شوہر نے بیوی کو اراضی ہبہ (گفٹ ) کی اور بعد میں ہبہ (گفت) کی منسوخی کے لئے دعوی دائر کر دیا. '
لاہور ہائیکورٹ نے قرار دیا کہ شوہر ایک بار اراضی بیوی کو ہبہ (گفٹ کرنے کے بعد اس کو واپس نہیں لے
سکتا ہے ۔
The husband gifted the land to his wife and later filed a suit for cancellation of the gift. Lahore High Court (LHC) has ruled that a husband should not take back his wife once he has given her a gift(hiba)
Muhammad Riaz
Vs.
Province of Punjab through Collector & others
Petitioner by: Mian Muhammad Ismail Thaheem, Advocate
Respondents N.1 to 3 by: Mr. Muhammad Arif Raja, Additional Advocate
General, Punjab.
Respondents No.4 & 5
by: Rana Mazhar Iqbal, Advocate Date of hearing: - 22.10.2020
2020 LHC 2509
Judgment
SHAHID WAHEED, J:- I have been presented
with a case which reflects the social malaise where a husband being
wearied of the withering beauty of his wife not only accuses her of
dishonesty but also in the lure of his materialistic desire wants to take
back his gift which he once made to her while recognizing her
services, care and love. It is a trite saying that meaning of a legal
system is derived from values in a given society. It would not be an
overstatement to say that values are treated by our society on ethical
basis, which are uncompromising in the matter of woman’s rights
and do not allow her to labour under any legal disability. This value
system stems from the concept of Islam which lay strong emphasis
on the position of a wife. Within the Islamic traditions, the first and
most important right that a wife has over her husband is to be treated
with respect and kindness. When a woman gets married, she has financial rights over her husband in that he must provide her with all
the necessities for her to live a comfortable life. It is thus, incumbent
upon the husband to offer the provisions of house, food, clothing,
healthcare and other tools required for her subjective standard of
living. Given this values and in keeping with Articles 2-A, 3, 9,
25(3), 31, 34, 35, 37 and 38 of the Constitution of the Islamic
Republic of Pakistan, 1973 (the Constitution), the legislatures have
made special provisions to help woman in distress and for her
protection against moral and material abandonment. The object of all
our laws is that ill-used wives and discarded divorcees should not be
driven to material and moral dereliction to seek sanctuary in the
streets. And so we must appreciate the Islamic ethos and the general
sociological background for the resolution of all such disputes. From
this coign of vantage, I will view the present case.
2. Here the plaintiff, Muhammad Riaz, after the death of his
first wife, married Fatima Bibi, defendant No.4, who was a divorcee
and mother to two daughters. On 15th June, 1995 the plaintiff
through mutation No.595 gifted 56 Kanals of his total 144 Kanals of
land to his wife (defendant No.4). This land is situated within the
revenue estate Chaito, Tehsil Phalia, District Mandi Bahauddin. Ten
years later, Fatima Bibi sold 4 Kanals of the gifted land to
Muhammad Anwar, defendant No.5, vide mutation No.840 dated 4th
May, 2005. It appears that the plaintiff for his diminishing initial
warmth and mutual affection made the said sale as the cause to bring
a suit for the revocation of gift. The plaintiff in his suit for
declaration joined Province of Punjab through Collector, Mandi
Bahauddin (defendant No.1), Tehsildar, Phalia (defendant No.2),
Patwari Halqa Chaito, Tehsil Phalia (defendant No.3), his wife
Fatima Bibi (defendant No.4) and subsequent vendee, namely,
Muhammad Anwar (defendant No.5). Prayer in the suit was that a
declaration be granted that gift mutation No.595 dated 15th June, 1995 and sale mutation No.840 dated 4th May, 2005 were against law
and facts, result of collusion and thus, ineffective upon his
proprietary rights.
3. The allegations made in the plaint were denied by the
wife of the plaintiff, Fatima Bibi (defendant No.4) and the
subsequent vendee, Muhammad Anwar (defendant No.5) through a
joint contesting written statement with a plea that the gift was rightly
sanctioned in the revenue record as the plaintiff voluntarily fulfilling
the conditions of the gift in presence of the witnesses handed over the
possession of the land to his wife, who still had it. It was also
maintained in the reply that the plaintiff was aware of the sale as it
was made, with his consent, in favour of Muhammad Anwar and
possession was delivered.
4. The pleadings of the parties call upon this Court to
examine the validity of two transactions. The first transaction was
dated 15th June, 1995 when the land stood transferred in the name of
defendant No.4 by way of gift vide mutation No.595 whereas second
was the transaction of sale, of the portion of the gifted land, made in
favour of defendant No.5 through mutation No.840 dated 4th May,
2005. These two transactions were brought under discussion before
the Courts below through issue Nos.1 & 2, which on examination of
evidence were found to be valid. Since the plaintiff has sought
revision of the concurrent findings, it is essential to first appraise the
legality of gift transaction because upon the fate of it hinges the
existence of other transaction of sale. So let’s see what was the
plaintiff’s first objection to the gift. He alleged that gift mutation
No.595 dated 15th June, 1995 was the outcome of the collusion of the
defendants; and, that he was not aware of the gift at the time of
affixing his thumb impression. Such type of allegation upon its
prove acts as a catalyst bringing the beneficiary under burden to
establish the validity of transaction. Since the allegation of collusion 4. The pleadings of the parties call upon this Court to
examine the validity of two transactions. The first transaction was
dated 15th June, 1995 when the land stood transferred in the name of
defendant No.4 by way of gift vide mutation No.595 whereas second
was the transaction of sale, of the portion of the gifted land, made in
favour of defendant No.5 through mutation No.840 dated 4th May,
2005. These two transactions were brought under discussion before
the Courts below through issue Nos.1 & 2, which on examination of
evidence were found to be valid. Since the plaintiff has sought
revision of the concurrent findings, it is essential to first appraise the
legality of gift transaction because upon the fate of it hinges the
existence of other transaction of sale. So let’s see what was the
plaintiff’s first objection to the gift. He alleged that gift mutation
No.595 dated 15th June, 1995 was the outcome of the collusion of the
defendants; and, that he was not aware of the gift at the time of
affixing his thumb impression. Such type of allegation upon its
prove acts as a catalyst bringing the beneficiary under burden to
establish the validity of transaction. Since the allegation of collusion
5. There is another good reason to hold that the plaintiff
was not entitled to the decree as prayed for in the plaint. The
mutation proceedings were conducted in a public assembly and in
that connection the plaintiff and his wife (defendant No.4) personally
appeared before the revenue officer and in presence of the witnesses,
namely, Muhammad Shafi, Lambardar (DW-1) and Shera (PW-2),
acknowledged and confirmed the oral gift and delivery of possession.
It was on this statement that the land then mutated in the name of
Fatima Bibi (defendant No.4). Copy of mutation No.595 dated 15th
June, 1995 was retained on record as Ex.P.1. A perusal of record
indicates that this mutation was given effect to and incorporated in
jamabandi of mouza Chaito for the year 1996-1997, 2000-01 and
2004-05, copies whereof were produced as Ex.P.3, Ex.P.4, and
Ex.P.5 respectively. When entries of mutation get incorporated in jamabandi (that is annual record) then it is presumed to be true until
the contrary is proved or a new entry is lawfully substituted therefor1
.
As against the aforesaid entries, mere verbal statements did not
extend any help to the plaintiff for that the documentary evidence
could not be rebutted by oral evidence2
. In this scenario, the plaintiff
could not be heard saying that he was not aware of the gift at the time
of making of thumb impression. I find that the plaintiff had been
unsuccessful in rebutting the entries made in the jamabandi and thus,
interference therewith was uncalled for.
6. Before moving on to the next objection, I would pause
here so as to examine the motive which according to the plaintiff led
the defendants to collude with each other for obtaining the sanction
of gift mutation. As stated in the plaint, wife of the plaintiff is very
clever and cunning woman who took him to defendants No.2 and 3
with the impression that the documents for obtaining agriculture loan
could be prepared but she in collusion with defendants No.2 & 3 got
his thumb prints on the mutation of gift. When this averment is read
in conjunction with the statement of the plaintiff which he made
during the course of his cross-examination as PW-1, it transpires that
obtaining a loan and making a gift are two incidents which took place
on different dates and year. It is to be noted that cross-examination
of the plaintiff was recorded on 13th October, 2011. As regards the
mutation of gift, the plaintiff upon being asked during crossexamination stated that it happened sixteen years ago. If these
sixteen years are counted from the date of cross-examination, it
1
“Bhagwan Das v. Mangal Sain” (A.I.R. 1929 Lahore 93)
“Abdul Ahad and others v. Roshan Din and 36 others” (PLD 1979 SC 890)
“Ahmad Ali and others v. Muhammad Iqbal and another” (1986 SCMR 244)
“Divisional Evacuee Trust Property Committee, Hyderabad v. Deputy Commissioner and
another” (1989 SCMR 1610)
“The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others”
(1990 SCMR 725)
“Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others” (1991 SCMR 1699)
“Mazloom Hussain v. Abid Hussain and 4 others” (PLD 2008 SC 571)
2
“Mt. Wallan v. Fazla and others” (A.I.R. 1939 PC 114) almost corresponds with the date of gift mutation i.e. 15th June, 1995.
So, it is clear that transaction of gift took place in the year 1995.
Now I need to know the year when the plaintiff obtained a loan. The
plaintiff said in his cross-examination that he had obtained a loan and
used it to build a house with three large rooms, a drawing-room, a
boundary-wall and a door; that they used to live in the same house
before; that there was a single room when he married Fatima; and,
that it has been six years since the house was built. This statement
conclusively suggests that the incident of loan happened in the year
2005 whereas the gift was made in the year 1995 and thus, the
conclusion is that the plaintiff had been failed to prove the alleged
motive of collusion. It means the facts constituting the foundation of
the cause to challenge the mutation of gift were false.
7. I will now turn to the second objection raised by the
plaintiff to the gift. He stated that the three essential requisites for a
valid gift, that is, the offer of the gift; acceptance thereof; and,
delivery of possession in pursuance thereunder were not complied
with, therefore, the gift was not complete. This objection does not
hold water. While examining this objection, it should be kept in
mind that it was an inter-spousal gift. I have said this above and now
I repeat it here to answer this objection that at the time of attestation
of Mutation No.595 dated 15th June, 1995 the husband (the plaintiff)
and wife (the defendant No.4) had confirmed and acknowledged the
fulfillment of the required conditions of the gift in front of the
witnesses and before the revenue officer. The said mutation was
incorporated in the subsequent Khasra Gardawaris (Ex.D.4 &
Ex.D.5) as well as the record of rights (Ex.P.3, Ex.P.4, Ex.P.5)
showing the transfer of possession of the land in favour of defendant
No.4 pursuant to the gift; presumption of correctness, though
rebuttable, is attached to them. In the present case the plaintiff had
not been able to rebut the said presumption and to satisfy the Court that the elements of offer and acceptance of gift or delivery of
possession of land to establish a valid gift were missing. It would,
therefore, be taken that mutation was effected by the plaintiff
himself. It is now well settled that once mutation of names has been
proved, the natural presumption arising from the relation of husband
and wife existing between them is that the husband’s subsequent acts
with reference to the property were done on his wife’s behalf and not
on his own1
. This principle indicates that the theory of constructive
possession is very well applicable to gifts between husband and
wife2
. Applying this principle to the facts of the present case the wife
(defendant No.4) would be deemed to be in possession of the land
under the gift3
.
1
“Amina Bibi v. Khatija Bibi” (1864) I Bom. H. C. 157
“Ma Mi v. Kallander Ammal” (AIR 1927 PC 22)
“Emnabai v. Hajirabai” (1889) 13 Bom 352
“Abdul Rehman Nachiyal v. Muhammad Nurdin Maracayer” (23 IC 547)
“Bee Jan Bee v. Fatima Beebee” (8 IC 431)
2
Neaz Begum v. Manzur Ahmad (11 IC 534)
3
“Abdul Mateen and others v. Mst. Mustakhia” (2006 SCMR 50)
8. In the end, the plaintiff in his plaint has also stated that
even if the gift proves to be valid in favour of his wife, he revokes it.
This is highly abominable. There is a tradition in the Sahih alMuslim that the Holy Prophet (Sallallahu Alayhi Wa Sallam) said,
“the person who revokes his gift, is like the dog that licks up what it
disgorges”4
. The desire to revoke the gift indicates that the plaintiff’s
intention is only to hurt his wife who is now stated to be a patient of
multiple diseases. Instead of taking care of her, he, undeterred by his
failure in Courts below, is dragging her in the litigation up to the
level of this Court. This is the same wife who gave birth to the
plaintiff’s children and looked after his house. The plaintiff has not
denied her love, her affection, her care and her services. Thus, it
would not be inapt to say that the plaintiff had made the gift to his
wife so as to make more congeniality. In such like events, the law does not give the plaintiff (husband) any right to revoke the gift1
.
The reason of this prohibition may be explained by referring
Hamilton’s Hedaya by Grady wherein at page 486 it has been stated
that if a husband makes a gift of anything to his wife or a wife to her
husband, it cannot be retracted because the object of the gift is an
improvement of affection (in the same manner as in the case of
presents to relations); and as the object is obtained, the gift cannot be
retracted. Explaining it further, in the foot-note, Hedaya says that the
increase of affection excited in the wife by the gift is supposed, by
the law, to be a return which she pays for it, and which consequently
deprives the donor of the power of retraction. 4 Al-Muslim: Shaih, Cairo, Kitab al-Hibat, P.64. 1
“Abdul Majid Khan and another v. Mst. Anwar Begum” (PLD 1989 SC 362)
9. It is now fully established that defendant No.4, Fatima
Bibi, was the owner in possession of the suit land on the basis of gift.
Since she was the lawful owner, she had the right to sell her land to
whomever she wanted. Defendant No.4 while appearing before the
Trial Court as her own witness as DW.2 said in her statement that she
had sold 4 Kanals of gifted land to defendant No.5, Muhammad
Anwar, with the consent of the plaintiff to meet the marriage
expenses of her two daughters, who were from her first husband.
This admission was sufficient to hold that sale made in favour of
defendant No.5 vide mutation No.840 dated 4th May, 2005 (Ex.P.6)
was valid
10. Upshot of the above discourse leaves no room for doubt
that the suit brought by the plaintiff was based on mala fide and false
allegations and its sole purpose was to rob defendant No.4 of her
property so that she would spend the rest of her life in contempt. The
plaintiff has been unable to identify any infirmity in the findings
returned by the Courts below and thus, interference therewith is not
warranted.
11. Before parting with this judgment, I must say that man
and woman are of equal rank, but they are not identical. They are a
peerless pair, being supplementary to one another, each helps the
other, so that without the one the existence of the other cannot be
conceived, and, therefore, it follows as a necessary corollary from
these facts, that anything that will impair the basic right of a woman
to be treated with decency and proper dignity will not only involve
the infringement of Article 9 of the Constitution which guarantees
that no person shall be deprived of life or liberty save in accordance
with law but also ruin our social fabric which is interwoven with the
family bond. Prophet Muhammad (Peace Be Upon Him) said: “the
best of you is the best to his family and I am the best among you to
my family. The most perfect believers are the best in conduct and
best of you are those who are best to their wives” (Ibn-Hanbal
No.7396). In the case at hands the plaintiff through his callousness,
carelessness and negligence has exhibited a conduct unbecoming of a
Muslim. By falsely accusing his wife, the plaintiff has not only
tarnished her chastity but also made a despicable attempt to seize her
property. This Court would loathe approving this conduct and would
burden the plaintiff with a heavy costs which will to some extent
serve as balm to relieve the defendant No.4’s pain of her wounds
inflicted by the plaintiff.
12. In the result, the revision sought for through this
application is declined with costs of Rs.100,000/-.
0 comments:
Post a Comment