ASIM HAFEEZ, J. Instant Civil Revision is directed against concurrent decisions, recorded by learned trial court and the first appellate court, effect whereof was the dismissal of petitioner 's suit, seeking decree of Declaration, Permanent Injunction and Cancellation of deed of Memorandum of gift, vide judgment and decree dated 10.06.2017, and dismissal of petitioner 's appeal vide judgment and decree of 21.06.2018.
2. Disputes inter se the parties relate to the property owned by Major (R) Ch. Muhammad Afzal Khan (deceased), which is claimed by petitioners as part of their inheritance claim qua the estate of the deceased - petitioner No.1 claimed to be one of the sons of the deceased and petitioner No.2 claimed to be the wife of the deceased. [Both petitioners have died and are represented through their legal heirs]. And conversely respondents No.2 and 3, being son and daughter of the deceased, claimed exclusive rights in the property based on alleged transaction of gift, subject-matter of the lis.
3. Briefly the facts, necessary for the adjudication of instant revision, are that deceased acquired and owned property No. 5-F in Model Town Cooperative Housing Society , Lahore, who died on 18.02.2005. Petitioners filed suit for partition of the property , being termed as part of the estate of the deceased, whereupon it transpired that respondent No.2 and 3 claimed proprietary rights, based on alleged gift, orally made in the year 1962 and acknowledgment thereof was allegedly made in February , 1974. It was the case of the petitioners that no gift was made regarding the property and Memorandum of gift was forged and fraudulentl y prepared by the beneficiaries, after the death of the deceased, merely to deprive petitioners of their due share in the estate of the deceased. Suit was defended by the respondents No.2 and 3, disputing right of the petitioner No.1 to claim share in the gifted property on the premise that deceased had equally distributed properties amongst heirs, i.e., in the mid of 70's and suit property was distributed between respondents No.2 and 3, by way of gift. Respondents No.2 and 3 further alleged that deceased had divorced petitioner No.2 in the year 1948 and therefore she had no right in alleged inheritance, which property was gifted through acknowledgment / Memorandum of gift, allegedly executed on 4th February 1974, and duly registered, and thereafter shares certificates were issued in favour of the alleged donee(s) by the respondent No.1. Learned trial court framed issues and recorded evidence , whereafter , upon conclusion of trial, petitioners' suit was dismissed on the premise that same failed to prove the fraud alleged. First appellate court dismissed petitioners' appeal, which recorded findings to the effect that evidence led by the petitioners was deficient to prove allegations of fraud. Hence, this Civil Revision.
4. Learned counsel for the petitioners referred to various paragraphs of the plaint and written statement to explain the background facts. Submits that evidence led by the beneficiaries of the gift was beyond the scope of the pleadings, which critical fact was not appreciated by the courts. Further submits that original Memorandum of gift was not produced, but a copy from the record of Sub-Registrar was produced, without fulfilling the requirements of production of secondary evidence. Submits that no witnesses, to prove execution of alleged document were produced, neither respondents No.2 nor 3 appeared as witnesses. Adds that basic ingredients of gift were not fulfilled in the instant case as the donor , at no point in time, had abandoned claim of ownership of the property , which renders the claim dubious. Learned counsel referred to letter dated 29.08.1 998. Following precedents were referred to support submissions, "FAREED and others v. MUHAMMAD TUFAIL and another" (2018 SCMR 139), "SAEED ULLAH KHAN v. MUHAMMAD KHALID and 3 others" (2018 CLC 648), "MUHAMMAD SAR WAR v.
MUMT AZ BIBI and others" (2020 SCM R 276), "MUHAMMAD ASGHAR v. Mst. GHAFOORAN through Legal Heirs and others" (2021 MLD 1745), "Mst. SHEEDAN BEGUM and others v. MUHAMMAD USMAN KHAN and others" (2021 MLD 1937), "BASHI R AHMAD ANJUM v. MUHAMMAD RAFIQ and others" (2021 SCMR 772), "FARHAN ASLAM and others v. Mst. NUZBA SHAHEEN and another" (2021 SCMR 179), "GHULAM QASIM and others v. Mst. RAZIA BEGUM and others" (PLD 2021 SC 812), and "FAQIR ALI and others v.
SAKINA BIBI and others" (PLD 2022 SC 85).
5. Conversely , learned counsel for respondents No.2 and 3 submits that execution of Memorandum of gift is not denied, certified copy whereof was also produced by the petitioners. Further submits that allegation of fraud was not pleaded in the plaint, as essentially required under Order VI Rule 4 of Code of Civil Procedure 1908. Adds that existence of Memorandum of gift was substantially established by DW-5 (witness from the office of Sub-Registrar), who affirmed the availability of document in the record, certified copy whereof was produced accordingly and exhibited. Adds that gift was given effect by issuance of shares certificates to the respondents No.2 and 3 and DW 6 (witness from the office of respondent No.1) had endorsed the factum of transfer of property and issuance of shares. Further submits that property was gifted orally in the year 1962 and factum thereof was acknowledged in the year 1974, through execution of Memorandum of gift, which was registered, and suit was filed in the year 2008, after the death of the deceased in 2005, hence, suit was beyond limitation. Submits that even otherwise thirty (30) year old document drew strong presumpti on of validity under various provisions of Qanun-e-Shahadat Order , 1984, which presumption was not rebutted. Submits that letter dated 29.08.1998 was an admitted document, which was rightly considered by the first appellate Court, wherein factum of gift was admitted by the deceased. Adds that letter had to be read as whole and not piecemeal. Reference is made to the contents of the letter to highlight factum of acknowledgment of gift by the donor . Lastly submits that deceased held possessi on on behalf of his children and even drawing of benefits, by way of receiving rentals does not affect the transaction of gift, as corpus of the gift was conveyed. Adds that deceased held possession for the minors, in whose favour gift was made in 1962, orally .
Further submits that no evidence was led to show that donor had ever revoked the gift. Learned counsel referred to and relied upon following decisions in support of submissions, "ABDUL WAHID v. Mst. ZAMRUT" (PLD 1967 SC 153), "Messrs SAZCO (PVT .) LTD. v. ASKARI COMMMERCIAL BANK LIMITED" (2021 SCMR 558), "TAJ MUHAMMAD KHAN through L.Rs. and another v. Mst. MUNA WAR JAN and 2 others" (2009 SCMR 598), "AHSAN ALI and others v. DISTRICT JUDGE and others" (PLD 1969 SC 167), "ABDOOL HOOSEIN ZENAIL ABADIN and another v. CHARLES AGNEW TURNER (OFFICIAL ASSIGNEE)" (14IA 111), "GANGAMOYI DEBI v. TROILUCKHY A NATH CHOWDHR Y and another" ([1905-6] 33 IA 60), "Gopal Das and another v. Sri Thakurji and others" (AIR 1943 Privy Council 83), "Harnam Singh v. District Official Receiver" (AIR 1941 Lahore 400), "MUHAMMAD DUR WAISH v. Haji MUHAMMAD HUSSAIN alias Haji GUL and 7 others" (1999 CLC 106), "MANZOOR AHMAD and 4 others v. MEHRBAN and 5 others" (2002 SCMR 1391), "ALLAH DAD and 3 others v. DHUMAN KHAN and 10 others" (2005 SCMR 564), "Mst. HAMEEDA BEGUM and others v.
Mst. IRSHAD BEGUM and others" (2007 SCMR 996), "MUHAMMAD IDREES and others v. MUHAMMAD PERV AIZ and others" ( 2010 SCMR 5), "IHSAN ULLAH and others v. KHW AJA MUHAMAD and others"
(2011 CLC 989), "PAKIST AN RAIL WAYS through Chairman and 2 others v. Mst. NOOR JAHAN BEGUM through Attorney" (2015 YLR 456), "ZAFAR HAYAT v. Mst. JASEEMA YASMEE N" (2016 YLR 2711), "KHUDA BAKHSH v. MUHAMMAD YAR and others" (2016 CLC 73), "SALAR KHAN through L.Rs. v. UMER RIAZ through L.Rs." (2016 YLR 279), "MUHAMMAD FAISAL SULTAN and another v. MUHAMMAD AJMAL through his Legal Heirs" (2018 CLC 1782), "MUHAMMAD SIDDIQUE (Deceased) through LRs and others v. Mst.
NOOR BIBI (Deceased) through LRs And others" (2020 SCMR 483), "SHEHW AAR and 2 others v.
MUHAMMAD RIAZ and others" (2018 YLR 1938), "Syed ARIF ALI and another v. ZEENA T HANIF SIDDIQUI and 2 others" (PLD 2018 Sindh 151), "ZARSHAD and another v. Mst. BIBI SULTANA and 40 others" (2018 YLR 2429), "TAJ WALI SHAH v. BAKHTI ZAMAN" (2019 PSC 388), "ABDUL JABBAR and 8 others v. GHULAM MUST AFA and 6 others" (2019 CLC 704), "Syed FIDA-UR-REHMAN SHAH and others v.
Syed MOTI-UR-REHMAN SHAH and others" (2020 CLC 1058), "MUSAMMA T SHAFIQ-UN-NISA v. KHAN BAHADUR RAJA SHABAN ALI KHAN" (31 IA 217), "IQBAL AHMAD SABRI v. FAYYAZ AHMAD and another"
(2007 CLC 1089), "ABBAS ALI v. LIAQA T ALI and another" 2013 SCMR 1600), KHUDA BAKHSH v.
MUHAMMAD YAR and others" (2016 CLC 73), "HAKIM KHAN v. AURANGZEB AND ANOTHER" (1979 SCMR 625), BARKA T ALI through Legal Heirs and others. MUHAMMAD ISMAIL through Legal Heirs and others"
(2002 SCMR 1938), "ABDULLAH v. MAQBOOL AHMAD" (1988 CLC 1633), "Mst. SHEEDAN and 2 others v.
ABDUL GHAFOOR and 6 others" (2001 CLC 807), "Mst. KANEEZ BIBI and another v. SHER MUHAMMAD and 2 others" (PLD 1991 SC 466), "ABID HUSSAIN and others v. MUHAMMAD YOUSAF and others"
(C.P.No.1647-18), "SIKANDAR HAYAT and another v. SUGHRAN BIBI and 6 others" (2020 SCMR 214), "Mst.
ZUBAIDA v. Mst. JANNA T BIBI and others" (2002 MLD 993), "SONAULLAH FAKIR v. ALAM FAKIR and others" (1968 SCMR 311), "Haji ABDUL MAJEED and others v. AMJAD KHAN and others" (2012 CLC 1483), "NASIR FAHIMUDDIN and others v. CHARLES PHILIPS MILLS and others" (2017 SCMR 468), "ABDUL HAQ and another v. Mst. SURR YA BEGUM and others" (2002 SCMR 1330), "GHULAM GHOUS v.
MUHAMAD YASIN and another" (2009 SCMR 70), "ABRAR AHMED and another v. IRSHAD AHMED" (PLD 2014 SC 331), "BAWAR KHAN and others v. MUHAMMAD HANIF and others" (2016 CLC 754), ABBAS ALI SHAH and 5 others v. GHULAM ALI and another" (2004 SCMR 1342), "Dr. MUHAMMAD JAVAID SHAFI v.
Syed RASHID ARSHAD and others" (PLD 2015 SC 212) and "GHULAM NABI and others v. Mst. ZAINAB BIBI and others" (2005 MLD 153).
6. Arguments heard and record perused.
7. During hearing, both the counsels have referred to letter dated 29.08.1998 - allegedly addressed by the deceased to respondent No.1 -, who were asked to identify letter by number of the exhibits, whereupon it was informed that letter was not formally produced on record, and nor exhibited, but placed on record during the statement of DW-6 - employee of respondent No.1. It is found that copy of the letter was not available on record.
Learned counsel representing Model Town Co-operative Housing Society was directed to produce the letter on record, who provided a certified copy thereof and af firming that the original letter is available in the records.
8. Upon perusal of the decision of the first appellate court, it is found that appellate Court acknowledged that letter was not exhibited but proceeded to appreciate the contents thereof and interpreted it, on the premise of its availability on the record. Appellate court recorded its findings qua the letter and finally decided the appeal against the petitioners, upon treating said letter as sufficient evidence for declaring the transaction of gift valid and legitimate. It is expedient to reproduce paragraph 17 of the judgment of the appellate court, which reads as; "No doubt respondents No.2 and 3 have not produced the marginal witnesses, stamp vendor , scriber and register in order to prove the execution of memorandum of gift Exh.P .23/D-12 but in view of the above said reasons, I am of the considered view that the non production of marginal witnesses, stamp vend or, scribe and Sub-Registrar to prove the execution of memorandum of gift Exh.P-23/ Exh.D-12 is not fatal for the respondents No.2 and 3 as the factum of making gift of suit property by Major (R) Ch. Muhammad Afzal Khan, deceased in favour of respondents No.2 and 3 is proved/ established on the record through letter dated 29.08.1998."
9. Appellate court erred in law while basing its finding on the letter , merely placed on record without satisfying itself regarding the question of admissibility of the letter and proof of its authorship. Mere reliance of the petitioner 's counsel on the letter - to show that deceased had not abandoned claim of ownership of the property - cannot be construed as proof of its execution or admission on the part of petitioners. Indubitably , contents of the documents are not proved upon mere placing a document on record, unless statutory requirements are fulfilled. The document in question, without determining its admi ssibility and in the absence of proof, cannot be treated as valid proof of alleged transaction of gift, when fraud was alleged. No attesting witness was produced to affirm the execution of alleged Memorandum. No deed writer was produced.
There is another major flaw in the concurrent decisions. Memorandum of gift refers to the factum of oral gift in the year 1962, which constitutes an underlying transaction - alleged to have been acknowledged by way of Memorandum of gift under reference. No evidence was led to prove the oral gift. DW-1, an employee of the deceased appeared as witness and stated that he was with the deceased since 1964 - when the gift was allegedly made in the year 1962. No evidence is available on record to prove factum of oral gift, let alone convincing evidence.
10. It is interesting to note that responde nts No.2 and 3, while filing written statem ent, had not alleged factum of oral gift allegedly , made in the year 1962 - which perhaps would be the foundation of the case of the respondents, claiming beneficial ownership based on alleged transaction. When confronted learn ed counsel for the respondents No.2 and 3 submitted that non-disclosure of this fact was immaterial when Memorandum of gift was executed through a written registered deed. I am afraid that the explanation must fail. Unless the underlying transaction - oral gift - is proved, the factum of alleged acknowledgement of gift, simply , would be of no tenable assistance.
There is no cavil that irrespective of subsequent registration of acknowledgment of previous gift, made orally , the transaction of oral gift had to be proved / established independently and through convincing evidence. Failure to plead factum of oral gift in the written statement is another fatal defect, which is incurable - even if this court considers remand of the case in the wake of irregularities / errors committed by the Appellate court - which erroneously treated the letter of 29.08.1998, as admissible evidence and above all based its decision on an inadmissible document, merely brought on the record without fulfilment of the requirements of the Evidence Act 1872, [which was applicable as the Memorandum of gift was allegedly executed before the promulgation of Qanun- e-Shahadat Order 1984.] Even the execu tion of the Memorandum of gift, divorced from the transaction of oral gift, is not proved accordingly . Respondents No.2 and 3 had not appeared as witnesses. Acknowledgment / Memorandum of gift in original was not produced. Certified copy was produced without fulfilling requirements of producing secondary evidence, and without providing satisfactory reasoning for non-production of the original or proof of loss of the original. Secondary evidence is merely a proof of existence, condition, or contents of the document, which is not per se does not prove the execution of alleged document. In the instant case proof of execution of Memorandum remained wanting. Respondents produced Exh.D-13 - an acknowledgment of gift [Yadashat] dated 04.02.1974, which was allegedly signed by deceased and witnes sed by one namely Afzal Ahmad Khan. No witness was produced to prove signatures of deceased. And nor the attesting witness was produced, or any evidence led that witness was dead or inaccessible. Another document produ ced and exhibited as Exh.D-1 1 was Yadashat, an uncertified copy witho ut signatures and witnesses. No. witne ss was produced to prove that whether deceased had personally appeared before the sub-Registrar at the time of recording of factum of alleged gift - Exh.D-12, and who had identified the deceased. All these lapses denude the transaction of gift of any credibility and genuineness. And legal heirs cannot be deprived of their share based on inadmissible deficient and unpersuasive evidence.
11. Courts have overlooked the significance of Exh.P-7, letter dated 16/17 September 1995 addressed by the deceased to the Excise and Taxation department, objecting to the quantum of property tax imposed, wherein no reference was made to the alleged gift or transfer of ownership of the property . This document Exh.P-7 established that deceased had retained possession of the property , despite donees had attained majority , and property was being used for the benefit of deceased - which fact renders the claim of convey ance of corpus of the property unfounded. Both the courts have failed to appreciate that petitioners alleged fraud, denial of rights of inheritance in the estate of the deceased - whose entitlement being legal heirs is not disputed especially when the courts gave declaration that Saleh Afzal was the widow of deceased. Respondents being the beneficiaries of the gift were required to prove the transaction of gift, factum of oral gift and execution of alleged Memorandum of gift. Petitioners alleged fraud in plaint and witness (PW-1) appeared as attorney and alleged fraud and denied the existence and execution of gift.
12. Learned counsel has referred numerous judgments on the point that proof of mutation / Memorandum of gift itself proves earlier oral gift, which decisions are not attracted as the respondents No.2 and 3 have failed to claim entitlement to oral gift in written statement - in the absence of any such assertion in the pleadings, neither evidence nor case law relied upon would extend any assistance. It is reiterated that transaction of oral gift as well as Memorandum of gift remained unprov ed in accordance with the requirements under the statute of Evidence.
Learned counsel has referred case law on the point that donor had not questioned factum of gift in his lifetime, hence, petitioners lacked locus standi to challenge it after donor 's death, which decisions are not applicable to the facts of the case when the legal heirs have challenged the factum of gift on plea of fraud and denial of inheritance share in the estate of the deceased, in which case heavy burden is laid upon the beneficiary of the transaction, having the effect of exclusion of the legal heirs. Reference is made to the decision in the case of "Mst. PARVEEN (DECEASED) through LRs v. MUHAMMAD PERV AIZ and others" (2022 SCMR 64), findings whereof are reproduced hereunder; "10. We have heard the learned counsel for the parties and with their able assistance examined the record of the case. On the death of a Muslim his/her property devolves upon his/her legal heirs. However , if any heir seeks to exclude the other legal heirs, as in the instant case by relying on a purported gift the beneficiary of such gift must prove it".
13. There is another aspect of the matter. Exclusion of the wife and son, being the potential successors, from claiming, assets of the deceased, is contrary to the ordinary human conduct / behaviour and it was for the respondents No.2 and 3 to substantiate special reasons to prove exclusion of other legal heirs - when their legal and social status was determined and declared. It is further evident that respondents No.2 and 3 failed to establish that transfer of property in question was otherwise part of some family arrangement, whereunder distribution was made as part of some settlement, establishing entitlement of the respondents No.2 and 3.
14. In these circumstances, the transaction of oral gift had to be proved independ ently and mere reliance on the Memorandum of gift, claimed to be registered document, is not enough. Reference is made to the decision in the case of "FAREED and others. Vs. MUHAMMAD TUFAIL and another ." (2018 SCMR 139), relevant portion whereof is reproduced hereunder .
"The principal issue, whether the respondent-plaintiff 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 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. 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 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. This is also lacking in the present gift deed which has not been proven satisfactorily as Ijaz Ahmed Khan, Advocate who identified Gomaan before the sub-Registrar was not produced before the learned Trial Court nor was the sub-Registrar or the scribe of the documents." [emphasis supplied]
15. Objection of limitation is misconceived. Petitioners upon death of the deceased had sought succession of movable assets and thereafter filed suit for partition, wherein factum of transaction of gift was disclosed, and thereafter petitioners filed suit seeking declaration of invalidity against alleged gift. There was no direct evidence to establish that petitioners had earlier knowledge of the gift or factum thereof was ever disclosed by the deceased to the petitioners, in these circumstances no question of time barred claim arose. Judgments referred constitute authorities in the context of the facts of each case, which are not applicable to the facts herein involved.
16. In view of the aforesaid, instant Civil Revision is allowed and judgments and decrees dated 10.06.2017 and 21.06.2108 are set-aside, and consequently the suit filed by the petitioners is hereby decreed and the transaction of oral gift / Memorandum of gift, and actions taken on the basis thereof, are decla red as void and of no effect qua the rights of the petitioners with respect to the property in question, which property shall be treated as part of the estate of the deceased and be dealt with accordingly .