PLJ 2023 SC 452
[Appellate Jurisdiction]
Present:
Qazi Faez Isa and Syed Hasan Azhar Rizvi,
JJ.
MUHAMMAD
RAFIQ--Appellant
versus
Mst. GHULAM ZOHARAN MAI and
another--Respondents
C.A. No.
2613 of 2016, decided on17.3.2023.
(On
appeal from the order dated 03.11.2016 of the Lahore High Court, Multan Bench
passed in Civil Revision No. 331-D/2013)
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Allowed--Gift-deed--Primary
evidence--Neither gift deed nor certified copy was produced--Photo copy of
sub-registrar’s register was produced--Denial of gift-deed--Fraudulently
deprivation of legal heirs--Challenge to--Neither gift deed (primary evidence)
nor a certified copy thereof (secondary evidence) was produced and instead a
photocopy of sub-registrar’s register was produced, and on this appellant’s
claim of purported gift was based--Incidentally, neither sub-registrar nor any
official from his office was produced by appellant to testify that photocopy
which was produced was a certified copy from said register--The appellant did
not produce any tangible evidence of purported gift, let alone to have
established it-- Since alleged gift was denied, it was for beneficiary to have
established it--Appellant failed to establish gift in his favour--The
appellant fraudulently deprived legal heirs of their share in inheritance and
then sought to reinforce fraud by getting revenue record changed and this was
facilitated by land revenue authority--The suffering of respondents was
perpetuated by officialdom-- The objection to belated filing of suit is also
not maintainable as plaintiffs had stated recent knowledge and denial by
appellant and appellant had failed to controvert this--The appellant proceeded
on assumption, like some male heirs do, that even if they eventually lose case
they would still get usufruct of land by illegally retaining its possession
over years spent in litigation--Appeal dismissed. [Pp. 453, 454 & 455] A, B, C, D & E
Raja Inaam Ameen
Minhas, ASC Appellant.
Mr. Tahir Mehmood, ASC and Syed Rifaqat
Hussain Shah, AOR for Respondent No. 1.
Ex-parte Respondent No. 2.
Date of hearing: 17.3.2023.
Judgment
Qazi Faez
Isa, J.--The learned counsel for the appellant states that the High Court
had allowed the Civil Revision without appreciating that gift of land in favour of the appellant was made through a registered gift
deed dated 21 April 1993 by his father, namely, Ghulam
Muhammad, therefore, the impugned judgment is not sustainable. By referring to
exhibit P1 he states that this document was sufficient to establish the gift by
the donor, Ghulam Muhammad, in favour
of the donee (appellant herein) and the suit filed by
the daughter and widow of Ghulam Muhammad
(respondents herein) was misconceived. He submits that after the execution of exhibit
P1, and on its basis, the gift was also recorded in the revenue records vide
gift Mutation No. 442, attested on 6 January 2008, therefore, the
respondents should have arrayed the revenue authority of Tehsil Dunyapur, District Lodhran, where
the land was situated, as a party to the suit, which was a necessary
requirement of the law. He further states that since the plaintiffs had alleged
fraud particulars of the fraud had to be provided, which was not done. It is
next contended that the suit was not filed during the lifetime of Ghulam Muhammad, and was filed beyond the prescribed period
of three years.
2. We have heard the learned counsel, read the impugned
judgment and examined the referred to documents. Exhibit P1 purports to be a
photocopy of the register maintained by the sub-registrar of Lodhran. Primary evidence of the gift deed, purportedly
executed by Ghulam Muhammad, would be the gift deed
itself, but it was not produced. Exhibit P1 also does not constitute secondary
evidence, which would have been a certified copy of the gift deed, but this too
was not produced. Significantly, neither the gift deed (primary evidence) nor a
certified copy thereof (secondary evidence) was produced and instead a
photocopy of the sub-registrar’s register was produced, and on this the
appellant’s claim of the purported gift was based. Incidentally, neither the
sub-registrar nor any officer/official from his office was produced/summoned
by the appellant to testify that the photocopy which was produced was a
true/certified copy from the said register. The appellant did not produce any
tangible evidence of the purported gift, let alone to have established it.
3. Upon death the estate of a deceased person devolves upon
his/her legal heirs. In this case, the legal heirs of Ghulam
Muhammad were his widow, son and daughter. Since the alleged gift was denied,
it was for the beneficiary thereof (the appellant) to have established it.
However, the appellant failed to establish the gift in his favour.
And, on the basis of a document which had no legal significance the appellant
sought to deprive his mother and sister of their inheritance. Shares in the
inheritance of a Muslim deceased are prescribed in the Holy Quran.[1]
Twenty years have passed since the death of Ghulam
Muhammad during which time his widow (Respondent No. 2) passed away. In
depriving the other legal heirs the appellant acted dishonestly, illegally and
violated Qur’anic injunctions.
4. As regards the contention of the learned counsel
representing the appellant that the particulars of the alleged fraud were not
provided, and that fraud was not established is not a valid argument. It was
for the beneficiary of the gift, who was the appellant, to have established it.
The appellant did not produce the gift deed or its copy, let alone establish
the purported gift in his favour. What the appellant did, is what we have often noted on the part of some male
heirs, which is to deprive female heirs of their inheritance, which constitutes
fraud.
5. With regard to the contention that a gift mutation entry was
made in the revenue record, which constituted independent evidence, this is a
fallacious argument. If the revenue authority had changed the revenue record on
the basis of exhibit P1 they did not act in accordance with the law.[2]
They also did not issue notices to the heirs of Ghulam
Muhammad to consider any objection that they may have had. To have acted on the
basis of a purported extract from the sub-registrar’s register and to have
changed the revenue record on this basis was not permissible. If revenue
officers/officials do not abide by the law governing them they can be taken to
task for transgressing the law. The appellant fraudulently deprived the legal
heirs of their share in the inheritance and then sought to reinforce the fraud
by getting the revenue record changed and this was facilitated by the land
revenue authority. The suffering of the respondents was perpetuated by
officialdom.
6. We now attend
to the contention of the learned counsel for the appellant that since cancellation
of gift Mutation No. 442, attested on 6 January 2008, by the revenue authority
of Tehsil Dunyapur, District Lodhran
was also sought the respondents had to array the said revenue authority as a
defendant. The plaintiffs (respondents herein) were not obliged to array the
said authority nor were obliged to produce/summon any officer/official of it as
a witness because the respondents had denied the gift and did not rely upon the
said gift mutation. It was the appellant who relied upon the purported gift and
the said gift mutation, therefore, he had to establish
the same. And, it was for him to have produced/summoned the concerned
officer/official from the sub-registrar’s office and from the revenue
authority, which he did not do. The objection to the belated filing of the suit
is also not maintainable as the plaintiffs had stated recent knowledge and
denial by the appellant and the appellant had failed to controvert this.
7. The appellant deprived his
mother and sister from their inheritance. Many females do not have the
wherewithal to approach the Courts to obtain their rights. Those like the
respondents that do, suffer, and often have to wait for years, to get what was
rightfully theirs to begin with. The appellant proceeded on the assumption,
like some male heirs do, that even if they eventually lose the case they would
still get the usufruct of the land by illegally retaining its possession over
the years spent in litigation.
8. This appeal should never have been filed and we have no
hesitation in dismissing it, and do so with costs throughout. We also impose
special costs in the amount of Rs. 500,000 (five
hundred thousand rupees) on the appellant as the defence
taken by him was vexatious and false.[3]
Costs to be paid by the appellant to the surviving
respondent. If costs are not paid the same shall be recovered as arrears
of land revenue from the appellant, and till costs are paid they shall continue
to constitute a charge on the estate of the appellant.
9. Before parting with this
judgment, we would want to say that learned counsel should reflect on how best
to advise his clients, and not become an instrument to perpetuate injustice.
Copy of this judgment be sent to the land revenue
authority of Tehsil Dunyapur, District Lodhran and to the Senior Member, Board of Revenue, Punjab.
(Y.A.) Appeal dismissed