This civil revision impugns the judgment and decree dated 7.4.2004 passed by learned Addl.
District Judge, Attock, dismissing the appeal of the petitioners-defendants against the judgment and decreed passed by the Civil Judge Attock, through which suit for declaration declaring the respondents-plaintiffs owner on the basis of Hiba bil iwz dated 27.1.1952 executed by the owner namely Aman Ullah Khan at the time of marriage of his son namely Aurangzeb Khan in favour of Mst. Zulikhan Khatoon and also for possession was decreed.
2. Brief facts of the case are that one Aman Ullah Khan son of Habat Khan resident of Mohallah Majeed Hashtgare Peshawar was the owner of the suit house. In the plaint, it was stated that he at the time of marriage of his son Aurangzeb Khan transferred the house in question on 27.1.1952 to Mst. Zulaikhan Khatoon. He also executed the gift-deed/MahrNama in favour of Mst. Zulaikhan Khatoon who become owner in possession of the house. Thereafter, Aman Ullah Khan had no concern with the suit house. Mst. Zulaikhan Khatoon died nine years back and after her death, the plaintiffs-respondents become 'owner of the house being legal heirs of Mst. Zulaikhan Khatoon. On 11.11.1997, Aman Ullah Khan again transferred the suit house in favour of Mst. Naseem Akhtar his daughter by way of registered gift and on the basis of the said registered gift, the petitioners- defendants illegally occupied the house. The registered gift in favour of Mst. Naseem Akhtar was also challenged.
3. Mst. Naseem Akhtar petitioner contested the suit. Raised preliminary objections. It was contended that she was the real daughter of Aman Ullah Khan and the house was gifted to her due to the services rendered by her towards her father. Baber Javed and Khalid Javed were the sons of Aurengzeb Khan and had been contesting the suit and conceded the claim of the respondent- plaintiffs. From the divergent pleadings of the parties, learned Civil Judge proceeded to frame the issues. Both the parties, produced their respective evidence. Trial Court decreed the suit of the respondents-plaintiffs vide judgment and decree dated 24.6.2003. Trial Court on the basis of Mahr- name Ex. P.1 executed by the owner Aman Ullah Khan in favour of Mst. Zulaikhan Khatoon which was proved by Saleem Ullah Khan PW.1 who stated in Court that he was 90/93 years old and that the Mahr-nama Ex. P.1 was reduced into writing by him on 27.1.1952 on asking of Aman Ullah Khan.
Besides that learned Civil Judge also observed that, "in fact no evidence has been produced by the defendants-petitioners to rebut the Mahr-nama Ex. P.1 in any manner whatsoever. Even 'from the drift of cross-examination conducted on PW. 1 who is scriber of the Mahr-nama its execution has been admitted by the defendants-petitioners. Court observed that there was no need to examine the marginal witnesses. Once the scribe proved the same and in cross-examination neither it was disputed that the Mahr-nama was not reduced into writing by Saleem Ullah Khan PW.1 or it was not executed or it was never signed by Aman ,Ullah Khan. Trial Court decided Issues Nos, 1 and 2 in favour of the respondents-plaintiffs and held that the plaintiff and Defendants Nos, 3 & 4 are owner in possession of the suit property detail of which is given in the head note of the plaint and Defendants Nos, 1 and 2 have got no concern with it. Further held that the gift-deed dated 11.11.1997 regarding the suit property is against the law and facts as Aman Ullah Khan was not competent to transfer the suit house to his daughter Mst. Naseem Akhtar because he was not the owner of the suit house on 11.11.1997 as lie had already transferred the same in favour of Mst. Zulaikhan Khatoon his daughter in law at the time of his Marriage with his son Aurengzeb Khan which did take place on 27.1.1952. The appeal filed by the petitioners-defendants was dismissed by the Addl. District Judge who maintained the findings of the learned civil Judge on Issues Nos, 1 & 2,0 hence this revision petition.
4. Learned counsel for the petitioners contends that petitioners -defendants in para-1 of the written statement has denied that the suit house was transferred in favour of Mst. Zulaikhan Khatoon at the time of her marriage with Aurangzeb. Khan son of Aman Ullah Khan but the learned Civil Judge has wrongly observed that there was evasive denial of the fact that the house was transferred on the basis of Hibba in favour of Mst. Zulaikhan Khatoon on 27.1.1952 and in this respect the Mahr- nama/giftdeed was also reduced into writing.
5. In para-1 of the written statement, it was stated that Aman Ullah Khan son of Habat Khan was the owner of the suit house as per registered Haqdarain-e-Zamin for the year 1976-77 dated 8.11.1997 annexed with the written statement. Remaining part of the written statement is based on mala fide.
Reading of the para-1 of written statement would clearly show that there was evasive denial of para-1 of the plaint, on the part of the petitioners-defendants which was not warranted under the law. In cases reported as Inam Naqshband versus Haji Shaikh I jaz Ahmad (PLD 1995 SC 314) and The Trustees of the port of Chittagong and Muhammad Islam versus River" Steam Navigation Co.
Ltd., Chittagong (PLD 1965 SC 352) while interpretation Order VIII Rule 5 CPC it was ruled that, "allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendants, shall be taken to be admitted except as against a. person under disability."
6. Next it is contended by the learned counsel for the petitioner that the two Courts below has misread and mis-interpreted the documentary and oral evidence produced by the petitioners- defendants and based its findings merely on so-called dower deed Ex. P.1 which was written on simple paper and was quite fake, doubtful and self contradictory and without any independent corroboration. The marginal witness of this documents were neither produced nor any reason for their non production was brought on file by the respondents. There was no mention of any consideration fixed for dower. This document was neither registered nor it creates any title in favour of respondents-plaintiffs. The possession of the house in dispute was never admitted as still lying with the respondents-plaintiffs but the same is with the petitioners-defendants which fact has been ignored by the Courts below.
7. On the other hand learned counsel for the respondents who is under pre-admission notice on the mandate of Section 168 of the Mahomedan Law contends that Hiba-bil-Iwaz is distinguished from a hiba or simple gift, which is a gift for a consideration. According to him, possession is not required to complete the transfer. Reliance has been placed on case reported as Ali and 6 others versus Mst. Zarnir Fatima and others (PLD 2004 S.C. 10) and Mst. Mehr Bheri and 6 others versus Mst.
Bhag Shari and 2 others (1991 SCM R 897); Further contends that in Mahr-nama dated 27.1.1952 Ex. P.1 it was categorically stated that daughter in law had become the owner in possession of house measuring 10-marlas; Adds that defect in method of proving of a document or objection as to formality of ' proving the same is to be taken at early stage and once a document is admitted in evidence, objection against mode of proof of a document cannot be allowed subsequently.
Reference has been made to Malik Din and another versus Muhammad Aslam (PLD 1969 SC 136); Moreover, Mahr- nama was executed and signed on 27.1.1952, whereas Qanoon-e-Sahhadat Order was promulgated in the year 1984, therefore, it was not the requirement of law to prove Mahr- nama by producing two marginal witnesses. Mahr-nama was produced in original in Court for inspection of the Court, the same was proved by Saleem Ullah Khan PW.1 who was the writer of the same at the relevant time. Both the Courts have rightly relied Ion his statement. Finally it was contended that according to Section 90 of the Evidence Act 1872, presumption of correctness is attached to Mahr-nama dated 27.1.1952 Ex. P.1 being 30-years old document.
8. I have heard the arguments of the learned counsel for parties and perused the record with their assistance. Admittedly Aman Ullah Khan was the owner of the house on 27.1.1952 Mahr-nama Ex. P.1 was executed in favour of his daughter in law Mst. Zulaikhan Khatoon. Qanoon-e-Shahadat Order which was promulgated in the year 1984 is not applicable in this case. In his case, Evidence Act, 1872 is applicable. Section 67 of the Evidence Act says that, "if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand writing." This section does not, however, lay down any particular mode of proving the signature or the writing. It merely requires the signature or writing to be proved. Any mode of proof recognized by the Act may, in the discretion of the Court and the circumstances of the case, be considered sufficient. Following are the modes of proving a signature or writing recognized by the Act:--
(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.
9. Presumption of correctness is attached to the 30 years old document as per Section 90 of the Evidence Act, 1872. Admittedly Hiba nama dated 27.1.1952 is 30 years old document, therefore, attesting witness is not required to be called. In case reported as Rash Behary Karnury versus Corporation of Calcutta (AIR1926 Calcutta 102). while interpreting Section 90 of the Act ibid it was held that with respect to a document which is 30 years old, under Section 90 of the Evidence Act, it was be presumed to. have been duly executed and attested and there was no need to call the marginal witnesses. Suffice it to say that defect in method of proving of a document or objection as to formality of proving the same is to be taken at early stage or a document is admitted in evidence, objection against mode of proof of document cannot be allowed subsequently. See case of. Malik Din and another versus Muhammad Islam (PLD 1969 SC 136).
10.PW 1 Saleem Ullah Khan who wrote the Mahr-nama stated on oath that he was petition writer since 1933-34. Mahr-Nama Ex. P.1 was reduced into writing by him on 27.1.1952 and Aman Ullah Khan signed the same in his presence alongwith marginal witnesses Abdul Aziz and Ghulam Sarwar who also put their thumb impression. In this view of the matter, Courts have rightly concluded that the Ex. P.1 was Mahr-nama/Hiba nama which was reduced.into writing and was proved in accordance with the law.
11.Learned counsel for the petitioner contends that on the basis of case reported as Lutufur Rehman and others versus Zahoor and others (PLJ 1999 SC 204) contends that it was discretion of the Court to refuse to raise presumption regarding the truthfulness of a document. Presumption is attached to 30-years old document under Section 90 of the Evidence Act but the presumption is rebuttable. The petitioners-defendants have not produced any evidence to rebut the presumption existing in favour of the respondents-plaintiffs. Even petitioners-defendants has not disputed the signature of Aman Ullah Khan on Mahr-nama Ex. P.1 nor asked for sending it to some hand writing expert nor has requested the Court to exercise its jurisdiction under Section 73 of the Evidence Act, in order to ascertain whether the signature is that of Aman Ullah Khan by whom it purports to have been written or made.
12.Hiba-bil-Iwaz (gift in exchange) has defined in Section 168 of the Mahomedan Law. Possession is not required to complete the transfer as it is in the case of a hiba. In case reported as Abdul Aziz versus Mst. Mariyam Bibi and another (AIR 1926 Allahabad 710) while interpretation the gift/Hiba- bil-Iwaz (gift for consideration) it has been ruled that, "delivery of possession not an essential inR.redient of such gift." In case reported as Mst. Mehr Bhari and 6 others versus Mst. Bhag Bhari and 2 others (1991 , SCMR 897) while interpretation the gift/Hiba-bil-Iwaz it was ruled that, "the main consideration "Iwaz" for the gift was the marriage and the anticipated rendering of services by daughter-in-law on account of such marriage." It was further held that, "relationship of father-in- law in the circumstances was fiduciary and his recital in the deed like that of a husband, in certain circumstances had to be taken as complete discharge of the responsibility of handing over the possession and altering the character of his continued possession by making it on behalf of an for the donee so as to preclude the donor and his successors-in-interest from questioning it." Even others, Mahr-nama dated 27.1.1952 reads that the suit house is transferred. Alongwith the possession in lieu of dower of Mst. Zulaikhan Khatoon she had become the owner in possession of the suit house measuring 10 marlas of land. In the plaint, it was categorically alleged that the petitioners-defendants have obtained the possession on the basis of Hiba nama Ex. P. 1 dated 11.11.1997. Aman Ullah Khan was not the owner of the house on 11.11.1997. He had already transferred the house by way of gift in favour of his daughter in law Mst. Zulaikhan Khatoon on 27.1.1952 Ex. P.1, therefore, he was not legally competent to transfer the same in favour of his daughter Mst. Naseem Begum. There is no proof of the fact that the possession was delivered to Mst. Nasim Begum on the basis of gift dated 11.11.1997 Ex. P.3. The petitioners-defendants had applied for producing the record of Excise and Taxation of Hassanabdal in additional evidence. When the learned counsel for the petitioner was asked that whether the house stands transferred in the name of Mst. Naseem Akhtar in the record of Excise and Taxation office, he denied the same and states that in the relevant record of different departments, the house still exists in the name of the original owner namely Aman Ullah Khan. So the possession of Mst. Naseem Begum is not on the basis of gift in her favour.
The fact that the marriage of Mst. Zulaikhan Khatoon with the son of Aman Ullah Khan on 27.1.1952 has not been disputed. DW.3 Moulana Ghulam Ahmed alias Deputy Ghulam Ahmad has admitted in the cross-examination the fact of the marriage of Mst. Zulaikhan Khatoon on 27.1.1952 with the son of the Aman Ullah Khan DW.1 and DW.2 witnesses appeared on behalf of defendants are relating to the subsequent transaction by way of Mst. Naseem Akhtar. They do not advance the case of the petitioners qua the Haba-nama dated 27.1.1952.
13.For what has been discussed above, it was rightly concluded by the learned Civil Judge that the house was transferred in favour of Mst. Zauliakhan Khatoon in lieu of her dower at the time of her marriage with Aurengzeb Khan son of Aman Ullah Khan the plaintiffs and Defendants Nos, 3 & 4 being her legal heirs are owner of the suit property and the registered gift-deed dated 11.11.1997 in respect of suit property is against the law and fact. Concurrent findings of fact recorded by the two Courts below on the basis of evidence cannot be interfered in exercise of revisional jurisdiction of this Court as held in case reported as Azizullah Khan and others versus Gul Muhammad Khan (2000 SCM R 1647). Therefore, this revision petition has no merits and the same is dismissed.