' This second appeal has been preferred by the appellants against the judgment and decree dated 31-7-1997 and 18-8-1997 passed by the VIth Additional District Judge Hyderabad in Civil Appeal No,91 of 1994 whereby he allowed the said appeal filed by the respondents, set aside the judgment and decree dated 31-3-1994 and 3-4-1994 passed by the II Senior Civil Judge Hyderabad in F.C. Suit No, 19 of 1987 and decreed the suit of the respondents in the terms as incorporated in the impugned decree dated 18-8-1997.
2. Brief facts forming background of this appeal are that on 2-2-1987, the respondents filed a suit for declaration, cancellation of gift, partition and mesne profits against the appellants stating therein that they are pardanasheen and illiterate ladies. The agricultural land described in Schedules "A" and other immovable and movable properties described in Schedule "B" to the plaint were owned and possessed by their father Haji Muhammad Ismail son of Muhammad Hussain Kakepoto who died on 28-5-1983, leaving behind the two respondents/appellants Nos.1 to 3 and Mst. Rabia his widow (now dead) as his legal heirs to inherit these properties. The respondents after the death of their father approached the appellants Nos.1 and 2 for their due share in these properties and partition of land but they kept the respondents on hopes. The respondents, therefore, moved an application before the Revenue Authorities for mutation of record of the agricultural land of their deceased father, in their favour and in favour of other legal heirs by inheritance but the Revenue Authorities delayed mutation proceedings and thereby allowed the appellants Nos.1 and 2 an opportunity to forge a gift of agricultural land in favour of appellants Nos.4 and 5. Subsequently, on the basis of forged gift document the Mukhtiarkar mutated the record of the agricultural land shown in Schedule "A" in favour of the appellants Nos.4 and 5. The respondents claimed 25 paisa share (twelve and half paisa each) in all the properties shown in Schedules "A" and "B" attached with the plaint and made following prayer in the plaint: "(a) That it be declared that plaintiffs have 25 paisa share in the suit property shown in Schedules A and B.
(b) That the alleged gift dated 17-4-1982 be declared illegal, void and not binding on the plaintiffs.
(c) That the property shown in Schedule B be partitioned by metes and bound and plaintiffs be put in separate possession of their share of 25 paisa.
(d) That defendants Nos.1 to 2 to pay mesne profits from the earning of the property from 28-5- 1983 till the final settlement.
(e) Costs of the suit be borne by the defendants."
3. On service of summons the appellants and Mst. Rabia filed their written statement in Court on 23-5-1987, wherein they denied that respondents are illiterate and pardanasheen ladies. The appellants further submitted that at the time of his death Haji Muhammad Umer did not own and possesses the agricultural land shown in Schedule "A" as during his lifetime he had made an oral gift of his land in favour of his grandsons, the appellants Nos.4 and 5, in equal share on 22-3-1982 and its confirmation was made in writing on execution of a confirmation document by him on 17-4- 1982 which was also signed by Muhammad Umer and Muhammad Ali as witnesses, in whose presence the oral gift was made, and this document was duly attested by the notary public as well as by the Civil Judge Hyderabad. The appellants also submitted that on 25-8-1986 a Jalsa-e-Aam was held where statement of witnesses were recorded by the Revenue Authorities, but no objection was raised at that time by anybody and thus mutation was effected in favour of the appellants Nos.4 and 5. About the properties disclosed in Schedule "B" the appellants submitted that the tube- well and Otaq over the suit land were the properties of the appellants Nos.4 and 5 and that except one buffalo no other cattle was owned by deceased Haji Muhammad Umer and the said buffalo was given to his wife. Regarding the other properties mentioned in Schedule "B" also the appellants denied the claim of the respondents and submitted that there were electricity arrears of about Rs, 48,04.63 against Haji Muhammad Umer which were paid by the appellants Nos.4 and 5, in addition to it there was also a loan of Agricultural Development Bank out of which a sum of Rs,67,102 was paid by the appellants Nos.4 and 5 in June, 1984 and still a sum of Rs,20,000 is outstanding. The appellants also challenged the maintinability of the suit as being time-barred and not properly and adequately valued.
4. On the pleadings of the parties, learned lower Court framed following issues in the suit on 7-1- 1989.
"(1) Whether the suit is not in time?
(2) Whether the plaintiffs are not pardanashin and illiterate lades?
(3) Whether the properties shown at Serial Nos. 3, 7, 9 to 12 were not owned by Haji Muhammad Umer?
(4) Whether late Haji Umer during his life on 22-3-1982 orally gifted land to his grand-sons defendants Nos.5 and 6 in equal shares and confirmed the same on 17-4-1982 and the alleged gift is forged or fabricated? If so its effect?
(5) Whether the mutation on the basis of gift is illegal, mala fide, void and in violation of law?
(6) Whether the plaintiffs are entitled to property by inheritance?
(7) Whether the plaintiffs are entitled to get the properties partitioned?
(8) Whether the plaintiffs are entitled to get the mesne profits of property? If yes since when and at what rate?
(9) Whether the plaintiffs are entitled to relief claimed?
(10) What should the decree be?
5. At the stage of evidence the respondents examined following witnesses from their side.
(i) Yar Muhammad (Exh. 46), loan officer Mehran Sugar Mills, who produced statement of account Exh.
47.
(ii) Abdul Ghaffar (Exh. 4-B) who produced statement of account of A.D.B.P. Tando Allayar as Exh.
49, letter dated 21-9-1986 as Exh. 50, agricultural pass book as Exh. 51, security papers as Exhs. 52 and 53, loan agreement as Exh. 54 sanction letter as Exh. 55, two supply orders receipts as Exhs. 56 and 57 and another receipt as Exh. 58 (photo copies of these documents Exhs. 51 to 58 were kept on record and original were returned)
(iii) Nabi Bux (Exh. 59) Clerk in the Court of Civil Judge Tando Allayar who produced the whole R & P of Suit No, 151 of 1979 as Exh.
60.
(iv) Muhammad Rahim (Exh. 66) who produced documents Schedule "A" to the plaint as Exh. 67, Schedule "B" to the plaint as Exh. 68, letter of A.D.B.P dated 24-9-1986 as Exh. 69, letter of Mehran Sugar Mills dated 23-9-1986 as Exh. 70, letter of M.C.M. Dated 24-11-1986 as Exh.71 and statement of account of late Haji Muhammad Umer in M.C.B. Deh Daro Shah branch as Exh.
72.
'Thereafter, side of the respondent was closed by their counsel vide statement, dated 9-9-1989 as Exh.73.
6. The appellants on their turn examined following witnesses:
(i) Narain Das (Exh. 83), who produced pass book as Exh.
84.
(ii) Ghulam Haider (Exh. 91), Tapedar, who produced Revenue Record containing relevant entries as Exh. 92 to 96.
(iii) Ali Ahmad (Exh.
98.) Tapedar Tapo Bulghari,
(iv) Abdul Shakoor, (Exh. 121), advocate and notary public, who produced photo copy of gift confirmation deed as Exh. 122 and order of Additional Chief Secretary, Government of Sindh dated 8-12-1986 as Exh.164.
(v) Muhammad Umer (Exh.
123.) on of the witness of Exh.
122.
(vi) Muhammad Hussain (Exh. 124), appellant/defendant No,2, who produced clearance certificate of A.D.B.P. As Exh. 125, different electricity bills as Exh. 126/1 to Exh. 126/6, order in appeal before Assistant Commissioner Tando Allayar as Exh. 127, revenue bills as Exh. 128/1 to 128/5, and land revenue receipts as Exh. 129/1 to Exh. 129/5. Examination-in-chief of this witness was recorded on 27-4-1991, however, thereafter this witness did not appear in Court for his cross-examination.
(vii) Ali Nawaz (Exh.
130.) the appellant/defendant No, 1 . (viii)Anwar Ahmad Memon, Senior Civil Judge, Khairpur (Exh.
145.) Theeafter, the side of the appellants was closed on 9-3-1994.
7. The lower Corut after hearing the arguments of both the learned counsel for the parties dismissed the suit of the respondents.
8. Aggrieved by judgment and decree passed by the lower Court the respondents preferred an appeal under section 96, C.P.C. Before the District Judge Hyderabad which was subsequently transferred to the Court of VIth Additional District Judge Hyderabad. When this appeal came up for hearing before the learned Vlth Additional District Judge Hyderabad, he after hearing the arguments of learned counsel allowed the appeal, thereby set' aside the judgment and decree of the lower Court, and decreed the suit of the respondents in the terms as incorporated in the impugned judgment and decree.
9. On service of notice of this appeal the respondents have filed their cross objections under Order 41, Rule 22, C.P.C. Wherein they have challenged the rejection of their claim in respect of item Nos.1 6, 8 to 12 of schedule "B" of the plaint as well as the relief claimed in prayer clause "C" of the plaint.
10. On 2-12-1999 when this appeal was already partly heard by me on three previous dates, the learned counsel for the appellants has submitted an application under section 151, C.P.C. Being C.M.A. No,303 of 1999, with the following prayers.
"It is, therefore, prayed that this Honourable High Court may be pleased to allow the appellants to summon the record from the office of the Registration of Identity Card pertaining to the National Identity Card issued in the name of Haji Muhammad Umar in the Year 1976."
11. Notice of this application was given to the respondents and on their behalf husband of respondent No,1, Muhammad Somar has submitted his counter-affidavit.
12. I have heard at length the arguments of Mr. Hassan Mehmood Baig, and Mr. Jhamat Jethanand, learned counsel for the parties.
13. Mr. Baig strenuously argued the case of the appellants and submitted that the learned 1st Appellate Court committed gross illegality in ignoring the authentic and reliable evidence adduced by the appellants in this case and also by taking into consideration the evidence adduced by the respondent which was inadmissible under the law and thus the judgment of the Appellate Court suffers from misreading of evidence and is hale to be set aside. Dilating upon these submissions the learned counsel read the depositions of the attesting witness of gift confirmation deed, Muhammad Umer as Exh. 123 as well as the Notary Public Abdul Shakoor as Exh. 121 and Anwar Ahmed Memon Senior Civil Judge as Exh. 145 who were examined by the appellants to prove the gift and submitted that from their evidence execution of Exh. 122 by Haji Muhammad Umer was fully proved. Referring to the depositions of other witnesses of the appellants the learned counsel further submitted that from their evidence it was clearly established on record that the original confirmation of gift (Exh. 122) was produced before the Mukhtiarkar at the time of Jalsa-e-Aam held on 25-8-1986 and on that basis mutation of suit land was effected in favour of the appellants Nos.4 and 5, and from there subsequently the original confirmation of gift deed was misplaced and in such circumstances the appellants were not left with any other option but to produce and rely upon photostat copy of the said document as its secondary evidence which was admissible under the law but illegally discarded by the Appellate Court. The learned counsel also submitted that the production of loan documents and the R&P of Suit No,151 of 1979 do not in any manner help the case of the respondents as these documents were not sufficient to show that the oral gift was not acted upon by the parties, further mere, fact that in the Revenue Record mutation on the basis of oral gift was not effected uptil the time of death of Haji Muhammad Umer was also not sufficient to draw any such inference. Referring to the pleadings of the respondents the learned counsel submitted that in their plaint the respondents have neither challenged the transaction of oral gift nor have stated that the appellants Nos.4 and 5 were not delivered possession of the suit land at the time of oral gift and, therefore, the suit was not maintainable and the respondent cannot be allowed to set up and prove a different case at the stage of evidence. In support of this submissions the learned counsel has placed his reliance on the cases reported as (a) Binyameen and three others v. Choudhry Hakim and another (1996 SCMR 336), (b) T. Motandas through his Legal Heirs v. Anis Ahmad (PLD 1987 Karachi 159) and Muhammad Siddique and 8 others v. Wazir Hussain (1985 CLC 1091). Referring to the evidence adduced from the respondent side the learned counsel submitted that the two witnesses of the respondents namely Yar Muhammad (Exh. 46) and Abdul Ghafoor (Exh. 48) were not examined on oath and, therefore, the documents produced by them could not be relief by the respondents as the same are not proved in accordance with law. Regarding the evidence of respondents witness Muhammad Raheem (Exh. 66) the learned counsel submitted that mere production of some documents by him as Exhs. 67 to 72, also does not help the case of the respondent, but all these documents were illegally taken into consideration by the Appellate Court resulting in passing of impugned judgment against the Appellants. In support of his submissions the learned counsel has further placed his reliance on the following case-law.
1. Zakaullah Khan v. Muhammad Aslam and another (1991 SCMR 2126).
2. Mst. Zainab Ribi and others v. Mst. Bilqis Bibi and others (PLD 1981 SC 56).
3. Allah Din v. Habib (PLD 1982 SC 465).
(4) Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137).
14. On the, other hand Mr. Jhamat Jethanand learned counsel for the respondents has strongly controverted these submissions of the learned counsel for the appellants and contended that from the perusal of the R&Ps of Suit No, 151 of 1979, loan documents, bank record etc. Produced by respondents witness Yar Muhammd, Abdul Ghafoor, Nabi Bux and Muhammad Rahim it is palpably clear that there was no gift made by the Haji Muhammad Umer at any time but this fraudulent game was played by appellants Nos.1 and 2 (the brothers of the respondents) to deprive the respondents of their legitimate share in the agricultural lands left by their deceased father Haji Muhammad Umer. When the two respondents agitated their claim before the Revenue Authorities, a forged and bogus gift confirmation deed was prepared by the appellants to dislodge the claim of the respondents. Referring to the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), the learned counsel contended that in such circumstances, it is the duty of the Court to protect the interest of two lady respondents who are illiterate and pardanashin ladies.
Referring to Article 76-C of Qanoon-e-Shandat Ordinacne, 1984 the learned counsel submitted that the alleged confirmation of gift documents (Exh. 122), is a forged document, it was not where pleaded by the appellants in their written statement that the original of the same was produced by them before the Revenue Authorities and in such circumstances any evidence lead by the appellants in this regard is liable to be ignored. In this connection the learned counsel further submitted that factually also there is nothing on record, except the oral statement of one witness of the appellants that the original deed was kept in voucher file which remained with Tepadar, which assertion; too, is hearsay and belied from the order of the Assistant Commissioner passed in appeal as from the perusal of this order (Exh. 127) it can be easily gathered that at no point of time the alleged original confirmation of gift document was submitted or retained by the Revenue Authorities. With reference to the contents of confirmation of gift document (Exh. 122) the learned counsel also highlighted following deficiencies and submitted that these defects in Exh. 122 further strengthened the case of the respondents that this is a forged and fabricated document.
(a) The stamp paper on which the said declaration has been typed has been purchased in the name of one Muhammad Ismail son of Noor Muhammad who is a stranger to the family of the parties and there is no explanation that if the gift was made by late Haji Muhammad Umer why the stamp paper was not purchased in the name of alleged donor and even alleged donee or their father.
(b) There is no visible date of purchase on the stamp paper of Exh.
122.
(c) Abdul Shakoor, advocate who has allegedly identified the donor on Exh. 122 was appointed as Notary Public on 8-12-1986 vide Exh. 164 and thus at the time of execution of alleged document Exh.
122 he was not a Notary Public.
(d) There are number of admitted signatures of Haji Muhammad Umer on various documents on record viz. Exhs. 51, 54, 56, 57, 58 and Exh.60 wherein the deceased has put his signatures as Haji Muhammad Umer while on Exh. 122 word "Muhammad" is missing on the alleged signatures of the deceased and even otherwise there is marked difference in the signatures of deceased on Exh. 122 and other documents.
15. Referring to the cross objections filed by the respondent in this appeal the leamed counsel submitted that once the suit of the respondents about their claim as co-owner of suit land has been decreed in their favour and it is established that through fraudulent means the respondents were deprived of their share from the income of the suit land by the appellants, since the time of death of their father Haji Muhammad Umer the respondents are entitled for mesne profits for this period and the Appellate Court has assigned no cogent reasons for disallowing this claim of respondents and also for disallowing their claim in respect of items Nos.1, 6 and 8 to 12 of Schedule "B" of plaint and, therefore, the findings of the 1st Appellate Court to that extent are liable to be set aside and the suit of the respondents may be decreed as prayed. To fortify his submissions the learned counsel has further placed his reliance on the following case-law.
1. Mst. Khurshid Begum and 6 others v. Chiragh Muhammad (1995 SCMR 1237).
2. Muhammad Yakoob and others v. Naseer Hussain and others PLD 1995 Lah.
395.
3. Mst. Shah Begum and 3 others v. Mst. Sughran Begum (1996 CLC 1959).
4. Ghulam Hassan and others v. Sarfaraz Khan and others (PLD 1956 SC 309.
16. Mr. Baig replying to the arguments of Mr. Jhamat Jehtanand on his cross-objections, submitted that the respondents have to prove that the item Nos. 1, 6 and 8 to 12 were left by deceased Haji Muhamad Umer which they have failed to prove and, therefore, they have been rightly adjudged by both the Courts below not entitle for any relief in this regard.
17. On his application C.M.A. No,303 of 1999 the learned counsel submitted that at the stage of second appeal for the first time signatures of late Haji Muhammad Umer on Exh. 122 have been disputed by the respondents and in such circumstances, it is necessary that the original record relating to the Identity Card issued to the deceased may be summoned from the office of Registration of Identity Card to confirm the signatures of the deceased on confirmation of gift document. Mr. Jhamat controverted this submission with his reply that once the respondents have pleaded the gift document Exh. 122 as a forged one then it covers the plea that they have also challenged the signatures of Haji Muhammad Umer over it and thus application C.M.A. No,303 of 1994 is misconceived and liable to be dismissed.
18. I have given due consideration to the arguments advanced before me and perused the material placed on record by the parties. The contentions raised in this appeal can be examined from two angles; one with reference to the properties mentioned in Schedule "A" to the plaint, in which case the point for adjudication would be as to whether any gift was made by Haji Muhammad Umer in favour of his two minor grand-sons i,e, Appellants Nos.4 and 5 and the other with reference to the properties mentioned in Schedule "B" to the plaint and also claimed in cross- objections, in which case the point for adjudication would be as to whether Haji Muhammad Umer at the time of his death owned such properties and the same have devolved on the respondents according to their share by way of inheritance. Examining the first point as regard to the gift, it is pertinent to note that though the appellants have claimed oral gift in favour of appellants Nos.4 and 5 on 22-3-1982 and execution of confirmation of gift document by Haji Muhammad Umer, on 17-4-1982 but uptill the time of death of Haji Muhammad Umer, who died more than one year thereafter on 28-5-1983, neither any steps were taken for 'change of mutation in the record of rights on the basis of such alleged gift nor even the same was acted upon which is evident from the facts that admittedly on 27-7-1982, i,e, more than three months of alleged gift, Haji Muhammad Umer, as owner of the suit land, mortgaged same land with A.D.B.P. And secured advance loan of Rs,55,640. In addition to this all along land revenue, electricity dues of the tubewell etc. Were paid and also crops of the suit land were supplied to the sugar mill in the name and account of Haji Muhammad Umer, which facts are evident from various documents placed on record by the respondents and not disputed by the appellants. The other contentions that mutation of other gift of land made earlier by Haji Muhammad Umer was also effected in the year 1986 and in the proceedings of Jalsa-e-Aam held on 25-6-1986 no objection was raised by the respondents has also no force, as authenticity of other gifts was not called in question by any of the parties, and there is nothing on record to show that the two respondents, who are ladies, had any notice of proceedings of Jalsa-e-Aam allegedly held on 25-8-1986, even otherwise when the respondents have already claimed their share in the suit land in the year 1985 by moving such application before the Revenue Authorities then their non-appearance in Jalsa-e-Aam to object to such mutation proceedings would not justify any adverse inference against them on that basis.
19. Apart from it perusal of the record and proceedings of Suit No,151of 1979 (Exh. 60) goes to show that this suit for pre-emption was pending since 12-3-1979 and in this suit after the death of Haji Muhamamd Umer on 28-5-1983, an application under Order XXII, rule 3, C.P.C. Was moved on 12-9- 1983 which contained the name of both the respondents as legal heirs of Haji Muhammad Umer.
Thereafter, when the dispute arose between the parties another application under Order I, rule 10 read with section 151, C.P.C. Seeking transposition of respondents from the arrary of plaintiffs to the defendants was moved on 18-10-1986 by the appellants with the affidavit of Ali Nawaz, but in that application, too, the fact of alleged oral gift or execution of Exh. 122 in favour of appellants Nos.4 and 5 was not disclosed. Not only this but when after framing of issues in Suit No,151 of 1979 evidence of the plaintiff's side was recorded in that suit, the appellant Ali Nawaz in his deposition recorded in Court on 27-9-1986, in his examination in-chief stated as under:- "Plaintiff Haji Muhammad Umer was my father. He has expired in the year 1983. Plaintiffs Nos. 3 and 4 are my sons. They are minors. I am their natural guardian. I and plaintiff No,2 are the legal heirs of plaintiff No,1 . We, the plaintiffs, own agricultural land in Deh Naghna, Taluka Tando Allah Yar. I see Exhs. 84 to 86. This is the record of right of our lands. Our land is correctly shown in Exh. 83 in yellow and green colour."
' This witness in his deposition not only did not disclose anything about the alleged gift but by producing Exhs. 84 to 86 confirmed the fact that the suit land, uptill the time of his death, was owned by Haji Muhammad Umer and devolved on the plaintiffs, including the two respondents who were also plaintiffs in that suit, by inheritance. In the circumstances as discussed above, coupled with the fact that the appellants throughout the proceedings of the suit did not either dispute the existence or genuineness of documents produced by respondents witnesses Yar Muhammad, Abdul Ghaffar and Nabi Bux, the appellate Court was fully justified and has committed no illegality in taking into consideration these documents for deciding the crucial point of gift against the appellant. In the given circumstances, the appellants, at the stage of second appeal, are precluded from raising such technical plea for the first time. The other contention of Mr. Baig with reference to the pleadings of the respondents that they have not challenged the oral gift and not pleaded that the appellants Nos.4 and 5 were not delivered possession of suit land and, therefore, respondents cannot be allowed to prove such case beyond their pleadings at the stage of evidence has also no force as paragraphs 4 and 5 and prayer clause of the plaint amply cover such pleas.
' In relation to what has been discussed above, the deficiencies in the document (Exh. 122) highlighted by Mr. Jhamat Jethanand, in his arguments, as referred above, are also not without substance and the same also create serious doubts about the genuineness of this document and the claim of gift as well.
20. Coming to the other contention with reference to the properties mentioned in Schedule "B" to the plaint and claimed by respondents in their cross-objections, it seems that the appellants have not denied the existence of tubewell I and Otaq over the suit land so also the tractor and gobal shown as item Nos. 2, 4, 5 and 13 of Schedule "B" (Exh. 68). In such circumstances the appellate Court has rightly maintained the claim of the respondents in respect of these items of Schedule "B".
However, with regard to items No,3, 7 and the other items claimed by the respondents there was no reliable evidence adduced by the respondents. The findings of the 1st appellate Court as regard, to item Nos.3 and 7 of Schedule "B" are thus set aside, while findings with regard to other items, of Schedule "B" are maintained.
21. Besides, what has been discussed above the perusal of the impugned judgment reveals that the appellate Court, in its judgment has thoroughly examined respective case of the parties with reference to their pleadings, evidence led by them in the suit and the relevant provisions of law.
Reasons assigned in the impugned judgment for setting aside the findings of the lower Court on issues Nos.3 to 6, 9 and 10 are based on proper appreciation of evidence, the same do not suffer from any miss-reading of evidence or any other legal infirmity, thus to this extent, except items Nos.3 and 7 of Schedule "B", no case for interference in the impugned judgment is made out in this appeal. However, the findings of the first appellate Court on issue No,8, which relates to the claim of mesne profits, are not based on proper appreciation of the evidence and circumstances of the case and thus liable to be set aside. Once the appellants have admitted that on the basis of alleged gift, they have denied the respondents of their respective share in the suit land, which gift has now been declared by the first appellate Court as illegal and void, then the appellants are liable to account for the share of income of the respondents for that period which in the instant case is to be computed from 3-2-1984 i,e, three years prior to the filing of the present suit. For this purpose, the lower Court shall frame preliminary decree, thereby appointing Commissioner to assess the income of the suit land for the intervening period and to determine the share of mesne profits of respondents therefrom. The Commissioner while assessing the share of mesne profit of respondents shall also take into account the payments of loan liability and electricity dues of the tubewell which were outstanding against Haji Muhammad Umer at the time of his death and paid by the appellants after his death, as is evident from the documents Exhs. 125 and 126/1 to 126/5, produced by the appellants before the lower Court.
22. Examining the case-law referred by the leaned counsel for the parties it may be observed that there is no cavil to the principles as propounded in these cases but a careful study of the same unveil that the case-law referred on behalf of the appellants is distinguishable and do not help them in the facts of the instant case.
23. As regards to the pending application (C.M.A. 303 of 1999) it would suffice to observe that respondents, in their plaint, have specifically pleaded that the gift document was a forged one and, therefore, it goes without saying that the respondents have also questioned the genuineness of signature of the deceased on such document. For this reason at this belated stage this application is misconceived and is hereby dismissed.
24. As a sequal of the above discussion this appeal has no merits and the same is accordingly dismissed. However, the cross-objections, to the extent of claim of mesne profits of the respondents, are sustained and allowed to the extent.