' MAULVI ANWARUL HAQ, J.---On 8-9-1982, the appellant filed a suit against the respondents.
According to the plaintiff the suit-land mentioned therein was owned by Mst. Faiz Elahi, widow of Muhammad Bakhsh. She died on 1-10-1981 and was survived by the appellant as son, respondents Nos.1 and 2 as daughters and respondents Nos.3 to 7 as the children of the pre-deceased son namely Ghulam Hussain. While taking Steps to get the mutation of inheritance entered, the appellant came to know that respondents Nos.1, 3, 4 and 7 have got registered a gift-deed as also a mutation on the basis of the same. According to the plaintiff, the late Mst. Faiz Elahi never made declaration of gift it was never accepted and neither was the possession delivered thereunder. The gift deed is result of fraud and further that it is regarding joint land and is not enforceable. It was then stated that the said lady was 100 years old. She had lost her eye-sight and was not in her senses. In the same breath, it was stated that the gift-deed was got executed under undue influence. Respondents Nos.2 to 6 were proceeded against ex parte while 'respondents Nos.1 and 7 filed written statements. In the said written statement execution of a valid gift and its due registration on 7-4-1981 by the said lady was pleaded. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 29-3- 1987. Learned District Judge, Multan dismissed the first appeal filed by the appellant on 18-7-1988.
2. Mian Habib-ur-Rehman Ansari, Advocate, with reference to the case of Khawas Khan through Legal Heirs v. Sabir Hussain Shah and others (2004 SCM R 1259) and Muhammad Tufail v. Akbar Ali and 4 others (2004 SCM R 1370) argues that the evidence led in the case does not fulfil the criteria laid-down by the Hon'ble apex Court for proof of a document executed by an old-illiterate lady. He points out some discrepancies in the statements of the D.Ws. He also contends that the possession was not delivered under the gift by the deceased lady. He also complains that the learned Courts below have wrongly recorded the findings on the question of court-fee. Learned counsel for the contesting respondent No,1 on the other hand, supports the impugned judgments and decrees.
3. I have gone through the copies of the records. I have already noted above the material contents of the pleading of the parties. Since the contesting respondents had pleaded a valid gift and its execution and registration of the gift deed it was primarily for them to prove the execution thereof.
The original gift deed had been produced as Exh.D.1, which purports to bear the thumb-impression of Mst. Faiz Elahi and is attested by Muhammad Arif and Munir Ahmad as witnesses while before the Sub-Registrar, Rana Muhammad Qamar Iqbal, Advocate, has identified the said lady. The document narrates that the donor is the owner of the suit-land. Her daughter Mst. Kaneez Bibi and grand sons Murid Hussain, Asghar Hussain and Akhtar Hussain are obedient and are bearing her expenses and she is happy with their service and she has accordingly gifted away 131 Kanals 13 Marlas land to her daughter and 48 Kanals of land to her said three grand sons and has delivered the " and they have become the owners. There is no violation of MLR 115. Now the said Muhammad Arif has appeared as D.W.1. According to the said witness Mst. Faiz Elahi is related to him and was known to him, the document was scribed in accordance with the instructions of Mst. Faiz Elahi and she put her thumb-impressions on all the pages. That Mst. Faiz Elahi also appeared before the Sub- Registrar and she admitted its execution. She was in good health and did understand things. The lady used to live with her daughter and died in her house. In her cross-examination he expressed ignorance regarding the name of her father or grandfather According to him the document was written by a scribe who had entered in the register and that he was brought by Mst. Kaneez Bibi.
According to him Rana Qamar Iqbal, Advocate, and Munir Ahmad were the other witnesses and were present at the time of writing. The other witness Munir Ahmad, is a clerk of an Advocate, who was his counsel and he had brought him. He admitted that Munir Ahmad did not know Mst. Faiz Elahi. He then told the particulars of the children of Mst. Faiz Elahi and also that Ghulam Hussain had died 10/11 years ago and he had two daughters and three sons. Rana Qamar Iqbal, Advocate, appeared as D.W.2 to state that Exh.D1 bears his signatures as an identifying witness and that he had identified Mst. Faiz Elahi upon the asking of Arif and that Mst. Faiz Elahi had put her thumb- impression in his presence and she had admitted the document in presence of the Sub-Registrar.
Hafeez Ullah, D.W.3, is the brother of the said Mst. Faiz Elahi and according to him he is also father- in-law of the appellant and that he has cordial relations with him. According to him Mst. Faiz Elahi used to live with Mst. Kaneez Eibi, after the death of her husband and she was in her senses and her eye-sight was alright till her death and she gave the suit-land to her daughter and grand sons. In the cross-examination he stated that son of the respondent No,1 is also his son-in-law. He denied that Mst. Faiz Elahi used to live with the petitioner or that she was in a 'bad shape. D.W.4 is Mst.
Kaneez Bibi, she stated that her mother gifted the land to her and her nephew and executed the document and that gift was accepted. She stated that she has no dispute with the appellant or the children of the deceased brother and that the daughter of appellant, who is married with her son is living happily.
4. Now P.W.1 is Dr. Muhammad Anwar. He stated that he is Homeopathic Doctor and used to treat Mst. Faiz Elahi in the year 1981 and she was suffering from insomnia and there, was something wrong with her digestive system. In his cross-examination, he stated that he had not passed his F.Sc. Examination and does not possess any diploma or degree from any institute. He also admitted that he had not recommended that the deceased lady be taken to some good hospital in Multan.
P.W.2 is Falak Sher. According to him, since three years before her death Mst. Faiz Elahi used to live with the petitioner and remained ill for 1-1/2 years and she has lost her senses. In his cross- examination he admitted that he had litigation with the sons of respondent No,1 regarding tubewell, which was fixed before the Additional District Judge the same day. He had also got a murder case registered against the son of respondent No,1. He further stated that he is father-in-law of the sons of the appellant. Zahoor Hussain, is P.W.3. According to him the deceased lady used to live with the appellant, she remained ill for two years after the death of her husband and for one year she was "
According to him, she died of weakness, gout and old age. P.W.4 is the appellant. According to him, his mother passed her final days with him, she used to remain ill after 1-1/2 year she lost her senses and that he is in possession of the suit-land since the year 1973. In cross-examination he stated that his father died in the year 1980 and at that time he used to live with his parents. According to him, his mother remained alright till 1-1/2 year after his father's death. He had been taking her to Hakims or Doctors but he could not tell the name of any Doctor or Hakim. According to him Javed is his only son, who holds M.A. Degree and that he had never advised him to take the lady to Psychiatrist. Now Exh.P1 is the copy of death entry of Mst. Faiz Elahi, according to which she died on 1-10-1981 at the age of 85 years after suffering from fever for a week.
5. Now an examination of the register Haqdaran Zamin for the year 1978-79, which is Exh.P.2 pertaining to Khewat No,25 and Exh.P.10 pertaining to Khewat No,24 (the subject-matter of Exh.D.1 and the suit) reveals that the same had devolved upon the deceased lady, the appellant, two daughters and the children of the predeceased son of Muhammad Bakhsh while the petitioner is recorded to be in possession as a co-sharer. It is with reference to this document that Exh.D.1 has been executed. To my mind the delivery of possession would not be of much relevance in the said circumstances of the case.
6. However, the said contention of the learned counsel with reference to the matter of court-fee is correct. Now the appellant was admittedly not a party to the document regarding which the declaration was sought. He was not at all required to seek its cancellation neither he sought the same. The case was squarely covered by section 7(iv)(c) of the Court Fees Act, 1870 and he was entitled to fix his own B valuation. This being so the findings recorded by the learned Courts below on Issue No,1 are reversed. The court-fee paid on the memo. Of this R.S.A. As also on the memo. Of First Appeal is liable to be refunded and the office of this Court as well as of the learned District Judge, Multan shall issue a certificate of refund accordingly. Having thus examined the said evidence on record, I do not find that the said judgments suffer from any error of law within the meaning of section 100, C.P.C. Somewhat inconsistent plea taken in the plaint as to fraud, undue influence, and mental conditions of the donor have otherwise not been proved on record. There is no specific denial available that the deceased lady was being served by her daughter and the said grand sons.
7. The R.S.A. Is dismissed but without any orders as to costs. The records of the learned Lower Court be returned back immediately.