' MAZHAR ALAM KHAN MIANKHEL, J.---This single judgment of mine, will dispose of two Appeals R.F.A.
No,70 of 2002 and R.F.A. No, 82 of 2002 arising out of same judgment and between the same parties.
2. Dispute involved between the parties is with regard to partition of 2 Kanals of land out of 7 Kanals, 10 Marlas comprising of Khasra Nos. 5124, 5127 and 5128 owned by the plaintiff/respondent No,1 on the strength of a registered gift. Deed No, 192 dated 28-1-1976 transferred in her name at the time of her marriage with defendant/respondent No,2. A preliminary decree for partition of the suit property was passed by the learned Senior Civil Judge, Peshawar vide his judgment and decree dated 26-2-2002 in favour of plaintiff/respondent No, 1 .
3. The defendant/appellant has impugned the above said preliminary decree, through two separate appeals one by defendant No, 3 (R.F.A. No, 70 of 2002) who is the widow of deceased defendant No,1, and she independently claimed to be the owner of the entire property on the strength of an unregistered deed dated 4-4-1974. The second appear (R.F.A. No, 82 of 2002) is by the legal heirs of defendant No,1 and their mother as widow of Amanullah Khan has been arrayed as respondent in their appeal as she had filed here separate connected appeal (R.F.A. No, 70 of 2002).
4. Learned counsel for both the appellants having a common interest submitted that the deceased defendant No,1 who had transferred his entire property measuring 7 Kanals, 10 Marlas in the name of his wife Mst. Naseem Bibi, the appellant vide unregistered deed dated 4-4-1974 much prior to the registered deeds in favour of respondent No, 1 . She being in possession of the property along with this deed in her name, has a better title in her favour. The registered deed in favour of plaintiff/respondent was a benami transaction and was effected for the time being that when the defendant/respondent No,2 will purchase residential plot/house in the name of his wife plaintiff/respondent, they will retransfer the same in favour of the defendant No, 1 .
5. As against that, the learned counsel for respondent No, 1/plaintiff while supporting the judgment/decree in her favour submitted that the plaintiff is the owner of the property on the strength of a registered deed and execution of the same has even not been denied by the appellants. That being a registered deed in favour of the plaintiff has a presumption of correctness in its favour, execution of which is admitted by the defendant No, 1, then the fact that the same was a benami transaction and was effected by defendant No,1 as a guarantee, was required to have been proved by them. Similarly, the alleged unregistered deed was also required to have been proved by the appellants independently but they failed to discharge their burden.
6. The submission made by the learned counsel for the parties were considered and record of the case was perused which would reveal that the claim and title of the plaintiff/respondent No,1 for partition of his share of 2 Kanals, 0 Marla is based on a registered gift deed and under the law registered deed has got a basic presumption of its correctness unless that is rebutted. As against that, the defendant No,1 (deceased now represented by the appellants of both the appeals) admitted the execution of the registered deed and in addition to that he has taken two self- contradictory stances. On the one hand, while admitting the execution of the registered deed has alleged that the same was executed by him only as a guarantee to the effect that when husband of respondent No, 1/plaintiff will purchase a plot/house in her name then they will retransfer the same. On the other hand, his another stance which is inconsistent with his first stance is that the registered deed has got no legal effect as he was not the owner of the land in question as he vide deed dated 4-4-1974 had transferred entire of his property in the name of his wife Mst. Naseem Bibi, the appellant.
7. As far as claim of plaintiff/respondent No,1 is concerned she has based here claim of ownership on the basis of a registered deed original of which was tendered in evidence as Exh. P.W.2/2. The said deed was executed in her favour by the deceased defendant No,1, the predecessor of the appellants of both the appeals. The execution of the above registered deed was not denied by the predecessor of appellants. The registered deed under the law carries validity of correctness and a strong evidence is required to cast aspersion on its genuineness. Such documents is not only binding on the parties in the document but equally applicable to a third party. Specially when execution of a registered deed is not denied then the formal proof of execution of the registered deed is not required under the law. Mere its production in the case would legally be sufficient. The original registered deed was tendered in evidence by the plaintiff/respondent which on the one hand was a document execution of which was not denied and on the other hand contents of the document also were not denied but the predecessor of the appellants took different self- contradictory stances by alleging that the same was a benami transaction and that the same was executed as a guarantee and also that the entire property was transferred vide an unregistered deed dated 4-4-1974 in favour of Mst. Naseem Bibi.
8. So, as far as the claim of the plaintiff/respondent for partition on the strength of ownership is concerned that has been proved and she is entitled to ask for partition of her share in the joint property. As far as the stance taken by the appellants is concerned that on the face of it is self- contradictory, on the one hand, predecessor of appellants alleged that he had transferred his entire property by way of unregistered deed dated 4-4-1974 in favour of his wife Mst. Naseem Bibi, the appellant much prior to the registered deed. On the other hand he says that the transfer through registered deed in favour of plaintiff/respondent was a benami transaction and that the same was made as a guarantee in favour of plaintiff/respondent. That when husband of the plaintiff will purchase property in here name then they will retransfer the same to them.
9. Both the pleas as referred above cannot be alleged simultaneously. If the first one is accepted then he would have no authority even to transfer the property in the name of plaintiff/respondent as he was not at all owner of the property at that time and he by his said act has committed fraud with the plaintiff/respondent No,1 and similarly at the same moment it does not lie in his mouth to allege it to be a benami transaction and the transfer was only as a matter of guarantee. The same has also not been supported by anything on the record. When he was not an owner of the property then how he was able to transfer the same in the name of plaintiff/respondent which on the face of it reflect that pleas in defence are nothing but an attempt to deceitfully deprive a rightful owner from her property.
10. Let it be so far a while, then a heavy burden under the law was on the defendant No,1 and now on appellants to have proved that the entire property was transferred in the name of Mst. Naseem Bibi much prior to the registered deed in favour of plaintiff/respondent and their defence in that case would have been that the transfer in the name of plaintiff/respondent No,1 is the result of fraud and ineffective upon their rights. Besides they would have challenged the validity of the registered deed. The record of the case would reveal that execution of that unregistered document to be true and a genuine document was not proved. If the same had been proved on the record then the appellants would have a better case in the shape of unregistered document coupled with their possession. But in absence of any proof of the alleged transfer in the name of Mst.- Naseem Bibi appellant, they cannot claim benefit of their possession. In the present circumstances of the case, their possession would only be considered as a joint possession with the plaintiff/respondent as she is a co-owner on the basis of a registered deed which has got a presumption of its correctness and she can ask for partition of her share in the property on the basis of the same.
11. The other plea of the appellants regarding benami transaction in favour of plaintiff/respondent being contradictory to their above stance is also not acceptable and that too has not been proved on the record. Burden of proving the same was also on the appellants to have proved the same through cogent and reliable evidence. So mere allegations of the nature to rebut a registered document execution of which is also not denied would in no way be sufficient.
12. It was also argued by the learned counsel for the appellants that the gift through registered deed in favour of plaintiff/respondent was also not a valid gift as possession of the same was never delievered to the plaintiff/respondent No, 1 . But the arguments of learned counsel would have no legal force in the circumstances as the validity of the gift has never been challenged by the appellants. If the argument of the learned counsel is considered at all then it has been established on the record that it was a gift in favour of plaintiff/respondent given effect on the basis of a registered deed. The admission of execution or the document and then its registration in the name of plaintiff/respondent would be a sufficient proof of its offer by the donor and acceptance by the donee/plaintiff. As it was a joint property owned and possessed by the predecessor of appellants portion/part of which was transferred through the said registered deed, so delivery of physical possession in the circumstances was not possible unless the property was partitioned between them and only constructive possession in the circumstances would be sufficient to validate a gift a joint property as the mode and manner of delivery of possession over the spot is dependent upon the nature and character of a property and the question of delivery of possession has to be considered 'by taking into consideration all the facts and circumstances of each case. If the actual possession cannot be delivered by the donor to the donee and the donor has done all that what he was required to do to divest himself of the gifted property then the gift would be considered to be complete and effective.
13. So, what has been discussed above, the finding of the learned trial Court being in accordance with law are upheld and both the appeals in hand being meritless are hereby dismissed with no order as to costs.