LAHORE: The Lahore High Court has ruled that if validity and correctness of a gift transaction is challenged, it becomes mandatory for the beneficiary to prove its legitimacy.

The ruling came in a matter related to a costly property measuring 23-kanal 14-marla, known as 2-Kashmir Road, Lahore.

Arif Latif instituted a suit for declaration and possession against Dr Nighat Waheed and other siblings as well as against his father C.M Latif (defendant No.1) saying Mr Latif being owner of the bungalow transferred a plot measuring 8-kanlas and 12-sq.ft out of the said property to him through a transaction of oral gift in 1963. Subsequently the oral gift was confirmed through a deed of acknowledgment in 1966. In the suit, he sought a declaratory decree in his favour.

The suit was contested by the other siblings while submitting written statements whereby C.M Latif categorically denied the alleged fact of gift of the property in favour of the plaintiff. However, Mr Latif died in 2004 during the pendency of the suit before the stage of recording of evidence.

The trial court recorded evidence of the parties and through the impugned judgment passed a decree in 2012 in favour of the plaintiff. The trial court also dismissed an appeal by the defendants who, being dissatisfied with the same, moved the high court.

Allowing the appeal of the defendants, Justice Shahid Bilal Hassan, in his verdict, observes that the basic ingredients for a valid gift include “offer, acceptance and delivery of possession.”

He notes that a bare reading of the plaint before the trial court divulges that no description of making of offer and acceptance of the same by the plaintiff (respondent before LHC) as well as names of witnesses, in whose presence such transaction took place are missing, which are necessary to be pleaded and proved, because a party cannot lead any evidence beyond its pleadings.

Therefore, the judge says, the names of the two witnesses deposed during evidence would be considered beyond pleadings. Even otherwise, the witnesses have not been produced in the witness box and it has been deposed that both of them expired but no proof in the shape of death certificates has been brought on record by the respondent.

Justice Hassan observes that the alleged oral gift was with regard to 8-kanal 12-sq.ft. of the land but the document mentions only 8-kanals. Moreover, the judge says, the possession of the disputed property was also not with the respondent.

The judge maintains that when the validity and correctness of a gift transaction is challenged, it becomes mandatory and essential for the beneficiary to prove the valid execution of the same.

He states that when the evidence produced by the parties was gone through, it appears that the respondent failed to prove the making of valid oral gift and subsequent acknowledgment deed, rather it has surfaced that a fraud has been committed as the respondent failed to bring on record any reliable evidence.

Justice Hassan refers to a Supreme Court’s judgement wherein it has been held that on the death of a Muslim his/her property devolves upon his/her legal heirs. However, if any heir seeks to exclude the other legal heirs, as in the instant case by relying on a purported gift, the beneficiary of such a gift must prove it.

Allowing the appeal, the judge set aside the findings and the decree passed by the trial court in favour of the respondent.

Published in Dawn,May 3rd, 2022