1. ' This Revision Application has been filed challenging the concurrent findings of the two Courts below i,e, the Court of Xth Civil Judge, Karachi (South) who by the judgment and decree passed on 20-7-1986 decreed the suit of Plaintiffs/Respondents (Suit No,4001 of 1979) for declaration, injunction and cancellation of documents and the judgment and decree passed by the IVth Additional District Judge, Karachi (South) on 28-8-1989 who dismissed the appeal of the applicants (Civil Appeal No,136 of 1986).
2. ' Briefly the facts of the case of the Plaintiffs are that the respondent No,1 is the son of late Usto Muhammad while the Respondents Nos.2, 3 and 4 are the widow, son and daughter respectively of late Ghulam Hussain who was also the son of deceased Usto Muhammad. The said deceased Usto Muhammad had a daughter by name Zulekha who predeceased him leaving behind one daughter Khatija and that the present, applicant No,1 is the husband and applicant No,2 is the son of this Mst.
3. Khatija. This deceased Usto Muhammad is said to have been a respectable man, of the community who used to maintain his grand-daughter Mst. Khatija (wife and mother of applicants); and that at the time of her marriage he had given quite a large dowry and also gifted a plot to her. This Usto Muhammad died on 3-7-1979 after a prolonged illness which he suffered since 1975 and during his illness all his affairs were being looked after by the present applicants and one Mst. Mariam, the widow of his deceased brother Ahmed. It is further the case of the Respondents that in the year 1972, the applicant No,1 got a power of attorney executed in his favour by the deceased Usto Muhammad for getting vacated from the tenants and getting the same declared dangerous, the building situate on Plot No,LY-8-57 in Lyari area which was owned by deceased Usto Muhammad. It is also stated by the Respondents in their plaint that the applicant No,1 then got a suit (No, 1320 of 1978) filed in the Court challenging the repairs being carried out by one of the tenants. The applicant No,1 is then alleged to have got a sale-deed registered in the name of his son,. The applicant No,2 secretly and by fraud, taking undue advantage of the sickness and old age of Usto Muhammad whereby the said building was transferred to applicant No,2. The Respondents contended that they came to know of this fact when they visited the office of City Deputy Collector and after serving notice on the applicants filed the suit. The grounds on which the relief is sought by the respondents are that on the date the sale-deed was registered, Usto Muhammad was so ill that he could .Not travel or walk, was senseless and a fictitious person was produced in his place.
4. The other grounds are that the value of the property shown in Schedule is, much, less, than its market value and that sale-deed is obtained by means of fraud and is without consideration. The applicants filed their written statements aenying all the allegations made in the plaint regarding alleged fraud. They contended that the said Mst. Khatij (wife and mother of applicants) had purchased a portion of Plot No,LY.8/31; and that it was not gifted to her as alleged. The applicants further alleged that the said sale-deed was executed by Usto Muhammad of his own free will for proper value and was not obtained by fraud. They also claimed that Usto Muhammad was quite normal and in his proper senses at that time. The applicants also took the plea that the suit .Was bad for non-joinder of Mst. Mariam and Mst. Khatija.
5. ' On the above pleadings of the parties the following issues were settled;
(1) Whether small portion of plot Survey No,21 Sheet LY-8 was given to the wife of the defendant No,1 (viz. Mst. Khatija by way of fight as alleged)?
(2) Whether the suit is bad in law for non-joiner of necessary party?
(3) Whether the Plaintiffs were entitled to collect the rent of the suit premises, if so, what is effect?
(4) Whether the cause of action arose to the plaintiffs as against the defendants?
(5) Whether the sale-deed of the suit plot was obtained by fraud or was obtained without consideration?
(6) To what relief, if any, the plaintiffs are entitled?
(7) What should the decree be? .
6. ' Applicant Muhammad Anwar was examined as Ext.1 and Ext.5 and he produced registered sale- deed as Ext.1/A. Thereafter, respondent Abdul Sattar was examined as 'Ext.2 he produced power of attorney and true copy of plaint in Suit No,1320 of 1978, legal notice, reply notice and counter- affidavit in Suit No,1320 of 197W as Exh.2/A to 2/E respectively. Respondents also examined P.Ws.
7. Moosa and Ibrahim Muhammad as Exts. 3 and 4 respectively and closed their side. Thereafter, Applicant Haji Noor Muhammad was examined as Exh. 6 and D.W. M. Akram as Ext. 7 and they closed their side. On this evidence the trial Court decreed the suit of the respondents taking all the issues together and finding them against the present applicants. Being aggrieved, the applicants filed the appeal which was also dismissed. Hence this Revision Application.
8. ' I have heard the learned counsel for the parties. At the very outset the counsel for applicants has pointed out that one Ghulam Muhammad Chishti was the attesting witness of the impugned sale- deed and that applicant had summoned this witness .To give evidence. However, the said witness sent an application for adjournment as he, being an M.NA. At the relevant time was busy with the Assembly session and could not attend the Court. The Advocate for applicants then moved an application for examination of this witness on commission. This application was opposed by the learned counsel for the respondents and was rejected by the trial Court: The learned counsel for the applicants has submitted that by this order the trial Court has shut off the applicants from bringing on record the evidence to support the sale-deed. He has further pointed out that an effort was again made by the applicants during the pendency of appeal when they moved an application under Order XLI, rule 27, C.P.C. For examining the said witness, who by that time ceased to be the M.NA. Even this application was opposed by the Advocate for respondents and was rejected. The above facts on the face of it show that the two Courts below have erred in not allowing the said prayer of the applicants. The circumstances show that it was not within the powers of the applicants to bring this witness to Court at Karachi and therefore the prayer to examine the witness on commission should have been allowed. The learned counsel for the respondents insisted that even on this material the present Revision Application be heard on merits as according to him the burden to prove fraud in execution of sale-deed was on the plaintiffs (Respondents); and that there is sufficient evidence on record to show that the fraud has been committed in the present case. I, therefore, proceeded to hear the case on merits.
9. ' The first contention of the learned counsel for respondent is that there is concurrent finding of fact given by the two Courts below and this Court, therefore, in exercise of revisional jurisdiction would not probe into facts. He has placed reliance on the case of Qutab Din v. Settlement and Rehabilitation Commission etc. 1982 SCM R 845. In this case their Lordships have held that the High.
10. Court in exercise of its limited Constitutional jurisdiction will not set aside the concurrent findings of Settlement Authorities. There is no denying this principle of law but there is an exception to this rule.
11. Revisional Court can interfere with or reverse the concurrent findings of fact if the same are based A on misreading of evidence or are perverse. Keeping this principle in view I proceeded to examine the merits of the case.
12. ' The learned counsel for the applicants has submitted that it is the respondents who have come to the Court seeking judgment in their favour on the allegations of fraud; and that in such circumstances the burden is on the respondents to prove the fraud which they are required to prove as any other fact. He has placed reliance on the case of Ahsan Ali and others v. District Judge and others PLD 1969 SC 167. In this case Hon'ble Supreme Court has held as under:-- "The burden of proving fraud, it must be remembered, is on the party alleging it and that too by clear and convincing evidence, particularly, whereas long period has expired and valuable rights have accrued to the other side."
13. ' Learned counsel for the applicants has also relied upon the case of Habib Bank Ltd. v. Mubarak Alam Syed and another 1987 CLC 1914. In this case a learned Single Judge of this Court has held:-- "The burden of proof of this issue was on the plaintiff. Section 60(2) of the Registration Act raises a presumption of execution of a document. The definition of word 'attested' according to section 3 of the Transfer of Property Act is as under:- 'Attested in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.'
14. ' According to this definition an attesting witness is a person who in the presence of the executant of the document puts his signature or mark on it after he has seen the executant or someone by executant's directions signed or affixed his mark on it. For the validity of an instrument attestation of two or more witnesses is necessary. Section 59 of the Transfer of Property Act requires that a mortgage bond should be attested by two witnesses. According to section 68 of the Evidence Act which is parallel to section 79 of Qanun-e-Shahadat, 1984 if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution."
15. ' The other case relied upon by the learned counsel is also from this Court being case of Bilawal and another v. Abdul Razzak 1987 CLC 1092 wherein Abdul Qadeer Chaudhry, J. (as his Lordship then was) held as under:-- "It has not been denied by the appellant that the sale-deed does not bear the signature of its executant. Once registration is proved and admitted presumption attaches to the genuineness of such document unless it is rebutted by convincing and cogent evidence. Learned counsel has relied upon the case of Gagamoyi Debi v. Troilockhya Nath Chowdhry and others Volume XXXIII, Indian Appeals Page 60. The additional facts which support the case of the respondent are: (1) the document was executed in 1956, (2) the vendor Ali Gohar had died somewhere in 1962, (3) the Manager has taken action in 1966. The suit was filed in 1967. The property of Ali Gohar was taken under the Act in 1958."
16. ' Reliance is also placed on the case of Muhammad Zaker Sukani v. Mostanser and others PLD 1961 Dacca 71 wherein it has been held:-- "In the present case it was the plaintiffs who asserted that the 'Solemma had been obtained by fraud. The onus of proving fraud was thus clearly on the plaintiffs and it was not the duty of the defendants to disprove the existence of the fraud or collusion in anticipaton of any case made out by the plaintiffs themselves. In this view of the matter, the learned subordinate Sudge was entirely wrong in taking the view that he took with regard to the Solenama Ex.D."
17. ' The respondents have examined himself and his witnesses Moosa and Ibrahim Muhammad in support of the grounds taken by him in plaint alleging that the deceased Usto Muhammad was so ill that he could not move about or travel; and that the value of the property in sale-deed is much less than the Market value. Respondent. Abdul Sattar in his examination-in-chief has stated that deceased Usto Muhammad was ill for 8 years till his death and his eyesight had gone weak. He has not specified the illness. He has not produced any medical certificate nor any prescription from an medical practitioner. On the contrary he states that during his lifetime,' he was taking rent from the tenants. This admission shows that the deceased was very much in his senses till last and could deal with tenants. P.W. Moosa is a witness hostile to the present applicants. He admits in his cross- examination that the applicant No,2 had filed ejectment proceedings against him; and that the Court had ordered his ejectment from the said building. However, he also states about illness of deceased Usto Muhammad saying that he suffered fracture in legs in 1975. Fracture in legs is not such an illness which will deprive a person of his senses or render him incapable of exercising his discretion. He also states that he used to pay rent to the deceased Usto Muhammad; and that deceased Usto Muhammad used to sign the rent receipts of the shops of Mosque of which he was trustee. This shows that the eye-sight of deceased Usto Muhammad was not weak and he could.
18. See. This contradicts the version of respondent Abdul Sattar. Evidence of P.W. Ibrahim is similar to that of P.W. Moosa. He has also not specified the illness of deceased but states that till his death Usto Muhammad used to collect the rent himself. None of these witnesses have stated as to what was the illness from which the deceased was suffering. On the contrary they all said that he has been receiving the rent from the tenants himself and signing the rent receipts which shows that he was quite in his senses, and his eye-sight was also such that he could sign the receipts. The best possible evidence about the illness could have been the medical evidence but no such evidence has been produced by the respondents. As against this, evidence of applicants and their witness is that Usto Muhammad was in good health at the time of execution of sale-deed. Applicant Muhammad Anwar says that he used to work with a contractor and before that he used to sell fish and the sale price was his own money. He states that deceased Usto Muhammad was ill for only 2/3 days before his death. He has also produced the copies of the judgments in Rent Cases as Exhs.5/A to 5/C which show that he had filed the cases for ejectment of tenants, including P.W.
19. Moosa, and the Rent Controller had ordered their ejectments. Registered sale-deed has also been produced which shows that the sale was made by Usto Muhammad himself and not through his Attorney, the applicant No,1, as alleged by the respondents. Applicant No,1 has also supported the evidence of Applicant No,2. The other witness examined by the applicant is Muhammad Akram Cheema. He has stated that he was engaged by both parties; and that deceased Usto Muhammad had put his signatures on the sale-deed and also the thumb-mark and some consideration was also paid to him. This had taken place before Sub-Registrar. This witness is an Advocate who got the document executed and registered. His evidence is not shattered in cross- examination. There is no reason to disbelieve him.
20. ' The other ground taken by the respondents is that the value of the property as shown in sale- deed is less than the market value. All the witnesses of respondents have said the value of the property would be Rs,80,000 to 90,000. None of these witnesses is shown to have any special knowledge about the value of the property. However, P.W. Moosa admits that the total area of plot is only 39 sq. Yds. Which is quite a sma ll area.
21. In view of the above discussion I am of the view that the respondents have failed to prove the fraud as alleged by them and both the Courts have misread the evidence on the record. However, lastly the learned counsel for the C respondents took a new plea that the applicant No,2 being a minor, could not be a party to a contract and could not purchase the suit property. This plea was not taken in the plaint and thus cannot be allowed to be taken at the revisional stage. Even otherwise the law provides that a minor can be a transferee. Under D section 11 of the Contract, Act a minor is not incapable of being a transferee. There is difference between being a contracting and transferee. Reliance may be placed to the case of Mst. Amanat v. Mahboob Hussain PLD 1959 (W.P.)
22. Karachi 362.
23. ' In view of above discussion, this Revision Application is accepted and the suit of respondents is dismissed. However, there will be no order as to costs.
24. ' Above are the reasons for the short order announced in Court on 25th August, 1992.