' JAWWAD S. KHAWAJA, J.--Ghulam Rasool, petitioner-plaintiff impugns the concurrent decrees of the learned trial Court, dated 29-5-2000 and of the learned appellate Court, dated 12-12-2000 whereby the declaratory suit filed by him claiming possession by way of consequential relief, has been dismissed.
2. The facts of this case are straightforward. The property in dispute is a house which was originally owned by Raja Allah Bakhsh, father of the petitioner Mst. Anaran Begum, respondent No,1, now represented by her legal representatives, was the wife of Raja Allah Bakhsh and step-mother of the petitioner, Ghulam Rasool. 'Saeed Ahmad (respondent No,2) was the son of Raja Allah Bakhsh from his marriage with Mst. Anaran Begum.
3. After the death of Raja Allah Bakhsh the petitioner came to know. That the respondents/defendants, namely, Mst. Anaran Begum and Saeed Ahmad, had fabricated an affidavit (Exh.D.2) and a gift deed (Exh.D.1) both, dated 27-2-1991 purporting to record a gift of the disputed house of Raja Allah Bakhsh in favour of Mst. Anaran Begum. He, therefore, filed his declaratory suit to challenge the alleged gift and to assert his title in the disputed house as one of the legal heirs of Raja Allah Bakhsh.
4. Both Courts below have relied on the aforesaid affidavit (Exh.D.2) and the sale-deed (Exh.D.1) to hold that a gift of the house in question had validly been made in favour of Mst. Anaran Begum. The findings of the learned Courts below, I am afraid, are contrary to law and, are therefore, not sustainable for the reasons discussed below.
5. I have gone through Exh.D.1 which purports to be an agreement for an oral gift. The entire wording of the document, however, indicates that a gift in praesenti was being effected. The said document, Exh.D.1, is neither duly stamped nor is it registered. It, therefore, cannot purport to effect the conveyance from Raja Allah Bakhsh to the respondent, Mst. Anaran Begum.
6. The affidavit (Exh.D.2) makes a repetition of the contents of Exh.D.1. Both documents record the purported offer by the alleged owner, acceptance of the gift by the respondent Mst. Anaran Begum and delivery of possession of the suit property to the said donee. Both documents are purportedly attested by Ch. Bisharat Ahmad, Notary Public.
7. In view of the allegations in the plaint and the testimony of the petitioner's witnesses it became incumbent upon the respondents to prove that Exh.D.1 and Exh.D.2 had been executed by Raja Allah Bakhsh. It is most significant that Mst. Anaran Begum did not take the witness stand to prove that any gift had been made in her favour. Her son, respondent No,2, appeared as a witness, but he admitted that he was not present when the affidavit (Exh.D.2) and the gift deed (Exh.D.1) were executed. This testimony of respondent No,2 coupled with the unwarranted absence of Mst. Anaran Begum from the witness box are sufficient for the purpose of concluding that execution of the two documents by Raja Allah Bakhsh was not proved.
8. The respondents did examine Ch. Bisharat Ahmad, Advocate, as D.W.2. He deposed that he. Had notarized the gift agreement (Exh.D.1). He did not say anything in respect of the affidavit (Exh.D.2). In his cross-examination he admitted that he had made no entry of the notarization in his register. He also conceded that he did not know the executant Raja Allah Bakhsh. He deposed that two persons had accompanied the executant, but he did not know either of these persons. He further deposed that he had not obtained the signatures of Raja Allah Bakhsh in his presence. It is obvious from his testimony that D.W.2 cannot be treated as an attesting witness in proof of the alleged signatures of Raja Allah Bakhsh on Exh.D.1 and Exh.D.2. Another point to note which detracts from the authenticity of the two documents is that the same were purportedly executed on 27-2-1991 while the attestation by D.W.2 is dated 28-2-1991. This fact, added to the testimony of D.W.2 discussed above, renders his evidence utterly worthless.
9. In view of the foregoing discussion, it is clear that there is no evidence on record in proof of the alleged gift. I am, therefore, not left in any doubt that the learned Courts below which failed to consider the material aspects of the case noted above, committed material error in the exercise of their jurisdiction. The impugned decrees as such are not legally sustainable. The same are set aside and the suit of the petitioner/plaintiff is decreed as prayed for.
10. The petitioner shall also be entitled to his costs throughout.