Judgments on Gift

2018-10-28

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Latest Judgments of Supreme Court: Gift or Hibba 

2018 PLD 698 SUPREME-COURT
Essential requirement—Proof—Three ingredients of a valid Gift included declaration/offer by the donor; acceptance of Gift by the donee; and, delivery of possession under the Gift —Declaration of Gift and delivery of possession had to be established through independent evidence.

2018 PLD 698 SUPREME-COURT
Art. 79, proviso—Gift deed—Proof of execution of document required by law to be attested—Proviso to the Art.79 of Qanun-e-Shahadat, 1984—Scope—Said proviso relaxed the requirement of calling the two attesting witnesses to prove the execution of the document, if the document was duly registered in accordance with the provisions of Registration Act, 1908 and its execution was not specifically denied—Party was relieved of the duty of calling the two witnesses but not from the duty of proving the execution of the registered document—Effect of the proviso to Art.79 was that the due execution and attestation of the Gift deed would have to be proved, although it may be proved by calling a person other than an attesting witness—Such relaxation was pillared on an important assumption that the execution of the document was not denied—Denail of the execution of the document was not limited to the executant alone but was open to any party to the suit that was affected by the said document.

2018 CLC 1535
Gift —Ingredients—Gift was transfer of property or right by one person to another—Essentials of Gift were declaration by the donor, acceptance of Gift by the donee and delivery of possession of subject matter of Gift to donee.

2018 SCMR 139 SUPREME-COURT
possession —Mere transfer of possession to donee was not sufficient to constitute a valid Gift under the law.

2016 SCMR 910 SUPREME-COURT
Mutation—Proof—Purported Gift deed not in possession of purported donee—Purported donor and donee not appearing before revenue official for recording alleged Gift in register of mutation—Circumstances under which alleged Gift deed was lost and subsequently recovered not explained—Alleged arrangement/understanding between purported donee and other legal heirs whereby subject land was transferred to all legal heirs as an interim measure till the alleged Gift deed was found was not supported either by documentary evidence or revenue record—Legal heirs were not obliged under law to accede to request of purported donee to transfer the entire subject land to him, nor their denial to oblige could be deemed to be a denial/infringement of any legal or contractual right of the purported donee—Plaint was rightly rejected in such circumstances.

2017 PLD 265 SUPREME-COURT
PAKISTAN/MEMBER NATIONAL ASSEMBLY, PRIME MINISTER’S HOUSE, ISLAMABAD
Ss. 9(a)(v) & 14(c)—Constitution of Pakistan, Arts. 62(1)(f) & 184(3)—Constitutional petition before the Supreme Court seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering—Properties situated abroad owned by the Prime Minister’s children through offshore companies were revealed in the Panama Papers [leaked documents belonging to a foreign law firm that detailed financial and attorney-client information of thousands of offshore entities]—Joint Investigation Team (JIT) formed to probe into the allegations against the Prime Minister and his family—Thorough investigation was required to answer the questions as to how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K.; whether the Prime Minister’s sons in view of their tender ages had the means in the early nineties to possess and purchase the flats; whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber Al-Thani [member of a foreign royal family] is a myth or a reality; how bearer shares crystallized into the flats; who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited [offshore companies], how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and other companies set up/taken over by Prime Minister’s younger son come from, and where did the Working Capital for such companies come from and where did the huge sums running into millions Gift ed by Prime Minister’s elder son to the latter drop in from”—Supreme Court directed that a Joint Investigation Team (JIT) should be formed comprising of a senior officer of the Federal Investigation Agency (FIA), not below the rank of Additional Director General who shall head the team, a representative of the National Accountability Bureau (NAB), a nominee of the Security and Exchange Commission of Pakistan (SECP) familiar with the issues of money laundering and white collar crimes, a nominee of the State Bank of Pakistan (SBP), a seasoned Officer of Inter Services Intelligence (ISI), and a seasoned Officer of Military Intelligence; that the Heads of the said departments/ institutions shall recommend the names of their nominees for the Joint Investigation Team within seven days which shall be placed before the present Bench of the Supreme Court for nomination and approval; that the Joint Investigation Team shall investigate the case and collect evidence, if any, showing that the Prime Minister or any of his dependents or benamidars owned, possessed or had acquired assets or any interest therein disproportionate to his known means of income; that the Prime Minister and his sons should appear and associate themselves with the Joint Investigation Team as and when required; that the Joint Investigation Team may also examine the evidence and material, if any, already available with the Federal Investigation Agency (FIA) and National Accountability Bureau (NAB) relating to or having any nexus with the possession or acquisition of the subject properties/flats or any other assets or pecuniary resources and their origin; that the Joint Investigation Team shall submit its periodical reports every two weeks before a Bench of the Supreme Court constituted by the Chief Justice for implementation of present judgment, and it shall complete the investigation and submit its final report before the said Bench within a period of sixty days from the date of its constitution; that upon receipt of the Joint Investigation Team’s reports, periodic or final, the matter of disqualification of the Prime Minister shall be considered, and that if found necessary for passing an appropriate order in such behalf, the Prime Minister or any other person may be summoned and examined

2018 SCMR 30 SUPREME-COURT
Essentials of—Scope—Dispute between daughter and son of deceased over inheritance share in agricultural land—Respondent (son of deceased) claimed that subject agricultural land was purportedly transferred by his deceased father’s family in favour of respondent, through gift mutations—Appellant (daughter of deceased) claimed that gift mutations in question were forged and therefore she was entitled to her share in the agricultural land through her deceased-father; held, that respondent was required to prove a valid gift of the land by his father, grandmother, uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased—Respondent had to prove all the essential ingredients of the gift independent of the gift mutations—Respondent was essentially required to prove that the donees had offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him—Respondent was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him, however, neither had the respondent divulged such details nor had he produced any person who witnessed the same—Respondent had failed even to prove the authenticity and veracity of the mutations and its attestation, as no one who allegedly witnessed the attestation of the mutations had been produced—Neither the Revenue Officer nor the Lumbardars or the other witnesses whose names found mention in the attestation, or those who participated in the relevant jalsa-e-aam/assembly had been produced by respondent—Respondent had also not been able to say positively as to whether the signature of the person who witnessed the gift attestations, were obtained by the revenue office in the register of mutation as required in terms of S. 42(7) of the Land Revenue Act, 1967—No valid gift of the subject land could be presumed in favour of respondent, therefore, he was liable to share the land with the appellant to the extent the appellant was entitled to inherit in accordance with Sharia—Supreme Court directed that respondent shall pay to the appellant the amount of mense profit in respect of her share in the land at the rate of Rupees eight thousand (Rs.8000/-) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the date the possession of the land to the extent of her share was delivered to her after proper partition and demarcation by the revenue authorities, which entire exercise shall be concluded within two months; that in addition to the amount of mense profit the respondent shall also pay to the appellant the amount of markup accrued thereon at the Bank rate on year to year basis and till the time the entire amount was paid—Appeal was disposed of accordingly.

2017 SCMR 385 SUPREME-COURT
S. 17—Civil Procedure Code (V of 1908), S. 12(2)—Arbitration proceedings—Arbitration Award made Rule of the Court on basis of conceding statement of one of the defendants—Plea of fraud and misrepresentation—Proof—Dispute arose between sons over Gift of property made by their father in favour of one of the sons—By way of the Arbitration Award, plaintiff-son was held to be the owner of the property in dispute on the basis of a Gift in his favour by the father—Said Award was made the Rule of the Court on the basis of the conceding statement of the father —Defendant-son filed an application under S. 12(2), C.P.C. alleging fraud and misrepresentation—Held, that the question as to whether judgment and decree was obtained fraudulently by the plaintiff-son would depend primarily upon the fact whether the father actually appeared in court and conceded the case of plaintiff-son of making the Award, the Rule of the Court—Judgment and decree sought to be set aside through the application under S. 12(2), C.P.C. was passed on 9-1-1979 against the father who died on 11-10-1990—On the basis of the said judgment and decree, a mutation had also been effected—During his lifetime, the father never challenged the said judgment and decree—As per the record, the Award was filed in court where the father entered appearance and stated that he had no objection if the Award was made, the Rule of the Court—Statement of father was recorded and thumb impression was obtained—Defendant-son was unable to bring any evidence on record to disprove the thumb impression of the father—No evidence was brought on record to suggest that the father did not appear and concede the case of plaintiff-son—Defendant-son in his own statement did not specifically spell out that fraud had been allegedly committed or that the father did not appear in court, and his entire evidence was based on hearsay—Stamp vendor from whom the stamp paper for the Arbitration Agreement was purchased, also entered the witness box along with his register—Counsel who represented the father also appeared as a witness and supported the case of the plaintiff-son—Defendant-son conceded in his cross-examination that plaintiff-son was in possession and cultivated the part of the land in dispute—Record also showed that the defendant-son had been involved in a murder case, giving support to the claim of plaintiff that the father and defendant-son were estranged—Application filed by defendant-son under S. 12(2), C.P.C. had been rightly dismissed—Appeal was dismissed accordingly.

 2016 SCMR 910 SUPREME-COURT
Mutation—Proof—Purported Gift deed not in possession of purported donee—Purported donor and donee not appearing before revenue official for recording alleged Gift in register of mutation—Circumstances under which alleged Gift deed was lost and subsequently recovered not explained—Alleged arrangement/understanding between purported donee and other legal heirs whereby subject land was transferred to all legal heirs as an interim measure till the alleged Gift deed was found was not supported either by documentary evidence or revenue record—Legal heirs were not obliged under law to accede to request of purported donee to transfer the entire subject land to him, nor their denial to oblige could be deemed to be a denial/infringement of any legal or contractual right of the purported donee—Plaint was rightly rejected in such circumstances.

 2016 SCMR 662 SUPREME-COURT
Gift deed, authenticity of—Prerequisites for valid Gift i.e. “offer”, “acceptance” and “delivery of possession ” not proved—Non-examination of attesting witnesses of Gift deeds—Interested witnesses presented to prove execution of purported Gift deeds—Non-production of original Gift deeds along with the plaint—Evidence of Hand Writing Expert not helpful in circumstances where photostat copies of purported Gift deeds were used for comparing signatures—Possibility of manipulation/substitution/subsequent addition of attesting witnesses could not be ruled out—Gift deeds could not be termed as valid in such circumstances.

2016 SCMR 662 SUPREME-COURT
Ss. 17 & 49—Oral Gift , authenticity of—Unregistered Gift deed executed between the donor and donee as an acknowledgement of past transaction of oral Gift —Non-registration of such Gift deed would not have much bearing as regards its authenticity or validity, however three important prerequisites for valid Gift i.e. “offer”, “acceptance” and “delivery of possession “, had to be proved for such transaction to be valid.

2014 SCMR 1181 SUPREME-COURT
Gift —Deathbed Gift —Proof—Donor being of very old age and having unsound mind—Donor living at mercy of donee—Undue influence of donee—Lack of possession of donee–Effect—Donee allegedly Gift ed disputed property to one of his sons/purported donee at the exclusion of others—At the time of making Gift donee was 92/93 years old, meaning thereby that he was fairly old at the relevant time—Witnesses in their evidence stated that the donor did not enjoy sound mental health at the time of making Gift , and such evidence went unquestioned and thus remained unshaken—Such evidence appeared to be quite credible when considered in light of the age of the donor and other attending circumstances—Element of undue influence of donee could not be ruled out when the donor being old, infirm and incapacitated was living at the mercy of the donee—Alleged donee made contradictory statements regarding delivery of possession of disputed property to him and could not be said to have discharged the burden of proof to prove all the essentials of a Gift , therefore no valid Gift was ever made in his favour—Appeal was allowed accordingly.

2014 SCMR 513 SUPREME-COURT
S. 3—Civil suit challenging validity of Gift mutation—Limitation—Owner of property died in the year 1951 and his daughters transferred their inheritance share along with possession to their brother by a Gift mutation dated 16-11-1971—Said Gift mutation was challenged by legal heirs of the daughters by way of a civil suit forty (40) years after the Gift mutation—Effect—Such suit on the face of record was barred by time and there was no need for recording evidence—Concerned revenue officer and patwari confirmed in court that brother and his legal heirs were enjoying possession of suit property since the year 1971—Revenue record showed that neither the daughters nor their legal heirs had received any share in the produce of the suit property—Petition for leave to appeal was converted into appeal and allowed, and suit challenging validity of Gift mutation was dismissed as barred by time.

2014 PLD 167 SUPREME-COURT
Inheritance—Limitation—Scope—Property claimed on basis of inheritance—Acquiescence of claimant-heir—Effect—Waiver of inheritance right in property—Scope—Plaintiff-heir filed suit in the year 1991 assailing registered sale deed dated 8-6-1916 and sale mutation dated 23-12-1917—Plaintiff had also challenged inheritance and Gift mutations dated 5-12-1930, 1-9-1949 and 11-11-1959 respectively along with further mutations attested from time to time up to the year 1987—Plaintiff-heir was more than 80 years old at the time of filing the suit in the year 1991, and according to evidence she was 6/7 years old, when entire suit property was inherited by her as a limited owner—Plaintiff-heir married in the year 1930 and as a result had to give up her property in favour of her step-sister, and since then plaintiff remained out of possession of suit property—Plaintiff-heir was aware as to how property was handled thereafter and of her rights therein—Plaintiff-heir was well aware of the transfer of suit property made by her step-sister and the subsequent Gift transfer, but never questioned the sale deed of the year 1916 till filing of suit in the year, 1991—Suit property was further sold and re-sold, constructed and re-constructed upon, but the plaintiff took no action to annul or prevent the transfers of suit property—When plaintiff filed suit in the year 1991, there were as many as 251 transferees of suit property-Conduct of plaintiff clearly demonstrated acquiescence in all the impugned transfers of property which amounted to waiver of her right—Transferees of suit property, on account of plaintiff-heir’s in action, led to believe that defendant-heir-transferor had a valid title in the suit property—Suit of plaintiff-heir had been rightly dismissed—Appeal was dismissed accordingly.

2014 PLD 331 SUPREME-COURT
Gift , validity of—“Licensee” in possession of Gift ed property—Licensee could not question the validity of a Gift on the basis that possession was with him, especially when at the time of making Gift he had no enforceable right or interest in the property—Illustration.

2014 PLD 331 SUPREME-COURT
Gift —Pre-requisites—“possession “—Donor giving constructive possession of entire property to donee (one of his sons) as opposed to physical possession —Scope—Licensees (other sons of donor) in possession of Gift ed property challenging validity of Gift —Locus standi of such licensees—Scope—Donor-father Gift ed suit property to one of his sons, i.e. donee and for such purpose executed a declaration of Gift followed by a registered declaration of Gift —Other sons of donor (i.e. appellants) were also residing in part of Gift ed property and challenged the Gift as collusive and based on mala fide—Donee-son instituted suit for recovery of possession of entire Gift ed property which was dismissed by Trial Court on the ground that Gift was not valid as physical possession of entire Gift ed property was not delivered to donee-son at the time of Gift —Appellant Court set-aside verdict of Trial Court and decreed suit of donee-son—Validity—Written statements filed by appellants i.e. other sons of donor before Trial Court showed that they never challenged validity of Gift on the ground of lack of delivery of possession of the property to the donee, thus, they were precluded under law from assailing validity of Gift on such ground—Donor vide two declarations of Gift in unequivocal terms admitted the Gift , which was also affirmed by him while appearing as a witness in a suit filed by appellants against him—Appellants’ possession of Gift ed property during life of donor at best was in the nature of licnesees—Evidence on record showed that donor had cancelled license of appellants, who were living in part of Gift ed property—Such cancellation of licence was with the legal effect that donor would be considered to have attained possession , which could validly be taken to have been constructively delivered to donee-son—Appellants (Licensees) could not claim any right of any sort or nature in the property during life time of their father i.e., donor, who admittedly was the owner—Appellants also had no right or locus standi to challenged the Gift as being invalid on the plea that they might have inherited the property as legal heirs in the eventuality of death of donor, i.e. their father—Appellants at the time of Gift were strangers to the Gift , either being the licensees of donor or being his prospective legal heirs—Donor out of his free will made the Gift in question, affirmed and owned it throughout his life as having been made, and never questioned the same till his last breath—Appellants (licencees) would lose the locus standi to challenge validity of Gift on this score too—Appeal was dismissed accordingly.

 2013 SCMR 684 SUPREME-COURT
S. 42— Suit for declaration qua title to disputed property—Claim of ownership of property based on adverse possession —Scope—Defendant in the suit allegedly Gift ed part of suit property to the claimant—Trial Court passed decree in favour of plaintiff as ownership of defendant was not established, however claimant was held to be in adverse possession of part of suit property since plaintiffs, who attained majority in 1981, did not implead claimant in the declaratory suit till 1984—Legality—Claimant was shown as a tenant in the revenue record—Suit property was State land and adverse possession could only be claimed if possession was for more than 60 years—Claimant never appeared as witness in the declaratory suit to raise plea of adverse possession —Claimant derived his title from the defendant, whose own title had been annulled by the Trial Court—Appeal was allowed and findings of courts below with regard to title of claimant on the basis of adverse possession were set aside.