' MAULVI ANWARUL HAQ, J.--- This judgment shall decide Civil Revision No,79 of 1991 and Civil Revision No,729 of 1996 as common questions are involved and these were ordered to be heard together.
2. On 30-12-1984 the petitioners filed a suit against the respondents. In the plaint, it was stated that the petitioners are spouses and were married about 20 years ago. The petitioner No,2 is the son of Ch. Rehmat All who was the owner of suit Quarter, described in para.1 of the plaint. He was married to Karamat Bibi who died in India and bore him the one son i.e, petitioner No,2 and a daughter Mst.
Sughran Bibi respondent No,8. After the independence of the country, he migrated to Pakistan and married respondent No,1 who bore him respondents Nos.2 to 7. He gifted away 1/3 share of the said suit Quarter by executing an agreement on 13-7-1965 and put the petitioner No,1 in possession of one room therein under the said gift and she was continuing in possession ever since. Rehmat Ali died on 10-11-1984 and the remaining 2/3 share devolved upon his said widow and progeny. The petitioners accordingly claimed separation of their share in the suit property by partition. The respondent No,8 did not contest the suit. However, the remaining respondents filed written statements taking the plea that the said Rehmat Ali deceased had transferred the suit property in favour of Mst. Ramzan Bibi respondent No,1 by means of a registered sale-deed. The factum of gift was denied. Following issues were framed by the learned trial Court:-
(i) Whether the suit is mala fide? OPD
(ii) Whether the plaintiffs have no cause of action against the defendants? OPD
(iii) Whether the plaintiffs are entitled to a decree as prayed for? OPP
(iv) (iv) Relief.
' Evidence of the parties was recorded. The suit was dismissed by the learned trial Court on 18-3- 1989. A first appeal filed by the petitioners was dismissed by a learned A.D.J., Lahore, on 8-10-1990: I may note here that during the pendency of the appeal, an application was filed by the petitioners for amendment of their plaint seeking permission to challenge the said registered sale-deed dated 25-10-1984 pleaded by the respondents. This application was also rejected on the same date.. Civil Revision No,79 of 1991 has been filed to challenge the said judgments and decrees.
3. On 25-6-1991 the petitioners filed a suit against the respondents Nos.1 to 6 seeking a declaration that the said registered sale-deed is illegal and void. The suit was contested. The learned trial Court rejected the plaint on 9-3-1992 with reference to the said earlier decisions. A learned A.D.J., Lahore, dismissed the first appeal on 17-10-1995. Civil Revision No,729 of 1996 had been filed to challenge these decisions.
4. Learned counsel for the petitioners contends that the learned lower Courts have proceeded to hold that the sale-deed has been executed when there is no evidence on record to the said effect.
According to him, the sale-deed had been pleaded in defence to the suit filed by the petitioners and as such it was incumbent upon the respondents to have proved valid execution thereof. He has also tried to argue that a valid gift in favour of the petitioner No,1 as pleaded has been proved.
Learned counsel for the respondents, on the other hand, supports the, impugned judgments and decrees with the plea that it was incumbent upon the petitioners to have challenged the sale- deed in the plaint.
5. I have gone through the copies of the records, with the assistance of the learned counsel for parties. I have already narrated above the respective pleadings of the parties: It will be seen that whereas the petitioner No,1 claimed a gift of the said Quarter by the deceased Rehmat Ali to the extent of 1/3, the petitioner No,2 claimed .His Islamic law share in the said house as son of the deceased. The respondents, on the other hand, pleaded that the deceased had sold away the house to his wife i.e, respondent No,1 Mst. Ramzan Bibi. There is no manner of doubt in my mind that it was for the said respective parties to prove the execution of the documents being relied upon by them. Now so far as the said gift Exh.P.1 is concerned, I have examined the evidence and I find that the learned Courts below have taken a correct view of the matter after reading the said evidence properly and holding that its execution has not been proved. I find that the criteria applied by the learned trial Court and affirmed by the learned Appellate Court in the matter of the said gift document was not applied to the said sale-deed being relied upon by the respondents solely on the ground that it was a registered document. For this purpose, they have relied upon the proviso to Article 79 of the Qanun-e-Shahadat Order, 1984. To my mind, the learned Courts below have misinterpreted the law which has resulted in judgments which suffer from material irregularities attributable to the exercise of jurisdiction respectively by the learned Courts below. The said proviso is reproduced as under:-- ' "Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."
Now the learned Courts below have held that the execution has to be denied by the person executing the document. The said interpretation is wrong upon a plain reading of the said proviso.
It nowhere states that the denial has to be made by the person executing the document. The denial referred to in this provision of law is a denial by a party of the fact that the document was executed by the person by whom it purports to have been executed. In the present case, the document was relied upon in the written statement. I may refer to the following observations of the Honourable Supreme Court of Pakistan in the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCM R 1245) in para-11 of the said judgment at page 1254 of the report:~ "It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness - of the transaction covered by it, would not confer any right.. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source.
Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document."
6. Now I have accordingly examined the evidence. The document is Exh.D.l. It purports to bear the thumb-impression of Rehmat Ali and is attested by ' Asim Amir Khan and Ayub Khan. Asim Amir Khan has appeared as D.W.l to state that the petitioners are occupying one room in the said Flat while the remaining is with the respondents. Rehamat Ali deceased had executed the sale-deed in favour of the defendant No,l and he is the marginal witness who received Rs,35,000 in his presence.
According to him, the Local Commissioner had recorded the statement of Rehmat Ali. In his cross- examination, he stated that Ramzan Bibi had brought her up who was working as a maid in his house. He expressed ignorance as to what was the disease with which Rehmat Ali was suffering and which caused his death. According to him, a few days before his death Rehmat Ali was admitted in a Hospital. He cannot tell as to how long he stayed there. He opined that he remained in the hospital for about three months,. According to him, he must have been suffering from heart disease. According to him, Rehmat Ali died four months after executing Exh.D.l. The second witness is Mahmood Ahmad D.W.2. In his very examination-in-chief he has stated as follows:- {{URDU TEXT}} ' D.W.3 is Muhammad Saeed Chiragh, the attorney of the said lady. He has not said a word about the execution of the document. In his cross-examination, he stated that Ramzan Bibi is present outside the Court. It will be seen that the Scribe and the other witness Ayub Khan were not produced and no reason is forthcoming as to why the said witnesses have not been produced. As per the endorsements made on the said document, the proceedings were conducted by Local Commissioner who has also not been produced.
7. There is no plea and no evidence coming on the record as to why a few days before his death, the said deceased deemed it proper to sell his property to his said wife of Rs,35,000.
8. Having, thus, gone through the evidence, I do find that the learned Courts below have failed to read the same while holding that valid execution of Exh.D.l by Rehmat Ali deceased has been proved by the respondents.
9. Civil Revision No,79 of 1991 accordingly is allowed. The impugned judgments and decree passed by both the learned Courts below are set aside. It is held that Rahmat Ali deceased was the owner of the suit Quarter, described in the plaint, at the time of his death, whereafter it devolved upon his widow Mst. Ramzan Bibi and his children i.e, petitioner No,2 and respondents Nos.2 to 7 the respondent No,l Ramzan Bibi has since died. Her 1/8 share will go to her children i.e, defendants Nos.2 to 7 in the suit. Rehmat Ali was survived by a widow, three sons and five daughters. The respondent No,l got her widow's share 1/8 while the remaining 7/8 devolved upon his sons and daughters. 1/8 share of Mst. Ramzan Bibi further devolved upon her children i.e, respondents Nos.2 to 7. The shares of the said parties are accordingly declared as follows:-
(i) Petitioner/plaintiff No, 2 =14/88
(ii) Mst. Sughran Bibi-respondent/ defendant No,8 =7/88
(iii) Respondent/defendant =56/88+11/88=67/88 2 to 7 (children of Rehmat Ali as also of Mst: Ramzan Bibi).
' The case is accordingly sent back to the learned Senior Civil Judge, Lahore, who shall requisition the records of the suit. The parties shall appear before him on 1-2-2007. The learned Senior Civil Judge E shall initiate proceedings for passing of a final decree in terms of the preliminary decree.
10. In view of the judgment passed in Civil Revision No,79 of 1991, Civil Revision No,729 of 1996 is disposed of accordingly.
11. No orders as to costs.