' This revision petition is directed against the judgment and order dated 26-1-1993 of the learned Additional District Judge, Peshawar whereby the appeal of Mst. Iqbal Begum, respondent herein, against the judgment and order dated 10-4-1989 of the learned Civil Judge, Peshawar was accepted.
2. Facts in brief are that petitioners are the daughters of Mst. Iqbal Begum plaintiff. The plaintiff Iqbal Begum had instituted the present suit for declaration to the effect that she is the owner in possession of two plots (in one block) purchased by her vide sale-deed entered at S.No,1327, Bahi No,1 ( Le. ) Jild () No,999 registered in her name on 24-7-1951, which are situated in Faqir Ahad outside Hasht Nagri Gate and gift deed registered on 4-5-1985 in favour of the petitioners vide Bahi No,1, Jild No, 1419 is ineffective on her right as it was the result of fraud, undue influence and cheating and should be declared as null and void as she had not transferred the possession of the suit plot to the petitioners. It was alleged by the plaintiff in the plaint that after operation of her eyes, she went to the house of the defendants-petitioners where she was made to believe by the defendants-petitioners that she will be sent to perform Haj and in this connection got her thumb- impression on certain documents. Later on she on this very pretext was taken to some office where again she thumb-impressed some documents. She thumb-impressed the said documents under the sole impression that these documents relates to her Haj journey. As she is an aged, sick and illiterate woman with a very weak eye sight, therefore, she thumb-impressed the documents under the instructions of the petitioners and cannot imagine/apprehend any type of fraud to be played with her by her own daughters. After some time she came to know that fraud has been played with her by the petitioners and her thumb-impression was not taken on the documents which relates to Haj and factually her thumb-impression had been obtained fraudulently on a gift-deed and, thus, she instituted the above said declaratory suit with the above stated prayer.
3. The defendants-petitioners contested the suit and filed their written statement and repelled all the averments made in the plaint. The learned trial Judge framed as many as six issues and after recording the evidence pro and contra, dismissed the plaintiff's suit.
4. Feeling aggrieved the plaintiff went in appeal to the Court of Additional District Judge, Peshawar who vide order dated 26-1-1993 accepted the appeal and hold that the plaintiff being a Pardanashin illiterate old Muslim lady has been deprived by her own daughters from her valuable property by way of fraud and the alleged gift-deed based on fraud and undue influence creates no title in favour of the defendants-petitioners. The said order aggrieved the petitioners and, thus, filed the present petition.
5. Messrs Iqbal Ahmad Durrani, counsel for the petitioners and Muhammad Latif Khan, counsel for the respondents (legal heirs of Mst. Iqbal Begum) were heard at length and record of the case perused with their valuable assistance.
6. Admittedly, Mst. Iqbal Begum mother of the respondents herein was a Muslim Pardanashin lady with an advance age, illiterate and having a very weak eye sight had gone to the house of her real daughters, (the petitioners herein), where she purported to have made a gift in favour of her daughters of valuable property by way of fraud and undue influence played on her by her real daughters. The plaintiff thumb-impressed the gift-deed/documents in the house and later on also thumb-impressed certain documents before the Sub-Registrar under the wrong impression that the documents related to the Haj process and she was totally unaware that the documents on which her thumb-impression has been taken, pertain to the gift-deed in favour of the petitioners.
7. Further, it is absolutely clear from the evidence that though she has four sons now respondents being her legal heirs but none was present or accompanied her to the office of Sub-Registrar at the time of execution of alleged gift-deed in favour of the petitioners. It is in the statement of Mst.
Iqbal Begum that she was made to believe by the petitioners to send her for Haj and on this pretext fraudulently she was taken to the office of the Sub-Registrar and got her thumb-impression on certain documents. There is nothing on record to rebut her contention. It was her constant contention in the plaint as well as in evidence that she has not gifted the property to the petitioners nor she has signed any gift-deed. From perusal of the record, it transpires that petitioners never appeared before the Court below in person or through their attorney to rebut the allegations of fraud levelled against them by their own real mother. Only two marginal witnesses to the deed appeared on behalf of the petitioners before the trial Court, out of whom one is the step son of petitioner Mst. Hussan Ara. The way the entire transaction of the alleged gift-deed has been made, casts serious doubts over its veracity and speaks about the element of fraud, undue influence and cheating in getting the gift-deed registered.
8. The contention made by the plaintiff in her plaint and evidence, could only be rebutted by her daughters (petitioners herein) because it was alleged that her thumb-impression on the documents was taken under the pretext of Haj documents as the petitioners had made her to understand that they (petitioners) have intended to send her to perform Haj but neither the petitioners nor their attorney appeared before the trial Court to rebut the allegations of fraud and cheating levelled against them of giving false temptation of Haj to the plaintiff.
9. To me, in the circumstances, when plea of fraud and undue influence has been attributed by the plaintiff who is a Pardanashin Mulsim lady regarding the alleged gift-deed in her plaint and evidence, burden of proof shifted to the person in whose interest the deed was made and it is for him to establish that the deed was made by the free sweet will of the donor Pardanashin illiterate lady and she was made to understand the pros and cons of her act. In the present case, plaintiff was in advance age with ill-health and had gone through an eye operation little before the registration of alleged gift-deed and was a Pardanashin illiterate woman, therefore, to safe-guard her interest, it was the requirement that she must have been carefully examined and made her understood the relevant matter and nothing should have been kept secret from her but from the evidence on record it is not proved that any special care or precaution had been taken by the Sub- Registrar, scriber of the deed or by the marginal witnesses to the deed and above all there is nothing on record on behalf of the petitioners to rebut the allegation of fraud and undue influence in getting the gift-deed registered under the false temptation of sending the plaintiff to Haj.
10. In the circumstances, the order of the learned trial Court was legally not correct and that of the learned Appellate Court dated 26-1-1993 is perfectly correct and I find no illegality or material irregularity therein. Finding no substance in this revision petition, the same is hereby dismissed.