The plaintiff/petitioner filed a suit on 215-1995 against the defendant/ respondents for declaration and permanent injunction to the effect that she was co-owner of land measuring 98 Kanals and 16 Marlas in Khewats 106, 107, 118, 119, 138, 147 and 168 situate in Village Mancher Chatha, Tehsil Wazirabad District, Gujranwala and the gift-deed dated 7-9-1954 and Mutation No. 913 dated 8-1- 1955 was void, illegal and ineffective upon her rights. It was averred in the plaint that the plaintiff/petitioner was co-owner to the extent of 7/2 share in the Khata along with his real paternal uncle Khushi Muhammad (the predecessor-in-interest of respondents). Her share being 98 Kanals and 16 Marlas. The Khata remained undivided. About 3/4 months before the filing of the suit the plaintiff approached the "Patwari" for partition of the Khata. It revealed upon her that Khushi Muhammad, deceased (the real paternal uncle of the plaintiff) got the land of the plaintiff transferred in his name vide gift-deed dated 7-9-1954. The plaintiff was a minor. The said Khushi Muhammad in collusion with defendant No.14 got the said sale-deed registered which was collusive, based upon fraud and ineffective upon her rights. The mutation of inheritance of Khushi Muhammad and all subsequent mutations were also ineffective upon her rights.
' The suit was resisted raising a preliminary objection that the suit was barred by time and that the same was being filed with the connivance of defendant No.14, the maternal uncle of the plaintiff. On merits it was alleged that the plaintiff was a major and that she executed a gift-deed in favour of her paternal uncle Khushi Muhammad vide gift-deed dated 7-9-1954. Consequential Mutation No.913 was rightly sanctioned. Defendant No.14 filed a consenting written statement.
' Out of the pleadings of the parties following issues were framed:--
(1) Whether the gift-deed in favour of Khushi Muhammad predecessor-ininterest of defendants and subsequent sale-deeds and the entries in the Revenue Record are against law and facts, fraudulent, inoperative upon the rights of the plaintiff? OPP
(2) Whether the suit is time-barred? OPD
(3) Whether the plaintiff is estopped to bring this suit? OPD
(4) Whether the plaintiff has got no cause of action? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the suit is bad due to non-joinder of necessary parties? OPD
(7) Whether the suit has been under valued for the purposes of court-fee and jurisdiction? If so, its effect? OPD
(8) Whether the contesting, defendants are entitled to special cost? OPD (8-A) Whether the plaintiff was minor at the time of execution of gift-deed and thus, she was not competent to execute the same? OPP (8-B) Whether the suit of the plaintiff is collusive and the same has been filed with the collusion of defendant No.14? If so, its effect? OPD-1 to 13.
(9) Relief.
' The suit was decreed vide judgment/decree dated 31-10-1996. On appeal the learned Additional District Judge, Wazirabad vide judgment dated 27-5-1998 framed two additional issues (8-A and 8-B) and remanded the case to the trial Court for decision afresh. The learned trial Court after recording the evidence decreed the suit of the plaintiff/petitioner vide judgment dated 29-7-1999.
On appeal the learned Additional District Judge, Wazirabad allowed the same, set aside the judgment and decree of the learned trial Court and dismissed the suit of the plaintiff/petitioner vide judgment dated 9-2-2000.
2. Learned counsel for the petitioner contended that the gift-deed Exh.P.9 was a void document as the petitioner was minor at the time of the execution of the said document. Further contended that the onus of proof has been wrongly placed on the petitioner. The evidence taken into consideration by the trial Court has not been considered by the Appellate Court. The testimony of D. Ws. Has not been taken into consideration. Even otherwise the plaintiff/petitioner was a co-sharer and has been receiving the share of produce from the respondents. Reliance was placed on Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 and Abdul Rahim and others v. Mrs. Jannatay Bibi and others 2005 SCM R 346.
' Conversely the learned counsel for the respondent urged that the suit has been filed after more than forty years. The petitioner was brought up by her uncle Khushi Muhammad who spent huge amount on her upbringing and her marriage. In lieu thereof the petitioner transferred the property in dispute to her uncle and that at the time of the execution of the sale-deed she was accompanied by her maternal uncle and her father-in-law. The marginal witnesses of the sale- deed have died. Presumption of truth is attached to a document 30 years old under Article 100 of the Qanun-e-Shahadat Order. Reliance was placed on Javed Iqbal v. Additional Sessions Judge, Sargodha and others 1991 SCM R 1566 and Ghulam Hassan v. Soharu and 131 others PLD 1984 Peshawar 278.
3. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. The gift-deed Exh.P.9 gives the reasons of the gift in favour of Khushi Muhammad, deceased. It is stated therein that Khushi Muhammad has brought up the petitioner and has also borne the expenses of her marriage. He has kept the petitioner happy. She cannot repay him and in lieu of the services rendered by him she is transferring the land in his name. There is nothing on the record to show that she was ever provided any independent legal advice. Hameeda Begum (the widow of Khushi Muhammad) appeared as D.W.3 and after remand she appeared as D. W.7,. Admitted in cross-examination that the gift was discussed at night time and the very next morning the gift-deed was registered. -She further admitted that the husband of the plaintiff was not present at the time of the declaration of gift in favour of her husband (Khushi Muhammad ) nor at the time of the execution and registration of the gift-deed. There is no evidence that she was accompanied by her father-in-law. There is nothing on the record to show that the nature of the transaction was explained to the plaintiff and that she understood it. She was of tender age and appeared to be under the influence of her uncle.
The Honourable Supreme Court in the case of Janat Bibi v. Sikandar Ali and others (supra) observed:- "It is also well-settled that the burden of proof in respect of a document purported to have been. 'executed by a Pardahnasheen woman affecting her right or interest in the immovable property is one the person claiming the right or interest under the document. It is for him to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act. If she is illiterate, it must have been read over to her."
' It was further observed:-- "The above rule applicable to "Pardanasheen" ladies has been extended to ignorant and illiterate women."
In the instant case the petitioner is an illiterate and an ignorant lady and the aforementioned principle applies to her. She was admittedly a co-sharer with Khushi Muhammad, the alleged donee. She has paid too high a price by allegedly gifting the land measuring 98 Kanals and 16 Marlas to her uncle in lieu of his services which is unconscionable in the circumstances of the case.
Admittedly the petitioner resides with her husband in a different village. She appeared as P.W.2 and deposed that whenever she visited Khushi Muhammad, she paid him Rs.500/1,000. A gift of undivided share (Musha) in property which is capable of division is irregular but not void. The gift being irregular and not void it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. The joint Khata of petitioner and her uncle Khushi Muhammad was not divided and the gift remained incomplete. There is nothing on the record to show that the possession was delivered to Khushi Muhammad under the gift-deed. Although all the marginal witnesses of the gift-deed have died but in view of the circumstances of the case the gift is not proved on the record. Admittedly the petitioner was a co-sharer with her uncle Khushi Muhammad as such the question of limitation would not arise. The learned Additional District Judge completely misdirected himself and did not take into consideration the aforementioned facts. The Authorities relied upon by the learned counsel for the respondents are not applicable to the facts of the instant case.
4. For what has been stated this petition is allowed and the judgment of the learned Additional District Judge dated 9-2-2000 is set aside and that of the learned trial Court dated 29-7-1999 is restored.