The petitioner in this revision petition assails the judgment and decree dated 16.1.2015 passed by the learned Civil Judge, Depalpur , as also the judgment and decree dated 22.9.2017 of learned Addl. District Judge, Depalpur , District Okara, dismissing the appeal.
2. Respondents herein, Syed Hassan Abbas and Syed Hassan Jahanyan (respondents herein) filed a suit for declaration claiming that they were the real sons of Syed Bashir Hussain and Mst. Sagheer Fatima, both then deceased; and that suit property comprising land measuring 49 kanals 15 marlas, which was owned by their mother, on her death devolved upon the respondents/plaintiffs, the petitioner (Mubashar Hussain), Musharaf Hussain and Syed Kaukab Zia, as legal heirs. While they were enjoying possession of the suit property through their tenants, the petitioner who was resident of Canada returned three months before the institution of the suit, and forcibly took the possession from the servants and pattadaraan. The petitioner thereafter started claiming that the land had been gifted to him through gift deed No. 1731 dated 19.8.2002 by their mother Mst. Sagheer Fatima and mutation No. 390 based thereon was entered. The alleged plea of gift, according to respondent/plaintif f was false. (Late) Mst. Sagheer Fatima was an illiterate lady, who never made any gift in favour of the petitioner and that the alleged deed of gift was forged and fraudulent, which was prepared and got attested by impersonation. Their mother never appeared before the sub-registrar or the local commission and also that the three foundational conditions for claiming gift were non-exist ent and therefore they were entitled to a declaration to the effect that the alleged document was inoperative qua their rights.
3. The suit was resisted by the petitioner on the plea that their mother considered respondent/plaintiffs to be disobedient progeny and out of natural love and affection voluntarily gifted the suit property to petitioner; which none of them challenged during her lifetime. Further that the respondent Nos. 2 and 3 were fully aware about the alleged gift as also the document and that the suit was filed to harass the petitioner which was liable to be dismissed.
4. Issues crystalized from divergent pleadings were framed on 12.12.2012 and partie s produced evidence pro and contra. Oral as well as documentary evidence was adduced by both sides. On consideration of the evidence as also the points raised by the parties, the learned Civil Judge decreed the suit vide judgment dated 16.1.2015.
5. Petitioner impugned the judgment and decree in appeal which was dismissed by the learned Addl. District Judge on 22.9.2017; in consequence decree of the learned trial court was af firmed.
6. Learned counsel appearing on behalf of petitioner while throwing a challenge to the judgments of the courts below, argued that the three essential ingredients to prove gift were duly established by evidence; that minor discrepancies in the evidence were natural consequence of recording of the evidence after several years and thus ignorable; that petitioner filed an application for additional evidence before the first appellate court which was illegally declined; that statement of DW1 was duly supported and corroborated by the other DWs; that the respondent No.3, sister of the petitioner, allegedly filed a suit for declaration during the lifetime of the mother but respondent Nos.1 and 2 failed to challenge the proceedings/orders passed therein under section 12(2), C.P.C.; that the suit was liable to be dismissed due to the delayed institution thereof; and that petitioner has filed miscellaneous application (CM 1-C/2018) before this Court with the instant revision petition, to seek permission for additional evidence declined by the learned appellate court, which deserves to be allowed.
7. The submissions made in the course of the hearing of the petition have been considered in the light of the evidence on the record as also the findings recorded by the learned courts below on the basis thereof.
8. From the record annexed with this petition, it is manifest that the relationship of the parties inter se as legal heirs of deceased Syed Bashir Hussain and Mst. Sagheer Fatima is not in issue. The dispute relates to alleged gift deed No. 1731 dated 19.8.2002 as also mutation No. 390 on the basis thereof in terms of which the petitioner claims that the land in question was allegedly gifted to him by his late mother. While respondent/plaintiffs claimed that no such gift was ever made, their mother never divested herself of title in the land, she was an illiterate lady, never appeared either before the local commission or the sub-registrar nor ever executed any alleged gift deed and that the document was prepared and got registered fraudulently by impersonation and by producing of a different person which as such was inoperative qua the rights of the legal heirs.
9. It is a consistent rule that where the existence and execution of a document is questioned on the plea of being fictitious, fraudulent and a result of impersonation, the onus to prove the transaction and execution of document as also the registration/attestation thereof, with free will and volition of the alleged executant, always rest upon the beneficiary of the document. In this case, as also observed by the two courts below, the respondent/plaintiff appeared as PW1, who deposed that no gift was ever made. The foundational elements of gift were non existent.
The deceased never transferred the property or executed the document nor there was any independent advice for the old lady and that the document was prepared and registered by producing a different person. The statement was supported by PW2 in his deposition. In defence, the petitioner appeared as DW1, who during cross- examination admitted that he was permanent resident of Canada and that he was not in Pakistan at the time of death of his mother, and that he did not recollect the names witnesses of the alleged gift and that he had family terms with Aslam Shad Joya, the alleged local commission. The petitioner did not deny that in 2002 his mother was 60 to 65 years of age and that his father did not make any gift in his favour; and that the property of the father devolved upon all the legal heirs in accordance with their Islamic shares. It is thus evident that the petitioner who claimed to be beneficiary of the alleged gift did not recollect the names of the supposed witnesses nor did he mention the time of the alleged gift in the written statement. So much so DW2, Syed Asim, admitted in cross- examination that none of the witnesses was resident of Rajgarh and that apart from Aslam Shad Joya, two other witnesses were present but he could not disclose their names. Razzaq Ahmad the other alleged identifier was not produced in evidence.
10. The alleged gift deed, Ex.P1, does not indicate that it was signed by any person as an attesting witness; rather the document reveals that the status of Muhammad Akram Qasmana, Advocate and Razzaq Ahmad, who had allegedly signed, was mentioned as identifier No.1 and identifier No.2. Mian Muhammad Aslam Shad Joya, Advocate claims to have acted as a local commission. Identifier and attesting witness represent two distinct capacities. The testimony of a person who had allegedly acted as identifier could not be considered to be that of an attesting witness. Be that as it may, even the statement of Muhammad Akram Qasmana, Advocate and that of Mian Aslam Shad Joya, local commission was not credible. None of them was either related to (late) Mst. Sagheer Fatima nor claimed to be resident of the area where she statedly lived. Razzaq Ahmad the other person who allegedly identified did not appear in the trial as a witness. As noted by the learned courts below DW2 as also the other witnesses who appeared in the evidence, did not recollect the names of the witnesses to the alleged gift, nor those two to three persons who find mention in their testimonies, were produced in evidence. It was a case in which the alleged donor (mother) was an illiterate pardanashin lady aged between 60 and 65 years who is claimed to have allegedly executed the document without any independent advice and in the absence of any of her near and dear ones i.e. other sons and the daughter. The petitioner claims that the deceased made the gift as plaintiffs/respondents 1 and 2 were allegedly disobedient children but this stance is belied by the gift deed, ExP1, itself that does not mention any such reason for the alleged gift. The learned courts below after in depth scrutiny of the evidence recorded findings to the effect that the petitioner could not prove the alleged gift deed, ExP1, while the mutation under challenge was based on the document the execution whereof could not be established.
11. In "Phul Peer Shah v. Hafeez Fatima " (2016 SCMR 1225 ) it was observed by the honourable Supreme Court that in the cases where the transaction is claimed to be by a pardanashin lady, the onus to prove transaction is upon the beneficiary who has to prove free of all suspicions and doubt, that the transaction was legitimately made and that certain mandatory conditions were fulfilled in a transparent manner . The operative part of the judgment reads as follows: -
8. In a case of such transaction with old, illiterate/rustic village 'Parda Nasheen ' lady onus to prove the transaction being legitimate and free from all suspicious and doubts surrounding it, can only be dispelled if the lady divesting herself of a valuable property , the following mandatory conditions are comp lied with and fulfilled through transparent manner and through evidence of a high degree. Amongst this condition, the pre-dominantly followed are as follows: -
(i) That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences;
(ii) That she was having independent advice from a reliable source/person of trust to fully understand the nature of the transaction;
(iii) That witnesses to the transaction are such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her;
(iv) That the sale consideration was duly paid and received by the lady in the same manner; and
(v) That the very nature of transaction is explained to her in the language she understands fully and she was apprised of the contents of the deed/receipt, as the case may be. "
12. In the case of "Arshad Khan v. Mst. Resham Jan and others" (2005 SCMR 1859) it was observed by the honourable Supreme Court to the effect that in case of transaction involving pardanashin lady, heavy burden rests on party in position of active confidence to prove good faith and genuineness of transaction as envisaged in Article 127 of the Qanoon-e-Shahadat Order, 1984. The august Court was please to observe that "this is a settled law regarding the disposition of properties of Parda Nasheen Ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the persons who claims its genuineness or who is to be benefitted by such transaction through reliable, cogent and convincing evidence."
13. In "Fayyaz Hussain and others v. Haji Jan Muhammad and others " (PLD 2018 SC 698) it was observed by the honourable Supreme Court that even in the cases of death of the executant prior to the suit and in the face of the denial of the execution by the plaintif f, the requirement of two attesting witnesses could not be dispensed with, and that the alleged beneficiary is legally required to prove three ingredients of gift: (i) offer by donor , (ii) acceptance of gift by the donee and (iii) delivery of possession; and all these ingredients need to be proved and established through independent evidence.
14. Likewise in "Ghulam Farid and another v. Sher Rehman through LRs" (2016 SCMR 862) while examining the plea of transaction by a pardanashin lady it was observed by the honourable Supreme Court as under:- "14. The inflexible, hard and fast rule is, that when any transaction is made by any one where "Parda Nasheen " lady's vital interest is involved then, the following conditions are to be invariably and essentially fulfilled: -
(i) to establish through evidence that the transaction was free from any influence, misrepresentation or fraud;
(ii) that, the amount of consideration equal to the value of the property was indeed paid to the ladies;
(iii) in the case of "Parda Nasheen " rustic village ladies at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and;
(iv) That at the time of transaction, the ladies were having access to independent advice of their nearer or dearer, who have no hostile interest to them."
15. Considering the rule supra, if the facts and evidence of this case are considered, it is manifest that the petitioner miserably failed to prove the alleged gift as also the execution and registration of the disputed document of gift by his mother , a pardanashin old lady, through any independent evidence. The persons who allegedly identified and deposed in favour of the petitioner were not related to the alleged donor; she was not claimed to have any independent advice, except the petitioner who claims the alleged gift; and none of the other children of the deceased are either claimed to be present at the relevant time or ever appeared in the witness box to support the petitioner on oath by undergoing the test of cross-examination. The statement of the witnesses was unworthy of any credibility as rightly observed by the two courts below. It was a case in which the petitioner claimed that the property which was to be inherited from the mother by all the siblings as per their Islamic shares, was gifted to him to their exclusion but he was unable to prove through any cogent evidence even the excuses taken through written statement to justify the alleged transaction.
16. In a similar case "Fareed and others v. Muhammad Tufail and another " (2018 SCMR 139) honourable Supreme Court while dealing with the plea as taken by the petitioner observed as under: - "2. The principal issue, whether the respondent-plaintif f Muhammad Tufail could claim as a legal heir of Gomaan, is settled by a concurrent finding of fact given by three learned courts below . In the light thereof the rule laid down by this court in "Kulsoom Bibi v. Muhammad Arif" (2005 SCMR 135) and Ghulam Haider v.Ghulam Rasool (2003 SCMR 1829 ) that a done claiming under a gift that excludes an heir, is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed. In the present case there is no evidence of declaration of gift or of its acceptance on record. The mere transfer of possession to a done is not sufficient to constitute a valid gift under the law. Furthermore, in the judgment of this court reported as "Barkat Ali v. Muhammad Ismail " (2002 SCMR 1938 ) a gift deed as in the present case must justify the disinheritance of an heir from the gift..."
17. The petitioner miserably failed to produce any cogent evidence in support of his plea of gift to the exclusion of other legal heirs. As to the plea that the other legal heirs did not deny the gift in their reply, suffice it to say that any alleged admission of a co-defendant or co-plaintiff cannot non-suit the plaintiff or the other defendant in the suit, till such time s/he appears in the witness box and submits to cross-examination.
18. In "Shah Muhammad and 2 others v. Dulla and 2 others " (2000 SCMR 1588 ), it was observed that the admission of a co-plaintif f or co-defendant does not bind the other in the absence of direct evidence.
19. The petitioner was required in law to prove by independent and credible evidence the alleged gift and also the execution of the document. These were undeniably not proved in this case. Two courts below minutely examined the entire evidence and recorded concurrent findings of fact that the alleged gift and the disputed document could not be proved; even no misreading or non-reading of the evidence could be pointed out.
20. As to the application (CM 1-C/2018) for additional evidence whereby the petitioner seeks permission to produce Razzaq Ahmad and copy of Khasra Girdawari, the request cannot be accepted for the reason that the petitioner was allowed sufficient opportunities in the trial court to produce evidence, who opted to confine himself to the evidence already produced. After having lost in trial court petitioner attempted to make up the deficiency in his evidence by moving an application by way of additional evidence which was also declined by the learned first appellate court for cogent reasons. The production of Razza q Ahmad at this stage could not lend any support to the petitioner 's case as the evidence already on record does not prove the existence of gift or the execution of the document; while the witnesses produced as noted by the courts below did not mention the name of Razzaq Ahmad. Even otherwise, he is not claimed to be related to the deceased mother nor had any acquainta nce with her family . In these circumstances Razzaq Ahmad' s stateme nt could hardly furnish any support in defence of the petitioner . The application ( CM 1-C/2018 ) for additional evidence is therefore declined.
21. For the reasons herein above, this revision petition is without substance, which fails and is accordingly dismissed .