1. ' MUHAMMAD SHAFT SIDDIQUI, J.--- Respondent filed suit for declaration, cancellation of gift and permanent injunction. The suit filed by the respondent was dismissed by the trial Court vide judgment dated 3023-2004 and decree dated 28-4-2004. Aggrieved with the judgment and decree of the trial Court, the respondent filed a Civil Appeal No,171 of 2004 and vide judgment dated 7-12-2005 and decree dated 13-12-2005, the appeal was allowed and the judgment and decree of the trial Court were set aside and the findings were reversed. Aggrieved with the findings of the appellate Court, the applicant/ defendant has filed this civil revision application.
2. It is contended by learned counsel for the applicant that these are two conflicting judgments of the trial Court and appellate Court and that it is a case of misreading and non-reading of evidence by Appellate Court. Learned counsel for the applicant has also submitted that he has produced sufficient evidence before the trial Court to prove the execution of the gift deed, which was registered before the Sub-Registrar, however, the material evidence produced by the applicant was not considered, which rendered the judgment and decree of the appellate Court as illegal and unlawful, as material irregularity and illegality has been committed by ignoring such pieces of evidence. Learned counsel in support of his contentions has relied upon the following cases of:--
(1) Muhammad Bakhsh v. Ellahi Bukhsh (2003 SCMR 286)
(2) Iqbal Begum v. Muhammad Yousaf (PLD 2003 (Lahore) 255)
(3) Arif Zaman v. Pir Dost Ali Shah (2005 MLD 98)
3. On the other hand, learned counsel for the respondent has argued that the applicant failed to prove the execution of the gift deed and it has come in evidence that the respondent never executed such gift deed and she being parda-observing lady, her son maneuvered the document through .Forged signature of the respondent. It is claimed by the learned counsel for the respondent that the applicant's case was that such gift was pronounced before the sisters of the applicant, however, neither the sisters were examined, nor the Sub-Registrar before whom the alleged gift was registered. It ss also contended by the learned counsel that since the respondent is a parda-observing lady, therefore, after her denial from the execution of the gift deed,the burden would be upon the applicant to prove the registration of the gift. In support of his contentions, learned counsel has relied upon the following cases of:--
(1) Nasrullah Khan v. Rasul Bibi (2001 SCMR 1156)
(2) Barkat Ali v. Muhammad Ismail (2002 SCMR 1938)
(3) Noor Muhammad v. Azmat-e-Bibi (2012 SCMR 1373)
(4) Saima Khatoon v. Manzar Hussain (1993 MLD 1542)
(5) Nan Fung v: Pir Muhammad Shamsdin (PLD 1995 (Karachi) 421)
(6) Muhammad Subhan v. Bilquis Begun (PLD 1994 (Karachi) 106)
(7) Abid Hussain v. Kalsum (2003 CLC 110)
(8) Muhammad Yaseen Siddiqui v. Tahseen Jawaid Siddiqui (2003 MLD 319)
4. I have heard the learned counsel of the parties and perused the record.
5. The suit has been filed for the cancellation of the gift deed and it is the case of the respondent that she is a parda-observing lady and that she never appeared before the Sub-Registrar. In support of their pleadings, both applicant and respondent examined themselves and in addition, the applicant examined two witnesses namely Muhammad Yaseen, who was working with the Advocate Qazi Aijaz who alleged to have prepared gift deed for its registration and the other witness Muhammad Aslam, who claimed that the possession was delivered in his presence. Apart from these two witnesses, no other witness was examined by the applicant. The trial Court pursuant to the contentions of the parties framed the following issues: "(1) Whether plaintiff has not gifted out the suit property to the defendant.
(2) Whether the documents viz: registered gift deed is liable to be cancelled and delivered up.
(3) Whether entries in the record of rights on the basis of said gift deed is to be declared nullity and void.
(4) Whether suit is not maintainable at law.
(5) Whether plaintiff is entitled for relief claimed.
(6) What should the decree be?"
6. Since the findings of the Trial Court on Issue No,4 as to "whether the suit is not maintainable" has not been challenged by the applicant before Additional District Judge, therefore, there is no necessity of discussing the subject issue which attained finality. The core issue i,e, "whether the respondent/plaintiff has not gifted the subject property to the applicant/defendant is the root cause of the case". From the language of this issue that was framed by trial Court, the burden appears to be on respondent. The findings of the learned trial Court on this issue No,1 were reversed by the appellate Court. The trial Court observed that there are three ingredients essential for the gift i,e, (1) declaration of donor, (2) acceptance of gift expressed or implied and (3) delivery of possession, which in terms of trial Court's judgment have been satisfactorily explained and established by the applicant.. In terms of the trial Court's judgment the respondent/defendant could not succeed in proving the fraud allegedly practised by the applicant/ plaintiff, as she failed to produce confidence inspiring evidence with logical theories.
2. ' In terms of the trial Court's judgment, the evidence of the applicant and his witnesses is so comprehensive that there is no room left to think otherwise and it proved the execution of the registered document.
3. ' In terms of the findings of the appellate Court, the proof of the execution of gift rests on donee, who is the beneficiary and that the applicant failed to produce and examine the best evidence i,e, his sisters and the concerned Sub-Registrar before whom the alleged gift deed was registered.
4. ' I have examined the evidence of both applicant and respondent and also examined the evidence of the two witnesses i,e, Muhammad Yaseen and Muhammad Aslam-. The applicant claims that the burden to prove fraud and misrepresentation is upon the respondent, whereas it is claimed by respondent's counsel that it is the beneficiary who has to discharge the onus that it was a bona fide transaction and in support thereof he relied upon 2012 SCMR 1373. One of the significant point in this case is that pursuant to issue which was framed by trial Court it becomes respondent's obligation to prove and discharge the burden and not the applicant.
7. This case appears to have been handled with negligence as neither the issues were carefully framed nor applicant or respondent cared to examine the material witnesses. If the respondent claimed that she never appeared before the Sub-Regitrar and the signature on the gift deed is forged and fabricated then what prevented her from sending the subject document to the Handwriting or Fingerprint Expert when the burden in terms of issue framed by trial Court was upon her On the other hand, even the applicant failed to examine his two sisters, (though not witness the to registration) which he claimed to be present at the time when oral gift was pronounced and also Sub-Registrar. It can also be observed from the evidence recorded that the observance of parda though ' proved but not in the sense whereby she could claim such benefits which are meant for such parda-observing ladies as the respondent had been appearing in Courts as well as at different forum for the purpose of execution and registration of other documents in favour of her other son and as such the claim of the respondent that she is entitled for all those benefits under the law, which a parda-observing lady is entitled for, are not available to her. However, the findings on issue No,1 are totally reversed by the appellate Court.
8. The appellate Court itself provides the definition of parda observing women which means a woman of rank, who lives in seclusion, shut in a zanana having no communication except from behind parda or screen (perhaps the Sessions Judge means veil) with any male person. In this case I have observed that she had been appeating in the Court to contest the proceedings throughout and had executed document which she got registered before the concerned Sub- Registrar in favour of her other son and she even appeared before revenue authorities and before this court and aggressively tried to contest this revision herself when she was asked to sit quietly by her 'counsel. Therefore, prima facie, does not fit in the definition of Parda-observing lady, though she may have seen observing Parda. At one hand she claimed to be parda-observant and on other hand she had been appearing and performing act contrary to the definition of parda- observing women.
5. ' The appellate Court while framing the points for determination has framed the point No,1 as under:---
1. Whether the plaintiff executed gift deed in favour of his son Syed Ayoub Ali respondent?
6. ' This point appears to have been, framed without any application of mind; firstly there was no "plaintiff" before the appellate Court, it was appellant; secondly it was not "his son", it was "her son" who is respondent before the appellate Court and thirdly and more importantly the point appears to have been framed in total contradiction to the issue which had been framed by the trial Court as issue No,1 which is reproduced as under:- ' Issue No,1:--- Whether the plaintiff has not gifted out the suit property to the defendant?
7. ' The said issue is available in the judgment of the trial Court, thus it appears that the point No,1 as framed by the appellate Court without observing the issues framed by the trial Court and realizing the burden which apparently was upon the respondent here and plaintiff in the suit and all of ,a sudden before the appellate Court, the burden shifted to the applicant when the points for determination were framed. The appellate Court if at all had to reverse the findings of the trial Court, that could be done only after meeting with the reasoning of the trial Court whereas in this case the appellate Court did not advert to the reasoning of the trial Court in the impugned judgment. If any reference is needed, PLD 1969 SC 617 and 2003 MLD 1280 could be looked into.
8. ' Needless to mention that appellate Court in its judgment did not advert to the reasoning of the trial Court impugned before him, thus rendered the findings Of the 1st appellate Court violative on this score alone. The controversy with regard to the proof of "negative and positive assertion" could play a vital role in this case. However, the negative assertion in this case is not the one which could be difficult to prove in this case as compared to one where the seller denies the receipt of sale consideration and therefore, it was made obligatory upon the buyer to prove the positive assertion that money has been paid by producing receipts, pay orders, cheques etc. This inference could be drawn from PLD 1986 SC 519. The relevant portion is reproduced as under-- "A false acknowledgment of receipt of the price by a recital in a deed does not stop the seller from giving evidence as against the buyer that he has not received, payment.
9. ' Notwithstanding an admission in a sale-deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid.
10. ' A presumption of correctness attaches to the certificate endorsed on the sale-deed by the Registration Officer only for the purpose of proving that the document has been duly registered.
11. But as regards the receipt of consideration by the vendor, only a presumption arises out of the admission made by the vendor which could be contradicted by independent evidence as that relates to want of consideration and exercise of undue influence.
12. ' In this particular case also the respondent though admitted that signature on Exh.19 which is a gift deed to be' similar to that in her Vakalatnama, has 'failed to send the subject gift deed for its expert opinion regarding her signature and thumb-impression whatever it may be which could be proved but has not been proved by the respondent therefore, this is not the case which is directly hit by principle of proving "negative assertion" and the principle of rendering the burden on the beneficiary alone is not directly applicable when te appeared in witness box and produced the registered gift.
13. ' In my view, the appropriate findings to decide the core issue regarding registration of gift deed are missing and in such circumstances, the applicant cannot be saddled with such huge burden alone when a registered document Was presented which carries presumption of truth. There is no discussion about Article 45 and 90 onwards of Qanun-eShahadat Order, 1984 at all. The benefit thus being derived by respondent being a parda-observant are not discussed effectively in view of her role in normal life which is contrary to such definition of parda-observant.
14. ' The issue of presumption of truthfulness of a registered document as observed earlier is not at all discussed which could also contribute in deciding as to which party saddled..With the burden to prove their rival contentions. Such questions were dealt with in case of Muhammad Aslam v. Mst.
15. Sardar Begum reported in 1989 SCMR 704 wherein it is observed that the Municipal Registers are public record within the meaning of Article 85 of Qanun-e-Shahadat Order 1984 and therefore admissible in evidence.
16. ' Another aspect of a registered instrument is that a registered instrument is a public document and presumption of truth is attached to it. However once controverted, person taking benefit out of the same had to prove its contents, specially the value of property mentioned, by independent evidence as presumption of truth to a public document, would not mean that contents of document in question are unquestionably true.
17. ' Similarly the case of Lt. Muhammad Sohail Anjum Khan v. Abdul Rasheed Khan reported in 2003 MLD 1095, it is observed as under:--- "Mortgage Deed Exh. 6/8 and Form-A/Sub-License Exh.6/11 are duly registered documents.
18. Endorsement of Sub-Registrar, in terms of section 60 of the Registration Act to the effect that, said documents have been executed by Abdul Ghafoor Khan, is relevant consideration for proving the execution of the said document. Therefore, presumption of correctness is attached to a registered instrument that it has been made and signed by the person executing it before competent authority."
19. No doubt the presumption attached to such registered document goes on to prove merely to the extent of document having been registered but not the conclusive proof that the same is executed by a particular person when execution thereof is denied by such person but in case like one in hand where fraud was pleaded and signatures were claimed to be same and identical also where respondent failed the test prescribed by definition of parda-observing, it is respondent who is equally responsible to prove alleged fraud by sending document to Handwriting and Fingerprint Expert. It is not the dispute of receipt of money, it is the dispute of signature of respondent which could be established by respondent by leading evidence, which is in fact- mandate of the issue No,1 framed by trial Court.
20. ' The Appellate Court seems to have burdened the applicant entirely as if the said. Document is not at all registered. Without considering this fact that the registration of such document is not denied but only the signatures are denied, the burden on the applicant would not be that severe as observed by the Appellate Court and perhaps this is a material irregularity and illegality that has been committed. Once it is stated by the applicant that the subject gift deed was registered and said registered gift was produced and the circumstantial evidence also support that she had been appearing before the concerned Sub-Registrar and that she was familiar with transaction and also familiar with the Advocate who has prepared the earlier gift deed which she got prepared from the same Advocate, the burden shifts on the respondent to prove her assertion of fraud which cannot be categorized as "negative assertion" as it can be conveniently proved by respondent rather than applicant.
21. ' The respondent in this- case has claimed commission of fraud played by her son. Since she filed this suit with this plea, the initial burden in my view would be on respondent and on this account the issue No,1 was framed by trial Court. The sanctity attached to this registered document cannot be taken away by slip of tongue that it is the outcome of fraud and forgery and that she being parda-observing lady and that the beneficiary is required to prove the transaction was made in good faith despite the fact that there is no issue framed by the trial Court. The test to prove this registered document as forged document is a little higher on respondent. As I have observed earlier that the benefit of which a parda observants are entitled for is not available to her and the requirement of registering a document executed by parda-observing lady are not met by respondent. Even the admission on the part of applicant that respondent is parda-observing is not the admission with this understanding of definition. The relevant parts of respondent's cross- examination are as under:--- ' It is correct that I have gifted the property to Younus Ali my son in which I reside with Younus Ali. It is correct that I have seen the office of Sub-Registrar Hyderabad. I have obtained copy of alleged gift-deed (Exh.19) from the office of Sub-Registrar It is correct that registrars (registries) made by me, are made through Kazi Aij az Advocate except (Exh.19)
22. ' I see Exh-5 Vakalatnama and says that the signature is identical with my signature. Signature of mine are identical on Exh-19 It is correct that three shops situated at Tilak Chari Hyd: belongs to defendant and. I used to collect the rent.
23. ' The respondent in her cross-examination has not been able to establish such fact by leading an impressive evidence and on the parity of reasoning. I am unable to agree with the findings of the Appellate Court' that she is entitled to all those benefits which she has claimed in suit being parda observant. Respondent failed tests prescribed by the definition of parda-observants.
24. ' The judgments referred by the learned counsel for the respondent. As referred above, are very much distinguishable with reference to the case in hand. I would like to deal with each judgment as under:-- 2002 SCMR 1938:- ' Though it is not necessary for a donor to furnish the reasons, for making a gift yet no gift in the ordinary course of human conduct is made without reason or justification unless the donor is divested of all the power of reasoning and logic and unless he is a person of unsound mind. In the wake of frivolous gifts generally made to deprive females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful owners and no course of inheritance' is bypassed.
10. Another important aspect of the case is that in the instant case the possession was held by Barkat Ali the son of the donor against whose interests the gift was made. When possession is with a person against whose interests the gift is made, the delivery of possession becomes all the more necessary. Viewed from any angle, it is abundantly clear that no possession of the gifted property was delivered in tow to be done."
25. ' Both the above eventualities are missing in the instant case as the basic plea of the respondent is, that no such gift-was executed at all by respondent hence the facts of the case and the ratio that has been laid down is far from application to the case in hand.
26. 2003 CLC - "10. The petitioner being a beneficiary of the impugned mutation was under a heavy obligation to prove the valid execution of the same, particularly, when the respondent discharged initial onus with regard to issue No,3 by leading the evidence in the shape of the statements of witnesses as well as documents. This aspect gains importance as it could not be successfully refuted that the respondent was an illiterate pardahnasheen lady.
27. 11.
28. 12.. ............................................................................................................................
13. The submission of the learned counsel in the context of revocation of a gift may be effective only in those cases where gift has been made validly and lawfully without being tainted with malice, fraud and misrepresentation. This plea now being advanced for the first time in the given circumstances is of no weight at all as it has been held that no valid gift had ever taken place, in favour of the petitioner.
14. For what has been stated above, I am convinced that the respondent had been deprived of her property by the .Petitioner in a clandestine manner, thus her suit, as prayed for, was rightly and justly decreed against him. Resultantly, instant revision petition fails and the same is dismissed leaving the parties to bear their own costs."
29. ' This case deals with the person who is a beneficiary of impugned mutation and not impugned registered gift and perhaps this is, distinguishing feature that where the impugned mutation was made on the basis of oral gift, the burden to prove such mutation on the basis of oral gift would be very heavy whereas in cases where mutation is based on "registered gift" the onus to the beneficiary is not that heavy since the presumption of truth is attached to a registered document.
30. It is also distinguishable as the trial Court never considered fraud or misrepresentation observed by the beneficiary whereas the appellate Court did. It is not conceivable that the respondent who had executed such gifts in favour of other son would not have done it for the applicant as depriving one son would not be in the natural spirit of mother's love and affection however subsequent facts regarding withdrawal of rent which is denied by applicant, may have caused her to change her mind and more importantly When the respondent was in contact with the said lawyer Qazi Ahmed for the preparation of other documents, it would appeal to mind that the presumption of fraud was not available to the respondent. Needless to mention that burden to prove fraud was on respondent and in case the theory of respondent's judgment cited as PLD 1994 Karachi 106 is considered, the assertion that fraud was committed .Was positive and affirmative of the issue and not upon the parties who denies such assertion as negative assertion is usually incapable of proof confirms such discharge of burden by respondent. Reliance is made on PLD 1982 SC 465.
31. 1993 MLD 1542 ' A mere oral word coupled with the possession would not be sufficient. The circumstances would differ from case to case. In the present case the plaintiff being the daughter of the deceased would be entitled to her share of inheritance in the assets left by the deceased. The mere fact that she had been given in marriage and is living separately with her husband would not disentitle her from her share nor the fact that defendant is in exclusive possession of the said assets would deprive her of her share. .........................................................................................................
32. ' This case is also distinguishable on the ground of oral gift as compared to the case in hand where.
33. The registered gift was executed hence the onus to prove factum of gift stood discharged to a large extent and the only element of fraud, as pleaded by the respondent, required to be scrutinized.
34. ' 2001 SCMR 1156 "10. Careful perusal of the attestation order shows that Allah Ditta was not present before the Revenue Officer though it was shown that Mehdi Lambardar identified him. Admittedly, the land in question was situate in the revenue estate, of Chak Sanatta but the mutation was effected in Chak Khizri in order to prove a valid gift. It was very much obligatory for the defendant to prove voluntary nature of the gift in his favour by adducing convincing evidence and cogent reasons about the presence of ' Allah Ditto before the Revenue Officer for the purpose of .Admitting the gift by him. As stated hereinabove in this case, neither the Patwari who entered the mutation, nor the GirdawarHalqa, who verified its entries nor the Revenue Officer who finally attested the gift mutation appeared at the trial to support the transaction at Chak Khizri. In the ordinary course of nature the mutation should have been taken up in the revenue estate to which it belonged. There is no explanation as to why it was taken to another revenue estate for attestation.. ............................................................................................
35. ' From bare perusal of this judgment reveals that it is a case on oral gift that too was implemented before the Revenue Officer of another jurisdiction and hence onus to prove such gift was heavily on the beneficiary, which is not the case here.
36. ' PLD 1995 Karachi 421:--- ' . For the reasons mentioned above, in relation to the alleged oral gift and, in view of the characters of the witnesses and the contradiction in their statements, the evidence of these witnesses cannot be believed. I would, therefore, hold that there is no reliable evidence of execution of the memorandum as alleged and that, in any case* is of no consequence.
37. ' This is also a case where the oral gift was made basis of subject mutation and hence not relevant in the instant case.
38. ' 2003 MLD 319.
8. It is needless to enter into extensive and detailed discussion on the legal aspects of a 'gift' but at least it is an inevitable and predominant requirement that the person deriving title through gift should lead formidable evidence to establish that the owner of the property offered it to him as a gift, the later accepted the same and the transaction was solemnized and completed by way of delivery of possession. Incidentally in this case neither the donee nor the donor have stepped into the witness-box to give evidence on these crucial facts nor the witnesses, cited by the defendant, have ever turned up."
39. ' Facts of this case are also not relevant as in this case the beneficiary stepped into the witness-box along with two witnesses and a formidable evidence to establish the registration of the gift was established hence it is distinguishable from the instant case.
40. ' PLD 1994 Karachi 106:- ..This plea is not substantiated from the evidence available on record. The rule of Roman law encumber probation qui dicit non qui negat the burden of proving a fact rests on the party who substantially asserts the affirmative of,the issue and not upon the party who denies it, for a negative, is usually incapable of proof, is a well-recognized principle of evidence on the point of burden of proof. The Hon'ble Supreme Court in the case of Allah Din v. Habib reported in PLD 1982 SC 465 observed that no doubt the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent but non-payment of rent is a negative fact and if the landlord appears in Court and states on oath that he has not received rent for a certain period, it would be sufficient to discharge the burden that lies upon him and the onus will then shift to the tenant' to prove affirmatively that he had paid or tendered the rent for the period in question. "
41. ' This case perhaps in my view has gone against the respondent himself as question of affirmative and negative has gone against the respondent since the applicant stepped into the witness box and discharged his liability when in assertion a registered gift was produced and the onus regarding the alleged fraud perpetuated by the applicant was shifted to the respondent.
42. ' 2012 SCMR 1373:- This is also a case where the mutation was effected on the basis of gift and the onus was on the beneficiary to prove that it was a bona fide transaction. In this case since the applicant has produced the registered gift, therefore, all presumption of bona fide is attached unless the alleged fraud, as pleaded by the respondent, is established by convincing evidence hence this case is distinguishable to the case in hand.
43. As submitted earlier the privilege and entitlement that a Pardah observing woman enjoys are not available to the respondent and hence it had become all that important for the respondent to prove the fraud and she cannot find her escape merely by mentioning that she is a Pardah observing lady. Though she may be parda-observant but themanner and spirit in which it is said and attempted to be utilized, she is not entitled for such benefit as she had been executing such deeds in favour of her other son.
44. ' Taking advantage of the present case, I deem it appropriate to discuss the principles of parda- observing ladies. The principles of pardaobserving ladies were developed during earlier days when women-folks were subservient and they seldom used to come out of their houses and they were entirely dependant on male members and were also under their influence and for this reason the definition of "undue influence" was provided in the contract act.
45. ' The judgments regarding parda-observants were mostly pronounced in the early days by Indian Courts before partition where after same principles were followed in 60s and 70s by our courts and are still being followed. The basic element hidden in the wisdom of providing benefit to parda- observing ladies in fact is element of "undue influence" which in fact could prevail even on women of current era. In fact the element of undue influence could prevail even on men who are subservient of women. So as I understand the core element is "undue influence" and not just being parda-observant. Even well-educated women do observe parda but that does not mean that they are also entitled for the same principle which benefits parda-observing women or victim of undue influence.
46. ' In this case respondent was stated to be living with her another son and the plea of undue influence is also missing and therefore, no convincing findings either by trial Court or appellate Court are available.
47. ' I am conscious of the fact that the trial Court failed to frame issue by using the required language so that the parties at the relevant could have been saddled with responsibilities to discharge their respective burdens.
48. ' In view of above detailed discussion, I therefore, remand the case to the trial Court with direction to reframe the following issues:--
(1) Whether the gift deed dated 14-3-1997 has been executed by respondent/plaintiff in accordance with law?
(2) Whether any fraud has been committed by the applicant/ defendant namely Syed Ayoub Ali Shah at the time of registration of subject gift as alleged by respondent?
49. ' And/or any other issue that may be deemed fit and proper under the circumstances of the case.
50. The parties if they so desire are at liberty to lead evidence on the reframed issues, where after judgment and decree may be passed after appreciation of evidence that may come on record.
51. The impugned judgment and decree of the Appellate Court as well as of the Trial Court are set aside with no order as to cost.