Ch. Muhammad Masood Jahangir , J. To call in question legality & validity of judgment dated 21.01.2014, whereby learned Appellate Court below (while reversing decision of 25.04.201 1 passed by learned Civil Court) decreed suit instituted by Syed Muhammad Ayub Shah (father of parties), hence instant petition has been filed.
2. In concision, facts of the case are that Syed Muhammad Ayub Shah, respondent/ plaintiff (now deceased and represented through LRs) & petitioner/ defendant inter se were father & son respectively . The plaintif f was owner of the disputed house, which allegedly transferred to the defendant through Sale Deed dated 30.05.2003 (Exh.D1) .
The former brought declaratory suit with the assertion that neither sale was settled nor any consideration received, rather his signatures over blank papers were deceitfully procured to maneuver the subject instrument, which being outcome of forgery & fraud was liable to be cancelled. The suit was contested by defendant while pleading that a true sale was made against Rs.2,20,000/ - and while receiving it, Exh.D1 was genuinely executed/registered. The learned Civil Court facing with divergent pleadings, narrowed down its conflictin g arears by framing almost six issues enabling the parties to produce their respective evidence and as a result of its appreciation though suit initially was dismissed, yet learned Addl. District Judge in exercise of his appellate jurisdiction decreed the same, which compelled the defendant to approach this Court via cited Civil Revision.
3. Hafiz Muhammad Adil Umer Mian, Advocate on behalf of the defendant inaugurally argued that Exh.D1 was a registered instrument, which attained presumption of regularity and correctness, thus was not needed to be formally proved, but even then its marginal witnesses (DW1 & DW2) were examined, who being truthful remained consistent to establish that sale transactio n recorded therein was settled inter se its parties. Mr. Adil further pleaded that change of possession in favour of his client itself was a notice that the same effected as a result of some transaction. Further added that plaintif f had to prove his case while examining trustworthy & cogent evidence, which assuredly was missing, but learned Appellate Court while capturing minor discrepancies from evidence of the DWs returned its decision to reverse comprehensive judgment of the Civil Court, thus impugned verdict was not sustainable. The learned counsel for the defendant while relying upon case-la w reported as Habibullah and others vs. Mst. Aziz Bibi (1986 CLC 2126 ) finally emphasized that suit was instituted much beyond specified limitation, but the Court below omitted to consider said vital issue while passing the impugned decision.
In contra, M/s. Muhammad Hussain Awan & Dr. Muhammad Saleem Malik, Advoc ates argued that defendant was feeble, weak & an advanced age person, having crossed hundred years of his life, when Exh.D1 was executed; that at that event no independent advice was available to him; and that in such situation, possibility of exerting undue influence could not be ruled out. They further emphasized that defenda nt being beneficiary was under obligation to prove due execution of disputed Sale Deed while falling back upon the basic sale transaction, but essential detail viz-a-viz time, venue & names of witnesses was not exposed in the evidence to establish when, where & before whom it effected. The learned counsel for the plaintif f also highlighted that Exh.D1 was a fraudulent document and against any such act, law of limitation did not apply , because a forged, fictitious instrument neither could be protected nor perpetuated behind any such shield, thus was liable to be quashed and rightly so via impugned decision.
4. Arguments heard, record perused.
5. As two Courts below appreciated the available evidence with different angles to form their divergent opinion, thus the matter requires deep scrutiny . The real dispute inter se the parties was perfectly covered through settling issues and out of those No.1, 2 & 4 being relevant as well as crux of the case for ready reference are given below:-
1. Whether the plaintif f is entitled for decree of declaration that he is owner in possession of the suit property? OPP
2. Whether the registered sale deed No.2791 dated 30.05.03 is based on fraud and misrepresentation? OPP
4. Whether the suit is time barred? OPD There is no other cavil that according to prevailing law, the party , which approache s the Court to seek some relief, has to first prove its stance/allegation, however once it is discharged/shifted, then in the cases like in hand, it becomes obligatory for the beneficiary to prove that a genuine transaction while accomplishing its ingredients was struck before the witnesses and in lieu thereof document executed. Per spirit of Article 85 of the Qanun-e-Shahadat Order , 1984, only registered instrument, the execution whereof was never denied, falls within the category of public document and the one, whose constructio n is doubted or questioned, then sine qua non for the beneficiary to prove it per modes prescribed for the proof of private document. While keeping in mind this firm approach, on consultation of material, it was affirmed that the plaintif f was over the age of 100 years and no independent advice was with him, when Exh.D1 was written or presented before the Attesting Officer for its registration. Although, the plaintif f admitted to have signed the papers, yet with the demonstration that at very point of time, those were out of any writing. Moreover , basic stance of the plaintif f was that sale never germinated, thus there was no occasion to receive the consideration. He (PW1) via his statement-in-chief was found to have stated on oath in line therewith.
No doubt, during test of cross-examination, he at some stages was found to be bit capricious/shaky , but while dispensing with justice, the Court has to keep in mind the facts and situation of the case before it. Here, PW1 was an extremely old person (might have appeared first time in the Court), who faced tricky , sly, furtive & shrewd questions extended by an expert/professional. The Court is clear in its mind that statement of a witness is to be considered as a whole so that it can be appreciated per its essence/crux and obvio usly cannot be read in isolation, so as to disbelieve or disregard his testimony while picking up some of its sentences. Nonetheless, the plaintif f (PW1) remained firm that neither sale inter se the parties was offered nor accepted, that consideration was neither paid or received, and that there was no need to execute a document for the transaction, which never originated.
The PW2 & PW3 also came forward in support of the plaintif f, thus succeeded to shift the onus towards the beneficiary/defendant to confirm otherwise.
6. Although contents of the written statement revealed that defendant paid Rs.2,20,000/- to purchase the suit house, but rest of essential detail viz when, where & before whom the sale was offered as well as accepted were kept secret. There would be no other eventuality that alleged happening of oral bargain was accomplished prior to execution of Exh.D1, but as regards former series of facts, the evidence brought by the defendant remained missing. The statement-in-chief of the latter (DW1) even did not expose that against what price the sale was settled, what to talk that he could state that it was made good. Verily, though marginal witnesses of Exh.D1 viz Raja Muhammad Taj (DW2) & Farzand Ali (DW3) appeared in aid of the defendant to corroborate that said document was executed/registered in their presence, yet they kept mum to the effect that original deal and payment of sale price was witnessed by them. Surprisingly , the Stamp Vendor , Deed Writer, Sub-Registrar (who were independent persons) despite availability were withheld, who being best & self-reliant could be the sole source to say that plaintif f approached them for issuance of stamps, execution as well as registration of Sale Deed, so that allegation of the plaintif f that his signatures were obtained prior to any writing could be refuted. The Superior Courts of the land so far are unanimous that mere attestation of a document, its exhibition or even proof of due construction thereof are not enough for the beneficiary of registered instrument, rather much important for him is to fallout the basics of the transaction for which it was executed. To this extent, reliance can be placed upon the judgments reported as Sh. Muhammad Sarif Uppal vs. Sh. Akbar Hussain and others (PLD 1990 Lahore 229), Siraj Din vs. Mst. Jameelan and another (PLD 1997 Lahore 633),Muhammad Tufail vs. Abdul Aziz through legal heirs (PLD 1998 Lahore 137), Abdul Majeed and 6 others vs. Muham mad Subhan and 2 others (1999 SCMR 1245 ), Noor Begum vs. Abdul Ghaf far (2003 YLR 1494 ) & Abdul Ghafoor and others vs. Mukhtar Ahmed Khan and others ( 2006 SCMR 1 144). The relevant part of the last judgment for ready reference is reproduced here:- "There is no cavil to the proposition that a presumption of truth is attached to registration of a document but if its contents are challenged then the onus shifts on the beneficiary to prove its contents. It was for the petitioners/defendants to prove that Gul Muhammad had validly gifted the suit property in terms of impugned gift-deed but neither any marginal witnesses of said gift-deed nor scribe and even the person who identified Gul Muhammad were produced. The petitioners/defendants miserably failed to prove their case."
7. The additional drastic aspect of the defendant' s case was that plaintif f admittedly was much advanced age person, who subsequent to filing of suit breathed his last, but was not accompanied by some independent advice, when Exh.D1 allegedly executed. In such situation, sine qua non for the defendant to prove that plaintif f was fully cognizant and aware of the import of transaction, which aspect was not taken care of as well. Even demand of law should be that any document executed on behalf of feeble, weak & old person, if disputed, has to be proved with more inspiring, consistent & strong evidence, otherwise in such like situation when a father at the end of his life was living at the mercy of his son/defend ant, the possibility of exerting undue influence cannot be ruled out. In the case of Mst. Hamida Begum vs. Mst. Murad Begum and others (PLD 1975 SC 624), august Supreme Court while highlighting the situations extenuating deduction respecting undue influence clinched that:- "The doctrine of undue influence, as contained in section 16 of the Contract Act, is to the effect that "a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other , and uses that position to obtain an unfair advantage over the other ." Subsection (2) of this section elaborates the principle further by say that "a person is deemed to be in a position to dominate the will of another-
(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other;
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress."
Subsection (3) places the burden of proof on the person having domination over another , if the transaction appears, on the face of it or on the evidence adduced, to be unconscionable.
This doctrine is intended to grant protection against transaction procured by the exercise of insidious forms of influence, spiritual and temporal. It applies to acts of bounty as well as to other transactions in which one party by exercise of his position of domination obtains an unfair advantage over another . Undue influence may be inferred when the benefit is such as the taker had no right to demand, either in law or equity , or even as a moral claim, and the grantor had no rational motive to give. Whenever one member of the family exercises weighty influence in the domestic counsel either from age, from character or from superior position acquired from other circumstances, an inference as to the existence of undue influence can legitimately be draw ."
8. The argument of learned counsel for the defendant that once signatures over the disputed document were admitted by the plaintif f, then there was no further need to prove it, is not well founded, because it was the specific stance of plaintif f that he never affixed his signatures for execution of Sale Deed, then onus was upon the defendant to prove that those were genuinely affixed for the transfer of house in lieu of sale settled among them.
Per spirt of Article 78 of the Order ibid, due execution of document can be proved by examining its executant or those, who signed/thumb marked it being marginal witnesses or the one who scribed it. However , execution of a document is not restricted only to prove that the same bore signatures of those, who appeared in the witness-box, but it is to be established that in presence of the parties accompanied by number of witnesses, the instrument on asking of the executant with consent of the beneficiary was written and prior to affixing thumb impression in presence of the witnesses, it was read over for understanding to them. For such reasons, the emphasis of learned counsel for the defendant that plaintif f's admission qua affixing of signature was enough proof about due execution of Sale Deed was not plausible. The narrative of above discussion is that learned Addl. District Judge while appreciating available evidence in its true perspective perfectly answered issues No.1 & 2 in favour of the plaintif f, which findings deserve approval, thus are confirmed.
9. As far as argument of learned counsel for the defendant that suit was instituted with the delay of four years, thus liable to be regretted on this score is concerned, suffice it to say that any document, which is proved to be result of misrepresentation or fraud cannot be protected as it vitiates even most solemn proceedings. See Khair Din vs. Mst. Salaman and others (PLD 2002 SC 677), Rehmatullah and others vs. Saleh Khan and others (2007 SCMR 729), Mst. Zulaikhan Bibi through LRs and others vs. Mst. Roshan Jan and other s (2011 SCMR 986), Ghulam Farid and another vs. Sher Rehman through LRs (2016 SCMR 862) & Al-Meezan Investment Management Company Ltd. and 2 othe rs vs. Wapda First Sukuk Company Limited, Lahore and others (PLD 2017 SC 1 ). The conclusion drawn by the apex Court in the last cited judgment for ready reference is given below:- "The appellant and those who claim to derive title from it and NFC on the other hand are rivals claimants for the same debt/sum of money . Section 11 of the Central Depositories Act, 1997 cannot override fraud if it is once established as it is settled law that fraud vitiates the most solemn of proceedings and a superstructure built on a foundation of fraud must fall like a house of cards."
10. The learned counsel for defendant is unable to point out any irregularity or illegality as well as mis-reading/non- reading of evidence and jurisdictional defect committed by learned lower Appellate Court while passing the impugned judgment to be interfered with by this Court in exercise of revisional jurisdiction. There is also no cavil that in case of conflict inter se the judgments of learned Trial Court and the learned lower Appellate Court, the findings of the latter in the absence of any cogent reason to the contrary (which is not the case here) per dictum of the apex Court in the judgments reported as Madan Gopal and 4 others Vs. Maran Bepari and 3 others (PLD 1969 SC 617), Muhammad Nawaz through LRs. Vs. Haji Muhammad Baran Khan through LRs and others (2013 SCMR 1300 ) & Amjad Ikram Vs. Mst. Asya Kausar and 2 others (2015 SCMR 1) must be given preference. Consequently , this Civil Revision being devoid of any merit accordingly is dismissed with no orders as to costs.