' Muhammad Hafeez petitioner/ plaintiff impugns the concurrent decrees, dated 16-3-2002 passed by the learned trial Court and 14-4-2004 passed by the learned Appellate Court, whereby a declaratory suit filed by him has been dismissed.
2. The facts of this case are relatively simple. The petitioner/plaintiff is the son of Mst. Sahi Bibi, while Mst. Shamim Akhtar (respondent No.1) is her daughter. Sahi Bibi was the owner of the suit-land.
According to the respondent/defendant, Sahi Bibi gifted the said land to her vide registered gift- deed (Exh.D-1) dated 6-11-1996. The petitioner filed his declaratory suit to challenge the aforesaid gift. It was his case that the gift had been procured by the respondent/defendant fraudulently and through the exercise of undue influence. The suit was resisted by the respondent/defendant. The learned trial Court framed issues on which the parties led evidence.
3. The respondent/defendant produced the two marginal witnesses to the gift (Exh.D-1). One of these witnesses, namely, Zafarullah (D.W.4) is the husband of the respondent, while the other, namely, Arif (D.W.3) is their servant. These two witnesses proved the execution of the gift-deed (Exh.D-1). Asghar Ali, Advocate (D.W.1), who is the nephew ( t?'taf ) of Zafarullah (D.W.4), is the scribe of the aforesaid gift-deed. He also appeared with the object of proving the gift-deed.
4. According to learned counsel, the above-named witnesses are all interested witnesses, and their testimony, as such, could not be given credence. This is particularly so as even according to the respondent/defendant, Mst. Sahi Bibi was 90 years old when she allegedly executed the gift-deed (Exh.D-1).
5. Learned counsel for the petitioner also has drawn the attention of the Court to the testimony of Ch. Nawaz Ahmad, Advocate (D.W.2), who appears to be the only disinterested witness. D.W.2 was the person on whose identification. The Sub-Registrar registered the gift-deed in question. Ti' this brief testimony, D.W.2 did not depose that Mst. Sahi Bibi appeared before the Tehsildar. He merely stated that he could not remember if she had appeared before the Tehsildar or not. More tellingly, in his cross-examination, D.W.2 acknowledged that he did not personally know Mst. Shai Bibi and nor had he examined her identity card. He deposed that at the time when Exh.D-1 was registered, one Babar Parhiar was the Moharrar in the office of the Sub-Registrar and it was on the assurance of the said Babar Parhiar that the gift-deed had been signed by Mst. Sahi Bibi that he signed as an identifier on Exh.D-1. The testimony of Ch. Nawaz Ahmad (D.W.2), according to learned counsel for the petitioner, has been ignored by the two Courts below. The judgments of the two Courts below do indicate that due consideration to the testimony of D.W.2 who, as noted above, was the only independent disinterested witness, has not been given.
6. It has been argued by learned counsel for the petitioner that the testimony of D.W.2 clearly proves that Mst. Sahi Bibi did not appear before the Sub-Registrar and nor was she identified by a person who was competent or qualified to identify her. In this view of the matter, the presentation of Exh.D-1 before the Registrar and its registration loses all efficacy, particularly considering that no functionary of the Sub-Registrar's officer was examined by the respondent/defendant in proof of the fact that Mst. Sahi Bibi had herself presented the gift-deed (Exh.D-1) for registration.
7. The two Courts below have proceeded on the premise that execution of the gift-deed has been proved through the testimony of D.W.1 who is the scribe, and D.W.3 and D.W.4, who are the marginal witnesses. Even if these witnesses are taken to have proved that the gift-deed was signed by Mst.
Sahi Bibi, there is no evidence on record to prove the presentment and registration of the said deed. In the circumstances, it does appear that the gift-deed did not convey any interest in the suit property to the respondent/defendant.
8. In addition to the above, the evidence shows that Mst. Sahi Bibi was ordinarily residing with Muhammad Hafeez petitioner/plaintiff, who is her son. According to the respondent/defendant, who appeared as D.W.5, she came to reside with the respondent for a short while during which period the gift-deed was signed by her. There is no evidence on record to show that Mst. Sahi Bibi, who obviously was an old Pardanasheen lady, received any independent advice at the time she executed Exh.D-1. At this juncture, it is important to note that neither Muhammad Hafeez petitioner/plaintiff nor Muhammad Ashiq respondent/defendant, who are the sons of Mst. Sahi Bibi, were associated with the execution and registration of the gift-deed. These two persons would have been independent male members to whom Mst. Sahi Bibi could have resorted for advice.
Furthermore, there was no apparent reason for Mst. Sahi Bibi to convey her entire property to her daughter (respondent/defendant) to the exclusion of her two sons.
9. In view of the above circumstances, it was argued on behalf of the petitioner that the gift-deed (Exh.D-1) was wholly fraudulent and had been obtained without the free consent of Mst. Sahi Bibi. It was also contended that in view of the fact that there was no presentment of the gift-deed by Mst.
Sahi Bibi before the Sub-Registrar, there was, in fact, no registration of the deed (Exh.D.1) and, as such, there was, in law, no conveyance of the suit-land by Mst. Sahi Bibi in favour of the respondent Mst. Shamim Akhtar through the aforesaid gift-deed. The contention of learned counsel for the petitioner noted above, have merit and are legally well-founded.
10. Learned counsel for the respondent Mst. Shamim Akhtar, however, argued that there were three aspects of the gift transaction in question. Firstly, the three ingredients of valid gift i.e. The offer made by the donor, acceptance of said offer by the donee and delivery of the gifted property.
Secondly, the execution of the gift-deed and thirdly, the presentment and registration of the same under the provisions of the Registration Act.
11. It was learned counsel's contention that in the present case the first two aspects of the gift-deed (Exh. D-1) stood established through the testimony of the witnesses produced by the respondent Mst. Shamim Akhtar. I have considered this argument and find that it is not tenable on the basis of the available record. It is, firstly, to be noted that one of the marginal witnesses of the gift-deed, namely, Zafarullah (D.W.4) is the husband of the donee Mst. Shamim Akhtar. Learned counsel for the said respondent did not seriously deny that the husband of Mst. Shamim Akhtar would be an interested witness whose testimony, if uncorroborated by independent evidence, should not be given much weight.
12. He, therefore, argued that D.W.3, namely, Arif son of Wali Muhammad was unrelated to the parties and should, therefore, be relied upon as a credible witness. This argument, however, does not hold water. D.W.3 has admitted in his cross-examination that he is the barbar of Zafarullah's family. Although, keeping in view the stratified social structure prevalent in rural Punjab, this relationship between Arif (D.W.3) and the husband of Mst. Shamim Akhtar (respondent No.1) can be taken note of with the object of weighing the testimony of D.W.3, the said relationship per se would not be sufficient to discredit D.W.3 if otherwise he appears to be a truthful witness.
13. I have, therefore, closely examined the testimony of the said witness (D.W.3) and find it lacking in probative value. I, firstly, note that even though D.W.3 claims that he is cultivating land belonging to one Walayat, he has been unable to state the exact area under his cultivation. Furthermore, he was not in a position to mention the kila numbers of the said land. This, in my opinion, undermines his testimony. Moreover, for another reason, I note that D.W.3 is not a truthful witness. He has testified that the donor Mst. Sahi Bibi had shown her identity card and had affixed her thumb-impression before the Tehsildar. This part of his testimony is directly in conflict with the evidence of Ch. Nawaz Ahmed, Advocate (D.W.2) discussed in para.5 above. D.W.2 is both an independent and truthful witness having deposed to the effect that he had signed Exh. D-1 as an identifier before the Sub Registrar on the assurance given to him by Babar Parehar, a Moharrar in the office of the Sub- Registrar, that the gift-deed had been signed by Mst. Sahi Bibi. Keeping the statements of Ch. Nawaz Ahmed, Advocate (D.W.2) and Arif (D.W.3) in view, I have not the slightest doubt that Mst.
Sahi Bibi herself did, not appear before the ,Sub-Registrar for presentment and registration of the gift-deed (Ex103-1). In the circumstances, it is not, possible to give credence to the testimony of Arif (D.W . 3) ."
14. In the aforesaid circumstances, I find that both marginal witnesses to the gift-deed (Exh.D-1), namely, Zafarullah (D.W.4) and Arif (D.W.3) are not trust worthy. Their evidence, as such, is not sufficient for the purpose of proving that Exh.D-1 was, indeed, executed by Mst. Sahi Bibi or that she had gifted the suit property in favour of her daughter Mst. Shamim Akhtar (respondent/ defendant).
15. It was next contended by learned counsel for the respondent Mst. Shamim Akhtar that Muhammad Ashiq (respondent No.2 herein) is also a brother of the petitioner and of respondent No.1, being the son of Mst. Sahi Bibi. The said Muhammad Ashiq did not appear as a witness in the case although his counsel appearing before me stated that he had accepted the gift made by Mst.
Sahi Bibi in favour of her daughter Mst. Shamim Akhtar. It does appear that a written statement was filed on behalf of Muhammad Ashiq (respondent No.2) but the said written statement cannot be taken in evidence because Muhammad Ashiq or even his counsel did not appear at the trial to prove the contents of the written statement. Furthermore, the written statement itself shows that Muhammad Ashiq was confused and not fully aware of the case in hand. Throughout the preliminary objections appearing at page 1 of his written statement, he has referred to the plaintiff in the feminine gender. It is not clear if he thought that the plaintiff was Mst. Shamim Akhtar. At one point, in the written statement on merits, he has referred to Mst. Sahi Bibi as the plaintiff. In these circumstances, it cannot be held that Muhammad Ashiq has, in fact, supported the case set up by Mst. Shamim Akhtar (respondent/defendant), in defence.
' Learned counsel for the respondent Mst. Shamim Akhtar prayed that in view of the fact that Muhammad Ashiq had not supported the petitioner/plaintiff and because his counsel, in this revision petition, had accepted the gift-deed (Exh.D-1), the petition be accepted only to the extent of the share to which the petitioner/plaintiff would be entitled on the death of Mst. Sahi Bibi. This statement, however, cannot be accepted because, for the reasons considered above. I have come to the conclusion that the gift-deed was not proved and was not duly registered.
16. To sum up, I find that the evidence on record does not prove the execution of the gift-deed by Mst. Sahi Bibi and nor does the available evidence establish due presentment and registration of the said gift-deed in accordance with the provisions of the Registration Act. It, therefore, follows that the gift-deed is invalid and does not operate to convey title in the suit property from Mst. Sahi Bibi to her daughter Mst. Shamim Akhtar (respondent/ defendant). The aspects of the case, which have been noted and discussed above, have not been taken into account by the two Courts below.
The said Courts have thus exercised their jurisdiction with material irregularity.
17. As a result of the foregoing discussion, this petition is allowed and the impugned decrees of the learned trial Court, dated 16-3-2002 and of the Appellate Court, dated 14-4-2004 are set aside.
Consequently, the suit filed by Muhammad Hafeez (petitioner/plaintiff) is decreed as prayed for in the plaint.
18. The petitioner/plaintiff shall also be entitled to his costs throughout.