan (1973), Art. 199-Natural justice, principles of- Opportunity of being heard-gift made in favour of major and minor sons declared invalid by Land Commission, same having not been made before target date and for reason of some manipulation - Petitioners not given any notice before passing impugned order-Decision made on merits also challenged-Case remanded to Federal Land Commission for fresh decision after notice to petitioners.-[Natural justice, principles of].
Citation Name : 1984 CLC 624 KARACHI-HIGH-COURT-SINDH
Side Appellant : ILLAHI BAKHSH Side Opponent : BODO MAL ---S. 21-Appeal-Ejectment proceedings-Personal requirement-Fact that landlord gift ed some properties to minor daughters or a new property was purchased in name of his wife or he owned some other properties elsewhere, held, would not disentitle him from claiming ejectment on ground of his personal requirement if otherwise its bona fides proved-Landlord putting up with his family with his son-in-law for want of any accommodation of his own-Bona fide personal requirement, held, proved.
Citation Name : 1984 MLD 393 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD HASSAN Side Opponent : OFFICER ON SPECIAL DUTY AND JOINT SECRETARY, FEDERAL LAND COMMISSION Constitution of Pakistan 1973 ---Art. 199--Land Reform Regulation, 1972 (M.L.R 115), paras. 7 & 29--gift -- Petitioners (minor son and daughter) specified heirs in terms of Explanation 1 to para.7 --Bona fide of gift , held, could not be gone into --Held further, that there was no embargo on power of mortgagor to effect gift s as gift s would have been subject to mortgage.
Citation Name : 1984 MLD 291 KARACHI-HIGH-COURT-SINDH
Side Appellant : GHULAM RASOOL Side Opponent : FEDERAL LAND COMMISSIONER Constitution of Pakistan 1973 ---Art .199--Land Reforms Regulation, 1972 [ M . L. R.115 ], paras 25 to 29--gift --Donee minor child of donor--In case of gift in favour of minor delivery of possession, held, not necessary, held.--[gift ].
Citation Name : 1984 MLD 291 KARACHI-HIGH-COURT-SINDH
Side Appellant : GHULAM RASOOL Side Opponent : FEDERAL LAND COMMISSIONER Martial Law Regulation 1972 No. 115 ---Art .199--Land Reforms Regulation, 1972 [ M . L. R.115 ], paras 25 to 29--gift --Donee minor child of donor--In case of gift in favour of minor delivery of possession, held, not necessary, held.--[gift ].
Citation Name : 1972 PTD 581 KERALA-HIGH-COURT-INDIA
Side Appellant : L. JOSE KANNAMPILLY Side Opponent : CONTROLLER OF ESTATE DUTY, KERALA Estate Duty Estate duty----gift by deceased to major and minor sons Donor receiving the income as power of attorney agent and guardian-Donor's will providing that donees could recover the income from his estate-Whether the gift ed items could be included in the donor's estate--Estate Duty Act, 1953, S. 10.
Citation Name : 1970 PLD 83 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : KHAN BAHADUR MIAN FEROZ SHAH (REPRESENTED BY 10 HEIRS) Side Opponent : THE COMMISSIONER OF INCOME-TAX, NORTH ZONE, (WEST PAKISTAN), LAHORE Income Tax Act 1922 S. 16(I)(c), proviso 3, (3)(a)(iv)Determination of to tal income Exemptions and exclusions-Assessee transferring his house properties to his sons including 2 minor s by means of gift -Such transfer being without consideration, proviso third to S. 16(1)(c) not applicable to income arising from properties in question-Provision of S. 16(1)(c) read with its third proviso, held, cannot override express provisions of S. 16(3)(a)(iv).
Citation Name : 1966 PLD 1059 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MANSUR RAZA AND 4 OTHERS Side Opponent : MST. SYRRIA BEGUM Muhammadan Law gift -Guardianship-Donor mother of donee minor s-Transfer of possession necessary-Muhammadan mother not a guardian of either person or property of minor in lifetime of father-Entitled only to hizanat of her minor children.
Citation Name : 1966 PLD 36 WEST-PAKISTAN-BOARD-OF-REVENUE
Side Appellant : MALIK NAZAR HAYAT KHAN Side Opponent : THE STATE West Pakistan Land Reforms Regulation 1959 West Pakistan Land Reforms Regulation, 1959, paras. 7 & 15gift s of land -made to major sons, minor daughter, wives, minor grand-children, mother, and daughters-in-law- Mutations entered on 24th July 1957-Delivery of possession not established-gift s in favour of minor daughter and wives-Delivery of possession not necessary-gift s validated-gift s in favour of major sons, daughters-in-law, mother and minor grand-children not validated for want of actual delivery of possession.
Citation Name : 1966 PLD 2 WEST-PAKISTAN-BOARD-OF-REVENUE
Side Appellant : MIR GHULAM ALI KHAN TALPUR Side Opponent : THE STATE West Pakistan Land Reforms Regulation 1959 West Pakistan Land Reforms Regulation, 1959, para. 7(2) read with para. 25-gift s of land to minor daughters- Validation-Justification sought on considerations of family custom, donor's heart attack and saving property from death duty not established-Concurrent findings of local officers and Land Commissioner leading to refusal of validation-Not interfered.
Citation Name : 1965 PLD 665 SUPREME-COURT
Side Appellant : RABIA KHATUN Side Opponent : AZIZUDDIN BISWAS Muhammadan Law Muhammadan Law-gift -Delivery of possession essential for completion of gift -gift by father to his infant son-Possession to remain with father as natural guardian-Adoptive father being in position of de facto guardian of minor making gift of property to adoptee-Formal delivery of possession to donee not necessary.
Citation Name : 1957 PLD 85 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : AURANGZEB Side Opponent : DAUD KHAN Muhammadan Law gift -----Transfer of possession of property gift ed---Not always essential----gift from grandfather to minor grandsons whose father is dead.
Citation Name : 2006 YLR 2596 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. MASHAN through Legal Heirs Side Opponent : FAKHAR IMAM through Irshad Bibi ---Ss.96, O.XXIII, R.3 & S.12(2)--- Specific Relief Act (1 of 1877), Ss.9 & 42--- Qanun-e-Shahadat (10 of 1984), Art.114---Islamic Law---gift ---Proof---gift by an unmarried old pardanashin lady in favor of her nephew, son of her deceased brother, was subsequently challenged by lady under S.12(2), C.P.C.---Contention of nephew was that gift in question confirmed by virtue of consent decree could not be assailed by the lady as consent decree operates as an estoppels--- Validity---Courts below had properly analyzed the evidence on record produced by the both parties and given cogent reasons concurrently and correctly concluded that it was the lady who had appeared before the Court and had conceded the suit of the defendant nephew through which she admitted the making of the valid gift in his favor and there was no ambiguity or doubt about her identification or presence before the Court---Such findings, being concurrent were not shown to be the result of any misreading or non-reading of evidence and therefore, could not be set aside---Certain discrepancies in sanctioning the mutation had occurred as lady was an old illiterate woman and that nephew had never applied for comparison of thumb-impression of lady through Finger Print Expert but those had lost their significance and could not be made basis of upsetting the concurrent finding of fact recorded by Courts below specially because of lady's acknowledgment of the gift vide consent decree which had rightly not been upset by Courts below in proceedings under S.12(2), C.P. C.-Plea about lack of advice to lady by a male member of her family was irrelevant because lady was not married and both of her brothers were dead by the time, moreover, it was proved on record that admittedly throughout her life she had been living with her brother, father of defendant nephew, and even after demise of brother she was being looked after by the defendant's family, hence if she had made the gift in favor of her minor orphan nephews, it appeared to be very natural and for valid consideration---Held, it was the lady who executed the compromise deed, appeared before the Court, made the statement and was duly identified through her photo graph and photo copy of the identity card and that was sufficient proof of her appearing before the Court and admitting about the gift ---No misreading or non-reading of evidence had been pointed out for interference in the concurrent finding of Courts below.
Citation Name : 2006 YLR 1577 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Raja SHAUKAT ALI Side Opponent : MUHAMMAD AKRAM through Legal Heirs ---S. 42---Civil Procedure Code (V of 1908), O.XXXII, R.7---Suit for declaration--- Agreement of compromise on behalf of minor by a next friend or guardian--- Binding effect on minor ---Father of petitioner gift ed away 1/3rd of his land jointly in favour of his brother and sister at a time when petitioner was not even born---Based on said Will; gift ed land was mutated in favour of said two legatees--Subsequently, petitioner was born and mother of petitioner and petitioner who was minor , through his grandfather as next friend filed a suit to challenge said Will and respective mutations made in favour of brother and sister by way of gift ---Said suit was compromised when due permission under O. XXXJI, R.7, C.P.C. was granted to petitioner's grandfather in respect of compromise---Certain lands were given to petitioner according to terms of compromise and said suit was decreed in terms of compromise---One of the legatees/brother of deceased sold certain land from his share to predecessor-in- interest of respondents---Petitioner disputed said transaction, through declaratory suit; whereas respondents claimed as successors of their respective fathers who were bona fide purchasers thereof---Both Courts below, had concurrently found that vendees/respondents were bona fide purchasers of land for valuable consideration---Contention of petitioner was that as at relevant time he was minor , the compromise recorded in earlier litigation, during his minor ity was not binding on him---Validity---Submission of petitioner was not entirely correct as O.XXXII, R.7, C. P. C., specifically permitted a compromise to be made on behalf of a minor by a next friend or guardian, if the Court so permitted---Suit of petitioner against respondents other than respondents/bona fide purchasers, was decreed--Said decree, however, would not affect any rights acquired bona fide, by parties, prior to said date. Citation Name : 2006 YLR 1277 LAHORE-HIGH-COURT-LAHORE Side Appellant : RESHAM BIBI Side Opponent : RIAZ BIBI --gift ---Validity---Plaintiff, just twenty days after the gift mutation, challenging gift in suit for declaration asserted that he had not made any gift in favour of his one daughter/defendant excluding the two others---Suit was decreed but decree was set aside in appeal---Validity---Being beneficiary of gift and mutation defendant/donee was to prove that gift had been validly made in her favour but she failed to prove so and her absence from witness box produced an adverse inference upon her case---Reasoning regarding non-delivery of possession of gift property would have been sustained only if donee had been a minor or unmarried but neither she was minor nor unmarried daughter under the care of her father who was in continuous possession of suit property---Identifying witness of mutation in question was, without any reason, not produced---No justification was found on record as to why plaintiff selected defendant for gift while excluding his two other daughter and wife---Appellate Court accepted that there was no direct evidence of offer and acceptance of gift and delivery of possession but it proceeded on wrong premise by holding that plaintiff had not refuted the offer or acceptance---Appellate decree was, therefore, not legally sustainable.
Citation Name : 2006 CLC 1009 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD HUSSAIN Side Opponent : TAFHEEM-UL-HUDA --gift ---Proof---Grandfather making gift in favour of minor granddaughter who was residing in the house of grandfather---Burden of proof, was not on the beneficiary but upon the donor to prove the alleged fictitious and forged nature of transaction---In case of father and minor daughter, grandfather qua the minor granddaughter, the intention to make the gift had to play the pivotal role--- Delivery of possession had been proved by copy of record of rights---Alienation from donor in favour of his another son of the remaining lands without any objection repelled the contention that ability and capacity of donor was affected by any infirmity of illiteracy and deafness preventive in matter of alienation--- Non-production of the Revenue Officer, recorder of impugned gift statement, relevant Patwari and two alleged identifiers of the concerned village had clearly showed that petitioner had failed to disprove the factum of gift ---Non-filing of appeal and revision against mutation in revenue hierarchy and against decree passed in favour of vendee/granddaughter, with regard to gift mutation before District Court and in the High Court was also fatal for acceptance of case of donor---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118.
Citation Name : 2006 MLD 813 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABDUL AZIZ through Legal Heirs Side Opponent : FATIMA BIBI ----S.42---gift ---Oral gift ---Poof---Suit for declaration based on oral gift ---Suit was decreed but decree was reversed in appeal on ground that mutation had not been sanctioned therefore gift could not be proved---Validity---Oral gift takes effect when made regardless of the date on which a mutation may subsequently be sanctioned---Validity of an oral gift is not effected even where a mutations is not sanctioned at all---Very fact that gift was recorded coupled with material fact that donees to ok possession of their separate portions as reflected in jumabandies and the fact that they were still in cultivating possession of their respective shares was sufficient to demonstrate that three essential ingredients of a valid gift sto od proved---No evidence was available on record that doner renounced the gift made by him or had sought to repossess the land delivered to donees under his gift ---Even if there had been a subsequent change of mind by donor, the same could not have resulted in withdrawal of gift because title irrevocably stood vested in donees---Not necessary for a donee to be minor and oral gift could also have been proved through testimony of witnesses alone--- Recording of mutation even though unsanctioned very strongly had corroborated the case set up by plaintiff---Appellate Court wrongly observed that want of sanction rendered the mutation useless and gift could only have been proved if mutation had been sanctioned.
Citation Name : 2006 MLD 659 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SULTAN Side Opponent : MUHAMMAD HUSSAIN ---S. 42---Transfer of Property Act (IV of 1882), Ss.122 & 123---Suit for declaration---Execution of gift ---Plaintiffs who were father, son and daughter in their suit for declaration had challenged gift mutation allegedly got executed by them in favour of defendants/donee---Plaintiffs had claimed that gift in question was the result of fraud and misrepresentation, besides that son and daughter of donor at relevant time were minor s and that donor (father) had no lawful authority on their behalf to make the gift and that gift to their extent was void--- Suit was dismissed by Trial Court on ground of delay as mutation of gift in dispute was challenged after about 26 years of its execution---Son and daughter of plaintiff/donor by producing identity cards and other documentary and oral evidence, had fully proved that at relevant time when alleged gift mutation was executed and attested they both were minor s---Validity---Transaction/alienation of an immovable property on behalf of minor s, was void, even if it was made by their legal and natural guardian, except where disposition of such property was for the need of minor s---Such was not the position in the present case, rather property of minor s which they had inherited from their mother and was duly mutated in their favour, was gift ed by their father---Mutation of gift in question, in circumstances was absolutely void and ineffective against the rights of minor s/plaintiffs---Mutation of gift in dispute though had not been challenged by minor s within three years on attaining age of majority, but suit to their extent could not be dismissed, because defendants had been paying plaintiffs/minor s share of produce of suit-land and cause of action had accrued a week before the institution of the suit when defendants had denied the title of plaintiffs to suit property---Even otherwise, on account of declaration that gift mutation was void, plaintiffs would become sharers along with defendants in same Khata---Remedy of minor s to seek declaration was not hit by any provisions of Limitation Act, 1908---Fraud in respect of mutation as alleged by father of minor s, had not been established against him and such mutation having been effected about 26 years ago, could not be declared to be voidable and case of father (plaintiff) would be hit by Limitation Act, 1908---Judgment and decrees of two Courts below were set aside, suit of minor s to the extent of their shares in the gift ed land was decreed, whereas to the extent of share of father was dismissed and impugned mutation was maintained.
Citation Name : 2004 YLR 130 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : MUSHTAQ AHMAD Side Opponent : Mst. NEELAM ----S. 5---Constitution of Pakistan. (1973), Art. 199--- Constitutional petition-- Maintenance allowance, recovery of---Such allowance was claimed by wife and minor children---Family Court decreed the suit against the husband---Validity--- Wife is entitled to claim maintenance if she is forced to live apart from the husband on account of the acts of cruelty by the husband---Maintenance is neither a nature of gift nor a benefit but is an undeniable legal obligation of-the husband to maintain his wife when she is not staying away without any justifiable reason---Judgment and decree passed by the Family Court was recorded in the light of material on record and no case 'of misreading or non- reading of .evidence had been made out---Mere fact that no finding had been returned on issue pertaining to payment or otherwise of dower amount by itself was not sufficient to annul the judgment and decree in exercise of Constitutional jurisdiction--Constitutional petition was dismissed in limine. Citation Name : 2004 PLD 255 LAHORE-HIGH-COURT-LAHORE Side Appellant : MUHAMMAD ZOFIGAN Side Opponent : MUHAMMAD KHAN ----Suit by minor challenging sale of his land by father---Plaintiff's plea was that suit-land was gift ed to him by his mother having inherited same from her father; that he was minor at the time of sale, which was not contracted by him nor did he receive sale price thereof nor did he mutate land to the defendants--- Defendants plea was that such sale was made in their favour by minor 's father as real owner, while minor was its ostensible owner---Onus of issue relating to status of plaintiff's father as real owner was on the defendants---Plaintiff's witnesses including plaintiff supported his claim, but not a single question was asked from them by defendants during cross-examination regarding actual purchase/ownership or ostensible ownership of suit-land---Plaintiff produced in evidence mutation of gift in his favour by his mother, Jamabandi and Khasra Girdawari reflecting his name therein--Defendants failed to prove that suit-land was in fact purchased by plaintiff's father, who actually paid its sale price and got same transferred in his wife's name as Benami owner, which she subsequently gift ed to plaintiff upon instructions and desire of her husband--- Defendants did not summon plaintiff's father or mother as witnesses to prove their plea of Benami---Plaintiff's father and mother had never claimed to be real owners of suit-land---Held, plaintiff was not ostensible owner of suit-land, but was its real owner.
Citation Name : 2003 PTD 647 SUPREME-COURT
Side Appellant : JALIL CENTRE, ABDALI ROAD, MULTAN Side Opponent : COMMISSIONER OF INCOME-TAX/WEALTH TAX (APPEALS) ZONE, MULTAN Wealth-Tax Act 1963 ---Ss.16(3), 17, 27 & 29---Constitution of Pakistan (1973), Art. 185(3)---Wealth escaping assessment in respect of property treating same to be assessed as Association of Persons and not as an individual---Appeal against such determination filed by assessee was accepted, but Tribunal resto red the status of assessee as that of an Association of Persons---High Court dismissed appeals filed by assessee---Validity---Dispute in the present case pertained qua determination of status of property as assessee claimed itself to be an individual, while Department treated same to be Association of Persons---Property in question was indivisible having only one staircase---Site plan of property, had been got approved by assessee in his own name from Municipal Corporation ---Assessee after raising construction over property made gift to his wife, minor daughter and three sons, whereas land underneath the Plaza remained still in the name of assessee---Factual controversy, whether property could be treated in individual capacity or same had got the status of Association of Persons, had been determined by Tribunal after considering factual aspects of the case--- Questions formulated by assessee in its memo of appeal before High Court had no legal value as the matter was to tally a factual controversy---Judgment of High Court was unexceptionable as interference under S. 27 of the Act could be made only on a question of law---Supreme Court dismissed petitions for leave to appeal in circumstances.
Citation Name : 2007 CLD 277 SECURITIES-AND-EXCHANGE-
COMMISSION-OF-PAKISTAN Side Appellant : In the matter of: ACQUISITIONS OF SHARES OF UNITED SUGAR MILLS LIMITED and 12 others Side Opponent : In the matter of: ACQUISITIONS OF SHARES OF UNITED SUGAR MILLS LIMITED and 12 others ---S. 3---Islamic Law ---Concept of 'Constructive' delivery---Hiba---Essentials of Hiba--Under Islamic Law , three essentials of Hiba were of fer, acceptance and actual physical delivery---Concept. of 'Constructive' delivery was a concept not compatible with Islamic Jurisprudence on the point---Under Islamic Law , actual delivery had to be made in cases where the Gift ed property was a movable asset---Since possession of pledged shares was with Financial Institutions, their delivery could not have been possible---Even otherwise, Listed Companies (Substantial Acquisition of Voting Shares and Takeovers) Ordinance, 2002, did not exempt acquisition of beneficial shares---No exemption was available to such acquisition under S.3 of Listed Companies (Substantial Acquisition, of Voting Shares and Takeovers) Ordinance, 2002 as those shares were neither held by them in their name prior to coming in force of said Ordinance, nor did they devolve in inheritance or succession or were transferred by a Financial Institution within the meaning and scope of cl. (6), S.3 of the Ordinance
Citation Name : 2007 SCMR 236 SUPREME-COURT
Side Appellant : AURANGZEB through L.Rs. Side Opponent : MUHAMMAD JAFFAR ---S. 115---Constitution of Pakistan (1973), Art.185(3)---Gift ---Validity--- Revision---Scope---Concurrent findings of facts by Courts below---High. Court in revision set aside such findings---Petitioner's contentions were that High Court was not competent to set aside concurrent findings of fact in exercise of revisional jurisdiction; that power of High Court to interfere under 5.115, C.P.C., was limited to correct some legal errors and not to substitute its own findings, even if finding of Courts below were erroneous or a different view was possible; that Courts below were right in holding that ingredients of Gift were not fulfilled as delivery of possession was never made, to donee, thus, Gift was void under Islamic Law and that impugned judgment was result of misreading and non- reading of material evidence---Supreme Court granted leave to appeal to consider such contentions of petitioner.
Citation Name : 2007 CLC 167 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. KHAIRAN BIBI Side Opponent : GHULAM HASSAN ----Ss. 8 & 42---Civil Procedure Code (V of 1908), 5.115---Islamic Law ---"Gift " and "will"---Distinction---Interpretation of document---Dispute between the parties was with regard to attestation of mutation bearing words Tamleek-e- Warasat---Parties were legal heirs of deceased owner and plaintiffs asserted that the mutation was an attestation of Will having no legal sanctity---Plaintiffs claimed their share in the suit land---Trial Court and Lower Appellate Court decreed the suit and appeal respectively in favour of plaintiffs---Plea raised by defendants was that it was a mutation of Gift made by their father during his life time in their favour---Validity---Will takes effect after the death of a person while Gift during the lifetime of donor---Suit land was transferred to defendants during the lifetime of owner and report in Roznamcha Waqiati reflected the intention of donor as to transfer of property through Gift /Tamleek it was for such reason that it was mentioned specifically in the report that after Tamleek the donor had relinquished the property---Mere use of word " " (Will) did not make the transaction as Will---Word " '' " was used in isolation and was contrary to the intention of the donor---Courts below misread the document and had erred while holding it as Will---Report on Roznamcha Waqiati was clearly a transaction of Gift ---Gift in favour of a legal heir could validly be made and there was no prohibition---Predecessor-in-interest of parties did not Gift the property in the imminent danger of death and could not be said to have made during Marz-ul-Maut----Judgments and decrees passed by both the Courts below were set aside as the Courts had committed material irregularity---Revision was allowed accordingly.
Citation Name : 2007 PTD 651 INCOME-TAX-APPELLATE-TRIBUNAL-
PAKISTAN Side Appellant : I.T.As. Nos.5441/LB, 5862/LB, 5861/LB of 2002, decided on 31st August, 2006. Side Opponent : I.T.As. Nos.5441/LB, 5862/LB, 5861/LB of 2002, decided on 31st August, 2006. --Ss. 13(1)(aa) & I48---Addition---Gift ---Rejection of Gift on the ground that date of Gift and evidence of payments had not been produced and since there was no blood relationship with the assessee, the Gift could not be made---Assessee contended that First Appellate Authority was-not justified to set aside the addition made under S.13(1)(aa) of the Income Tax Ordinance, 1979 for re- consideration, as the girt transaction was fully verifiable and authentic in the eyes of Law and addition was liable to be deleted---Validity---Donors had sworn affidavits and had appeared before the Taxation of ficer and had been examined under 5.148 of the Income Tax Ordinance, 1979 and admittedly they were existing taxpayers---Rejection of version of assessee on flimsy grounds was not justified---For Gift s, there was no requirement under the Law that Gift could be made to the blood relationship only---Donors were men of means and had shown Gift s in their respective income tax assessments and there was no valid reason to reject the Gift s, as oral Gift was as valid as written Gift under the Islamic Law and "of fer", "acceptance" and "possession" were the only three conditions under the Law for performance of Gift , which had been fulfilled--- Addition was deleted by the Appellate Tribunal in the circumstances.
Citation Name : 2006 PLD 444 SUPREME-Court
Side Appellant : SARDAR MUHAMMAD Side Opponent : Mst. SHARIFAN BIBI ---S. 42---Civil Procedure Code (V of 1908), O.XXIII, R.3---Constitution of Pakistan '(1973), Art.185 (3)---Declaration of title---Compromise decree---Plea not raised---Effect---Concurrent findings of fact by the Courts below---Father of plaintiffs, in earlier round of litigation, consented to the share of widow of his brother and suit was decided accordingly---Later on widow Gift ed her land in favour of her adopted daughter---Plaintiffs assailed mutation of Gift and claimed their share in the property left by the widow---Trial Court and Lower Appellate Court concurrently dismissed the suit and appeal respectively---Judgments of both the Courts below were maintained by High Court in exercise of revisional jurisdiction---Validity---Plaintiffs' case was not that they were deprived of their legal share as excessive land was devolved upon the widow pursuant to the Gift ---Case of plaintiffs before High Court was that Trial Court had not framed proper issues and moreso the evidence could not be appreciated in its true perspective, which resulted in serious miscarriage of justice---Such new plea pressed into service did not even find mention in memorandum of petition for leave to appeal---Point which had not been urged before lower Court and was not mentioned in petition for leave to appeal, could not be allowed to be raised at the hearing of the petition---Plaintiffs were successors of the husband of predecessor-in-interest of defendants but land in question exclusively belonged to the widow and devolved upon her under Islamic Law to the extent of 1/4th share, such land could not be given to plaintiffs, who were not her legal heirs--- Plaintiffs had no cause of action when Gift was already restricted to the Law ful share of predecessor-in-interest of defendants and hence question of annulment of the Gift did not arise which was never challenged by predecessor-in, interest of plaintiffs but impliedly which culminated into a compromise between the predecessor-in-interest, of plaintiffs and the widow---Supreme Court declined to interfere with the judgments and decrees passed by the Courts below---Leave to appeal was refused.
Citation Name : 2006 PLD 15 SUPREME-COURT
Side Appellant : Mst. NUSRAT ZOHRA Side Opponent : Mst. AZHRA BIBI and others --Gift ---Donor, power of ---Preferential Gift , a transaction termed as Zulm--- Donor made Gift of his all property in favour of his two daughters from one wife, while plaintiff being his daughter from other wife was excluded out of his property---Donor appeared in Court as witness in favour of donee daughters and stated that no Gift was ever made in favour of plaintiff daughter---Suit-land was Gift ed to donees who accepted the same and possession of the land was also handed over to them---Trial Court dismissed the suit but Appellate Court allowed the appeal of plaintiff, which judgment was set aside by High Court in exercise of revisional jurisdiction and the suit was dismissed---Plea raised by plaintiff was that preferential Gift in favour of two daughters by her father, while depriving her from the property, was an act of Zulm---Validity---Authenticity and genuineness of the statement of donor could not be questioned because the Gift was neither vague nor uncertain---Preferential Gift made in favour of one or two by donor in his lifetime could not be termed as 'void'---Legal heir could not challenge validity of Gift by her ancestor during lifetime of donor---There was no question of Zulm in the Gift made by donor excluding plaintiff, because donor had divorced mother of plaintiff who after her abduction, had contracted second marriage, which prompted donor to deprive plaintiff from his property---One might not agree with the reasoning of donor but it could not be questioned by anybody including the legal heirs and it was enough that the donor himself was satisfied---Donor was entitled to Gift whole of his property to one of his legal heirs and no bar had been imposed under Islamic Law ---Judgment and decree passed by High Court did not call for any interference---Leave to appeal was refused.
Citation Name : 2006 PLD 15 SUPREME-Court
Side Appellant : Mst. NUSRAT ZOHRA Side Opponent : Mst. AZHRA BIBI and others --Gift ---Donor, powers of ---Scope---Muslim donor has vast powers to alienate his property by way of Gift during his lifetime, subject to one condition that he should be in proper state of health and Gift is made at his own without any coercion or inducement---Powers of a Muslim to dispose of his property by way of Gift are unfettered---Gift cannot be invalidated only because the heirs are deprived of their shares, but where material facts are concealed by donee, such Gift can be declared invalid on such account---Policy of Islamic Law appears to be to prevent a testator interfering by Will with the course of devolution of property according to Law among his heirs, although he may give a specified portion, as much as one third to a stranger, but it also appears that a holder of property may, to a certain extent, defeat the policy of Law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms.
Citation Name : 2006 PTD 529 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : Mst. JAN RANA Side Opponent : COMMISSIONER OF INCOME TAX, PESHAWAR ---Gift ---Effect of non-registration of documents required to be registered---Gift was complete when there was a declaration of Gift by the donor, acceptance of , Gift , express or implied by or on behalf of the donee and delivery of possession of the subject of the Gift by the donor to the donee---Unregistered Gift deed, notwithstanding S.49 of Registration Act, 1908 was admissible in evidence--- Donor and the donee being brother and sister were governed by Islamic Law and the registration of the document was not sine qua non for validity of the Gift .
Citation Name : 2006 YLR 2596 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. MASHAN through Legal Heirs Side Opponent : FAKHAR IMAM through Irshad Bibi ---Ss.96, O.XXIII, R.3 & S.12(2)--- Specific Relief Act (1 of 1877), Ss.9 & 42--- Qanun-e-Shahadat (10 of 1984), Art.114---Islamic Law ---Gift ---Proof ---Gift by an unmarried old pardanashin lady in favor of her nephew, son of her deceased brother, was subsequently challenged by lady under S.12(2), C.P.C.---Contention of nephew was that Gift in question confirmed by virtue of consent decree could not be assailed by the lady as consent decree operates as an estoppels--- Validity---Courts below had properly analyzed the evidence on record produced by the both parties and given cogent reasons concurrently and correctly concluded that it was the lady who had appeared before the Court and had conceded the suit of the defendant nephew through which she admitted the making of the valid Gift in his favor and there was no ambiguity or doubt about her identification or presence before the Court---Such findings, being concurrent were not shown to be the result of any misreading or non-reading of evidence and therefore, could not be set aside---Certain discrepancies in sanctioning the mutation had occurred as lady was an old illiterate woman and that nephew had never applied for comparison of thumb-impression of lady through Finger Print Expert but those had lost their significance and could not be made basis of upsetting the concurrent finding of fact recorded by Courts below specially because of lady's acknowledgment of the Gift vide consent decree which had rightly not been upset by Courts below in proceedings under S.12(2), C.P. C.-Plea about lack of advice to lady by a male member of her family was irrelevant because lady was not married and both of her brothers were dead by the time, moreover, it was proved on record that admittedly throughout her life she had been living with her brother, father of defendant nephew, and even after demise of brother she was being looked after by the defendant's family, hence if she had made the Gift in favor of her minor orphan nephews, it appeared to be very natural and for valid consideration---Held, it was the lady who executed the compromise deed, appeared before the Court, made the statement and was duly identified through her photograph and photocopy of the identity card and that was sufficient proof of her appearing before the Court and admitting about the Gift ---No misreading or non-reading of evidence had been pointed out for interference in the concurrent finding of Courts below.
Citation Name : 2006 PLD 15 SUPREME-COURT
Side Appellant : Mst. NUSRAT ZOHRA Side Opponent : Mst. AZHRA BIBI and others --Gift ---Preferential Gift ---Scope---No prohibition has been laid down under Islamic Law that a preferential Gift cannot be made, though a few jurists are of the view that it was not prohibited, yet such act can be considered as `sinful'.