1. Only point requiring determination in the Civil Revision was, whether Ghulam Sabir made a voluntary gift of his land measuring 200 Kanals, situated at Mauza Rashidpur of Tehsil and district Jhang to Hidayat son of Pehlwan 1/2 share, Hakim A.I, Allah Ditta and Baig sons of Muhammad, the other half, in equal shares, vide a registered deed on 26-5-1973.Hulam Sabir owned 366 Kanals, 7 Marlas of agricultural land in revenue estate Rashidpur. It was cultivable land. Its classification was nul--chahi. A working tubewell was installed on it, and, residential houses also existed on it. In addition to the above land and, its accessories, Ghulam Sabir also owned land and other property at Layyah. He had only one son, namely, Muhammad Mazhar A.I. His son was married to his real niece i.e. Sister's daughter. In the year 1972, the son left for Karachi, and, the father was left behind By a gift-deed executed and registered at Jhang, on 26-5-1973, Ghulam Sabir gifted above 200 Kanals of land with tubewell, residential houses and a Ahata to the aforesaid four donees in proportion given above. Donees were not related to him. They were previously cultivating his land since the year 1956 and were shown to look after him, in absence of his son from the village. The gift--deed recited that the proposed donees improved upon the land and served him well. In recognition, of these factors, he donated his 200 Kanals of land to them.
2. There was no record of mutation of names in accordance with the gift-deed in the revenue papers.
3. On 14-11-1981, Ghulam Sabir himself instituted a civil suit against Hidayat and three others for cancellation of registered gift-deed. It was averred that he was duped by them in so far as, that he merely wished to execute a lease--deed of his land to them but they cleverly managed a gift- deed of his valuable land in their favour. The gift was sought to be annulled on the ground of fraud perpetrated upon him by them. He described himself as an old person. The gift--deed assessed the value of the gifted land at Rs.37,500. It was scribed by Muhammad Amir, Waseeqa Navees, Jhang Saddar and, attested by two marginal witnesses, namely, Abdul Hameed son of Abdul Latif, case Sheikh Ansari of Jhang Saddar and Masood Ahmad son of Ch. Muhammad Ashraf of Muhallah Belianwala Jhang Saddar. Both the witnesses had signed the gift-deed. Ghulam Sabir appended his signatures in English at the bottom of the gift-deed. The deed was presented for registration before the Joint Registrar, Jhang on the day of its execution. Ghulam Sabir and Hakim A.I, one of the donees, were shown present before the Joint Registrar. Ch. Muhammad Rafiq Naseem, Advocate identified them to the Joint-Registrar. Below the endorsemnet of the Joint- Registrar, Ghulam Sabir put his thumb impressions at two places. It was significant to observe that none from village Rashidpur including a Lambardar of the revenue estate was made to join and witness the execution or registration of the gift-deed by Ghulam Sbair.
4. Defendants submitted a joint written statement, wherein allegations in the plaint regarding invalidity of the gift-deed and fraud respecting it were traversed. It was submitted that plaintiff had no cause of action; suit was barred by limitation; plaintiff was estopped to file this suit; plaintiff being out of possession of the land, form of the suit was defective; suit was barred by laches. On merits, it was asserted that the gift was made for services rendered to the donor; it was a voluntary disposition and was free from any fraud.
5. On 3-3-1982, the trial Court framed necessary issues in the vernacular. These were correctly reproduced in the judgments of the lower Courts and need not be repeated for avoidance of burdening the judgment by this Court.
6. After settlement of issues, learned counsel for the plaintiff tendered copy of an extract from Jamabandi for the year 1973-74 Exh.P.I; copy of the gift-deed Exh.P.2 and closed affirmative evidence on 3-7-1984, except for the statement of the plaintiff to be recorded, in affirmative as well as in rebuttal, after the close of the defendants' evidence. Right to adduce rebuttal evidence on the issues, which the defendants were required to prove, was also reserved. Thereupon, the defendants entered upon their defence. They gave evidence of two D.Ws. And one of them, namely, Hidayat appeared as D.W.3 to record his own statement. D. W.1 was Muhammad Amir, Waseeqa Navees, District Katchery, Jhang. He deposed that he was acquainted with Ghulam Sabir and had scribed the gift-deed on 26-5-1973 Exh.D.I - at his instance. In cross--examination, the witness deposed that he was an employee in teshil office and Ghulam Sabir used to visit him in the matter of allotment of land. However, he frankly admitted that marginal witnesses to the deed of gift were not known to him and that he had not appeared at the registration of the gift-deed. Waryam D.W.2 deposed that Ghulam Sabir lived with the defendants for about 30 years; his two squares of land was uncultivable and was made culturable by the defendants. He further deposed that son of Ghulam Sabir had left him. The witness conceded that the defendants cultivated the land of Ghulam Sabir as his tenants. D.W.2 belonged to a different village, which was situated at a distance of one mile from village Rashidpur. Hidayat D.W.3 gave evidence that 1-3/4 squares of land was allotted to Ghulam Sabir in Mauza Rashidpur. The allotted land was uncultivable; it was made cultivable by them; Ghulam Sabir lived with them; they looked after him and he gifted his land to them. Allegation of fraud was denied by him. In cross-examination, the witness admitted that the donor had a son and a grand-son but expressed his ignorance about whereabouts or Ghulam Sabir's son. The witness further admitted that Ghulam Sabir was about 60/70/80 years old and the land held by him was being cultivated by them for the past 30/35 years. The witness admitted that he did not know the names of marginal witnesses to the gift-deed. In rebuttal, apart from the son of deceased Ghulam Sabir, two more witnesses, namely, Moeen-ud-Din and Baig, P.Ws.I and 2, gave evidence. P.W.1 was a Lambardar of village Rashidpur. He deposed that the defendants cultivated the land in dispute as tenants. Similar was the testimony of P.W.2, P.W.3, namely, Muhammad Mazhar A.I deposed that the defendants cultivated the land of his father measuring 366 Kanals, 7 Marlas as non-occupancy tenants and paid him the rent. Gift by Ghulam Sabir to the defendants was denied by him. However, in cross-examination, he admitted signatures of his father on EXh.D.I, at point Exh.D.l/A, but added that his signatures were obtained by practising fraud upon him. This was the entire evidence led by the parties on either side. Defendants concluded their evidence on 14-11-1984, and, the plaintiff finally concluded his evidence, on 8-3-1987. In between the above two dates, the plaintiff had applied for additional evidence. It was asserted that necessary evidence to prove invalidity of the gift-deed could not be put in and, the market value of the gifted land was about rupees eight to ten lacs. Defendants resisted the application for taking additional evidence. On 24-3-1986, the trial Court rejected the application for additional evidence.
7. A revision filed from the order was dismissed in limine, on 20-5-1986 by Additional District Judge, Jhang.
8. Upon review of the material on record, the trial Court found that Ghulam Sabir have voluntarily executed gift-deed in favour of defendants and delivered possession of the suit property to them under the gift. He had, therefore, no cause of action to bring the present suit; issues Nos.2 and 5 were not pressed during the arguments and were decided in the negative. Under issue No.3, it was held that since the gift of the land in dispute was provided, the plaintiff was estopped to bring the suit. Issues Nos.4 and 6 were found in the light of finding on issue No. 1. In consequence, the suit was dismissed on 30-6-1987 by the trial Court.
9. Legal representative of the original deceased plaintiff, namely, Muhammad Mazhar A.I preferred an appeal from the judgment and decree of the trial Court in the Court of learned District Judge, Jhang. Appeal was marked to and heard by learned Additional District Judge, who reversed the judgment and decree of the trial Court and decree the suit in favour of the respondent. It was in this background that the question regarding'voluntary execution of the gift--deed and its validity comes up for consideration in revision by this Court.
10. Donor- denied execution of the gift-deed and pleaded fraud upon him. Necessary facts for it were enumerated in the plaint. Before he could give his evidence, he died and was substituted by his son to prosecute the claim put forth by him. Therefore, he could not be called upon to prove execution of the deed. The burden of proving execution of the gift-deed fell on the defendants who claimed a large tract of valuable land on its basis. Execution in the real sense of the terms being denied, the defendants who were beneficiaries of the gift were obliged to prove its execution beyond all suspicion. Apart from a Waseeqa Navees, neither the marginal witnesses to the gift-deed, nor, the identifier before the Joint Registrar came forward to give evidence to establish voluntary execution of gift-deed by Ghulam Sabir in favour of defendants. As said above, there were two marginal witnesses to thb deed of gift, namely, Abdul Hamid and Masood Ahmad,. They did not appear before the Joint-Registrar at the time of registration of the gift-deed. Instead, an Advocate was introduced to furnish the identification of the donor and Hakim A.I, one of the donees. The Advocate also did not enter the witness-box to lend authenticity to his presence before the Joint-Registrar to prove his act of identification of Ghulam Saber and Hakim A.I. Therefore, it was a serious question for consideration, whether the Advocate knew of the parties or any of them before he allegedly appeared on the scene to identify them. Withholding of necessary evidence, like the evidence of marginal witnesses and the identifier raised serious adverse inference against the defendants.
11. Furthermore Hakim A.I who was shown to be present at the time of registration of the gift-deed also did not step in the witness box to give evidence about the mode and manner of execution and registration of the gift---deed. Surprisingly, only Hidayat came forward. His presence was no- where marked on the gift-deed. There was no evidence that he was present, either at occasion of execution or registration of the gift-deed. Rule of best available evidence was violated in the case.
12. Better evidence was withheld and weak evidence was substituted for it. There was no reason forthcoming on record for withholding better and reliable evidence which was readily avoidable in this case. I have a doubt about the reliability of the testimony of Waseeqa Navees and his previous acquaintance with Ghulam Sabir. He did not produce his register in evidence. It would have given some credence to his testimony. Stamp-vendor was also not produced. None from the village Rashidpur accompanied Ghulam Sabir to District Headquarters at Jhang. If the donor was really a willing and consenting party to the gift, there was no need to observe secrecy about it. Admission of signature of Ghulam Sabir on Exh.D.At point Exh.D.I/A by his son was not equivalent to an admission of voluntary executions of the gift-deed by him. Ghulam Sabir pleaded fraud upon him.
13. In case of fraud touching the genuineness and voluntary execution of gift-deed, the donees were obliged to produce all the available relevant evidence to dispel possible suspicions and doubts surrounding it. No effort was made to identify the thumb--impression of Ghulam Sabir affixed beneath the endorsement on Exh.D.I by the Joint Registrar. In face of denial of execution of the gift- deed and pleading of fraud regarding it, presumption attaching to the endorsement recorded under section 60 of the Registration Act, 1908 did not dispense with the production of necessary evidence for proving genuine execution of Exh.D/1 by Ghulam Sabir. Gift-deed partained to a large valuable culturable land. It was comprised in the non-occupancy tenancy of the defendants for the past several decades. Revenue Record relating to the land prior to 1973-74 were not put in evidence to show its previous nature and classification. This piece of evidence would have greatly assisted the plea of alleged improvement of the land raised by the defendants for proving a motive for its gift. Further, it was neither the case of the petitioner nor was it in their evidence that the residential house on the land were constructed by them or that the tubewell on it was installed by them. In absence of clear evidence adduced on this point, presumption would be that those items were laid by the owner of the land. Also, there was no credible evidence to support rendering of services by the defendants to the donor. He was owner of considerable landed property and thus appeared to be a well to do person. As non-occupancy tenants of a large tract of cultivable land owned by the donor, thedefendants must have shared its usufructs with him. Also, there was no plausible I motive for gifting a big chunk of agricultural land by him to the total strangers. Except for a recital in the gift-deed, there was no reliable evidence that Ghulam Sabir was unhappy with his only son. The recital in the deed may have been inserted to serve a prop for donation of valuable land. In the ordinary circumstances, the gift appeared to be an unnatural event.
14. Compelling circumstances and events aside, of which there was no evidence in this case, the father was not expected to deprive his only son of his patrimony. In my opinion, it appeared that the old man fell a prey to the greed of the petitioners who playing upon his loneliness rid him of his valuable land for a throw away consideration. The circumstances that he himself brought a suit for nullification of the gift-deed was not insignificant. His death did not spare him a chance to unfold the events about execution and registration of the gift-deed.
15. Syed Jamshed A.I, Advocate, learned counsel for the petitioners strenuously contended that onus to prove fraud and non-execution of the gift--deed lay upon the plaintiff-donor or his successor and the endorsement on the gift-deed by the Joint Registrar was a sufficient proof of its execution and registration. He referred to section 60 of the Registration Act, 1908 and cases in Piara v. Fattu AIR 1929 Lahore 711, Brij Raj Saran v. Alliance Bank, Simla, Ltd. AIR 1936 Lahore 946, Harnam Singh v.
16. District Official Receiver (28) AIR 1941 Lahore 400, Agha Walayat Shah v. Mt.Mahbub and others AIR
(29) 1942 Peshawar 83, Lakshmamma and others v. M. Jayaram AIR 1952 Mysore 114, Kangabam Ongbi Tongbram Ningol Monbi Devi v. Gurumayum Nigol Aribam Ongbi Amubi Devi and others AIR 1958 Manipur 16, Gangamoyi Debi v. Troiluckha Nath Chowdhry ILR Vo1.XXXIII Calcutta Series 537(P.C.). He also argued that no evidence was led in affirmative by the plaintiff and his statement recorded in affirmative after close of defendants' evidence could not have been looked into for lending support to his case. It was further argued that suit for cancellation of the gift-deed was barred by limitation and though -the point was abandoned in the lower Courts, it being a pure question of law could be re-agitated in revision.
17. As far burden of proof and effect of registration endorsement under section 60 of, the Registration Act, burden of the rule laid in the above decided cases was that the registration is a solemn act to be performed in the presence of a competent official appointed to act as Registrar whose duty it is to attend the parties during the registration and see that the proper persons are present, are competent to act and are identified to his satisfaction and all these things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order.
18. Therefore, it was a relevant evidence for proof of execution of document. There are other cases, which lay a different rule. In Indernath Modi v. Nandram and others AIR 1957 Rajasthan 231, it was observed that presumption under section 60(2) is raised when evidence to prove execution in the manner provided in section 67 of the Evidence Act is not available due to the executant or the marginal witnesses being dead or for some other reasons and this presumption cannot take the place of proof as required by section 67 of the Evidence Act, when witnesses are available to prove the document in the manner provided in the Evidence Act. In Dharmadas Mondal and others v.
19. Kashi Nath De AIR 1959 Calcutta 243, it was held that "The scope of the certificate given by the Registering Officer under section 60 of the Registration Act is limited. Where the endorsement of a registration on a gift--deed was to the effect that the executant was identified and that he had admitted execution of document, the Court can only presume that the executant only admitted execution of the deed before him. There would be no further presumption that the deed had been executed by the executant with a knowledge of its contents or that an attesting witness had actually attested execution". In 1973 Mah. L.J. 511 (taken from AIR Manual Volume 30 page 877) it was held 'that certificate of registration was insufficient to prove due execution of document which in case of denial must be proved in accordance with section 67 of the Evidence Act. In Amir Bi and others v. Committee of Management of Nilasandra Mosque, Bangalore and another AIR 1969 Mysore 103, it was held that execution of a document cannot be held to be proved by the fact of the registration of the document. What section 60(2) provides is that the registration certificate is proof that the document was duly registered and not that it was duly executed. Though, it is true that the Court is not bound to treat the Registrar's endorsement as conclusive proof of the fact of its execution, yet, if the executant admits the execution and signs it before the Registrar and the Registrar affixes his signature endorsing the signature of the executant stating that the executant has admitted execution and certifies the document, then such an endorsement and the certificate read with evidence in that matter is sufficient to hold that the document is proved to have been signed and executed by the execution. In Irudayam Animal and others v. Salayath Mary AIR 1973 Madras 421, Kunhamina Umma and others v. Special Tahsildar and others AIR 1977 Karala 41, Shiv Dass and others v. Mst. Devki and others AIR 1978 Punjab & Haryana 285, it was ruled that while it was true that registration by itself in all cases is not proof of execution, where the other evidence is available, the certificate of registration is prima facie evidence of its execution and certificate of registering officer under section 60 of the Registration Act is relevant for proving execution of the document. In other cases, it was held that mere registration of document is not enough to lead to the inference that the document registered has been also duly executed by the executant but the truth or otherwise of the statement has got to be proved like any other fact. In Ramkrishan Ganpat Futane and others v. Muhammad Kasam and others AIR 1973 Bombay 242, it was observed that a certificate of registration given under section 60(2) of the Registration Act is not by itself sufficient to prove due execution of a document as required by section 67 of the Evidence Act. The effect of registration is not to prove execution but only to prove as admission by the executant to the registration is solemn circumstances. In absence of any evidence of the scribe or of any attesting witness that the deed is signed by the executant in his presence, it is not possible for the Court to hold merely on the basis of endorsement of the registering officer, that the execution of the deed is duly proved. In Bhutkani Nath and others v. Mt. Kamaleswari Nath and another AIR 1972 Assam & Nagaland 15, it was observed that when execution of a document is challenged, its registration is not sufficient proof of its due execution. In such a case, proof of execution complying with section 67 of the Evidence Act was necessary. Similar observations were made in Govind Ram v. Abdul Wahab AIR 1963 Rajasthan 234. Clear rule deductible from the above case-law was that endorsement by the Sub-Registrar was not per se sufficient proof of execution of document. In case of denial of execution of document by the executant, evidence complying with section 67 of the Evidence Act/Article 78 of Qanun-e-Shahadat Order, 1984 must be furnished to establish due execution of the document, more particularly when other evidence is available to give proof of execution of the document. Its withholding must be risky. In Imam A.I Shah and others v. Ahmad Shah and others PLD 1977 Karachi 688 in para. 9 of the judgment (at page 692), the Court observed, "As far as proof of execution of the Gift Deed is concerned, as Bibi Noor was dead and could not be called to prove execution, the presumption of due registration is itself some evidence of execution by her. Nevertheless, the burden of proving execution of the Gift-Deed falls on the defendants who claimed the suit lands on its basis, more so, as execution was denied by the plaintiff and in the view of the suspicious circumstances of the case". Thereafter, his Lordship dealt with the evidence in the case. In Muhammad Sher and 2 others v. Muhammad Azim and another PLD 1977 Lahore 729, side note (b) reads, "S.60--Presumption--Certificate of registration--Shows mere execution of document--No presumption, however, drawn of a particular person having really executed same--Alleged seller of land clearly denying to have executed registered sale deed and brandishing it as forged--Trial Court, in circumstances, held, to find out fact as to who executed deed under challenge and open to parties to prove their allegations--Presumption attached to registered documents, held, could not be drawn in circumstances".
20. I have already analysed the evidence adduced by both parties to prove execution of the gift-deed.
21. In my opinion, it did not prove satisfactory execution of the gift-deed by Ghulam Sabir in favour of the petitioners. The petitioners gave no independent evidence to dispel suspicious circumstances surrounding the gift-deed. Evidence to prove execution of the gift-deed by Ghulam Sabir was available with them but they withheld it. Mere endorsement of the Joint Registrar, in absence of other evidence, was inadequate proof of due execution of the gift-deed by Ghulam Sabir.
22. It was true that the substituted plaintiffs' statement could not have been reserved till after the close of defendant' evidence because that shall have deprived them of giving rebutting evidence and caused prejudice to them, but the defendants did not demur to it in time and acquiesced in the procedure and also did not ask for evidence to rebut his statement. Therefore, it was much delayed objection and could not be permitted to be raised at this stage. As far bar of limitation to the suit, the point was not pressed in the lower Courts by the defendants. Even otherwise, it was amply proved that the gift of land was not made by Ghulam Sabir and the deed was procured by practising fraud on him. The defendants were in possession of the land as non-occupancy tenants.
23. Upon removal of the gift-deed from the scene, the owner shall be deemed to be in possession of the land in dispute. Therefore, the suit brought by Ghulam Sabir for nulification of the gift-deed was not barred by limitation, Observations in Shamshad A.I Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 were clearly helpful in this behalf.
24. Having regard to the aforesaid, civil revision is found to have no merits in it. Impugned judgment is upheld and revision petition is dismissed with costs.
25. Records be returned.