This revision petition by Mst. Amina Bibi arises out of a judgment of the learned Additional District Judge, Charsadda dated 7-12-1981 by which he affirmed the judgment and decree of the trial court in suit No.62/1 of 1978, dismissing the suit.
2.Mst. Amina Bibi, petitioner herein, is a widow and claims to have acquired the property in dispute which consists of a residential house and 47 kanals and 10 marlas of agricultural land bearing Khasra Nos. 1033/223 and 1035/224, situate in village Palosi, Tehsil Charsadda from her husband named Sohrab Khan. She alleged that Sohrab Khan made transfer of the property in her favour to satisfy her dower debt under a written deed. Later, at his instance a mutation was also entered regarding the land in order to give effect to the transfer in revenue papers. He was issueless and also had no male relation to pursue the mutation while she was a 'parda nasheen' lady and was satisfied that the transfer must have been incorporated in revenue papers because she was having the produce. But this did not prove true. When he died and his inheritance was mutated, she learnt that the area given to her in lieu of dower had also been included in his inheritance mutation and the mutation entered regarding dower in her favour had been rejected. She blamed the same on defendant No.l, asserting that he collusively got a commission appointed and in order to deceive the Revenue Officer produced a person other- than Sohrab Khan who denied to have made any transfer it consideration of dower to her with the result that the mutation was rejected. She maintained that Sohrab Khan was a Haji and he never denied that he would not pay dower to her. According to her she learnt about the rejection of her mutation when his inheritance mutation was attested and she was given 1/4 share in his property including the land given to her in consideration of her dower.
She further alleged that on the basis of inheritance mutation defendant No.l had made further transfer of the property by gift in favour of his sons defendants 2 and 3. She assailed the mutations of gift as void and of no effect against her right and claimed that she was owner of the property and was also entitled to its possession.
3. The defendants jointly submitted a written statement wherein they denied the claim in suit on various grounds which gave rise to the following issues:-
(1) Whether the plaintiff has got cause of action?
(2) Whether the suit is within time?
(3) Whether the plaintiff is estopped to bring the present suit?
(4) Whether the suit is incompetent in its present form?
(5)Whether the suit is properly valued for the purposes of court-fee and jurisdiction?
(6) Whether the Dower deed is inadmissible in evidence for want of Stamps and Registration?
(7)What is the effect of the statement recorded by Commissioner so deputed?
(8) Whether the plaintiff is entitled to the decree prayed for'
(9) Relief.
4. On the evidence produced on these issues, the trial Court found that it was un established that any transfer was ever made to the petitioner by Sohrab Khan her husband to discharge her dower debt and that the dower deed pressed into service by the petitioner had come into being during the time when Sohrab Khan was under detention in Jail undergoing a sentence of 3 years passed on him in 1930. Accordingly, it turned down the petitioner's claim. Dismissing the suit and the appeal to the Additional District Judge having met the same fate, the petitioner came here and filed this revision petition. , Mr- Fetch Mohammad Khan, Advocate, represented the petitioner while Mr. Maazullah Barkandi, Advocate, appeared on behalf of the respondents. They were heard and the record has also been perused.
6.Clearly it is the dower deed, copy EXh.P.W.l/1, on which the petitioner's claim is resting. Under this deed, the petitioner had claimed to have got the property in suit in consideration of her dower from her husband, late Sohrab Khan and to have held it as complete owner ever since. Accordingly, what is necessary to see here is if the deed had been executed by Sohrab Khan and if so whether the same had been acted upon. The Courts below had examined these questions but had not found the evidence bearing thereon to 7 T11 be satisfactory and supportive of the case of petitioner.
As a result they had looked askance at the deed and refused to rely on it _ 3n order to see if their approach in assessing the evidence has been on correct lines or otherwise a fresh look at the evidence needs to be taken.
7. The evidence regarding execution of the deed appears to lie in the depositions of two witnesses, namely, Said Mumtaz Ahmed and Khan Badshah P.Ws. 1 and 3, respectively, Said Mumtaz Ahmed is son of the scribe, petition writer Mohammad Nawab Shah, and producing the relevant register wherein the deed stood mentioned at serial No.40 dated 10-1-1931. He testified to the effect that he was conversant with the handwriting of his father and the dower deed (copy EX.P.W.1/1) was in his handwriting. But his testimony can be doubted for the reason that he is related to the petitioner very closely, being his first cousin from maternal side. This, however, is not the case of the other witness examined to establish execution of the document, namely, Khan Badshah (PW.3). He had a look at the deed and owning his signature thereon as an attesting witness deposed that in his presence at the instance of Sohrab Khan it had been written out. This evidence in normal course should be accepted as adequate to prove execution of the deed but in the evidence of Kachkol
(PW) who was examined to prove that the deed had been acted upon, a fatal admission can be seen to the effect that late Sohrab Khan was in jail serving out a term of three years' imprisonment, imposed on him during the days of red shirt movement in 1930. If Sohrab Khan was in Jail, how had the deed come into being at his instance. This is a question that may not be easily answered by the petitioner and it raises serious doubt in regard to the genuineness of the deed, rendering it totally dubious. Once it is found that the deed which had been tendered to serve as a foundation ~A was doubtful the entire edifice built thereon will fall to the ground.
8.Assuming, however, that the deed is genuine, it will be necessary to see if there was evidence showing that it had been acted upon. P.W. Kachkol who is still tenanting the land and has deposed to have all along paid the produce to the petitioner has been referred to as supplying the requisite proof. But his statement does not appear to be favourable to the petitioner. Rather it appears to work against her in that it shows in cross-examination that he has been holding the land as tenant on behalf of Sohrab Khan. That it was so is also evident from the copies of revenue record placed on record. No entry in the said record appears in favour of the petitionerlB either showing her as owner of the land or Kachkol.As tenant and her. Obviously as such the deed has not been acted upon.
9. It can also be seen that a mutation, No.6670, (copy Ex.P.W.2/2) was also entered on the basis of dower deed which purported to transfer the land in suit to the petitioner. But it was not sanctioned.
It was rejected. The reason being that Sohrab Khan did not admit the transfer. He denied that he even knew of the transfer. It was contended in regard to this mutation that Sohrab Khan made no such statement by which he intended to convey his denial of the transfer. He was ill and unable to travel to Tehsil where his statement is shown to have been recorded and instead someone else posing to be Sohrab Khan was produced and he gave the statement. This was maneuvered by Shah Nawaz predecessor-in-interest of the respondents because he was to be benefited in case no transfer by Sohrab Khan was made because Sohrab Khan was issuless and he being a close relation was to inherit him. This contention from the record finds no support. Rather the record proves to the contrary. The evidence of two impartial witnesses, namely, D.W.2 and D.W.4 is clear on the Point. D.W.2 is the person who was appointed as Commissioner to record the statement of Sohrah Khan with regard to the mutation Apcording to him, Sohrab Khan on his own contracted him ir. Tehsil to make statement which he recorded in the presence of D.W.4, who knew Sohrab Khan The Commissioner himself toe personally knew Sohrab Khan. According to them both, Sohrab Khan did not intend to make any transfer in consideration of dower to the petitioner and the mutation accordingly in pursuance to his statement was directed to be rejected. Why should have these witnesses joined an unholy alliance to support the case of Shah Nawaz, there is no apparent reason. As such their evidence has to be arrepted.
10.There is another aspect of the dower deed which also deserves to be seen. It is that the deed is both unstamped and unregistered. A deed of this kind whereby interest in any immovable property valuing more than Rs.100 is sought to be created requires to beregistered compulsorily under section 17 of the Registration Act and if it be unregistered it has to be ignored straightaway.
Accordingly, even if the dower deed be held to be validly executed it would not operate to create any right or interest in favour of the petitioner being unregistered. A similar question earlier arose in the case of Umar Bakhsh vs. Mst. Zamrut Jan and 9 others (PLD 1973 Peshawar 63) and was disposed of by Mr.G.Safdar Shah, C.J. Holding that the deed being compulsorily registerable under section 17 of the Registration Act and having not been registered, would not convey any right or interest in the property to the plaintiff, though it could be received in evidence. So looked at from any angle the case appears totally without merit and the revision petition is hereby dismissed. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.