GIFT. CASE LAWS

 

Case laws on Gift / Tamleek 

            2016 MLD 1535 Lahore

Ingredients---Mutation---Proof of---Procedure---Defendants being beneficiary of disputed gift mutation were bound to prove the transaction of tamleek which might have been settled at some prior point of time of attestation of the same---Donee did not plead any date, time, place and the names of witnesses to explain as to when and where and in whose presence alleged offer to gift out suit property had been made---Donee remained fail to prove the transaction of disputed gift in absence of such details in the written statement---Mutation per se was not a deed of title but it would indicate some previous oral transaction between the parties---Whenever any mutation was challenged then burden would lie on the beneficiary to prove the same as well as original transaction which he was required to fall back upon---Only one witness of mutation of tamleek was produced to prove its valid attestation---Said witness did not depose that donor had ever made any offer to gift out the suit property to the donee and he accepted the said offer in his presence---Transaction could not be declared to have been validly proved in absence of two basic ingredients of gift---Testimony of said witness was not helpful to the beneficiary---Disputed mutation was attested by practicing fraud misrepresentation---Attestation of disputed mutation by two real brothers had created doubt regarding its authenticity---Beneficiary of disputed mutation had failed to produce revenue officials who had entered and attested the same---Revenue officials were the best persons who could prove the valid attestation of tamleek mutation---Best evidence had been withheld by the beneficiaries without showing any justification and inference would be against them---Revenue Officer was bound to conduct the proceedings in a common assembly in the concerned revenue estate to attest the mutation but same was not conducted therein---Beneficiaries of gift had failed to prove ingredients of the same.

2014 MLD 1672 Peshawar

Parties were legal heirs of deceased owner of suit property but plaintiff assailed tamleek mutation attested in favour of defendant---Validity---Defence witness stated that he was marginal witness of tamleek mutation and had correctly thumb impressed the same---Defence witness also deposed that other marginal witness of mutation had also correctly thumb impressed the same and at the time of attestation of mutation in question, the owners were also present and had correctly signed the same---Plaintiff failed to establish her claim by way of producing cogent, confidence inspiring and conclusive evidence.

          2014 CLC 1659 Peshawar

Gift---Ingredients/essentials---Burden of proof Defendants being beneficiary of the tamleek mutation had to prove that property was legally transferred to them---Three ingredients namely offer, acceptance and delivery of possession were the litmus test to ascertain the validity of a tamleek or gift transaction---No evidence of delivery of possession was adduced---Mutation per se was not sufficient to prove the factum of gift unless actual transaction thereof was proved---Mutation was attested in Mauza other than the one where suit land was situated---Revenue Officer sanctioning the mutation had not been produced as witness to prove the genuineness of the transaction.

      2014 YLR 2053 Lahore

Gift/tamleek --Proof--- Ingredients--- Sanction of mutation---Procedure---Plaintiff assailed mutations of gift/tamleek s in favour of defendants on the basis of forgery and fraud---Trial Court decreed the suit in favour of the plaintiff and Lower Appellate Court dismissed the appeal of the defendants---Concurrent findings of facts---Validity---Every mutation entry was to be recorded in presence of the person whose right had been acquired and that if said person had been identified by two respectable persons; Signature/thumb impressions of identifying witnesses shall also be obtained by the revenue officer on register of mutation---If at the time of sanction of mutations, the parties had not appeared, that would shatter the entire case of defendants---To prove valid gift/ tamleek three ingredients viz. offer, acceptance and handing over of possession were sine qua non---Defendants in their written statements had not provided necessary details as to where and how the transactions of gift/tamleek had taken place; there was no detail about the offer of sale or payment of consideration nor was there any detail as to how donor had made an offer of gift to the donees/defendants and as to when donees had accepted that offer and how the physical possession was given to the donees---Defendants/beneficiaries failed to establish the transaction of sale and tamleek respectively---Beneficiaries had to prove the factum of tamleek in their favour especially in the circumstances where some of the legal heirs had been deprived from their lawful right of inheritance.

          PLD 2013 Lahore 498 

                      (J. Shujat Ali Khan)

Definition of “Tamleek” :  

Hon’able Court hold that the term tamleek has not been defined anywhere but according to the verdicts of Superior Courts the same is considered as one of the kind of gift and it is equated with the term ‘family settlement’.

According to BLD : ‘Family settlement’ means an agreement between members of a family settling the distribution of family property among them …… an arrangement / agreement between heirs of a deceased person by which they agree on distribution on management of estate without administration by court having jurisdiction of such administration proceedings.

Definition of “Gift/Hiba” : 

By D.F. Mulla :- (i)- Hiba/Gift means Transfer of property, made immediately, and without consideration, by one person to another , accepted by or on behalf of that other person.

(ii)- Hiba means transfer of right of property in substance by one person to another without consideration which is a condition to be fulfilled in order to make a gift valid.

According to BLD :-   A voluntary transfer of property to another made gratuitously and without consideration.

Meaning of Gift hold by Hon’able Court : A voluntary transfer of something to another, without any consideration, irrespective of the fact as to whether the donor or donee has any relation with each other or not. 

Distinction of Tamleek and Gift :

In gift the donor can transfer property to anyone else, but in tamleek the condition precedent is the the same should be amongst the family members/legal heirs only.

PLD 2013 Lahore 333

6"tamleek "---Meanings---"tamleek " would mean assignment of ownership---"tamleek " being a kind of gift in favour of expected legal heir.

2013 CLC 499 Lahore    

(J. Shujat Ali Khan)

To prove valid gift/tamleek three ingredients viz offer, acceptance and handing over of possession were sine qua non but according to revenue record neither name of defendants had been incorporated in the record as owner nor they were in possession of suit-land---

Process of attestation of mutation was completed at residence of Tehsildar (Revenue Officer) concerned which was violation of S.42 of West Pakistan Land Revenue Act, 1967---

Entries in Revenue Record in the shape of mutations were not conclusive proof of ownership until and unless transaction on the basis whereof the same were attested was fully established from evidence.

Limitation---Effect of Plea of fraud--- When mutation challenged in suit, otherwise proved to be result of fraud and forgery, question of limitation cannot be pressed into service to put use as a shield. Relied on 1987 SCMR 1543

2012 CLC 1651 Lahore

Gift/tamleek through mutation---Proof---Beneficiary of tamleek transaction would be bound to prove first event of tamleek prior to attestation of its mutation---Mere attestation of such mutation would not be sufficient.

     2010 CLC 837 Lahore

Gift, cancellation of---Courts below considering the factum that mutation of tamleek was sanctioned in favour of the defendant when he was a minor, dismissed the suit filed by the plaintiff---Courts below also gave due weightage to the statement of Halqa Patwari and concluded that he was an independent witness---After scrutinizing the entire evidence on record, it was concluded that defendant had successfully proved the factum of appearance of the plaintiff before the revenue hierarchy for attestation of mutation of tamleek ---Courts below had further observed that there was valid offer and acceptance; and as the tamleek was made in favour of minor son, there was no need for transfer of possession.