' This is second appeal from the judgment of Vlth Additional District Judge, Karachi, dated 10-5- 1976, whereby he had dismissed the appeal of the appellants which was filed from the judgment of VIII Senior Civil Judge, Karachi in Civil Suit No, 179 of 1966, dated 27th August, 1975. By the above judgment the learned Senior Civil Judge had decreed the suit of the respondents against the appellants for declaration and permanent injunction.
2. In the suit filed by the respondents against the appellants following reliefs were sought:- "(a) That it may be declared that under the legal and valid gift-deed, dated 30-7-1965 executed by Mst. Karima Bibi:-
(1) The plaintiff No, 1 is the sole owner of Property No,2 bearing Plot Survey Nos. SOL-B-1/87, Karachi having acquired the full ownership titles and possession (valued at Rs,200).
(2) The plaintiffs Nos. 2 and 3 are the joint owners of property No,1 bearing Plot Survey No, SOL-B- 1/86, Karachi having acquired the full ownership titles and possession (valued at Rs,200).
(b) That it may be declared that all the three plaintiffs above-named are entitled to get their names entered into the Property Register of the defendant No, 3 as per gift-deed, dated 30-7-1965 in respect of properties bearing Plot Survey No, SOL-B-1/87 and SOL-B-1/86, Karachi for their respective rights of ownership in the respective properties referred above (valued at Rs,200).
(c) That it may be declared that the oral gift in favour of defendants Nos. 1 and 2 made by Mst.
Karima Bibi in respect of properties (1) SOL-B-1/87 and (2) SOL-B-1/86, Karachi was illegal, ineffective, inoperative and void and she had no right of ownership on 31-8-1965 for the properties described above for making such gift (valued at Rs,200).
(d) That the defendants Nos. 1 and 2 may be restrained by means of mandatory/permanent injunctions from realizing any rent of the suit properties bearing Plot Survey Nos. (1) SOL-B-1/87 and
(2) SOL-B-1/86, Karachi (valued at Rs,200).
(e) That the defendants may be ordered to render the account for the rent realised in respect of the suit properties mentioned above and on taking accounts the same may be ordered to be paid to the plaintiffs (valued at Rs,200).
(1) That the costs of the suit may be awarded.
(g) That any other or further relief which the Hon'ble Court. deems fit and proper may be awarded."
3. The case of the respondents/plaintiffs was that the building namely, a plot bearing Survey No, SOL-B-1/86 measuring 65 sq. yds. and No, SOL-B-1/87 measuring 83 sq. yds. originally belonged to Mst. Karima Bibi widow of Abdul Ghani. This fact is not disputed. The respondents had claimed that the said Mst. Karima Bibi had gifted Plot No, SOL-B-1/86 to respondents Nos. 1 and 2 jointly and Plot No, SOL-B-1/87 to respondent No,3, by registered gift-deed, dated 30th July, 1965. It is claimed that by virtue of the registered gift-deed the respondents became owners of these plots. At the time of the disputed said gift these plots were in possession of some tenants. Mst. Karima Bibi is alleged to have issued notice to the tenants to attorney to the respondents domes. It is, therefore, claimed that all the three ingredients of gift namely declaration, acceptance and delivery of possession having been fulfilled, the gift was complete and so also the ownership of the respondents over the property in question.
4. The respondents had filed ejectment case against the appellants on the basis of the gift-deed but their case was dismissed on the ground that the gift was disputed by the appellants. The respondents/ donees also applied to the City Deputy Collector for mutation of their names in the property register, but their request was refused by order, dated 1-11-1965 on the ground that these plots had been gifted by Mst. Karima Bibi to the appellants, according to the record of their office and that the names of the appellants had already been recorded in the City Survey record as owners of these plots by virtue of the gift-deed. It appears that after the gift-deed, dated 30th July, 1965 (registered on 28-8-1965) was presented for registration in favour of respondents, Mst. Karima Bibi is said to have appeared before the Assistant City Survey Officer on 26-8-1965 and given statement that she has gifted the plot in question to her grandsons the appellants. This statement was recorded by Assistant City Survey Officer and on the same date two witnesses namely, Alaf Din and Rahim Dad Khan had also got their statements recorded in support of Mst. Karima Bibi. The subsequent donees Muhammad Yousuf and Abdul Razzak appellants also got their statements recorded by Assistant City Survey Officer on the same date saying that they have accepted the gift. On the basis of these statements the City Survey record was mutated in favour of the appellants. This was the reason for which the City Deputy Collector had, by his order, dated 1-11- 1965, refused to effect mutations in favour of the respondents, who claimed to be the prior donees on the basis of the registered gift-deed, dated 30th July, 1965.
5. Aggrieved by the order of the City Deputy Collector, the three respondents, who are grand- children of Mst. Karima Bibi, filed suit No, 107 of 1966 before the Vth Senior Civil Judge, Karachi. The suit was later on numbered as '179/1966', but it was transferred to VIllth Senior Civil Judge, Karachi who had finally decided it on 29-7-1975. Respondents 1, 2 and 3 had claimed in their suit that the gift in their favour having been completed on 30th July, 1965, the subsequent gift in favour of the appellants was null and void, because Mst. Karima Bibi could not have cancelled the first gift after it had matured in their favour.
5-A. The appellants filed their joint written statement before the trial Court in which they pleaded that no gift in favour of the respondents was ever made by Mst. Karima Bibi. They also pleaded that respondents Nos. 1 and 2 committed fraud on the late Mst. Karima Bibi and obtained her signature on the document by misrepresentation saying that it pertained to a case regarding recovery of rent from the tenants and that on this misrepresentation she was persuaded to sign the disputed gift-deed before the Sub-Registrar. The value of the property mentioned by the respondents as Rs,6,000 was also challenged. According to the appellants, the value of the plots was Rs,8,000 on which court-fee should have been paid. They have claimed that by virtue of the statement given by Mst. Karima Bibi before City Survey Authorities they have become owners of the plots in question. They have also raised legal pleas which will be evident from the issues framed In the atilt which are as under:- "(1) Whether the suit is undervalued and proper court-fee stamp is not paid and what is its effect?
(2) Whether the suit is not maintainable under section 42 of the Specific Relief Act?
(3) Whether the suit is bad for misjoinder of parties and causes of actions?
(4) Whether Mst. Karima Bibi had made valid gift in favour of plaintiff or defendants Nos. 1 and 2?
(5) To what relief the plaintiffs are entitled?
(6) What should the decree be?"
6. In support of the above issues the respodents/plaintiffs examined following witnesses Mst.
Fatima, paternal granddaughter of Mst. Karima Bibi (Exh. 5), Ghulam Hussain maternal grand-son of Mst. Karima Bibi (Exh.8) and Noor Ahmed (Exh. 13). In rebuttal the appellants/defendants examined Muhammad Yousuf (Exh.15) and Alaf Din (Exh.16). It may be stated that after making oral statement before the City Survey Authorities on 26-8-1965 Mst. Karima Bibi died in March, 1966 i.e, after about 6 months of the subsequent gift. The suit was filed by the respondents/ plaintiffs on 24- 5-1966 i.e, after about 2 months of the death of Mst. Karima Bibi.
7. The trial Court held that the gift which was executed by registered deed by Mst. Karima Bibi was prior in time having been executed on 30th July, 1965 and that the respondents were also put in possession of the property constructively when notice was given by Mst. Karima Bibi to the tenants to attorny to them. Hence the subsequent oral gift made by statement of Mst, Karima Bibi before the City Survey Authorities was null and void and illegal. On these findings the suit of respondents Nos. 1, 2 and 3 was decreed. The appeal filed by the appellants was also dismissed by VIth Additional District Judge, Karachi as stated above, who concurred with the findings of the trial Court.
8. Mr. Mushtaq Memon, learned counsel for the appellants has argued that Mst. Karima Bibi was an old 'Pardahnasheen' lady. Hence the burden was upon the respondents/plaintiffs to prove that the registered gift-deed was executed by Mst. Karima Bibi voluntarily, without undue influence or coercion. In support of this plea he had referred to section 16 of the Contract Act.
9. There is no dispute as to the proposition that the custom of Parda is presumed to exist among the ladies of Sind unless the contrary is pleaded and proved. It has not been contested that Mst.
Karima Bibi was a 'Pardahnasheen' lady and that her age was about 70 to 90 years at the time of the disputed gift transactions. She has affixed her thumb-impression on the registered gift-deed as well as on her statement which she had given before the Assistant City Surveyor. This fact proves that she was illiterate as well. In view of these facts the buden lay heavily on respondents/plaintiffs to prove that the registered gift-deed, dated 30th July, 1965 was executed by Mst. Karima Bibi in their favour voluntarily and without any undue influence. The question that in such cases the budren of proof is upon the person who wants to take benefit of the document in question, is now well-established. The principle which applies to 'Pardahnasheen' ladies equally applies to illiterate and ignorant persons. In support of this proposition Mr. Mushtaq Memon has relied on the following decisions:-
(i) AIR 1925 P C 204;
(ii) AIR 1931 P C 203;
(iii) AIR 1940 P C 134; (ivy PLD 1968 Dacca 531;
(v) PLD 1969 Kar. 324;
(vi) PLD 1963 Kar. 825;
(vii) 20 D L R 192; and
(viii) AIR 1955 Cal.
17.
10. Mr. Mushtaq Memon has further argued that there is no endorsement on the registered gift- deed, which is in english, to the effect that the contents were read over to Mst. Karima Bibi in the language which she understood and that she had accepted the contents. He has further argued that although on 30th July, 1965 when the gift-deed was presented for registration, Mst. Karima Bibi is shown to be present before the Sub-Registrar. But on 28-8-1965, when the deed was actually registered, it is not proved that this was done in. presence of Mst. Karima Bibi. It is, therefore, argued that the clear presumption from the manner, in which the deed was registered, shall be that fraud was practised upon the lady.
11. Mr. K.B. Bhutto on the other hand has argued that Mst. Karima Bibi had appeared before the Sub- Registrar on 30th July, 1965 and admitted the contents of the deed in presence of witnesses Haji Yar Muhammad who had identified the lady. Haji Yar Muhammad was identified by Mr. M.I. Siddiqui, Advocate. He has further argued that once the gift-deed is registered, it takes effect not from the date of registration but from the date of the presentation, which in this case was 30th July, 1965. In support of this plea he has referred to sections 47 and 75(6) of the Registration Act and also relied on a decision of the Supreme Court reported as PLD 1964 SC 236. There is no doubt as to the proposition that if the gift-deed is proved to be duly executed by Mst. Karima Bibi, then by virtue of section 47 read with section 75(6) of the Registration Act, the date of presentation i.e, 30th July, 1965 shall be deemed to be the date on which the gift-deed became effective notwithstanding the fact that it was registered on 28-8-1965. The Registration Act does not require the executant to be present on the date of presentation of the document before the Sub-Registrar and admits its execution, (sic) then her presence on the second occasion i.e, the date of actual registration shall not be necessary. Section 47 of the Registration Act lays down that a' registered document shall operative from the time from which it would have commenced to operate, if no registration thereof had been required or made and not from the date of its registration.
12. Mr. K.B. Bhutto has further argued that the plea of fraud set up by the appellants in their written statement cannot be entertained because no particulars of fraud, as required by section 102 of Evidence Act, have been mentioned in the written statement. In the absence of such particulars the plea of fraud should be rejected at the very outset. Reliance is also placed in support of this plea. on PLD 1958 Kar. 399 and PLD 1975 Lah.
1170.
13. The next argument advanced by Mr. K.B. Bhutto with regard to the second gift is that the Assistant City Surveyor had no authority to record statement of Mst. Karima Bibi, nor such statement would amount to cancellation of the prior gift-deed. Moreover no notice was issued by the City Surveyor to the respondents before making entries in the City Survey Record. Appellant Yousuf has admitted in his evidence that at the time of the subsequent gift by Mst. Karima Bibi effect by her statement before the Assistant City Surveyor, he was aware of the gift-deed pending before the"SublRegistrar for Registration. He further stated that he had also given a notice to the Registrar not to register the gift-deed. In view of this fact the appellants should have brought this fact to the notice of the City Survey Authorities that a gift-deed was already pending for registration before the Sub-Registrar' on 26-8-1965, when statement of Mst. Karima Bibi was recorded by the Assistant City Surveyor. The silence of the appellants before the City Survey Authorities regarding the prior gift-deed shows that the appellants themselves got the subsequent gift transaction effected clandestinely. It was their duty to point out to the City Survey Authorities, before getting Mutation entered in their favour, that an earlier gift-deed, dated 30th July, 1965 was already pending with the Sub-Registrar, in favour of the respondents and that the respondents may be heard before mutations are effected.
14. Mr. K.B. Bhutto has further argued that in second appeal under section 100, C.P.C. concurrent finding of fact of the two Courts below in respect of the first gift-deed having been duly executed by Mst. Karima Bibi in favour of the respondents cannot be interfered with unless it is proved that the above point of fact was based on misreading of evidence or was arbitrary or was in violation of mandatory rules laid down in the Evidence Act. In support of his argument he has relied on (1) PLD 1978 Kar. 188; PLD 1969 SC 617; 1970 SCM R 510 and (4) 1981 SCM R 1233.
15. So far as proof of execution of registered gift-deed is concerned, there is evidence of Mst.
Fatima, paternal grand-daughter of Mst. Karima Bibi (Exh.5). She has produced the registered gift- deed as Exh.2, which shows that it was presented on 30th July, 1965 before the, Sub-Registrar in presence of witnesses Noor Ahmed and Haji Yar Muhammad. The Sub-Registrar on the same date also made an endorsement that the executant was present, but perusal of the deed shows that there is no endorsement on the gift-deed that it was read over to Mst. Karima Bibi in the language which she understood and that she admitted its contents. Unfortunately this fact has not been adverted to by both the Courts below. It would be advantageous to reproduce the endorse ments which were made by the Sub-Registrar on the disputed gift-deed on 30th July, 1965 and 28th August, 1965. These are as under:- "(1) Mst. Karima Bibi wife of Abdul Ghani, Muslim, 90, household, Soldier Bazar, Karachi, executing party.
(2) Mst. Fatima Bibi wife of Peer Muhammad, Muslim, 30, household, Soldier Bazar, Karachi, executing party.
(3) Mr. Ghulam Hussain son of Mohomed Bhai,,,Muslim, 28, Service, Soldier Bazar, Karachi, executing party.
(4) Mr. Ismail son of Muhammad Bhai, Muslim, 23, Service, Soldier Bazar, Karachi, executing party.
The above admit execution" (Paper torn)
' Below the above endorsement there are thumb-impressions, of Mst. Karima Bibi, Mst. Fatima. Bibi, Ismail and Ghulam Hussain. There is further endorsement as under:- "Haji Yar Mohomed son of Haji Abdur Rehman, Muslim, 42, business, Soldier Bazar states that he knows the executants and identifies them. He in turn is identified by Mr. M.1. Siddiqui, Advocate."
' Below this endorsement there are signatures of Mr. M.1. Siddiqui and Haji Yar Mohomed. The above endorsements are dated 30th July, 1965. The matter was then adjourned by the Sub-Registrar and again taken up on 28-8-1965 for registration. On this date he passed the following order:- "Admitted to registration."
(Sd.)
(Sub-Registrar, Karachi).
28-8-1965."
16. This is all about the registration. Mst. Fatima Bibi who has produced this gift-deed does not say that the contents of this deed, which are in english, were read over to Mst. Karima Bibi in the language which she understood and that she admitted the contents. P.W. Ghulam Hussain (Exh.8) also does not say that this gift-deed was explained contents after understanding the same. The same would apply to the evidence of Noor Ahmed (Exh.13).
17. I am, therefore, convinced that both the Courts have failed to apply their minds to the question as to what are the requirements in respect of proof of a document executed by an illiterate 'Pardahnasheen' lady. The most important fact which makes both the gift-deeds doubtful is that both the parties kept silent about their respective gifts during the lifetime of Mst. Karima Bibi from August, 1965 up to March, 1966 when she was alive. During this period they could have filed a suit and made Mat. Karima Bibi a party to it to prove as to the which gift she was a consenting party. I am convinced that none of the parties has come to the Court with clean hands. They had taken advantage of the old age and ignorance of the 90 years old lady and got transactions executed from her without fully making her understand the nature of the transactions. The appellants appear to be nearer relatives to Mst. Karima Bibi in comparison to respondents Nos. 1, 2 and 3. Respondents Nos. 1 and 2 are maternal grand-sons of Mst. Karima Bibi, while the appellants Nos. 1 and 2 are maternal grand-sons of Mst. Karima Bibi. In the ordinary course Mst. Karima Bibi would have gifted the property, if at all she wanted so, to her paternal-grand sons rather than to her maternal grand- sons. No doubt Mst. Fatima Bibi respondent No,3 is maternal grand-daughter, but she herself being a married lady, the benefit of gift in her favour would have also gone to her husband.
Hence she also would not have been a favorite donee for Mat. Karima Bibi. However, the very fact that the parties exploited the old age and ignorance of the lady by getting one transaction executed after another according to their choice, shows that none of the two gifts was voluntary or was executed by her after having fully understood the nature of the transactions. The fact that the parties came to the Court after the death of Mat. Karima Bibi shows that they have not come with clean hands. Hence none of the parties is entitled to get any benefit out of the alleged gifts, the executions of which are highly suspicious and doubtful.
' For the above reasons the appeal is allowed, and the judgments of the first appellate Court and the trial Court are set aside with the observations that none of the gifts executed by Mst. Karima Bibi has been proved to be genuine. The parties will bear their own costs.