' MASUD ABID NAQVI, J. --- Resume of facts, forming background of instant civil revision is that two suits were filed between the parties to this revision petition i.e. Haji Iftikhar Ahmed respondent No. 1 filed a suit for possession through partition and recovery of rent titled Haji Iftikhar Ahmed v. Sarfraz Ahmed, etc. Regarding suit property i.e. Double story building including 03-shops situated in Mohallah Chahat, Tehsil Kahuta District Rawalpindi with the contention that his father late Noor Hussain gifted the suit property to his four sons vide Gift deed No. 287, dated 09.08.1995. On the basis of Gift deed No. 287, dated 09.08.1995, he is owner in possession of 1/4 share in the suit property alongwith his brothers/respondent No. 2 to 4 and the defendants are also receiving the rent of the 03 shops by depriving the plaintiff from his share. The respondents No. 2 to 4 controverted the contents of the plaint by filing written statement and denied the existence of the disputed alleged gift deed in these words: "Para 2..Alleged gift deed is false, frivolous and fictitious and defendants have not accepted the alleged gift deed and is result of fraud and to deprive all the legal heirs of the (deceased) Noor Hussain Qureshi and the plaintiff is not owner to the extent of 1/4 share." On the other hand, petitioners i.e. Ghulshan Bibi/widow, Shama Naz/daughter and Shehnaz Akhtar/daughter of late Noor Hussain filed second suit for declaration, cancellation of gift deed and for permanent injunction titled Mst. Gulshan Bibi, etc. v. Haji lftikhar Ahmed Qureshi contending that being legal heirs of Noor Hussain, they alongwith the respondents are owners in possession of suit property. Respondents fraudulently and in collusion with the local revenue staff, got registered a fictitious gift deed No. 287, dated 09.08.1995 of the suit property in their favour.
Petitioner No. 1 being widow of Noor Hussain Qureshi is receiving the rent of the shops from last 20 years. On receiving the information about the existence of registered gift deed of suit property in favour of the respondents, the petitioners not only claimed ownership of the suit property on the basis of inheritance but also demanded for the cancellation of registered gift deed which was refused by the respondents. Respondent No. 1 controverted the contents of the plaint by filing written statement and claimed the ownership on the basis of Gift deed No. 287, dated 09.08.1995 but the respondents No. 2 to 4 filed a conceding written statement.
2. Out of divergent pleadings of ail the parties, the following consolidated issues were framed by the learned Trial Court.
ISSUES:
(1) Whether the gift deed No. 287, dated 09.08.1995 of suit property by Noor Hussain predecessor- in-interest of parties in favour of the defendants is forged one and liable to be set aside?
(2) Whether the plaintiff No. 1 is in possession of the suit property and she raised constructions upon it by spending amount of her own? OPP
(3) Whether the plaintiffs are entitled to get the decree as prayed for? OPP
(4) Whether the defendant No. 1 is entitled to get the decree for partition of the suit land and he is entitled to receive its rent as per his share, if yes, since when and how much? OPD-1
(5) Whether the suit of plaintiff is time-barred? OPD-1.
(6) Whether the respective suits of the parties are liable to be dismissed for deficient Court-fee? OP Parties
(7) Whether respective suits of the parties are frivolous and the opponent party is entitled to get special costs u/s. 35-A, CPC?
(8) Relief.
3. Both the parties produced their evidence and after recording the same, learned Trial Court decreed the suit for declaration, cancellation of gift deed and for permanent injunction of the petitioners and directed to include the petitioners as legal heirs in suit for possession through partition and recovery of rent filed by respondent No. 1 vide consolidated judgment & decrees dated 11.02.2011. Feeling aggrieved, the respondent No. 1 filed appeals and learned Additional District Judge vide consolidated judgment & decrees dated 06.07.2011 accepted the appeals. Being dissatisfied, the petitioners have filed the instant Revision Petition and challenged the validity of the consolidated judgment and decrees of the learned lower Appellate Court.
4. Learned counsel for the petitioners submits that the findings of the learned Appellate Court are based on misreading and non-reading of evidence and against law and facts of the case. Being legal heirs of Noor Hussain, petitioners alongwith the respondents are owners in possession of suit property. In collusion with the local revenue staff, respondents got registered a fictitious gift deed No. 287, dated 09.08.1995 of the suit property in their favour.
5. Conversely, the learned counsel for the respondent No. 1 submits that late Noor Hussain gifted the suit property to his four sons/respondent No. 1 to 4 vide Gift deed No. 287, dated 09.08.1995. On the basis of Gift deed, the respondent No. 1 is owner in possession of 1/4 share in the suit property alongwith his brothers/respondents No. 2 to 4 while the learned counsel for the respondents No. 2 to 4 denied the existence of the alleged gift deed by stating that being legal heirs of Noor Hussain, the petitioners and respondents are the owners in possession of the suit property.
6. I have heard the arguments advanced by the learned counsel for the parties and perused the record with their assistance.
7. The perusal of record reveals that initially the onus of proving the issue No. 1 was on the petitioners but after their denial of the factum of gift and genuineness of the gift deed, the same was shifted to the respondents as they were/are the beneficiaries of the disputed gift deed. It is admitted fact that out of four beneficiaries/respondents No. 1 to 4 of the disputed gift deed, only respondent No. 1 claimed the ownership to the extent of his share i.e. % of suit property on the basis of disputed gift deed. It is a settled law qua the transaction of gift that it is the duty of beneficiary and a heavy onus lies on him to prove by convincing evidence, satisfying the judicial conscience of the Court that transaction shown to be a gift was executed by the donor in favour of donee. A valid gift can be effected orally or through registered gift deed. Under the law, mere registration of a document in itself is not the proof of its execution, if any of the parties in litigation denies its execution. Reliance is placed on Mst. Rashida Bibi and others v. Mukhtar Ahmad and others (2008 SCM R 1384). Article 79 of the Qanun-eShahadat Order, 1984, prescribes that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses have been called for the purpose of proving its execution, if there be two attesting witness alive. Haji Iftikhar Ahmed Qureshi/respondent No. 1 appeared as DW.1 and stated that suit property was gifted to him alongwith his other brothers in presence of the witness Haji Jhan Alam and Abdul Rasheed deceased. Sarfraz Ahmed/respondent No. 4 appeared as DW.2 and also deposed on behalf of respondents No. 2 & 3 as their attorney. DW-2 stated that alleged gift deed is false, fictitious and is the result of fraud and did not support the contention of respondent No. 1/DW-1. Haji Jhan Alam and Fazaldad are the witnesses of disputed gift deed. Neither the scribe nor the marginal witnesses of disputed gift deed or the stamp vendor were produced and examined by the respondent No. 1 to prove his claim or gift deed. Hence, the respondent No. 1 miserably failed to establish (i) the factum of gift and (ii) genuineness of the gift deed. Therefore, the gift is not valid. Reliance in this regard is placed on Mst. Nagina Begum v. Mst. Tahzim Akhtar and others (2009 SCM R 623) & Mohammad Ashraf v. Imam Bakhsh and 6 other (2007 M LD 50).
8. Under Mohammadan Law, a gift by a Muslim would be complete, if the three necessary and inseparable ingredients are proved i.e. (i) declaration/offer by the donor (ii) acceptance of gift by the donee and (iii) delivery :of possession under the gift. It is also an admitted fact that all the legal heirs of Noor Hussain are in possession of the suit property and are residing therein. The electricity and gas bills of the suit property are still in the name of deceased Noor Hussain. Delivery of possession of suit property was/is essential ingredient to constitute a valid gift which is lacking in this case and thus gift without possession is void ab-initio. Reference is made to Muhammad Yagoob through Legal Heirs v. Feroze Khan and others (2003 SCM R 41).
9. Late Noor Hussain allegedly gifted the suit property to his four sons vide Gift deed No. 287, dated 09.08.1995 but out of four beneficiaries/respondents No. 1 to 4 of the disputed gift deed, only respondent No. 1 claimed the ownership to the extent of his share i.e. 1/4 of suit property on the basis of disputed gift deed. The other beneficiaries/respondents No. 2 to 4 denied the existence of the disputed alleged gift deed and considered all the legal heirs of Noor Hussain as owners in possession of suit property as per their inherited shares. The contents of written statement and the evidence of the beneficiaries/respondents No. 2 to 4 cannot be discarded wherein they have voluntarily is associated themselves from the alleged transaction of gift no cogent evidence exists to prove the disputed gift deed of suit property.
10. On receiving the information about the existence of registered gift deed of suit land in favour respondents, the petitioners not only claimed the ownership of the suit land but also demanded for the cancellation of registered gift deed. Even otherwise, gift deed was challenged on the ground of fraud and in such cases of fraud, the limitation would start from the date of knowledge and not from the date of fraud so committed. It is also well-settled that fraud vitiates even the most solemn proceedings. Reliance is placed on Khair Din v. Mst. Salaman and others (PLD 2002 Supreme Court 677).
11. It is quite intriguing to note that disputed gift deed is an attempt to deprive all the female members of the Late Noor Hussain's from their inheritance, without any reason or justification. In this regard, para of citation i.e. Barkat All through Legal Heirs and others v. Mohammad Ismail through Legal Heirs and others (2002 SCM R 1938) provides the guidance which is reproduced hereunder:- "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 owner and no course of inheritance is bypassed."
12. In view of the foregoing discussion, the impugned consolidated judgment & decrees dated 06.07.2011 passed by the learned Additional District Judge are not sustainable in the eye of law which are the result of misreading and non-reading of evidence and suffer from legal infirmity, therefore, the same are set aside and the consolidated judgment & decrees dated 11.02.2011 passed by the learned Trial Court is upheld being well reasoned and in accordance with law. Resultantly, this revision is allowed.