Anwaar Hussain, J. The facts of this case are both unique and intriguing. Two real brothers having two male children each with confusingly similar names, and tamleek having been made in the said names, have "put the Courts on trial", to identify as to which of the two children are the actual donees of suit property under the registered tamleek deeds.
2. Petitioner No.1/Muhammad Nawaz and one Muhammad Aslam were real brothers. The dispute pertains to the property measuring 400-kanal, given by petitioner No.1 to two minors namely, Muhammad Farrukh and Muhammad Nijal ("the donees"). The suit property was transferred through registered instruments (tamleek deeds), in the year 1975 bearing Document No.1679/1 dated 02.08.1975 and 1680/1 dated 04.08.1975 followed by mutations No.252, 253, both dated 30.07.1979, when Muhammad Farrukh, was of approximately 01-year and 04-months of age whereas Muhammad Nijal, was (newly born) of only a few days. The paternity in the registered transfer documents was mentioned as Muhammad Nawaz--petitioner No.1, although, at the relevant time, petitioner No.1 was unmarried and had no children. Predecessor-in-interest of respondents No. 1(a) to (c), namely, Muhammad Farrukh Rauf and respondent No.2 namely, Muhammad Mohsin alias Nijal ("the respondents") claimed that they are the donees, albeit, are the sons of Muhammad Aslam, who was a witness of the tamleek deeds. This arrangement continued undisputed for over few decades, during which Muhammad Aslam passed away. Years later, the donees i.e., predecessor-in-interest of respondents No.1(a) to (c), namely, Muhammad Farrukh Rauf and respondent No.2 namely, Muhammad Mohsin alias Nijal instituted a civil suit against the petitioners- Muhammad Nawaz and his sons alongwith Government of Punjab; the sons of Muhammad Nawaz bear the similar names albeit Muhammad Farrukh Shahzad (petitioner No.2) and Muhammad Nijal Hasan (petitioner No.3).
3. The respondents claimed that total property measuring 818 kanal- 17 marla of land was purchased by their uncle--petitioner No.1 and their late father--Muhammad Aslam jointly, and since their father was a government employee, he purchased the same in the name of petitioner No.1 who, later on, transferred the suit property measuring 400 kanal, out of the total land purchased, in their favour as an acknowledgment that the suit property was purchased with the funds of the late Muhammad Aslam, but petitioner No.1 fraudulently had shown himself as their father in the registered deeds and subsequently, manipulated the situation to favour his own sons by giving them similar names--petitioner No.2 as Muhammad Farrukh Shahzad and petitioner No.3 as Muhammad Nijal Hasan, with the intent to misappropriate the suit property whereas it is the respondents who are the actual donees. It was stated in the plaint that registered deeds bearing No.1679/1 dated 02.08.1975 and 1680/1 dated 04.08.1975 and mutations No.252, 253 both dated 30.07.1979, attested in pursuance to the tamleek deeds, to the extent of parentage of the respondents are against the law as well as Shariah and are based on mala fide. The Province of Punjab-respondent No.3 also contested the suit, by filing separate written statement.
4. The petitioners took the defence that the suit property was purchased with funds remitted by petitioner No.1/Muhammad Nawaz from United Kingdom. They contended that the transfer of the suit property, by petitioner No.1, through tamleek deeds was always intended for his own sons (petitioners No.2 and 3). After framing of issues and recording of evidence, the Trial Court through judgment dated 28.03.2013 decreed the suit of the respondents. The appeal preferred by the petitioners against the said judgement and decree of the Trial Court was also dismissed, vide judgement dated 10.11.2014, hence, present petition under Section 115 of the Code of Civil Procedure, 1908 ("CPC").
5. Learned counsel for the petitioners submit that the evidence produced by the parties has not been properly appreciated by the Courts below and wrong conclusion has been drawn.
Elaborating their stance, learned counsel for the petitioners submit that Exh. P3 (computerized birth certificate of Muhammad Farrukh Rauf son of Muhammad Aslam issued on 20.10.2011) and Exh. P4 (computerized birth certificate of Muhammad Nijal son of Ch. Muhammad Aslam issued on 28.05.2009), as well as Exh. P10 (record of birth entry of Muhammad Farrukh Rauf son of Muhammad Aslam maintained by Municipal Committee concerned) and Exh. P11 (record of birth entry of Muhammad Nijal son of Ch. Muhammad Aslam maintained by Union Committee concerned), were wrongly relied upon to draw conclusion that the respondents, who are admittedly sons of late Muhammad Aslam, were the actual beneficiaries of the suit property ignoring that the said certificates/exhibits were prepared prior to the filing of the suit and the contra evidence available on record has been ignored. Add that it was categorically narrated by petitioner No.1 in his examination-in-chief that the suit property was purchased by him through his real father (as his attorney), who happens to be real grandfather of the respondents and said part of the examination-in-chief has not been cross-examined by the respondents, therefore, the same ought to have been treated as admission on part of the respondents. Further contend that respondent No.2, namely, Muhammad Mohsin alias Nijal when laid claim to his inheritance from the property belonging to his father and mother instituted the suit in the name of `Muhammad Mohsin' without reference to the name `Nijal', which indicates that the suit property was not owned by him.
Further aver that late Muhammad Aslam, who happened to be the real brother of petitioner No.1, neither laid challenge to parentage of the donees during his lifetime nor asserted ownership of the suit property. Add that no evidence was led to prove that petitioner No.1 was a benamidar to the extent of 50% of the total land and possession of the suit property was never handed over to the respondents, at any stage, either prior to or during the pendency of litigation. Learned counsel for the petitioners concluded the arguments with the averment that the suit property was not given as gift but as a tamleek and transfer by way of tamleek can only be made by a transferor in favour of his legal heirs and the respondents, being the nephews, were not the legal heirs of petitioner No.1, hence, the tamleek deeds were void and the suit property is liable to be reverted to petitioner No.1.
6. Conversely, learned counsel for the respondents have supported the impugned findings.
Contend that the concurrent findings of facts are not to be interfered with by this Court in exercise of its revisional jurisdiction, more so when no illegality or irregularity could be pointed out; that the respondents' examination-in-chief regarding the fact that petitioner No.1 was a benamidar to the extent of 50% of the property was not cross-examined. Add that plea of petitioner No.1 that the suit property was gifted to his own children--petitioner Nos. 2 and 3 stands negated by the undisputed fact that, at the time of the transfer, his sons (with similar names) had not even been born.
Responding to objection of the petitioners that a somersault was taken as regards the parentage of the respondents, learned counsel state that a clear stance was taken by respondent No.2, namely, Muhammad Mohsin alias Nijal while appearing as PW.6 that petitioner No.1 being real uncle wanted to take the respondents to England and for that reason, the parentage was wrongly recorded and the said portion has also not been cross-examined and hence, was rightly held to be admission to this factual aspect of the matter by the petitioners. State that no fraud, whatsoever, practiced by the respondents could be pointed out regarding the birth certificates, which were issued by the competent authority. Assert that the possession of the property was delivered to the respondents through their real father, namely, Muhammad Aslam and it is for this reason that name of father of the respondents was duly reflected in all the relevant documents including, the tamleek deeds, original title deed(s) when total property was purchased and the revenue record.
7. Arguments heard. Record perused.
8. The controversy at hand lies at the intersection of competing narratives regarding the identity of the donees under the registered tamleek deeds. At the one end of the spectrum, petitioner No.1-- donor asserts that the gifts were intended for his sons (petitioners No. 2 & 3) who, at the time of execution of the deeds, were unborn and on the other end, the respondents claim to be the actual donees albeit with an error in their recorded parentage. Therefore, the legal question that emerges for determination by this Court can be articulated as under: "Whether in the presence of competing claims regarding the identity of the donees, under a registered deed, particularly, when the donor is alive and denying the claimants as the actual donees, the registered deeds can be construed as void or whether it can still be given effect in the light of attending circumstances?"
9. The petitioners raised certain objections to the claim of the respondents as donees, inter alia, as to why did their father-- Muhammad Aslam remain silent for two decades and did not bother to get the paternity of his sons corrected; what made respondent No. 2 to change his name from Muhammad Nijal to Muhammad Mohsin, which are valid concerns, however, they cannot override the core fact of the case that the respondents based their claim on the registered documents, which are still holding the field. Crucially, petitioner No.1/Muhammad Nawaz, who is still alive and appeared before this Court, did not deny that the registered documents/tamleek deeds bear his signatures. Similarly, argument of learned counsel for the petitioners that there is apparent disconnect in the documents relied upon by the respondents regarding the date of birth of the respondents as also their names has force in the first blush, however, they do not and cannot override the cardinal principle that oral assertions cannot overturn the documentary evidence, particularly, the registered documents executed, under the law--Men may lie, but the documents do not. Once a fact is reduced to writing in a registered instrument, the burden to dislodge that fact becomes extremely heavy. Petitioner No.1, while appearing as DW-4, stated as under: Whereas during cross-examination, DW.4/Petitioner No.1 stated as under: (Emphasis supplied)
The incorrect assertion of petitioners, both in the written statement and in the evidence (petitioner No.1 as DW-4), that petitioner No.1 gave suit property to petitioners No.2 and 3 and handed over the possession to them, who were not even born at that time, effectively buries the entire defence. It is imperative to note that the petitioners have not pleaded or proved any exception--such as fraud, mistake, or undue influence--to justify disregarding the terms of the registered tamleek deeds inasmuch as admittedly the same were signed by petitioner No.1. The principle of "Omnia praesumuntur rite esse acta"--all acts are presumed to have been rightly and regularly done-- also supports the validity of the registered tamleek deeds. The Courts are bound to give weight to the documents executed under due process unless compelling contrary evidence is produced.
None has been brought in this case. Suffice to mention that Article 103 of the Qanun-e-Shahadat Order, 1984 ("QSO") bar the introduction of oral evidence to contradict the terms of a written instrument, except under limited exceptions. In his written statement, petitioner No.1 (DW-4) stated as under: (Emphasis supplied)
Even though the oral testimony of the respondents-plaintiffs along with ancillary documentary evidence may not have been entirely forceful or free from doubt, the law does not require a plaintiff to prove his case beyond a shadow of a doubt but only on a balance of probabilities. The case of the respondents was based on registered documents whereas the defence has not only failed to bring forth independent evidence in support of its claims but has relied entirely on speculative inferences and afterthoughts, unsupported by any admissible material, which cannot take away the force of registered deeds in favour of the respondents and such defence collapses under its own weight.
10. At this juncture, it is imperative to state that the registered tamleek deeds continue to hold the field and have not been cancelled.
Thus, the core dispute, does not revolve around the execution or validity of the tamleek deeds themselves, rather the identity of the donees. While both the parties exhibit certain weaknesses in their respective stances, the balance of probabilities favours the respondents. It is an admitted and undisputed fact that petitioners No. 2 and 3 were not even in existence at the time of the execution of the tamleek deeds. This fact alone undermines the petitioners' claim that the deeds were executed in favour of the children who were yet to be born. On the other hand, the presence of the donees bearing the names--Muhammad Farrukh (albeit Muhammad Farrukh Rauf) and Muhammad Nijal (albeit changed to Muhammad Mohsin) clearly aligns with the theory that the suit property was intended to be conferred upon the respondents, though their parentage was inaccurately recorded.
11. Much emphasis has been laid on the point that father of the respondents, namely, Muhammad Aslam, remained silent in his life time to get correction of parentage of his sons, however, the same does not alter the legal character of the registered tamleek deeds in favour of the respondents. In matters concerning title to immovable property, documentary evidence prevails over the oral assertions, especially where such documents are registered under the Registration Act, 1908 and have remained unchallenged for an extended period. Petitioner No.1, having executed a gift in favor of the donees shown to be his sons, cannot now retroactively claim that the donees were not the intended beneficiaries, particularly, when he concedes that his own sons were not even born at the relevant time. The doctrine of estoppel bars a party from denying what he has previously affirmed by conduct, representation, or silence when it was his duty to speak. Furthermore, mere error in recording parentage within a registered instrument/deed is generally not fatal and does not invalidate the tamleek/gift deed itself, as long as the identity of the donor, donee, and the property being transferred, are clearly and correctly identified, along with the donor's intention to make a gift and the donee's acceptance. Whereas the details of parentage are often included for identification purposes, these details are not considered as fundamental element that, if incorrect, would invalidate the entire gift deed as the registration of the gift deed provides legal validity and ensures that the transaction is properly documented and recognized. Moreover, an error in parentage may lead to some confusion or difficulties in proving lineage in certain situations, but it does not automatically render the gift deed invalid. If there is a dispute arising from an inaccurate recording of parentage, the parties can seek clarification or rectification of the deed through appropriate legal channels.
12. Moreover, it is well-settled that a gift (hiba), under the Islamic law must be made by a donor to a donee who is clearly identified and who exists at the time of the gift. If the donees were wrongly declared as sons of Muhammad Nawaz, yet in fact were the sons of Muhammad Aslam, the donor's claim of having gifted property to his own offspring becomes inherently flawed. A gift once made to a specific individual is irrevocable unless the donor reserved such a right. Here, no such reservation exists. Therefore, having gifted the property to Muhammad Farrukh and Muhammad Nijal, even under a mistaken paternity, petitioner No.1/Muhammad Nawaz cannot now assert a new narrative to undo the effect of the gift. Muhammad Nawaz's signatures on the registered tamleek deeds, coupled with his presence and conduct over a span of more than three decades, amount to an admission by conduct. The legal maxim "allegans contraria non est audiendus" (one who alleges contradictory facts is not to be heard) becomes applicable in present case. The attempt to now disown the donees and substitute them with his sons (petitioners No.2 and 3), who were not even born at the time of the transaction, amounts to an impermissible approbation and reprobation. Additionally, the doctrine of estoppel by deed squarely applies: having acknowledged the transaction in writing, petitioner No.1 is barred from asserting anything to the contrary. There was no competent or intended donee from Muhammad Nawaz's side who could legally receive the suit property. Since petitioner No.1 chose to name and execute the gift in favour of children who were in truth his nephews, the title vested in them, and any subsequent attempt to assert otherwise is legally untenable. This collapse of the core defence supports the concurrent findings of the Courts below.
13. As regards the fact that the disputed transaction(s) were not gift but a tamleek and hence, property is liable to be reverted to petitioner No.1, suffice to state that the argument is misconceived and not applicable to the facts of the present case inasmuch as at the time when petitioner No.1 executed the registered deeds in favour of the respondents, he was admittedly unmarried, having no children and hence, the respondents were his family members and/or expected legal heirs. So is the position of the possession, which admittedly rests with the donees, under the registered deeds.
14. Learned counsel for the petitioners have laid a lot of emphasis on the fact that the respondents/donees took contradictory positions with respect to their case. It has been argued that in the plaint, they alleged that petitioner No. 1 acted as a benamidar for their father, Muhammad Aslam, and failed to prove this assertion through cogent evidence and in contrast, during the evidence, they stated that their parentage was incorrectly recorded in the registered gift deed solely for the purpose of facilitating their immigration to the United Kingdom--a claim for which no documentary proof was produced. While this argument may carry some force, it loses significance in the light of the repeated admissions of petitioner No. 1, who did not dispute the execution of the registered deeds; instead, he attempted to justify it by asserting, albeit belatedly, that the donees were his own future children--an assertion that, as examined above, is both factually implausible and legally contradictory, given the non-existence of the children at the time of the execution of the deeds. The same is also prophetic in its nature which is beyond human foresight at the time of execution of the tamleek deeds and subsequent mutations as to how the petitioner would be certain and sure that, once married, he would give birth to two male babies.
Fictional to say the least. On the contrary, the explanation regarding incorrect parentage by PW.6 reads as under: At this juncture, this Court cannot lose sight of the fact that in the social context of our country, extended family members, especially real uncles and aunts, often take steps to improve the life prospects of their nephews and nieces--particularly with regard to immigration-- and for this purpose, the practice of informally attributing parentage, is neither uncommon nor inherently fraudulent and the respondents' explanation carries a ring of truth and supports the authenticity of their claim. While the act may be irregular in bureaucratic terms, it does not negate the intent and effect of a validly executed and registered transfer of title. The contradiction in stance of the respondents as alleged by the petitioners, therefore, does not erode the essential legal position that the tamleek deeds were executed with full knowledge and intention by petitioner No. 1, and that the identities of the donees, regardless of mis-described parentage, were clearly known and accepted.
15. The matter can be examined from another angle. Under Islamic law, once a gift/hiba/tamleek is completed--by way of declaration, acceptance, and delivery of possession, it becomes irrevocable, and any attempt to undo such a transaction is strongly discouraged. The Prophet Muhammad has strongly deprecated such act of revocation, in the strongest moral terms, by stating that the revocation of a gift is akin to a dog returning to its vomit. This Court is of the opinion that where a gift and/or tamleek is further recognized through a registered document, the presumption of finality and intentionality is fortified under both Islamic and statutory principles. In present case, the registered tamleek deeds, executed by petitioner No.1, with full knowledge and without coercion, signify a concluded transaction, both under religious and civil law. Attempts to retract such settled dispositions, decades later, not only offend the sanctity attached to the registered instruments but also contradict clear ethical prohibitions deeply rooted in the Islamic jurisprudence, which cannot be permitted by this Court in exercise of its revisional jurisdiction just because a different view is possible on the basis of some ancillary documents brought on record by the petitioners and in view of weakness in the respondents/plaintiffs" testimony.
16. Therefore, the legal question formulated hereinabove is answered in the terms that mere denial of a gift or tamleek by the donor even if alive does not ipso facto render a registered deed void, particularly, where its execution stands admitted or is otherwise proven. The Courts must examine not only the content of the document but the context in which the same was executed, inter alia, relationship of donor and donee, absence of fraud, so as to ascertain the identity of the donee. In present case, the concurrent findings of the Courts below are premised upon the registered tamleek deeds relied upon by the respondents, which were found to have evidentiary value despite certain discrepancies, particularly, regarding the recorded parentage of the donees. The Courts below were justified in rendering their respective judgments that the surrounding circumstances and supporting evidence sufficiently corroborated the respondents claim.
17. While exercising powers under Section 115, CPC, this Court is obligated to strike a delicate balance between correcting errors and respecting the finality of the judicial proceedings qua concurrent findings of facts, thereby ensuring that justice is served in its truest sense. It is settled law that concurrent findings of fact, especially when drawn from documentary evidence and reasonable inferences, are not to be lightly interfered with by this Court, in the revisional and/or the constitutional jurisdiction, merely, because a different view is possible. In the absence of any glaring illegality or jurisdictional defect, this Court finds no ground to disturb the conclusions drawn by the Courts below. As a corollary, this petition is dismissed. No order as to costs.