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Summary: Art. 199 Constitution of Pakistan, 1973.Right of hearing-- Violation of principles of Natural Justice

Summary: Statement of attorney of defendant lacked fulfillment regarding prerequisites of gift --- (a) Civil Procedure Code (V of 1908)-------O. VII, R.1---Plaint---Non-mentioning of specific cause of action and relief claimedin the plaint---Such relief could not be granted.(b) Civil Procedure Code (V of 1908)-------O. VI, R.1---Pleadings---Evidence produced beyond pleadings was inadmissible.(c) Islamic law-------Gift---Preferential gift---Exclusion of other co-heirs---Scope---Claim of preferentialgift in exclusion of other co - heirs is something which should have been provedby donees and not by other co-heirs---Preferential gift, which culminates indeprivation of rights of other legal heirs, requires to be proved in strictosensu.(d) Islamic law-------Gift---Proof---Attorney, statement of---Non-appearance of donees---Defendantsclaimed to be the owners in possession of suit property on the basis of gift executed intheir favour by their predecessor-in-interest---Validity---Statement of attorney ofdefendants lacked fulfilment regarding prerequisites of gift, who himself was neither awitness of gift i.e. verbal or written nor for that matter in his statement he stated that offerby donor was made and the same was accepted by donees pursuant to which propertieswere gifted nor possession was delivered---Lack of such version in statement of attorneyenfeebled the instance of donees who did not appear before Court to verify and confirmtheir claim regarding gift---High Court discarded and disbelieved the whole ocularevidence produced by donees as they failed to prove execution of gift in their favour anddirected to distribute the properties among all heirs of deceased owner in accordance withtheir Sharai shares.Phaphan v. Muhammad Bakhsh 2005 SCMR 1278; Muhammad Faisal v. StateLife Insurance Corporation 2008 SCMR 456; Nusrat Zohra v. Azhra Bibi PLD 2006 SC15; 2007 SCMR 635 and PLD 1990 SC 1 ref.2010 SCMR 342 rel.(e) West Pakistan Land Revenue Act (XVII of 1967)-------S. 42---Gift---Revenue record---Entries---Proof of ownership---Scope---Revenueentries effected as per S.42 of West Pakistan Land Revenue Act, 1967, are a report i.e.factum of acquisition of any right in an estate to Patwari and is a mere ministerial actwhich do not confer or extinguish any right in property---No witness or respectable isrequired either to accompany the person to report acquisition of such an interest toPatwari nor presence of two witnesses are necessary while entering of a mutationunder section 42 of West Pakistan Land Revenue Act, 1967---Even if donor of gifthimself does not go to Patwari for such purpose, the same is of no consequence.(f) West Pakistan Land Revenue Act (XVII of 1967)-------S. 42(7)---Attestation of mutation---Procedure---Presence of the person whose righthas been acquired and identification of such person by at least two persons i.e. Lumbardaror Member of Union Council etc. is inevitable.2005 SCMR 911 rel.(g) Islamic law-------Gift---Proof---Revenue record---Scope---Except exhibition of revenue record none ofthe witnesses of alleged gift were produced by donees---Validity---To prove factum ofgift donees did not state as to the persons before whom attestation as contemplated byS.42(7) of West Pakistan Land Revenue Act, 1967, had died or were not available---Giftwas doubtful in circumstances.2000 SCMR 346 rel.(h) Islamic law-------Gift---Preferential gift---Proof---Plaintiffs were illiterate and Pardanashin ladies whowere co-sharer in gifted properties---In the garb of revenue entries, unless defendantsproved that not only the entries in revenue record but ingredients of gift were satisfied byprocuring independent, confidence inspiring and cogent evidence, plaintiffs could not bedeprived of their ancestral rights in circumstances.(i) West Pakistan Land Revenue Act (XVII of 1967)-------S. 42---Revenue entries---Determination of title---Scope---Revenue entries itself donot confer any right or title to a person in whose favour the same have been rendered.2004 SCMR 1502 rel.(j) Specific Relief Act (I of 1877)-------S. 42--- Declaration of title--- Limitation--- Co-sharers--- When plaintiffs anddefendants are co-owners in the legacy of their predecessor-in-interest, no limitationwould run in such cases.Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 and Muhammad Saddique v.Raj Begum 2008 CLC 61 distinguished.(k) Specific Relief Act (I of 1877)-------S. 42---Declaration of title---Gift, non-assailing of---Effect---Plaintiffs soughtrecovery of their legal shares from the properties left by their predecessor-in-interest---Defendants contended that suit properties were gifted in their favour and as the gifts werenot assailed therefore, plaintiffs did not have any cause of action---Validity---Plaintiffscould not be non-suited merely because gifts had not been challenged---To ascertain theplaint, not only form but frame and substance of the plaint was to be taken intoconsideration and adhered to.(l) Administration of justice-------Relief, moulding of---Scope---Court is competent to mould any relief if party isfound entitled in accordance with his/their rights.2006 SCMR 688 rel.

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