CH. MUHAMMAD MASOOD JAHANGIR, J.--- The leading facts of the case are that Syed Sharaf Hussain Shah (hereinafter to be referred as donor), grandfather of the petitioner (hereinafter to be referred as plaintiff) and father of the respondents (hereinafter to be referred as defendants) was owner of suit property measuring 200 Kanals, fully detailed in the caption of the plaint, who died on 09.8.2002. After his demise, the plaintiff on 20.8.2002, when he was minor, instituted a suit for declaration through his mother being his next friend and asked for his share in the legacy of his grandfather/donor while claiming cancellation of gift deed executed on 26.06.2002 and attested on 27.06.2002 being forged and fictitious. It was further pleaded in the plaint that donor six months prior to his death suffered an attack of paralysis and lost his senses, which condition prevailed till his death, who ultimately took his last breath on 09.08.2002, that the donor had neither made any declaration of gift in favour of defendant No,1 nor he signed the gift deed; that he had neither appeared before the registering authority for the attestation of gift deed nor he was capable to make any decision qua his property, that defendant No,1 in connivance with the Naib Nazim of the Union Council to deprive the other legal heirs from their shares in the legacy of the donor got attested gift deed. The suit was contested by the defendants by filing a joint written statement while claiming that donor was a healthy person, who with his free consent got executed the gift deed in favour of defendant No,1 and only one week prior to his death suffered with fever. The learned trial court after capturing the disputed area of facts framed the following issues:-
(1) Whether the plaintiff is entitled to decree for declaration and perpetual injunction as prayed for? OPP (2 )Whether the gift deed dated 26.06.2002 registered on 27.06.2002 with Sub-Registrar, Khushab regarding the suit property is illegal, against law and facts, based on fraud and misrepresentation and as such ineffective upon the rights of the plaintiff? OPP
(3) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(4) Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
(5) Whether the defendants are entitled to special costs under section 35-A C.P.C.? OPD
(6) Relief
2. The learned trial court after collecting evidence of the parties in pros and cons answered issue No,2 in affirmative in favour of the plaintiff and his suit was decreed vide judgment and decree dated 29.1.2010, however, the same was set aside, when the appeal filed by the defendants was accepted and suit of the plaintiff was dismissed by the learned Additional District Judge vide impugned judgment and decree dated 16.7.2010. Having felt aggrieved, the instant civil revision has been filed.
3. Arguments heard and record perused.
4. It is an admitted fact that donor was owner of the suit property, who at the time of his death on 09.8.2002 left behind one son-defendant No,1, two daughters-defendants Nos.2 and 3 and the plaintiff as grandson being son of his predeceased son. His death was entered in the relevant Register of Death (Exh.P2) on the same day and as per Columns Nos.7 and 8, the donor at the time of his death was 70 years old and he breathed his last due to paralysis. Whereas, the gift deed (Exh.D1) was alleged to have been executed on 26.6.2002 and it was attested on 27.6.2002 by the Sub-Registrar.
5. To prove the fact that the donor had been suffering from mental incapacity/paralysis, the plaintiff himself appeared as PW1 and produced-copy of death entry of the donor as (Exh.P2) as well as copy of Nikah Nama as (Exh.P3). The plaintiff categorically deposed in his examination-in- chief that the donor had been suffering from paralysis 5/6 years prior to his death, who could neither speak nor could walk and the disputed gift deed was forged and fictitious, which was not signed by the donor and that the donor had never made any declaration of gift or delivered the possession of the same to defendant No 1. The contention of learned counsel for defendant No,1 that plaintiff was under legal obligation to prove the fact that at the time of declaration of gift and attestation of instrument, the donor was suffering from death illness, but he failed to prove the same, is misconceived. To my mind, such disease means that a person is apprehending the probability of death than his chance to live. In the present case, as per record, the impugned instrument was executed on 26.6.2002 and it was registered by the attesting authority on the very next day and the death entries of (Exh. P2) speaks that the alleged donor passed away within a period of 43 days on 09.8.2002. The death of the donor within the said shortest period proves A the stance of the plaintiff that at the time of attestation of impugned instrument, the alleged donor was probably apprehending death. Additionally, the said document (EX.P2) as per Article 85 of Qanun-e -Shahadat Order, 1984 is admissible in evidence and the contents thereof attained presumption of truth. Reliance can be placed on the judgment reported as Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan (1989 SCMR 704). The entries of the same had also neither been challenged independently nor through his deposition by defendant No,1. The entry of death of the donor was got promptly made in the relevant Register by the Chowkidar of the revenue estate, who being an independent person must have got recorded the same as per reality.
Moreover, at the time of exhibition of the said document as Exh. P2, no objection was raised by the rival party and the same cannot be objected thereafter. Reliance can be made to the judgments reported as Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165) and Muhammad Farooq v. Abdul Waheed Siddiqui and others (2014 SCMR 630). Conversely, the defendants in their written statement alleged that the donor was a healthy person, who died due to fever, which suffered him only one week prior to his death, but his own witness, Saleem Murtaza (DW4) admitted in his cross-examination that the donor was suffering from paralysis and that being a disabled person as well he could not walk without the aid of crutches, when the instrument was attested, which left nothing to believe that the doner was not a healthy person and he definitely required an independent advice for making a declaration of gift and execution of instrument and admittedly the same was missing.
6. Apart from above, when the written statement is glanced, it reveals that no date, time, venue or names of the witnesses were mentioned to explain that when, where and in whose presence the alleged declaration of gift was made by the donor, which was accepted by defendant No,1 followed by delivery of possession of the suit property in lieu thereof. In absence of giving details of such ingredients in the written statement defendant No,1 remained fail from inception of the suit to prove the transaction of disputed gift. It is also noteworthy that written statement is also completely silent to the effect that when the instrument was scribed and before whom it was attested. It is settled law that a party has to first plead facts and pleas in the pleadings and then to prove the same through evidence. A party cannot be allowed under the law to improve its case beyond what was originally set up in the pleadings. The principle of "secundum allegata et probata." that a fact has to be alleged by a party before it is allowed to be proved is fully applicable in this case, which has full command of provisions of Order VI, rule 2 and Order VIII, rule 2 of the Civil Procedure Code, 1908.
As such any evidence led by a party beyond the scope of its pleadings is liable to be ignored.
Reliance can be placed upon the dicta laid down in the case law reported as Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 SC 965) and Haider Ali Bhimji v. Vlth Additional District Judge, Karachi (South) and another (2012 SCMR 254), wherein it was held that in absence of specific pleadings, the court could not allow a party to grope around and draw remote inferences in his favour from his vague expressions. Anyhow, in order to prove his alleged transaction as well as execution/attestation of gift deed defendant No,1 produced Sub Registrar as DW2, who admitted in his cross-examination that the donor was not personally known to him and he could not tell his exact age as much time had elapsed. However, DW2 clarified that on the identification of Saleem Murtaza, the Nazim, he attested the gift deed. The latter (Saleem Murtaza) while appearing as DW4 deposed that the gift deed was attested in favour of defendant No,1 on his identification, who during the cross-examination, however, conceded that the donor died due to paralysis, but with the clarification that attack of paralysis suddenly affected him and he died. He further deposed that the donor was a disabled person, who fell from a tree and could walk only with the aid of crutches. Whereas Syed Zafar Hussain (DW5) and Syed Qasim Raza (DW6), the alleged attesting witnesses of gift deed, were brought into the witness-box to prove the oral transaction as well as execution of gift deed. Syed Zafar Hussain (DW5) deposed that on 26.6.2002 in the evening time, the declaration of gift was made by the alleged donor at his residence in favour of defendant No,1 in presence of Qasim Raza, Zameer-ul-Hassan and Ghulam Hussain. It was also stated by him that on the next day the gift deed was executed, but it could not be attested on that day because the Lumbadar, Councilor, or Nazim of the Union Council concerned were not available for the verification as well as identification of the donor and that is why the same was attested on the following day. On the other hand Syed Qasim Raza (DW6) deposed without mentioning the month and year that on 25th day after the prayer of evening, the disputed property was gifted out by the donor in favour of defendant No,1 and gift deed was got scribed on the following day. The critical analysis of statements of both these witnesses has shattered the stance of defendant No, 1 . As observed supra DW5 deposed that the declaration of gift was made on 26.2.2002 followed by the execution of gift deed on 27.2.2002 and it was attested on 28.2.2002, which itself is contradictory to the contents of gift deed, the perusal of which reflects that it was scribed on 26.2.2002 and attested on 27.2.2002. Whereas DW6 could not tell the month as well as year of the settlement of transaction or attestation of the instrument, but he only deposed that transaction of gift was effected on 25th day and on the next day, the gift deed was scribed, which was ultimately registered on the very next day. The contradiction in the statements of the said two witnesses has caused suspicion qua the execution/attestation of the instrument as well as transaction embodied therein. However, the testimony of DWs5 and 6 is found to be consistent only to the effect that on the day when the gift deed was scribed, the same could not be attested due to the non-availability of the identifier but Saleem Murtaza, identifier being ,DW4 deposed nothing in this regard to corroborate the deposition of DWs.5 and 6. The copy of original gift deed Exh.D1 is available on the file, which is found to be scribed on a plain paper, whereas such an instrument is required to be drafted on stamp paper after having affixed stamp duty. No doubt, execution of gift deed is not prohibited on a plain paper, but in such a situation, the authentic evidence in the shape of stamp vendor and his Register could not be made available by the beneficiary for its proof. In the case in hand, the deed writer could also not be produced on account of his death. No doubt, his son being DW3 was brought into the witness-box, but he did not depose that in the deed writing Register of his father, the signatures or thumb impression of the donor were also available against the entry qua the gift deed. During the cross-examination DW3 also showed his inability to read out the contents of Exh.D1 as well as the entries of the Register, which was produced in the Court at the time of his evidence. The minute analysis of the testimony of aforementioned DWs as well as study of written statement has left nothing for this Court except to conclude that defendant No,1 failed to plead and prove the basic transaction of gift as well as execution/attestation of the gift deed in his favour.
7. The argument of learned counsel for defendant No,1 that gift deed being registered instrument attained strong presumption of truth and defendant No,1 was no more required to prove its contents is not well founded. It is by now well settled principle of law that whenever the execution or validity of a purportedly registered document is denied, the same loses sanctity of being presumed to be correct, but its lawful veracity would depend upon quantum and quality of evidence to be produced to prove its lawful execution. Reliance can be placed upon judgments reported as Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144) and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245). In the latter case, the apex court concluded in the following words:- It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction of which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness of document.
Additionally, under section 60 of the Registration Act, 1908, only a restricted presumption is attached that registration proceedings were regularly and honestly carried out by the attesting officer, but the said presumption attached to its certificate is always rebutable and whenever the execution of an instrument is denied, then the presumption is deduced to have been sufficiently rebutted and onus lies upon the person, who alleges execution to prove that the document was executed and the transaction did take place. The presumption in favour of a registered instrument does not dispense with the necessity of showing that person, who admitted the execution before the attesting officer was not an imposter, but the genuine one. Reliance can be placed upon the judgment reported as Gopal Das v. Siri Thakir Gee and others (AIR 1943 P.C. 83). This view has also been conceived by the Division Bench of this Court in a case reported as Siraj Din v. Jamila and another (PLD 1997 Lahore 633) wherein, it was observed that everything, which found mention in the registered deed must not invariably be accepted without proof of its execution, genuineness and authenticity.
8. The other glaring factor omitted to have been considered by the learned lower appellate court while passing the impugned judgment is that admittedly defendant No,1 was not the sole legal heir of the donor, rather, he had two daughters/defendants Nos.2 and 3 and a minor grandson/plaintiff when the alleged transaction was settled. No overwhelming evidence is available on record that the donor at that relevant time did not have cordial relations or had strained relations with the other legal heirs to exclude them from his property to be devolved upon them after his death. The argument of learned counsel for the defendants that the daughters of the donor/defendants Nos.2 and 3 had conceded the transaction while submitting joint written statement along with defendant No,1, is also not well founded. No doubt, the alleged joint written statement on their part is available on file, but none of them appeared in the witness-box to prove the same. The written statement alleged to be submitted on their behalf cannot be read as a piece of evidence in favour of defendant No,l. Admittedly, only defendant No,1 while appearing as DW7 deposed that at the time of declaration of gift, the donor expressed to deprive the plaintiff due to his untoward/balky attitude, but the said deposition was not supported by any other witness, rather same is also found to be alien to the contents of the written statement. Moreover, qua the daughters/defendants Nos.2 and 3 no such reason was assigned by defendant No,1 in his deposition. On the touchstone of above discussion, it can safely be concluded that defendant No,1 failed to prove that for what reasons the plaintiff and defendants Nos.2 and 3 were deprived of their due shares in his property by the donor. In the absence of a sufficient ground and explanation or logical defence, defendant No,1 miserably failed to prove the special circumstances/reasons/motive for the transfer of entire property to him by the donor while excluding the other legal heirs. This view is fortified with the dictum laid by the apex Court in the judgments reported as Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938) and Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144). I have found that the learned lower appellate court in disregard of the evidence on the record and the law on the subject as well as the principle declared by the superior Courts has passed the impugned judgment and decree, which being nullity in the eye of law cannot be sustained.
9. Consequently, the instant civil revision is allowed, the impugned judgment and decree dated 16.07.2010 passed by the learned lower appellate court is hereby set aside and judgment and decree dated 29.1.2010 passed by the learned trial court, whereby, the suit filed by the plaintiff was decreed, is restored with no orders as to costs.