Law:

Section:

(a) Constitution of Pakistan (1956), Art. 158-Appeal to Supreme Court-Question of fact-Concurrent finding of Courts below that gift was obtained by practising fraud and undue influence on donor-Not interfered with. (b) Muhammadan Law-Gift-Retractability of-Doctrine of Qiyas-Gift in favour of relation within prohibited degrees, including grandson-Not retractable. The admitted position is that a gift in favour of a relation within prohibited degrees cannot be retracted. Hedaya-Page 486, Col. II; Mulla-S. 167, Baillie-Page 534; Amir Ali-V. I, p. 122, (2nd Edn.) ; Fatawa-i-Alamgiri-Vol. 7, p. 94 (Urdu Translation) ref. No Quaranic text exists on the point while there are two opposite traditions mentioned in Hedaya at page 486. In this state of the law resort could be had to Qiyas and it could be concluded that as the reason why a gift to a kinsman within the prohibited degree cannot be resumed is that "thc object of the gift is to increase the ties of affinity which is thereby obtained" the term prohibited degree should be construed as otherwise the best part of the relations within the prohibited degree will be excluded from the benefit of irrevocability, a result neither based on reason nor on commonsense. There is also no logic in extending the benefit to a mother-in-law, but with­holding it from a mother. The exception in case of a son appears to be based more on the authority of the father as a natural guardian to deal with the property of his minor son than on the concept of retractability of a gift for a father is responsible for the maintenance of only his minor children and not adults. This view is in conformity with Shia Law that a gift to ones descendants and accepted by them is irrevocable and finds support from the tradition "when a gift is made to a prohibited relation it must not be resumed", the term prohibited in this context being construed as and not the persons with whom marriage is prohibited. The Court did not thus accept the orthodox view that the term "mahram" (prohibited) applies to persons related through blood who are neither sharers nor residuaries and that the grandsons being residuaries, gifts in their favour could be retracted.…

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