Mst. BIBI FATHUL BARI vs UBAID UR RAHMAN S — 2026 CLC 176 PESHAWAR-HIGH-COURT

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Mst. BIBI FATHUL BARI VS UBAID UR RAHMAN S.42---Qanun-e-Shahdat (10 of 1984), Arts. 79 & 117---Civil Procedure Code (V of 1908), S.115---Inheritance dispute---Gift, essential ingredients of---Female legal heir claiming her Shari share in properties of her late father by filing suit for declaration---Brothers relying on a purported gift deed---Gift deed, execution of---Burden of proof---Scope---Burden is upon the brothers who rely upon the gift deed to the detriment of the sisters to prove the validity and authenticity of the gift deed---Petitioner filed a civil suit seeking declaration of ownership and her Shari share in certain properties inherited from her late father---She claimed that after her father's death, his three sons and three daughters, including the petitioner, became legal heirs---Some of the legal heirs allegedly sold portions of the inherited property through disputed transactions to third parties---The Trial Court decreed the suit in her favour but in appeal the district court set aside that judgment and dismissed the suit, leading to the present revision petitions before the High Court---It was clear from the perusal of alleged tamleek that it contained three thumb impressions but this document did not identify the individuals to whom such thumb impressions belonged to---Moreover, original document of tamleek was not produced before the court during evidence and nor was it mentioned in the pleadings that original tamleek was missing---Therefore, tamleek in favor of respondents/defendants was suspicious and unreliable---In the present case, the gift deed was not proved in view of the requirements of Qanun-e-Shahdat, 1984 and the respondents/defendants had not discharged the burden---Respondents/brothers were not able to establish the essential ingredients of gift/tamleek i.e. offer, acceptance and delivery of possession which was fatal to their case---Moreover, the question of limitation was raised by the respondents, therefore, the burden was upon them to prove that the suit was time-barred---However, there was no evidence on record from the side of the respondents/defendants to establish that the petitioner ever acquiesced to or waived her right in favour of her brothers or that she admitted the alleged gift in their favour to be valid---In this regard, they had failed to point out any specific occasion or event from which the limitation period for the accrual of her cause of action would commence while the petitioner/plaintiff had clearly asserted that her right has recently been denied by the respondents brothers---Impugned judgment and decree passed by appellate court was set aside and that of Trial Court was restored---Both connected appeals were allowed, in circumstances. Female heirs being deprived of or made to surrender/relinquish their inheritance shares by male members---Protection of woman's inheritance rights by courts---Legal safeguards---Extra vigilance must be exercised in cases where purported gifts are made to deprive daughters and widows from what would have constituted their share in the inheritance of an estate---Purported gifts and other instruments used to deprive female family members including daughters and widows are contrary to law and public policy---Often male members of the family deprive entitled female members of their inheritance and, in doing so, law is being violated---When vulnerable women are at such times compelled to relinquish their inheritance in favor of their male members, such relinquishment offends public policy and is contrary to Shariah. S.115---Revisional jurisdiction of the High Court---Scope---In a case where findings of the courts below are divergent the revisional court can reappraise evidence on record and for just decision of the matter may apply its own judicial mind. S.11---Res judicata---Lis not being decided on merit---Effect---Where a dispute between the parties has been decided without proper adjudication and evidence, the essential conditions required to establish the plea of res judicata do not exist.

Mst. BIBI FATHUL BARI vs UBAID UR RAHMAN S — 2026 CLC 176 PESHAWAR-HIGH-COURT

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