Oral Hiba cancelled 2024 C L C 1451.
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| Oral Hiba cancelled |
زبانی ھبہ، تبدیلی اندراج اور وراثتی حقوق
مقدمے کا پس منظر
عدالت کی وضاحت
۱۔ موت کی تاریخ اور اندراج کی تحقیقات:
۲۔ گواہوں کی پیشی:
۳۔ وراثتی حقوق اور عدالت کا اختیار
محدودیت اور فراڈ کا اثر
ریونیو اور سول عدالتوں کا دائرہ اختیار
نتیجہ
Must read Judgement
2024 C L C 1451
[Lahore]
Before Anwaar Hussain, J
MUHAMMAD RASHEED (Deceased) through his Legal Heirs and others----Petitioners
Versus
MUHAMMAD ISMAIL and others----Respondents
Civil Revision No.1090 of 2009 (and connected Civil Revision) heard on 23rd February, 2023.
(a) Gift---
----Oral gift---Mutation---Essential ingredients of a valid gift---Proof---Inquiry report by the revenue officers about the veracity of actual date of death of donor---Validity---Failure of petitioners/donees to prove actual date of death of donor after the date of sanctioning of mutation---Effect---Plea of non-production of scribe of inquiry report---Validity---Respondents/plaintiffs produced 04 witnesses, who categorically supported their version that donor expired prior to the execution of the impugned oral gift---Inquiry report also reflected that the date of death as claimed by the petitioners/donees being beneficiaries of an oral transaction, was recorded in the relevant record by the petitioners after a gap of more than 10 years challenging already existing entry related to death recorded by the respondents, which raised serious doubt about veracity thereof---In case the statement of scribe of inquiry report had not been recorded in the suit of respondents, matter could be examined from another angle without placing any reliance on the said inquiry report and taking benefit from the same that a mutation by itself does not create any title unless it can be substantiated to be backed by a valid transaction more particularly if the transaction was in the nature of Hiba depriving legal heirs of the donor---Petitioners were not real paternal grandsons of the donor---Details were conspicuously absent as neither the time of offer and acceptance of the gift had been mentioned in the written statement nor any witness had been produced in support of the said contentions---Petitioners failed to prove necessary ingredient of the oral gift depriving the respondents, who were admittedly legal heirs of the donor---Revisions were dismissed accordingly.
2003 YLR 3184; 1994 MLD 467 and PLD 1986 Lah. 194 rel.
(b) Specific Relief Act (I of 1877)---
----S. 42---Limitation Act (IX of 1908), First Sched., Art. 120---Suit for declaration---Oral gift---Fraud---Inheritance---Limitation---Contention of the petitioners was that the suit was time barred---Validity---Fraud vitiates the most solemn proceedings and thus period of limitation would not be an embargo upon a justifiable claim directed against fraud, more particularly if same involves right of a person to inheritance of the property.
(c) Civil Procedure Code (V of 1908)---
----S.11---Punjab Land Revenue Act (XVII of 1967), Ss. 53 & 172---Oral gift---Mutation---Res judicata, principle of---Applicability---Jurisdiction of revenue and civil courts---Scope---Contention of the petitioners that earlier a decision was made on revenue side, therefore, subsequently civil suit could not be filed---Validity---Any decision on the revenue side, could not operate as bar on a subsequent civil suit, more particularly, when question of fraud is involved in respect of which the jurisdiction of the revenue authorities was barred, for the reason that the proceedings before the revenue officers and or the revenue courts are summarily conducted without recording of evidence---Section 11 of the C.P.C. that is based on doctrine of res judicata clearly stipulates that no subsequent suit should be entertained in which the matter is directly and substantially the same in a former suit between the same parties and decided by a court of competent jurisdiction, therefore, S.11 of the C.P.C. is applicable only where earlier as well as the subsequent proceedings are before the courts, which are competent to decide both the matters---Revenue court and civil court are not vested with the similar jurisdiction rather their jurisdiction is mutually exclusive to each other in certain matters---Jurisdiction of civil court is barred in terms of S.172 of the Land Revenue Act, 1967 only with respect to matters exclusively vested in the jurisdiction of revenue courts under the said provision and civil suit is always maintainable under S.53 of the Act to establish right or title in respect of immovable property where the revenue court lacks jurisdiction---Revision petitions were dismissed.
Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Arshad Ali and 6 others v. Muhammad Tufail through L.Rs. and others 2013 CLC 632 rel.
Muhammad Sher and others v. Mst. Taj Meena and other PLD 1996 Pesh. 6 and Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 ref.
Bashir Ahmad Qureshi-I for Petitioners.
Nauman Qureshi and Muhammad Anwar Toor for Respondents