2016 MLD 1535 Lahore
Ingredients—Mutation—Proof of—Procedure—Defendants being beneficiary of disputed gift mutation were bound to prove the transaction of tamleek which might have been settled at some prior point of time of attestation of the same—Donee did not plead any date, time, place and the names of witnesses to explain as to when and where and in whose presence alleged offer to gift out suit property had been made—Donee remained fail to prove the transaction of disputed gift in absence of such details in the written statement—Mutation per se was not a deed of title but it would indicate some previous oral transaction between the parties—Whenever any mutation was challenged then burden would lie on the beneficiary to prove the same as well as original transaction which he was required to fall back upon—Only one witness of mutation of tamleek was produced to prove its valid attestation—Said witness did not depose that donor had ever made any offer to gift out the suit property to the donee and he accepted the said offer in his presence—Transaction could not be declared to have been validly proved in absence of two basic ingredients of gift—Testimony of said witness was not helpful to the beneficiary—Disputed mutation was attested by practicing fraud misrepresentation—Attestation of disputed mutation by two real brothers had created doubt regarding its authenticity—Beneficiary of disputed mutation had failed to produce revenue officials who had entered and attested the same—Revenue officials were the best persons who could prove the valid attestation of tamleek mutation—Best evidence had been withheld by the beneficiaries without showing any justification and inference would be against them—Revenue Officer was bound to conduct the proceedings in a common assembly in the concerned revenue estate to attest the mutation but same was not conducted therein—Beneficiaries of gift had failed to prove ingredients of the same.
2014 MLD 1672 Peshawar
Parties were legal heirs of deceased owner of suit property but plaintiff assailed tamleek mutation attested in favour of defendant—Validity—Defence witness stated that he was marginal witness of tamleek mutation and had correctly thumb impressed the same—Defence witness also deposed that other marginal witness of mutation had also correctly thumb impressed the same and at the time of attestation of mutation in question, the owners were also present and had correctly signed the same—Plaintiff failed to establish her claim by way of producing cogent, confidence inspiring and conclusive evidence.
2014 CLC 1659 Peshawar
Gift—Ingredients/essentials—Burden of proof Defendants being beneficiary of the tamleek mutation had to prove that property was legally transferred to them—Three ingredients namely offer, acceptance and delivery of possession were the litmus test to ascertain the validity of a tamleek or gift transaction—No evidence of delivery of possession was adduced—Mutation per se was not sufficient to prove the factum of gift unless actual transaction thereof was proved—Mutation was attested in Mauza other than the one where suit land was situated—Revenue Officer sanctioning the mutation had not been produced as witness to prove the genuineness of the transaction.
2014 YLR 2053 Lahore
Gift/tamleek –Proof— Ingredients— Sanction of mutation—Procedure—Plaintiff assailed mutations of gift/tamleek s in favour of defendants on the basis of forgery and fraud—Trial Court decreed the suit in favour of the plaintiff and Lower Appellate Court dismissed the appeal of the defendants—Concurrent findings of facts—Validity—Every mutation entry was to be recorded in presence of the person whose right had been acquired and that if said person had been identified by two respectable persons; Signature/thumb impressions of identifying witnesses shall also be obtained by the revenue officer on register of mutation—If at the time of sanction of mutations, the parties had not appeared, that would shatter the entire case of defendants—To prove valid gift/ tamleek three ingredients viz. offer, acceptance and handing over of possession were sine qua non—Defendants in their written statements had not provided necessary details as to where and how the transactions of gift/tamleek had taken place; there was no detail about the offer of sale or payment of consideration nor was there any detail as to how donor had made an offer of gift to the donees/defendants and as to when donees had accepted that offer and how the physical possession was given to the donees—Defendants/beneficiaries failed to establish the transaction of sale and tamleek respectively—Beneficiaries had to prove the factum of tamleek in their favour especially in the circumstances where some of the legal heirs had been deprived from their lawful right of inheritance.
PLD 2013 Lahore 498 (J. Shujat Ali Khan)
Definition of “Tamleek” :
Hon’able Court hold that the term tamleek has not been defined anywhere but according to the verdicts of Superior Courts the same is considered as one of the kind of gift and it is equated with the term ‘family settlement’.
According to BLD : ‘Family settlement’ means an agreement between members of a family settling the distribution of family property among them …… an arrangement / agreement between heirs of a deceased person by which they agree on distribution on management of estate without administration by court having jurisdiction of such administration proceedings.
Definition of “Gift/Hiba” :
By D.F. Mulla :- (i)- Hiba/Gift means Transfer of property, made immediately, and without consideration, by one person to another , accepted by or on behalf of that other person.
(ii)- Hiba means transfer of right of property in substance by one person to another without consideration which is a condition to be fulfilled in order to make a gift valid.
According to BLD :- A voluntary transfer of property to another made gratuitously and without consideration.
Meaning of Gift hold by Hon’able Court : A voluntary transfer of something to another, without any consideration, irrespective of the fact as to whether the donor or donee has any relation with each other or not.
Distinction of Tamleek and Gift :
In gift the donor can transfer property to anyone else, but in tamleek the condition precedent is the the same should be amongst the family members/legal heirs only.
PLD 2013 Lahore 333
“tamleek “—Meanings—“tamleek ” would mean assignment of ownership—“tamleek ” being a kind of gift in favour of expected legal heir.
2013 CLC 499 Lahore (J. Shujat Ali Khan)
To prove valid gift/tamleek three ingredients viz offer, acceptance and handing over of possession were sine qua non but according to revenue record neither name of defendants had been incorporated in the record as owner nor they were in possession of suit-land—
Process of attestation of mutation was completed at residence of Tehsildar (Revenue Officer) concerned which was violation of S.42 of West Pakistan Land Revenue Act, 1967—
Entries in Revenue Record in the shape of mutations were not conclusive proof of ownership until and unless transaction on the basis whereof the same were attested was fully established from evidence.
Limitation—Effect of Plea of fraud— When mutation challenged in suit, otherwise proved to be result of fraud and forgery, question of limitation cannot be pressed into service to put use as a shield. Relied on 1987 SCMR 1543
2012 CLC 1651 Lahore
Gift/tamleek through mutation—Proof—Beneficiary of tamleek transaction would be bound to prove first event of tamleek prior to attestation of its mutation—Mere attestation of such mutation would not be sufficient.
2010 CLC 837 Lahore
Gift, cancellation of—Courts below considering the factum that mutation of tamleek was sanctioned in favour of the defendant when he was a minor, dismissed the suit filed by the plaintiff—Courts below also gave due weightage to the statement of Halqa Patwari and concluded that he was an independent witness—After scrutinizing the entire evidence on record, it was concluded that defendant had successfully proved the factum of appearance of the plaintiff before the revenue hierarchy for attestation of mutation of tamleek —Courts below had further observed that there was valid offer and acceptance; and as the tamleek was made in favour of minor son, there was no need for transfer of possession.
2007 CLC 167 Lahore
Islamic law—“Gift” and “will”—Distinction—Interpretation of document—Dispute between the parties was with regard to attestation of mutation bearing words tamleek -e-Warasat—Parties were legal heirs of deceased owner and plaintiffs asserted that the mutation was an attestation of Will having no legal sanctity—Plaintiffs claimed their share in the suit land—Trial Court and Lower Appellate Court decreed the suit and appeal respectively in favour of plaintiffs—Plea raised by defendants was that it was a mutation of gift made by their father during his life time in their favour—Validity—Will takes effect after the death of a person while gift during the lifetime of donor—Suit land was transferred to defendants during the lifetime of owner and report in Roznamcha Waqiati reflected the intention of donor as to transfer of property through gift/tamleek it was for such reason that it was mentioned specifically in the report that after tamleek the donor had relinquished the property—Mere use of word ” ” (Will) did not make the transaction as Will—Word ” ” ” was used in isolation and was contrary to the intention of the donor—Courts below misread the document and had erred while holding it as Will—Report on Roznamcha Waqiati was clearly a transaction of gift—Gift in favour of a legal heir could validly be made and there was no prohibition—Predecessor-in-interest of parties did not gift the property in the imminent danger of death and could not be said to have made during Marz-ul-Maut—-Judgments and decrees passed by both the Courts below were set aside as the Courts had committed material irregularity—Revision was allowed accordingly.
2002 YLR 3134 Lahore
Courts below concurrently decreed the suit holding that tamleek Nama in favour of plaintiff had been proved and that according to Islamic Law a valid gift could be made orally and if made in writing it would not need compulsory registration —Validity–tamleek Nama allegedly executed in favour of plaintiff, being an unregistered document, would not create any right in favour of plaintiff because under Ss. 17 & 49 of Registration Act, 1908, gift- deed was compulsorily registrable —Concurrent judgments and decrees of Courts below, were set aside, in circumstances.
1996 MLD 869 Lahore
West Pakistan Land Revenue Act 1967 —-S.42—Evidence relating to execution of “tamleek nama”—Appreciation of–Non-reporting of acquisition of right to Patwari within specified time—Effect–Plaintiff’s reliance on execution of “tamleek nama” was mainly on the evidence of stamp-vendor and the scribe—Stamp vendor did not personally know deceased donor and while selling non-judicial stamp paper he did not mention number of National Identity Card of donor—Scribe belonging to another district was close relative of plaintiffs, and his presence at the spot was per chance–Material produced by plaintiff did not indicate that execution of “tamleeknama” was effected during lifetime of alleged donor—Any person acquiring by gift, inheritance, purchase or otherwise any right in any estate as a land owner, would, within three months from date of such acquisition, report his acquisition of right to Patwari of estate who would record such report in his daily diary and furnish copy of such report to person making the report— “tamleek nama” in question, alleged to have been scribed on specified date, no report of such acquisition of right through “tamleek nama” was reported to Patwari within specified three months or even beyond that from alleged date of execution thereof—Provision of S.42, West Pakistan Land Revenue Act, 1967, have been incorporated to minimise and eliminate chances of fraud, misrepresentation or execution of transactions afterwards inasmuch as persons affected or likely to be affected by such transactions would become aware of same and would not be taken by surprise—Dispute in question, was hit by mandatory provision of S.42 of the Act, for word shall” has been mentioned therein which is mandatory direction—Non-registration of “tamleek nama” was a fact to be used against plaintiffs and same would be deemed to be suspicious in nature —Non registration of “tamleek nama” would not make the same inadmissible, yet irresistible conclusion drawn from analysis of evidence and circumstances pertaining thereto would suggest that “tamleek nama” was not executed by alleged donor during his lifetime and same would not be
operative against mutation of inheritance.