IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
 
 
 
 
 
PRESENT: 
MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
 
 
 
 
  
 
CIVIL APPEAL NO. 634-L OF 2012  
(Against 
the 
judgment 
dated 
25.04.2012 of the Islamabad High 
Court, Islamabad passed in RFA 
No.43/2011) 
 
 
 
 
Mrs. Khalida Azhar  
Appellant(s) 
VERSUS 
 
Viqar Rustam Bakhshi and others 
Respondent(s) 
 
 
 
For the Appellant(s) 
: In person a/w 
Dr. Azeem Azhar Raja, Adv HC (son) 
Dr. Aneeqa Azhar Raja, Adv HC 
(Daughter) 
 
 
 
For Respondents No. (1-12) 
: Ch. Khursheed Ahmed,  Sr. ASC 
(R-13)  
 
 
 
(R-14) 
: Mian Muhammad Hanif, ASC 
Ms. Amber Gillani, AC Dina 
M. Matloob, Patwari, 
 
Dates of Hearing 
: 17 & 18.01.2017 
 
  
JUDGMENT 
 
 
 MAQBOOL BAQAR, J. The appellant’s father namely, 
Rustam Ali Bakhshi who passed away on 20.02.1978 was, besides 
the appellant, survived by a widow, namely Mst. Sultana Rustam 
Bakhshi, who also passed away on 11.08.1988, one son namely, 
Viqar Rustam Bakhshi, the respondent No. 1, and two daughters, 
namely Mrs. Parveen Waheed, the respondent No. 2, and Mrs. 
Gulfreen Riaz, who too passed away in August 2005 and is now 
represented by her legal heirs, the respondents No. 3 to 7.   
 
 
 
 
 
 
2
2. 
 
The deceased Rustam Ali Bakhshi, according to the 
appellant left behind the following properties and assets: 
(i) 
Certain agricultural lands in villages, Garh 
Mahal, Raju Pindi, and Chak Almas, Tehsil Dina, 
District Jhelum (The agricultural lands). The 
agricultural lands were in fact jointly owned by 
the deceased along with his mother, two 
brothers and one sister; 
  
(ii) 
House 
No. 
3, 
Street 
No. 
98, 
F-7/1 
Islamabad, approximately measuring 4 canals, 
which was jointly owned by the deceased with 
his wife (The House No. 3); 
 
(iii) 
Distribution Agencies, for District Attock, for 
the products of Pakistan Tobacco company, and 
Liver 
Brothers 
Limited, 
respectively 
(The 
distribution agencies); 
 
(iv) 
Inventory/Stocks at shop No. B1/69/A-49, 
Main Civil Bazar, District Attock (The stock in 
business); 
 
(v) 
Plot No. 142 measuring 6000 square 
yards, Jinnah Abad Town Scheme, Abbottabad 
(the Abbottabad Plot); 
 
(vi) 
Various shares, Bonds, Units and Bank 
accounts (The other assets). 
 
 
3. 
 
The 
agricultural lands 
were, 
in 
the 
year 
1973, 
purportedly transferred by its owners, Rustam Ali Bakhshi, his 
brothers, one sister and their mother in favour of respondent No. 1, 
through gift mutations purportedly attested on various dates of 
May & November 1973. Whereas House No. 3 was, through a 
purported registered gift deed dated 29th October, 1980, (Exh. 
D/2), allegedly executed by the appellant, her mother Mst. Sultana 
Rustam Bakhshi, her two sisters Mrs. Parveen Waheed, the 
respondent No. 2, and late Gulfreen Riaz, the mother of 
respondents No. 3 to 7, transferred in favour of respondent No. 1. 
And according to respondent No. 1, upon the death of Rustam Ali 
Bakhshi the distribution agencies in his name were terminated, and 
 
 
 
 
 
3
the respective companies appointed some other persons as their 
agents instead. Whereas the stocks in business were sold by the 
widow of the deceased, who owned the shop, being shop No. 
B1/69/A-49, Main Civil Bazar, District Attock, where such stocks 
were lying. The Abbottabad plot was sold by respondent No. 1 as a 
purported attorney of late Mst. Sultana Rustam Bakhshi, and also of 
the appellant, the respondent No. 2, and late Mrs. Gulfreen Riaz, 
(collectively called the legal heirs of the deceased). Respondent 
No. 1 claims to have paid the sale proceeds of the Abbottabad 
plot to late Mst. Sultana Rustam Bakhshi, whereas the amount lying 
in the bank account of late Rustam Ali Bakhshi was, according to 
the respondent No. 1, withdrawn through a succession certificate 
issued by a competent court of law, with the consent of all the 
legal heirs of the deceased.  
 
4. 
 
It was in the year 2006 that the appellant through suit 
No. 139/2006 sought a declaration that the aforementioned 
properties and assets constitute the estate of her late father 
Rustam Ali Bakhshi, and that the property bearing House No. 10, 
Street No. 27, F-6/2, Islamabad (The House No. 10) has in fact been 
purchased by respondent No. 1, ostensibly in the name of his wife, 
Mrs. Azra Viqar Bakhshi, the respondent No. 8, from the funds 
generated by the former from the income of the properties and 
assets of late Rustam Ali Bakhshi. A further declaration was sought 
by the appellant that the aforesaid gift deed, as well as the gift 
mutations, whereby the agricultural lands were transferred in the 
favour of respondent No.1, are forged and fraudulent, and sought 
cancellation thereof. She also sought a decree for possession 
through partition of the aforementioned properties in accordance 
 
 
 
 
 
4
with her inheritance share therein. The suit was contested by the 
respondents. The learned Single Judge of the Islamabad High 
Court after recording evidence of the parties and hearing them, 
dismissed the suit. The appellant’s appeal against the said dismissal 
also was dismissed by a Division Bench of the Islamabad High 
Court, which judgment has been impugned by the appellant 
before us.  
 
5. 
 
We have heard the arguments of the learned counsel 
for both the parties and have perused the record of the case with 
their assistance. 
 
6. 
 
Admittedly House No. 3, was jointly owned by late 
Rustam Ali Bakhshi and his wife late Mst. Sultana Rustam Bakhshi. 
After the death of Rustam Ali Bakhshi on 20.02.1978, his 50% share in 
the said property devolved upon his widow, late Mst. Sultana 
Rustam Bakhshi, and his son, the respondent No. 1, and daughters, 
the appellant, respondent No. 2, and late Mrs. Gulfreen Riaz, the 
mother of respondents No. 3 to 7.  The said property, as noted 
above, was on the basis of a registered gift deed dated 29th 
October, 1980 (Exh. D/2), transferred in the name of respondent 
No. 1. It was through the 4th amended plaint filed on 27.02.2009 
that the appellant sought the said deed to be declared, forged 
and fraudulent, and prayed for its cancellation. She claimed that it 
was only on 07.09.2006, that she came to know about the alleged 
execution and existence of the purported gift deed, through a 
written statement filed by the respondents.  
 
7. 
 
Refuting the allegations, the respondents submitted 
that the property has in fact been gifted by the legal heirs of late 
 
 
 
 
 
5
Rustam Ali Bakhshi, including the appellant, to respondent No. 1, 
through registered gift deed dated 29th October, 1980 (Exh. D/2), 
and it is for such reason that the appellant has remained silent for a 
period of almost 26 years. Through the said gift deed late Mst. 
Sultana Rustam Bakhshi, in addition to her 1/8th share of inheritance 
from her husband in the said property, has also gifted away her 
entire original 50% share therein to respondent No. 1.  
 
8. 
 
Though the appellant produced nine (9) witnesses and 
examined herself as PW-11, but as would be seen from the 
forthcoming analysis of the relevant evidences could not bring 
anything on record to impeach the veracity of the gift deed 
and/or to create any doubt regarding the factum of gift as 
claimed by the respondents.  
 
9. 
 
On the other hand, the respondent No. 1, in order to 
prove the gift and the execution of the gift deed, produced Raja 
Zahid Hussain, the marginal witness of the deed, as DW-2, who was 
known to the family and was familiar with the executants/donors, 
he testified to the veracity of the gift deed. He remained steadfast 
during his cross examination. Chaudhry Muhammad Ali, the Sub-
Registrar, who registered the  gift deed appeared as DW-1 and 
stated that he had registered the gift deed which was signed by 
the donors in his presence, and that at the time of execution and 
registration of the document he had satisfied himself regarding the 
identity of the donors/executants.  
 
10. 
 
In her evidence, respondent No. 2, the eldest daughter 
of late Rustam Ali Bakhshi, verified the fact that she, along with her 
mother and two sisters, including the appellant, has signed the gift 
 
 
 
 
 
6
deed (Exh. D/2) on 29th October, 1980, and that they had also 
singed the power of attorney dated 12.12.1978 (Exh. D/3), without 
any pressure or persuasion by Defendant No. 1, or anyone else. She 
testified that the appellant signed the gift deed and also the 
power of attorney in her full view. Whereas the respondent No. 4, 
the second eldest child of late Mrs. Gulfreen Riaz, who passed 
away in the year 2005, appeared as DW-4, and recognized the 
signatures of her mother on the gift deed (Exh.  D/2), as well as on 
the power of attorney (Exh. D/3) as her true and genuine 
signatures. She deposed that she was familiar with her mother’s 
signatures as she has often seen her signing various documents like, 
bank cheques, and her school reports.  
 
11. 
 
The said property was, in the year 1991, with the 
approval of the Capital Development Authority, partitioned into 
two plots/properties being plot/House No. 3, which plot the 
respondent No. 1 gifted to his son the respondent No.9 in the year 
1997, and plot No. 3/A, which plot the respondent No. 1 gifted to 
his daughter, Amna Arshad, the respondent No. 10, who built a 
house therein, during the years 2000-2002, almost 22 years after the 
death of Rustam Ali Bakhshi.  
 
12. 
 
In her evidence, recorded on 09.04.2009, the appellant 
denied execution and/or signing of the purported gift deed, and 
claimed that she came to know of the document only last year. 
During her cross examination, she deposed that she had cordial 
relations with her sisters and mother and that her mother loved her 
very much. She stated that she along with her children used to visit 
her mother quite often where respondent No. 1 also resided. She 
claimed that she has achieved her master’s degree before her 
 
 
 
 
 
7
marriage, but has remained a house wife and has never served 
anywhere. She further stated that her husband who was serving in 
a company is jobless since last two years, and is doing some 
private engineering work, and that she does not know about her 
husband’s monthly earning. She stated that she owns House No. 
129 in Lahore, which she purchased after selling her jewellary, but 
said that she does not have any receipt regarding such sale. She 
expressed ignorance as to whether or not her sister, the defendant 
No. 2, ever challenged or raised objection about the gift 
transaction in question. She acknowledged that in her written 
statement, her sister, Parveen Waheed, the respondent No. 2, 
admitted the execution of the gift deed and so also the legal heirs 
of her other sister, late Gulfreen Riaz, the respondents No. 3 to 7, 
have admitted the execution of the gift deed by their mother Mrs. 
Gulfreen Riaz. The appellant also admitted that her mother also 
never challenged the gift transaction before any forum. She 
expressed ignorance as to whether her sisters executed the gift 
deed in favour of respondent No. 1. 
13. 
 
On the other hand, respondent No. 1 deposed that 
House No. 3, was gifted to him by his mother and three sisters, vide 
registered gift deed (Exh. D-2), which was signed by them as 
donors, and by himself as a donee, and that he intimated CDA 
about the gift deed, and the letter of change of ownership (Exh. 
DW-7/10) was accordingly issued by CDA on 16.02.1981. 
Respondent No. 1 further deposed that he had treated all his 
sisters, with great love and affection, more so the appellant as she 
was the youngest, and her relations with her husband were not 
good, who did not provide for her maintenance regularly, and he 
 
 
 
 
 
8
had to care for her. He claimed that during the years 1983-84 he 
paid a sum of Rupees Eight lacs to the appellant, and that he got 
her son and daughter admitted in Govt. College, Lahore and 
kinnaird College, Lahore respectively. He stated that during 
summer vacations the appellant, along with her children use to 
come to and stay with him at House No. 3 many times. He 
produced a letter dated 07.07.1981, whereby his mother informed 
the concerned Gift Tax Officer, that she and her three daughters 
have, on 29.10.1980, gifted their respective share in House No. 3 to 
respondent No. 1, and submitted a Gift Tax Return along with a 
copy of the gift deed, for assessing the gift tax thereon. He also 
produced a copy of an order (Exh. DW-7/12) whereby assessment 
was made in pursuance of Exh. DW-7/11. He stated that the tax so 
assessed was paid by his mother on behalf of all the donors, 
however since the tax was mistakenly assessed on the full value of 
the property and the share inherited by him (respondent No. 1) 
therein was not excluded, his mother through letter, being Exh. DW-
7/13, sought refund of the amount so paid in excess and thus a 
revised assessment was made through Exh. DW-7/14.  He claimed 
that his father had given a Toyota Corolla car and also some 
jewellary to the appellant towards her dowry, as per his financial 
status. Respondent No. 1 further deposed that he accepted the 
offer of the gift made by his mother and sisters, five/six weeks 
before the execution of the gift deed. During his cross examination 
the respondent No. 1 stated that the payment of Rs. 8 lacs to the 
appellant was made by him by carrying the amount from 
Islamabad to Lahore. He explained that initially he paid Rs. 6 lacs 
to the appellant during the years 1983-84, and paid the remaining 
amount of two lacs, about a year thereafter, and that he did not 
 
 
 
 
 
9
obtain any receipt of the payment from the appellant. He 
admitted not having mentioned the above payment in his written 
statement and stated that he has mentioned about the said 
payment in his reply to the applications filed by the appellant and 
also in his written reply filed in the year 2008. He denied the 
suggestion that he never paid the amount to the appellant.  
14. 
 
Ch. 
Ahmed 
Ali, 
Director 
(Administration), 
Chief 
Commissioner Office, Islamabad, produced by respondent No. 1 
deposed that in the year 1980 he was posted as Naib Tehsildar, ICT 
Islamabad, and was also performing the functions and duties of 
Sub-Registrar, and Revenue Officer, Islamabad. He claimed that 
the gift deed (Exh. D/2) was presented before him for registration in 
respect of House No. 3, by Mst. Sultana Rustam Bakhshi, her three 
daughters, Mrs. Parveen Waheed, Mrs. Gulfreen Riaz and Mrs. 
Khalida Azhar, the appellant. All of whom have through the said 
deed, gifted their respective shares in the said house to respondent 
No. 1. He stated that all the three pages of the document bears 
the 
signatures 
of 
the 
donors/executants 
and, 
that 
the 
endorsement on the document, also bears their signatures, and 
that he also singed the certification on the last page of the 
document, which page also contains the registration number and 
the date of the registration of the document. During his cross 
examination, the Officer stated that the donors/executants were 
identified to him by the witness Raja Zahid Hussain, Naib Tehsildar, 
who was personally known to him and had also signed the 
document as a witness, and further that he also checked the 
Identity Cards of the executants, but he did not remember as to 
whether the Identity Cards shown were in original or/were photo 
 
 
 
 
 
10
copies thereof, as it has been a long time. He further stated that as 
per his memory the document was firstly signed by Mst. Sultana 
Rustam Bakhshi. He denied the suggestion having ever served with 
defendant No. 1 in any department. 
15. 
 
Raja Zahid Hussain who was examined as DW/2, 
deposed that during the year 1980 he was posted as Naib 
Tehsildar, Rawalpindi. He claimed that he personally knew the 
appellant and respondent No. 2, as well as their mother Mst. 
Sultana Rustam Bakhshi, and late Gulfreen Riaz, the executants of 
Exh. D/2. He claimed that his father’s family and the family of late 
Rustam Ali Bakhshi, both lived in Attock, and had family 
relationship. He stated that he had identified the executants at the 
time of execution and registration of the document before the 
Sub-Registrar and that all the executants had signed each page of 
the document and also on its endorsement. During his cross 
examination, he stated that besides Exh. D/2, the executants had 
also appended their signatures in the relevant register. He stated 
that Exh. D/2 was presented before the Sub-Registrar at about 10-
11 A.M. He stated that none of the executants was handicapped 
and that only late Sultana Rustam Bakhshi had some problem with 
her leg which was persisting since before the execution of the gift 
deed. He further stated that late Sultana Rustam Bakhshi had 
come to the office of the Sub-Registrar in a car with respondent 
No. 1 and her three daughters had accompanied her.   
  
16. 
 
Mrs. Parveen Waheed, the respondent No. 2, in her 
deposition stated that it was, Exh. D/2, the gift deed, whereby she 
herself, her two sisters, namely, the appellant and late Gulfreen 
Riaz, and her mother late Sultana Rustam Bakhshi, gifted their 
 
 
 
 
 
11
respective shares in House No. 3, she acknowledged her signatures 
on the said deed and deposed that the other donors had also 
appended their signatures on the document in her presence. She 
stated that Raja Zahid, who identified the executants, is known to 
her. The witness also verified the execution of the general power of 
attorney (Exh. D/3) in the same manner. During her cross 
examination, she stated that for execution of the gift deed she had 
appeared in the office of the Registrar, which was on the ground 
floor, and that she had willingly gifted her share in the house to 
respondent No.1, he being her brother. She also stated that a car 
was given to the appellant towards her dowry, and that some 
reasonable jewellery was also given to her. She further stated that 
Exh. D/3 was executed in Rawalpindi, and not in Islamabad and 
that she accompanied respondent No. 1 to the District Court, 
Islamabad for the execution of Exh. D/2, and similarly they went to 
Rawalpindi for execution of Exh. D/3, and appeared before the 
Sub-Registrar in his office on the ground floor in Rawalpindi. She 
deposed that except Exhs. D/2 & D/3, she has not signed any 
document relating to the property of her late father and that she 
has not signed any power of attorney in favour of any advocate 
after the death of her father. During her further cross examination 
she twice narrated and reaffirmed in details the sequence and the 
manner in which the executants appended their signatures on the 
gift deed.  She further stated that she has not appeared in any 
Court for making any statement about the property of her late 
father after his death except for the execution of Exhs. D/2 & D/3 
and also did not instruct anyone to make any statement on her 
behalf. She stated that the general power of attorney was 
executed by her on 12.12.1978, She stated that she has not 
 
 
 
 
 
12
engaged any counsel in respect of present case. She denied a 
suggestion that she signed the documents Exhs. D/2 & D/3 at the 
instance of the respondent No. 1 or her wife, the respondent No. 8. 
She also denied that she executed the said two documents for an 
offer made by the said two respondents. She also stated that 
during their stay in Islamabad, the appellant, and late Gulfreen 
Riaz use to reside in the house of their mother and respondent No. 
1.  
 
17. 
 
Mrs. Seemi Arif, the respondent No. 4, who is a 
daughter of late Gulfreen Riaz, in her testimony stated that she can 
recognize the signatures of her mother as she often watched her 
signing different documents like cheques and her school reports. 
She saw Ehx. D/3 and recognized Ehx. DW-4/1-5 as the signatures 
of her mother therein. The witness said that it was through Exh. D/2 
that her mother gifted her share in House No. 3 to respondent No. 1 
and that Exh. D/3 is the document whereby her mother appointed 
the respondent No. 1 as her attorney. During her cross examination, 
she explained that her mother use to make her signature with 
normal frequency and with medium pressure on her pen. She 
stated that she is not aware as to whether her mother signed any 
document in relation to the property of her grandfather other than 
Exhs. D/2 & D/3. She denied having signed any document in 
relation to the present case other than the power of attorney that 
she has executed in favour of her husband.   
 
18. 
 
As regards the agricultural land the appellant in her 
evidence claimed that she came to know about the transfer of 
agricultural lands in favour of respondent No. 1 only during the 
pendency of the suit and has been deprived of her inheritance 
 
 
 
 
 
13
share in the said lands. During her cross examination, she expressed 
ignorance regarding the total area of the lands gifted to 
respondent No. 1 in the year 1997 in Garhmahl. She however 
stated that the area of the lands in the year 2001-02 was 508 kanals 
and 14 marlas but could not tell as to how much out of said 508 
kanals and 14 marlas was purchased by respondent No. 1 and 
how much was gifted to him. She admitted that the orchard on the 
land has been grown by respondent No. 1, but then said that it was 
grown by their father. She stated that respondent No. 1 was looking 
after the lands, though without any permission. She further stated 
that she has not filed any suit or application for mense profit or 
share of the produce in respect of the subject land. 
 
19. 
 
Mrs. Parveen Waheed, respondent No. 2 in her 
evidence deposed that she did not get any share in her ancestral 
property in District Jhelum as her father had gifted the same to 
respondent No. 1. She said that she was informed about the gift by 
her parents.  
 
20. 
 
Sheikh 
Asif 
Rasheed, 
the 
Special 
Attorney 
of 
respondents No. 3 to 7, deposed that late Rustam Ali Bakhshi 
during his life time mutated the land in favour of respondent No. 1. 
He claimed that he was informed about the above transfer by 
respondent No.4.  
 
21. 
 
The respondent No. 1 in his testimony deposed that his 
father, along with his two brothers, Anwar Ali Bakhshi and Ashraf Ali 
Bakhshi, sister Afzal Begum and mother Hashmat Bibi owned the 
agricultural lands. The said co-owners executed a general power 
 
 
 
 
 
14
of attorney in favour of his father for the purpose of transferring 
their shares in the lands in his (the respondent No. 1’s) favour. 
Whereafter, his father Rustam Ali Bakhshi transferred the lands 
jointly owned by the aforesaid in his favour. He also gave the 
details of the gift mutations and produced the relevant gift 
mutations as exhibited DW-7/1 to DW-7/5. He deposed that after 
the above transfer, he purchased some more land and the total 
area thus owned by him came to 512 kanals. He further deposed 
that at the time of transfer of the lands as above, the lands were 
scattered in small parcels in three different villages namely 
Garhmahl, Raju Pindi and Chak Almas, and he therefore sold such 
lands situated in villages Chak Almas and Raju Pindi and 
consolidated his holdings in village Garhmahl through exchange 
and sale purchase and thus became owner of a compact block 
instead. The above exercise, according to respondent No. 1, was 
commenced by him in the year 1974 and was completed during 
the life time of his father. He further deposed that all his sisters 
including the appellant and his mother use to visit his land in 
Garhmahal and that after the death of his mother the appellant 
along with her husband and children had visited his lands and 
stayed in his house there for about 3-4 days. He claimed that all his 
sisters knew about the transfer of ownership of the land in his favour 
by way of gift. During his cross examination the respondent No. 1 
stated that other than the above mutations there is no document 
pertaining to the transfer of possession of the land to him. He 
expressed his ignorance if the lambardar or the union council 
member had signed the gift mutations. He however stated that the 
lambardar had identified the parties. He also expressed his 
ignorance as to whether the gift mutations have been signed by 
 
 
 
 
 
15
any of the donors. He stated that he was unable to give the exact 
date when the donors made offer of gift to him and/or the date on 
which he accepted the same. He stated that he took over 
possession of the lands immediately after sanctioning of the 
mutation but could not give the date. He expressed his ignorance 
as to whether in the special powers of attorney being Exhs. P-51, 52. 
53, 54, 55, 56, 57 and 58 his name was mentioned as a proposed 
donee. He stated that Muhamad Afzal, who informed the revenue 
officials about the gift was Manager (Mukhtiar) of his father and 
other donors. He further stated that he does not remember having 
given any share of any produce from the orchard in the land to 
the appellant.  
 
22. 
 
From the foregoing, it can be seen that out of the 
various properties and assets held by the deceased the distribution 
agencies admittedly came to be terminated upon his demise. 
Whereas the inventory/stocks in trade were, as claimed by 
respondent No. 1, sold by Mst. Sultana Rustam Bakhshi, the widow 
of the deceased. Nothing was suggested on behalf of the 
appellant during the cross examination of respondent No. 1 to 
refute the respondent’s such claim. Neither has the appellant 
disclosed the source of her information that the stocks were sold by 
respondent No. 1and not by Mrs. Bakhshi, nor has she been able to 
say as to for what amount were the stocks sold or to give any other 
information pertaining to the alleged sale. The shop wherein the 
above inventory/stock in trade were kept was admittedly owned 
by Mrs. Sultana Rustam Bakhshi and according to the respondent 
No. 1 was sold by him on the instructions of Mrs. Bakhshi for an 
amount of Rs. 1,20,000/-(Rupees One Lac Twenty Thousand) which 
 
 
 
 
 
16
amount he paid to Mrs. Bakhshi. Nothing to refute the above was 
suggested on behalf of the appellant during the cross examination 
of respondent No. 1. As regards the sale of the Abbottabad Plot 
and the amounts withdrawn from the bank accounts of the 
deceased , and the sale proceeds of the shares, the respondent 
No. 1 has deposed that the plot was sold with the consent of all the 
legal heirs of late Mr. Bakhshi and on the basis of power of attorney 
(Exh. D/3) executed by them, and similarly the succession 
certificate was obtained and the amounts from the bank accounts 
were withdrawn and so also the shares were sold with the consent 
of the legal heirs, who were paid their respective shares therein. 
The respondent No. 1 claimed that in fact he paid to the appellant 
amounts which were far in excess of her share. None of the above 
claims were even attempted to be refuted during the cross 
examination of respondent No. 1. It can therefore be safely 
concluded that the appellant has failed to justify her claim and/or 
to prove her allegations with regard to the distribution agencies, 
stocks in trade, the Abbottabad Plot, the shop owned by Mst. 
Sultana Rustam Bakhshi and the bank accounts, shares etc. held 
by late Mr. Rustam Bakhshi at the time of his death.  
 
23. 
 
Whereas the appellant has denied having gifted her 
share in House No. 3 to the respondent No. 1. She claims to have 
come to know of the existence of the gift deed Exh. D/2 only 
through the written statement filed on behalf of the respondent 
No. 1 on 03.09.2006. House No. 3 was admittedly owned by the 
deceased and Mst. Sultana Rustam Bakhshi each having equal 
shares. The gift deed Exh. D/2 is a duly registered document. The 
same was executed and registered on 29th October, 1980, by all 
 
 
 
 
 
17
the legal heirs of the deceased, including his widow Mst. Sultana 
Rustam Bakhshi and the appellant. Admittedly Mst. Sultana Rustam 
Bakhshi lived more than 7 years after the execution and registration 
of the said document but neither she nor any other executant 
thereof including the appellant challenged the same in any 
manner throughout. Though the appellant has claimed that she 
has been asking for her share in the estate of the deceased from 
time to time however, neither has she been able to produce any 
evidence and/or witness in that regard nor has even stated as to 
when, in what manner, and in whose presence she made such 
demands. Since the document, as noted earlier, was executed 
and registered in the year 1980 much before the coming into 
force, of the Qanun-e-Shahadat Order, 1984, and was, in terms of 
Section 68 of the Evidence Act, 1872, then in force required to be 
proved by producing one marginal witness only, the respondent 
No. 1 thus produced Raja Zahid Hussain who has witnessed the 
execution and registration of the document and has signed the 
same as such, as DW-2. The said witness has verified such execution 
and registration with all the necessary details. He, as deposed by 
him, and also by the respondent No. 2, knew all the executants of 
the document personally, as his family and the family of he 
executants knew each other well from the days when both the 
families lived in Attock. The other witness produced by the 
respondent No. 1 to verify the execution and registration of the gift 
deed was Chaudhry Muhammad Ali, the Sub-Registrar who 
registered the gift deed. He verified the execution and registration 
of the document by all the executants before him, and that he has 
first satisfied himself regarding their identity. He also deposed that 
the donors/executants were identified to him by the witness Raja 
 
 
 
 
 
18
Zahid Hussain and further that he had also checked the identity 
cards of the executants. The cross examination of the above two 
witnesses conducted on behalf of the appellant, instead of 
causing 
any 
dent 
in 
their 
respective 
depositions, 
further  
strengthened the respondent No.1’s case by brining forth the 
graphic detail pertaining to the time, place, manner and 
sequence the document was executed before them.  
 
24. 
 
The gift deed, as noted earlier, has been executed by 
four (4) persons, one of whom, being the mother of the remaining 
donees, and the donors, as noted earlier, passed away in the year 
1988, about eight (8) years after the execution thereof. Another 
executant/donor, namely, Mrs. Gulfreen Riaz, the mother of the 
respondents No. 3-7 also passed away in the year 2005. The only 
surviving executant/donor other than the appellant, namely Mrs. 
Parveen Waheed, the respondent No. 2, who is the eldest 
daughter of the deceased, in her testimony verified having signed 
and executed the gift deed as well as the power of attorney 
dated 12.12.1978 (Exh. D/3), and that all the remaining executants 
thereof have signed the documents in her full view. As noted 
earlier also, she denied a suggestion that she signed the 
documents Exh. D/2 and D/3 at the instance of the respondent No. 
1 or her wife the respondent No. 8. She also denied that she 
executed the said two documents for some offer made to her by 
the said two respondents.  
 
25. 
 
Mrs. Seemi Arif, the respondent No.4 who is a daughter 
of late Gulfreen Riaz, explained as to how she recognized the 
signatures of her mother on the said two documents as being her 
real and true signatures. She deposed that it was through the gift 
 
 
 
 
 
19
deed Exh. D/2 that her mother Mrs. Gulfreen Riaz gifted her share in 
House No. 3 to the respondent No. 1, and that she also appointed 
the said respondent her attorney through Exh. D/3. The cross 
examination of the said two respondents, instead of being of any 
avail to the appellant, further strengthened and verified the 
respondents claim on the one hand, and further discredited the 
appellant’s claim with regard to House No. 3.  
26. 
 
The respondent No. 1 through his evidence re-affirmed 
and reiterated his case with regard to House. No. 3 fully well. He 
also deposed that it was during the year 1983-84 that he paid a 
sum of Rupees Eight lacs to the appellants which claim was re-
affirmed by him during his cross examination, when he stated that 
such payment was made by him by carrying the amount from 
Islamabad to Lahore and further that initially he paid Rupees Six 
lacs to the appellant during the year 1983-84 and paid the 
remaining Rupees Two lacs about a year thereafter. The 
respondent No. 1 also deposed that he accepted the offer of the 
gift made by his mother and sisters five weeks before the execution 
of the gift deed. He also produced a letter dated 07.07.1981 
whereby his mother informed the concerned gift Tax Officer that 
she herself and her three daughters, on 29.10.1980, gifted their 
respective shares in House No. 3 to the respondent No. 1 and, 
submitted gift tax return along with a copy of the gift deed for the 
assessment of the gift tax. He produced the assessment made in 
pursuance of the said letter as Exh. DW-7/12, along with another 
letter, Exh. DW-7/13, whereby his mother sought refund of the 
amount assessed and paid in excess, and produced DW-7/14 
whereby the assessment was accordingly revised, the authenticity 
 
 
 
 
 
20
and veracity of the above letter was not denied by the appellant 
in any manner.  
 
27. 
 
Undisputedly House No. 3, was, with the approval of 
Capital Development Authority, bifurcated/partitioned into two 
plots/properties, in the year 1991, one of which, that retained the 
original number, i.e. House No. 3, was in the year 1997 gifted by 
respondent No. 1 to his son, the respondent No. 9, and the other, 
bearing plot No. 3/A, was gifted by respondent No. 1 to his 
daughter, Amna Arshad, the respondent No. 10, who in the year 
2000-2002, built a house therein. However, there is absolutely no 
evidence that the appellant, despite being an educated lady, with 
a master’s degree, objected to the same, or sought her share in the 
property or for that matter in any of the assets left behind by the 
deceased.  
 
28. 
 
Among the executants of the gift deed and the 
general power of attorney it is only the appellant who has denied 
execution of the document, and that too after a lapse of more 
than 26. Although Mst. Sultana Rustam Bakhshi survived for about 
ten (10) years after execution of the power of attorney (Ehx. D/3), 
and eight (8) years after the execution of the gift deed neither Mst. 
Sultana Bakhshi nor any of the other executants challenged any of 
the two documents throughout. There appears to be no reason, 
and none was suggested for that matter, as to why the only 
surviving sister of the appellant, the respondent No. 2 and the 
daughter of the deceased sister, the respondent No. 4 would 
depose against the stance of the appellant by acknowledging the 
veracity and authenticity of the two documents more so when the 
appellant claim that she has/had cordial relation with her sisters.  
 
 
 
 
 
21
 
29. 
 
It may also be relevant to note here that though the 
appellant has denied having signed the aforesaid two documents 
and has termed them as forged and fictitious, and thus it would 
have been in her interest had the authenticity, or otherwise of the 
disputed signatures been verified by a hand writing expert, in fact 
she 
herself 
ought 
to 
have 
made 
a 
request 
for 
such 
test/comparison. However she resisted the order dated 26.05.2010 
passed by the Court for such comparison/ test through a revision 
before the Lahore High Court, and persisted in her opposition by 
filing a petition before this Court against dismissal of her revision, 
which petition was, by consent, disposed of with direction for early 
disposal of the case. This further lends credence to the claim of the 
respondents that the said two documents have in fact been 
signed and executed by the appellant also, as otherwise there 
seems no reason for her opposing the verification/comparison as 
ordered by the Court.   
 
30. 
 
In light of the above evidence there remains no doubt 
that House No. 3 was duly gifted by the widow and the three 
daughters of the deceased, including the appellant, to the 
respondent No. 1 and that the gift deed Exh. D/2 and the general 
power of attorney Exh. D/3 were duly executed and registered by 
the said donors. The appellant’s challenge to the veracity and 
authenticity of the said two documents and her claim for a share in  
House No. 3 is, therefore, not sustainable.  
 
31. 
 
In addition to the various properties and assets as listed 
in para 2 hereinabove, the appellant also claimed her inheritance 
share in House No. 10. She claimed that respondent No. 8, the wife 
 
 
 
 
 
22
of respondent No. 1 is only an ostensible owner of the property, 
which has in fact been purchased by respondent No. 1, from the 
funds generated by the latter out of the income of the properties 
left behind by the deceased. However, she has not been able to 
produce any evidence to substantiate her claim in that regard. 
 
32. 
 
Reverting back to the dispute regarding the agricultural 
land, though it is true, that like in respect of other properties and 
assets of the deceased, neither the appellant claimed any share 
therein over a long period of more than 28 years after the death of 
her father and till filing of the suit nor did she seek any share even in 
the produce thereof. She also did not object to the gift mutation 
attested in favour of the respondent No. 1 way back in the year 
1978, although after having acquired the land respondent No. 1, 
proceeded to consolidate the same by way of sale, purchase and 
exchange and also enlarged his such land holdings by purchasing 
the land adjacent thereto and also developed an orchard and 
constructed a house therein, and it is also true that the respondent 
No. 2 who is the only surviving legal heir of the deceased in her 
deposition endorsed the respondent No. 1’s claim of having 
acquired the agricultural land by way of gift.  However, the said 
respondent was still required to prove a valid gift of the land by his 
father, grand mother, uncles and aunt in his favour to the exclusion 
of the other legal heirs of the deceased, it was absolutely 
necessary for the respondent No. 1 to have proved all the essential 
ingredients of the gift independent of the gift mutations, Exh. DW-
7/1 to DW-7/5.  He was essentially required to prove that the 
donees have offered to gift the subject land to him and that he 
accepted the said offer and that the possession of the lands was 
 
 
 
 
 
23
delivered to him. He was also required to specify the date, time 
and place the offer was made and accepted by him, and also as 
to when the possession was delivered to him. However, neither has 
the respondent No. 1 divulged such details nor has he produced 
any person who witnessed the happening of any of the above. 
Although proving and verifying the authenticity of the gift mutation 
and its attestation, would not have been sufficient, without proving 
the transaction embodied therein, as noted above, however, the 
respondent No. 1 has failed even to prove the authenticity and 
veracity of the mutations and its attestation, as none who allegedly 
witnessed the attestation of the mutations been produced, neither 
the revenue officer nor the Lumbardars or the other witnesses 
whose names find mention in the attestation, or any of them who 
participated in the relevant jalsa-e-aam/assembly been produced 
by respondent No. 1, although there could have been a possibility 
that with the passage of long period of time, none of the above 
person may have survived,  or may not have been traceable, but 
such also has not been claimed by respondent No. 1. He has also 
not been able to say positively as to whether the signature of the 
person who witnessed the gift attestations, were obtained by the 
revenue office in the register of mutation as required in terms of 
sub-section (7) of Section 42 of the West Pakistan Land Revenue 
Act, 1967. The respondent No. 1 thus having failed to prove the 
essential elements of gift in his favour, and having also failed to 
prove the authenticity and veracity of the relevant attestation, no 
valid gift of the subject land can be presumed in his favour, the 
respondent No. 1 is, therefore, liable to share the land with the 
appellant to the extent the appellant is entitled to inherit in 
accordance with Sharia, and also to pay to her the amount of 
 
 
 
 
 
24
mense profit in respect of her such share in the land at the rate of 
Rupees eight thousands(Rs.8000/-) per acre, per annum, from the 
date commencing three years before the date of filing the suit by 
the appellant, and till the date the possession of the land to the 
extent of her share is delivered to her after proper partition and 
demarcation by the revenue authorities, which entire exercise shall 
be concluded within two months from the date hereof. In addition 
to the amount of mense profit the respondent No. 1 shall also pay 
to the appellant the amount of markup accrued thereon at the 
bank rate on year to year basis and till the time the entire amount 
is paid.   
 
33. 
 
The appeal stands disposed of in the foregoing terms.  
  
 
 
 
 
CHIEF JUSTICE 
 
 
 
JUDGE 
 
 
JUDGE 
 
 
 
ANNOUNCED IN OPEN COURT ON________________ 
AT ISLAMABAD 
 
 
 
 
 
 
 
 
 
JUDGE  
 
 
“APPROVED FOR REPORTING” 
Rizwan 
 
  
 
