Rasaal Hasan Syed, J. This civil revision calls into question judgment and decree dated 04.4.201 1 of learned Addl.
District Judge, Shorkot, District Jhang whereby the suit of the petitioner was dismissed by accepting the appeal of the respondents.
2. Petitioner/plaintif f Bashir Ahmad instituted a suit for declaration claiming that he was owner-in-possession of land measuring 15 marlas; gift deed bearing document No. 192 dated 23.7.1999 and mutation No.1448 dated 27.12.1999 were illegal, result of fraud, misrepresentation and a product of conspiracy and that the same were ineffective as against proprietary and possessory rights of petitioner and that the respondents/defendants be restrained from interfering in the ownership and possession of petitioner qua the suit property . It was stated that respondent Nos.1 and 2 were real sons of the petitioner , he also had four daughters; respondent Nos.1 and 2 fraudulently started claiming a gift deed in their favour and that he had never made any gift nor gifted the property exclusively in favour of respondent Nos.1 and 2 and that his legal heirs, namely, two sons and four daughters were entitled to inherit the property proportionate to their share under the law of inheritance but the respondents fraudulently got registered the gift deed, which was liable to be annulled. Respondent No.2 accepted the claim of petitioner by filing a conceding written statement, recording his "no-objection" to the grant of decree while the suit was contested by respondent No.1 by alleging that a gift was made in his favour as well as that of respondent No.2 because the petitioner was angry with one of his daughters Rubina who had married without his consent and permission; that the gift deed was prepared and registered; that later respondent Nos.1 and 2 mutually partitioned the property and separated their portions and were occupying their respective separate portions as exclusive owners; and that the petitioner himself applied to the Wapda for disconnection of meter, in result, the electric supply was disconnected. Parties produced their respective evidence whereafter the learned Civil Judge decreed the suit vide judgment and decree dated 24.12.2009. Appeal filed by respondent No.1 was allowed, judgment and decree dated 24.12.2009 of learned Civil Judge was set aside and the suit was dismissed by the learned Addl. District Judge vide judgment dated 04.4.2011, which is impugned herein.
3. Challenging the impugned judgment, learned counsel for the petitioner submitted that the findings recorded by the Trial Court were based on accurate and correct analysis of evidence which was misread and misinterpreted by the learned Addl. District Judge and that erroneous conclusions were drawn and that findings of the Appellate Court were based on conjectural reasoning and were contrary to the evidence on record. It was further added that the case was a typical instance of situation where the brother was making an illegal attempt to deprive the sisters of their legitimate share of inheritance by concocting a forged and fabricated document which to the good fortune of the daughters was challenged by the petitioner himself as a father in his lifetime who appeared in the witness-box, denied the execution of the document, denied the claim of gift and specifically disputed his appearance before the Sub-Registrar or Revenue Officials and that his statement could not be shaken; while to the contrary the plea taken by the respondents on the face of it was frivolous and untenable which was rightly disbelieved by the Trial Court and that respondent No.1 was unable to prove any valid gift in his favour or in favour of respondent No.2 and that in the circumstances where respondent No.2, being the beneficiary of the document, himself denied and disputed the transaction the learned Addl. District Judge committed an illegality in ignoring the same, though it was itself the best evidence to declare the alleged document as invalid and fraudulent.
4. Contrariwise the judgment of Appellate Court was defended by learned counsel for the respondent No.1 who submitted that there was no misreading of record in appeal and that the concerned functionaries having appeared in court as witness and proved the execution and registration of document, which statement was corroborated by other evidence, the Appellate Court rightly intervened by accepting the appeal and setting aside the judgment and decree of Trial Court and dismissing the suit.
5. Judgments of courts below being at variance, it is considered appropriate to examine the entire evidence and also the reasoning of the courts below with a view to determine the matter in contro versy . Stance of the petitioner in the plaint was that he had never made any gift of disputed property in favour of his two sons i.e. the respondents exclusively and by fraud the gift deed and mutations were got attested and that he was in possession of property .
Petitioner himself appeared as P.W.1 and deposed on oath that he was in continu ous possession of the property; that the alleged gift deed dated 23.7.1999 was a result of conspiracy; that he was 80 years old and had two sons and four daughters and that he never made any gift in favour of his sons exclusiv ely. In cross-examination it was attempted to be shown that the petitioner was unhappy with one of his daughters Rubina as she had allegedly entered into wedlock contrary to his will; but in response the petitioner as P.W.1 denied the suggestion that he was not happy with his daughter Rubina. Stance was taken by respondent No.1 that due to the marriage of Rubina without his consent, the gift was made in favour of respondent Nos.1 and 2, which was specifically denied by the petitioner . Even otherwise the stance taken does not appear to be logical or appe aling to reason. If the petitioner , according to respondent No.1, was unhappy with the matrimonial choice of Rubina, his daughter , it does not explain why the father would also wish to disinherit his other three daughters as well particularly when he deposed in so many words that he had good relations with the daughters and that all the daughters used to visit him and he was not annoyed at the marriage of his daughter Rubina. Even otherwise if respondent No.1 being brother , was not happy over the marriage of his sister which he stated to be the case, how could he expect his father who had not raised any issue qua the marriage, to transfer his property to the disgruntled son especially when respondent No.1 as D.W.1 did not deny in cross-examination that no "aaq naama" was ever written or declared by the petitioner/plaintif f nor did the petitioner ever claim of having disinherited the daughters. In the given circumstances, the plea raised to justify the gift did not appear to be logical or intelligible nor could it be deemed to be otherwise proved.
6. As a matter of fact once the petitioner had appeared in the witness-box as P.W.1 and deposed that he had not made any gift exclusively in favour of his two sons i.e. respondent Nos.1 and 2, and this stance was also conceded by respondent No.2, the other son, who being the beneficiary of the document admitted the assertions in the plaint and expressed his "no-objection" to grant of decree, the onus was squarely upon respondent No.1 to prove the mandatory conditions of gift including execution and registration of the document by free will and consent. Certain material factors in this regard which shed light on the subject cannot be overlooke d. Firstly , the petitioner on oath deposed that he was 80 years old while according to respondent No.1, as deposed by him as D.W.1, the petitioner was 85 years old; the petitioner was blind from one eye which fact was not denied by the respondents; no declaration or acceptance of gift or transfer of possession was claimed to have been made in the presence of the petitioner 's daughters or his wife (who was admittedly alive) nor was it claimed that any of them accompanied the petitioner to the Sub-Registrar at the time of attestation of document. Furthermore no time, date or place of oral declaration and acceptance of gift and transfer of possession were mentioned either in the written statement or in the disputed document and it appears that no near relative of the petitioner , who was admittedly an old and weak blind from one eye, was claimed to have been with him to render independent advice or to read out and make him understand the contents of the docume nt even if according to respondent No.1 the petitioner had appeared before the Sub-Registrar. So much so that in the statement of Tehsildar/Sub-Registrar, who tried to favour the respondents by deposing some facts which were not supported by the record and were also belied and contradicted by the other witnesses of respondents, did not claim that any declaration or acceptance of gift or factum of transfer of possession of property was ever recorded by him. D.W.2 the Sub-Registrar, in his statement-in-chief deposed that he had asked the petitioner at the time of registration of document as to whether he had other children to which he responded in the affirmative. He further deposed that when petitioner was asked as to why he was depriving the other children of the property, petitioner's response was that he wanted to give the house to his two sons and that the proceedings were adjourned for after "Jumma Prayer" and when they were resumed he asked the petitioner as to why he was disinheriting the other children response of the petitioner was that he wanted to gift the house to his sons. In cross-examination D.W.2 admitted that he did not know Bashir beforehand; that Bashir's age was 70/80 years; and that he could not say as to whether Bashir had monocular vision as one of his eyes was closed but he was an old person. He admitted that his statement about the alleged query from the petitioner regarding the other children or as to the reasons for depriving them of the property was not recorded in any endorsement and that he did not ask about the wife of the executant and that he did not prepare any endorsement to the effect that the proceedings were adjourned and taken up after "Jumma Prayer" or that he recorded any time on the document itself. He admitted that he did not reduce any endorsement qua the offer and acceptance of any gift nor inquired about the possession of the property from the Revenue Staff nor secured any report from the Revenue Officials. D.W.2 admitted that the respondent No.2, the other son and alleged second donee who was the second beneficiary of document, did not appear before him and that he did not call for any well-wisher of the petitioner plaintif f at that time as according to him this was not needed.
He further claimed that Rana Muhammad Aaqil, Advocate, identified the plaintif f. Rana Muhammad Aaqil, Advocate, appeared as D.W.5 but in his cross-examination, he contradicted and belied the Sub-Registrar D.W. 2 when he stated that the Sub-Registrar did not ask the plaintif f as to whether he had any other children nor did he ask as to why he was executing the gift deed in favour of his sons; but volunteered that he only asked about his consent. D.W.5 further admitted that he did not know the age of plaintif f despite the fact that he claimed that he knew him since 1960/61. He also expressed lack of knowledge about the daughters of plaintif f. It is obvious from the reading of the two statements that the Sub-Registrar falsely deposed about the alleged query to the plaintif f as to the other children or as to why he was depriving them of the property . It appears that he overacted by making a statement which was never pleaded in the written statement. His admission that no such endorsement was recorded at the time of registration of document revealed his collusion with the respondent as he attempted to buttress their case by committing a statement against the record. Another important fact was that admittedly respondent No.2 was not present at that time of alleged proceedings before D.W.2 but despite that it is not comprehensible as to how the gift could be completed in the absence of alleged donees. Law requires declaration of gift by the donor , its acceptance by the done and simultaneous transfer of possession to the donee. Neither is there any pleading as to where and when and on which date any such declaration or acceptance was ever made or transfer of possession allegedly took place nor the date, time, month and year or place thereof was ever disclosed. Even the document itself in this regard is silent. The Sub-Registrar admitted that he did not record any declaration and acceptance of gift and that one of the donees, i.e. respondent No.2, was not present before him; while the statements of witnesses were self-contradictory. The deed writer D.W.3 admitted that the document was not signed in his presence nor did he enter the document in his register. D.W.4. made hearsay statement and deposed that Bashir had told him that his thumb-impression was taken on the document in the presence of deed writer Akbar and that he himself did not know as to the number of times the thumb-impression was affixed. The statement was not only inadmissible hearsay but also belied by the statement of D.W.3 the deed writer who deposed that the execution of the document was not made in his presence, nor had he entered the document in his register.
7. As per Muhammadan Law a valid gift could be effected only if the prerequ isites were complied with viz.: declaration of gift by the donor , its accept ance by the donee and delivery of posse ssion of the corpus. Only on the fulfillment of these three ingredients could a valid gift be constituted. Deeper consideration of the evidence and facts referred supra entails the inescapable inference that the necessary conditions for creation of valid gift were not established. Being a case where the brothers were attempting to exclude the female family members from the property belonging to their father , it was imperative to prove the underlying justification proferred to be operative for such disinheritance. In "Fareed and others v. Muhammad Tufail and others" (2018 SCMR 139) it was observed to the effect that a donee 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 and that mere transfer of possession to the donee will be insufficient to constitute a valid gift under the law and further that the donee had to justify the disinheritance of an heir by the gift. In "Aami Chand v. Fajroo" (PLD 1991 SC 1001) it was observed to the effect that where the donor himself who was alive had disowned the gift, the delivery of possession to the respondent had not been established, the circumstances fairly strongly warranted the belief that the donor had not made any gift in favour of the donee. In "Kalsoom Bibi v. Muhammad Arif"
(2005 SCMR 135) and "Ghulam Haider v. Ghulam Rasool" (2003 SCMR 1829) it was observed to the effect that a donee claiming under a gift that excluded an heir is required by law to establish the transaction of gift. In "Barkat Ali v. Muhammad Ismail" (2002 SCMR 1938) it was observed to the effect that a gift deed must justify the disinheritance of an heir from the gift which if lacking the gift will not be deemed to have been proven satisfactorily.
8. In "Mst. Parveen (deceased) through L.R.s. v. Muhammad Pervaiz and others" (2020 SCMR 64) while dealing with a matter pertaining to a purpo rted gift intended to deprive the legal heirs of their share of inheritance, it was observed that: "12. We may once again state that, we are dismayed to observe the all too frequent practice in Pakistan of male heirs resorting to fraud and other tactics to deprive female heirs from their inheritance. While this deprivation causes suffering to those deprived, it also unnecessarily taxes the judicial system of the country , resulting in a needless waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah".
In "Faqir Ali and others v. Sakina Bibi and others" (PLD 2022 SC 85) while considering the case of gift claimed by the sons by which sisters were excluded from the inheritance, it was observed as under: "6...it is trite that a gift in order to be valid and binding on the parties must fulfill three conditions, namely , (i) declaration of gift by the donor , (ii) acceptance of gift by the donee and (iii) deliver y of possession of the corpus. A valid gift can also be effected orally if the afore noted pre-requisites are complied with and proved through valid and cogent evidence. A written instrument is not a requirement under the Muhammadan Law nor is the same compulsorily registerable under the provisions of the Registration Act, 1908. However , strict compliance of the afore-noted mandatory conditions is required and registration of the document is of no help if any of the afore-noted conditions are not satisfied. It has repeatedly been held that beneficiary of a document is not only bound to prove execution of the document but also to prove the gift by producing cogent and reliable evidence that the three necessary requirements of a valid gift namely , offer, acceptance and delivery of possession have been fulfilled, to the satisfaction of the Court".
Reference can also be made to the case of "Tahsinullah v Mst.Parveen (deceased) through L.R.s and others" (2022 SCMR 346) where it was observed that: "4...W e inquired from the learned counsel whether the sisters were still alive and he stated that out of six sisters only two survive. It is a matter of great regret that the laws of Almighty Allah and the law of Pakistan was not abided by the appellant, who brought forth a fictitious gift in his favour by depriving the legal heirs of their respective shares as prescribed by Islamic Shari'ah and on the basis of such manipulation the appellant managed to remain in possession till date, that is, after a perio d of almost thirty eight years. However , the learned counsel states that since possession is with the appellant, execution has been filed. This is most unfortunate, first, retaining by fraudulent means the property and then compelling his sisters/their legal heirs to retrieve their God ordained share by filing executing proceedings. Therefore, we direct the District Collector , Charsadda, who, we are informed, to be the concerned Collector , to implement the decision of the Trial Court, which was sustained by the High Court and to endorse the names of the legal heirs of Ghulam Haider as per their respective shares prescribed by Islamic Shari'ah and to deliver possession to the respective parties within three months from today . Copy of the judgment passed today be sent to the respondents and to the District Collector , Charsadda for information and compliance"
9. In the facts and circumstances of the instant case and the evidence as taken note of supra, it is obvious that the respondents were unable to prove the mandatory requirements of law to establish a valid gift. To exclude the daughters from the inheritance the only stance taken was that one of the daughters namely Rubina had married without the father 's consent but on being suggested the petitioner had denied such assertion with vehemence. This explanation hardly appeared to stand to reason and even if taken still did not account for or explain let alone justify the exclusion of the other three daughters who according to respondent No.1 had good relations and were married with the blessings of the petitioner . The stance taken was, therefore, unlikely which was otherwise also not proved or established. Apart therefrom the alleged gift deed does not mention any such reason for excluding the daughters from the property . The twin requirements of declaration of gift by the donor and acceptance by donee could not be proved as neither any particular date, day, time or place of the alleged declaration and acceptance was given in the document or in the plaint as also in the evidence nor the witnesses, if any, in whose presence the ingredients got fulfilled were mentioned. The alleged gift was claimed to be in favour of two brothers but respondent No.2, the other brother and beneficiary of the document, clearly admitted the claim of petitioner in his written statement and did not support the plea of respondent No.1 as to the alleged gift. So much so he was not claimed to have even appeared before the Sub-Registrar or to have signed the document which makes the entire document as inchoate.
As regards the possession the same was also not be proved to have been given to respondent No.1 as while appearing in the evidence as D.W.1 the said respondent admitted that the petitioner and his wife were living in the same house which was subject matter of the so called gift and that they were being looked after and their bread and butter was also in the same house and that the daughters of petitioner also used to visit the petitioner in the same house. Being so, third ingredient of gift i.e., transfer of possession was also not proved or established.
10. One of the pleas raised by respondent No.1 was that previously a civil suit for declaration was instituted by the sisters against him and also the petitioner wherein written statement was filed which contradicted the petitioner 's stance in the later pleadings. Responding to this plea petitioner as P.W.1 categorically deposed that neither did he appear in any other suit nor did he engage any counsel. No effort was made by the respondent to confront the petitioner with copy of the written statement or to put to him any contradictions during his cross-examination in this context. It is a settled rule that if one claims that in the earlier pleadings contradictory stance was taken then the person concerned shall be confronted in cross-examination with the contradictions and any failure in this regard to confront the document will disentitle the party to plead contradiction. Reference can be made to the case of "Sikandar Hayat and 4 others v. Master Fazal Karim" (PLD 1971 SC 730). The respondent simply banked upon copy of the plaint and written statement tendered by him, which obviously in the absence of any proof could not substitute evidence or be deemed admissible to prove the contents thereof. Reference in this regard may be made to "Mst. Khair Un Nisa and 6 others v. Malik Muhammad Ishaque and 2 others" (PLD 1972 SC 25).
11. Perusal of the judgments of courts below reveals that the court of first instance did take note of all these material facts, omissions and contradictions in the evidence of the respondent and on proper analysis thereof concluded that the respondent could not prove the alleged gift by petitioner in favour of his two sons. The findings so recorded were in accord with the recorded evidence and were also based on correct application of law but in appeal the learned Addl. District Judge misread the record, mis-appreciated and misinterpreted the evidence and proceeding on incorrect assumptions and untenable reasons reversed the findings of the Trial Court.
12. It appears that the learned Addl. District Judge was principally swayed by the fact that the document was registered, little appreciating that its execution by free will and consent was not proved. The petitioner being an aged person of 80/85 years, no near relative or well-wisher of the petitioner was present or claimed to be present before the Sub-Registrar . So much so respondent No.2 the other son and the alleged beneficiary who denied the gift was not present before the Sub-Registrar and that even the wife and other daughters were not present. The document was not witnessed by any near relative of the petitioner as witness. The deed writer had admitted that he did not obtain signatures or thumb-impre ssion of the party himself and that he did not enter the document in his register of deed writing. The statement of D.W.2 the Sub-Registrar , was belied by the statement of other witness, D.W.5 Rana Muhammad Aaqil, Advocate and even the Sub-Registrar admitted that he did not record any endorsement of declaration and acceptance of gift and that he did not even verify the possession of the property from the Revenue Record or its valuation for verifying the Stamp Paper . In these circumstances, the findings of learned Civil Judge that the execution of document and plea of gift could not be proved were justified but the learned Addl. District Judge misread the evidence and proceeded on incorrect assumptions by attaching too much substance to the registration of document little appreciating that mere registration of document could not establish the actual execution and that the execution of the registered instrument having been specifically denied by the person by whom it was purported to be executed it had to be established in accordance with the provisions of Articles 17 and 79 of the Qanun-e- Shahadat Order , 1984 which not having been done, the factum of registration could not be a ground to assume the genuineness of the transaction. Reference can be made to the case of Fareed and others supra wherein it was observed that the donee claiming gift is required by law to establish the original transaction of gift irrespective of whether such transaction was evidenced by a registered deed.
13. As regards the objection of maintainability of the suit with reference to the earlier suit, as observed supra, the petitioner denied having ever appeared in the suit or engaged any counsel therein while the pleadings were not confronted in cross-examination. In any case, the suit was filed by daughters to claim that they could not be deprived of their right of inheritance on the basis of the fraudulent document of gift. The proceedings therein were statedly adjourned "sine die" for the simple reason that the petitioner himself having become cognizant of the document and being in possession of the property , as admitted by D.W.1 in cross -examination, could legitimately challenge the document within six years of knowledge. The alleged gift deed was claimed to be dated 23.7.1999 while the suit was filed on 11.9.2004 which was well within time and was otherwise maintainable under Article 120 of the Limitation Act, 1908. The objection to the maintainability of the suit in the given circumstances was without substance.
14. For the reasons above, present revision petition is allowed . The judgment and decree dated 04.4.201 1 of learned Addl. District Judge, Shorkot, District Jhang passed in appeal is declared to be based on misreading and non-reading of evidence and against the law which is accordingly set aside with the result that the judgment and decree dated 24.10.2009 of learned Civil Judge, whereby the suit of the petitioner was decreed, stands restored.