' This judgment shall dispose of the revision petition in hand and Revision Petition No,63 of 1989, as they arise from the same suit.
2. . The dispute between the parties relates to the genuineness or otherwise of a registered gift deed, dated 29-8-1975 on behalf of Mst. Badshahan respondent in favour of the petitioners in respect of land measuring 33 Kanals, 14 Marlas and 6-1/2 Sarsaees situate in Mouza Mardan. It arises in the following circumstances.
3. The suit land was originally owned by late Haji Abdul Ghafoor Khan who had two wives. From his first wife Mst. Mehtaba, who had predeceased him, he had two sons Abdul Sani and Fazal Malik and five daughters including Mst. Aziza Begum and from the second wife Mst. Badshahan he had eight daughters including Mst. Tasleema and Mst. Muslima and no male issue. During his lifetime he had transferred the suit property by means of a gift in favour of his second wife Mst. Badshahan.
Sometime thereafter, his son Abdul Sani brought a suit against him, Mst. Badshahan and their daughters Mst. Muslima and Mst. Tasleema on 3-5-1975 for a declaration to the effect that on the basis of a deed, dated 22-5-1974 he had become owner of an area measuring 28 Kanals, 8 Marlas out of the suit land. In the plaint the address of the defendants was shown as "Quarter Risalpur Chhowni, Tehsil Nowshera". On 10-5-1975 one Tasaddiq Hussain pressed into service a Special Power of Attorney on behalf of the defendants as also a compromise deed as a result of which the suit was decreed in favour of Abdul Sani by the learned Senior Civil Judge, Mardan. On getting an inkling of the decree Haji Abdul Ghafoor Khan, Mst. Badshahan and their daughters etc. Filed a suit against Abdul Sani and six others on 14-6-1975 for a declaration to the effect that the said decree dated 10-5-1975 was the outcome of fraud and collusion and ineffective against their rights. They also prayed for the grant of a perpetual injunction restraining Abdul Sani from a (sic) the subject- matter of the decree. The suit was contested by Abdul Sani as a result of which as many as ten issues were framed. However, during the pendency of the suit Haji Abdul Ghafoor died and his other daughters from Mst. Badshahan were impleaded as plaintiffs and his other issues from Mst.
Mehtaba as defendants. Of the added defendants Mst. Aziza Begum filed a written statement on 24-6-1980 wherein she supported the allegations made in the plaint in regard to the fraudulent nature of the consent decree dated 10-5-1975 but took the stance that Mst. Badshahan had made a gift of land measuring 32 Kanals, 18 Marlas and 5 Sarsais in her favour and in favour of Sultan Asad-ul-Mulk etc. Sons of her brother Fazle Malik, in equal shares on the basis of a registered gift deed, dated 29-8-1975. Mst. Badshahan in her replication vehemently refuted the allegation of gift and alleged that if at all there was a gift deed it was the outcome of fraud and forgery. Two additional issues were also framed in this respect. In due course the evidence of the defendants was closed by invoking the provisions of Order 17, rule 3, C.P.C. And the suit was decreed with costs in favour of Mst. Badshahan etc. On 11-1-1982. During the pendency of the suit that was decreed in her favour on 11-1-1982 Mst. Badshahan had filed another suit on 23-10-1975 against Sultan Asad Malik and Aziza Begum etc. For a declaration to the effect that she was the owner in possession of the suit land and the registered gift deed, dated 29-8-1975 in favour of defendants Nos.1 to 4 being forged and fictitious was ineffective against her rights. It was alleged in the plaint that the plaintiff was an illiterate Pardanashin lady and her step-sons, with whom her relations were strained, had left no stone unturned to grab her property and now they had forged a gift deed and got it registered in a clandestine manner without her knowledge. The suit was strenuously resisted by the donees as well as Fazle Malik on several legal and factual pleas. Their mainstay was that Mst.
Badshahan was neither an illiterate nor a Pardanashin woman and had executed and got registered the gift deed in question in favour of the donees of her own free will and accord and delivered the possession of the suit property also to the donees.
4. The parties were put to trial on the following issues:--
(1) Whether the plaintiff is an owner in possession of the suit land and its alienation by registered deed dated 29-8-1975 is forged, fictitious, unlawful and ineffective upon the rights of the plaintiff and defendants Nos.1 to 4 cannot acquire any title through the said deed?
(2) Whether the plaintiff is entitled to the joint possession of the suit property?
(3) Whether the plaintiff has got a cause of action?
(4) Whether the suit is not competent in its present form?
(5) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction?
(6) Whether the property in the deed, dated 27-8-1975 does not coincide with the suit land in area, if so, to what effect?
(7) Whether the site plan of superstructure over the suit land has not been enclosed with the plaint, if so, to what effect?
(8) Whether the suit is bad for the non-joinder of necessary parties?
(9) Whether the plaintiff is estopped to bring the present suit?
(10) Relief.
ADDITIONAL ISSUES:
(1) Whether the plaintiff is not illiterate and the gift deed is registered one, if so, its effect?
(2) Whether the plaintiff has delivered the possession of the suit property to the donees willingly, if so, its effect?
(3) Whether suit with regard to decree in Suit No,242/1, dated 10-5-1975 is pending between the plaintiff and defendant No,6, if so, its effect?
5. The suit was dismissed by the learned Senior Civil Judge, Mardan on 4-1-1988 but the appeal preferred by Mst. Badshahan was accepted by the learned Additional District Judge, Mardan on 12- 2-1989. Feeling aggrieved Sultan Asad Malik etc. Donees through their father Fazle Malak have filed the revision petition in hand and Mst. Aziza Begum has filed Revision Petition No,63 oT 1989.
6. The learned counsel for the petitioners impetuously criticised the judgment of the learned appellate Court as also the claim of Mst. Badshahan but before adverting to the contentions raised by them I deem it necessary to highlight three surrounding circumstances which are to be kept in view while evaluating the rival claims and evidence of the parties. The first circumstance is that prior to the appearance of the registered gift deed in question on the scene Abdul Sani, step-son of Mst. Badshahan, had got the suit land transferred in his favour through a spurious consent decree, dated 10-5-1975 which was challenged by Mst. Badshahan on the ground of fraud and while the parties were locked in litigation the gift deed in questions came into picture as a result of which the suit giving rise to these revision petitions was filed by her. The next circumstance is that the suit filed by Mst. Badshahan for setting aside the said consent decree was decreed in her favour on 11- 1-1982, therefore, on 29-8-1975 when the gift deed in question was allegedly executed by her the consent decree in favour of Abdul Sani was in the field and she had no alienable right in the suit property. The third circumstance is that besides the suit property, which is indeed valuable, Mst.
Badshahan does not own any other property. She has got eight daughters and her relations with her step-sons and daughters are strained, therefore, it does (not) appeal to reason that she had parted with the suit property of her own free will and accord.
7. At the outset it was contended by the learned counsel for the petitioners that the plaint was silent about the previous litigation between the parties and as such the learned appellate Court had fallen in error by requisitioning the record of the previous suits, treating the same as part of the present suit and referring to it in the judgment. Reliance was placed on PLD 1972 Kar. 433 wherein such a practice has been deprecated. The contention has no force and the cited authority does not apply to the facts of this case. The plaint is not altogether silent about the previous litigation between the parties as it is clearly mentioned therein that the defendants had used multifarious tactics to grab the plaintiffs property. The record of this case is self-contained as certified copies of the relevant material from earlier suits were placed on record by the plaintiff herself as well as her Special Attorney Kishwar Khan P.W.3 with permission of the trial Court granted on 28-11-1982. The petitioners had not raised any objection in this context. As a matter of fact the petitioners had themselves brought on record certified copies of the plaint in Suit No,321/1 of 1975, Exh.P.W.3/D1, and the power-of-attorney of the learned counsel of Mst. Badshahan, Exh.PW/D2, during the cross- examination of Mst. Badshahan in order to prove that she was not illiterate as she had signed these documents.
8. It was next contended that Mst. Badshahan was neither an illiterate nor a Pardanashin woman as she had singed the plaint and the power-ofattorney of her counsel in the previous suit and had also admitted in her statement recorded by the trial Court on 19-3-1980 that she was an educated woman and that she was not living in seclusion as she had appeared in the Courts several times and was personally managing her property. The contention can prevail only to this extent that Mst.
Badshahan is not an illiterate woman in true sense of the word as she has studied up to Middle Standard as stated by her step-son Fazle Malik (P.W.3). However, there is no substance in the contention that she is not a Pardanashin woman. She is indubitably a Muslim housewife with no male issue and being a victim of circumstances and craft of her step-sons she had come out of seclusion to seek the assistance of Courts. Mere fact that she appeared in the Courts a couple of times is not enough to lead to the conclusion that she is not a Pardanashin woman particularly when Abdul Sani while examining himself in the trial Court as D.W.1 has stated that "he had arranged Parda where Mst. Badshahan was sitting".
9. It was next contended that before executing the registered gift deed Mst. Badshahan had made an oral gift of the suit property in favour of the petitioners. The contention is devoid of force for the short reason that there is no tangible proof on record to prove the oral gift. No independent witness has come forward to prove the offer and acceptance and the evidence furnished by the interested witnesses namely Abdul Sani and Fazle Malik is discrepant in that Abdul Sani (D.W.1) stated that at the time of oral gift he, Aziza Begum and Abdul Qadir were present but Fazle Malik struck a discordant note by stating that at the time of offer regarding the gift of the property in dispute only he and Mst. Badshahan were present in the latter's house and none else. The statement of Abdul Qadir being similar to the statement of Abdul Sani is also a variance with the statement of Fazal Malik. As a matter of fact the plea of oral gift is not at all available to the petitioners as they had not raised it in their written statements.
10. It was next contended that the findings of the learned appellate Court on the additional Issue No,3 that the claim of Mst. Aziza Begum petitioner was hit by the principle of res judicata were not sustainable as the matter in issue in this suit was not directly and substantially in issue in the previous suit and Mst. Aziza Begum, whose statement was recorded by a Statement Commissioner, was not confronted with the written statement allegedly filed by her in the previous suit which was decreed in favour of Mst. Badshahan. Reliance was placed on PLD 1972 SC 25 wherein it has been observed that a written statement cannot be an exhibit in a case without the person who filed the same being examined in the Court. This contention has substance as Mst. Aziza Begum was not confronted with her written statement filed in the previous suit and although two additional issues were framed in the previous suit in regard to the gift deed in question yet the matter in issue in this suit was not directly and substantially in issue in the previous suit as in the previous suit the cause of action was different and Mst. Badshahan had essentially assailed the consent decree obtained by Abdul Bari and for that very reason she had filed the present suit wherein she had questioned the gift deed in favour of Mst. Aziza Begum and Sultan Asad Malik etc. The findings of the learned trial Court on Issue No,3 are, therefore, restored.
11. It was lastly contended that the petitioners had produced sufficient evidence to prove the execution of the registered gifted deed dated 29-8-1975 which had been duly signed by Mst.
Badshahan but she had neither given the particulars of fraud in the plaint nor had proved by positive evidence that the gift deed was forged and fictitious. Reliance was placed on 1986 SCMR
306. The contention has no substance at all and the authority cited by the learned counsel does not apply to the facts of this case as the so-called donor in this case is a Pardanashin lady. The reasons are not far to seek. The scribe of the gift deed in question was not examined by the petitioners but it is abundantly clear from their evidence that the deed was not scribed at the instance of Mst. Badshahan as she was not present at that time. The deed was attested by Noor Muhammad Khan, brother-in-law of Abdul Sani, and Abdul Qadir of whom only Abdul Qadir (D.W.2) was examined by the petitioners who being the first cousin of Abdul Sani, step-son of Mst.
Badshahan, is a highly interestec witness. In his examination-in-chief he stated in most unequivocal words that the deed had been scribed at the instance of Mst. Badshahan and after it had been scribed it was read over to her and admitting its contents to be correct she had signed it but in his cross-examination he stated that he had not signed the deed at the time of its execution as Mst. Badshahan was not present at that time. This somersault by itself is sufficient for discarding his testimony. He claimed to be a relative and confidant of Mst. Badshahan and had allegedly identified her also before the Sub-Registrar alongwith Abdul Sani but surprisingly he did not take the deed to the house of Mst. Badshahan for obtaining her signature. He also did not deem it necessary to request the Sub-Registrar to register the deed in the house of Mst. Badshahan. The most intriguing feature of this case is that the gift deed was registered by the Sub-Registrar in the house of one Ghulam Muhammad who is father-in-law of Abdul Sani. As mentioned earlier during those days Mst. Badshahan and Abdul Sani were locked in litigation, therefore, it does not appeal to reason that she was on visiting terms with father-in-law of Abdul Sani and had gone to his house to deprive herself and her children of valuable property. In this background there is no escape from the conclusion that the gift deed is a forged and fictitious document and is the work of Abdul Sani who having realised the weakness of his earlier crude attempt to grab the property of Mst.
Badshahan had replaced it by a sophisticated one. Mst. Badshahan being a Pardanashin woman is entitled to the protection envisaged by PLD 1991 SC 1140 and PLD 1954 Pesh. 39 and even if it is presumed that she had signed the gift deed in question the petitioners cannot draw any premium from it as they have singularly failed to bring on record evidence to the effect that at the crucial time independent advice was available to her. There is also no positive, reliable and confidence inspiring evidence available on record to suggest muchless prove that the possession of the property in dispute was delivered to the so-called donees.
12. The learned appellate Court has decided the case on correct premises and the impugned judgment and decree does not suffer from any illegality, irregularity, non-reading or misreading of evidence so as to warrant interference.
' In the result both the revision petitions are dismissed with costs.