The disputed property comprising an area of 100 Kanals and 10 Marlas of land situated in Chak No.50/EB, Tehsil Arifwala, District Pakpattan Sharif (fully described in the plaint) was initially owned by Inayat son of Mahtab. He is said to have transferred the same in favour of his wife. Mst. Fatima and his sons Muhammad Hussain and Atta Muhammad petitioners-- defendants evidenced through registered gift deed entered at Serial No.1158 dated 28-11-1988 in the Register maintained by the Sub-Registrar. On the basis of the said registered document Mutation No.590 dated 12-12- 1988 was sanctioned in the names of petitioners Nos.1 to 3/defendants Nos.1 to 3. Thereafter Mst.
Fatima petitioner/defendant No.1 is said to have alienated the land falling to her share in the name of her daughter Mst. Hameed Bibi petitioner No.4/defendant No.4. Mst. Rasheedan Bibi respondent- plaintiff is also the daughter of the aforesaid Inayat. Afterwards Inayat donor died on 1-1-1989. She contacted the concerned Patwari for mutation of inheritance who intimated her about the alleged gift and the mutations mentioned above. Since Mst. Rasheedan Bibi respondent-plaintiff has been eclipsed from the inheritance, she instituted a suit to obtain a declaration to the effect that she is an owner in possession of 7/48 share in the suit property being the legal heirs of her father, that gift deed dated 28-11-1988 was false and fictitious and that the subsequent Mutation No.590 dated 12- 12-1988 and No.593 dated 10-1-1989 are against facts, illegal and void. She averred that her father Inayat was seriously ill and that on account of his ailment was not mentally fit to get registered the gift deed who even did not appear before the Sub-Registrar. She maintained that the impugned `Tamleek' (gift) was without consideration and undue benefit had been obtained by the defendants-petitioners due to the half --senses of her father and? That same had been done to deprive her of her share in the inheritance. She prayed for the issuance of perpetual injunction getting the defendants-petitioners restrained from alienating the suit property in any form to any other person.
2. The suit was resisted by the petitioners-defendants who submitted their joint written statement wherein they pleaded that during his lifetime as a healthy person Inayat deceased had voluntarily donated the suit land to them and that defendant No. 1 Mst. Fatima afterwards transferred her share in favour of her daughter Mst. Hameed Bibi defendant No.4.
3. Following issues were framed for determination by the trial Court:--- ISSUE:
(1) Whether the alleged gift deed No.1158/1 dated 28-11-1988 and Mutation No590 was executed by Inayat deceased with his free consent and no fraud was committed regarding the said transaction by defendants Nos.1 to 3? OPD
(2) Whether Inayat deceased neither appeared before the Registrar nor executed the alleged registered gift deed No.1158/1 dated 28-11-1988 with his free consent and alleged registered deed and Mutations NoS90 are outcome of fraud, void and being so is ineffective against the rights of the plaintiff? OPP.
(3) Whether the plaintiff is entitled to a decree for declaration as prayed for? OPP
(4) Relief.
4. The parties produced their evidence oral as well as documentary. Mst. Rasheedan Bibi plaintiff P.W. 1, Muhammad Siddique Chowkidar P.W.2 and Allah Bakhsh Lumbardar of Chak No.50/EB (P.W.3) appeared in support of the case of the plaintiff. She adduced in evidence Exh.Pl, copy of impugned `Tamleek Nama'; Exh-P2, copy of impugned Mutation No.590 dated 12-12-1988; Exh.P3, copy of Mutation No.587 rejected on 27-9-1988 as the fact of `Tamleek' mentioned therein was denied by Inayat on that date; Exh.P4, copy of impugned Mutation No.593 dated 10-1-1989; Exh.P5, copy of Jamabandi for the year 1985-86; Exh.P6, copy of death entry pertaining to Inayat; Exh.P7, copy of power of attorney issued by Mst. Rasheedan Bibi; Exh.P8, copy of entry No.11 from Daily Diary of Patwari; Exh.P9, copy of F.I.R. No.461/81; Exh.P10, copy of F.I.R. No.24/88; Exh.P11, copy of report dated 16-11-1989 and Exh.P12, copy of report of Tehsildar dated 18-10-1989. In rebuttal Mst. Fatima Bibi defendant D.W.1, Bashir Ahmad D.W.2, Muhammad Hussain defendant D.W.3 figured in the witness- box in support of their assertion. They produced Exh.D1, `Tamleek Nama' and Exh.D-2, copy of Jamabandi.
5. After hearing the parties learned trial Court decreed the suit with the reasoning that the disputed gift deed was scribed/executed on 29-11-1988 while it was shown to have been registered on 28-11- 1988 which fact is enough to make the same a forged and fictitious document; that the previous mutation of gift was entered which was rejected on 27-9-1989 as the alleged donor Inayat did not own/agree to the same; that the scribe and the marginal witnesses of the gift deed have not been produced and that Mst. Rasheedan Bibi plaintiff could not be eclipsed from inheritance. An appeal was preferred by the petitioners-defendants which was dismissed by the District Judge. Hence this revision petition.
6. I have heard the learned counsel for the parties and gone through the record before me. At the very outset learned counsel for the petitioners-- defendants laid the emphasis that no issue regarding the ailment of Inayat before the execution and registration of impugned gift deed has been framed by the trial Court and on this ground the suit is liable to be remanded for recording the evidence in the matter. The parties have already spent sufficient time in litigation. Further an important aspect of the matter is that this assertion was raised by Mst. Rasheedan Bibi respondent-plaintiff and she is not desirous for the reopening of the matter on this point. As such I do not give the weight to this assertion and brush aside the same.
6-A. Learned counsel for the petitioners-defendants laid the emphasis that the views expressed by the lower Courts with respect to the non-production of the scribe of the gift deed and the marginal witnesses would not adversely affect the strength of the stand of the petitioners. In this regard, as expressed by the learned counsel for the respondent plaintiff, suffice it to refer to section 79 of Qanoon-e-Shahadat, 1984 according to which if a document is required by law to be attested it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence. No evidence has been produced by the petitioners-defendants that the scribe or the attesting witnesses were not alive and the presumption would be that they are alive. The original gift deed and its copy have been admitted in evidence, but that would not prove the execution of the document by Inayat on 29-11-1988 who expired on 1-1-1989. The legal requirement contained under section 79 of the Qanoon-e-Shahadat, 1984 cannot be ignored as desired by the learned counsel for the petitioners --defendants especially when there is no explanation for the said failure on their A part to produce any of the said concerned witnesses. I do not agree with the learned counsel for the petitioners who canvassed before me that it may be that due to slip of pen the date of 29-11-1988 about the execution of the document and the date of 28-11-1988 regarding the registration of the document were entered. This anomaly could be resolved by the scribe of the document Exh.D-1 who could produce the relevant Register to settle the same. This failure on the part of the petitioners- defendants has constrained me to draw an adverse presumption against them. Another salient feature of the matter is that mutation of gift bearing No. 587 was allegedly got entered by Inayat about transfer of property through gift to petitioners Nos.1-13/defendants Nos.1 to 3 but the same was rejected on 27-9-1987 as Inayat did not own the same. Thereafter the date of registration of the gift e deed being 28-11-1988 a lurking suspicion has arisen in my mind about the bona fides of gift deed dated 28-11-1988. There is nothing on record to establish that the Mutation No.587 rejected on 27-9-1987 was got entered or got rejected by Mst. Rasheedan Bibi respondent-plaintiff.
This circumstance has also falsified the averment of the defendants-petitioners that the impugned `Tamleek Nama' attested on 28-11-19$9 is correct and operative.
7. As a last resort it was argued that Mst. Rasheedan Bibi eloped with one Hidayat with whom her father Inayat was not happy and to disinherit her `Tamleek Nama' was got registered on 28-11-1988.
No doubt there is a suggestion put to Mst. Rasheedan Bibi plaintiff when she figured in the witness- box that she eloped with one Hidayat. However, she has denied the said fact and that is enough for the purpose of her exoneration in the matter. I am tempted to express that in the written statement this fact of alleged elopement of Mst. Rasheedan Bibi with Hidayat is not mentioned. However, it is incorporated that she is disobedient and that of wrong character. The copies of the F.I.R. Have been adduced in evidence by the respondent-plaintiff to make out that some criminal litigation remained pending between the parties. The reporting of the criminal dispute to the police shall not be helpful to the petitioners-defendants to disinherit her. The elopement of Mst. Rasheedan with Hidayat as alleged during the cross-examination and denied by Mst. Rasheedan is a fact which must be ignored. I am tempted to observe that the learned Advocates should avoid putting such questions after the enforcement of the Offence of Qazf (Enforcement of Hadd) Order, 1979 in our Islamic State. Even if Mst. Rasheedan Bibi became disobedient and due to that criminal litigation stood initiated she cannot be deprived of her legal right of inheritance. I agree with her learned Advocate who has laid the emphasis onthis point.
8. The only irresistible conclusion which could be drawn from the aforesaid state of affairs and the discussion would be that the judgments and decrees of the lower Courts are unexceptional. There is no material irregularity therein. I, therefore, sustain the same.
9. For what has been said above, I dismiss this revision petition. The parties are closely related and to initiate the cordial relations between them, I leave them to bear their own costs.