'This revision petition arises out of a suit for declaration and cancellation of gift deed dated 22-3- 1982 (registered on 1-4-1982) filed by Mst. Bano Begum, respondent on 19-10-1993. The subject- matter of the suit is a house bearing Property No,95-C, Gumti Bazar, Lahore. This property was owned by Mst. Saira Bibi deceased mother of the original parties in the suit, who passed away on 13-7-1982. She alienated a portion of the house in favour of the respondent/plaintiff on 20-12-1978 through a sale-deed for an ostensible price of Rs,4,000. Thereafter, Mst. Saira Bibi allegedly executed a gift deed in favour of Muhammad Boota, petitioner on 22-3-1982 which was registered on 1-4-1982. Muhammad Boota, petitioner also passed away on 5-6-2000 and his legal heirs were allowed to be brought on the record vide order dated 26-2-2001. The gift-deed bears thumb-mark of Mst. Saira Bibi and Muhammad Boota, deceased petitioner. The Excise and Taxation Officer's record since 1985 onwards shows the petitioner's name as owner of the disputed portion of the house.
2. The petitioner resisted the suit and filed his written statement which gave rise to the following issues:--
(1) Whether the plaintiff is legal heir of Mst. Sairan Bibi (her deceased mother). Hence she is entitled for her share from the property of her deceased mother and entitled for decree for declaration?
OPP (1-A) Whether gift deed dated 1-4-1982 is void and liable to he cancelled? OPP
(2) If Issue No,1 is proved in affirmative, then whether the plaintiff is entitled to have decree for partition as prayed for? OPP (2-A) Whether the suit is within time? OPP
(3) Whether the plaintiff has no cause of action to file the suit? OPD
(4) Whether the defendant No,1 is entitled to recover special costs from the plaintiff, if so, up to what extent? OPD
(5) Relief.
' The trial Court recorded oral as well as documentary evidence of the parties. The plaintiff/respondent produced P.W.1 Mst. Anwar Bano, P.W.2 Allah Rakha in support of her case and herself appeared as P.W.3. On the other hand, the defendant/petitioner examined D.W.1 Abdul Ghafoor, D.W.2 Zahoor Ahmad (marginal witnesses of the gift deed) and himself appeared as D.W.3. After perusing the oral as well as documentary evidence of the parties, the trial Court dismissed the suit vide judgment and decree dated 4-12-1994. The respondent/plaintiff filed an appeal, which was accepted by the learned Additional District Judge, who remanded the case to the trial Court vide order dated 18-6-1996. Thereafter, the petitioner filed Civil Revision 2323 of 1996 which was disposed of vide order dated 1-10-1997 on the basis of a conceding statement made by the respondent's learned counsel. The impugned remand order was set aside and the Appellate Court was directed to decide the appeal on merits in accordance with the law. After post remand hearing, the Appellate Court accepted the appeal and decreed the suit vide judgment and decree dated 4-11-1998, which is under challenge in this revision petition.
3. The petitioner's learned counsel contends that the gift deed, Exh.D.1, was proved through the statements of marginal witnesses (D.W.1 and D.W.2) apart from the statement of Muhammad Boota, D.W.3; that the plaintiff/respondent had alleged commission of fraud but it was never proved through any cogent evidence; that Mst. Saira, the donor, was conscious of the alleged fraud as per statement of P.W.1 but she did not challenge it during her lifetime and even the plaintiff/ respondent Mst. Bano Begum filed the suit after 11 years, which is barred by time; that P.W.1 and P.W.2 were not present when the alleged fraud was committed and their evidence is merely hearsay; that fraud must be specifically pleaded and proved by reliable evidence as held in the case of Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs 1993 SCM R 145; that where the thumb-impression of the executant is admitted, the marginal witnesses support of factum of gift and subsequent conduct of the plaintiff also supports the genuineness of the document, then it must be held to be proved. In this connection he relies on the judgment in the case of Muhammad Nawaz v. Mst. Ahmad Bibi and others 1995 SCM R 466; that the identification of the executant is not really in issue as P.W.1 had testified that her mother admitted to have thumb-marked the document; that the alleged addition of a few lines at the end of the document Exh.D.1, is an afterthought and that the gift deed was annexed to the written statement filed by the petitioner and the plaintiff obtained the certified copy and amended the plaint but no objection was taken about the additional lines that Mst. Bano Begum, plaintiff/respondent never stated in her evidence that any addition was made in the document; that even if the disputed lines are omitted the document to the extent of making of gift remains intact; that at the best the gift deed was voidable but the original owner Mst. Saira never challenged it during her lifetime; Oat the trial Court had rightly dismissed the suit for cogent reasons but the Appellate Court illegally reversed the judgment and decree of the trial Court by misreading the facts and the evidence on the record; that the Appellate Court wrongly invoked the provisions of Article 151 of the Qanun-e-Shahadat Order, 1984 and likewise wrongly drew inferences against the petitioner on the basis 'of his alleged bad character.
4. On the other hand, the respondent's learned counsel submits that the suit was not time-barred from the date of the respondent's knowledge about the true nature of the document; that although Mst. Saira, the original owner of the house had a feeling that some wrong/fraud had been committed but she had no idea as to what kind of document had been prepared or was going to be prepared by the petitioner/defendant; that the petitioner kept his act secret and even the plaintiff/respondent did not exactly know as to what kind of document was got prepared by the petitioner to grab the entire house; that the suit was filed on 12-10-1993 in which written statement was filed by the petitioner/defendant on 1-12-1993 alongwith a photo copy of the entry made in the Register, which did not bear the signatures etc. Of the expectant and the witnesses; that after coming to know about the nature of the document, the plaintiff/respondent amended the plaint with permission of the Court on 10-4-1994, therefore, the suit was within time from the date of the petitioner's knowledge about the true nature of the gift deed; that a gift made by an old illiterate lady must be proved by reliable and cogent evidence, which is lacking in this case; that there was no offer to make the gift on the part of the original owner/alleged donor and its acceptance by the donee; that the document, Exh.D.1, does not show that it was read over and explained to the executant; that the document was executed through a Local Commissioner but he was never produced as a witness to prove that gift was actually made by Mst. Saira deceased and that she had thumb-marked the document in his presence; that no relative of the alleged donor was present and she had no free and independent advice from any one, which was essential for the validity of the gift as held in the cases of Mst. Badshah Begum v. Ghulam Rasul and 4 others PLD 1991 SC 1140, Raja Muhammad Yasin v. Zaitoon Begum and others 1993 CLC 2448, Mst. Hawa v.
Muhammad Yousaf and others PLD 1969 Kar. 324 and Mst. Hamidan Begum v. Mst. Murad Begum and others PLD 1975 SC 624; that mere signatures or thumb-impression on the gift deed are not sufficient to prove it; that Mst. Saira Bibi, the original owner was an old lady aged about 80 years and was seriously ill; that the petitioner/defendant told his sister Mst. Bano Begum/respondent that he had to obtain some loan from the bank for treatment of the ailing mother. Therefore; he got thumb-impression of the mother on some pipers, which were used for preparation of a fake gift deed; that it was not for the plaintiff to prove the alleged misrepresentation or fraud but it was for the defendant/petitioner to prove validity of the gift; that it is settled law that the beneficiary of the gift had to prove its validity, that after remand, the Appellate Court rightly decided Issue No,1-A in favour of the respondent, who had successfully discharged the onus of proof; that in the circumstances of the case, the scribe and the stamp vendor ought to have been produced. In this connection he relies on the judgment in the case of Zafar Iqbal and others v. Yaqoob and 5 others 1995 CLC 7; that there are some discrepancies and interpolation in the gift deed itself. He explained that there are some cuttings and additions in the deed, which make it doubtful and adds that the stamp paper for preparing Exh.D.1 was purchased on 22-3-1982 in the name of Mst. Saira Bibi widow of Ch. Umar Din by somebody, whereafter the deed was written and presented before the Local Commission on 26-3-1983, though the witnesses (D.Ws.1 to 3) had stated that it was presented before the Commission on 22-3-1983. Thereafter, it was actually got 'registered on 1-4- 1982. He submits that there is nothing to show that Mst. Saira Bibi had herself presented the document before the Local Commission. Drawing analogy from the judgment in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, submits that relinquishment of her right by a Muslim lady, is opposed to public policy and the Islamic Law as held in the case of Ghulam Ali and 2 others, (supra). Lastly he submits that the findings of fact recorded by the Appellate Court have to be preferred and that the Appellate Court has rightly passed the judgment in favour of the respondent so that-she may get her share in the property in accordance with Islamic Sharia.
5. In reply, the petitioner's learned counsel pointed out that it was not mere photo copy of the record of the stamp vendor's register but a photo copy of the deed was attached with the written statement; that all the three ingredient's of a valid gift were proved; that the gift deed was written in the presence of Mst. Saira Bibi and it was explained to her and she voluntarily accepted it; that the deceased petitioner had successfully proved that the gift was actually made in his favour; that the trial Court had rightly dismissed the suit filed by the respondent and the Appellate Court had illegally reversed the judgment of the trial Court.
6. The suit was filed by the plaintiff on 19-10-1993. After entering appearance, Muhammad Boota, the defendant/deceased-petitioner filed his written statement' in the Court on 1-12-1993. However, photo copy of the gift deed appears to have been placed on the record by the defendant on 16-1- 1994. The attested copy of the gift deed, Exh.D.1 was filed on 20-12-1994. The plaintiff amended the plaint and filed the, same in the Court on 10-4-1994. Originally, the plaintiff had claimed that she being owner of the disputed property to the extent of her Shari share, was entitled to get possession of the property and the documents, if any, depriving her of her legal share, be declared as forged, fabricated and prepared without the plaintiff's consent. It seems that till the institution of the suit on 19-10-1993, the plaintiff was not aware of any document ousting her from the ownership of the disputed property. For the first time, the defendant disclosed in the written statement that the disputed property was gifted away in his favour by her mother Mst. Saira Bibi vide gift deed dated 22-3-1982 (registered on 1-4-1982). After having known the nature of the document, the plaintiff filed an amended plaint in which she explained in para. 7 that during the illness of plaintiff's mother, the defendant came to her and told her that he intended to get some loan by pledging the property to meet the expenses of her illness and obtained thumb-impression of the plaintiff on some papers. She also claimed that the gift deed was forged and fabricated. In the amended written statement, the defendant asserted that the plaintiff was herself a witness of the gift deed and ignorance expressed by her was only pretentious. He also claimed that since 22-3-1982, the deceased petitioner Muhammad Boota had become the lawful owner of the disputed property and after his death the title had passed on to his legal heirs.
7. In this case, the contest is between a brother and a sister and the brother, i,e, Muhammad Boota- deceased had claimed the entire disputed property on the basis of gift deed to the exclusion of his real sister Mst. Bano Bibi/respondent/plaintiff. Ordinarily, a mother is much more concerned about the welfare of her daughter and is not expected to deprive her of her share in the inheritance without exceptionally strong reasons. In the present case, no such exceptionally strong reason exists to satisfy the judicial conscience that the daughter was rightly disinherited by her mother. A crude attempt was made by adding a few lines at the end of gift deed, Exh.D.1 to show that Mst.
Bano Bibi had received her share in the inheritance of her mother by purchasing a small piece of land measuring 35 x 13 ft. Through sale-deed registered on 20-12-1978. The purchase of a small piece of property cannot be equated with grant of the Shari Share to Mst. Bano Bibi in the inhefitance of her mother Mst. Saira Bibi. The validity of the said sale was never challenged by Muhammad Boota-deceased, therefore, the said property measuring 35 x 13 ft. Stood excluded from the ownership of Mst. Saira Bibi and on her death the remaining property bearing No,95-C alone had devolved on her legal heirs. Although, the plaintiff had used the words "forged", "fake". "misrepresentation" and "fraudulently" in her plaint, but her true intention was to show that Muhammad Boota obtained thumb-impressions of the respondent and her mother Mst. Saira Bibi through misrepresentation by saying that he had to obtain some loan for the treatment of the mother. It appears that when Muhammad Boota got the thumb-impressions of his mother and sister Mst. Bano Bibi, they had absolutely no knowledge of the correct nature of the transaction. Mst.
Bano Bibi appeared as P.W.3 and stated that her mother suffered a paralysis attack; that one day, stamp-vendor came to her house and asked her to put her thumb-impressions (on some papers) and on her query, he stated that some loan was to be obtained from the bank, at that time her mother had informed her that two/four days earlier, her thumb-impressions were also obtained on the pretext of her treatment and repair of the house; that after the demise of her mother, she questioned her brother who informed her that due to the death of mother, money was no longer needed. She explained in the cross-examination that at the time when she put her thumb- impression on the paper, her mother and her brother Muhammad Boota were present apart from the stamp-vendor. She also explained that for a part of the house sold in her favour, she had paid cash amount of Rs,4,000 as price. She denied the suggestion that the sale was made in her favour merely because she was a daughter of the original owner. Her statement was corroborated by P.W.1, Mst. Anwar Bibi, daughter of Muhammad Boota/respondent. She stated that her grandmother (Mst. Saira Bibi) had suffered an attack of paralysis as a result of which her memory was lost; that she was 80/85 years old; that the respondent obtained her thumb-impression on the pretext of getting some loan from the bank and that no gift was ever made in favour of the respondent. She stated in cross-examination that when respondent got thumb-impressions of her mother on some papers, she was away from the room as her mother had told her to prepare tea; that when she returned she found her grandmother weeping; that she (grandmother) told her that respondent had obtained her thumb-impression on some papers through fraud.
8. In cross-examination, it was not suggested either to P.W.1 or P.W.3 that the Local Commissioner had read out and explained the contents of Hibanama to Mst. Saira Bibi. The Local Commissioner was not produced as a witness to support the entries made by him on the back of first page of the alleged gift deed to the effect that Mst. Saira Bibi had admitted the execution of the documents and that after hearing and understanding the document, she admitted correctness of its contents.
In this view of the matter, it can be safely concluded that it was not proved that the contents of the document were read out to the alleged donor Mst.Saira Bibi. The alleged donor was an old, ailing and illiterate lady. It may be mentioned that the original gift deed was placed on the record of the present petition by the petitioner's learned counsel, which contains the thumb-impression' of Mst.
Saira Bibi at four places and each thumb-impression appears to be different to the naked eye.
Perhaps for this reason, only an attested photo copy was got exhibited in evidence as D.1 in which the thumb-impressions are not clear for the purposes of comparison. This also shows that Exh.D.1 is a suspect document and was rightly not relied upon by the Appellate Court. Through this document, the donor was not only depriving herself from ownership in the property but also her real daughter with whom she had cordial relations. Therefore, the burden heavily lay on the beneficiary of the 'document, i,e, petitioner/defendant to prove by clear and reliable evidence that gift of the disputed property was made in his favour. It is true that Hibanama was signed by D.W.1 Abdul Ghafoor, and D.W.2 Zahoor Ahmed but their evidence does not inspire confidence regarding execution of the alleged gift deed. D.W.1 admitted that Mst. Saira Bibi was 80 years old. He stated that she had executed. Hibanama in favour of her only son, i,e, the petitioner/defendant. He stated that since Hibanama was made by the mother, she was aware of its details. He did not say that the Local Commissioner had read out and explained the Hibanama to Mst. Saira Bibi. He expressed ignorance about the fact whether the petitioner/defendant had obtained the thumb-impressions of Mst. Saira Bibi and Mst. Bano Bibi on the pretext of getting some loan from the bank. D.W.2 Zahoor Ahmed also stated that Mst. Saira Bibi was 80/85 years old. He stated that the Local Commissioner had explained the matter at the time of obtaining thumb-impressions of Mst. Saria Bibi whereupon she stated that she had made a gift in favour of the petitioner of her own free-will. On this point he is not supported by D.W.1. D.W.3 Muhammad Boota stated that his mother was 80/85 years old and had gifted the house in her lifetime and that her thumb-impressions were obtained in presence of the witnesses. He admitted that her mother had not gifted a part of her property in favour of the plaintiff/respondent. Therefore, the writing made at the end of the gift deed that Mst. Bano Bibi had received her share in the property of her mother, is obviously a misleading one. The Appellate Court has rightly held (though for different reasons) that the execution of the document Exh.D.1 was not proved. In view of the said affirmative findings, the Appellate Court has rightly reversed the findings of the trial Court on Issues Nos.1, 1-A, 2, 2-A and 3 and decided the same in favour of the plaintiff/respondent. It is settled law that if the findings of the trial Court and the first Court are at variance, then ordinarily the findings of fact recorded by the First Appellate Court prevail unless the same afe not supported by evidence on the record or the Appellate Court had failed to consider material evidence on the record. In the case of Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617, the Honourable Supreme Court was pleased to hold as under:-- "If the finding of fact reached by the First Appellate Court is at variance with that of the trial Court, the former will ordinarily prevail although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the First Appellate Court cannot be supported by the evidence on record or it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
' The same view was expressed in the cases of U. Rai Gyaw Thoo & Co. Ltd. v. Ma Hala U Pru AIR 1940 Rang. 126; Administrator, Corporation of City of Lahore v. Sampuran Singh Chawla and another AIR
(34) 1947 Lah. 172; Mst. Choori v. Ghulam Hussain 1978 SCMR 404 and Hafiz Muhammad Hussain and another v. Abbas Khan and another 1981 SCM R 1233. In the present case, the Appellate Court has properly appreciated the evidence on the record and given sound reasons for recording findings of fact on Issue No,1-A in favour of the plaintiff/ respondent. The same do not call for any interference in exercise of revisional jurisdiction under section 115 of the C.P.C.
9. The argument that Mst. Saira Bibi, the original owner never challenged the gift during her lifetime though factually correct, does not establish validity of the gift in the circumstances of the case. She was an old ailing woman and had no knowledge about the real nature of the document got prepared by the respondent. Moreover, she died after a few months of the alleged execution of the gift. So far as the delay of about 11 years on the part of the plaintiff/respondent is concerned, it does not necessarily show that she was aware of the factum of execution of gift and had accepted it as a reality. It appears that she had confidence in her brother and hoped that her share would be given to her but subsequently on her demand of her shire in the property, her brother started quarrelling with her. The plaintiff/respondent had stated in her cross-examination that on account of demand of her share, quarrel had taken place with the petitioner several times. She bonafidely believed that she was a co-sharer in the inheritance left by her mother and waited for about 11 years in the hope that she would be given her share but ultimately filed a suit against the petitioner/defendant on being disappointed. She had filed a suit for possession, which was within time under the provisions of Article 144 of the Limitation Act. When she learnt about the disputed gift deed, she got the plaint amended and also prayed that the gift deed be declared to be void and may be cancelled. In substance, her suit was for possession and the prayer for declaration was made by way of super arrogation and did not make the suit time-barred merely because the prayer for a declaration was made in respect of the gift.
10. The argument raised by the petitioner's learned counsel that the gift is voidable, cannot be accepted because the original owner is not proved to be aware of the true nature of the document, rather she was duped and her thumb-impressions were obtained through misrepresentation. She had never consciously made a gift of the property in favour of the petitioner/defendant. There is force in the argument raised by the respondent's learned counsel that the mere signatures or thumb-impressions on a deed are not sufficient to prove the execution of document in every case without regard to its peculiar facts and circumstances. There is also force in the argument that it was not for the plaintiff to prove the alleged misrepresentation/fraud L but it was for the defendant to prove the validity of the gift, who is its beneficiary.
11. For the foregoing discussion, I do not find any merit in this IM revision petition, which is dismissed with no order as to costs.