' The petitioner's suit for partition was dismissed by the Trial Court on 21-1-1988. His appeal also met the same fate on 1-2-1993.
2. Briefly stated the facts of the case are, that the petitioner and respondents Nos.9, 10, 11, 14 and 15, are real brothers and sons of Sharf Din (deceased), whereas respondents Nos.1 to 8, are the other legal heirs of the deceased and step brothers and sister of the petitioner.
3. On 26-4-1983, the petitioner along with respondents Nos.14 and 15, filed a suit for partition, etc., with regard to the properties, detail whereof is given in Annexure-A attached with the plaint, claiming that such properties were owned by Sharf Din and after his demise have devolved upon his legal heirs including the petitioner.
4. Besides, in the suit, the gift deed, dated 8-3-1983 allegedly executed by Sharf Din in favour of his other legal heirs excluding the petitioner qua the suit properties was also challenged.
5. Written statements were filed by the defendants and out of the pleadings of the parties, two important issues were framed. Issue No,6, is regarding the validity of the gift, whereas Issue No,7 envisages whether the petitioner is entitled to a decree. After recording of evidence, the Trial Court dismissed the suit vide judgment and decree, dated 21-1-1988. Appeal filed by the petitioner was also dismissed on 2-1-1993. Hence this petition.
6. It may be pertinent to state here that respondents Nos.14 and 15, who were originally co-plaintiffs in the main suit, subsequently withdrew from the contest and suit to their extent, was dismissed.
However, they have been arrayed as respondents in the present petition.
7. Learned counsel for the petitioner contends that the gift deed, dated 8-3-1983 i,e, Exh.D-1, is the crucial and critical document, validity whereof is the crux of controversy between the parties. He assails Exh.D-1, on the following grounds:
(i) That allegedly two marginal witnesses have attested this document, but they have appended their signatures only on the last page. This document has three pages, the detail of the properties are on earlier pages which admittedly have not been signed by these witnesses, therefore, the execution and genuineness of the document qua such pages is not proved;
(ii) Muhammad Akram, marginal witness of Exh.D-1, while appearing as D. W.2 has admitted that he neither himself comprehends English nor Sharf Din understood that language. However, the Sub- Registrar read the document at the relevant time, but the Sub-Registrar has not been produced, consequently, Exh.D-1 is not proved in accordance with law;
(iii) That Exh.D-1, is a document, which is in English and no person, who has written or typed this document has either been mentioned or produced to prove the same. Even one of the contesting respondents, namely Arshad Naseer appearing as D.W.4, has deposed in the cross-examination that he has not written Exh.D-1. It was not written in his presence, rather his father had asked his friend Sadiq, who got it prepared and brought the same. However, Sadiq has not been produced as a witness.
(iv) It is also stated that the petitioner had brought on record a certified copy of Exh.D-1 from the office of Sub-Registrar, which is supposed to be a photocopy of the original deed and by comparison of these two documents, there is marked difference. For example, according to Exh.D-1, Sharf Din is alleged to have appended his signatures on typed page No,2 at three places, whereas in the certified copy there are only two signatures. Moreover, signatures of Sharf Din on Exh.D-1, and on certified copy are different in characteristic.
(v) Further contention is, that allegedly the registration requirements were completed at the residence of Sharf Din, which is against the relevant rules. In this behalf, he has cited Rules 107 to 109 of the Punjab Registration Rules, 1929, to submit that neither the Sub-Registrar could go to the house of Sharf Din for the registration of the document without permission of the Registrar nor requisite fee, etc., and other requirements were fulfilled in that behalf.
(vi) Lastly, it has been argued that Sharf Din was seriously sick and was suffering from cancer and, thus, the gift in dispute is void on the doctrine of "Marz-ul-Maute". Reliance in this behalf has been placed on PLD 1994 SC 650, PLD 1977 SC 28 and PLD 1958 SC 516.
8, The learned counsel for the respondent has controverted the above submissions and states that the attack on the impugned gift deed (Exh.D-1), which is being now made, was not the petitioner's case in the plaint, thus, no one can be allowed to plead beyond the scope of its pleadings.
Moreover, the gift in question is not invalid for the reason of "Maraz-ul-Maute". Sharf Din though was ailing but had a disposed mind, was not facing an ailment to have immanent fear of death. He did not die immediately but after 20 days of the execution of the said document.
9. I have heard learned counsel for the parties and examined the record.
10. The contention of the petitioner's counsel that the marginal witnesses have not signed Exh.D-1 on each page and for such reason, the document is invalid, has no force in law. It has never been petitioner's case that the other pages except the last page, on which attestation is made are replaced or fabricated. Even otherwise, the petitioner has neither taken this plea in the plaint nor has led any evidence in this behalf, thus, this contention has no force.
11. The plea that the signatures of Sharf Din on Exh.D-1, when compared with the certified copy, are different also has no force, because the certified copy is not the photo copy of Exh.D-1, rather it is an extra copy, which was submitted for the purpose of registration. This fact is proved by putting these two documents side by side, which shows that certified copy is not on the stamp paper, therefore, any difference of signatures on these two documents, cannot be made a ground for holding the same to be invalid. Further, plea of petitioner that gift deed has been registered at the residence of Sharf Din in violation of Rules 107 to 109 of the Punjab Registration Rules, 1929, also has no basis, because this has not been the case of the petitioner covered by the plaint. If this plea was taken, the respondent would have been aware of the nature of attack on this account and were entitled to lead evidence to show the registration process at the house of Sharf Din was after due compliance of the requisite rules, etc.
12. In order to appreciate the other contentions of the learned counsel for the parties, I feel expedient that such pleas be discussed in some more detail. Therefore, it is necessary to first of all advert to the grounds of attack set forth in the plaint qua disputed document (Exh.D-1) which are reproduced as under:---
(a) the deceased was illiterate and has no independent advise;
(b) undue influence was exercised on him by respondents Nos.1 to 8;
(c) the gift was incomplete and not valid according to the Muslim Law;
(d) the deceased was suffering from cancer and other ailments causing apprehension of death in his mind, therefore, it was executed by him during "Maraz-ul-Maute" ;
(e) the deceased was not of sound mind at the time of the alleged gift.
(f) the gift is unfair and unconscionable; and
(g) tom. Gift deed is not properly stamped.
' This was controverted in the written statement. Accordingly issue No,6 is as follows:--- ' Whether the alleged gift deed, dated 28-3-1983 is void, for the reason mentioned in paragraph No,7 of the plaint?
13. Petitioner led evidence and produced P.W.1, Muhammad Amjad Khan, who has stated that Sharf Din was seriously sick and had blisters in his mouth; he during his last days was not able to speak.
In cross-examination, he states that by last days, he means a month before the death of Sharf Din.
P.W.2, is Fazal Rehman, who claims to be a family doctor of Sharf Din and states in examination in chief that 20/25 days before his death, the condition of Sharf Din was serious; he could neither eat nor could sit or speak. From the tenure of cross-examination, an attempt has been made by the respondent's side to establish that the said witness was not treating Sharf Din, but they have not been successful in this behalf. P.W.3 is Muhammad Iqbal who was originally a co-plaintiffs but had subsequently withdrawn, therefore, I am not inclined to consider his statement. Next is P.W.4, the petitioner, who has stated that the deceased was suffering from cancer, was being treated by Col. Dr. Ghulam Memon and also being looked after by Dr. Fazal Rehman (P.W.2) a month before his death, he was seriously sick, he was unable to eat, speak or even recognize any one and that he had lost his senses. The deceased had neither purchased any stamp paper nor executed any gift deed and that the document was got prepared by Mst. Razia Begum, defendant No,1, Mukhtar Bibi, defendant No,2, Arshad Akhtar, defendant No,6 and Mehboob Elahi defendant No,9, in collusion with the brother of defendant No,1; namely, Muhammad Zaman.
14. On the other hand, D.W.1 is Abdul Wahad, who claims to be the tenant of Sharf Din living in the neighbourhood of. Sharf Din and states to have met the deceased .2/3 days before his death, but nowhere this witness has stated that he was not seriously ill or was in his senses or could speak and move around. However, in cross-examination, he in answer to a question, states that he had seen the deceased strolling in the house, but accept that mostly he was on bed. He admits that the deceased was suffering from cancer. D.W.2, is Muhammad Akram, who again is a neighbourer and also a marginal witness of Exh.D-1; he states that his signatures on gift deed are as Exh.D-1/1 and Exh.D-1/B, the other signatures on this deed are of witnesses who are maternal uncle of Arshad defendant. In examination-in-chief, it is stated by D.W.2 that this document was got written by Sharf Din and that he recognizes his signatures on the same. In cross-examination, this witness in clear terms has said that though he can sign in English, but he can neither write nor read English.
Further that when Exh.D-1 was executed, Sharf Din was sick and was unable to move or w-ilk; however, he denies the suggestion that he was even not able to speak. In cross-examination, he states that the document was read over by a Magistrate. It may be pertinent to state here that the witness does not say if it was translated in urdu or was read over in English. Furthermore, it is not his statement that he either read this document, understood the same, explained or read it over to Sharf Din. The Magistrate, who according to the witness, read the document, has not been produced as a witness. He, however, admits being unable to describe the details of the properties finding mentioned in Exh.D-1.
14. D.W.13 is Brig. Ghulam Muhammad Memon, who is Radiotherapist and only produced his prescription (Exh.D-3); he has stated that Sharf Din was suffering from prostate cancer. Nowhere, this witness has said that how many days prior to his death, Sharf Din was mentally and physically alert; could speak or had disposed mind. He in the examination-in-chief has stated of not remembering how long he has been treating Sharf Din. This witness was not cross-examined by the petitioner, rightly so because his statement in chief, in no way advanced the case of the respondent. Rather, the conspicuous omission as specified above had strengthened the position of the petitioner.
15. D.W.4, is one of the defendants (defendant No,6) namely, Arshad Naseer Mughal, who admits that his father was suffering from cancer; was under the treatment of Col. Ghulam Muhammad Memon till the time of his death; he states that Exh.D-1 was executed by his father at his residence in the presence of Muhammad Zaman (maternal uncle of this witness and the other marginal witness of document), Mehboob, Manzoor and Sub-Registrar, who had come to their residence.
Besides, two Munshis had come alongwith them. In examination-in-chief this witness has not stated that Exh.D-1 was either read over or explained to Sharf Din by the Sub-Registrar before execution or that he was literate person, who could read the document himself.
16. In cross-examination, he claims that the stamp paper on which the document has been written, was purchased by him, though no authority in this behalf in writing was given by Sharf Din, but the deceased has instructed verbally. It is admitted by this witness that Sharf Din had not asked him to get in touch with any lawyer for the preparation of Exh.D-1. He had not written this document; he does not know who has written, he even was not present when the document was written. But Sharf Din had asked his friend, namely, Sadiq to get the gift deed prepared but he does not know from where Sadiq has got the document completed. He acknowledges that Sadiq is not a witness to this document, was not present at the time when it was executed, from which lawyer the document has been got prepared. Further, he states of not remembering, as to who brought the Sub-Registrar and Munshis.
17 From the analysis of the above evidence of both the parties, undoubtedly certain crucial points clearly emerges; (i) Sharf Din was suffering from cancer and was under the treatment of Col. Dr. Ghulam Muhammad Memon, who is a Radiotherapist; (ii) he died 20 days after the execution of alleged gift; (iii) no one from the respondents' side has been able to prove as to who is the scribe of this document, where was and who typed it;' (iv) on whose instructions it was prepared; (v) when it was brought for the execution of Sharf Din; (vi) whether it was prepared according to the instructions of Sharf Din, when and what instructions were imparted to author of this document or even Sadiq; (vii) whether the document has been read over and explained to Sharf Din because he besides being sick, was an illiterate person; (viii) whether it was explained to him so as to seek confirmation that it has been prepared in lines with his instructions;
(ix) The Sub-Registrar and the two Munshis, who are said to be present on the day when this document was executed by Sharf Din, have not been produced; (x) Sub-Registrar has not been examined to prove that the document was read over to Sharf Din by him; (xi) Sadiq who is a conduit for having instructions from Sharf Din for preparation of this document and getting it prepared through some one (undoubtedly a lawyer, because of the language of this document) who brought back this document, has not been examined in this matter; and
(xii) Dr. Ghulam Muhammad Memon was examined and according to D.W.4, it is this doctor, who had been examining and treating Sharf Din till his death, has nowhere in examination-in-chief stated or even led to state that Sharf Din till the time of his death was a person with disposed mind; could speak and consciously instruct for the preparation of Exh.D-1 or could execute the same.
18. On issue No,6, the petitioner was only required to discharge the initial onus to establish that Sharf Din was sick; had no disposed mind, was an illiterate person; having no independent advise, was suffering from the disease like cancer and was apprehending death, etc. Thereafter, the onus- had shifted on the respondent to prove that Sharf Din by independent and conscious application of mind has validly executed the gift deed (Exh.D-1). Particularly for the reason that by virtue of this document, a son (petitioner) is being deprived by his father to inherit his estate. At the best, the respondents have only been able to show that the signatures on Exh.D-1, have been affixed by Sharf Din and, thus, on account of the above, it is claimed that this constitutes a valid execution, therefore, the document does not lack any of the vices as alleged by the petitioner.
19. Though in ordinary parlance mere appendage of signature on a document does mean the execution thereof by a person making such document, but when the document is disputed, for such reasons, as are involved in the present case, in law, the proof of signature, would not sufficiently discharge the onus to prove the execution of the document as envisaged by rules of law of evidence. By execution, in fact and law, it means that a person who is affixing signature on a document as an executant, is aware of the nature and the contents thereof. Obviously in case of a literate person, the presumption would be that the signatures are made after reading and accepting the contents of a document. But where the executant is illiterate and also sick the position, would altogether be different. The evidence on record undoubtedly proves that Sharf Din was an illiterate person and it is not clearly established by respondents that at the time of alleged execution it was specifically made known to him that the petitioner is being excluded from the inheritance of his legacy or that he himself had instructed to exclude the petitioner and gave any such instructions for the preparation of Exh.D-1. Admittedly, the document was in English. None of the witnesses produced by respondents, even D.W.2 and D.W.4, has uttered a single word that document was translated in the language, Sharf Din understood and was explained to him.
20. The law has conceived the execution of a document in a different and special way, when it is alleged to have been executed by a Pardanasheen lady or an illiterate person. According to case reported as Umarannessa Bibi v. Jamirarmessa Bibi and another (AIR 1923 Calcutta 362), it is held that "where a person is induced to execute a document than that he had undertaken to execute, the document is void and need not be cancelled. If an illiterate man have a deed falsely read over to him and he then seals and delivers the parchment, that parchment is nevertheless not his deed.
This doctrine was not confined to the condition of an illiterate grantor and it made no difference whether the grantors were lettered or unlettered. "In quite a number of authorities reported as Mst.
Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642), Ghulam Ali, etc. v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1); Mst. Badshah Begum v. Ghulam Rasool, etc. (PLD 1991 SC 1140) and Muhammad v.
Mst. Rehman through Mst. Shrifan Bibi (1998 SCM R 1354) it has been held that burden of proof in respect of document purported to have been executed by illiterate Paradanashin lady effecting her right and interest in immovable property must be in affirmative terms, that it was subsequently understood by her and was really her free and intelligent act and if she is illiterate, it must be read over to her. This rule is also applicable to ignorant and illiterate woman.
21. I am of the considered view that an illiterate person is at par with an illiterate women and, thus, in order to prove the execution of a document by such person it must be established beyond doubt that contents of the document were not only made know to him but it was also explained as to what the nature of the document was and what is contents were. If the document was not in the language understood by the executant, it. Must be accurately and faithfully translated to him. A person relying upon such document is, thus, required in law to produce the evidence to the above effect. It is only after an illiterate person has really understood the document and thereafter, in affirmative affixed his signature or thumb-marked, it can be said to be a validly executed document by him. In support of above, reliance can be placed upon the case reported as Muhammad Arshad v. Muhammad Islam and others (1987 SCM R 115) holding that "mere appendage of signature on sale-deed at tittles when signatory was unaware of its contents, could not amount to execution of deed. Further, in a case reported as National Bank of Pakistan v. Mst.
Hajra Bai, etc. (PLD 1985 Kar. 431), it has been held that "where a document is executed by an illiterate man or illiterate Pardanashin lady, such persons who on account of their ignorance, in experience and social conditions are not able to understand the nature of the transaction, have been provided a cloak of protection. Onus in such cases is always on person who takes advantages of a transaction to show that it was actually conceived and put into practice by disposer himself. "Consequently, I hold that the respondents have failed to prove to valid execution of Exh.D-1 by Sharf Din, therefore, the document has no legal value and significance.
22. Though it may be at the cost of repetition, but it is reiterated that due to lack of producing the actual author of the document, Sadiq to whom it is alleged by respondents that the instructions were imparted by Sharf Din, the Sub-Registrar who is said to have gone to the house of Sharf Din for the purpose of registration, two Munshis who were present as admitted by D.W.4 at the relevant time. Inter alia, all these omissions have serious reflection upon the case of the respondents. These aspects of the case have not been legally considered by both the Courts below and their judgments are the result of misreading and non-reading of the evidence and erroneous inference drawn.
23. As regard the question of "Marz-ulMaute" is concerned, it may be stated that though it is established on record that the deceased was suffering from cancer; was in the agony and pain, but it cannot be said on the basis of the record that on the date of execution of Exh.D-1, his condition was such that he was under the apprehension of immediate death, which could induce him to execute the gift deed Exh.D-1. Although the findings of the Courts below on this question, are not so elaborated but from reading of the evidence, I am not convinced that the requirement of the criteria laid down in the cases reported as PLD 1994 SC 650 and PLD 1977 SC 28, has been met by the petitioner. There is concurrent finding of fact by both the Courts below on this aspect of the matter and no misreading and non-reading has been established, consequently, I do not intend to interfere in the impugned judgments and decrees on the above account.
In the light of above, this revision petition is allowed and the judgments and decrees impugned are set aside. A preliminary decree for partition of the suit properties, according to the shares of inheritance under Islamic Law, is passed in favour of the petitioner and against the respondents.
There shall be no order as to costs.