' QAISER RASHID KHAN, J.---Aggrieved of the judgments and decrees dated 21-6-2010 and 30-5- 2012 of the learned Civil Judge-XI and the learned Additional District Judge-IV, D.I.Khan vide which the suit of the respondent No,1 was decreed to the extent of reliefs 'Alif' and 'Bay' as prayed for in the plaint, the instant petition has been preferred.
2. Compendium facts of the instant petition are that the respondent No,1/plaintiff filed a suit for declaration-cum-permanent injunction along with prayer for partition and recovery of mesne profit against her two brothers i,e, the petitioner and respondent No,2. She also impleaded her three sisters i,e, respondents Nos.3, 4 and 5 (respondent No,5, since deceased). The respondent No,1/plaintiff contended in her plaint that the suit property i,e, a house and an adjacent plot belonged to her father late Said Akbar Khan and after his death, both her brothers i,e, the petitioner and respondent No,2 fraudulently transferred the same through registered gift deed No,1928 dated 28-7-2006 and through a partition registered deed No,1929 of the even date and in the process depriving her as well as her other sisters from their sharai shares.
3. On being summoned, both the petitioner and the respondent No,2 contested the claim of the respondent No,1/plaintiff by filing their joint written statement. Respondents Nos.3 and 4 threw their weight behind the claim of the respondent No,1/plaintiff through their written statement. Mst. Razia Bibi (since deceased) was placed ex parte. Out of the antagonistic pleadings of the parties, the learned trial judge framed 15 issues including the relief, whereafter the parties led their respective evidence and finally the suit of the respondent No,1 /plaintiff was partially decreed to the extent of reliefs 'Alif' and 'Bay'. Whereas the petitioner challenged the judgment and decree through an appeal, the respondent No,2 did not file any appeal and thus 'showed his tacit acquiescence to the judgment and decree of the learned trial judge. The appeal was in turn dismissed by the learned appellate court, hence the present petition.
4. Learned counsel for the petitioner argued that both the learned courts below have not appreciated the evidence on record in its true perspective and have committed material illegalities and irregularities while passing the impugned judgments and decrees. He further argued that the respondents Nos.4 and 5 had the same interest as respondent No,1 in the disputed property and their respective husbands were present at the time of execution of disputed deeds and as such there was no question of fraud or misrepresentation on the part of the petitioner.
5. Arguments heard and available record perused.
6. The core issue of the matter is whether the said documents were executed by the respondent No,1 and her sisters out of their own free will and as to whether they had the knowledge of its consequences whereby they allegedly gifted their sharai shares in favour of their brothers or were they made to believe that some partition deed was being prepared and their signatures were accordingly solicited?
7. There is no denying the fact that the suit property belonged to late Said Akbar Khan, the predecessor-in-interest of the parties. The stand of the petitioner and the respondent No,2 in the written statement was only to the extent that the registered deeds were not fraudulent but based on the consent of the respondent No,1 and the other sisters. However, they stopped short of terming the same to have been gifted to them through the. Gift deed. The respondent No,1 recorded her statement before the learned trial court as P.W.2 wherein she narrated that the suit property belonged to her father and after his death, it devolved on his legal heirs and that she was informed about the partition of the property among the legal heirs and she accordingly went to the petitioner's house where she was asked to sign such document and believing the same to be in respect of the partition of the legacy of her late father, she signed the documents and later on came to know that she had been deceived and defrauded and she thus accordingly filed the suit.
The scribe of the deeds i,e, petition writer appeared as DW-1 who candidly stated that the deeds were scribed at the petitioner's instance and that he did not personally know the respondent No,1 /plaintiff. In our own conservative set up and social milieu, a pardanashin lady or for that matter even a moderately educated lady is unable to understand the technicalities of transactions and that too, in a situation where the perpetrators of fraud are none but their real brothers. Gullible as the ordinary women are, it is quite understandable that they fall easy prey to such machinations especially when they are executed with a degree of finesse by their otherwise benign looking real brothers. As such the burden to prove the gift fell squarely on the shoulders of the beneficiaries, in the case in hand, on the petitioner and the respondent No,2 (since opted to stay away after the decree by the learned trial judge) which they failed to discharge. Wisdom in this respect can be sought from the case titled Arshad Khan v. Mst.Resham Jan and others 2005 SCM R 1859) wherein it has been held that:-- "This is settled law regarding the disposition of property of pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to tie benefited by such transaction through the reliable, cogent and convincing evidence. There can be no departure to the rule that if the good faith and genuineness of a transaction by virtue of which a right is created in the property, is disputed by its maker, the same in absence of proof of good faith and genuineness, would be voidable and in consequence thereto the entries on the basis of such transaction in the official record, would have no legal sanctity. The express or oral relinquishment of the right of a female heir in the inherited property in favour of a male heir, through gift or any other legal device, may in the normal circumstances, take effect but if the existence of such a transaction is denied and disputed by the said female heir, a presumption would be raised that the transaction was not genuine and the onus to prove that it was entered in good faith and was a genuine transaction, would be on the person who was claiming its genuineness and if such onus is not discharged satisfactorily, the document of relinquishment of rights of female heir in the property in favour of a male heir would not ipso facto, confer title adverse to the interest of female heir".
8. Another interesting and intriguing aspect of the case is that if at all the respondent-No,1 /plaintiff and her other sisters had agreed to part with their ancestral property in favour of their brothers on 28-7-2006, then why was it challenged in less than two months after the execution of the deeds through a suit filed on 25-9-2006 when even the ink of the deeds had not gone dry. This per se shows that the allegations of fraud stand proved beyond a shadow of doubt. Of all the legal heirs of late Said Akbar Khan, the petitioner has been left alone who holds on to the validity and authenticity of the gift in his favour. Moreover, the sine qua non of a valid gift i,e, offer, acceptance and delivery of possession have not been proved by the petitioner during the course of evidence and this singularly nullifies the gift. Both the learned courts below have discussed the issues and the evidence of the parties threadbarely and have come to the right conclusion through the impugned judgments and decrees. The findings of the learned courts below do not suffer from any illegality or material irregularity calling for interference by this court in exercise of its revisional jurisdiction.
9. For the reasons mentioned above, the instant revision petition being bereft of any merits is hereby dismissed in limine.
[Lahore] Before Shoaib Saeed, J MUHAMMAD ASIF---Petitioner versus AMINA BIBI and others---Respondents Writ Petition No,17306 of 2013, decided on 9th July, 2013.
(a) Punjab Rented Premises Act (VII of 2009)--- ----Ss. 15, 7 & 20---Constitution of Pakistan, Art. 199---Constitutional petition---Application for eviction of tenant---Payment of rent--Procedure---Ejectment petition was filed on 27-3-2013 and rent was deposited on 30-3-2013 after institution of the same---Tenant neither followed the terms of tenancy agreement nor the provisions of S. 7(2) and (3) of the Punjab Rented Premises Act, 2009---Payment of accumulated rent could not be considered a proper payment---Tenant deposited the rent for the defaulted period but he could not take refuge by such deposit of rent nor that would cause prejudice to the right of the landlord---Tenant should have made a tender or deposited rent on refusal of landlord or his agent to collect the same after seeking permission from the court but no such steps were taken in the present case---Tenant had failed to point out any illegality, irregularity or infirmity in the impugned orders passed by the two courts below-- Constitutional petition being devoid of any force was dismissed in limine and tenant was directed to handover the vacant possession of the shop to the landlord within. a period of 45-days from passing of the order. [pp. 1085, 1086] A, B, C & D Messrs Mehran Distributors through proprietor and 2 others v. United Bank Limited through Engineering Division, Karachi and 2 others 2009 YL14 1024 rel.
(b) Punjab Rented Premises Act (VII of 2009)--- ----Ss. 7 & 20---Payment of rent---Procedure---Tenant should make a tender or deposit rent in the court on refusal of landlord or his agent to collect the same after seeking permission from the court. [p. 1086] C M. Safdar Shaheen Pirzada for Petitioner.
' SHOAIB SAEED, J.---This writ petition is directed against the impugned orders dated 13-5-2013 passed by the Civil Judge/Rent Tribunal Shakargarh and 4-7-2013 passed by the Addl. District Judge, Shakargarh.
2. Brief facts of the case are that respondents Nos.1 to 8 filed an eviction petition on 27-3-2013 against the petitioner with reference to a shop situated in Abid Market Shakargarh. The ejectment proceedings were filed on the ground of default for the months of October of 2012 till 31-3-2013. The shop carried a monthly rental of Rs,4000. Petitioner filed an application for grant of permission to defend the ejectment petition claiming therein that he was not defaulter in the payment of rent and it was a practice that rent was not collected regularly, but after a period of three/four months.
It was also claimed that the petitioner deposited a sum of Rs,24,000 as rent for the relevant period.
3. It was contended by the learned counsel that petitioner was not a defaulter as the rent for defaulted months stood deposited. Admittedly, ejectment -petition was instituted on 27-3-2013 whereas, rent for the relevant months was deposited on 30-3-2013. It was also contended that the attorney who collected rent on behalf of the respondent/landlord refused to receive the rent, perforce after obtaining permission from the rent tribunal, rent for the defaulted months stood paid forthwith.
3. Heard. Record perused.
4. Admittedly ejectment petition was filed on 27-3-2013 and rent deposited on 30-3-2013 after institution of the ejectment petition. A Section 7 of the Punjab Rented Premises Act, 2009 lays a procedure in respect of payment of rent which is as under:-- ' Payment of rent.- ......
(1) ....
(2) If the date of payment is not mentioned in the tenancy agreement, a tenant shall pay or tender the rent not later than tenth day of the following month.
(3) If the mode of payment is not mentioned in the tenancy agreement, a tenant shall pay or tender the rent to the landlord through money order or deposit in the bank account of the landlord.
' Apparently the petitioner neither followed the terms of tenancy agreement nor the provisions of section 7(2) and (3) of the Act. Payment of accumulated rent by the petitioner/tenant cannot be considered a proper payment as held in a case reported as Messrs Mehran Distributors through proprietor and 2 others v. United Bank Limited through Engineering Division, Karachi and 2 others (2009 YLR 1024 (Karachi). Though petitioner deposited the rent for the defaulted period under section 20(2) of the Act yet he cannot take refuge by mere deposit of rent for the defaulted months nor can such a deposit cause prejudice to the rights of the petitioner/landlord. On refusal of the petitioner or his agent to collect rent, petitioner should have made a tender or deposited rent after seeking permission from the court. Had the procedure as laid by section 7 of the Act supra, been followed petitioner would have escaped the wrath of being a wilful defaulter. As is evident from record no such steps were taken in accordance with law.
5. Learned counsel for the petitioner has failed to point out any illegality, irregularity or infirmity in the orders passed by the two courts below. This writ petition being devoid of any force is dismissed in limine.
6. However, petitioner is directed to handover the vacant possession of the shop to the respondent/landlord within a period of 45 days from passing of the order. Meanwhile petitioner shall keep paying rent for the relevant period to the respondent/landlord.
' A copy of this order shall be sent to the learned Rent Tribunal concerned for its compliance.