CH. MUHAMMAD MASOOD JAHANGIR, J.---This is another case of male dominant society, wherein the two brothers deprived their sister, namely Sardaran Bibi (deceased) of the legacy of their father by maneuvering gift deed in their favour regarding the property of their deceased father.
2. The facts germane for the disposal of the instant civil revision are that respondents being legal heirs of Sardaran Bibi, sister, (hereinafter to be referred as "Plaintiffs") instituted a suit for declaration along with cancellation of gift deed dated 02.03.1976 and mutations dated 18.04.1977, 17.03.1996 and 09.07.1996 with the assertions that disputed property was owned by their maternal grand-father, namely, Rehana, who had two sons, namely, Muhammad Younas and Sher Muhammad, petitioners (hereinafter to be referred as "Defendants Nos. 1 and 2") and one daughter Sardaran Bibi, the mother of the plaintiffs, who passed away on 22.06.2001 and when the plaintiffs claimed their share from defendants Nos. 1 and 2, they turned down their request and on inquiry, the plaintiffs came to know that defendants Nos. 1 and 2 had got attested gift deed on 02.03.1976 in their favour, whereas, Rehana, the predecessor-ininterest of the parties, had already passed away in December, 1974, but defendants Nos. 1 and 2 by practicing fraud, misrepresentation and impersonation in connivance with the revenue officials succeeded to procure a fictitious gift deed to deprive their sister of the legacy of her When The plaintiffs claimed that the above referred gift deed as well as subsequent mutations attested in favour of the remaining defendants being the result of fraud and misrepresentation were, liable to be cancelled. The suit was contested by the defendants with the assertion that Rehana, predecessor-in-interest of the parties, passed away on 10.03.1979, who during his life time made a declaration of gift in favour of defendants Nos. 1 and 2, which was accepted by them and in lieu thereof the possession of the disputed property was also handed over to them. Then gift deed was duly attested in their favour, which was free from any element of misrepresentation, impersonation and connivance. The learned trial court while facing with the contest settled the following issues:-- 1.Whether the plaintiffs have got no cause of action to bring the instant suit? OPD 2.Whether the plaintiffs did not come to the court with clean hands, so, they were not entitled to get any relief? OPD 3.Whether the suit is not maintainable in its present form? OPD 4.Whether the plaintiffs have filed false and fictitious suit, therefore, the defendants are entitled to recover special costs under section 35-A of C.P.C.? OPD 5.Whether the suit has been filed within time? OPD 6.Whether the plaintiffs are entitled to get cancellation of impugned gift vide mutation No. 1431 dated 18.04.1977, mutation No. 2618 dated 17.03.1996 and mutation No. 2635 dated 09.07.1996, if so, on what ground? OPP 7.Relief.
3. During the trial, Imdad Hussain, one of the plaintiffs, appeared as PW/1, whereas, Inayat was produced as PW/2 and in documentary evidence they tendered documents (Ex.P/1 to Ex.P/5).
Conversely, Muhammad Younas, defendant No.1 appeared as DW/1 and also produced Muhammad Yousaf, Bukhsha and Mudassar. Shehzad as DW/2 to DW/4, whereas the documentary evidence ranging from Ex.D/1 to Ex.D/5 was also brought on record on their behalf.
After appreciating the evidence available on file, the learned trial court passed the judgment and decree dated 04.03.2011 and dismissed the suit instituted by the plaintiffs. Being despondent, the plaintiffs preferred an appeal before the learned Addl. District Judge, Pindi Bhattian, who vide impugned judgment and decree dated 05.12.2014 accepted the same and while setting aside the judgment and decree passed by the learned trial court, the suit filed by the plaintiffs was decreed.
Seeming aggrieved, the instant civil revision has been filed by defendants Nos. 1 and 2.
4. Mr. Mushtaq Ahmad Mohal, learned counsel for defendants Nos. 1 and 2 has argued that the learned lower appellate court miserably failed to appreciate that, even according to the contents of the plaint, the mother of the plaintiffs died on 22.06.2001, who remained alive for 25 years after the execution of impugned gift deed in the year 1976, but she never challenged the said gift deed executed in favour of her brothers/defendants Nos. 1 and 2 during her life time and the plaintiffs were estopped to challenge the validity as well as propriety of the gift deed executed in favour of defendants Nos. 1 and 2 that the suit was hopelessly time barred and the findings of the learned trial court on issue No.5 were perfect and strictly in accordance with law as well as evidence available on the record, while the findings of learned lower appellate court on the said issue are erroneous, illegal and unlawful being result of misreading and non-reading of evidence; that the defendants Nos. 1 and 2 fully proved the execution/attestation of the disputed impugned gift deed as well as the transaction reflected therein, but the learned lower appellate court while misinterpreting and twisting the material available on file passed the impugned judgment and decree; that the possession of the disputed property is vested with the defendants Nos. 1 and 2 since 1976/from the inception of declaration of gift made in favour of the defendants by their father, which also corroborated their stance and mother of the plaintiffs was not given any Hissa Batai. He has relied upon the judgments reported Muhammad Rustam and another v. Mst.
Makhan Jan and others (2013 SCMR 299), Noor Din and another v. Additional District Judge, Lahore and others (2011 SCMR 513), Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212), Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167) and Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657) in support of his contentions. He has lastly prayed for the acceptance of instant civil revision, setting aside of the impugned judgment and decree passed by learned lower appellate court and restoration of the judgment and decree dated 04.03.2011 rendered by the learned trial court, whereby, suit filed by the plaintiffs was dismissed.
5.Conversely, M/s Muhammad Iqbal Akhtar and Ahmad Ikram, Advocates on behalf of plaintiffs have refuted the arguments of learned counsel for defendants Nos.1 and 2, supported the impugned judgment and decree and prayed for dismissal of the instant civil revision.
6.Arguments of learned counsel for the parties heard and record perused.
7.From the perusal of record, it boils out that plaintiffs brought their suit before the learned trial court with the specific plea that their maternal grand-father, namely, Rehana had died in December, 1974 and after his death, his property was got transferred by the defendants Nos. 1 and 2 through attestation of gift deed on 02.03.1976 to deprive their mother of her share from the legacy of her father. Whereas defendants Nos. 1 and 2 through their written statement while refuting the stance of the plaintiffs asserted that Rehana, their father, was alive in the year 1976 when he had executed the gift deed in their favour and subsequently he died on 10.03.1979. The basic document to dislodge the offence raised by the plaintiffs is copy of death certificate of Rehana deceased (Ex.D/3), which was brought on record through statement of Muhammad Younas, defendant No.1 (DW/1). It is worth-mentioning to note that the plaintiffs instituted their suit before the learned trial court on 19.03.2007, whereas, death of Rehana as per Ex.D/3 was got entered in the Register of Death on 16.05.2007 and thereafter the written statement was filed by the defendants before the learned trial court on 18.07.2007 while asserting therein that their predecessor had died on 10.03.1979. Admittedly, till the institution of the suit the factum of death of Rehana was not got entered in the relevant Register and the possibility cannot be ruled out that after getting knowledge of the filing of the suit, defendants Nos.1 and 2 while succeeding to get incorporated death entry of their father procured copy of death certificate (Ex.D/3) on the same day when it was entered in the said Register on 16.05.2007. There is no cavil with the proposition that a document prepared during the pendency of the lis is squarely hit by the rule of lis pendens and on such score same can neither be relied upon nor considered. The doctrine of lis A pendens in pith and substance was not only based on equity, but also on good conscience and justice which is based on the maxim "pendente lite nihil innoveture" and the theme of the said maxim is that during litigation nothing should be changed.
8.Additionally, the document Ex.D/3 was exhibited in evidence in the statement of defendant No. l(DW/1). The perusal of said document also reveals that it simply bears the signature and seal of the Secretary as well as Nazim of the Union Council. When questioned that as to why the original record pertaining to Ex.D/3 was not produced before the learned trial court and the said document was not got compared with the original Register, the learned counsel for defendants Nos.1 and 2 replied that it was not necessary at all as Ex.D/3 copy of the death entry contained in the relevant Register maintained by the Union Council was a sufficient proof and the documentary evidence has to be given preference to the oral evidence adduced by the plaintiffs. The said submission of Mr.Mushtaq Ahmad Mohal, Advocate, learned counsel for defendants Nos.1 and 2 has no force as Ex.D/3 was merely signed by the Secretary, Union Council and the Nazim, which cannot be treated to be certified copy of the document issued from the public record by the authority competent to issue while comparing with the original document of Register. Mere factum that signature of Secretary, Union Council as well as Nazim were appearing on the said document was not sufficient to hold that the said document was admissible in evidence until the original record was presented before the learned trial court to compare Ex.D/3 with the same. The copy of death certificate (Ex.D/3) on its face value is to be taken out of consideration for the reasons that neither the Secretary, Union Council nor the Nazim, who put their signatures on the same, were brought into the witness-box to prove the contents of the said document. The production of document on record and its proof are two independent aspects and the latter aspect is vital, which makes a fact to be proved. For the mere reason that Ex.D/3 was signed by the Secretary/Nazim, the same could not be treated to be the attested copy falling within the ambit of Article 87 of the Qanun-e-Shahadat Order, 1984 or under section 76 of the Evidence Act, 1872. As per above referred provisions, every Public Officer having the custody of public document, which any person has a right to inspect, shall give copy of it on payment of the legal fee thereof, therefore, a certificate written at the foot of said document that it was a true copy of the original record or part thereof, as the case may be and after such certificate is added and scribed by the authorized officer with signature and designation, such copies so certified shall be called certified copies. For ready reference, Article 87 of the Order ibid along with its explanation is reproduced hereunder:-- 87.Certified copies of public documents: Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
9. Explanation: Any officer, who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Article.
10. The object of appending certificate as required by Article 87 ibid is to ensure that it is a true copy. The requirement of the Article would, therefore, be perfectly met, if there is an endorsement of the officer issuing the copy, which satisfies the court that it is a true copy. In the present case, there was no such endorsement on Ex.D/3, which could satisfy that it was a correct copy of the original. In forming this view, I have to my credit a plethora of judgments delivered by superior courts and for ready reference the following case law is referred:-- 1.The Commissioner of Sales Tax and Income Tax, Rawalpindi Zone, Rawalpindi v. Messrs Pakistan Television Corporation Ltd., Rawalpindi (PLD 1978 Lahore 1027), 2.Mehboob Ali and another v. Mst. Sharifan Bibi and 21 others (1991 CLC 1201), 3.Muhammad Aslam and another v. Senior Civil Judge, Gujrat (Mian Nisar Hussain) and 2 others (2000 MLD 1581) and 4.Mina Bibi v. Manak Khan and others (2013 CLC 115).
Defendants Nos. 1 and 2 also withheld the best evidence, which was available to them in the shape of Custodian of Register of death entries in whose custody the same was lying and an adverse inference under Article 129 illustration (g) of the Qanun-eShahadat Order, 1984 has to be drawn against the defendants Nos.1 and 2. It is well established principle of law that the best evidence, which was withheld by a party if was brought on the record might have gone against the version of that party.
9. The emphasis of learned counsel for defendants Nos.1 and 2 that document (Ex.D/3) was brought on the record without any objection and learned lower appellate court erred in law while discarding the same is also without any substance. Mere fact that no objection was taken to said certificate at the time of its exhibition would not make the same admissible in evidence, which otherwise, could not be admitted under the law. Admittedly, the copy of death entry Ex.D/3 as observed supra was not copy of judicial record, which could not be received in evidence without the proof of signatures and writing of the person alleged to have signed or written the same, even if, such documents brought on record were exhibited without objection. Reliance is placed upon the judgment reported as Muhammad Yousaf Khan v. S.M. Ayub and 2 others (PLD 1973 SC 160) and Muhammad Akram and-another v. Mst. Farida Bibi and others (2007 SCMR 1719).
10. The argument of Mr. Mushtaq Ahmad Mohal, learned counsel for the defendants Nos. 1 and 2 that gift deed being registered instrument attained strong presumption of truth and the learned lower appellate court without dilating upon the said aspect of the case erred in law while decreeing the suit is not tenable. It is by now well settled principle of law that whenever the execution or validity of a purportedly registered document is denied, such registered document loses sanctity of being presumed to be correct, but its veracity would depend upon quantum and quality of evidence to be produced to prove its execution. Reliance can be placed upon 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. 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 same person.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).
11. Admittedly, the impugned gift deed was executed prior to the promulgation of the Qanun-e- Shahadat Order, 1984 and as per section 68 of the Evidence Act, 1872, only one attesting witness was sufficient to prove its execution/attestation. Defendants Nos. 1 and 2, no doubt, brought Muhammad Yousaf, the attesting witness, in the witness-box and got recorded his statement- in-chief as (DW/2), but he was not produced for cross-examination despite availing of numerous opportunities and as per well established principle, his statement without cross-examination would not carry any weight. The other attesting witness, namely, Muhammad Aslam had already passed away. No doubt, his brother DW/5 was produced to verify the signatures of said Muhammad Aslam over Ex.D/1, but that could not be considered sufficient to prove the contents/execution/attestation of gift deed. to prove that Rehana being alive had validly gifted the suit property in terms of impugned gift deed, neither Stamp Vendor, Deed Writer and Irshad Ullah Identifier were produced nor the Sub-Registrar was got examined, who could be the star witnesses to prove that genuinely the executant had appeared for the purchase of stamp paper, who got executed the gift deed and after due identification and verification instrument was validly attested. To prove the transaction of gift embodied in the instrument, one of the beneficiaries, namely, Muhammad Younas, defendant No.1, being DW/1 in his cross-examination deposed as under- {{URDU TEXT}} The study of his deposition belies the transaction on the following counts:-- a.As per statement, the donor on 02.03.1976 declared his offer of gift in favour of his two sons and gift deed was executed on the following day i.e. 03.03.1976, whereas, the perusal of gift instrument (Ex.D/1) reveals that stamp papers were purchased on 02.03.1976 and the instrument was not only executed but was also attested on the same day. b.DW/1 did not state that on the day of declaration of gift or execution of document, Muhammad Yousaf, the attesting witness, was also present. Non-production of said marginal witness for cross-examination was, therefore, intentional on the part of the beneficiaries Whereas Bukhsha son of Bahadar before whom the alleged offer of gift was made by the donor being DW/3 in his cross-examination stated as follows:-- {{URDU TEXT}} The statement of DW/3 is not found to be in league with the statement of above referred DW/1, rather major contradiction is reflected therein to the extent of day of execution of the gift deed.
Furthermore, the deposition of DW/3 has completely shattered the authenticity of death entry (Ex.D/3) of Rehana deceased. He stated that at the time of death, Rehana was about 70-years of age whereas column No. 7 of Ex.D/3 reveals that he died at the age of 90-years. The beneficiaries/Defendants Nos.1 and 2 remained unable to produce I sufficient material on the suit file to independently prove the transaction of gift.
12.The submission of learned counsel for defendants Nos.1 and 2 that lmdad - Hussain, one of the plaintiffs being PW/1 stated in his deposition recorded in the court on 18.05.2010 that his age was 35 years and Rehana died when said PW was of the age of 6/7 years, which is sufficient proof that Rehana died much after execution of gift deed, is not tenable. Luckily, from the perusal of file, copy of I.D. Card bearing No. 34302-1208535-1 belonging to PW/1, which was issued on 23.10.2001 much prior to recording of his statement, is found to be annexed with power of attorney of learned counsel for the plaintiffs and the perusal thereof reveals that PW-1 was born in the year 1966. It is thus borne out that the age of PW/1 was mistakenly written in the cross-examination as 35 years.
If it is calculated that Rehana died when PW/1 was of the age of 6/7 years old, then it would become 1972-73 and even the said year of death of Rehana is much prior to the alleged attestation of impugned gift deed in the year 1976.
13.The other submission of the learned counsel for defendants Nos.1 and 2 that gift deed having a life of more than 30-years attained strong presumption of truth under Article 100 of the Qanun- e-Shahadat Order, 1984 and defendants Nos.1 and 2 were not required to prove the same. but it must be relied upon, is without any substance. It is well established principle of law that there is difference between admissibility of document and evidentiary value of document having a life of more than 30-years under the provision of Article 100 of the Qanun-e-Shahadat Order, 1984, which is admissible without production of the marginal witnesses or the executers, but the court under this provision is not required to presume contents of such documents to be true and reliance can be placed upon the judgment reported as Allah Dad and 3 others v. Dhuman Khan and 10 others (2005 SCMR 564), wherein it was observed as under:-- "The principle underlined in Article 100 is that if a document 30 years old or more is produced from proper custody and on its face, it is free from suspicion, the Court may presume that it has been signed or written by the person whose signature appear on it and that it was duly executed and attested by the executants. The age of documents, its unsuspicious character, its custody and other circumstances are foundation to raise a presumption of its execution and if a document is proved more then thirty years old, it is admissible in evidence without formal proof but if the genuineness of such a document is disputed, it is the duty of the Court to determine the question of its genuineness and true character. Therefore, the rule is that Court may raise a presumption of existence and execution of a document which is more than 30 years old but it is not necessary that by raising such presumption Court must presume the contents of the document to be true and in such case, Court may call the parties to produce the evidence. However, the presumption of genuineness of document is rebuttable and the question whether such a presumption can be raised or not is a question of law which can be raised at any stage."
This view has again been approved by the august Supreme Court of Pakistan in case titled as Jang Bahadar and others v. Toti Khan and another (2007 SCMR 497).
14. When it is proved on the record that gift deed Ex.D/1 was procured by defendants Nos.1 and 2 while practicing fraud, misrepresentation and impersonation, then every legal heir became the co-owner in the legacy of his predecessor as soon as he died, irrespective of the fact, whether entries in the revenue record with regard to an agricultural land were made in their names or not.
To oust a co-owner from the joint corpus of an undivided immovable property, cogent, tangible and un-rebutted evidence was required, which is lacking in the case in hand. In the matters of inheritance, neither limitation nor conduct of plaintiffs could estop them from claiming their legal share and mere passage of time does not extinguish their rights but every' new entry in the revenue record on the basis of fraudulent instrument gives rise to a fresh cause of action and it being a case of recurring cause of action, the suit cannot be declare time barred. Reference can be placed upon the judgments reported as Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346), Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Khair Din v. Mst. Salaman and others (PLD 2002 SC 677). When it is proved that defendants Nos.1 and 2 had fraudulently got attested the gift instrument, no benefit can be derived by a person claiming title in the immoveable property based on fraudulent transaction because it is well-settled principle that fraud, if established on record, is sufficient to vitiate most solemn proceedings.
Reference can be made to the judgments reported as Lal and another v. Muhammad Ibrahim (1993 SCMR 710). The court of law cannot remain oblivious of the erosion of moral values and the conduct of defendants Nos.1 and 2 is worth quoting as a classic example in this regard. On the strength of material available on record, the learned trial court fell in error while dismissing the suit, but learned lower appellate court correctly appreciated the evidence of the parties and interpreted the law available on the subject while decreeing the suit instituted by the plaintiffs. The case law referred to by the learned counsel for the defendants Nos.1 and 2 being distinguishable runs on different footings.
15. earned counsel for defendants Nos.1 and 2 is unable to point out any illegality, perversity or jurisdictional defect in the impugned judgments and decrees, which are also not found to be tainted with any misreading or non-reading of the material available on the record calling for any interference by this court in the exercise of revisional jurisdiction. Resultantly, the instant civil revision being devoid of any force is dismissed with cost throughout.