' MIAN ALLAH NAWAZ, J.---The dispute, in this R.F.A. Filed under section 96 of the Civil Procedure Code by Siraj Din/defendant, pertains to agricultural land measuring 132 Kanals 11 Marlas falling in revenue estate known as Mauza Tatlay Mali, Tehsil and District Gujranwala. It has arisen out of registered instrument dated 19-11-1983 where under Umar Din, deceased/father of the appellant and the respondents donated the suit land to Siraj Din/appellant. The claim of Mst. Jamila and Mst.Wakila/respondents/plaintiffs, as set out in plaint, was/is that they were daughters of Umar Din; that at the relevant time donor was suffering from serious physical ailment; that neither he could move nor did he execute gift-deed dated 19-11-1983 which was spurious document. The stance of the appellant, as embodied in the written statement, was/is that the donor at the relevant time was physically fit and had gifted the property in dispute to him with his free will. The learned trial Court, on contest, accepted the claim of respondents and dismissed the suit on 27-6-1996. This is how this appeal has come to this Court.
2. The learned counsel for the parties almost reiterated the arguments which had been advanced before the Court below. Submissions, made by the learned counsel for the appellant, can be conveniently summarised below: ' Firstly; that the questioned document was registered instrument and carried the certificate of endorsement/showing that Umar Din had appeared before the Registrar; had stated that he had gifted the property in dispute to Siraj Din of his own free will; and had delivered its possession to the donee. On the strength of above facts, it was suggested that the presumption of correctness stood attached to the above entries of the instrument and the Court below had no reason to treat the document as sham; ' Secondly; the thumb-impressions of the donor on Exh.D.1 was proved by the appellant who appeared as D.W.4 and Mr. Tariq Jaffar, D.W.5 as expert. The testimony of the above two witnesses proved the execution of questioned deed within the terms of Article 78 of the Qanun-eShahadat Order. According to the learned counsel, the admission embodied in the aforesaid deed with regard to offer, acceptance and delivery of the donated land were so proved. Additionally the testimony of Abdul Ghaffar (D.W.1), Muhammad Mansha (D.W.2) and Muhammad Hanif (D.W.3) was sufficient to prove the delivery of possession from the donor to donee.
3. On the contrary, the learned counsel for the respondents supported the impugned decision and raised the following points in reply:
(i) that the proof of thumb-impression of Umar Din on Exh.D. I was not a proof of its contents. Mere proof of thumb-impression on a disputed document, according to the learned counsel, did not prove the truth of its contents. Reliance was placed on Article 78 of Qanun-e-Shahadat Order.
(ii) That assuming without conceding, that Umar Din had executed the challenged deed yet it was a preferential gift which was not known to Muslim jurisprudence that favoured devolution of legal estate according to law of inheritance. Reference was made to rule laid down in Sardar Ahmad Khan v. Mst.Zamrud Jan (PLD 1950 Pesh. 45), Muhammad Yasin v. Zaitoon Begum (1993 CLC 2448), Muhammad Shafi v. Nasir Ali (1994 MLD 283) and Rashid Ahmad v. Sardar Bibi (1994 MLD 467).
4. Having penned down the facts and circumstances of the case and the arguments advanced by the learned counsel for the parties, we herein now proceed to determine the arguments of the parties in seriatim.
5. As regards the first point, suffice it to say that it was considered by Privy Council as back as in 1943 in 43 30 AIR 1943 PC 83(87). In this case a registered receipt purporting to be by one Parshotam Das contained an endorsement by the Registrar that the execution was admitted by the said person. It was held:--- "The Registrar's endorsements show (see subsection (2) of section 60, Registration Act, 1877) that in 1881 a person claiming to be this Parshotam Das, and to have become son of Harish Chandra by adoption made by his widow Manki Bahu, presented the receipt for registration and admitted execution. He was identified by two persons--one Sheo Prasad and the other Girja Prasad, who was the scribe of the document and was known to the Registrar. What remains to be shown is that the person admitting execution before the Registrar was this Parshotam Das and no imposter. The question is one of fact except in so far as there was as matter of law a presumption that the registration proceedings were regular and honestly carried out: (33 Ind. App. 60 (PC), (22) 9 AIR 1922 PC 56 (58): It seems clear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registration is itself some evidence of execution as against. The plaintiffs. Wills and documents which are required by law to be attested raise other questions but this receipt was not in that class."
' The above view was followed in Muhammad Cheragh v. Dullay Khan (PLD 1954 Dacca 134), National Bank of Pakistan v. M/s. Fine Art Textile Industry (1991 CLC Note. 75 at p.59). Muhammad Sher v. Muhammad Azim (PLD 1977 Lah. 729) and Iman Ali Shah v. Ahmad Shah (PLD 1'977 Kar. 688).
We find it advantageous to reproduce para. 8 of the Lahore judgment:-- "There is no doubt_ that the certificate of registration shows the execution of the document but no such presumption can be drawn therefrom that such and such person has really executed the same. In the given circumstances of the case, it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same, according to the certificate of registration. It is exactly what the learned Judges in AIR 1929 Lahore have held. The certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn therefrom. This view gains strength from Gopal Das and others v. Sri Thakurji and others .(AIR 1943 PC 83) holding that where the Registrar's endorsements made under section 60 of the Registration Act-showed that in 1881 a person claiming to be Parshotam Das and to have become son of Harish Chandra by adoption made by his widow presented the receipt for registration and admitted its execution and was identified by two persons one of them was scribe of the document and was known to the Registrar, what remained to be shown was that the person admitting execution before the Registrar was Parshotam Das and no imposter. Accordingly to their Lordships of the Privy Council the question as to whether executant was Parshotam Das or any imposter was one of fact. However, the only presumption which could be drawn from the certificate of endorsement was that registration proceedings were regular and honestly carried out. It is clear that if in the given circumstances of case genuineness or bona fide with regard to the execution of a document are in doubt then inquiry can be held in this behalf and no presumption to the effect that such and such document has actually been executed by a genuine person in all circumstances, can be drawn."
A reference be also made to Muhammad Lal etc. v. Muhammad Ghaus etc. (1991 CLC Note 74 at P 59). We are in respectful agreement with the above view and find no reason to differ with it.
Accordingly, we have no hesitation to say that endorsement made by the Registrar on questioned document does not prove that it was executed by Umar Din in favour of Siraj Din. The contests of the gift-deed and constituents of Hiba are to be proved by Siraj Din in consonance with the provisions of Qanun-e-Shahadat Order and the rule of Muslim Gifts.
6. As regards the second submission, Article 78 of Qanun-e-Shahadat Order--is pertinent. It needs to be reiterated that this provision prescribes that if document is alleged to be signed or to have been written by any person, the signatures or writing must be proved in that person's handwriting.
This does not lay down any particular mode of proving such handwriting/signatures. Any mode of proof recognised by Qanun-e-Shahadat Order can be used by parties to litigation. The most distinctive feature of this Article is that it addresses to proof of identity of author of denied document, yet this does not say that mere proof of andwriting/signature of executant will prove the truth of that document. This proposition came up for consideration before Bombay High Court in a well-known case reported as Madhu Lal v. Asian Assurance Company (AIR 1954 Born. 305). Dealing with this case Bhagwati J, said: "This proposition sounded to me a novel one. I had in fact never heard any such argument before.
Section 67, Evidence Act only permitted the proof of the signature or handwriting of the person signing or writing the document to be given and considered it to be sufficient in those cases where the issue between the parties was whether a document was signed or written wholly or in part by that person. It did not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof in so far as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature or handwriting of the said various documents could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamnadas; but the matter could rest there and would carry the plaintiff no further.
' It certainly could not prove that the contents of those various documents which were thus proved to have been signed or written by Deshpande, Paranjape or Jamnadas were correct, and unless the plaintiff succeeded in proving the correctness of the contents of those various documents, he would not advance any step towards proving his case. Mr. Taraporewalla for the Bank and Jamnadas supported Mr. Somjee in his submission. He submitted that once the signatures were proved the letters as a whole were proved, though the Court might say that the contents thereof were not proved in the sense that they' were true. He submitted that the Court could admit those documents in evidence with that reservation, a reservation which to my mind went to the root of the whole matter and deprived the documents of all value whatsoever even if they might be admitted by the Court in evidence."
' The learned Judge further went on to say:-- "As I have already observed it was futile for Mr. Somjee to merely prove the signatures or the handwriting of the persons who signed or wrote the various documents without calling the said persons who were the only persons who could depose to the correctness of the contents of those various documents. Whether Deshpande, Paranjape or Jamnadas signed or wrote the various documents, was not the only issue before me. If that had been the only issue, the proof of the signatures or the handwriting of Deshpande, Paranjape or Jamnadas would have been enough.
What was in issue, however, before me was apart from Deshpande, Paranjape or Jamnadas having signed or written those documents, were correct. This certainly could not be proved by Balkrishna Bhagwan Deshmukh who had no personal knowledge whatever about the contents of those various documents. It would have served no purpose whatever to admit those documents in evidence with the reservation as suggested by Mr. Taraporewalla. I was supported in this conclusion of mine by the remarks of the appeal Court in ' 11 Bom H.C.R. 242 at p.246 (A)', and I accordingly declined to admit in evidence the said various documents in spite of Balkrishna Bhagwan Deshmukh deposing before me that the said various documents were signed by or in the handwriting of Deshpande, Paranjape or Jamnadas. (The rest of the judgment is not material to the report.)"
' The view taken, in the above case, was followed in Bank of Poona v. N.C. Housing Society (AIR 1968 Born. 106), wherein it was held that the contents of document were hearsay unless its writer was examined before a Court. This view was reiterated by the same Court in Rana Thaku v. Santu Goga (AIR 1968 Born. 1). The same rule was enunciated by the Supreme Court of Pakistan in Hamad Qayyum Muhammad Azeem and another (PLD 1995 SC 381) and Sanaullah v. Muhammad Manzoor eLD 1996 SC 256).
7. We now reach the stage to examine the concept of preferential gift. There has been divergence of opinions among. Muslim jurists on this question. Some jurists like Ibn-e-Hazm has held that Muslim law leans in favour of devolution of legal estate by inheritance as ordained in Holy Qur'an and so any gift or property made with an object to cause deprivation of any heirs is void ab initio while the others held that although such transactions ate sinful yet these are not prohibited. The first view was followed by Peshawar High Court in Sardar Ahmad Khan v. Mst.Zamrood Jan (PLD 1950 Pesh. 45). This view, however, was overruled by Division Bench of erstwhile West Pakistan High Court in Saifullah v. Ghulam Jabbar (PLD 1955 Lah. 191). It was held therein that a Muslim owner, in matter of disposition of his property, had unfettered powers and so is equipped with unlimited power to make gift in favour of any heir to the exclusion of the other legal heirs. Speaking for the Bench his Lordship Mr. Justice Akhlaq-ul-Hassan (as he then was) said: "....It may be impious for a Muslim to deprive some or all of his children of his property by alienating it in his lifetime-and it would be obviously so in all good sense if done without just cause; but there is nothing anywhere in the iioly Qur'an to forbid such gifts when made by a person not suffering from Maraz-ul-Maut."
' This question again came up for consideration before Supreme Court of Pakistan in Noor Muhammad Khan v. Habibullah Khan (PLD 1994 SC 650).
' The view taken in Saifullah's case, supra was approved and his lordship Mr. Justice Saleem Akhtar speaking for the Bench said: ' After due consideration of all the authorities referred to above we are of the opinion that under Islamic Law a preferential gift is not void. It may be, as described by some jurists, sinful, but as it is not prohibited it cannot be declared to be void."
8. From the foregoing discussion, following propositions of law are deducible:--
(i) that execution of each and every instrument is to be proved unless it is admitted under Article 113, presumed under Article 102 of the Act or some other provisions of law. Ordinarily a document does not prove itself. It may be proved by following methods:
(a) By calling and examining writer himself;
(b) by evidence of person who saw the document being written;
(c) by evidence of person acquainted with the handwriting of the writer; or
(d) by comparison of disputed writing/signatures/impressions with the admitted ones by an Expert's evidence.
These methods are not exhaustive and any other recognised by law can be pressed into service.
The proof of execution means the proof of writing/signatures/impressions of the author. The proof of execution, however, is not synonymous with the proof of the contents of documents. The burden to prove the contents of documents, in addition to proof of execution, is on the beneficiary of that document, who is to lead primary/secondary circumstantial internal evidence to prove the truth of that document.
(ii) That a gift under the Muslim Law has three ingredients i,e, offer, acceptance by donee and cessation. The gift must be express, unambiguous and is not to be implied. Once anterior's title is accepted then it is incumbent upon the donee to prove the above elements of gift by leading cogent unimpeachable and trustworthy evidence. Add to it a preferential gift in favour of one heir to the exclusion of others is a sinful transaction although not prohibited. In such a gift the donee had to discharge his onus by producing unimpeachable material, showing that the donor had made the gift in his favour.
9. Before we turn to assess the evidence of the parties on merit, we would like to say a few words about concept of gift in Islam. There is consensus among the Muslim Jurists that a gift has three essential constituents. Firstly, an offer is made with intention to make it; Secondly the acceptance of gift by donee and I thirdly that the possession of property is given to the donee. The above rules of E Muslim Jurisprudence were followed by the Privy Council in Rani Khajur-unNissa v. Roshan (III IA 291) wherein it was held:-- "The policy of Muhammadan Law appears to be to present to testator interfering by will with the course of devolution according to law among the heirs, but it appears that a holder of property may to a certain extent defeat the policy of law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms. It is incumbent however, upon those who seek to set up a proceeding of this sort to show very clearly that the forms of the Muhammadan Law, whereby its policy is defeated, have been complied with."
' In Chaudhry Mehdi Hassan v. Muhammad Hassan (33 IA 68) the gift in question was endorsed by a registered document and there was some material that on some occasions the donor had spoken to have made the gift. Taking into consideration all the circumstances of the case, it was held: "Part of the property described in the deed and claimed by the defendant is a house at Cohigawan which had been built by and belonged to the plaintiff, in which he and his wife resided before and at the time of the execution of the deed. The plaintiff did not, as contemplated, go to Mecca soon after that time, being prevented at first by an accident and afterwards by the illness of himself and his wife. When the defendant married, the plaintiff invited him and his wife to come and live with him at the house in question and they did so, and were maintained by him there until 1894, when the plaintiff and his wife made the long contemplated pilgrimage to Mecca on which they were absent for about six months. During their absence the defendant and his wife continued to live in the house, but on their return the plaintiff and his wife went back to their home and have continued to reside there ever since. The defendant also remained there for a short time till his wife died; after her death the defendant married again and differences having arisen between him and the plaintiff the defendant went away and lived in Nidura, while the plaintiff remained in the house as before. Each party says he was in possession of that house; but upon the above facts which are not in dispute, their lordships have no difficulty in coming to the conclusion that this house was all along in the possession of the plaintiff."
' In Sadiq Hussain Khan v. Hashim Ali Khan (XLIII IA 212) the above view was reiterated by the Privy Council in following terms: "The Muhammadan Law in their view, therefore applies to this deed; ' and the gift made by it, being voluntary, is void under that law, unless it was accompanied by a delivery of such possession as the subject of the gift is susceptible of."
The above rule was followed by our Courts in K.S. Agha Mir Ahmad Shah v. K.S. Agha Mir Yaqub Shah (PLD 1957 (W.P.) Kar.258), and Ashiq Hussain v. Ashiq Ali (1972 SCMR 50).
10. Applying the above principles to the facts of the case in hand; we find that the case of the appellant hinges upon the testimony of Abdul Ghaffar (D.W.1), Muhammad Mansha (D.W.2), Muhammad Hanif (D.W.3) and Tariti Jafferi (D.W.5) in addition to himself. D.W.1, D.W.2, and D.W.3 were neither marginal witnesses of the questioned document nor had they witnessed its execution.
Their evidence, with respect to the truth of the contents of document, is so valueless. In so far testimony of Siraj Din D.W.4, it is crystal clear that his version, without any corroboration, cannot substitute the plea of preferential gift. True that D.W.5 appeared as expert and deposed that the thumb-impression of Umar Din on gift-deed resembled with the thumb-impression affixed on the form which Umar Din had submitted for getting his identity card prepared,. Amazingly enough, no evidence was recorded by the trial Court to find out as to whether the said impression was of owner. No material, whatsoever, was on the file to connect the thumb-impression on the form with the thumb-impression of Umar Din. This being the position the thumb-impression on the form and on Exh.D.1 cannot be said to be admitted thumb-impression of Umar Din. On this state of facts, we do not have any basis to accept the opinion of expert. Add to it this witness was not present to witness the making of gift. Siraj Din D.W.4 conceded in the cross-examination that the gift was made by Umar Din in his house and thereafter, he took the donor to the Office of the Registrar for the purpose of execution of Exh.D.1. In this view of the matter we have no option but to hold that Siraj Din has miserably failed to prove the execution of gift deed by cogent evidence and he also failed to prove three necessary attributes of gift i,e, offer, acceptance and seizin. Furthermore we do not find any material on record, according to the case of appellant, that Umar Din had directed D.W.1, D.W.2 and D.W.3 to pay his share of produce of the donated land to Siraj Din. Very clearly Siraj Din had failed to prove the delivery of possession to him ' under the gift-deed Exh.D.1. Manifestly, this instrument embodies a preferential gift which was sinful transaction and ought to have been proved by overwhelmingly unimpeachable' evidence. As against the above evidence Mst. Jamila Bibi, entered the witness-box and stated that she was/is the real daughter of Umar Din who had not made the gift of the suit property in favour of Siraj Din appellant; that respondent had been receiving their shares from their brother. Her evidence was sufficient in quality and quantity to prove that respondents were legal heirs of Umar Din. In view of above assessment of the evidence, we are in no manner of doubt that the decision rendered by the trial Court is eminently correct, just and does not suffer from any error calling for interference under section 96, C.P.C.
' For the aforesaid reasons, this regular first appeal fails and is hereby dismissed. The appellant shall bear the costs of the proceedings throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.