Mst. SHAHIDA PARVEEN vs SAEED AHMED Ss — 2023 CLC 838 ISLAMABAD

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Mst. SHAHIDA PARVEEN VS SAEED AHMED Ss. 12, 39, 42 & 54---Suit for specific performance of agreement to sell, cancellation of document, declaration and injunction---Gift from husband to wife---Proof---Transfer of possession---There were three claims over suit plot, one by wife of the owner who alleged it to be gifted to her, second claim was of the husband who denied the gift, whereas the third claim was that of the buyer who claimed to have it purchased from husband---Trial Court consolidated all three suits and passed judgment and decree in favour of buyer, and remaining two suits were dismissed--- Lower Appellate Court maintained judgment and decree passed by Trial Court in favour of buyer---Validity---In relations between husband and wife or parent and child etc., requirement of delivery of possession could be dispensed with and delivery could be presumed if certain other factors existed such as registered gift deed (though not strictly required in case of gift from Muhammadan husband to wife or vice versa, however it still was a relevant factor); attestation of mutation; proof of gift through scribe and two marginal witnesses; and/or where facts otherwise showed that donor divested his possession of gifted property for example receipt of rent from tenants by the donee---Neither there was any registered deed or mutation in the name of wife nor scribe of subject gift deed was produced in the present case---Witness produced by wife did not depose as to factum of delivery of possession whereas second witness was not produced for cross-examination---Record produced by stamp vendor did not establish date of execution of subject gift deed---Suit plot was non-transferable on the date of purported execution of subject gift deed---Delivery of possession was not dispensed and all such factors were absent---Wife failed to point out that judgments and decrees were contrary to law or usage having the force of law or any material issue was not determined or there was any substantial error or defect in the proceedings---There were minor discrepancies regarding earnest money which were inconsequential in view of the admission of receipt of earnest money by husband in the written statement filed by him in suit for specific performance filed by the buyer against husband---There was no need to produce stamp vendor as execution of subject sale agreement was not denied by husband---High Court declined to interfere in judgments and decrees passed by two Courts below---Second appeal was dismissed, in circumstances.

Mst. SHAHIDA PARVEEN vs SAEED AHMED Ss — 2023 CLC 838 ISLAMABAD

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