Undeniably the suit shop was titled by Chanan Din, the forefather of the present parties, who departed in 1988 and thereafter his son Khushi Muhammad Akhtar also passed. away in 1995. Muhammad 'Sharif, ascendant of Respondents No. 1 to 6, son of Chanan Din and real brother of Khushi Muhammad Akhtar when tried for the attestation of inheritance mutation qua shop in dispute, it was apprised by the petitioners that it stood already gifted out by Chanan Din through unregistered memo. of gift (Exh.D1) way back in 1965 to Khushi Muhammad (ascendant of petitioners), compelling Muhammad Sharif to institute the suit to claim his Shari share in the suit property besides for cancellation of Exh.D1 asserting it to be forged, fictitious and collusive. The said plaintif f also prayed for the cancellation of entries in favour of Khushi Muhammad solely recorded in record of Excise and Taxation Department. The suit was contested by the petitioners being successors-in-interest of beneficiary . Thus issues were materialized and although learned Trial Court while appreciating evidence of the parties dismissed the suit vide judgment dated 24.10.2001, however , it could not sustain having been set aside by learned lower Appellate Court while accepting appeal of Respondents Nos. 1 to 6 (the descendants of original plaintif f), hence this petition.
2. Arguments heard and record scanned.
3. The case of petitioners/beneficiaries hinges upon unregistered memo. of gift alleging to have been executed to acknowledge oral gift. This Court with the able assistance of learned counsel for the parties has minutely gone through the said document and found it inadequate to demonstrate the happening of original transaction. The said dearth in order to explore time, date, venue and names of the witnesses was again found in the written statement submitted on behalf of the petitioners. No doubt, Exh.D1 was. constructed prior to promulgation of the Qanun-e- Shahadat Order , 1984, but even then it being a private document was to be proved by producing its signatories.
Whereas, available record suggests that none out of its three attesting witnesses examined. The contention of learned counsel for the petitioners that out of them two had already died and the third one due to his serious illness was not produced, if is taken as true, even then to meet with the legal requirement, the copies of their death entries as well as some record to prove the factum of illness might be brought on suit file, besides to examine some persons familiar with their signatures in, secondary evidence, which is complete ly lacking herein, thus for such count, the document (Exh.D1) was liable to be taken out of evidence. No doubt the Scribe (DW3) was summoned, who though tried to prove the construction of Exh.D1, but could not be treated at par with marginal witness, thus his deposition was not enough to prove contents of said document. Moreover , he was also not the witness of original transaction. It is well established that such like documents are not per se admissible in evidence, rather are 'required to be proved as per scheme of law. The emphasis that Exh.D1 was taken in evidence without any objection, which being document of more than thirty years old was not required to be proved as per threshold of the law is not well founded. The exhibition of document in evidence is one aspect, whereas the other is to prove its due execution and most important is to establish the ingredients of transaction referred therein. The Scribe (DW3) did not state that declaration of gift was pronounced or accepted before him. The DW1, who in no capacity was signatory of Exh.D1 also failed to demonstrate time and date about happening of original transaction. He even omitted to said that alleged offer was made or accepted by the donee in his presence. As such, weak and meager evidence was examined, which was nat enough to deprive the legal heirs to claim their shari shares in the suit property .
4. The submission of learned counsel for respondents that Ehx.P1 having age more than 30 years attained presumption of its correctness within the meaning of Article 100 of the Qanun-e--Shahadat Order , 1984 and the conclusion drawn by the Civil Court to 'this effect was unexceptionable, is not well founded. The Exh.D1 was not a registered document, but merely scribed on plain paper and it was not essential for the Court to attach presumption of execution to a document more than 30 years old in all the cases without considering the other related facts of the case to draw such inference. On account of appreciation of evidence available on suitfile, the presumption under discussion as to validity and execution of Exh.D1 would not apply . See Sabz Ali Khan & 7 -others vs. Mst. Bibi Naik Zada and another (2020 CLC 1048 ), Liaqat Ali and 6 others us. Muhmnmnd Akhtnr and 63 others (2020 YLR 1446 ) and Nazir Ahmed deceased through LRs us. Karim Bakhsh (Late) through LRs (2017 SCMR 1934 ).
5. There is nothing on record, that prope rty in dispute was under clog or there was any restraining order for its alienation, then why it was not permanently transferred by the donor through execution of registered gift deed.
Moreover , the execution of present memo. of gift on a plain paper was sufficient to doubt its authenticity . It is very easy to manage such like document and in such situation, a high quality evide nce is always required to rely thereupon, which is lacking here. It was again a drawback that after the execution of Exh.D1, the donor survived for more than two decades but neither it was brought in, light in his life nor an effort was made for its registration.
There is no doubt that record of Excise and Taxation Department, whatever it may be and the utility bills could not be made basis to constitute title. See Muhammad Zaman vs. Muhammad Jamil and 4 others (1992 CLC 873), Muhammad Ismail vs. Maqbool Ahmed and 8 others (2001 CLC 252), Muhammad Shafi vs. Syed Chan Pir Shah and 4 others (2018 CLC 866) and Muzaffar Khan vs. Sanchi Khan and another (2007 SCMR 181). The donor was even not produced before the said Department to make a statement for the endorsement of Exh.D1.
6. Thus mere execution of Exh.D1, which was even unregistered, definitely create d no right, interest or title in the immoveable property until and unless attested in terms of Section 54 of the Registration Act, 1908 and in absence thereof the title of the property in questio n could not have been conferred upon predecessor of petitioners. See Allah Diwaya vs. Ghulam Fatima, represented by Ahmad Sher and others (PLD 2008 SC 73 ).
7. In the instant case, it is a gift, which tantamount to disinheriting the majority of legal heirs. In such circumstance when, through a gift, deprivation of some or either of legal heir is involved, the heavy onus to prove original transaction as well as reasons for doing so strongly rested upon the beneficiary of such gift. The apex Court has already nullified such like transaction in various judgments reported as Muhammad Ashraf vs. Bahadur Khan and others (1989 SCMR 1390 ), Barkat Ali through legal heirs and others vs. Muhammad Ismail through legal heirs and others (2002 SCMR 1938 ), Ghulam Haider vs. Ghulam Rasool and others (2003 SCMR 1829 ) and Muhammad Ajmal and others vs. The State and another (2018 SCMR 141 ).
8. When established that there was no gift and its deed (Ex.D-1) was unregistered and procured by practicing fraud, which vitiates even the most solemn transaction, as any deal based on fraud would be void and notwithstanding the bar of limitation, the matter can be considered on merit so as to discourage fraud besides to be perpetuated, as such findings of the learned Appellate Court below on Issue No. 1 are af firmed as well.
9. The learned counsel for the petitioners badly failed to persuade that either the impugned judgment was result of material irregularity/patent illegality or tainted with misreading and non-reading of evidence or jurisdictional defect on the part of the, learned Appellate Court to call for interference by this Cour t. The scope of interference in revisional jurisdiction by this. Court is restricted and narrower , which is only meant for correcting errors of facts and law, if are found to have been committed by the subordinate Court in the discharge of its judicial functions. Hence, instant revision petition being devoid of any merit and force is dismissed. No order as to costs.