Essential ingredients—Onus of proof—Onus to establish the factum and ingredients of the gift

2020 S C M R 276
[Supreme Court of Pakistan]
Present: Umar Ata Bandial, Faisal Arab and Ijaz ul Ahsan, JJ
MUHAMMAD SARWAR—Petitioner
Versus
MUMTAZ BIBI and others—Respondents
(a) Gift—
—-Oral gift—Essential ingredients—Proof—Brother (petitioner) attempting to disinherit his sisters (respondents) through an alleged oral gift deed made by their father—Petitioner failed to mention the date, time and place of the alleged gift—Further, he omitted to mention the names of witnesses in whose presence his father allegedly gifted the property in his favour and disinherited his sisters—Likewise, there was no mention of acceptance of the gift in presence of witnesses in the written statement as required by law—Gift mutation as well as the alleged oral gift were fictitious and the result of fraud—Petition for leave to appeal was dismissed and leave was refused.
(b) Gift—
—-Essential ingredients—Onus of proof—Onus to establish the factum and ingredients of the gift was on the beneficiary who claimed such gift and which was denied or challenged by the other legal heirs. (c) Punjab Land Revenue Act (XVII of 1967)—
—-S. 42—Oral gift—Mutation—Sanctioning in Majlis-e-Aam—In terms of S. 42 of the Punjab Land Revenue Act, 1967, it was obligatory that a mutation for an oral gift be sanctioned in Majlis-e-Aam so that every person of the village may have knowledge of such alienation and the possibility of fraud, collusion or secretly undertaken transaction may be eliminated.
(d) Qanun-e-Shahadat (10 of 1984)—
—-Art. 129—Oral gift—Mutation—Material witnesses of mutation not produced—Adverse presumption— Concerned Tehsildar who had allegedly sanctioned the mutation and witness of the mutation i.e. the Patidar were material witnesses of the alleged gift mutation, however they were not produced for any valid reason—Presumption of Art. 129 of the Qanun-e-Shahadat, 1984 by reason of withholding of the best evidence could be drawn against the alleged donee/petitioner—Gift mutation as well as the alleged oral gift were fictitious and the result of fraud—Petition for leave to appeal was dismissed and leave was refused.
(e) Gift—
—-Oral gift—Mutation—Proof—Where the validity of a gift mutation was challenged, it was incumbent upon the beneficiary to not only prove the validity and legality of the gift mutation by producing all relevant evidence but it was also necessary that the gift itself be proved through cogent and reliable evidence.
(f) Gift—
—-Oral gift—Mutation—Proof—Death certificate of alleged donor—Said certificate indicated that the alleged donor passed away on 12-09-1984 whereas the alleged gift mutation was entered and sanctioned on 10-02-1985 approximately four months after his death—Such patent discrepancy itself negated the case of the alleged donee regarding the property being gifted to him by way of oral gift and thereafter a gift mutation being sanctioned on the basis of such oral gift—Gift mutation as well as the alleged oral gift were fictitious and the result of fraud—Petition for leave to appeal was dismissed and leave was refused.

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