ALI AKBAR QURESHI, J.---This revision petition calls in question the validity of the judgment and decree dated 08.09.2015 and 08.05.2015, passed by learned Courts below, whereby the suit for declaration, cancellation of a gift deed and permanent injunction, was dismissed.
2. The controversy involved in this case, as per the record, revolves around the validity of a gift mutation No,1005, dated 26.08.1984 (Exh.D1), of the suit land, entered on the basis of an oral gift allegedly made by the petitioner/Mst. Mehtab Bibi along with her two sisters in favour of their brothers.
3. The petitioner, who is real sister of Khadim Hussain deceased/respondent No,1/ predecessor-in- interest of respondents Nos.A to I, Mulazim Hussain deceased/ respondent No,2/predecessor-in- interest of respondents Nos.A to L AND Mst. Zuhra Bibi deceased respondent No,3/predecessor of respondents Nos.A and B, filed a suit for declaration for the cancellation of a gift deed No,1005, dated 26.08.1984 of the suit land, entered on the basis of an oral gift, on the grounds, that the predecessor-in-interest of the parties to the case at the time of his death left suit land and two sons, three daughters to mourn his death.
4. The learned trial court after completing all the codal and legal formalities dismissed the suit vide judgment dated 08.05.2015, against which an appeal was filed, which was dismissed on 08.09.2015.
5. Respondents have been proceeded against ex parte vide order dated 02.02.2016.
6. Heard. Record perused.
7. Firstly it is to be seen and adjudicated as to whether the respondents, who are the beneficiaries of the gift, have succeeded to prove the validity of the alleged gift through credible evidence. The whole of the record was scanned and particularly the evidence produced by the respondents and found, that all the DWs could not tell the time, date, place and names of the witnesses in whose presence the alleged oral gift was made by the petitioner. Needless to mention, that the respondents were required to prove the transaction of oral gift independently irrespective of the execution of the gift mutation.
In my opinion, the respondents have miserably failed to prove the oral gift and its ingredients through any independent and confidence inspiring evidence, thus, this type of the transaction of a gift is hardly sustainable in law.
8. As regards, the gift mutation No,1005, dated 26.08.1984 (Exh.D1), the record reveals, that the respondents have failed to produce any official/officer from the revenue side to prove the authenticity and validity of the gift. Even otherwise the respondents were required to produce the scribe and signatory of the afore-referred alleged gift mutation, which is mandatory as per the dictum laid down by the Hon"ble Supreme Court of Pakistan in the judgment cited as "Khan Muhammad Yusuf Khan Khattak v. S. M Ayub and 2 others" (PLD 1973 Supreme Court 160). Relevant part of the judgment (supra) is reproduced hereunder:-- "When I say that the document Exh. P.E. is unproved, I have in mind the mandatory provisions of section 67 of the Evidence Act, which lay down that "if a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting". If the case of the respondent was that the appellant had signed the original of Exh. P.
E. or the certificate appended to it, it must have been proved that it was in the appellant's handwriting, for which no effort whatsoever was made. In the case of Bengal Friends & Co. v. Gour Benode Saha & Co., this Court had expressed itself on this point as follows:-- "Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them."
I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act."
9. There is another aspect of the case, that while entering the alleged gift mutation No,1005, dated 26.08.1984 (Exh.D1), only the statement of Mst. Zuhra Bibi, real sister of the petitioner is mentioned (or allegedly recorded) and the statement of the petitioner is nowhere available in the aforesaid document. From the above facts of the case, it proves, that the petitioner did not gift her share of land in favour of her brothers and the thumb impression of the petitioner was obtained by playing fraud and misrepresentation. This practice has already been deprecated by the Hon'ble Supreme Court of Pakistan in the landmark judgment cited as "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 Supreme Court 1), wherein the Hon'ble Supreme Court of Pakistan has observed, that the women, who are weaker segment of the society, should not be deprived from their right of inheritance in the name of customs or by emotionally exploiting them. The relevant portion of the judgment is reproduced as under:-- "As is discussed in the case of Haji Nizam (approved in Mohammad Bashir's case) which was also a case of clash of Islamic principles against those of other systems-a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordancewith Islamic Jurisprudence, is yet to take its own time.
' In the rural areas where 80% of the female populations resides, the inheritance rights of the females are not as protected and enforced, as. Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the. Courts act rightly and follow the correct rules. But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/ seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an urbanized brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of 'fights', up to the enforcement' even in homes, through 'Social Security' Laws, with web of network of 'Inspectorates" etc. who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights of inheritance even today by her own kith and kin-sometimes by the urbanized brother himself is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone."
Further reliance is also placed on Ghulam Zainab and another v. Said Rasool (2004 CLC 33)
Ghulam Muhammad and another v. Muhammad Ramzan through L.Rs, (2007 M LD 1769) and Muhammad Asghar ald others v. Hakam Bibi through L.Rs and others (2015 CLC 719).
10. There is another aspect of the case, that the petitioner is an illiterate and pardanasheen lady and was completely ignorant about the transaction of gift mutation and further at the time of making the afore-referred gift mutation no male family member of the petitioner was with her, therefore, the gift mutation is dubious and liable to be set aside in view of the law laid down by Hon'ble Supreme Court of Pakistan in the judgment cited as "Mian Allah Ditta through L.Rs, v. Mst.
Sakina Bibi (2013 SCM R 868), wherein the Hon'ble Supreme Court of Pakistan has ruled, that the legal protection provided to the Parda Nasheen lady is also available to an illiterate lady. The relevant esteemed paragraph is reproduced as under:-- "6. ....The contention that the general power of attorney was given by the respondent/ plaintiff not to a stranger but to her own son-in-law and that she was not a `Pardanasheen Lady' for which the courts of law have provided protection is not tenable in the , facts and circumstances of the instant case, first, because it is in evidence that the relations between the two were too strained on account of the discord between him and her daughter and in the normal course of events she could not have reposed that kind of trust; second, the protection provided to them in law is on account of the fact that they invariably are helpless, weak and vulnerable. The said consideration would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation."
11. Learned courts below while recording the concurrent findings have totally ignored this aspect of the case and decided the /is on the basis of surmises and conjectures. In fact both the learned courts below have not carefully perused the evidence produced by the respondents and the contents of the gift mutation.
10(sic). The learned appellate court in paragraph No,11 of the judgment impugned herein, although agreed with the arguments advanced by the learned counsel for the petitioner/appellant that the respondents were required to prove the ingredients of gift but astonishingly observed, that these essentials (ingredients of gift) were to be proved by the respondents in case the petitioner could establish the factum of fraud.
In my opinion the learned appellate court who was under legal obligation being the first court of appeal to carefully peruse the record, had not taken into consideration the contents of the plaint and the statement of the petitioner while appearing in the witness box wherein the petitioner has categorically stated the factum of fraud and misrepresentation, therefore, the findings recorded by the learned courts below are without any substance rather contrary to the record available on the file.
12. Although both the learned courts below recorded concurrent findings but the Hon'ble Supreme Court of Pakistan has observed; that if the courts below acted with material irregularity and legal infirmity, the High Court while exercising the revisional jurisdiction conferred under section 115 of Code of Civil Procedure, 1908, can take the cognizance of the matter.
The Hon'ble Supreme Court of Pakistan in the judgment cited as "Nasir Abbas v. Manzoor Haider Shah" (PLD 1989 Supreme Court 568), has observed that this type of the concurrent findings can be interfered. The relevant portion is reproduced as under:-- "11. .... It is also settled that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. See Dwarika v. Bagawati (AIR 1939 Rangoon 413) and Fut Chong v. Maung Po Cho (AIR 1929 Rangoon 145)."
In another esteemed judgment cited as "Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others" (2014 SCM R 914), the Hon'ble Supreme Court of Pakistan has observed as under:-- "8. The argument that when all the for a functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the for a functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court. An order thus passed cannot be protected because the repository of such jurisdiction has the jurisdiction to pass it. Lord Denning in his well-known book "the Discipline of law", while commenting on orders of this nature at page 74, observed as under:-- "This brings me to the latest case. In it 1 ventured to suggest that whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because parliament only conferred jurisdiction on the tribunal on condition that it decided in accordance with law."
Another paragraph of this book at page 76 also merits a keen look which reads as under:-- "I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all courts and tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen's rights in point of law should depend on which judge tries his case, or in what court it is heard. The way to get things right is to hold thus: No court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it."
13. In view of above, this revision petition stands allowed, the judgment and decree dated 08.09.2015 and 08.05.2015, passed by learned Courts below is set aside and the suit filed by the petitioner is decreed. No order as to costs.