⚖️ ہبہ کے معاملے میں انتقال کی قانونی حیثیت
📌 صرف انتقال ہبہ کا حتمی ثبوت نہیں
سپریم کورٹ نے قرار دیا کہ محض Mutation (انتقال) ہبہ یا ملکیت کا حتمی ثبوت نہیں ہوتی بلکہ یہ پہلے سے کیے گئے معاملے کا صرف اظہار ہوتی ہے۔ جب ہبہ کو متاثرہ فریق چیلنج کرے تو صرف انتقال کی بنیاد پر ہبہ کو درست تسلیم نہیں کیا جا سکتا۔
👨⚖️ تحصیلدار کی گواہی بھی کافی نہیں
سپریم کورٹ نے قرار دیا کہ صرف یہ بیان کہ انتقال باقاعدہ طور پر منظور اور تصدیق شدہ تھا، ہبہ ثابت کرنے کے لیے کافی نہیں۔ خصوصاً جب Revenue Officer نے یہ نہ بتایا ہو کہ وہ donor کو ذاتی طور پر جانتا تھا یا ہبہ اس کی موجودگی میں کیا گیا تھا۔
🔎 ریونیو کارروائی میں خامیاں
سپریم کورٹ نے قرار دیا کہ اگر انتقال کی منظوری کے عمل میں ریونیو حکام کی جانب سے مختلف قانونی یا طریقہ کار کی خامیاں موجود ہوں تو ایسی mutation مشکوک ہو سکتی ہے اور اسے ہبہ ثابت کرنے کے لیے زیادہ اہمیت نہیں دی جا سکتی۔
⚖️ ہبہ ثابت کرنے کی ذمہ داری
سپریم کورٹ نے قرار دیا کہ ہبہ کے beneficiaries پر لازم ہے کہ وہ ہبہ کو واضح، مثبت اور غیر مبہم شہادت سے ثابت کریں؛ محض انتقال کا اندراج اس ذمہ داری کو پورا نہیں کرتا۔
📚 قانونی حوالہ
Allah Ditta and others v. Manak alias Muhammad Siddique and others — 2017 SCMR 402
Must read Judgment.
2017 SCMR 402
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar and Manzoor Ahmad Malik, JJ
ALLAH DITTA and others-Petitioners
Versus
MANAK alias MUHAMMAD SIDDIQUE and others--Respondents
Civil Petition No. 422-1 of 2015, decided on 6th September, 2016.
(Against the judgment dated 28.1.2015 of the Lahore High Court, Lahore passed in C.R. No. 97 of 2005)
Gift-
-Proof---Relationship between the alleged donor and alleged donees was of uncle and nephew(s)--Person depriving his own children and doling out his property to his nephews, seemed very unnatural conduct---Consideration for the gift as claimed by the alleged donees, that they had been looking after the alleged donor had not been proved on the record-Alleged donees asserted that the gift had been made by the deceased in their favour and subsequently the mutation was attested, but in the entire evidence led by them they had not been able to prove through positive evidence the day, venue, the persons in whose presence the alleged gift was made, the time thereof, the month and year and even the consideration--Tehsildar who sanctioned the mutation appeared and deposed that the mutation was validly attested, however such statement simpliciter by itself would not serve the purpose of the alleged donees who as beneficiaries had to prove the gift in unequivocal terms, particularly considering the fact that the Revenue Officer never stated that he knew the alleged donor personally or that the gift for valid consideration was made in his presence-Besides Besides there were quite a few lapses committed by the revenue authorities in connection with the alleged sanction of the mutation--Suit filed by alleged donees was rightly dismissed--Petition for leave to appeal was dismissed by the Supreme Court accordingly.
Rai Muhammad Tufail Khan Kharal, Advocate Supreme Court for Petitioners.
Ejaz Anwar, Advocate Supreme Court for Respondent No.1.
Date of hearing: 6th September, 2016.
ORDER
MIAN SAQIB NISAR, J.--The petitioners claim to be the donees of the suit property, which according to them was gifted by Abdul Haq, their uncle, and a gift mutation to that effect bearing No.740 dated 15.12.1990 was attested. Respondent No.1 (respondent), the son of Abdul Haq, after the demise of the alleged donor challenged the gift on the ground of fraud and misrepresentation which was contested by the petitioners and the learned Trial Court after framing of issues and recording of evidence dismissed the same. The appeal filed by the respondent also could not succeed, however, in the revisional jurisdiction invoked by him the learned High Court set aside the concurrent decrees and has dismissed the suit. It is submitted that the judgment founded upon misreading and non-reading of the evidence. The concurrent findings of the courts below could not be upset only for the reason that on reappraisal of evidence a different conclusion could be drawn by the learned High Court.
-
Heard. We find that the instant case is founded upon misreading and non-reading of the evidence on the record which lapses have been cured by the learned High Court. In this context, it may be mentioned the relationship inter se the alleged donor and the petitioners is of uncle and nepl nephew(s). The consideration for the gift as alleged by the respondent, that that he has been looking after the alleged donor has not been proved on the record. It seems unnatural that a person could deprive his own children and dole out the property to others, may be nephews. The alleged donor had his own children; besides the mutation of transfer of immovable property is only a manifestation of the oral transaction and it does not carry any presumption of correctness, particularly in the circumstances when it has been assailed by the person affected by the same. In the instant case, the petitioners assert that a gift had been made by Abdul Haq deceased in their favour and subsequently the mutation was attested, but in the entire evidence led by them they have not been able to prove through positive evidence the day, venue, the persons in whose presence the alleged gift was made, the time thereof, the month and year and even the consideration. Simpliciter that a tehsildar who sanctioned the mutation appeared and deposed that the mutation was validly attested by itself would not serve the purpose of the petitioners who as the beneficiaries thereof had to prove the gift in unequivocal terms, particularly considering the fact that the revenue officer never stated that he knew Abdul Haq personally and that the gift for valid consideration was made in his presence; besides there are quite a few lapses committed by the revenue authorities in connection with the alleged sanction of the mutation, as has been highlighted in the impugned judgment which has made the mutation dubious and much credence cannot be given to his statement.
-
In light thereof, the learned revisional court has appropriately interfered in the matter and passed the impugned judgment which does not call for any interference. Dismissed accordingly.
MWA/A-42/SC
Petition dismissed