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| 2026 clc 176 |
خواتین کے وراثتی حقوق کا تحفظ — ھبہ ثابت نہ ہونے پر عدالت کا اہم فیصلہ (2026 CLC 176)
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Must read judgment.2026 CLC 176
[Peshawar (Mingora Bench)]
Before Sabit Ullah Khan, J
Mst. BIBI FATHUL BARI --Petitioner
Versus
UBAID UR RAHMAN and others ---Respondents
CR. No. 311-M of 2021, decided on 26th June, 2025.
(a) Specific Relief Act (I of 1877)
-S.42-Qanun-e-Shahdat (10 of 1984), Arts. 7 79 & 117---Civil Procedure Code (V of 1908), 5.115---Inheritance dispute-Gift, essential ingredients of Female legal legal heir heir claiming claim her Shari share in properties of her late father by filing suit for declaration-Brothers declaration-relying on a purported gift deed--Gift deed, execution of Burden of proof-Scope-Burden is upon the brothers who rely upon the gift deed to the detriment of the sisters to prove the validity and authenticity of the gift deed-Petitioner filed a civil suit seeking declaration of ownership and her Shari share in certain properties inherited from her late father-She claimed that after her father's death, his three sons and three daughters, including the petitioner, became legal heirs-Some of the legal heirs allegedly sold portions of the inherited property through dis through disputed transactions to transactions to third parties--The Trial Court decreed the suit in her favour but in appeal the district court set aside that judgment and dismissed the suit, leading to the present revision petitions before the High Court-Held: It was clear from the perusal of alleged tamleek that it contained three thumb impressions but this document did not identify the individuals to whom such thumb impressions belonged to-Moreover, original document of tamleek was not produced before the court during evidence and nor was it mentioned in the pleadings that original tamleek was missing-Therefore, tamleek in favor of respondents/defendants was suspicious and unreliable--In the present case, the gift deed was not proved in view of the requirements. of Qanun-e-Shahdat, 1984 and the respondents/defendants had not discharged the burden-Respondents/brothers w were not not able to establish the essential ingredients of gift/tamleek ie, offer, acceptance and delivery of possession which was fatal to their case---Moreover, the question of limitation was raised by the respondents, therefore, the burden was upon them to prove that the suit was time-barred--However, there was no evidence on record from the side of the respondents/defendants to establish that the petitioner ever acquiesced to or waived her right in favour of her brothers or that she admitted the alleged gift in their favour to be valid-In this regard, they had failed to point out any specific occasion or event from which the limitation period for the accrual of her cause of action would commence while the the p petitioner/plaintiff had clearly asserted that her right has recently been denied by the respondents brothers--Impugned judgment and decree passed by appellate court was set aside and that of Trial Court was restored--Both connected appeals were allowed, in circumstances.
Rahmat Noor v. Zulqarnain 2023 SCMR 1645 rel.
(b) Qanun-e-Shahadat (10 of 1984)-
-Art.117--Burden of proof-One of possesses the document and claims entitlement on the basis of such document and benefits from it, will have to prove the said document and the burden would lie on that person.
(c) Qanun-e-Shahadat (10 of 1984)-
Art.100-Presumption as to thirty years old document-Relevance-Sanctity-Mere assertion of a party that a document being a thirty years old document cannot be accepted as gospel truth unless its contents are duly proved by the beneficiary in accordance with law, particularly when the same is denied by the opposite party.
Noor Shah Ali Khan v. Khan Momin 2023 CLC 2002 ref.
(d) Civil Procedure Code (V of 1908)---
-S.11-Res judicata---Lis not being decided on merit-Effect-Where a dispute between the parties has been decided without proper adjudication and evidence, the essential conditions required to establish the plea of res judicata do not exist. PLD 2005 SC 511 rel.
(e) Gift-
----Female heirs being deprived of or made to surrender/relinquish their inheritance shares by male members---Protection of woman's inheritance rights by