' JAWWAD S. KHAWAJA, J.---Mst. Gull Begum petitioner/ plaintiff impugns the concurrent decrees of the learned trial Court dated 3-6-1994 and of the learned Appellate Court dated 24-3-1998 whereby a declaratory suit filed by her had been dismissed.
2. The dispute between the parties relates to land measuring 38 Kanals, 11 Marlas which was allotted to Farman Ali husband of the petitioner as head of the family by way of guzara allowance since Farman Ali and the petitioner rights were duly conferred in the name of Farman Ali. The respondent No,1, namely Muhammad Riaz claims that Farman Ali gifted the said property to the said respondent through hibanama (Exh.D.l) dated 27-4-1981. In her plaint, Mst. Gul Begum took up the plea that the respondent Muhammad Riaz was a dispenser posted at Village Suratabad where the suit-land is situated and used to administer medical treatment to Farman Ali who was an aged person. The petitioner and Farman Ali were issueless. According to the petitioner, the suit-land was being cultivated by a tenant who was not paying batai to Farman Ali and it is for this reason the respondent suggested that he be inducted as a tenant. According to the plaint, the respondent brought Farman Ali and the petitioner to Gujranwala for the purpose of executing a patta nama but it later transpired that on this pretext the respondent had obtained the hibanama (Exh.D.1). The petitioner also alleged that Farman Ali had become of unsound mind when the suit was filed.
3. The learned Courts below have placed emphasis on the fact that Farman Ali was not of unsound mind and this is the principal reason which has prevailed with them while dismissing the suit of the petitioner/plaintiff. It appears that the learned Courts below have misread the evidence on record.
They have also overlooked important aspects of the case as discussed below.
4. The respondent Muhammad Riaz appeared as his own witness on two occasions. It is obvious that he has been less, than truthful in the witness-box. When he appeared as D.W.3, he admitted that he came to Suratabad in 1968-69 where he had set up a medical store and practised medicine as a doctor. He also stated that he was helping and rendering service to Farman Ali. He again appeared as D.W.4 when he was recalled by the Court. He deposed that Farman Ali and the petitioner were happy with him and, therefore, he gifted the suit property to him. He acknowledged that there was no relationship between him and the petitioner but stated that he considered the petitioner and Farman Ali as his own parents and they treated him as their son. Notwithstanding this he denied that he used to administer medical treatment or give injections to Farman Ali. It is this part of his testimony which brings him out as being untruthful. It is not possible to accept that a person who, by his own admission, is a dispenser has a medical store and who also claims that Farman Ali was alike his own father, would not administer medical treatment to him. The learned Courts below unfortunately have not taken note of this part of the respondent's evidence.
5. Most importantly however, I note that the hibanama (Exh.D.1) is on stamp paper of Rs,1930, which was purchased from the Treasury Office, Gujranwala. On the back of the initial stamp paper, the endorsement of the Treasury Officer shows that the stamp was purchased for a patta nama but there is visible tampering to change the wording to hibanama. In view of the testimony of the petitioner Mst. Gul Begum, this is a material circumstance and goes to show that in actual fact Farman Ali had intended to grant a patta to the respondent/defendant. The learned Appellate Court has, however, brushed aside this material piece of evidence by observing that the cutting in the endorsement made by the Treasury Officer has been initialed. First of all I need to note that the initials bear no resemblance at all to the signatures of the Treasury Officer. Secondly, the observation of the learned Appellate Court is entirely conjectural. If, indeed, the cutting had been made and the stamp paper had been purchased for the propose of a hibanama, the easiest thing for the respondent would have been to adduce the original challan and register of the Treasury in evidence. This has not been done, and no attempt whatsoever was made to show that the cutting had been made by the Treasury Officer himself. The law is clear that where the best evidence is not produced by a party, the Court should draw the adverse inference that if the said evidence had been produced, it would have gone against the party concerned. This principle of law has also not been applied by the learned Courts below.
6. Thirdly, it is of great significance that Farman Ali and the petitioner were an aged couple who were issueless. The suit property was the only means of livelihood for this old couple. It would be stretching reason to conclude that they would transfer their only means of livelihood by way of gift.
Ordinarily, this circumstance alone would not be sufficient for the purpose of setting aside the alleged gift. However, in the present case, there are other material circumstances, noted above, which disprove the alleged gift. Such gift being, in the circumstances, contrary to the ordinary course of human conduct F provides circumstantial evidence to corroborate the case set up by the petitioner/plaintiff.
7. Fourthly, it will be noted that the property is situated in Suratabad Tehsil Naushehra Virkan. The petitioner Farman Ali and even the respondent/defendant were residents of Suratabad. There is no explanation on the record as to why the parties had to come to Gujranwala for the purpose of executing and registering Exh.D.-1 when they could much more conveniently have done so before the Sub-Registrar at Naushehra Virkan. This circumstance casts doubt on the authenticity of the document (Exh.D.1), and support the version of events put forth by the petitioner/plaintiff. Fifthly, the evidence shows that the respondent had ingratiated himself with Farman Ali and the petitioner and has won their confidence as the person rendering medical treatment to Farman Ali.
Furthermore, the respondent, in his testimony as noted above, made a deliberate attempt to conceal this, relationship between him and Farman Ali. It was, in these circumstances, incumbent upon the respondent to produce strong evidence in support of the defence set up by him and to rebut the formidable evidence produced by the petitioner/plaintiff which has been noted above. In this view of the matter, the hibanama (Exh.D.1) by Farman Ali in favour of the respondent would have been subject to the stringent requirements of H section 16 of the Contract Act. These requirements have not been fulfilled in the present case and, nor have the learned Courts below attended to the same.
8. As noted above, the learned Courts below have mainly confined themselves to Issue No,1 which related to the question as to whether Farman Ali was of unsound mind. There is evidence available on record to the effect that Farman Ali was suffering from melancholia. On this score also the testimony of the respondent Muhammad Riaz as D.W.4 is relevant. He was evasive on this subject and stated that he was not aware that the doctor had diagnosed Farman Ali as I suffering from the said disease. In these circumstances, it is doubtful if Farman Ali was of sound mind. Even if he was so, this has no bearing on the material aspects of the case discussed above which established that Farman Ali had never intended to gift the property to the respondent.
9. Learned counsel for the respondent drew the attention of the Court to the testimony of Said Muhammad (D.W.9) who is the brother of Farman Ali. He deposed that the respondent used to render service to Farman Ali who had gifted the property and had also consulted him before doing so. This testimony cannot suffice for the purpose of proving the hibanama (Exh.D.1) when there is compelling evidence to the contrary appearing on record. Even otherwise it seems strange that Said Muhammad was not J associated with the transaction and did not act as a marginal witness of Exh.D.1. When he could have been the most appropriate person for this purpose.
10. In the light of the above discussion, it is clear that the learned Courts below have misread the record and have not given consideration to the material aspects of the case which have been noted above. They have thus acted with material irregularity in the exercise of their jurisdiction. In the circumstances, the impugned decrees are not legally sustainable and are set aside. As a consequence, the suit of the petitioner/plaintiff is decreed as prayed for.
11. The petitioner shall also be entitled to her costs throughout.