BABAR ANWAR vs MUHAMMAD ASHRAF Gift — 2024 SCMR 734 SUPREME-COURT

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BABAR ANWAR VS MUHAMMAD ASHRAF Gift---Pre-requisites----Doner should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making a gift, and he must be of age and also the owner of the property intended to be gifted; the thing gifted should be in existence at the time of making hiba; the thing gifted should be such that benefitting from it is lawful under the Shariah; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come into the possession of the donee himself or through his representative/guardian for an effective hiba---Under Muslim law, the constituents and components of a valid gift are tender, acceptance and possession of property---It is also obligatory that the donor divest and dissociate himself from the dominion and ownership over the property of the gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with the delivery of possession of the property and ensure that donee has secured physical ascendency over the property to constitute the delivery of possession. Citation Name: 2024 SCMR 734 SUPREME-COURTBookmark this Case BABAR ANWAR VS MUHAMMAD ASHRAF Ss. 39 & 42---Gift deed, cancellation of---Suit for declaration and cancellation of registered gift deed---Property in question was originally owned by the plaintiff's (respondent's) father, who gifted it to the respondent vide a gift deed and also handed over its possession---Thereafter, plaintiff raised construction on the land and also executed a power of attorney in the name of his father for administration and supervision of the property, but the father (attorney) gifted the property in question to the petitioner (defendant) vide another gift deed---Plaintiff filed a suit for declaration and cancellation of the registered gift deed in favour of petitioner with the plea that his father (attorney) due to his old age and cardiac issues, was not in a proper frame of mind, therefore, the gift deed in favour of petitioner was the result of connivance and disingenuousness---Validity---Property in question was gifted to the petitioner through the general attorney of plaintiff---Neither is anything reflected from the record that the general attorney obtained permission or consent from his principal for transferring the property in question by means of gift to the petitioner, nor was it ever pleaded that the earlier gift in favour of plaintiff was revoked for any reason---All the more so, the petitioner pleaded in his defense that he purchased the property in question against valuable consideration, but at the same time, he was also claiming the property as a lawful donee---Both pleas are mutually destructive if considered in juxtaposition---If it was a case of gift, then the plea of sale was misleading and erroneous, and if the property was purchased against valuable consideration, then there was no logical reason for the execution of a gift deed rather than a conveyance deed to unveil a straightforward sale transaction---As far as the proof of possession of plaintiff is concerned, it clearly transpires from the documents exhibited in the Trial Court that though the petitioner's special attorney averred that at the time of transfer of property, possession was also delivered, but subsequently, it was snatched by the plaintiff, which assertion was belied and in support of thereof, the plaintiff produced copies of Form P.T.I, and a bunch of electricity and gas bills to corroborate and substantiate the factum of possession---Petitioner filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 against the plaintiff and his special attorney, but the Trial Court acquitted them, which was upheld by the High Court---One more important aspect that cannot be lost sight of is that plaintiff has two sons and four daughters, and seemingly, there was no rhyme or reason on record to divulge why the plaintiff deprived his own offspring, and conveyed his attorney to gift the property to the petitioner---An attorney or agent may gift the property on express permission and instructions of his principal, however in the present case nothing was presented on record through cogent evidence that the attorney ever asked for the permission or consent of his principal to gift the property in question to the petitioner; therefore, such a gift was not validated by the courts below in three concurrent judgments---Suit filed by the plaintiff had been rightly decreed---Petition was dismissed and leave was refused.

BABAR ANWAR vs MUHAMMAD ASHRAF Gift — 2024 SCMR 734 SUPREME-COURT

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