IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:
Mr. Justice Qazi Faez Isa
Mr. Justice Yahya Afridi

Civil Petition No. 4349 of 2018 and

CMA No.10079 of 2018
(On appeal against the judgment dated 13.09.2018
passed by the Lahore High Court, Lahore,
in C. R. No. 1724/2016)

Mst. Parveen (decd.) through her L.Rs. … Petitioners

Versus
Muhammad Pervaiz and others. … Respondents

For the Petitioners: Mr. Munawar Iqbal Duggal, ASC

Syed Rifaqat Hussain Shah, AOR

For the Respondents: Mr. Tariq Aziz, ASC/AOR

Date of Hearing: 04.11.2021

JUDGMENT

Qazi Faez Isa, J. A suit was filed by two sisters against their two brothers
(respondent Nos. 1 and 2) assailing the gift mutation No. 318, attested on 22
November 1992, whereby their father, Nizam Din, is supposed to have gifted
his property to his two sons (‘the sisters’ and ‘the brothers’ respectively) in
equal shares. The suit was dismissed. The sisters succeeded in their appeal
and the suit was decreed, but the brothers filed a civil revision before the
Lahore High Court and were successful in setting aside the judgment of the
Appellate Court and restoring that of the Trial Court, which had dismissed
the suit.

2. Notices were issued and the learned Mr. Tariq Aziz represents the
brothers and has raised a preliminary objection to the maintainability of this
petition on the ground that, since the High Court had overturned the
judgment in appeal, therefore, the petitioners should have filed an appeal
under Article 185(2)(d) of the Constitution of the Islamic Republic of Pakistan
(‘the Constitution’) and further that the petitioners filed a petition for leave
to appeal to overcome the belated filing. 30 days is prescribed in Order XII
C. P. No. 4349/2018 2

Rule (1) of the Supreme Court Rules, 1980 (‘the Rules’) for filing an appeal
and 60 days for the filing of a petition for leave to appeal under Order XIII
Rule (1) of the Rules. The learned counsel states that where an appeal has to
be filed a petition cannot be filed to overcome the disability of belated filing
and relies upon the judgment of this Court in the case of Gul Jan v Naik
Muhammad1.

3. The learned counsel for the brothers availed of his right to reply and
submits that this Court has stipulated the method of determining ‘the
amount or value of the subject-matter of the dispute in the Court of first
instance’ in the cases of Muhammad Inayat v Fateh Muhammad 2, Zafar Iqbal
Hameed Khan v Ashiq Hussain 3, Taza Gul v Fazal Subhan4, Muhammad
Nawaz v Sardara5 and Mahmood Hussain Larik v Muslim Commercial Bank
Ltd.6 Reference has also been made to his own ‘Certificate of Value’ filed with
CMA No. 10116/2021; the learned counsel is both the respondent’s
Advocate-on-Record and Advocate Supreme Court in this case. The said
certificate states that the matter in dispute, ‘is not less than fifty thousand
rupees’.

4. Responding to the question of the maintainability the learned counsel

for the petitioners states that the petitioners filed a petition for leave to
appeal (‘petition’) because the suit filed by the sister stated that for purpose
of court fee it was valued at two hundred rupees (paragraph 12 of the plaint);
exception to such valuation did not result in the framing of an issue on this
point nor did any court negate the said valuation mentioned in the plaint. He
submits that an appeal cannot be filed when ‘the amount or value of the
subject-matter of the dispute in the Court of first instance’ is less than fifty
thousand, therefore, the petitioners had no option but to file a petition. He
further states that since the cancellation of a gift mutation was sought and a
gift has no monetary value, and the instant gift mutation also did not
mention a value therein, therefore, the suit could be valued as deemed
appropriate by the plaintiffs and they had elected to value it at two hundred
rupees.

1 PLD 2012 Supreme Court 421

2 2003 SCMR 875
3
2005 SCMR 1371
4
2006 SCMR 504
5
2008 SCMR 1593
6 2009 SCMR 857
C. P. No. 4349/2018 3

5. With the assistance of the learned counsel we have examined the

plaint, which sought the cancellation of the said gift mutation, and in
paragraph 12 of the plaint it is stated that the suit is valued at two hundred
rupees for the purposes of court fee. There is no specific mention of
valuation in terms of the Suits Valuation Act, 1887. We have also seen the
said gift mutation and it does not mention any amount or value. Therefore,
the plaintiffs were entitled to value the suit as they deemed appropriate and
they valued it at two hundred rupees for purposes of court fee and three
courts accepted this. In such circumstances a petition under Article 185(3)
of the Constitution had to be filed; Article 185(2)(d) of the Constitution,
which is in respect of appeals, was not applicable. Since the petitioners had
not couched an appeal as a petition, the ratio of the judgment in the case of
Gul Jan is not applicable. All the other cited judgments are in respect of how
to determine the amount or value mentioned in Article 185(2)(d), and none of
them are in respect of a gift or a gift mutation. Therefore, since this petition
for leave to appeal is maintainable we proceed to decide it, but before doing
so during the course of hearing we have noted an anomalous position in the
Rules. This anomaly creates problems and complications and which earlier
had necessitated a five-member Bench of this Court to decide one aspect of it
in the case of Gul Jan v Naik Muhammad; where it was held that a petition
must not be filed when an appeal lies to circumvent the 30 days prescribed
period for filing of an appeal by resorting to filing a petition which may be
filed within 60 days.

6. The Rules prescribe double the period for the filing of a petition to that
for filing an appeal which is surprising because an appeal is filed as of right.
The Rules have been made pursuant to Article 191 of the Constitution,
which provides that, ‘Subject to the Constitution and law, the Supreme Court
may make rules regulating the practice and procedure of the Court’. Therefore,
to attend to the noted discrepancy it may be appropriate to amend the Rules.
One simple way of doing this, without adversely affecting the accrued rights
of any party, could be by amending Order XII Rule 1 of the Rules by
substituting the stated period of 30 days mentioned therein for filing an
appeal and bring it at par with the period in which a petition may be filed,
that is, 60 days.
C. P. No. 4349/2018 4

7. Notice was given to the respondents after recording in order dated 19

January 2021, the contentions put forward by the petitioners’ learned
counsel, reproduced hereunder:

The learned counsel for the petitioners states that the father of
the petitioners, Nizam Din died on 18 May 2007 leaving behind
one widow, two daughters and two sons. The petitioners filed a
suit on 3 July 2007 challenging the gift mutation No. 318
attested on 22 November 1992 statedly made by Nizam Din in
favour of his sons and claimed their right in inheritance in the
120 kanals of land of Nizam Din as per their shares in
accordance with shariah. The suit was dismissed, the appeal
filed by the petitioners against the same was allowed, but the
High Court allowed the revision by setting aside the judgment of
the appellate court and dismissed the suit.

2. The learned counsel states that out of two donees only

Muhammad Pervez testified to support the gift and the other
donee, namely Muhammad Aslam (who was then alive), did not
testify nor execute a power of attorney in favour of his brother
Muhammad Pervez to give evidence on his behalf. It is next
contended that there were three witnesses to the said gift
namely, Rana Muhammad Azeem, Nazir Ahmad and Khursheed
Ahmad of which the latter two had died but Rana Muhammad
Azeem who was alive was not produced as a witness. He points
out that the suit was filed by two sisters and their mother was
arrayed as a defendant but she had disowned the joint written
statement filed by her sons and did not independently contest
the suit nor came forward to testify. The learned counsel
submits that the learned appellate court had in the
circumstances of the case rightly decreed the suit, however, the
High Court exercising revisional jurisdiction set aside the
judgment and decree of the appellate court by shifting the
burden of proving the gift on to the petitioners and held that the
petitioners’ contention that their father was physically and
mentally incapacitated at the said time of making gift was not
C. P. No. 4349/2018 5

established. Since this is a family matter let in the first instance

notice be issued to the respondents.

8. The learned counsel for the petitioners, in addition to what was noted
in the aforesaid order, submits that the gift was not valid because the
mutation, through which the said property is stated to have been gifted, did
not record that the donees of the gift, that is the brothers, had accepted it.
The gift mutation also did not state that possession of the land was delivered
to the donees pursuant to the gift nor that they were already in possession,
submits the learned counsel. He also by referring to section 42(7) of the
Punjab Land Revenue Act, 1967 (‘the Act’) submits that Nizam Din, the
purported donor, was not identified by the category of persons mentioned in
the said legal provision, and that it was incumbent to produce such persons
as witnesses.

9. The learned counsel for the respondents relies on the impugned

judgment and on the judgment of the Trial Court and states that the same
are in accordance with law and do not call for any interference by this Court.
He further submits that the petitioners had alleged that the parties’ father,
Nizam Din, was mentally incapacitated to make the gift and was physically
unable to go to the Revenue office to record the gift, but had failed to
establish these facts nor did they produce medical evidence in support of
their contention. Therefore, their challenge to the gift must fail.

10. We have heard the learned counsel for the parties and with their able
assistance examined the record of the case. On the death of a Muslim
his/her property devolves upon his/her legal heirs. However, if any heir
seeks to exclude the other legal heirs, as in the instant case by relying on a
purported gift the beneficiary of such gift must prove it. The gift in this case
is stated to have been witnessed by three persons, namely, Rana
Muhammad Azeem, Nazir Ahmad and Khursheed Ahmad, and even if it be
accepted that two of the said witnesses had died by the time the evidence
was recorded, the third witness, namely, Rana Muhammad Azeem, was alive
but he was not brought to testify as a witness in support of the gift.
Therefore, an adverse presumption may be drawn that if he did come to
testify he would not have supported the gift. As if this was not enough, only
one of the two donees, namely, Muhammad Pervaiz, testified in support of
the gift and the other donee, namely, Muhammad Aslam, did not do so nor
C. P. No. 4349/2018 6

did he execute a power of attorney in favour of his brother Muhammad

Pervaiz, authorizing him to give evidence on his behalf. The purported donor
of the gift, Nizam Din, was also not identified as required by section 42(7) of
the Act, therefore, it cannot be said that the person who was presented
before the Revenue authorities was Nizam Din. The purported gift also
suffers from the defect of non-acceptance by donees and the further defect of
not mentioning that the possession of the land allegedly gifted was handed
over to the donees. As regards the contention of the learned counsel for the
respondents that, the petitioners having alleged that their father was
mentally incapacitated to make the gift and physically unable to attend the
Revenue office but having failed to establish this the gift stood proved, is
incorrect. Firstly, no issue was cast on this point and thus it was not decided
and, secondly, even if it be assumed that Nizam Din was mentally capable to
make the gift and physically fit to go to the Revenue office it does not follow
that he had in fact done so. The beneficiaries of the gift had to establish the
making of the gift by their father, and also that they had accepted it and that
they had received possession of the land, but none of these facts were
established.

11. Therefore, there was no reason in fact or in law for the learned Judge
of the Trial Court to have dismissed the suit. The mistake was rightly
corrected by the Appellate Court, but the learned Judge of the High Court
intervened to set at naught the judgment of the Appellate Court, primarily on
the ground that the petitioners had failed to establish the mental incapacity
and physical inability of Nizam Din which, as noted above, was not a
determinative factor. The impugned judgment is not sustainable and is
accordingly set aside and the judgment of the Appellate Court is restored.
Resultantly, gift mutation No. 318 in favour of the brothers, which was
attested on 22 November 1992, is set aside and declared to be of no legal
effect. Consequently, the estate of the deceased Nizam Din shall be
distributed amongst his legal heirs in accordance with the applicable Muslim
laws of inheritance. Since Nizam Din passed away in the year 2007, that is
14 years ago, the concerned Revenue authority is directed to incorporate the
names of the legal heirs of the late Nizam Din in the revenue record and if
the respondent Nos. 1 and 2 had sold/transferred any portion of the land to
any third party the petitioners shares shall be adjusted from their brothers
available shares.
C. P. No. 4349/2018 7

12. We may once again state that, we are dismayed to observe the all too
frequent practice in Pakistan of male heirs resorting to fraud and other
tactics to deprive female heirs from their inheritance. While this deprivation
causes suffering to those deprived, it also unnecessarily taxes the judicial
system of the country, resulting in a needless waste of resources. Each and
every day that a male heir deprives a female heir is also an abomination
because it contravenes what has been ordained by Almighty Allah.

13. Therefore, for the reasons mentioned above, this petition is converted
into an appeal and allowed in the aforesaid terms with costs throughout.

14. The Registrar to bring paragraphs 2 to 6 of this judgment to the kind

attention of the Hon’ble Chief Justice who may be pleased to place it for
consideration in the next Full-Court meeting.

15. Copy of this judgment be sent to the concerned revenue authority to

ensure compliance with regard to the inheritance of the estate of Nizam Din
as stated above.

Judge

Judge
Bench-I
Islamabad
04.11.2021
(Farrukh)
Approved for Reporting