Law: Qanun-e-Shahadat (10 of 1984)

Section: 2(d),117

Law: Specific Relief Act, 1877

Section: 9

(a) Islamic law--- ----Gift---Ingredients---Inheritance---Transaction of gift---Proof---Procedure---Allegations of fraud and misrepresentation---Burden of Proof---Non-appearance of donee as witness---Effect-Mutation, proof of-Requirements---Plaintiff (daughter of deceased) was deprived from inheritance through gift mutation---Contention of plaintiff was that transaction of gift was based on fraud and misrepresentation---Suit was dismissed concurrently---Validity---When a person attacked a transaction as sham, bogus, fraudulent and fictitious then he must prove the same---Initial burden to prove the negative fact would stand discharged the moment a person substantiated his allegations by making a statement on oath and onus would be shifted to the other side to prove that the transaction in question was bona fide and legal---Plaintiff, as her own witness, appeared before the Trial Court and reiterated the allegations of fraud and misrepresentation on oath---Defendant was required to prove not only the validity of disputed mutation but also the bona fide and legality of transaction of gift incorporated therein---Courts below misdirected the plaintiff by misplacing the burden of proof and recorded impugned findings---Misplacing burden of proof would vitiate passed by the Courts below---Trial Court illegally and erroneously failed to cast the burden on the defendant and recorded impugned findings which were perverse---Beneficiary of gift mutation was bound not only to prove the disputed mutations but also the factum of gift---Defendant neither in his written statement stated the date, time, place and name of witnesses before whom declaration and acceptance of gift was made nor any of his witnesses made such statement---Failure to establish the requirements of gift i.e. proposal and acceptance was fatal to the claim of defendant---Acceptance of gift was personal act of donee who was required to prove the same through his statement---Attorney could not substitute the donee under the law---Donee, in the present case, did not appear before the Trial Court to make statement and only his attorney appeared in the witness-box---Statement of attorney was of no avail to prove…

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