MUHAMMAD IJAZ KHAN, J. Through the instant revision petition, the petitioners have challenged the concurrent judgments/decree of the two Courts below i.e. of the learned Civil Judge-I/Illaqa Qazi, Malakand at Batkhela dated 30.11.2010, whereby the suit filed by the present petitioners, then plaintiffs, was dismissed and that of learned District Judge/Zilla Qazi, Malakand at Batkhela dated 16.07.2011, whereby appeal filed by them was also dismissed.
2. Rahman-ud-Din and 3 others (hereinafter referred as petitioners/plaintiffs) filed a suit for a declaration to the effect that they are entitled for their shari shares in the legacy of their paternal aunt namely Mst. Sadan daughter of Hussain Pir in the property namely Ghat Qaldara Wala Aday along with a house situated at Nawagai Peran Kalay description of which is fully mentioned in the heading of the plaint and that the respondents/ defendants have no right to deny this right of the petitioners/plaintiffs. They have also prayed that any document or mutation executed by the respondents/defendants in the shape of a gift deed, will deed, sale deed or mortgage deed with respect to the legacy of Mst. Sadan would be fake and fictitious and are thus ineffective upon their rights. They have also prayed for issuance of permanent injunction to restrain the respondents/ defendants not to deny this right of the petitioners/plaintiffs.
3. The respondents/defendants were summoned, where the contesting respondents Nos. 1 to 4/defendants Nos. 1 to 4 submitted their written statement, where-under they pleaded that the suit property was the ownership of their common predecessor namely Hussain Shah Pir, who had given it to his daughter namely Mst. Sadan and then thereafter, the same was gifted to them by Mst.
Sadan vide gift deed dated 04.01.1999 and as such the suit property could not be treated as legacy of Mst. Sadan.
4. In view of divergent pleadings of the parties, the learned trial Court framed as many as 11 issues and the parties were required to produce their respective evidence. In support of their suit, petitioners/ plaintiffs produced Dr. Khurshid Ahmad as PW-1, Azim Shah as PW-2 and plaintiff No. 2 namely Fazal Aleem himself as well as an attorney for rest of the plaintiffs appeared as PW-3. In rebuttal, the respondents/ defendants produced Hazrat Muhammad as DW-1, Ashraf Hussain as DW-2, Fazal Maboob, the scribe/scriber of the deed dated 03.01.1999, as DW-3 and Wazir Hassan, defendant No. 1 himself and as an attorney for defendants Nos. 2 to 4, appeared as DW-4.
Thereafter, the learned trial Court vide one of the impugned judgment and decree dated 30.11.2010 dismissed the suit of petitioners/plaintiffs. Petitioners/ plaintiffs felt themselves aggrieved of the aforesaid judgment and decree preferred an appeal to the Court of learned District Judge/Zilla Qazi, Malakand at Batkhela, who too dismissed the same vide impugned judgment and decree dated 16.07.2011. Through the instant revision petition, petitioners/plaintiffs have now challenged the aforesaid two judgments and decree before this Court.
5. Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.
6. The main argument of learned counsel for the petitioners was that the respondents/defendants have not been able to prove the execution of the gift deed dated 04.01.1999 and as such the two Courts below have wrongly excluded the suit property from the legacy of Mst. Sadan. As against this, argument of learned counsel for the respondents was that they have been able to prove the execution of a valid gift and as such the two Courts below have rightly discarded the plea of petitioners/plaintiffs.
7. In this case, the relationship between the parties is not disputed.
For clearly understanding the inter-se relationship between the parties, it would. be relevant to reproduce the pedigree-table of the parties, which is as under:- The aforesaid pedigree-table would show that Mst. Sadan was the sister of petitioners/plaintiffs' fathers, whereas she was the sister of grandfather of the contesting respondents/defendants and as such the aforesaid relationship between theparties with Mst. Sadan has not been disputed by both the parties during the course of recording of their respective evidence as well as before this Court during the course of arguments of this case.
8. In inheritance cases, a plaintiff has to prove his relationship with the person from whom he derives the right of inheritance as well as the factum of suit property being a legacy and conversely any person (a defendant) who claims disinheritance on the basis of any instrument of transfer, then under the law such person is under heavy burden to prove the same through a positive, convincing, trustworthy and legally admissible evidence. By following the aforesaid criteria with respect to the inheritance cases, now this Court proceeds to analyze and dilate upon the evidence recorded by the parties.
9. As stated hereinabove that the relationship between the parties is not disputed, however, regarding the factum of the suit property being the legacy of Mst. Sadan, the two contesting parties are at variance as the stance of petitioners/plaintiffs is that the suit property namely Ghat Qaldara Wala Aday along with a house fully mentioned in the heading of the plaint was the legacy of Mst. Sadan (sister of fathers of petitioners/plaintiffs), whereas the stance of respondents/ defendants as pleaded in their written statement was that in-fact the suit property was gifted to them by Mst. Sadan vide gift deed dated 04.01.1999 and as such the suit property could not be treated as her legacy.
10. Petitioners being plaintiffs before the trial Court have clearly pleaded in their plaint as well as in their Court statements and in the statements of PWs that the suit property was in possession of Mst. Sadan as a result of a family partition for her personal needs/daily expenses, as she was unmarried, which remained in her possession till her death and as such, thereafter, the same is to be treated as her legacy. This stance of family arrangement, suit property being in her possession for her needs and other assertions made by petitioners/plaintiffs have not been denied by the respondents/defendants, however with the only exception that the suit property was gifted to them vide gift deed dated 04.01.1999 and thus, petitioners/plaintiffs have successfully discharged their burden of proving their relationship with Mst. Sadan and that the suit property was in her possession being its owner till her last breath.
11. As against this, respondents/defendants have not been able to prove the execution of the gift deed dated 04.01.1999, which was exhibited as Ex DW 1/1 as out of three marginal witnesses namely Hazrat Muhammad, Ashraf Hussain and Khanzada, Ashraf Hussain was produced as DW-2, however, he when appeared in the witness box was not confronted with gift deed for confirmation of his signature on the same and as such in other words, he has not confirmed before the Court of law his signature on the said deed. Similarly, one Hazrat Muhammad was produced as DW-1, however, he too was not confronted with his thumb impression on the deed in the witness box. In the case of Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others reported as 2016 SCMR 986, the Hon'ble apex has held that the said document simply states that the said properties have been given by the deceased to his three sons. The said document was purportedly signed by the deceased in the presence of Laiber Khan, Muhammad Ameen Khan and Haji Kimyagar, however, only Laiber Khan was produced as a witness. Consequently, this document too fails to meet the test prescribed in Article 79 of the Qanun-e-Shahadat Order, 1984 and remained unproved. We may also observe that the said document cannot be categorized as a gift as the necessary ingredients of gift were not established, including the acceptance of the alleged gift of the said properties.
12. The aforesaid gift deed further shows that the same does not bear the CNIC numbers of the abovementioned marginal witnesses namely Ashraf Hussain and Khanzada, despite the fact that DW-2 in Court statement has admitted that he was having his CNIC at the time of execution of the alleged gift deed but despite that its number was not inscribed on the deed and as such in absence of having CNIC at the time of writing the gift deed, whether the identity of both these marginal witnesses in the meeting of the execution of gift deed has sufficiently been ascertained or not, is a question, which is still begging its answer.
13. It is also pertinent to mention here that alleged gift deed further shows that it was executed on 03.01.1999, however interestingly and astonishingly, the overleaf of the stamp paper would show that it was obtained on 04.01.1999 i.e. the deed was executed earlier and the stamp paper was obtained later on and DW-3 namely Fazal Mabood i.e. scribe/scriber of the deed has admitted that obviously a deed could be written on a stamp paper when it has already been issued but in the instant case, the position is otherwise which too cast a serious doubt on the validity and authenticity of the aforesaid gift deed.
14. In this case, it is part of the evidence that respondents/ defendants were in possession of the share of Mst. Sadan but it has been proved substantially on record that in-fact they were cultivating the suit property as tenants by paying half of the produce to Mst. Sadan and as such, such possession could not be treated as possession under the aforesaid gift deed. It has been admitted by DWs that the suit property remained under the use and possession of Mst. Sadan till her death, which has happened in the year 2004 and as such, the respondents/defendants could not prove that after execution of the gift deed dated 04.01.1999 till her death in the year 2004, they were in exclusive possession of the suit property under the aforesaid gift deed and thus, this fact too substantiate that in-fact no valid gift has taken place.
15. Another astonishing fact of this case is that admittedly at the time of execution of the alleged gift deed, Mst. Sadan was more than 75 years of age, however, as per the stance of respondents/defendants, she was brought to the baitak of a person namely Hazrat Muhammad and all the brothers (respondents/defendants herein), the marginal witnesses and the scribe/scriber of the gift deed were brought into his baitak. Admittedly Mst. Sadan was a parda- nasheen lady and the respondents/defendants were her grandsons, then in such state of affair, what was required from respondents/defendants was to have facilitated her by brining all these persons to her own residential house, which is situated 1-Km away from the baitak of one Hazrat Muhammad. As stated above that she was a parda-nasheen lady, then how she did not observe parda from the marginal witnesses of the deed, who are admittedly not her relatives. It is also part of the record that she (Mst. Sadan) was not identified by any of her relative as amongst her relatives none was present except respondents/defendants, who are the direct beneficiaries of the gift deed. In such state of affair, even the required care and caution has not been observed in execution of a document from the pardanasheen lady rather a totally unnatural and improbable story has been cooked up by the respondents/defendants to take benefits of the alleged gift deed.
It is settled law that an extra care and caution has to be observed while executing a document from a pardanasheen lady. In the case of Muhammad Yaqoob v. Mst. Sardaran BIBI and others reported as PLD 2020 Supreme Court 338, the Hon'ble apex Court has held that illiterate village women are to be treated at par with Parda Nasheen ladies and where a transaction involves anything against their apparent interest, it must be established that independent, impartial and objective advice was available to them and the nature, scope, implication and ramifications of the transaction they were entering into was fully explained to them and they understood the same. Similarly, in the case of Ghulam Farid and another v. Sher Rehman through LRs. reported as 2016 SCMR 862, the Hon'ble apex Court has also held that the inflexible, hard and fast rule is, that when any transaction is made by anyone 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 and dearer, who have no hostile interest to them."
16. In this case, though respondents/defendants have tried their level best to prove the execution of the document but as stated above that there are factual and legal flaws in their evidence, which could not be appreciated in their favour to declare the alleged gift as a valid gift deed. All the DWs have stated that a document was executed, however none of their witnesses has stated a single word that what were the contents of the document and, as such under the established law, production of a document and proof of a document being distinct phenomenon and for taking benefits of a document, mere production of a document is not sufficient unless and until its contents are proved by its beneficiary which are apparently missing in the present case. In the case of Shaukat Hayat Khan v. Additional District Judge, Mianwali and 2 others reported as 2013 CLC 601, the Lahore High Court has held that the learned counsel for Manzoor Fatima has argued that this document was entertained in evidence as Exh.P.2 to which the defendant never objected to and thus in his view, the said document has been proved. Learned counsel must keep in consideration a fact that production of a document and proof thereof are too distinct incidents. A document, which is exhibited in evidence, must not be a proved document. The question of jurisdiction, as to the admissibility of claim and nature of document is also to be seen.
17. The Hon'ble apex Court has gone to the extent that even in case of a registered gift deed, the incident of gift in terms of date, day and time has to be established by the donee through independent, cogent, confidence inspiring, coherent and trustworthy evidence. In the case of Fareed and others v. Muhammad Tufail and another reported as 2018 SCMR 139, the Hon'ble apex Court has held that 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 donee 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.
18. It is a matter of record that all the witnesses produced by the respondents/defendants as DWs have not uttered a single word regarding the incident of gift as their statements are completely silent regarding the date, time and place of the gift. It is also a matter of record that allegedly at the time of execution of the gift deed, the alleged donor namely Mst. Sadan was present but none of the witnesses has stated that in-fact at the time of execution of the alleged gift deed, she has declared her intention of gift in their presence, what to speak of its acceptance and consequent delivery of possession, which are the essential ingredients of a valid gift. When all the DWs could not state a single word regarding the declaration of intention of the donor, then in such eventuality, even the inception of the gift has not been commenced what to speak of its valid conclusion, therefore mere execution of a gift deed would not be sufficient unless and until the original incident of gift is not established. Respondents/defendants were also required under the law to establish the very incident of alleged "gift" made in their favour by Mst. Sadan, by producing those persons in whose presence, the donor declared his intention to make the alleged gift, followed by its acceptance by the donee and of course delivery of possession, however, the written statement submitted by the respondents/defendants and the statements of DWs produced by them would show that they have not uttered a single word regarding the same and thus the alleged gift could not be treated as a valid one. In this regard, wisdom can be drawn from the judgment of the Hon'ble apex Court given in the case of Muhammad Sarwar v. Mumtaz Bibi and others reported as 2020 SCMR 276, where it was held that at the very outset, we have noticed that the petitioner failed to mention the date, time and place of the alleged gift. Further, he omitted to mention the names of witnesses in whose presence his father allegedly gifted the property in his favour and disinherited his sisters (Respondents). Likewise, there was no mention of acceptance of the gift in presence of witnesses in the written statement as required by law. Similarly, the Hon'ble apex Court in its judgment rendered in the case of Mst. Saadia v. Mst. Gul Bibi reported as 2016 SCMR 662, has also held that indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift "offer", "acceptance" and "delivery of possession". Similar view was again reiterated by the Hon'ble apex Court in the case of Peer Baksh through L.Rs and others v. Mst. Khanzadi and others reported as 2016 SCMR 1417, where it was held that the petitioner was under an obligation to establish the ingredients of the gift claimed by him under the impugned mutations. However, no particulars whatsoever of the time, date, place and witnesses of the declaration of the gift made by Ghulam Muhammad deceased in favour of the petitioner have been provided in his pleadings nor any evidence could be produced by him in this behalf. This is fatal to the petitioner's plea.
19. Through the instant revision petition filed under section 115, C.P.C., petitioners have challenged the concurrent findings of the two Courts below, however, it is settled law that concurrent findings of facts are not sacrosanct specially when the law on the subject has been ignored, then in such a case if the judgments passed by the two Courts below suffer from misreading or non-reading of evidence or if they have committed any illegality in concluding their judgments, then this Court in its revisional jurisdiction can correct the same. In the case of Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education, Peshawar and others v. Latif Ullah Khan reported as 2021 SCMR 829, the Hon'ble apex Court has held that it is essential to note that under section 115 of the Code of Civil Procedure (1908), the supervisory jurisdiction of the High Court in a civil revision petition is purely discretionary and rather limited. However, this Court has held on many occasions that such discretion must be exercised in a lawful and valid manner on the basis of well entrenched principles of the exercise of such discretion. Therefore, the High Court shall not arbitrarily refuse to exercise its discretionary powers, rather, it must satisfy itself as to whether jurisdiction has been exercised properly and whether the proceedings of the subordinate Court suffer from any illegality or irregularity. Similarly, in the case of Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif reported as PLD 2015 Supreme Court 137, the Hon'ble apex Court has also held that before embarking upon to resolve the above proposition, we find it expedient, to briefly assess the nature of the jurisdiction of Courts in relation to civil revisions filed in terms of section 115 of the C.P.C. There can hardly be two opinions on the nature of revisional jurisdiction. It is a supervisory jurisdiction, which is vested in a higher forum (subject to the pecuniary jurisdiction of the case either the learned District Court or the learned High Court) and is exercised and/or is invoked for scrutiny if a case decided by the Court subordinate to the higher Court's jurisdiction, suffers from any defect in terms of exercise of its jurisdiction and/or on the ground(s) that the Court subordinate has acted in exercise of such jurisdiction illegally and/or with material irregularity. On the basis of the law enunciated and settled by this Court, there is wee room for doubt that being a supervisory jurisdiction, the higher forum which is approached (i.e. the revisional Court) is conferred with the power to ensure that the Court subordinate thereto (to the revisional court) conforms to the parameters of its jurisdiction. In other words the revisional jurisdiction is meant to rectify, to obviate, forefend and stave off the exercise of jurisdictional errors/defects and the illegalities and/or material irregularity committed by the subordinate Court in that regard. But the "case decided" (order/judgment assailed) has to squarely fall within the scope and the purview of section 115 of the C.P.C. It may however be categorically and unequivocally mentioned here, that approaching a higher Court in the revisional jurisdiction for the redressal of one's grievance, if the case is covered by section ibid (115, C.P.C.) is not a privilege, but is a valuable right of an aggrieved party. Obviously, such exercise of revisional jurisdiction shall be subject to the rules of discretion; but the matter of approaching the revisional Court cannot be relegated to a mere privilege of the Court and not a right. Further reliance in this respect may also be placed on the following judgments:- i. Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24); ii. Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.-W.F.P. Peshawar and others (2015 SCMR 799); iii. Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914); and iv. Mst. Mobin Fatima v. Muhammad Yamin and 2 others (PLD 2006 Supreme Court 214).
20. In view of the above discussion, the instant revision petition is allowed, the impugned judgments and decree of the two Courts below respectively dated 30.11.2010 and 16.07.2011 are set aside and consequently a preliminary decree as prayed for by the petitioners/plaintiffs in their suit is hereby granted in their favour and as against the respondents/defendants.
21. C.M No. 712-M/2021: Through the instant application, the applicants/respondents Nos. 12 and 13 namely Fazal Aleem and Abdul Aleem sons of Arjumand as well as legal heirs of respondent No. 11 namely Khaista Rahman, Abdur Rahman, Fazl-ur-Rahman, Zia-ur-Rahman, Wali Rahman, Khalid Rahman, Mst. Shabristan, Mst. Rahat Bibi, Mst. Shabdan Bibi, Mst. Darjat Bibi and Mst. Sabahat Bibi, have prayed for their transposition from the panel of respondents to that of petitioners.
22. This application was seriously contested by the respondents/ defendants by submitting their written reply.
23. The record would reveal that all the applicants were plaintiffs along with present petitioner namely Abdul Qadir before the learned trial Court and they have jointly filed the plaint and consequently, after dismissal of their suit, they have also jointly filed appeal No. 5/13 of 2011 and as such the interest and rights of the present applicants remained tagged with the present petitioner namely Abdul Qadir throughout the proceedings, therefore the instant application is allowed and their names are transposed from the panel of respondents to that of petitioners. The office is directed to make necessary correction in the memo of revision petition as well as in the relevant record with red ink.