1. ORDER GUL ZARIN KIANI, J. - This civil revision from a concurring judgment ol learned District Judge, Hafizabad dated 6.12.1993 was by a defendant in the suit which gift of the land in dispute in his favour was set aside.
2. Relevant facts for decision of the revision petition are briefly these Mst. Kaneez Fatima owned 46 kanals,11 marlas of agricultural land at Mauza Nahrianwala of Tehsil Hafizabad. She was wedded to Ghulam Muhammad. She had no issue from him. On his death, she inherited 1 /4th share in his estate. Her share in it was the above piece of land. On demise of her first husband, she remarried his uncle Karim Bakhsh. From the marriage with him, two sons and a daughter were hoin to her.
3. Land in dispute was cultivated by her father namely Walayat. He was the defendant in the suit instituted by her against him. On the pretext of obtaining a power of attorney for proper management of her land and other ancillary matters, defendant manoeuvred the gift of the land by her in his favour. A deed tor it was K.L.R. r.C.
4. Executed and registered on 31.1.1981 at Hafizabad. Gift-deed was incorporated in revenue records by attestation of mutation No.479 on 19.2.1981 in favour of defendant. Thus, the defendant substituted his daughter in revenue records.
5. On 13.4.1985, Mst. Kaneez Fatima instituted a civil suit for cancellation of the registered gift deed on the score of fraud practised upon her by her father. She denied the gift of her land to him and pleaded that instead of obtaining a Mukhiar- Noifla as promised by him, he managed and manoeuvred the gift of her entire land in his favour. After some progress in the trial of the suit, on 6.6.1988, the plaintiff withdrew it with permission for its re-filing on the existing cause of action. On 17.9.1988, she re-instituted a fresh suit on the same cause of action for a similar relief against the defendant. He resisted it and defended gift of the lapd in his favour, it was averred that it was a voluntary donation of land his daughter in his favour. It was further averred that suit for cancellation of the gift deed was time- barred .
6. On 18.2.1990,the trial court framed the following issues for deterinination:-
(1) Whether the gift deed dated 31.1.1987 (correct date was 31.1.1981) is void, result of fraud and ineffective against the rights of the plaintiff?
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(2) Whether the suit is within time?
(3) Whether the plaintiff has no cause of action or locus standi to file this * suit?
(4) Whether the value of the suit for purposes of Court-fee and jurisdiction has been incorrectly assessed, if so, what is the eorrect valuation?
(5) Whether the suit is not maintainable in its present form?
(6) Whether the defendant is entitled to recover special cost?
(7) Relief.
8. After settlement of issues in the suit', it was adjourned for taking of evidence from the plaintiff. At a later stage of the trial,on the application filed by the plaintiff, the Court, vide its order dated 21.2.1991 shifted onus of proof of the transaction to the defendant and re-settled issue No. 1 in the following form:-
1. "Whether the plaintiff validly executed gift-deed dated 31.1.1987 (it should be 31.1.1981) in favour of the defendant?OPD"
9. Since the onus was divided, plaintiff opened her case first. She entered the witness box, as PW-1 and was supported by two more PWs. Namely Noor Muhammad and Safdar Ali. Plaintiff appeared once again in rebuttal as PW-4. Defence evidence consisted of testimony of defendant DW-1 and two witnesses, namely Fateh Muhammad and Abid Hussain. Fateh Muhammad DW. Was a Wajayat V. (Mst.) Kaneez Fatima (Gul Zarin Kiani, J) marginal witness to the gift-deed Exht.D2. He was related to the defendant. His daughter was married to his son. Therefore, he was in interested witness. DW-3 Abid Hussain was a deed-writer.
10. He had scribed the gift-deed Exht. D-2. He admitted that parties to it were not previously known to him. In addition to the parol evidence, eight documents marked Exht.D.I to Exht.D-8 were tendered in evidence on-behalf of the defendant. Reference to them, if necessary, shall be made at the appropriate place and time.
11. Upon review of the record, the trial Court found that voluntary and valid gift of the land in dispute was not proved to have been made by Mst. Kaneez Fatima to her father and the gift-deed was not a genuine document and the the suit instituted by her for setting aside of it was not barred by limitation. In appeal, the judgment by the trial Court was affirmed by learned Additional District Judge. Thereupon, this revision was instituted in this Court.
12. Two material points arise for decision in the civil revision. The first point was, whether the gift-deed was executed by Mst. Kaneez Fatima and was registered at her instance and the second point was; whether the civil suit instituted by the plaintiff for its cancellation was instituted in time prescribed in the Limitation Act, 1908. Courts below found both the points in favour of Mst. Kaneez Fatima. She was an old illiterate village woman. She had grown up sons from, her second husband. Latter was also then alive. She was not accompanied by her husband or son to Hafizabad. Her father held a fiduciary relationship to her. He was in a strong position to influence and dominate her mind. Gift- deed was scribed by a Waseeqa- Navees at Hafizabad. Mehdi Hassan son of Ahmad khan; Ali Akbaf son of Hayat Muhammad and Fateh Muhammad son of Sardar witnessed the execution of the gift-deed and signed and thumb marked it as its marginal witnesses. Mst. Kaneez Fatima and Walayat also thumb marked it. On the same day, gift-deed was presented for registration^ before the Sub-Registrar at Hafizabad at about two-three PM. Parties to the gift-deed wef identified before the Sub-Registrar by Mehdi Hassan and Ali Akbar. Endorsement on the gift-deed bear their signatures. Except for Fateh Muhammad who had thumb marked the gift-deed at the time of its execution before a deed-writer, other marginal witnesses and also the witnesses who had identified the parties before the Sub-Registrar did not appear at the trial to prove its voluntary execution and valid registration. No Lambardar from the parties village was associated with the execution and registration of the gift-deed. Mhedi Hassan Lambardar who was shown to have furnished identification was from a different village. Furthermore, no relation of the parties or an impartial person had joined the execution and registration of the gift-deed. As far Fateh Muhammad, he was a relation of the defendant and was interested in him. His testimony was imbued with clear interest. There was no explanation for withholding the production of marginal witnesses of the deed of gift and also the identifying witnesses from the Court. Omission gave rise to an adverse inference against the defendant that if they were produced, they would not have supported alleged donation of the land in dispute. There were two Lambardars of the Village. As said above, they were not taken in confidence. Mst. Kaneez Fatima denied the gift: She deposed that a fraud was practised upon her by her father. He wished to obtain a power of attorney from her for control and proper management of her land and for that purposes, she was taken to Hafizabad; instead of writing a power of attorney, a gift-deed was prepared and registered. She deposed that she was not cognizant of the contents of the gift deed, it was much later that fraud practised by defendant was discovered. Even after registration of the alleged gift-deed, the defendant paid her. Her sahre of produce from the land, The question, therefore, would be, whether Mst. Kaneez Fatima gave her land in gift to her father executed the deed and had it registered as alleged in defence. Onus to prove voluntary valuation of the deed of gift lay upon the defendant who was its beneficiary. In case of transactions by Pardanashin ladies and persons who were weak, ignorant and infirm, law had woven a special ring of protection around them. In Niir Muhammad v.
13. Mst. Karim Bibi (PLD 1959 (W.P) Lahore 932) it was observed that the rule relating to Pardahnashin woman is a rule by which the law gives protection to those who by presumption are not fully able to take care of their interests. Every illiterate woman, whether she Is Pardahnashin or not, could have this protection unless circumstances are brought on the record to show that she was of an exceptional character, well able to manage her affairs. When a person such as illiterate woman was in a fiduciary relation with another and the later was in a position of active confidence, the burden of proof of absence of undue influence was upon the person in the dominating position. He had to prove that there was'fair play in the transaction and the apparent was the real. Similar observations were made in Mst. Hawa v. Muhammad Yousaf and others (PLD 1969 Karachi 324).
14. Side note (c) of the Report runs as follows: "The judicial pronouncements have woven a cloak of protection for Pardanashin ladies, who because of their ignorance, inexperience of business matters and social conditions are not able to understanding the nature of business transactions.
15. The Privy Council defined a Pardanashin lady as a woman of rank living in seclusion but the law regarding Pardanashin ladies equally applies to illiterate and ignorant women. The question of fraud is quite separate from the doctrine that governs the transactions entered into by Pardanashin or illiterate women. This rule shall apply even if there, is nothing in the nature of coercion or deception in the transaction. The whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or Want of comprehension,'is in itself no real proof of a (rue understanding mind in the executant. The onus is always on the person who takes advantage of a transactiorf to show that the transaction was actually conceived and put into practice by the disposer herself. The party taking advantage must show to the Court that the deed was explained and understood by the executant and she adopted it with full knowledge and comprehension. The fact, whether independent advice was available to a Pardahnashin lady at the time when she entered into a transaction can be taken into consideration in order to determine whether she. Thoroughly comprehended and had deliberately of her on. Free will, carried out the transaction. If it is found that the document was conceived and executed by her free will, it shall be upheld notwithstanding the fact that the executant is a Pardanashin lady. The legal protection given to a Pardahnashin or an illiterate wom.r anno! Be transmuted into a legal disability. The protection that the Courts have nrnlt up for the Pardanashin and illiterate women, would apply in all cases, whether the lady is plaintiff or the defendant."In the instant case, the defendant failed to satisfactorily establish that his daughter had gifted her land to him voluntarilv and executed the gift deed for it. As observed elsewhere, Mst. Kaneez Fatima had two sons and daughter alive. Her second husband later did . She was now a widow. In presence of her on. Sons and'daughter, there was no sound reason for her to donate her entire estate to her father, it seemed an improbable and also unnatural transaction. From the statement in cross-examination of Fateh Muhammad DW-2, it appeared to be a case of sale of the land between the father and the daughter. However, the testimony of defendant made out a case of gift in return for services rendered by him to his daughter. On record, there was no proof of any services rendered by the defendant. Having regard to the totality of facts and circumstances of the present case, voluntary execution of gift-deed Exht.
16. D-2 by Mst. Kaneez Fatima in favour of her father was not established and the Courts below had rightly held it so. Having dealt with the question of voluntary execution of the gift-deed and found it in the negative, I shall advert to the second point relating to bar of limitation. It was urged for the petitioner that in terms of Article 91 of the Limitation Act, 1908, the suit for cancellation of the gift- deed was barred by limitation. As said above, the Courts below found the point of limitation against the defendant and held that the suit was filed in time. In my opinion, on the facts found, no question of limitation obviously arises. If I adopt the view that the deed shown to be actually executed by Mst. Kaneez Fatima was fundamentally different from the' deed she intended to execute and that she allegedly executed, it was void and inoperative. Therefore, Article 91 of the Schedule to the Limitation Act, 1908 had no application to a case of thiu description. Facts of the instant case went a step further. Herein, voluntary execution of the deed by Mst. Kaneez Fatima and its registration at her instance was not established at all. Therefore, it was a void instrument and Article 91 of the Schedule to the Limitation Act did not apply. In Ramehandra Jivaji Kanago and another v. Laxman Shrinivas Naik and another (AIR (32) 1945 Privy Council 54), it was held {hat "If a deed of gift is a void transaction, no question of cancelling, or setting it aside, would arise, but if it is only a voidable transaction, that is a transaction valid until rescinded, then the necessity to set it aside is obvious before possession of the property can be claimed". In Jiwana v.
17. Mst. Sahbi (PLD 1954 Lahore 253), it was found that "Article 91 of the Limitation Act does not apply to suits relating to instruments which are bad ab initio and such instruments may be treated as non- existent by a party without running any risk". In Malik Ata Ullah and another v. Malik Muhammad Akram Khan and others (PLD 1956 (W.P) Lahore 264), it was held that Article 91 of the Limitation Act applied only in the case of a voidable instrument and if the instrument was void, it did not apply. In Shamshad Ali Shah and others v. Syed Hassan Shah and others (PLD 1960 (W.P) Lahore 300), a similar view was expressed on application of Article 91 to the void instrument. The view taken in this case was approved by the Supreme Court in Shamshad Ali Shah and others v. Syed Hassan Shah and others (PLD 1964 S.C. 143). Dealing with the application of Article 91 of the Limitation Act to the facts of the case before them, their lordships of the Supreme Court observed: "There remains, the plea of limitation. The suit is said to be time-barred on two grounds, the first being that the gift deed not having been challenged within three years the suit was barred under Article 91 of the Limitation Act and the second that the plaintiffs have failed to prove dispossession within twelve years'and the suit is barred under Article 142.
18. Article 94 of the Limitation Act provides a limitation of three years for a suit "to cancel or set aside an instrument, not otherwise provided for" and the terminus a quo is the date "when the facts entitling the plaintiffs to have the instrument cancelled or set aside become known to himm". The suit with which we are dealing is a suit for possession of land but it cannot be doubted that if in order to get the relief of possession it be necessary for the plaintiffs to have an instrument set aside. Article 91 will be applicable. The criterion, however, for the application of Article 91 will be, whether the instrument is effective till it is set aside. If an instrument be such that it has produced legal effects but some person has the option to have it set aside so that it will be rendered without effect, a suit has to be filed for setting it aside and a suit for any other relief which relief cannot be granted, unless the instrument is set aside, will also be governed by Article 91. On the other hand, if the instrument has not produced any legal effect at all, it does not stand in need of being set aside and Article 91 will not be attracted by the mere facts that reliefs asked for cannot be granted unless the instrument is found to be ineffective or void. No person is bound to sue for a declaration that an instrument is void from its inception, though it should be explained here that a suit for cancellation of even a void instrument does lie. Between cancellation and setting aside, there is a distinction, though it is not always kept in view. An instrument that produces no effect does not stand in need of being set aside and the use of the expression setting aside is in appropriate in respect of a void instrument. Cancellation of an instrument has, however, a different meaning. According to Section 39 of the Specific Relief Act, a person may sue for cancellation of an instrument which is "void 'or voidable". The relief granted by the section is that the instrument will be "delivered up and cancelled". The reason why even in respect of void instruments a person is granted the relief of cancellation is, as appears from section 39 itself, that such instrument" if left outstanding may cause him serious injury". However, if in respect of a void instrument no suit for cancellation is brought within three years it does not acquire any validity and remains ineffective as before.
19. In the present case three attacks were made on the gift:
(i) that it was procured by fraud;
(ii) that it was made during death illness; and
(iii) that it was not completed by delivery of possession.
20. The effect of the finding on the question of delivery of possession is that there was never any completed gift and no title ever passed to the donee. In accordance with Muslim Law, a gift is complete only where possession is delivered. The Prophet has said: "A gift is not valid without seizin". As we are dealing with a case of Shias, it will be sufficient to refer Baillie's Imameea (P.207j where it is said: "If there has been any delay after the contract in giving possession of the gift but possession is at length given the transfer of property is to be decreed as having taken effect from the time of seizin not from the date of the contract". I have already quoted form Baillie"s Imameea the passage where it is said that "if the donor dies before delivering possession the gifted property will be a part of his inheritance". There is one point which has to be stressed in view of observations in certain judgments which were produced before us. Article 91 is not attracted just because the onus of proving that a deed is ineffective lies on the person who makes this allegation. If for instance, a deed of sale be alleged to be a forgery and in a suit brought by the person who is shown in the deed as the vendor against the purchaser for recovery of possession of property mentioned in the deed, onus of proving be east on the plaintiff because the deed has been registered, Article 91 will not become applicable has to prove that the deed is a forgery before he can succeed in the suit. A person who claims that a deed which purports to be executed by him is a forgery is not asking that the deed be set aside and is not bound to sue within three years.
21. Similarly, even in the case of a, gift deed which is old the Court may place onus of invalidity of the deed on the ground of want of delivery of possession on the person alleging invalidity, if it finds that the donee is at the time, when the suit is brought in possession of the gifted property. But this does not mean that the suit would'be governed by Article 91. The'sole criterion for the applicability of Article 91 is, whether the deed affects rights till some person entitled to have it set aside does so. If the deed as a matter of fact never affected rights, the need for its being set aside would never arise1'. Further, in case of Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 S.C. 624), the view expressed in case of Shamshad Ali Shah and others (Supra) was reiterated. In brief, it was observed that where the deed or instrument was ab initio, null and void, it could be treated as a nullity without having to be cancelled or set aside. Therefore, oh the facts found in the Courts below and affirmed here that Exh.D-2 was a void instrument procured in result of fraud. Article 91 of the Schedule to the Limitation Act, 1908 was inapplicable and the suit when instituted upon discovery of fraud was in time. In another context, it was observed in P.N. Films Ltd. And another v. Overseas Films Corporation Ltd.( AIR 1958 Bombay 10) that "Apart from that, the Limitation Act must always be construed strictly against the party who sets up the plea of limitation. The Limitation Act deprives a party of a valuable right and unless the provision in the Limitation Act was clear and beyond doubt, a benevolent construction, a construction favourable to the party whose valuable right is being taken away must always be given". I would, therefore, affirm the findings of the lower Courts and uphold their judgments.
22. For the above reasons, this" civil revision must be dismissed with costs. Original records shall be returned.