' MAULVI ANWARUL HAQ, J.---On 30-1-2002 the respondents filed a suit against the petitioners. In the plaint, it was stated that the respondents are the daughters while the petitioners Nos.1 to 3 are the sons and petitioner No,4 is the widow of Haji Muhammad Yousaf Bhatti who was the owner of the suit property and had died on 23-2-2000. The petitioners claimed that a family arrangement or a surrender deed dated 30-4-1990 has been executed by the respondents whereby the suit property has been surrendered. The document was stated to be void against public policy and fraudulent. It was also stated that a plot located in G-9 Islamabad was purchased by the respondent No,1 and her husband while another Property No,B-8 and B-8-A was owned by the husband of the respondent No,3. It was also stated that no Defence Certificates were ever delivered to the respondents. They never appeared before any Registrar. They accordingly sought a declaration and the separate possession of their share in the estate of their late father, by partition.
The petitioners in their written statement pleaded execution of a valid document of surrender or family arrangement by the petitioners and its registration. In the same breath, valid gifts were pleaded of some portion of the suit-land in favour of the petitioner No,3. It was also stated that late Muhammad Yousaf had himself distributed the property. Issues were framed. Evidence of the parties was recorded. Vide judgment and decree dated 19-5-2004 the learned trial Court passed a preliminary decree regarding the suit property mentioned in the schedule Ex. P.1 located in District Attock excluding the land that was gifted to petitioner No,3 vide Mutation No,916 attested on 31-3- 1994, Mutation No,2236 attested on 22-1-1997 as also the land gifted to petitioners Nos.1 to 3 vide Mutation No,4192 attested on 12-2-1996 and Mutation No, 4193 attested on 12-2-1996. The claim of the respondent No,3 regarding Property No,B-8 and B-8-A was also rejected and it was treated as the part of the estate of Yousaf Bhatti. Against this judgment and decree, the petitioners filed a first appeal while the respondents filed cross-objections, the learned District Judge, Attock, dismissed the appeal as well as the cross-objections on 24-2-2005.
2. Ch. Mushtaq Ahmad Khan, Advocate/learned counsel for the petitioners contends that the execution of the document Exh.D.1 stood admitted by the respondents-ladies and such an arrangement was permissible under the law. He relies on the several judgments mentioned by him in an Annexure to the memo of this civil revision and particularly relies on the cases of Sadiq All and 10 others v. Mst. Aisha and others 1989 Law Notes 857 and Atta Hussain Khan v. Muhammad Siddque Khan and others 1979 SCM R 630. Further contends that the suit was barred by time and relies on the case of Atta Muhammad v. Mania Bakhsh and others 2007 SCM R 1446. Mr. Muhammad Ilyas Sheikh, Advocate/learned counsel for the respondents, on the other hand, relies on the cases of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, Nawab Ali and 2 others v. Muhammad Sharif and 5 others 2000 YLR 242 and Muhammad Yaqub and 2 others v.
Rang Illahi and 16 others 2001 M LD 1479 to urge that even if it be assumed that the document has been proved to be executed by the respondents, the same is void as admittedly, Haji Muhammad Yousaf was alive when the document stated to be executed' and none of the parties had any right in his property. Further points out that Haji Muhammad Yousaf was not even a party to the said document. He vehemently urges that valid execution of the document has not at all been proved in accordance with law.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. There is no denial that the suit property was owned by Haji Muhammad Yousaf who died on 23-2-2000. There is also no denial that the respondents are the daughters, the petitioners Nos. 1 to 3 are the sons and petitioner No,4 is the widow of the said Muhammad Yousaf Bhatti.
4. The suit filed by the respondents for claiming the possession of their share in the estate of their late father was contested with reference to the said document Ex.D.I, execution whereof was disputed by the respondents. I have examined the said document i,e, Ex.D.1. The name of the scribe is not there. However, it appears to have been attested by Zafar Nadeem Bhatti and Sarfraz Khan witnesses. Out of these persons Zafar Nadeem Bhatti appeared as P.W.-3. He has stated that the document Exh.D.1 was not prepared in his presence and that he did not appear before any Authority for its execution or verification and none of the parties acknowledged its contents in his presence. He admitted the signatures on the document but stated that he and his mother were made to sign blank stamp papers on the understanding that Muhammad Akram Bhattti petitioner was to transfer the rights of a plot which, in fact, was purchased by the funds provided by his father. He was cross-examined. Only a suggestion was given that the document was voluntarily executed by all the parties and he denied the same. The said second witness, namely, Sarfraz has not been produced and no reason is forthcoming on record for the said non-production. The petitioners produced Muhammad Pervaiz, Registration Clerk, as D.W.1 who brought the relevant register and produced its photocopy. In his cross-examination, he stated that he was not the In charge Moharrir when the entries were made in the register. Nothing, therefore, turns in favour of the petitioners on the basis of the said entries in the register brought by the witness. D.W.2 is Raja Mirza Khan Tehsildar. He was the Sub-Registrar who attested Exh.D.1. I may note here that the document was exhibited in the statement of this witness subject to objection which is obvious. He proved his certificate on the document. He did not state that the parties were known to him rather admitted in the course of cross-examination that he did not know the respondents-ladies. Thus, this witness cannot be stated to have proved in any manner the due execution of the document. It is, therefore, a case of no evidence and the document has not at all been proved in any manner prescribed in the Qanun-e-Shahadat Order, 1984.
5. Be that as it may, I have further examined the said document. It is dated 30-9-1990. The first party are the respondents and petitioner No,4 Bhag Bhari and the second party are the petitioners Nos.1 to 3. It will, thus, be seen that the only party missing is Yousaf Bhatti, admittedly, the owner of the suit properties. Clause-I generally refers to the property mentioned in Annexure-A to the said document, which are the suit properties and admittedly vested in Muhammad Yousaf Bhatti and covenant is that the said first party will have no claim, title, interest or right whatsoever in the said property and the second party shall be the exclusive owner and possessor of the same after the death of Muhammad Yousaf Bhatti and the first party has surrendered the .Title, interest and claim in favour of the second party. Clause-II pertains to the said Plot No,B-VIII and B-VIII-A with reference to respondent No,3. Clause-III pertains to delivery of Defence Savings Certificates by Muhammad Yousaf to the respondents without mentioning the value or any particulars. Clause-IV pertains to the plot in Islamabad Sector 0-9 and states that Muhammad Akram Bhatti is surrendering it in favour of Ghulam Sughra respondent who has paid the price and is further to pay the installments.
Clause-V pertains to surrender of a plot by Mushtaq Ahmad Bhatti petitioner in favour of Muhammad Akram Bhatti petitioner. Clause VI pertains to the surrender of a house No,B-XIV-94 in favour of Muhammad Akram Bhatti, Clause-VII pertains to surrender of a plot measuring one kanal, 11 marlas in Tehsil Murree. Clause-VIII pertains to the surrender of a plot in favour of Muhammad Akram Bhatti in village Kharala Kalan, Tehsil Fateh Jang, District Attock. Having, thus, examined the said document, I do find that, in the first instance, Muhammad Yousaf is not at all a party to the said document and it cannot at all be said that he distributed the property amongst his heirs. The document proceeds on the assumption that the properties already vested in the said parties to the document and they have made an arrangement about the same. This is not so. It is the petitioners' own case that years after the alleged execution of the said document, Muhammad Yousaf Bhatti, made gifts of the subject matter thereof in favour of his sons. He died about 10 years after the said date. None of the parties to the document had any right, title or interest in the said properties to enable them either to extinguish or to create any title therein inter se or in favour of any other party.
6. Coming to the said contentions of Ch. Mushtaq Ahmad Khan, Advocate, the facts of the said case of Atta Hussain Khan are completely different. What happened in the said case was that before the independence of the country, the predecessor of the parties to the said lis had transferred land in favour of the petitioner before their lordships to enable him to be appointed as a Lambardar. After migration land was allotted to the petitioner in lieu of the said land. The document commented upon by their lordships was executed by the said petitioner acknowledging that the land has been transferred in lieu of the said land given to him by his father for purposes of Lambardari only and that it will constitute the estate of his father and shall devolve upon all the heirs on the death of his father. It was also found that the document was executed in the life time of the father. It was in the said circumstances and particularly in view of evidence on record that the document was validly executed with his own free will by the said petitioner that it was held to be enforceable.
7. Similarly, the said case of Sadiq Ali and ten others proceeds absolutely on distinguishable facts.
The dispute was as to whether one of the donees in whose favour the remaining two donees had executed a power of attorney could have made a statement whereupon the gift made by their father Karim Bakhsh in favour of all the three donees was not acted upon. It was held as a fact that during the proceedings before the Revenue Officer the entire family entered into an agreement for distribution of the land of Karim Bakhsh in accordance with the Islamic law.
8. The dictum laid down by the Honourable Supreme Court of Pakistan in the said case of Ghulam Ali and two others and the said two judgments of this Court is fully attracted to the present case.
The document Exh.D.1 even if it be assumed to have been proved to be validly executed, it neither extinguished nor created any title for the simple reason that none of the parties had any title or interest in the property, admittedly, owned by Muhammad Yousaf Bhatti who was not even a party to the said document.
9. So far as the objection as to limitation is concerned, nothing turns on the same. The reason being that the respondents became vested with a right in the suit property on the death of their father on 23-2-2000 and the suit having been filed on 30-1-2002 can hardly be said to be barred by time.
The civil revision accordingly is dismissed but without any orders as to costs.