CH. MUHAMMAD MASOOD JAHANGIR, J.-- For delivering this judgment, reference to the pleaded facts in brief is that Ghulam Hussain, father of the parties, was admittedly, owner of agricultural property measuring 653 Kanals and 18 Marlas besides residential and commercial properties, who died leaving behind sons/petitioners and daughters/respondents 1 to 3. Thereafter, the petitioners instituted a suit for declaration and permanent injunction against their sisters/respondents on 03.03.1996 with the assertion that above referred suit properties, fully detailed in body of the plaint were gifted out by their father in their favour and on 19.7.1989 a memorandum of gift was also executed by the father/donor. The suit was contested by one of the sisters/respondents No,1 with the averment that neither any declaration of gift was made by father of the parties in favour of the petitioners nor memo. of gift was executed by him, which being forged and fictitious was inoperative upon her rights. While facing with the hot contest, the learned trial court captured the disputed area of facts through settlement of issues, which also collected evidence in pros and cons and ultimately decreed the suit vide judgment and decree dated 21.6.2001, but the same was reversed by the learned lower appellate court through the impugned judgment and decree dated 13.5.2010 and resultantly the suit of the petitioners was dismissed. Raving felt forlorn, the instant Civil Revision was preferred in the year 2010.
2.<i><b>Heard the learned counsel for the parties and perused the available record. </i></b> 3.The pictorial view of the plaint, copy of which is available on file, exposes that the petitioners neither mentioned the date, venue and names of the witnesses to disclose that when, where and before whom the alleged donor made a declaration of gift in favour of the petitioners, which was accepted by them and in lieu thereof the possession of the suit properties changed hands. No doubt, it was disclosed in the plaint that while acknowledging the oral transaction, gift memo. was got executed on 19.7.1989 by the alleged donor in favour of the petitioners, but study of said memorandum (mark-A) also reflects that qua the original transaction, the basic ingredients with regard to date, venue and name of witnesses were once again missing. The declaration of oral gift as well as its acceptance m have taken place prior to the execution of memo. dated 19.7.1989, but non-disclosure of the said ingredients therein as well as the plaint has created a serious doubt about declaration of gift. When these requirements were missing therein, then no evidence could be led on such points. Principle of "secundum allegate et probate" was fully applicable, which means that a fact had to be pleaded first by party before it was allowed to be proved. This principle is enunciated by order VI rule 2 and Order VIII rule 2 of the Code of Civil Procedure 1908, which has also been affirmed by the apex court in judgments reported as Pakistan v. Abdul Ghani (PLD 1964 SC 68) and Hyder Ali Bhimji v. Vlth Additional District Judge, Karachi (South) and another (2012 SCM R 254). The relevant extract from the former case for ready reference is reproduced hereunder:- <i>"The appellant was legally bound by the case set up in his pleadings. He did not have freedom to depart therefrom and raise a different case. Also that in absence of specific pleadings, the court could not allow the appellant to grope around and draw remote inferences in his favour from his vague expression." </i> 4.To prove their oral transaction Muhammad Mukhtar one of the beneficiaries/petitioners appeared as PW2 and also brought Muhammad Yasin and Karam Elahi into the witness-box as PW3 and PW4 respectively. The scanning of statements of said PWs divulges that they are not found harmonious/consistent with regard to the settlement of alleged transaction. PW2 for the first time in his statement without disclosing the date, month and year qua the declaration of gift disclosed that it was made in presence of PW3 and PW4 at evening time at the house of the parties and after 5/6 months of declaration of gift the memorandum of gift was executed. Whereas, Karam Elahi PW4, who was brother-in-law of one of the beneficiaries stated that about one month of the oral transaction memo. of gift was executed. PW2 disclosed in his testimony that Muhammad Yasin (PW3) remained there for a considerable time whereas Muhammad Yasin (PW3) deposed that neither he sit among the donor and donees nor he stayed there. Whereas, Karam Elahi PW4 stated that Muhammad Yasin had not only stayed there for 45 minutes, but had also taken meal there among other participants of the said assembly. PW2 also deposed in his statement-in-chief that possession of the suit properties was delivered to the petitioners after making of declaration of gift, but PW3 and PW4 deposed otherwise while claiming that possession of the suit properties was already vested with the petitioners. The other salient feature of the case is that rest of the beneficiaries/petitioners did not make their entry in the witness-box to prove the ingredients of gift. Whereas, the sole petitioner, who appeared as PW2 nowhere in his statement- in-chief stated that offer of gift made by father of the parties was accepted by the petitioners. The essential features of a valid gift are; declaration, its acceptance and delivery of possession in lieu thereof, but if any of the ingredients is found missing, then such transaction cannot declared to be a valid gift.
5. It is an admitted fact, which has also been conceded by PW2 that the donor as well as petitioners were not only residents of Tehsil Noorpur rather the suit properties also located there.
PW2 also conceded in his cross-examination that in Tehsil Noorpur and at Jauharabad stamp vendors and deed writers were available, but memo. of gift was executed at Sargodha. The respondent No,1 in her written statement specifically averred that Qazi Muhammad Shafi, stamp vendor and Qazi Noor Elahi, the deed writer of gift memo. had a repute to prepare forged and antedated documents, who also remained involve in criminal cases. Although, to prove the execution of gift deed, Qazi Muhammad Shafi, stamp vendor appeared as PW5, but he did not bring his stamp vending Register at the time of making his statement. A license holder stamp vendor is required to maintain a Register so that authenticity of a stamp paper issued by stamp vendor could be checked and verified from the entry made in the said Register. He withheld the said Register without any plausible reason. He conceded in his cross-examination that Ghulam Hussain donor was not earlier personally known to him. He also conceded in his cross-examination that he remained involve in a criminal case for preparation of antedated document. Whereas deed writer, Qazi Noor Elahi being PW6 put his appearance before the learned trial court and admitted that parties to the memo. of gift were not known by him. He also conceded the lodgment of criminal case qua the preparation of forged document against him.
6.There is yet another aspect of the case that Muhammad Irshad one of the attesting witness of gift deed appeared PW1, who was brother-in-law of one of the beneficiaries/petitioners and in his cross-examination he clarified that memo. of gift was not read over before him. He also could not tell that what was written in the said document. An attesting witness is one who not only sees document being executed, but also appends his signatures/thumb impressions after understanding the contents of the same and if the said attesting witness while appearing in the witness-box to prove the contents of document fails to depose what were the contents of the document or could not verify his signatures or thumb impressions, then he could not be treated as an attesting witness. Whereas the other attesting witness was father of PW1, who could not be brought into the witness box, as he had already passed away. Both the attesting witnesses i,e, PW1 and his father are found to be resident of Aziz Colony, Sargodha. Meaning thereby that none of the residents of Tehsil Noorpur District Khushab had accompanied the alleged donor as well as the petitioners/donees at the time of execution of memorandum of gift. It is also admitted fact that the disputed properties were free from encumbrance and even no injunctive order qua its transfer was in field when memo. of gift was executed. If father of the parties was willing to transfer his entire properties to the petitioners through attestation of mutation or gift deed, same could be done, but for that purpose notable persons of the vicinity were required. There is much force in the arguments of learned counsel for respondent No,1 that memo. of gift was antedated got prepared in connivance with its attesting witnesses, who were close relatives of the beneficiaries/petitioners and as well as badly reputed stamp vendor and deed writer.
7.The other limb of the case is that respondent No,1 as well as other defendants/daughters were also entitled to inherit the legacy of their father at the time of his death. No evidence is available on record to prove that the daughters were untoward/balky to their father and for that reason he was bent upon to deprive them from their share in inheritance qua the suit properties. There is no cavil with the preposition that a donor is free to gift out his property to any person of his choice, but when some of the legal heirs are required to be deprive then it is imperative upon the beneficiary to bring on record the special circumstances/motive for depriving them of their due share in the property.
8.Consequence to the above analysis neither original transaction nor the execution of (mark-A) could be proved by the petitioners. In this case, the petitioners/brothers tried at their part to deprive their sisters/respondents even by manipulating a forged and antedated document.
Although such type of efforts to deprive the females of the family in our society to get their due share from the inheritance/legacy has already been condemned by the superior courts of the State, yet our male dominant society is still bent upon to usurp their rights of inheritance, which the Almighty ALLAH has vested to them. In the case in hand the petitioners managed to get a fraudulent document executed from another district through the aid of ignominious/discreditable stamp vendor and deed writer besides the closely related witnesses. In such facts and circumstances, I have no hesitation to hold that the learned lower appellate court has rightly non- suited the petitioners through the impugned judgment and decree while assigning eminent reason, which do not call for any interference by this court in the exercise of revisional jurisdiction, the scope whereof is restrict and narrower. This civil revision having no merit is dismissed.
9. Before parting with this judgment, I am constrained to observe that in normal course, a judicial officer after having found a document to be result of fraud and forgery could have taken suo motu cognizance for committing forgery in preparation of false and forged document, but such action was never initiated by the learned Additional District Judge at appropriate time and this court thinks it befitting that if any action so far has not been taken, then respondent No,1 or any of his family members may approach the concerned quarter for initiating criminal proceedings against the delinquents.