' This judgment shall dispose of this civil revision as well as Civil Revisions Nos.1636 and 1637 of 1992 as all the three have arisen out of the same consolidated judgment and decree dated 3-6-1992 of the Additional District Judge, Kasur, and parties are also the same.
2. This civil revision impugns the judgment and decree dated 3-6-1992, passed by Additional District Judge, Kasur, through which appeals, filed by the petitioner against the judgment and decree, dated 29-6-1989 decreeing the suit instituted on 17-4-1967 by respondent Bashir. Ahmad, Mst. Zainab Bibi and Mst. Maqbool Begum, were dismissed.
3. Brief facts of the case are that house bearing Property No,72-4-R-IV, situated in Kasur City, the boundaries of which have been mentioned in the plaint, was inherited by Haji Muhammad, predecessorin-interest of respondents Nos.1 to 3 after the death of their real mother Mst. Suban along with Atta Muhammad i,e, husband of Mst. Suban and Mst. Fateh Bibi. Dr. Sadiq Hussain, petitioner, claiming himself to be the absolute owner of the suit house on the basis of sale-deed alleged to have been executed by Haji Muhammad, filed a suit for recovery of rent against Haji Muhammad on 30-2-1967. The said suit was resisted on the ground that the house in question was never sold by Haji Muhammad to Dr. Sadiq Hussain and ultimately the same was dismissed.
Thereafter, Dr. Sadiq Hussain brought an ejectment petition claiming the relationship of landlord and tenant between him and Haji Muhammad. The same was withdrawn. Thereafter three suits were brought by the parties. One Civil Suit No,402/1 was titled as Haji Muhammad v. Dr. Sadiq Hussain for declaration and permanent injunction claiming that he inherited the property through a Will dated 16-2-1944, executed in favour of Mst. Suban and the sale-deed, dated 29-10-1964 was illegal and therefore, be declared as null and void qua his rights, as the same was executed under undue benefit of his fudiciary relations with petitioner as he was a chronic patient who used to get injections of Morphia from the petitioner Dr. Sadiq Hussain and the sale-deed was without consideration. Second suit bearing No,401/1 of 1987 tilted as Dr. Sadiq Hussain v. Bashir Ahmad and others, was for possession on the basis of sale-deed dated 29-10-1964, allegedly executed by Haji Muhammad in favour of Dr. Sadiq Hussain, petitioner, whereas the third suit bearing No,403/1 of 1987 was filed by Bashir Ahmad and others titled as "Bashir Ahmad etc. v. Dr. Sadiq Hussain" seeking declaration and permanent injunction on the ground that the property was owned by Muhammad Abdullah who had died and thereafter on the basis of inheritance they became owners of the disputed house along with respondents Nos.1 to 3 jointly and that Haji Muhammad had never acquired any right of exclusive ownership in respect of said house on the basis of sale-deed dated 24-6-1963 and subsequently, the sale-deed executed by Haji Muhammad in favour of Dr. Sadiq Hussain, petitioner, dated 29-10-1964 was illegal.
4. All the three suits were resisted by the respective defendants by filing respective written statements. The suits were consolidated and consolidated issues were framed. The parties led their evidence. The learned trial Court found that will in favour of Mst. Suban being more than 1/3 share could have not been taken effect except the permission of the other heirs. It was further observed that the plaintiffs along with the respondents became owner of the suit property on the basis of inheritance along with Atta Muhammad and Mst. Fateh Bibi. Regarding sale-deed dated 24-6- 1963, allegedly executed by Bashir Ahmad and others, in favour of Haji Muhammad under issue No,2 it was found that, "--- the original sale-deed is not with the defendant No,1. The execution of the same is denied by the alleged executant. The loss of document is not properly proved. Even the attesting witness to this document are not examined. This all indicates doubtful character and planning of defendant No,1 towards the execution of sale-deed dated 29-10-1964. In this way one Haji Muhammad never became the sole owner of suit property". On issue No,3, the learned Civil Judge observed, that, "the statement and character of defendant No,1 and admission by his counsel and P.W.III establishes that Haji Muhammad was his patient, he used to inject Morphia and this all caused his mental ailment". He proceeded to conclude that the sale-deed was executed under undue influence of intoxication and fudiciary relationship, and the same was without consideration. Consequently, the suits for declaration titled as Mst. Maqbool Begum and others v.
Dr. Sadiq Hussain and Bashir Ahmad and others v. Dr. Sadiq Hussain both were decreed in favour of the plaintiffs against the defendant, the present petitioner, whereas the suit of Dr. Sadiq Hussain petitioner, filed against the respondents for possession was dismissed through a consolidated judgment and decree, dated 29-6-1989. The learned Additional District Judge affirmed the findings of the trial Court on all the above-stated issues and therefore, he proceeded to dismiss all the three appeals of the petitioner.
5. The learned counsel for the petitioner contends that both the Courts below fell in error to record a finding that Haji Muhammad was insane and chronic patient of diseases like duodenum ulcer and tuberculosis; the Courts below have mainly relied on the documents Exh.P.3 to P.6 which were not of relevant period when Haji Muhammad remained under the treatment of petitioner Dr. Sadiq Hussain. He argued that the finding on issue No,3 that the sale-deed dated 29-10-1964 was without consideration and under the influence of fudiciary 'relationship and thus, void is result of misreading and non-reading of evidence on the record. Adds that the sale-deed dated 29-10-1964 carries the presumption of truth as it bears the certificate of Sub-Registrar and under section 60 of the Registration Act presumption of correctness is attached about the facts mentioned in the sale- deed, therefore, the transfer of 17/24 share on the basis of sale-deed dated 24-6-1963 on behalf of Bashir Ahmad and others stands proved. Reliance is placed on the cases reported as Administrator-General Punjab v. M. Stanley Charles William Rose PLD 1986 Lah. 33 and Bilawal and another v. Abdul Razzak 1987 CLC 1092. Further contends that the title of the petitioner is proved on the record, therefore, he is entitled for a decree of possession of the suit house under section 8 of the Specific Relief Act. Finally, it has been argued that both the Courts below illegally held that there were other co-owners of the property therefore, Bashir Ahmad and others were not competent to sell 17/24 share in the suit house through the impugned sale-deed dated 24-6-1963 in favour of Haji Muhammad.
6. On the other hand, the learned counsel for the respondents contends that Haji Muhammad was not the sole owner of the house in dispute; the house was originally owned by Muhammad Abdullah; on his death the same was inherited by Mst. Suban, Haji Muhammad, Bashir Ahmad, Mst.
Maqbool Begum, Mst. Zainab Bibi, maternal-grandsons and granddaughters of deceased Muhammad Abdullah, to the extent of their shares in the house according to Shariah; Haji Muhammad had not purchased the shares of all the co-owners through the registered sale-deed dated 24-6-1963; sale-deed dated 29-10-1964 in favour of Dr. Sadiq Hussain was without consideration, under the influence of intoxication and fudiciary relationship and thus, void as per mandate of Article 127 of the Qanun-e-Shahadat, 1984, which says that where a party is in relation of active confidence, proof of good faith of the transaction is on the party who is in position of active confidence. He contends that the Will-deed dated 16-2-1944 executed in favour of Mst.
Suban was void. Adds that Bashir Ahmad, Mst. Zainab Bibi and Mst. Maqbool Bibi were not competent to sell 17/24 share in favour of Haji Muhammad in presence of other co-sharers through sale-deed dated 24-6-1963; the original sale-deed was not produced by the petitioner; sale-deed dated 24-6-1963 was not proved on the record under the law. He contends that concurrent findings of facts recorded by the competent Courts of jurisdiction on the basis of evidence cannot be interfered with by this Court in exercise of revisional jurisdiction under section 115, C.P.C. Reliance is placed on the cases reported as Hubert P. James v. Ghulam Hussein Pakseema AIR 1949 PC 151, Abdul Hakim v. Habibullah and others 1997 SCMR 1139 and Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88.
7. I have heard the learned counsel for the parties and perused the record with their assistance.
The first question for determination before the Court was whether the respondents Bashir Ahmad, Mst. Zainab Bibi and Mst. Maqbool Begum, Haji Muhammad and Mst. Suban inherited the property in dispute and the Will dated 16-2-1944 Exh.D.W.5/1 in favour of Mst. Suban is a valid document.
Bashir Ahmad appeared as D.W.5 and stated that his grandfather Abdullah bequeathed the property by way of Will dated 16-2-1944 in favour of his mother Mst. Suban. Mst. Suban died on 3- 10-1949. She left behind two daughters, namely, Mst. Maqbool Begum and Mst. Zainab Bibi, two sons namely Bashir Ahmad and Haji Muhammad, husband of Mst. Suban namely Atta Muhammad, and Mst. Fateh Bibi, mother of Mst. Suban were alive. In this view of the matter, all the above stated legal heirs were owners of the suit property. It is settled that as per mandate of section 118 of the Muhammadan Law a Mohammadan cannot by Will dispose more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator. This being so, both the Courts below rightly held that Mst. Zainab Bibi, Bashir Ahmad and Mst. Maqbool Begum could not have inherited 17/24 share of the property and therefore, transfer of 17/24 share on the basis of sale-deed, dated 24-6-1963 was not valid.
8. Now the question arises whether Haji Muhammad became exclusive owner of the property in dispute on the basis of sale-deed dated 24-6-1963 alleged to have been executed by Bashir Ahmad, Mst. Zainab Bibi and Mst. Maqbool Begum. The execution of the sale-deed has been denied by the executant. To discharge the onus, Dr. Sadiq Hussain appeared as his own witness and produced copy of the said registered sale-deed Exh.D.C. The original was not produced. No witness was examined to prove this document. The contents of the documents may be proved either by primary or by secondary evidence. For the purposes of primary evidence the original document itself has to be produced for inspection of the Court (See sections 61 and 62 of the Evidence Act, 1872).' Secondary evidence' has been defined in section 63 of the Act (ibid). Now, except in cases in which secondary evidence relating to the documents as per section 65 may be given, documents must be proved by primary evidence as required under section 64 of the Evidence Act. The petitioner failed to prove that his case for producing secondary evidence (production of attested copy of the sale-deed) falls under section 65 of the Act. The sale-deed, dated 24-6-1963 could have trot been produced and exhibited. Both the sale-deeds dated 24-6-1963 and 29-10-1964 were required to be proved as per section 67 of the Evidence Act, and Article 79 of the Qanun-e- Shahadat Order, 1984 was not applicable because the Qanun-e-Shahadat Order was promulgated on 26th of October, 1984. Under section 67 of the Evidence Act, there are following modes of proving a document:-
(i) By calling the person who signed or wrote the document;
(ii) By calling a person in whose presence the document was signed or written;
(iii) By calling a Handwriting Expert;
(iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
(v) By comparing in Court the disputed signature or writing with some admitted signature or writing;
(vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it;
(vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person.
9. On the touchstone of the above stated section of the Evidence Act, the petitioner was not able to prove the sale-deeds dated 24-6-1963 and 29-10-1964, because neither the scribe nor the marginal witness as required under section 68 of the Evidence Act was produced. This being so, both the Courts below rightly held that the documents were not proved and through sale-deed dated 24-6-1963 share of 17/24 could have not been transferred by Bashir Ahmad, Mst. Zainab Bibi and Mst. Maqbool Begum in favour of Haji Muhammad.
10. Admittedly, the documents Exh.P.1 to Exh.P.3 were not for the relevant period of the year 1964 when the disputed sale-deed was executed by Haji Muhammad in favour of petitioner Dr. Sadiq Hussain. The learned counsel for the respondents has rightly argued that these documents have not laid down the foundation to non-suit the petitioner but the relationship of Haji Muhammad as patient; who was suffering from a disease and remained under the treatment of the petitioner Dr. Sadiq Hussain, is admitted between the parties. Under section 111 of the Evidence Act when there is a question as to good faith of a transaction between the parties one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Therefore, in this case burden of good faith was to be discharged by the petitioner and it was also to be proved that the sale-deed dated 29-10-1964, allegedly executed by Haji Muhammad in favour of the petitioner, was with consideration. In the sale-deed dated 29-10-1964 it has been mentioned that the whole amount of Rs,7,000 as consideration had already been received. Nothing was paid at the time of execution of the sale- deed before the Sub-Registrar. The case of the petitioner was that he paid the amount on 98-1964 at the time of execution of the agreement to sell between the parties. Agreement to sell dated 9-8- 1964 was executed in presence of Rafique Ashraf son of Muhammad Ismail and Niaz Ahmad Qureshi son of Mian Muhammad. Neither the scribe nor the witnesses were produced. Learned counsel for the petitioner argued that as per subsection (2) of section 60 of the Registration Act, 1908, certificate signed, sealed and dated by the Registering Officer is admissible for the purposes of proving that the document has been duly registered in manner provided by this Act and that the facts mentioned in the endorsements referred to in section 59, have occurred as therein mentioned. This argument is not sustainable. Endorsement made by the Registrar did not prove that the documents were executed by the vendor in favour of the vendee and the price consideration was paid to the vendor. Only the presumption of correctness was attached to such a document. In the case reported as Administrator-General Punjab v. M. Stanley Charles William Rose PLD 1986 Lah. 333, relied upon by the learned counsel for the petitioner, while interpreting sections 59 and 60 of the Registration Act it was held that, "unless presumption is rebutted fact that attorney had acted under a proper power-of-attorney has to be presumed". In another case reported as Bilawal and another v. Abdul Razzak 1987 CLC 1092 it was held that, "where execution of sale-deed, duly registered under law was proved by vendor and one of its attesting witness, presumption of genuineness would attach to such document". Both these authorities are not applicable to the facts and circumstances of the present case, because presumption of truth to the Sub-Registrar's endorsement of the sale-deed about payment of sale price stands rebutted when payment of sale price has no support of any evidence in writing. In the case reported in 1991 CLC Note 74 p.59, this Court ruled that in case of dispute on execution of a document, its registration was neither decisive on the identity of executant nor precluded enquiry by Court on that point but fact in issue had got to be proved like any other fact in dispute. In case reported as Qazi S.Altaf Hussain and another v. Ishfaq Hussain 1986 SCMR 1427 where the sale-deed reciting that vendor had received sale price at home and that nothing was to be paid to vendor at time of registration, Registrar's endorsement relating to admission apparently made before him by vendor to the effect that he had received sale price had presumption of correctness arising out of said admission, vendor who could take advantage of this situation, it was held that he ought to have produced sufficient evidence to show that consideration had been actually paid which he failed to do, and in the circumstances, the conclusion arrived at by the Courts below that the sale was without consideration and brought about as a result of undue influence was upheld by the Honourable Supreme Court.
11. In this view of the matter, it was rightly found by both the Courts below that the agreement to sell as well as the sale-deed, dated 29-10-1964 in favour of the petitioner was without consideration.
Concurrent findings, of facts recorded by the two Courts of competent jurisdiction cannot be interfered with in exercise of revisional H jurisdiction of this Court as held in the case reported Azizullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647. Resultantly, this petition fails and the same is dismissed.
' For the same reasons, Civil Revisions Nos.1636 and 1637 of 1992 are also dismissed.