Anwaar Hussain, J. The respondent, namely, Mian Ghulam Dastgeer is husband of the petitioner.
Admittedly, the marriage is subsisting albeit there are differences between the parties, and they are living separately. The respondent instituted a suit for declaration alongwith cancellation of the gift mutation bearing No.927 dated 29.01.2019, in respect of the suit property, measuring 7 kanal 15 marla and 204 sq. ft, bearing Khewat No.19, Khatooni No.53, with the averments that he did not offer any gift to the petitioner and the impugned gift mutation is result of fraud, practiced by the petitioner in connivance with the revenue officials, by offering them bribe. The suit was contested by the petitioner. The Trial Court dismissed the suit, vide judgment and decree dated 10.02.2024 against which appeal was preferred by the respondent. Through judgment and decree dated 01.06.2024, the Appellate Court below has accepted the appeal of the respondent and set aside judgment and decree passed by the Trial Court and resultantly, the suit of the respondent has been decreed and the impugned gift mutation in favour of the petitioner has been cancelled.
2. Learned counsel for the petitioner submits that the judgments of the Courts below are at variance and it is for this Court to adjudge as to which of the findings has been rendered in accordance with law and record. Adds that the suit of the respondent was not maintainable as neither the particulars of the fraud were properly disclosed in the plaint nor proved. Adds that the respondent failed to implead the revenue officials although serious allegations of fraud and accepting bride were levelled against them.
3. Conversely, learned counsel for the respondent has supported the impugned judgment and decree with the averments that it was obligatory on part of the petitioner to mention the date, time, place and names of the witnesses, in whose presence the offer was made and accepted, which is conspicuously missing in the written statement filed by the petitioner and hence, the same is fatal.
4. Arguments heard. Record perused.
5. Primarily, the matter involves determination of the following two questions: I. Whether a gift, executed in favour of wife by husband, during the subsistence of the marriage, would place the onus on wife with the same standard of proof to establish the gift as is otherwise required from a donee, particularly, if the donee is a housewife and the donor/husband is a socially active person?
II. Whether mere allegation and/or averment by the donor (husband) of gift, having been procured by the donee (wife) through fraud, albeit without disclosing the particulars thereof, is sufficient to shift the onus on the donee (wife) to prove the valid execution of gift?
Primarily, both the questions formulated above are to a greater extent interwoven and interconnected, rather, a converse reflection of the same picture, therefore, would be discussed in the same vein and breath.
6. Before dilating upon the questions of law formulated hereinabove, it would be in the fitness of things to spell out the factual matrix of the case. The respondent instituted the suit for declaration and cancellation with the contention that the petitioner, being his wife, asked him to accompany her to the land record center to obtain fard malkiyat of the suit property as she wanted to get some loan from the bank, by mortgaging the suit property, which he did, however, later on, when he visited the office of the land record center, for obtaining another fard malkiyat, he was intimated that he is no more owner of the suit property as the petitioner/defendant - her wife, had got executed oral gift in her favour with the connivance of the revenue officials, when he had accompanied her to obtain copies of fard malkiyat for sanctioning loan. The petitioner controverted the stance of the respondent, by filing written statement wherein she averred that she is owner in possession of the suit property, on the basis of the oral gift, through the impugned mutation and the allegations of the fraud without disclosing any particulars thereof are baseless as this is not possible for her, being a housewife, to commit fraud with the petitioner who is son of the Numberdar and aware of and familiar with the working of the revenue officials and the government offices as compared to her who is a housewife.
7. As a general principle, a donee is required to prove all the ingredients of valid gift in order to prove the validity thereof. The Supreme Court of Pakistan in judgment reported as "Mst. Khalida Azhar v. Viqar Rustam Bakhshi and others" (2018 SCMR 30) held that a donee is required to prove the offer, acceptance and handing over of the possession of the gift property in addition to full disclosure of the time, date and place when the offer was made and the same was accepted.
However, it is pertinent to note that in case of Khalida Azhar supra, the sister had been deprived by her brother, of her inheritance share, and the gift was held to be unlawful and illegal as the brother failed to prove the valid execution of gift by the sister by proving the offer, acceptance and handing over of the possession coupled with non-disclosure of the time, place and date, when the offer of gift was made and accepted. At this juncture, it is held that the onus to prove the oral gift duly reflected in the entries of the revenue record does not shift to the donee, merely, by a bald assertion in the plaint regarding commission of fraud in every case as the entries in the revenue record are themselves vested with the presumption of truth albeit rebuttable. The shifting of onus and the presumptions, under the law, represent as complex situation as the human life in itself is.
Such onus and presumptions interact and interplay in the social context in which a legal system operates. Thus, the onus on the donee, as held in the case of Khalida Azhar supra, has its genesis in our particular social context, where females who are weaker segment of the society are deprived of their share in inheritance by the purported execution of gifts, either through coercion or fraud, leaving the women folks at an economic disadvantage in a patriarchal society, which is not the position in present case.
8. Moreover, the burden of proof is generally used in two distinct senses, which may turn out to be confusing. In the first instance, the burden relates to introducing or tendering of the evidence, and secondly, the burden is to establish a fact and/or the case pleaded in order to create preponderance of evidence. The burden in the former situation generally remains fixed upon a party, whereas the burden in the second sense shifts. This burden of proof is closely linked with certain presumptions. The presumption is a matter of law. It has had a long history. There is in law a general presumption of good faith in human transactions. This presumption of good faith embedded in human transaction attains higher pedestal if such a transaction takes place inter se husband and wife, more particularly, a house wife who lacks worldly interaction as compared to husband who is a man of worldly wisdom not otherwise impeded by any physical and/or mental incapacity viz-a-viz his wife who lacks such exposure to worldliness. In terms of Article 129 of the Qanoon-e-Shahadat Order, 1984, the Court may presume existence of certain facts, which it thinks likely to have happened in the normal course of human conduct and/or business, hence, the presumption by the Court can certainly be that the gift by husband in favour of wife who is house wife actually took place, which coupled with the presumption of good faith in human conduct that puts higher level of burden of proof on the plaintiff/husband (the respondent) to discharge the said burden with respect to the fraud underlying the gift leading to the sanctioning of the oral mutation, by the revenue officials. Therefore, this Court is of the opinion that a gift, executed in favour of wife by husband during the subsistence of their marriage, would not place the onus on wife with the same standard of proof to prove the gift as is otherwise required from a donee, when the donee is a housewife and the donor/husband is a socially active person.
9. Furthermore, as there is presumption of good faith in human conduct, the facts rebutting such presumption are required to be specifically pleaded at first and then proved to obviate such presumption. The burden of proving bad faith, inter alia, by way of fraud is on the person alleging bad faith. This principle has been embodied in Order VI Rule 4, of the Code of Civil Procedure, 1908 ("CPC"), which stipulates that in all cases in which the party pleading relies on any misrepresentation, fraud or undue influence, particulars shall be stated in the pleadings. Therefore, the respondent was obligated to spell out the particulars of fraud in his plaint and then lead evidence to discharge his burden of proof. Perusal of the plaint reveals that the respondent/plaintiff alleged that he was defrauded by his wife in collusion with the revenue officials as he had accompanied her, merely, for getting fard malkiyat for mortgaging the property to obtain loan from the bank. It is astonishing that a husband would accompany his wife to the revenue officials to mortgage his property to a bank, for a loan to be secured by his wife, and he would not inquire into the purpose of the loan and would not follow it up as to whether she had actually obtained any loan or not. The entire pleadings and evidentiary resume is silent in this regard. In addition, it is entirely anomalous to our social context that a house wife would be interacting with the revenue officials and the bank officials to obtain loan on the basis of mortgage of the property owned by her husband, particularly, when it does not transpire from the record that said wife was socially active and a businesswoman. Moreover, the respondent appeared as PW-1 and made a dishonest improvement of his version in the plaint that he was taken to the office of the revenue officials by the petitioner to obtain loan for her father, which was not spelled out in the plaint. It is settled principle of law that evidence beyond pleadings cannot be read. Thus, the respondent remained failed to discharge burden of proof as to the commission of fraud and/or misrepresentation on part of the petitioner. Had this initial burden been discharged, the onus could have been shifted to the wife to prove the gift, which is not the case. Hence, this Court is of the view that mere allegation and/or averment by the donor (husband) in respect of the gift, having been procured by the donee (wife), through fraud, albeit without disclosing the particulars thereof, is not sufficient to shift the onus upon the wife to prove the valid execution of the gift.
10. Even otherwise, the suit was not proceedable on account of non-joinder of necessary party in view of the judgment of the Apex Court, reported as rendered in "Sikandar Hayat and another v.
Sughran Bibi and 6 others" (2020 SCMR 214), wherein it has been held that where the mutation is alleged to have been effected with active connivance between the revenue officials and the defendant in order to deprive the plaintiff, the impleadment of the said revenue officials is mandatory as neither any valid adjudication could take place nor their connivance could be declared in their absence as parties in the suit. The respondent categorically alleged in the plaint that he was taken to the office of revenue officials concerned for obtaining fard malkiyat for the purposes of mortgaging property for obtaining loan from the bank but the collusion and connivance between the petitioner-defendant and the revenue officials resulted in the impugned mutation. Thus, the said revenue officials were necessary parties to the suit, who have not been impleaded.
11. This Court is fully aware of the legal position that in the face of judgments at variance, the judgment rendered by the Appellate Court below is to be preferred to viz., that of the Trial Court.
However, the same is not a rule of thumb and this Court in exercise of its revisional jurisdiction is obligated to iron out the illegality in the proceedings, which took place before the Courts below and any decision even if rendered by the Appellate Court below if found to be perverse and against the law is liable to be rectified by this Court. In this regard, it is to be noted that the Appellate Court below rendered its judgment, primarily, on the basis of non-disclosure of time and date of the oral gift by the petitioner-defendant as is evident from the following observation: "8. ...The respondent/defendant in written statement did not mention the date, time, place and names of witnesses in whom presence, the said oral gift was made by the appellant/plaintiff in her favour. Simply, in the written statement there is reference of attestation of mutation No.927 dated 29.01.2019 in her favour of an oral gift. It is trite that a fact which has not been agitated in a written statement cannot be brought in evidence. In the case titled "Faiz Ahmad v. Mst. Soni and 2 others"
(2020 CLC 148), it has been held that the parties are bound by their pleadings and evidence produced beyond pleadings is not permissible under the law. A party has to plead facts and then prove the same through evidence since no one can be allowed to prove a case beyond what has originally been set up in the pleadings. It follows that evidence or arguments with regard to a plea not taken in the pleadings cannot be looked into and no one is allowed in judicial proceedings to adduce evidence in support of contention not pleaded by him."
The Appellate Court below fell in error as the initial burden of a higher pedestal was on the respondent-plaintiff to discharge as to the lack of good faith in the transaction, which took place inter se a house wife and man of worldliness-the respondent, by fully disclosing the particulars of fraud and proving the same, which the respondent failed to discharge. Even otherwise, once the gift was recorded in revenue record, more particularly one executed by a husband in favour of the housewife, sanctity is attached to such entry and donor-husband is precluded from asserting claims of fraud, coercion or under influence, barring substantial and compelling evidence to the contrary, which is conspicuously missing in present case. Similarly, the fact that the physical possession of the suit property is lying with the respondent does not render the gift in favour of the petitioner being wife of the respondent, defective inasmuch as divesting of actual possession of the suit property pursuant to a gift by a husband and vesting of the same in the wife is not necessary to constitute a valid gift. Case reported as "Amina Bibi v. Khatija Bibi" [(1864) 1 Bom.
H.C.R. 157] is referred in this regard, which has been also quoted by Asaf. A. A. Fyzee in his book "Outlines of Muhammadan Law" (at pages 224-225). In present case, pursuant to the gift mutation, the petitioner, being housewife, is holding the possession of the suit property through the respondent, who is her husband. Moreover, the case of the respondent-husband is further weakened as he made a dishonest improvement from averment in the plaint that he was defrauded while obtaining loan for the father of the petitioner and not the petitioner (per plaint).
12. In view of the above discussion, the impugned judgment passed by the Appellate Court below is not sustainable. The present petition is allowed. As a corollary, the impugned judgment dated 01.06.2024 passed by the Appellate Court below is set aside, and the judgment and decree of the Trial Court dated 10.02.2024 is restored. No order as to costs.