ARSHAD KHAN vs Mst. RESHAM JAN and others

' MUHAMMAD NAWAZ ABBASI, J.--- These petitions under Article 185(3) of Constitution of Islamic Republic of Pakistan, 1973, involving common question of law and facts, have been preferred against the consolidated judgment dated 30-3-2004 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi in two Civil Revisions arising out of the two separate civil suits on the same subject.

2. The parties in both the petitions are real brother and sisters inter se, and are son and daughters of one Raja Khan who owned landed property in village Mirza Tehsil and District Attock. On death of Raja Khan, the property devolved upon his legal heirs and a mutation of inheritance was accordingly sanctioned on 31-8-1981. Subsequently, another Mutation bearing No,1681 was sanctioned on 22-9-1981 which contained transaction of gift on behalf of the respondents namely, Mst. Resham Jan, Mst. Begum Jan and Mst. Waris Jan in C.P. No,1611 of 2004 and Mst. Gulnaz Begum, respondent in C.P. No,1612 of 2004 and their mother, of the land of their share in favor of the present petitioner. The above-named respondents in the present petitions on coming to know about the mutation of gift, filed separate suits seeking declaration that the mutation was result of fraud and forgery which was ineffective to their rights, and as consequential relief they also sought a decree for permanent injunction. The case of the respondents was that the suit-land was in possession of the petitioners as their custodian and he having taken undue benefit of his relationship with them and confidence, got the mutation of gift fraudulently sanctioned in his favor with collusion of revenue officials. In nutshell, the respondents while denying their appearance before the Revenue Officer and challenging genuineness of the mutation, pleaded that it was fake transaction of gift.

The petitioner contested the suit and in the written statement, admitted that the suit-land was the joint property of the parties but his plea was that the respondents having voluntarily appeared before the Revenue Officer, wilfully surrendered their rights in the land in his favor through the mutation of gift and thus were estopped by their conduct to retrace their steps and challenge the genuineness of the transaction.

3. The learned trial Judge in the light of the pleadings of the parties, having framed number of issues and recorded the evidence, decreed the suits through a consolidated judgment dated 2-7- 2001. The petitioner preferred two separate appeals against the judgment and decree which were dismissed by a learned Additional District Judge, Attock vide judgment, dated 16-5-2002 and further the separate civil revisions filed by him against the judgment of Appellate Court, in the Lahore High Court, Rawalpindi Bench, Rawalpindi were dismissed by a learned Single Judge vide impugned judgment with the o6servation that no reliable evidence was brought on record in proof of the genuineness of the transaction of gift. And notwithstanding the presumption of correctness being attached with the Revenue Record, the mutation on the ,basis of which the entries were incorporated in the Revenue Record itself being under challenge, the burden of proof of the genuineness of gift would definitely lie on the petitioner who claimed the ownership in the suit-land through the mutation of gift. However, the civil revision to the extent of decree in favor of Mst.

Begum Jan was allowed in the light of the statement made by her before the learned Additional District Judge, on 13-5-2002 wherein she accepted the claim of the petitioner.

4. The learned counsel for the petitioner without denying the right of the respondents in the property of their father, contended that the gift mutation was sanctioned in 1981 whereas the suits were filed in 1997 with the lapse of a period of about fifteen years which would be hopelessly barred by time and further the petitioner was in possession of the land as an exclusive owner since the attestation of mutation, therefore, the entries in the Revenue Record made on the basis of the gift mutation, having attained finality would not be challengeable. The next contention of the learned counsel was that except the sole statements of respondents, no other evidence was brought on record in support of the assertion that the mutation of gift was result of fraud and the same was sanctioned without the knowledge and consent of respondents. The learned counsel added that the mother of the petitioner also made a gift of her share in the land in his favor through the same mutation and she died about six years before the filing of the suits but neither the mutation of her inheritance was entered nor the respondents took any step, for attestation of such mutation and also made no effort for the setting aside of the mutation of gift or correction of the wrong entry, if any, in the Revenue Record, which would be a strong circumstance to suggest that they were willing party to the transaction of gift. He added that the acceptance of his claim by Mst. Begum Jan before the Appellate Court would be a sufficient proof of the genuineness of gift. Learned counsel while concluding his arguments, has contended that all the three Courts misread the evidence and failed to appreciate the question of law requiring determination.

5. There is no cavil to the proposition that the presumption of truth is attached with the Revenue Record but this presumption is always rebuttable. This is settled law that the mutation itself does not confer or extinguish any right or title and if the mutation on the basis of which right in the property is claimed, is disputed, the onus of proving the correctness of mutation and genuineness of the transaction contained therein would be on the party claiming right on the basis of such mutation. In the present case, the entries in the Revenue Record in respect of the suit-land were made in the name of petitioner on the basis of mutation of gift which was disputed by the respondents, therefore, without establishing the genuineness of the gift transaction, the entries in the Revenue Record would be of no legal consequence. The respondents in an unequivocal terms, denied the existence of gift and clearly stated that neither they made gift of land of their share in favor of petitioner nor appeared before the Revenue Officer for the attestation of mutation. The stand of the petitioner, on the other hand, was that the respondents having appeared before the Revenue Officer in person, made statements in presence of witnesses and in support thereof, one witness namely Afridi Khan was produced who categorically stated that respondents were in veil and he identified them not by face but on the pointation of petitioner. The other witness cited in the mutation, was not produced in the Court. Be that as it may, in view of an admitted fact that respondents were Parda observing ladies, the stand of the petitioner, qua their identification before the Revenue Officer, would be falsified and as a result thereof, the very foundation of his case would be demolished. This is settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it, to prove the good faith and genuineness of the transaction as envisaged in Article 127 of Qanun-e-Shahadat, 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in a position of active confidence. This is settled law regarding the disposition of property of Pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convincing evidence. There can be no departure to the rule that if the good faith and genuineness of a transaction by virtue of which a right is created in the property, is disputed by its maker, the same in absence of proof of good faith and genuineness, would be voidable and in consequence thereto the entries on the basis of such transaction in the official record, would have no legal sanctity. The express or oral relinquishment of the right of a female heir in the inherited property in favor of a male heir, through gift or any other legal device, may in the normal circumstances, take effect but if the existence of such a transaction is denied and disputed by the said female heir, a presumption would be raised that the transaction was not genuine and the onus to prove that it was entered in good faith and was a genuine transaction, would be on the person who was claiming its genuineness and if such onus is not discharged satisfactorily, the document of relinquishment of rights of female heir in the property in favor of a male heir, would not ipso facto, confer title adverse to the interest of female heir. The mutations are entered and sanctioned to keep the Revenue Record in order which do not as such create right of title in the property, therefore, the entries in the Revenue Record based on a wrong mutation, would have no legal effect on the title of property. We having examined the question of limitation, find that mutation of gift was challenged on the ground of fraud and in such cases of fraud, the limitation would start from the date of knowledge and not from the date of fraud, therefore, the dismissal of the suit involving the dispute relating to the right in respect of inherited property on the ground of limitation, would not be proper as the mere delay in claiming the share in the inherited property, would not defeat the right of a person in inheritance and if he is non-suited on such technical ground, his right of inheritance would definitely be defeated. In the light of law laid down by this Court in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, we may observe that the petitioner was not only under the legal obligation to protect the right of his sisters in the suit property rather it was also his moral duty to accept their claim and deliver the possession of the land of their share to them voluntarily.

6. We having heard the learned counsel for the petitioner and gone through the record, have not been able to find out any legal defect or infirmity of misreading or non-reading of evidence by the High Court in affirming the concurrent findings of two Courts below on a question of fact in its revisional jurisdiction.

7. For the reasons given above, we without taking any exception to the impugned judgment, dismiss the petitions. Leave is refused.