MUHAMMAD ISMAIL vs MUHAMMAD AHMED Ss — 2024 CLC 468 KARACHI-HIGH-COURT-SINDH

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MUHAMMAD ISMAIL VS MUHAMMAD AHMED Ss. 42 & 54---Succession act (XXXIX of 1925), S.278---Oral gift---Proof---Suit for declaration, partition, administration and permanent injunction---Plaintiffs claimed that defendant No. 1 being owner of suit property gifted the same orally in favour of his mother, who accepted the same, however gift could not be mutated in record, being maintained by the Karachi Development authority (KDa), because she was simple, old and sick lady---Later, donee died leaving behind plaintiffs and private defendants as surviving legal heirs entitled to inherit the property as per Muslim Hanfi Law---Plaintiffs asked defendant No. 1 to settle share but he refused---Defendants contested the suit and alleged that donee did not accept the gift as such plaintiffs were not entitled to get any share from the suit property---Validity---Defendant No. 1/donor in his affidavit in evidence admitted that the gift deed duly signed by him, was handed over to his late mother as token of love and gratitude in 1989 which she had refused to accept---From said admission, it remained no more disputed that there was a valid, legal and bona fide offer by the donor/defendant No.1 to which the donor at no material time claimed to be under any duress, coercion or result of fraud, therefore, it could safely be concluded that there was a valid declaration of gift by the donor/defendant No. 1---admittedly the status and relation of the donor and donee was that of son and mother and at relevant time both were residing in the subject property---In such eventuality, requirement of delivery of possession stood completed only by mere assertions and recital thereof in that regard---Normally, the onus probandi was upon the beneficiary/donee but where the donor admitted bona fide offer but denied acceptance thereof by the donee then position changed because in such eventuality the donor would be beneficiary of proving refusal/denial of offer---Evidently, donee had active knowledge and notice of gift and preparation of such gift deed hence the act of the donee receiving the gift deed and keeping it (original) with her gave rise to nothing but a conclusion that donee had not refused, as claimed by the defendant No. 1/donor---Had donee refused to accept the gift then she would not have received the gift deed nor would have kept the same with her---Further, it was a matter of record that the defendant No. 1/donor at no material times attempted to get the same back or to revoke it either by way of any notice or gesture even though donor was in active knowledge of the fact that he had, to his extent at least, made a bona fide gift---Donor was an educated person hence his subsequent acts/omissions and intentional silence in letting the document stay alive least to his extent might well be taken into account in drawing an inference against the stand of the donor---Gift deed was on a stamp paper dated 5th September 1989 while thumb mark of the donee was claimed by plaintiffs to be marked on 15.11.1995 but in continuation of oral gift hence, mere delayed thumb mark would not bring any effect upon the validity of acceptance which otherwise appeared to have been accepted from all facts, circumstances and even conduct of the parties---Suit of plaintiff was decreed accordingly.

MUHAMMAD ISMAIL vs MUHAMMAD AHMED Ss — 2024 CLC 468 KARACHI-HIGH-COURT-SINDH

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