This petition under section 115 of C.P.C. Is directed against the judgment, dated 21-9-1995 passed by the learned Additional District Judge, Okara, whereby while reversing the judgment and decree of the learned trial Court, suit of the respondent, Mst. Jantay Bibi, was decreed.
2. Brief facts of the case are that one Khuda Bakhsh owned agricultural land measuring 252 Kanals, 1 Marla in Chak No.10/1-L, Tehsil and District Okara. He had another chunk of land in Chak No.85- A/T.D.A., Mauza Karoor Nashaib, Tehsil Karoor District Layyah. He died leaving behind one son namely Abdul Aziz, petitioner No. l and three daughters, Mst. Jantay Bibi (respondent), Mst. Ayesha and Mst. Zainab Bibi. On death of Khuda Bakhsh, his land at Chak No. 10/1-L, Tehsil Okara devolved upon his legal heirs viz. 2/5th share was got by Abdul Aziz petitioner No. l while 1/5th share fell into the lot of each sister. Thus, Mst. Jantay Bibi inherited 50 Kanals and 8 Marlas of land. The entire land, however, remained under cultivating possession of Abdul Aziz, petitioner No. 1, being their brother.
All the three daughters of Khuda Bakhsh deceased including Mst. Jantay Bibi, were married and living with their husbands. Abdul Aziz used to pay produce of land to his sisters according to their shares. Mst. Ayesha was issueless and lived for some time with the respondent but subsequently, she was taken by petitioner No. l to his house. Later on Mst. Ayesha under the influence of Abdul Aziz brought a civil suit against sons of the respondent which adversely effected the relationship between Abdul Aziz and Mst. Jantay Bibi. The respondent demanded physical possession of the land of her share but petitioner No. l avoided which created a suspicion in her mind. On checking the Revenue Record, the respondent came to know that petitioner No. l had got transferred the entire land, including her share as well, in his name by way of a gift in 1962 through Mutation No.47, dated 23-2-1962. It further transpired that Abdul Aziz had further gifted away the whole land measuring 252 Kanals, 1 Marla to his sons namely Abdul Raheem and Ibrahim, petitioners Nos.2 and 3, vide Mutation No.58, dated 5-4-1963. The respondent, therefore, filed a suit challenging the validity of the gift of the ground of fraud and misrepresentation and sought a declaration to the effect that she was still owner of her share of land measuring 50 Kanals, 8 Marlas, having never been gifted away to petitioner No. 1. She prayed therein that the gift Mutation No.47 was illegal, void and ineffective upon her rights. She also challenged the subsequent Mutation No.58 being based on fraud and of no legal effect qua her rights.
3. The petitioners contested the suit, inter alia, on the grounds of limitation, estoppel, non- maintainability as well as deficiency in court-fee and pleaded that the gift was made voluntarily by the respondent to petitioner No. l who was the only brother of all the three sisters. Out of divergent pleadings of the parties, the learned trial Court framed the following issues:-----
(1) Whether the suit is barred by time? O.P.D.
(2) Whether the plaintiff is estopped to file this suit by her words and conduct? O.P.D.
(3) Whether the defendants are entitled to special costs under section 35-A, C.P.C.? O.P.D.
(4) Whether the suit is barred by section 42 of Specific Relief Act? O.P.D.
(5) Whether valuation of suit property has not been determined correctly? If so what is the correct valuation? O.P.D.
(6) Whether the Mutation No.47, dated 23-2-1962 and Mutation No.58, dated 5-4-1963 relating to the suit property are illegal, against facts, result of fraud, misrepresentation, void and ineffective upon the rights of the plaintiff? O.P.P.
(7) Whether the plaintiff is entitled to declaration and permanent injunction as prayed for? O.P.P.
(8) Whether the plaintiff and her sisters had validly gifted the suit property to the defendant No. l?
O.P.D.
(9) Relief.
4. The learned trial Court, however, dismissed the suit. On appeal judgment of the learned trial Court was reversed through the impugned judgment, hence the present revision petition.
5. Learned counsel for the petitioners contends that the lower appellate Court has erroneously held that the burden of proof was upon the petitioners, to prove that the gift was made voluntarily by the respondent. The mutation of gift was thirty years old, therefore, presumption of truth was attached to it as per Article 100 of Qanun-e-Shahadat, 1984 but the learned Additional District Judge misapplied the law in presuming the document otherwise. He further, submits that to prove the gift mutation, the production of the Revenue Officer was not required at all and the inference drawn in favour of the respondent for having not produced him, is unlawful. Lastly he argued that the appellate Court below misread the evidence on record in reversing the well-reasoned judgment of the learned trial Court.
6. Learned counsel for the respondent, on the other hand, submits that respondent, Mst. Jantay Bibi, is admittedly an illiterate Pardah Nasheen lady, therefore, it is duty of the Court to guard and protect the right of such ladies. The respondent plaintiff appeared before the learned trial Court and stated on oath that she had never gifted her share of property to petitioner No. 1. So, the burden to prove a valid gift was on the defendant. The defendant having not entered into witness- box, the sanctity of the gift was shaken. The Revenue Officer who attested the mutation was not produced by the defendant. The learned District Judge, therefore, was justified in reversing the judgment and decree of the learned trial Court. He further, submitted that daughter of Mst. Zainab is married with son of petitioner No. l whereas Mst. Aeysha being issueless is living with him, therefore, both these two sisters are supporting him. The respondent is living separately alongwith her husband and children. Petitioner No. l has been paying her share of produce regularly, therefore, she was not aware of the aforesaid mutation of gift although it is 30 years old. It was for petitioner No. l to prove that the gift was valid, voluntary and not the result of fraud and misrepresentation. He having failed to prove its execution in accordance with law, the learned lower appellate Court rightly accepted and decreed the suit of the respondent.
7. I have heard the learned counsel for the parties at length and perused the record.
8. There is no dispute regarding relationship of petitioner No. l and the respondent as brother and sister inter se. The disputed property was inherited by the respondent from her father. She is a married woman and living separately. The property was not partitioned, therefore, she is presumed to be in joint possession with her brother. It has been held in Ghulam Haider v. Mst. Sooban Bibi and others 1986 MLD 1952 that:------ "Entries in mutations by itself would not be sufficient to place initial onus of proof on party disputing their correctness -- It is for beneficiaries of such entries to prove that entries based on admission of a party were affirmatively against its maker both as regards identity of maker and contents of statement attributed to him."
It has been further laid down in Hakim Khan v. Nazeer Ahmed Lughmani and 10 others 1992 SCMR 1832 that:----- "Mutation by itself does not create title and the person deriving title thereunder has to prove that the transferor did part with the ownership of the property, the subject of mutation, in favour of the transferee and that the mutation was duly entered and attested. Any person who is acquiring title through a mutation, the burden of proof of proving transaction embodied in the mutation, is upon him.
8-A. Mst. Jantay Bibi appeared before the learned trial Court as P.W.1 in support of her plea that she did not appear before the Revenue Officer for attestation of mutation in favour of petitioner No. 1.
She has categorically denied the correctness of the gift mutation. Petitioner No. 1, who is now dead and is represented by his legal representative, did not enter into witness-box to rebut the assertions of the plaintiff on oath. His non-appearance give rise to adverse inference against him.
He has not refuted the statement of the plaintiff in Court for the reasons best known to him. The burden of proof, the moment the donor denies the execution of the document, is shifted on the donee -- the beneficiary of the gift, who, in the present case, has failed to prove that the mutation of gift was voluntarily made by the donor in his favour. The findings of the learned Additional District Judge that the gift was not voluntarily made by the respondent, are supported by valid reasons.
9. The contention of the learned counsel for the petitioners that the document was 30 years old, therefore, presumption of truth is attached to it, stands rebutted by the evidence of the, respondent-plaintiff. She has stated that defendant No. l had been paying the share of produce to her. Since the property was in joint possession and the relations between the brother and the sisters were cordial, therefore, the respondent could not know of the fake mutation. It has been held in Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 that:-- "It is well-settled that where any sale-deed is executed by an illiterate lady, it is for the purchaser to establish that she had executed it of her own free will under independent advice from her relations and fully knowing the nature of the transaction."
Similarly it has been held in Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 that:-- "Even in the case of an ordinary donor it has never been held that a simple declaration as to delivery of possession in the deed of gift would effect a transfer of possession if land was in possession of tenants and ins a case like the present where the donor was in the hands of the donee any recitals at her instance would obviously be of less weight. Even consideration relating to Pardanashin ladies would apply to a case like the present and it would have to be proved that the donor fully comprehended what she was doing. Delivery of possession depends on the intention of the donor and that intention is not sufficiently proved in a case where she is old, ailing, under apprehension of death and in the hands of the donee by a formal recital of delivery of possession in the gift deed."
The aforesaid judgments clearly applicable to the facts of the present case. Here the property was joint and possession .Was not delivered by the donor to the donee. Mere recital in the mutation is not sufficient to construe that the donee took over the possession in pursuance to the gift. The respondent is an illiterate Pardahnashin lady. Her presence before the Revenue Officer is not established. Her deposition as P.W.1 having not been rebutted by the donee on oath in the Court, leads to a conclusion that she had not gifted the property to petitioner No.1. She was not aware of the mutation till institution of the suit. The mutation of gift by her to petitioner No. l and further gifting of the property by him to his sons is not in accordance with law. Since the property was not gifted, the imitation is held to be illegal and procured through fraudulent means,-- and presumption of truth attached to 30 years old document is not attached here: The presumption has been duly rebutted by the plaintiff by producing reliable evidence. Article 100 of the Qanun-e- Shehadat, 1984 is of no help to the petitioner in the given circumstances of the case. Even otherwise, it is not understandable why the respondent should part with the valuable property and gift it to her brother in preference to her own children. It is, however, clear that the other sister Mst.
Ayesha is issueless and living "with her brother-petitioner No.1 whereas the daughter of the third sister. Mst. 7ainab, is married to son of petitioner No.1, therefore, both the aforesaid sisters chose to support the claim of petitioner No. 1.
10. The petitioners have also not produced the Revenue Officer to establish due execution of the gift allegedly made by the respondent in their favour. The contention of the petitioners that the gift mutation has longstanding entries in-the Revenue Record forming part of record of rights, therefore, presumption of truth is attached to such a document, has been repelled in Hakim Khan's case C 1990 MLD Pesh. 89 wherein it has been held that such entries in a Jamabandi were rebuttable when they were challenged on the ground of fraud and misrepresentation. It was further held in Noor Muhammad v. Mst. Karim Bibi PLD 1959 (W.P.) Lah. 932 that':----- "Donor an illiterate woman is entitled to protection as Parda Nashin though not observing Parda.
Donee in a position of exerting undue influence. Onus on donee to show that gift was trade without exercising influence. Gift was set aside."
11. The question of limitation raised by learned counsel for the petitioners has no weight in peculiar circumstances of the case as laid down by Supreme Court in Ghulam Ali's case PLD 1990 SC 1 that "no limitation runs in case of wrong mutation which conferred no right in the property". The respondent is the legal heir of the property left by her father to the extent of her share. She has sons and is living with her husband. It is not logically believable that she would prefer her brother over her own sons in the matter of property. It is a common tendency in this part of the country that male members of the family try to deprive the females of their property inherited from their parents in a clendestine manner through such type manoeuvered mutations. The custom although has died by inches but its spirit is still being practised by playing fraud with the connivance of the revenue officials to deprive such innocent ladies of their due rights in their ancestor's property.
As a result of above discussion, the impugned judgment does not warrant interference. This petition has no merit and is dismissed with no order as to cost.