MUZAMIL AKHTAR SHABIR, J---- This civil revision, filed by Mst. Jameela Begum, is directed against the dismissal of her appeal on 13.12.2004 by learned Additional District Judge, Mailsi against the judgment and decree dated 13.11.2003 passed by learned Civil Judge, Mailsi, whereby the petitioner's suit for declaration, permanent injunction and consequential relief challenging transfer of her property vide gift mutations Nos,1307 and 1308 both dated 29.06.1987 was dismissed.
2. Brief facts of the case are that on 03.06.2002, the petitioner filed a suit for declaration, permanent injunctions and consequential relief against the respondent/ defendant Qadeer Ahmad (real brother of petitioner), in which petitioner claimed that Hoshyar Ali, maternal uncle of the parties, who died issueless in 1986/87 owned property measuring 64-Kanals in Khata No,166 situated in Tiba Sultanpur, Tehsil Mailsi, District Vehari. Mst. Sharifan, mother of the parties, inherited 32-kanals land from her brother Hoshyar Ali. On the death of Mst. Sharifan, share in the afore-mentioned property measuring 8-Kanals was inherited by plaintiff as daughter, 16-Kanals by defendant Qadeer Ahmad as son and 8-Kanals by Barkat Ali as husband. After the death of Barkat Ali, respondent Qadeer Ahmad initially provided share in produce of property to petitioner but on 16.04.2002 he refused to do so and claimed to be the exclusive owner of the property. On inquiry from the revenue officers, it transpired that the petitioner's property had been transferred firstly to her father through mutation No,1307 and then to respondent through mutation No,1308, both mutations were executed on the same date i,e, dated 29.06.1987, whereas she had never appeared before the Revenue Officer/ staff for transfer of the property. The petitioner filed the afore-referred suit and challenged both the mutations on the ground of fraud, misrepresentation and collusion.
3. The respondent claimed that petitioner through gift mutation No,1307 had herself transferred the property to Barkat Ali, father of the parties, on account of natural love and affection. Barkat Ali then transferred land measuring 16-kanals, inclusive of petitioner's property to respondent through gift mutation No,1308 on the same day. The respondent claimed that transfer of land through gift mutation was genuine, petitioner does not have cause of action and the suit filed by her is not maintainable.
4.The learned trial court dismissed the petitioner's suit on 13.11.2003 and petitioner's appeal was also dismissed by the learned appellate court on 13.12.2004. The petitioner has challenged both the judgments and decrees before this Court in its revisional jurisdiction.
5.The learned counsel for petitioner argued that findings of both the courts below suffer from material irregularities and erroneous-exercise of jurisdiction. The courts have misread and non- read the evidence available on record and have not applied judicious mind to the matter in issue.
Both mutations were based on fraud, misrepresentation and collusion; hence not sustainable in the eye of law. The learned counsel argued that petitioner being an illiterate 'Parda Nasheen' lady has denied the execution of gift mutations and the onus to prove the genuineness of gift mutations shifted upon the respondent which the respondent has not been able to establish; the ingredients of gift i,e, offer, acceptance and transfer of possession have not been proved; the respondent has failed to prove that petitioner personally got executed the gift mutation; the learned appellate court has not given issue-wise findings; the entries of Mutations Nos,1307 and 1308 on the same date are raising doubt about its genuineness; the petitioner has been deprived of her inheritance without her consent. The petitioner's learned counsel argued that both the mutations are void and liable to be cancelled on the basis of aforementioned grounds.
6.Conversely, learned counsel for respondent argued that through concurrent findings, the learned courts below have upheld the mutations Nos,1307 and 1308 as genuine and rightly dismissed the suit filed by the petitioner. Further argued that concurrent findings cannot be set aside in revisional jurisdiction of this Court; gift mutations were proved by producing its attesting witnesses; the Lumbardar, Naib Tehsildar, Qanungo and Patwari have also appeared as witnesses to prove the transfer of the property in dispute and have supported the claim of the respondent; there is no misreading and non-reading of the relevant record; the petitioner had gifted the disputed property to her father on account of natural love and affection and the ingredients of gift were completed; the petitioner has challenged the gift mutations after the period of more than 14 years and as such the suit has been filed only to harass the respondent; the petitioner has not denied her thumb impression on the gift mutation; the petitioner never raised allegation of fraud against her father Barkat Ali; the respondent is in possession of the property without interruption; entries in 'Roznamcha Waqiyati' support the claim of the respondent. The learned counsel for respondent argued that the civil revision is without merit and the same may be dismissed summarily.
7.By consensus of both the learned counsel for the parties, this case is being decided as an admitted case.
8.Arguments heard, record perused.
9.The learned courts below have dismissed the suit on the ground that petitioner does not have cause of action and the suit is not maintainable. I would deal with these objections before discussing the merit of the case.
10. Cause of action means the facts stated in the plaint if presumed to be true that would give right to the plaintiff to seek legal remedy. By stating in the plaint that the petitioner neither transferred her share to her father nor she appeared before the revenue authorities for transfer of the same and the mutations were based on fraud, misrepresentation and collusion, it means that petitioner was asserting certain facts Which opened the door for her to seek legal remedy for redressal of her grievance; hence she would have cause of action to approach the court. The learned trial court has wrongly observed that petitioner did not have cause of action. The conclusion of this Court is that petitioner had cause of action to approach the court for redressal of her grievance. Reliance is placed on Muhammad Asif and another v. Hay Fazal Ahmad and 2 others (2014 CLC 965) wherein it has been held while defining the term 'cause of action' as under:-- "Cause of action' was a set of predefined factual elements that would allow a legal remedy. It means the basis of a law suit founded on legal grounds and the alleged facts, which if proceeded would constitute all the elements required by a statute. For example to have cause of action for breach of contract there must have been an offer and acceptance, for a tort (civil wrong) there must have been negligence or intentional wrong doing and failure to perform."
11. Having cause of action of-course does not mean that the facts asserted by petitioner need not be proved. Any party who asserts some facts to seek relief has to prove the same on the basis of principle of evidence applicable to those particular facts and situation.
12.Maintainability, on the other hands, deals with the question that whether the suit can proceed, carry on or subsist in view of the facts narrated in the contents of the plaint and law on the subject.
In other word, suit has to be competent to proceed. An incompetent suit cannot proceed any further on the basis of some principle of law. However, question of maintainability is to be determined by the court. The Hon'ble Supreme Court of Pakistan while commenting upon maintainability of a case in Hasnat Ahmad Khan v. Institution Officer (2010 SCM R 354) held as under: "word 'maintainability' derives its source from word 'maintain' and its means cause to continue, keep up, preserve, support, assert opinion or statement as true, preserve or provide for preservation (building, machine, record etc.) in good repair, give aid to cause of party etc. and it originates its source from old French word 'maintenir ultimately from Laiin word 'manutenere' meaning thereby to 'hold in hand'.
The objections as to the maintainability are those which either raised by the office or the Court itself, are to be decided exclusively by the Court. "
A suit may not be maintainable on the basis of various legal objections such as absence of cause of action, competency to file, locus standi, jurisdiction, etc. or bar of res judicata, estoppel, etc. The question of maintainability of a suit is to be determined by the court on the basis of facts of the case and law on the subject. I would therefore like to decide the question of maintainability after giving findings on the genuineness of gift mutations.
14. The petitioner herself appeared in witness-box as PW 1 and Muhammad Ali, her husband, as PW2. Both stated in evidence that petitioner inherited 8-kanals of land from her mother Mst.Sharifan who originally belonging to her maternal uncle Hoshiyar. Petitioner produced her mother's inheritance mutation No,1305 in favour of parties as ExPl. Petitioner claimed that she had been deprived of her share of inheritance by transfer of aforementioned property to her father through mutation No,1307 (ExP2) and then to her brother vide mutation No,1308 (ExP3), both mutations are dated 29.06.1987. The petitioner stated that she had neither gifted the suit property to her father nor she ever appeared before the revenue authorities for entry of mutation No,1307 and the said mutation was based on fraud, misrepresentation and collusion and prayed that the same be set aside.
In her cross-examination, petitioner stated that she is an illiterate woman. The fact of petitioner being an illiterate woman has not been rebutted in evidence. Statements of both, petitioner PW1 and her Husband PW2, remained consistent in cross-examination. Case of an illiterate lady is to be treated as at par to a case of 'Parda Nasheen' lady. It has been settled by now that heavy onus to prove lies on a transferee/ beneficiary of transaction with a 'Parda Nasheen' lady. Reliance is placed on Phul Peer Shah v. Hafeez Fatima (2016 SCM R 1225) wherein it has been held that where transaction has been denied by an old, illiterate village 'Parda Nasheen' lady, burden to prove its genuineness would shift to the beneficiary of the transaction. In view of this legal position and after denial of transfer of property by petitioner, the onus shifted to the respondent/defendant to prove the genuineness of the gift mutations Nos,1307 and 1308.
15. The respondent in his written statement as well as his statement recorded as DW 1 stated that petitioner transferred her property to her father, Barkat Ali through gift mutation No,1307 (ExD2). He produced two attesting witnesses of mutation No,1307 namely Naseeruddin as DW2 and Nazir Ahmad as DW3. DW2 Naseeruddin in cross-examination stated that petitioner had sold property to her father but the payment was not made in his presence. DW3 Nazir Ahmad did not utter a single word about mutation No,1307 in his examination-in-chief and only stated that Barkat Ali had transferred land measuring 8-kanals to respondent. In his cross-examination, he stated that petitioner had sold the property to her father and Consideration had been paid in his presence but not in the presence of the Tehsildar. He then again said that the property had not been sold. DW4 Shahid Latif, Special Magistrate, the then Tehsildar, stated that the property was gifted by petitioner to her father and transfer of consideration in the form of money had not taken place. DW7 Hazoor Ahmad, Lumbardar, has not stated any word about the nature of transaction but has stated that petitioner had not received money for transaction. Both the witnesses DW2 Naseeruddin and DW3 Nazir Ahmad have not supported the claim of the respondent that this was a gift mutation rather they stated it to be sale. Hence, the nature of transaction to be a gift has not been supported by both the attesting witnesses and as such the respondent has failed to prove the transaction to be a gift.
Moreover, the ingredients of gift i,e, offer, acceptance and delivery of possession have also not been proved. None of the witnesses produced by the respondent has stated that in their presence petitioner had offered to gift her property to her father and he had accepted the same and possession had been transferred by petitioner. Hence the essentials of gift have not been proved.
Reliance is placed on Mst.Shafqat Parveen v. Muhammad lftikhar Amjad and others (2012 SCM R 1602) wherein the Hon'ble Supreme Court of Pakistan has explained the ingredients of valid gift and burden of proof is on the beneficiary in the following terms: "In Muhammadan Law, offer, acceptance and delivery of possession are the three essential ingredients of a valid gift and the onus was on the petitioner to prove these components."
16. The respondent has also not proved the time, date, place and witnesses before whom declaration of gift was made by petitioner in favour of her father. Hence, the gift has not been proved. Reliance is placed on Peer Bakhsh through L.Rs, and others v. Mst. Khanzadi and others (2016 SCM R 1417) where in it has been held that mutation was not a proof of title and beneficiary thereunder must prove the original transaction of gift by proving in evidence the time, date, place, intention of declaration and witnesses in whose presence declaration of gift was made by the donor.
17.The respondent was to prove that consideration for transfer of property was natural love and affection of a daughter for her father. The respondent appearing as DW 1 stated that it was natural love and affection but his own witnesses DW2 and DW3 stated the transaction to be sale and not against love and affection. However, DW3 again said that it was not sale. DW7 Hazoor Ahmad, Lumbardar, has also not stated that consideration of transfer of property was natural love and affection. This means that the actual consideration for the transfer of property has not been established on the record. Therefore, the claim of the respondent that gift mutation had been entered on account of natural love and affection as consideration fails.
18.The respondent has not stated that who identified the petitioner at the time of alleged transfer of property by petitioner to her father Barkat Ali. The respondent as DW1 has stated that petitioner had gone in alone to get her statement recorded. DW2 Naseer uddin and DW4 Ch.Shahid Latif, the then Tehsildar, stated that Nazir Ahmad and Hazoor Lumbardar had identified the petitioner. DW6 Muhammad Shafi Patwari stated that Hazoor Lumbardar had identified the petitioner at the time of registration of mutation. Nazir Ahmad while appearing as DW3 never uttered a single word about Mutation No,1307 and did not say that he had identified the petitioner. Similarly, DW7 Hazoor Lumbardar did not say that he identified the petitioner. Hence, identity of the person appearing for recording of mutation is not established.
19. To prove the genuineness of a transaction of transfer of property, identity of parties to the transaction, subject matter of the transaction, nature of transaction and consideration have to be proved. None of the aforementioned ingredients have been proved by the respondent.
20.The learned counsel for respondent has argued that petitioner has not denied her thumb impression on the mutation and entries in 'Roznamcha Waqiyati' fully corroborate the validity of the gift. The petitioner has not admitted her thumb impression on the gift mutation No,1307 as she had denied the execution altogether. The respondent could have easily applied for comparison of thumb impression to prove that petitioner had appeared before the revenue authorities to get mutation entered but he did not apply to the court for the said purpose. Moreover, in view of my finding mentioned above that respondent has not been able to prove that the petitioner got the gift mutation sanctioned and the entries in 'Roznamcha Waqiyati' have lost significance and cannot be used to corroborate the gift that has not been proved otherwise.
21. The Superior Courts have laid down the points for taking into consideration with regard to gift deeds executed by 'Parda Nasheen' ladies. The Hon'ble Supreme Court of Pakistan has cited those points with approval in case titled Mst.Rasheeda Bibi and others v. Mukhtar Ahmad and others (2008 SCM R 1384), which are as under:-- Whether the plaintiff had any friendly advice before executing the deed and by a person whom the court considers as being genuinely interested in her welfare? ii.Whether the document was explained to her and whether she really had the capacity to understand its consequences? iii.Whether it was a mental act, that is, whether the mind accompanied the hand that executed it? iv.Whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?"
22. In the present case, the property of petitioner was firstly transferred to her father, who was in a position to influence her decision. The respondent has not proved that any independent advice was available to petitioner if she had actually transferred the property to her father and hence the component of undue influence could not be ruled out. Therefore, the transaction is doubtful in every respect and cannot be upheld under any circumstances.
23. For what has been discussed above, I feel no hesitation to hold that mutation No,1307 is void.
The courts below have ignored this aspect of the matter and therefore the judgments of both the courts below are based on misreading and non-reading of evidence and erroneous exercise of jurisdiction.
24.Mutation No,1308 relates to transfer of 16-marlas of land by Barkat Ali (father) in favour of Qadeer. Respondent No,1 as DW.1 states that father offered 8- kanals of land which he accepted.
DW2 Naseer udddin has said that father transferred property of petitioner 8-kanals to respondent.
DW3 Nazir Ahmad said that Barkat Ali offered 8-kanals of land to respondent and handed over possession to him. All the private witnesses of transfer of 16-kanals land from Barkat Ali to Qadeer Ahmad have not supported claim to the extent of 16-kanals. Even DW7 Lumbardar did not state that he identified Barkat Ali at the time of transfer of the disputed property. The respondent has failed to prove mutation No,1308 to be a genuine document, besides mutation No,1308 is based upon mutation No,1307 which has already been declared as void.
Superstructure based on void transaction is also void. Reliance is placed on Baja through L. Rs, and others v. Mst.Bakhan and others (2015 SCM R 1704).
25.So far as the question that petitioner has challenged the mutation after more than 14 years is concerned, it is immaterial because petitioner has specifically stated that she had come to know about the impugned mutations after the refusal of the respondent to pay share in produce on 26.04.2002. She made inquiry to the Revenue Officers which transpired that the property had been fraudulently transferred, thus the suit filed on 03.06.2003 is well within time. Furthermore, possession of one co-sharer is the possession of all co-sharers and the petitioner being co-owner shall be deemed to be in possession of the inherited property. Reliance is placed on Agha Syed Mushtaque Ali Shah v. Mst.Bibi Gul Jan and others (2016 SCM R 910).
26.The learned counsel for respondent tried to rely upon the number of witnesses who appeared to support the genuineness of gift mutations. It was argued that only two witnesses i,e, the petitioner as PW1 and her husband as PW2 had appeared in evidence to challenge the gift mutations, whereas the respondent produced seven witnesses, including himself, two attesting witnesses of mutations besides Tehsildar, Qanungo, Patwari and Lumbardar to prove gift mutations. He argued that all the official witnesses have appeared in witness-box to prove mutations Nos,1307 and 1308 and sanctity is attached to official acts. As the private witnesses have not been able to prove the gift transactions, the evidence of official witnesses would be of no use because the identity of the woman who appeared before them has not been established and they could not themselves properly identify the petitioner without the identification of private witnesses who have not deposed about identity of the petitioner. It is not the quantity but the quality of witnesses that is important. The respondent's witnesses have not been able to prove the gift mutations to be genuine. Reliance is placed on Abdul Aziz v. Mst.Malika and another (1997 SCM R 1599) wherein it has been held that proof would depend on quality and not on quantity of evidence and Sabur Rehman and another v. Govt. of Sindh and 3 others (PLD 1996 SC 801) wherein it is held that quality and not the quantity determines the fate of the case.
27.The respondent has tried to defend the findings on the ground that concurrent findings of fact cannot be set aside in revisional jurisdiction of this Court. The Hon'ble Supreme Court of Pakistan has held that erroneous concurrent findings based on misreading and non-reading of evidence are no longer sacrosanct. Reliance is placed on Nazim ud Din and others v. Sh. Zia ul Qamar and others (2016 SCM R 24) and Noor Muhammad and others v. Mst.Azmat-e-Bibi (2012 SCM R 1373).
28. Law protects the right of women to inherit ancestral property and more particularly of 'Pardah Nasheen' illiterate women who are generally unaware of their rights under the law and deprived of their shares in our male dominated society.
Reliance is placed on Mst.Hussain Bibi and others v. Barkat Ali and others (2004 SCM R 1391) and Ghulam All and 2 others v. Mst. Ghulam Sarwa1 Naqvi (PLD 1990 SC 1).
29. In view of the aforementioned IS findings, it is held that the learned trial court had wrongly held the suit of the petitioner not to be maintainable.
30. The upshot of the above reasoning is that the Civil Revision is allowed, both the Judgments and decrees passed by the learned Additional District Judge, Mailsi dated 13.12.2004 in appeal and learned Civil Judge Mailsi dated 13.11.2003 are set aside and the suit filed by the petitioner is decreed with the result that both the mutations bearing numbers 1307 and 1308 dated 29.6.1987 are declared to be illegal and void and the property measuring 8- kanals belonging to petitioner is restored to her name and the remaining 8-kanals is restored to the name of Barkat Ali, father of the parties, to be inherited by his legal heirs.