' This appeal is against the judgment and decree of the II Additional District Judge, Hyderabad dated 13-1.1965 passed in First Class Civil Suit No, 147/1962 decreeing the suit of the respondents.
2. The facts briefly stated are that Ahmed Shah, the respondent No, 1 (since deceased) brought a suit against Haji Imam All Shah (since deceased) the appellant No, 1 and Bibi Rashida his daughter, the appellant No, 1(1) for a declaration that a Gift Deed dated 10-10-1953 and a Consent Deed dated 3-3-1954 under which the appellants claimed the suit lands were not genuine deeds and were therefore, invalid and inoperative and that the mutation of the snit lands got done in their favor was not binding on him. Ahmad Shah will hereinafter be referred to as "the plaintiff", while Haji Imam All Shah and Bibi Rashida will be referred to as "defendants Nos. 1 and 2"). The suit lands approximately 1800 acres of agricultural lands are situate in nine Debs in Taluka Badin district Hyderabad (hereinafter referred to as the "Badin lands" or "Suit lands"). Although the plaint made a reference to certain other agricultural lands (approximately 629 acres situated in lie Bhinpur, Taluka Hyderabad) (hereinafter referred to as Hyderabad lands), which were also included in the alleged Gift Deed and Consent Deed, they were omitted from Schedule 'A' of the plaint for some inexplicable reason. An issue was framed in suit as to the effect of non-inclusion of the Hyderabad lands in the suit, but it appears that the issue was not pressed and no finding was therefore, given on it. The Hyderabad lands were therefore, not included in the decree passed in the suit in favor of the plaintiff. Therefore, two years after the decree, the respondents as the legal heirs of Ahmed Shah, filed another suit relating to the Hyderabad lands F. C. S. No, 51/1957 in the Court of the Civil Judge, Hyderabad which is pending.
3. The evidence on record shows that the suit lands were originally owned in equal shares by Ghulam Muhammad Shah and Hassan Shah, who were brothers. Hassan Shah died issueless in 1909 leaving two widows Mst. Suhagan and Mst. Aqeelan. Ghulam Muhammad Shah died in 1912 leaving his widow Mst. Bhambo and two daughters Bibi Saloo and Bibi Noor. Bibi Saloo died in 1942 leaving as her heirs, her sister Bibi Noor and the plaintiff who was her father's paternal cousin. Bibi Noor and the plaintiff got 8 annals share each and the suit lands were mutated in their names in the record-of-rights and were in their joint possession and enjoyment. Bibi Noor died issueless on 19-5-1959 leaving the plaintiff, Ahmed Shah as the sole heir of the suit lands. The case of the plaintiff was that immediately upon the death of Bibi Noor, he applied to the Mukhtiarkar for mutation of the entire suit lands in his name as sole owner, but he came to learn that defendants Nos. 1 and 2 claimed ownership of the suit lands and suddenly produced two documents, (1) a registered Gift Deed (Exh. 195) dated 10-10-1953 purporting to have been executed by deceased Bibi Noor gifting 4 annas share to defendant No, 1 (Haji Imam All Shah) and 12 annas share to defendant No, 2 Bibi Rashida) in both the Bsdin and Hyderabad lands, (2) a registered Consent Deed dated 3.3-1954 (Exh. 144) allegedly executed by the plaintiff admitting that he had no share in the Badin and Hyderabad lands and that Bibi Noor was the sole owner. That despite his objections and protests that these documents were fraudulent, the Deputy Commissioner, Hyderabad accepted the same and by his order dated 19-8-1959 he ordered mutations of the Khatas in the names of the defendants Nos. 1 and 2. Hence plaintiff was compelled to file the suit to establish his right of ownership praying for a declaration that the alleged Gift Deed and Consent Deed were not genuine documents and to declare the mutation as not binding on him and to restrain the defendants from interfering with the possession and enjoyment of the produce of the suit lands.
4. The suit was resisted by the defendants 1 and 2, who relied on the Gift Deed and the Consent Deed and claimed to be owners of the suit lands.
5. The case of respondent No, 2 Hamzoo (deceased), who was joined later as defendant No, 3 in the suit, was that he had inherited the share of Ms/. Suhagan, one of the widows of Hassan Shah. The case of respondent No, 3 Umer son of Ramzan Pusio, who also was joined later as defendant No, 4 in the suit, was that he had succeeded to the share of Mst. Bambhoo, the widow of Ghulam Muhammad Shah. Their case was that they had remained in joint possession of their share of the suit lands and that the alleged Gift reed and Consent Deed, if they are valid, did not affect their own shares in the suit lands.
6. A number of issues were framed by the trial Court and a large number of witnesses were examined and several documents were produced by the parties in support of their respective cases. The case turned principally on the finding on the Issues Nos. 12 and 10 relating to the validity or otherwise of the Gift Deed dated 10-10-1953 (Exh. 195) and the Consent Deed dated 3-3-1954 (Exh. 144) respectively. On the first mentioned issue relating to the validity of the Gift Deed, the trial Court held that the execution of the Gift Deed by Bibi Noor was not proved ; that Bibi Noor was an illiterate pardanashin lady, and that there was no evidence that the contents of the documents were explained to her or that she understood their meaning 1 that there was not only no proof of delivery of possession of the gifted lands to the domes but also that no mutations in favor of domes were effected during the lifetime of Bibi Noor, who died some six years after the Gift Deed was allegedly executed, and that subsequent conduct and other circumstances, showed that the Gift Deed was obtained by fraud. He therefore, held that the Gift Deed was invalid and inoperative and not binding on the plaintiff.
7. On the issue relating to the Consent Deed, he found that its execution by the plaintiff was not proved and as none of the attesting witnesses was examined, there was only the oral word of the defendant No, 1, which could not be believed in his own cause ; that the plaintiff was an illiterate rustic and there was no evidence that the contents of the deed were explained to him, or that he understood the same and that the alleged admission by the plaintiff in the consent deed that he.
Had no concern with the suit lands was falsified by his subsequent conduct, which proved that he had exercised rights of ownership over the Hyderabad lands by selling four annas share therein by a registered sale deed on 15.8-1959 (Exh. 140) after obtaining the previous sanction of the Deputy Commissioner, Hyderabad (Exh. 139), and that he continued to remain in possession and enjoyment of the Badin lands. He therefore, held that the Consent Deed containing the alleged admission against interest by the plaintiff was obtained by fraud and was invalid and not binding on the plaintiff.
8. Mr. Mushtaque Hussain learned counsel for the appellant submitted that the trial Court erred in failing to consider and apply the presumption arising out of the certificates endorsed by the Sub- Registrar on the respective deeds at the time of registration under section 60(1) of the Registration Act, 1908. According to counsel, the said certificates (which shall be presumed to be genuine under section 79 of the Evidence Act, 1872) raise a presumption of truth not only that the documents were duly registered in the manner provided by the Registration Act, but also that the facts mentioned in the endorsement thereon, had occurred, namely that the executants were properly identified and that they had admitted execution. That as these presumptions had not been rebutted by the plaintiff, the trial Court ought to have held as proved that Bibi Noor and the plaintiff who bad admitted their execution of the respective deeds, were the persons who had executed them. In my opinion, these submissions are not well-founded. Execution of the Gift Deed and the Consent Deed, which are not required by law to be attested, have to be proved under secti sn 67 of the Evidence Act by proving that the thumb-impression alleged to have been affixed to the Gift Deed by Bibi Noor and the signature alleged to be that of the plaintiff on the Consent Deed were respectively those of the alleged executants. The endorsement in the certificate of the Sub-Registrar of A admission of execution, raises only a presumption against executant that th person who admitted execution before the Sub-Registrar, was the person who had signed the deed. But that, in itself, does not prove who had actually signed it. Execution, if disputed, has to be proved by further or other corroborative evidence. By merely relying on the admission of execution it cannot be declared that execution has been proved under section 67 of the Evidence Act. As observed by Sir George Rankin in Gopalda v. Sri Thakurji (1) : "The Registrar's endorsement shows (See subsection (2) of section 60, Registration Act, 1877) that in 1881 a person claiming to be this Parshotam Das, presented the receipt for registration and admitted execution. He was identified by two persons known to the Registrar. What remains to be shown in at the person admitting execution before the Registrar was this Parshotam Das and no 'imposter? The question is one of the fact except in so far as there was a matter of law a presumption that the registration proceedings were regular and honestly carried out . .."
' In other words, as observed in Dharmandas Mondal and others v. Kashi Nath De (2) from the endorsement made by the Sub-Registrar, the Court can only presume that the executant admitted execution of the deed before him. There would be no further presumption that the attesting witness had actually attested execution, i,e, had actually seen the exeoutant, put his signature to the deed or had affixed his thumb-impression to it or even that the deed had
(1) AIR 1943 P C 83 (2) AIR 1959 Cal. 243 ' been executed by the executant with knowledge of its contents. The ease cited by Mr. Mushtaq Hussain in Radha Mohan Dutt v. Nripendra Nath Nand, and others (1) is not directly applicable, as that case was considering the definition of word "attested" under the Transfer of Property Amendment Act, 1926.
9. 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. The learned trial Judge had discussed in his judgment, the suspicious circumstances and it is not necessary for me to enumerate them here. Bibi Noor was an eki, sick and illiterate, pardanasheen lady confined to her house. Although the Sub-Registrar endorsed the fact that Bibi Noor was illiterate, there is a significant omission in his endorsement of any enquiry having been made and that he was satisfied as to her identity or that the terms of the English document were translated and explained to her in Sindhi and that she appeared to understand the same. Equally significant was the omission by the defendants to examine Mr. Badiul Hassan Zaidi, the Advocate who allegedly drafted the Gift Deed on instructions of Bibi Noor to prove that she had received indel-endent advice. Again, of the two attesting witnesses, only Shaikh Hyder, who had identified Bibi Noor before the Sub-Registrar and who had himself signed in Sindhi, was examined. Even he does not state in his evidence that the Gift Deed was translated or explained to Bibi Noor or that her thumb- impression was affixed in his presence. He further stated that Bibi Noor observed parda from him and that he used to talk with her with a curtain in-between. It is therefore, not unreasonable to infer that Bibi Noor had not affixed her thumb-impression to the deed in his presence. The learned trial Judge also disbelieved the testimony of Hyder Buz who appeared to be interested in the defendant Imam Ali Shah. Further suspicion is aroused by the circumstances of subsequent events, the most significant of which is the fact that although the deed was registered on 10-10-1953, no mutations were effected in the Record-of-Rights in the name of the defendants for over sx years and the Gift Deed did not see the light of day until after Bibi Noor died in May, 1959, thus leading to the inference that the Gift Deed was meant to be kept secret from her, as otherwise, she would have disowned it in her statement before the Mukhtiarkar and revoked the gift. The explanation of this unnatural delay submitted by the defendants was that sanction of the Deputy Commissioner was awaited under the Sind Rural Credit and Land Transfer Act, 1947. But as rightly submitted by both Mr. Hameed Khan and Mr. Shah, learned counsel for the respondents, the defendants had failed to prove that any such application was made. The trial Court, therefore, treated the explanation as a mere pretext. The other circumstances, discussed by the trial Judge under issue No, 12 leave no manner of doubt that deceased Bibi Noor had not gifted the suit lands to the defendants and that the alleged Gift Deed was not executed by her and was a piece of fraud.
10. Even if the physical execution of the Gift Deed is held to have been proved by Bibi Noor, the defendants have failed to establish its validity. No evidence whatever has been led by the defendants to prove that Bibi
(1) AIR 1928 Cal. 154 ' Noor who admittedly was an illiterate pardanasheen lady understood the nature of the transaction, namely, by showing that she took independent and disinterested legal advice ; that the contents of the English document were translated or explained to her and that she understood the same. As observed earlier, the defendants failed to examine Mr. Badiul Hassan Zaidi, the Advocate to prove that Bibi Noor received independent advice from him and that he was instructed by her to draft the document. In this connection, the leading judgment of the Privy Council in Mt. Farid-un-Visa v. Munshi Mukhtar Ahmed and another (1) may be referred to. In that case, the Privy Council stated that doctrine which governs transactions entered into by pardanasheen or illiterate women and observed that the mere physical execution by such a person, although unaccompanied by duress, fraud or undue influence, B is in itself no real proof of a true understanding mind in the executant. The onus is always on the person, who relies or takes advantage of the transaction to show to the Court that the deed was explained and understood by the executant, and that she adopted it with full knowledge and comprehension. This doctrine stated by the Privy Council has been followed in a number of cases. A reference in particular may be made to the decision of the Division Bench of the erstwhile High Court of West Pakistan in Mst.
Hawa v. Muhammad Yousuf and others (sic).
11. The Gift Deed was invalid on other grounds as well. The first is that the defendants failed to prove delivery of possession of the suit lands to the donee delivery of possession being an essential ingredient to the validity of a gift (Hiba) under Muslim Law. The registration by itself, cannot .Cure the want of delivery of possession. As stated earlier, neither the -statement of Bibi Noor was recorded nor mutations of the names of the defendants were recorded until six years after her death. There is no evidence on record to show that the defendants were at any time in possession or enjoyment of the suit lands. Qabool Shah (P. W. 2), a Kamdar of the plaintiff stated in his evidence that Imam All Shah, the defendant No, 1 and his men tried to obtain possession of the Badin lands by force after the death of Bibi Noor but they were resisted and a police report was also filed, after which did nor come again to take possession. Taj Muhammad (P. W. ?) a Zarnindar who owned adjoining lands, stated that the defendants had never got any Batai share nor cultivated the suit lands. Their testimony has not been shaken in cross-examination. Even with regard to the Hyderabad lands the defendants' witness Ali Ghulam (Exh. 247) and Mieo (Exh. 243) did not support the defendants. They stated that the Hyderabad lands were in possession of Bibi Noor until her death, but were being looked after by Haji Imam Ali Shah who used to give the lands on lease on her behalf.
12. Mr. Mushtaque Hussain on the other hand referred to certain lease deeds and tenancy agreements, executed by the defendants and some laad assessment bills and revenue receipts to prove possession of the defendant's if the gifted lands. In particulars, he referred to a registered lease deed (Exh. 200/3) executed and registered by the defendants Nos. 1 and 2 on 14-12-1954 in favor of Rais Nangar Khan and Qabool Muhammad leasing to them all the 820 acres of the Badin lands in the nine Dehs comprised in the Gift Deed for three years beginning from Kharif 1955-56.
Therein they stated in clause (1) that the said lands which were gifted to them by Bibi Noor were in their names and Khata in the Record-of-Rights. The latter obviously was a false statement, for on the defendants' own admission the (1)AIR 1925PC204 ' Khata was not mutated in their names until after Bibi Noel's death in 1959.-As rightly observed by the trial Judge, the lease deed had not been proved, nor were the lessees examined to prove that they in fact cultivated the Badin lands. The lease deed therefore, was rightly rejected as being a mere nominal lease deed got done in an attempt to establish the defendants' claim over the suit lends. The other lease deed referred to was Exh. 209 which was registered by the defendants in favor of four lessees on 31-7-1957 leasing all the 629-26 acres of the Hyderabad lands for five years beginning from Kharff 1958-59. This lease deed was also rightly rejected by the learned trial Judge for the same reason. No doubt some bills for land revenue in form It an revenue payment receipts of some of the Hyderabad lands for some period between the date of the Gift Deed and Bibi Noor's death, do show the names of one or other of the defendants. But it may be that defendants got those bills issued in their names as they were managing the Hyderabad lands of Bibi Noor. No such bills or receipts were produced in respect of the Badin lands for the same period until after Bibi Noor's death. Therefore, this piece of evidence was rightly rejected as of no significance by the trial Court.
13. The alleged Gift Deed was further held to be invalid by the learned trial Court on the ground that it purported to gift the 8 annas share of the plaintiff and that it was conditional upon the plaintiff not claiming his 8 annas share.
14. With regard to the Consent Deed (Exh. 144) dated 3-3-1954, the defendants had failed to prove its execution by the plaintiff. As rightly observed by the trial Judge, neither the writer of the deed nor anyone of the attesting witnesses had been examined to prove that it was the plaintiff who had executed it. The plaintiff denied execution and therefore, the-burden was on the defendants to establish by further or corroborative evidence other than the mere admission of execution by the plaintiff before the Sub-Registrar, which they have failed to do. Moreover, the evidence shows that the plaintiff continued to be in enjoyment of the suit lands and exercised rights of ownership as will appear from a Sale Deed Exh. 140 which was registered on 15,8-1958 transferring 4 annals share in the Hyderabad-lands which were conveyed after obtaining the sanction of the Deputy Commissioner. Neither was there any consideration for the execution of the Consent Deed nor was any mutation effected in the revenue record on its basis. Therefore, the learned trial Judge rightly rejected the same as being a piece of false evidence.
15. For the foregoing reasons, I am in agreement with the findings of the trial Court on the issues n lasting to the execution and validity of the Gift Deed and the Consent Deed. No further arguments were put forward. Accordingly, I find no merit in this Appeal, which is accordingly, dismissed with costs.