1. GHULAM MUSTAFA MUGHAL, J. -- This appeal by leave of the Court has been filed against the judgment and decree passed by the High Court on 19.11.2014 in Civil Appeal No, 93 of 2011.
2. Precise facts forming background of the captioned appeal are that appellants. herein, brought a suit for declaration and cancellation of the gift-deed dated 9.3.1999, executed by one Kala Khan in favour of defendant No, 2, in the Court of Civil Judge; Fatehpur. Thakyala. on 27.2.2009. It was averred that the plaintiffs and defendant No, 2 are the daughters of Kala s/o Karam Din. who was owner of khewat Nos, 155, 156, 182 and 183. situate in village Khandhar, Tehsil Fatehpur Thakyala. The father of the appellants intended to transfer the land through a gift-deed to the plaintiffs and defendant No, 2 in equal shares and for that purpose, obtained the revenue record from local Patwari on 3.2.1999, however. defendants No, 2 and 3 created hurdle in the execution of gift-deed and sent back the father of the plaintiffs to home and thereafter by practicing fraud, the gift-deed was got registered in favour of defendant No, 2 on 9.3.1999. It was claimed that the father of plaintiffs was an illiterate and simple person and me gift-deed has been obtained fraudulently while depriving the plaintiffs from the right of inheritance The gift-deed in question was not got entered in the revenue record for a period of five years and when it was entered in the revenue record, the plaintiffs came to know about the execution of the gift-deed. It was claimed that the gift-deed is illegal and has been executed against Shariah. It was prayed that the same may be declared illegal. The suit was contested by the defendants by filing written statement. Their precise stand of the defendants was that the suit in the present form was not maintainable and the plaintiffs have not locus standi to institute the suit. It was further claimed that the suit was time- barred. It was claimed that Kala Khan has validly executed the gift-deed in respect of the suit land in favour of his daughter and she is in possession of the land, hence the plaintiffs have no concern with the same. The learned Trial Court, in the light of the pleadings of the parties, framed issues and directed them to lead evidence pro and contra. At the conclusion of the proceedings. the learned Civil Judge, Fatehpur Thakyala vide judgment and decree dated 30.9.2010, dismissed the suit for want of proof. The appellants, herein, felt aggrieved from the judgment and decree dated 30.9.2010 and challenged the legality and correctness of the same by way of appeal before the District Judge, Kotli on 21.12.2010. After hearing the parties, the learned District Judge, Kotli vide judgment and decree dated 30.9.2011. dismissed the appeal. A-second appeal was filed by the appellants, herein, before the High Court on 16.12.2011, which met the same fate and has been dismissed through the impugned judgment on 19.11.2014.
3. Sheikh Masood lqbal, Advocate, appearing for the appellants, contended that the judgment passed by the Civil Judge, Fatehpur Thakyala as well as the District Judge, Kotli and the learned High Court is erroneous, perverse and capricious because the Courts below have not attended to the controversy involved in a legal fashion and dismissed the suit of the plaintiffs on the ground that they have not proved that the gift-deed dated 9.3.1999 has been executed by practicing fraud and deception. The, learned Advocate . argued that it was upon the beneficiary of the gift-deed i,e, defendant No, 2 to prove that the same was executed properly and in a legal manner despite of the fact that the donor obtained copy of jamabandi for making gift in favour of all the daughters.
2. As the intention of the donor for execution of the gift-deed in favour of all the daughters was clearly indicated from copy of jamabandi, therefore, the voluntary execution of the gift-deed remains shrouded in mystery, hence, findings of the Courts below are not sustainable. The learned Advocate argued that the intention of the donor was to be proved clearly that he has intended to execute the gift-deed in favour of one legal heir only by excluding the others but this fact has not properly been proved by the respondents. The learned Advocate contended that defendant No, 2, who was beneficiary of the document, has not appeared in the witness-box, therefore, an adverse presumption was liable to be drawn against her. In support of his submission, the learned Advocate referred to and relied upon the following cases:-- (i)Muhammad Ashraf Vs. Bahadur Khan and others (1989 SCMR 1390).
3. (ii)Raj Muhammad Vs. Zinat Begum and 8 others (2004 SCR 541), (iii)Khurshid Ahmad and 7 others Vs. Zeenat Begum, widow and another (PLJ 2003 AJ&K 59), and (iv)Rashid Ahmad and others Vs. Sardar Bibi and others (1994 MLD 467).
4. In Muhammad Ashraf Vs. Bahadur Khan and others(1989 SCMR 1390), it was observed that as to why in the presence of legal heirs, particularly her own children, donor would have gifted out her entire land to a nephew, was not explained and it was held that the gift-deed was not valid one but fictitious and has been obtained through fraud In Raj Muhammad Vs. Zinat Begum and 8 others (2004 SCR 541), this Court in the identical situation, has observed that execution of gift was not proved by producing marginal witnesses or scribe of the document and no reasons whatsoever were shown as to why the gift-deed was executed in favour of the appellant and proforma respondents, therein by depriving the wife and son from the property of the donor. It was further observed in the judgment that burden of basic issue of execution of the document should have been placed on the shoulders of defendant-appellant and proforma respondents, who had claimed valid execution of the gift-deed.
5. In Khurshid Ahmad and 7 others Vs. Zeenat Begum, widow and another (PLJ 2003 AJ&K 59). the gift-deed was declared illegal for the same reasons and on appeal in the above-referred case the judgment was maintained by this Court.
6. In Rashid Ahmad and others Vs Sardar Bibi and others (1994 MLD 467), it was observed that onus to prove execution of the gift-deed by the donor heavily rested on the donee, who claims to be its beneficiary.
7. 4.Conversely Mr. Abdul Razzaque Chaudhary Advocate, appearing for the respondents. argued that all the Courts below have concurrently came to the conclusion that the appellants. herein, have miserably failed to prove the fact that the gift-deed was executed with fraud and forgery, hence the concurrent findings of facts cannot be disturbed by this Court. The learned Advocate further contended that mere obtaining the copy of Jamaicanfor execution of the gift-deed to all the daughters does not make it obligatory for the donor to execute the gift-deed in favour of all the daughters, hence the judgment passed by the learned Civil Judge and affirmed by the Appellate Court, does not suffer from any illegality or legal infirmity. The learned Advocate referred to and relied upon the cases reported as Azmat Hussain Kavan and 2 others Vs. Ansa Bibi and 4 others (2016 SCR 496) and Muhammad Sadiq vs Muhammad Rafique and 19 others (201C SCR 525).
8. In both the judgments referred by the learned Advocate for the respondents, herein above, it has been observed that where concurrent findings have been recorded by the Courts below, this Court always is reluctant to substitute the findings, which have been concurrently recorded by the Courts below, except there appears any misreading or non-reading of the evidence.
9. 5.We have heard the learned Advocates for the parties and gone through the record of the case.
10. 6.It may be stated that in this case the donor, father of the appellants and defendant No, 2, obtained copy of the jamabandi from local Patwari on 3.2.1999 for execution of the gift-deed in favour of all the daughters. The original gift-deed (Ex.DA) has been produced by the defendants and this copy of the jamabandi is part of the gift-deed. It was enjoined upon the defendants to prove that the donor has changed his mind before execution of the gift-deed and excluded the other legal heirs. There is no evidence to this effect on the file. Though the gift-deed was executed on 9.3.1999, but the same has been got entered in the revenue record on 5.1.2003. -after the death of the donor: This fact clearly strengthens the view that the gift has been obtained by practicing fraud. The defendant has also not appeared as witness in support of her claim rather one Muhammad Shahpal, marginal witness. has got his statement recorded. It was enjoined upon the defendant to appear and explain that the gift-deed was voluntarily executed in her favour by excluding the other legal heirs. Muhammad Shahpal has nothing to do with the gift-deed because he was only a marginal witness. In the case reported as Muhammad Sharif Khan Vs. Ismat Bibi and 4 others (PLD 1982 SC AJ&K) 110), this Court has held that in order to dispel the suspicions attaching to his case, a party is duty bound to go in the witness-box, otherwise an adverse inference is liable to be drawn against him. In para 17 of the report, it was observed as under:-- "17. The appellant, who is expected to know the whole controversy, had also not cared to come into the witness-box. It is the bounden duty of a party who personally knows the whole of the circumstances of the case to go into the witness-box to dispel the suspicions attaching to his case, and if he, being present in the Court, fails to do so (as is done in the present case), his non- appearance as a witness would be the strongest possible circumstances going to discredit the truth of his"
11. 7.The contention of the learned Advocate for the respondents that concurrent findings of facts ordinarily are not disturbed by this Court until and unless the same suffer from misreading or non- reading is pointed out, is correct but when the findings of the Courts below are not based on proper appreciation of the record and are perverse the interference is justified. In the present case, the other legal heirs/daughters have been excluded by execution of the gift-deed without showing any reasons, which is against the Policy of Muslim Law, as has been held in Sardar Ahmed Khan Vs. Mst.
12. Zamroot Jan (PLD 1950 Peshawar 45), and such a gift-deed cannot be approved.
13. The upshot of the above discussion is that the appeal is accepted, the judgments recorded and decrees passed by the Courts below are recalled and a decree is granted in favour of plaintiffs- appellants in the terms that the gift-deed dated 9.3.1999 has been got executed by practicing fraud, which is illegal and inoperative as against the rights of the plaintiffs. No order as to the costs