Lahore High Court Rules: Gift Beyond Legal Ownership Must Be Returned at Partition.
ہائی کورٹ نے قرار دیا: کوئی شخص اپنی ملکیت سے زائد جائیداد کا ھبہ نہیں کر سکتا
📌 فیصلہ: عبدالکریم خان بنام مستغیثہ غلام فاطمہ بی بی (C.R. No.746 of 2008)
🏛 عدالت: لاہور ہائی کورٹ، راولپنڈی بنچ
🗓 سماعت کی تاریخ: 27 مئی 2025
✍️ جج: جسٹس رِسال حسن سید
کیس کا پس منظر
یہ مقدمہ ایک وراثتی جائیداد کے ھبہ نامے (Gift Deed) پر تنازع سے شروع ہوا۔ غلام فاطمہ بی بی (مرحومہ) نے، بطور بیوہ، ایک جائیداد کا ھبہ اپنے بھتیجے کو کیا۔ مدعیان (ورثاء) نے دعویٰ دائر کیا کہ مذکورہ ھبہ خلافِ قانون ہے کیونکہ غلام فاطمہ بی بی اپنی ملکیت سے زائد جائیداد کسی کو دے ہی نہیں سکتی تھیں۔
ابتدائی طور پر سول جج نے مدعیان کا دعویٰ مسترد کر دیا، مگر ایڈیشنل ڈسٹرکٹ جج نے اپیل میں فیصلہ جزوی طور پر مدعیان کے حق میں دے دیا۔ اس کے خلاف نظرثانی کی درخواست لاہور ہائی کورٹ میں دائر ہوئی۔
عدالت کا فیصلہ
لاہور ہائی کورٹ نے قرار دیا:
> "کوئی شخص اپنی جائیداد سے زیادہ حصہ کسی کو بطور ھبہ نہیں دے سکتا۔ اگر ایسا کیا جائے تو اضافی حصہ قابلِ واپسی ہوگا، اور تقسیمِ وراثت کے وقت اس کی ایڈجسٹمنٹ کی جائے گی۔"
عدالت نے یہ بھی تسلیم کیا کہ ھبہ نامہ قانونی طور پر درست ہے کیونکہ:
گواہان کی موجودگی میں ھبہ کی تصدیق ہوئی۔
رجسٹریشن کا عمل مکمل ہوا۔
اصل دستاویز عدالت میں پیش کی گئی۔
تاہم عدالت نے واضح کیا کہ ھبہ صرف اتنی حد تک مؤثر ہے جتنی حد تک ھبہ دہندہ کا قانونی حصہ تھا۔
منفرد قانونی نکتہ
یہ فیصلہ اس اہم اصول کو اجاگر کرتا ہے کہ:
> "حق سے زیادہ منتقل کردہ ملکیت، تقسیم کے وقت واپس لی جا سکتی ہے۔"
عدالت نے یہ بھی کہا کہ اگر کسی فریق نے اپنے دعوے میں مخصوص ریلیف نہ مانگا ہو تو عدالت خود سے وہ ریلیف دے سکتی ہے، بشرطیکہ حقائق اس کی حمایت کرتے ہوں۔
قانونی اہمیت
یہ فیصلہ وراثتی جائیداد اور ھبہ کے تنازعات میں رہنمائی فراہم کرتا ہے۔
وکلاء، جج حضرات، اور عام شہریوں کو یہ سکھاتا ہے کہ ھبہ نامہ کرتے وقت صرف اپنے حصے تک محدود رہنا ضروری ہے۔
عدالت نے PLD 1986 SC 35 اور PLD 1971 SC 762 جیسے اہم حوالہ جات سے رہنمائی لی۔
نتیجہ
لاہور ہائی کورٹ کا یہ فیصلہ قانونی حلقوں کے لیے ایک اہم نظیر کی حیثیت رکھتا ہے۔ خاص طور پر ان مقدمات میں جہاں جائیداد بغیر باضابطہ تقسیم کے ایک سے زائد وارثین کے درمیان پھنسی ہوتی ہے
Must read Judgement
ET
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
C.R. No.746 of 2008
Abdul Karim Khan
v.
Mst. Ghulam Fatima Bibi deceased through L.Rs and others
J U D G M E N T
Date of hearing 27.5.2025
Petitioner by
Muhammad Ilyas Sheikh,
Advocate.
Respondent
Nos. 1 to 6
Proceeded against ex parte
Respondent
No. 7
Mr. Zia Ullah Khan Niazi,
Advocate.
Rasaal Hasan Syed, J. This civil revision
stems from judgment and decree dated 04.3.2008
of learned Addl. District Judge, Mianwali Camp at
Isa Khel whereby appeal of respondents against the
judgment and decree dated 12.12.2006 was
partially allowed and findings of the court below
on issues No.3, 9 and 11 were partially reversed
and the suit was partly decreed.
2. Respondents/plaintiffs instituted a suit for
declaration claiming that they were owners of land
measuring 05 kanals 11 marlas and that the
petitioner/defendant No.1 had no concern with the
property and that the alleged gift deed bearing
document No. 483/01 dated 14.9.1977 was against
law and facts, based on fraud and liable to be set
aside and that the petitioner/defendant No.1 be
restrained from interfering in the peaceful
C.R. No.746 of 2008
-2-
possession of respondents/plaintiffs and that they
may be asked to admit the plaintiffs/respondents as
owners and that the impugned gift deed was based
on fraud. Petitioner filed contesting written
statement controverted the allegations, raised
certain preliminary objections. Issues were framed,
evidence was recorded and, thereafter, the learned
Civil Judge dismissed the suit of the
plaintiffs/respondents vide judgment and decree
dated 12.12.2006. Appeal filed by the respondents
was partly allowed, findings on issues No. 3, 9 and
11 were partially reversed and suit was partially
decreed to the effect that the contesting defendant
and his legal heirs would remain in possession of
the suit property till partition and his share in the
suit property would be liable to be adjusted during
the partition proceedings if found in excess of share
of donee. This was vide judgment and decree dated
04.3.2008 of learned Addl. District Judge,
Mianwali Camp at Isa Khel, which is impugned in
this revision petition.
3.
Heard.
4.
Main argument raised by learned counsel to
challenge the impugned judgment is that the suit
was not maintainable as the respondents
incorrectly alleged to be in possession of the
property and the objection to the gift was on
account of non-delivery of possession which was
found against the respondents, the court should
have dismissed the suit on account of the fact that
they had not asked for possession and that the court
committed illegality in allowing the respondents to
amend the plaint. It was argued that the appellate
C.R. No.746 of 2008
-3-
court instead of dismissing the suit incorrectly
allowed the appeal. It was added that the appellate
court observed that the gift was valid to the extent
of the ownership of donor and not beyond that and
that the donee shall retain possession till the
partition in case during partition the donee is found
to be in excess of share the same should be
returned. It was argued that this view could not
sustain as the onus for this was on the other side
which was never discharged and if this was the
view at all then there was no need to make any
observation as it was beyond the mandate of the
appellate court, rather the proper course thereof
was to leave it for the court dealing with the
partition proceedings to determine as to how much
was the title of donor which was validly transferred
to the donee.
5.
Submissions made by learned counsel have
been given due consideration, documents available
on the file inclusive of the findings of court below
have been examined. It is evident therefrom that
the respondents/plaintiffs filed a suit for
declaration that they were owners of land
measuring 05 kanals 11 marlas as described in the
plaint and that the petitioner/defendant No.1 had no
concern with the suit property and that the gift deed
No.483/01 dated 14.9.1977 was against law and
facts based on fraud and liable to be set aside and
that the petitioner be restrained from interfering in
the possession of respondents/plaintiffs and that
they be asked to admit the respondents as owner
and the impugned gift deed to be based on fraud.
Suit was contested by the petitioner/defendants by
C.R. No.746 of 2008
-4-
raising legal and factual objections in the written
statement including that the respondents had no
cause of action or locus standi and they had not
come to the court with clean hands and that the suit
was false and gift deed was lawfully executed. On
completion of trial the learned Civil Judge
dismissed the suit vide judgment and decree dated
12.12.2006. In appeal the learned Addl. District
Judge took all the objections which were raised in
appeal and decided those objections one by one. As
to the validity or otherwise of the impugned gift
dated 14.9.1977 it was observed that basically suit
for declaration and permanent injunction was filed
by asserting to be in possession of the property but
relief of recovery of possession was added by an
amendment after framing of issues without framing
of any additional issue.
6.
While considering the effect of possession
with the petitioner it was observed that the plea of
invalidity of gift due to non-delivery of possession
was not available with the plaintiffs/respondents to
challenge the factum of gift by simply taking a
stance that possession was forcibly taken from
them subsequently which could not be proved.
Taking into consideration the entire evidence on
record, the learned Addl. District Judge observed
that execution of gift was proved by two marginal
witnesses DW-3 and DW-6, registration of gift
deed was proved by DW-4 and DW-5; original gift
deed was produced as Ex.D-1 and that the
discrepancies and contradictions pointed out were
not fatal for the proof of gift deed. After finding
that the gift deed was genuinely executed and its
C.R. No.746 of 2008
-5-
execution was proved, the learned Addl. District
Judge observed that the main concern of the other
side appears to be excess of share and not against
the gift itself. As to the excessive alienation of
share in the gift deed, the learned Addl. District
Judge took note of entire material evidence and
recorded the findings in para 7(b) of the judgment
as under:
“b. 2nd point for determination is about alienation
in excess of her share by the donor which is
deemed to be the main concern of the plaintiffs.
It is claimed by the plaintiffs that the donor was
the co-owner of the suit property measuring 5-
Kanals 11-Marlas to the extent of 8/9 Marlas
only being one of three childless widows of the
original owner in presence of a real brother
having 1/3 share out of ¼ share, but alienated
the suit property measuring 1- ½ Kanals through
the impugned gift deed. A perusal of the copy of
impugned gift-deed Ex.P-2/ Ex.D-1 shows that
the share of two widows of the original owner is
described as 3-Kanals with the recital about
prior alienation of the share of third widow by
mentioning the remaining share of the two
widows including that of the donor jointly with
another widow as 3-Kanals. It means that the
total share of three widows in the residential
portion of the estate left by the deceased
husband was presumed by the donor to be 4-½
Kanals having share of 1-½ Kanals of each of
the three widows while the area of the suit
property according to the version of the plaintiffs
is 5-½ Kanals. A local commissioner was
appointed by the learned trial court to ascertain
the suit property whose report is on the file but
the learned local commissioner was not asked
to determine the total area of the suit property
and the report is limited to the possession of the
contesting defendant over the gifted portion. It is
admitted fact that other residential and
constructed portion of the inheritance of the
predecessor of the parties namely Nawab
Fazal-ur-Rehman Khan situated adjacent to the
suit property is still un-partitioned. It is therefore
observed that the plaintiffs have failed to prove
the exact entitlement of Mst. Ghulam Fatima
Bibi donor but the fact remains that even the
donee has not proved the exact entitlement.
Modification is therefore required in the findings
of the learned trial court about excess transfer
and the findings are accordingly modified to the
effect that issue No.9 is to be partially answered
C.R. No.746 of 2008
-6-
in favour of the plaintiffs to the effect that if at the
time of the partition of the suit property any
excess share is found in possession of the
donee then the same would be liable to be
adjusted by suggesting an appropriate mode of
partition if so moved to be made by either party.
Findings on the issue about Relief are also
deemed to have been modified accordingly.”
7.
The findings recorded by learned Addl.
District Judge do not suffer from any misreading
and non-reading of evidence or any error of law or
jurisdiction nor any material misreading or nonreading of evidence could be pointed out. It is a
settled rule that one cannot transfer the title in the
property in excess of his share and rights therein
and therefore, the view taken by the appellate court
is not open to any exception. The objection of the
petitioner’s counsel that the gift having been
challenged on the ground of non-existence due to
allegation of fraud which having not been proved,
the court below could not grant a relief as granted;
it is a settled rule that the court shall grant a relief
to which the party is entitled, no matter if it was not
specifically asked for it. Reference can be made to
Samar Gul v. Central Government and others
(PLD 1986 SC 35) where it was observed to the
effect that the court is empowered to grant such
relief as justice of case may demand and for
determining relief asked for, whole of the plaint
must be looked into so that substance rather than
form should be examined.
8.
As regards the plea that the plaintiffs having
not claimed possession and alleged to be in
possession which could not be proved and it
should not have been allowed to amend the plaint
rather his suit should have been dismissed, the
C.R. No.746 of 2008
-7-
argument is misconceived and is untenable. The
objection appears to have been raised in the light of
proviso to section 42 of Specific Relief Act. The
point raised is without substance. In the case of
Ahmad Din v. Muhammad Shafi and others (PLD
1971 SC 762) it was observed that in a declaratory
suit if plaintiff is able to seek further relief, suit
could not fail merely by the reason of fact that the
consequential relief by way of possession was not
claimed and that the court in such case should
allow plaintiff to amend the plaint by adding
“prayer for possession” and paying appropriate
court fee thereon and granting relief even though
he had not specifically asked for it. In view of the
rule supra the objection raised is declined.
9.
As upshot of the above this revision petition
is devoid of any merit which is dismissed.
(RASAAL HASAN SYED)
JUDGE