Mst. KULSOOM BIBI and another vs MUHAMMAD ARIF and others

' SARDAR MUHAMMAD RAZA KHAN, J.--- Mst. Kulsoom Bibi widow of Muhammad Fazil and her son Muhammad Rauf filed a suit for declaration to the effect that they were entitled to 1/4th share of (1) a house measuring 1 Kanal, 1 Marla bearing Khasra No,1843/1787 situated in Kurizada Malyar, Tehsil Gujar Khan; (2) house built over an area of 9/10 Marlas situated in Mohra Mozan Dakhli Kurizada Malyar, (3) house built over an area of 5/6 Marlas situated in the same village and (4) House No,74-A Mohallah Nadeemabad Jahangir Road, Rawalpindi Cantt. They also challenged a registered gift-deed No,6450, dated 27-12-1992 through which House No,74-A aforesaid purported to have been transferred by Muhammad Fazil in favor of Muhammad Arif and Muhammad Hanif, his brothers, by way of gift.

2. It was alleged in the plaint that Muhammad Fazil, the so-called donor, being diabetic, heart patient and having seriously suffered from these diseases during the last days of his life, was on the deathbed. That deriving undue advantage of the physical and mental condition of Muhammad Fazil, the two brothers hatched a conspiracy in order to deprive the plaintiffs from inheritance and got a fake and forged gift-deed registered in their favor. That because of the deed being fake and forged as a result of conspiracy and allegedly being executed during 'Marz-ul-Maut' of Muhammad Fazil, it was void, ab initio and ineffective upon the right of the plaintiff.

3. The defendants contested the suit, pleading, that the house at serial No,1 situated in Kurizada Malyar was built by Muhammad Arif defendant out of his own funds. That the second house in Mohra Mozan exclusively belongs to Muhammad Hanif and further that House No,74-A, the subject-matter of registered deed was exclusively owned by them on the basis of the impugned gift. They pleaded that the gift was made due to affection as well as services rendered by the brothers to the donor, at a time when the plaintiff's wife lived separately from her husband due to ill behaviour of the lady.

4. After recording evidence pro and contra, the trial Court vide its judgment, dated 17-6-2000 granted a. Preliminary decree for partition in favor of the plaintiffs, to the extent of 1/4th share in the properties, holding further that the gift-deed, dated 27-12-1992 was based on fraud as well as obtained during 'Marz-ul-Maut'. The decree was upheld in appeal by Additional District Judge Rawalpindi holding that the plaintiffs were entitled to 1/4th share in the properties, while 5/6th share in House No,74-A, vide judgment dated 31-7-2003. The defendants went in revision before the High Court which, vide judgment, dated 24-12-2003 set aside the judgments of the lower Courts and dismissed the suit of the plaintiffs holding that the fraud having not been alleged in the plaint and Marz-ul-Maut' having not been proved, the defendants had succeeded in proving the gift- deed which was a valid document. Mst. Kulsoom Bibi and her son have filed this regular appeal against the impugned judgment of the High Court.

5. After having gone through the record of the case minutely, we are of the view that the learned High Court has fallen into error by holding that the fraud qua a registered gift-deed was not alleged in the plaint. Paras 4 and 5 of the plaint clearly suggest that the gift-deed was challenged on grounds of 'conspiracy', fakeness and forgery. We believe that no better words could have been used to say that the deed was fraudulent, for, to procure a deed with conspiracy and to execute a fake document by forgery is nothing but fraud. We hold that the fraud has been alleged in the plaint apart from the ground of 'Marz-ul-Maut'.

6. Next important point to be considered is as to whether the High Court while exercising revisional jurisdiction had the authority to justifiably set aside the concurrent findings of two Courts below related purely to a question of fact. In that behalf we would make some reference to the evidence of the defendants about whom it is said that they had proved the execution of gift-deed.

Muhammad Sarwar (D.W.1) and Latif Hussain (D.W.2) have been produced to prove the signatures of the donor Muhammad Fazil on the deed and before the Sub-Registrar. It may be clarified at this juncture that marginal witnesses of a document are produced not merely to identify the signatures of an executant but are examined to prove, in addition to the above fact, that the executant had put the signatures within their view. Both witnesses never uttered a single word to the effect that Muhammad Fazil had signed the document within their view. This is with regard to the document.

7. So far as the question of delivery of possession is concerned, it is mentioned in the deed itself that the donor delivered physical possession of the house under the gift and that therefrom onward, the donees had been enjoying the physical possession of the house. Whereas, Muhammad Hanif (D.W.6), one of the defendants, has categorically admitted that the house throughout remained in possession of tenants and even at the time of the alleged gift, the tenants were in possession. There is no oral allegation and there is no recital in the deed itself that the physical possession was endorsed to the donees before the tenant. The physical delivery of possession under the gift is, therefore, altogether negated by the so-called donees.

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8. These were the state of affairs under which the two Courts below came to the finding that the deed was forged and fictitious and that the plaintiffs were entitled to the decree prayed for. The evidence on record was sufficient for taking such view to which we also endorse. The learned High Court, in the situation, was not at all justified in setting aside the concurrent finding of fact of the two Courts. The power to be exercised under section 115, C.P.C. Should not be considered analogous to the powers exercised in appeal. When once the law provides no further right of appeal, the manifest intention is that the order of lower forum should attain finality. While exercising revisional jurisdiction, the High Court should satisfy itself upon three matters; firstly, whether the subordinate Court had the jurisdiction vested in it; secondly, whether the case is one in which the Court ought to exercise the jurisdiction and thirdly, that whether the lower Court acted illegally or with material irregularity resulting into miscarriage of justice. These principles have often been repeated by the superior Courts and have far back been highlighted by a Full Bench of Privy Council in case of N.S. Venkatagiri Ayyangar AIR 1949 PC 156. We are clear in our mind that in the instant case the learned High Court has travelled beyond its jurisdiction in setting aside a concurrent finding of fact by the two Courts below, which also was in perfect accord with the evidence on record. This alone is sufficient for the acceptance of appeal.

9. The next important question is with regard to the proof of the gift-deed in question. It is a matter of record that the deed as such is challenged on grounds of conspiracy, fakeness and forgery amounting to fraud. In these circumstances, the beneficiary under the document is bound not only to prove the execution of document but also to prove the actual factum of gift by falling back on the three ingredients of proposal, acceptance and delivery of possession. These have to be proved independent of the document. This Court has quite recently held in case of Ghulam Haider 2003 SCM R 1829 that essentials of a valid gift were required to be proved independent of the deed even if it was registered, in case it is challenged on grounds of forgery etc. Keeping in view the principle so enunciated, we are clear in our mind that the defendants have not produced an iota of evidence to prove the original factum of gift; the proposal, the acceptance and the delivery of possession. We have already discussed that the possession under the gift has not been delivered at all. The gift can be declared void on this score alone and as well.

10. The lady plaintiff and her son, who was minor at the time of Muhammad Fazil's death, are the actual legal heirs of the deceased besides his mother Mst. Barkat Jan. In the instant case it is a gift which tantamounts to disinheriting the closest of the legal heirs or, even if genuine, it otherwise practically disinherits the legal heirs. In such given circumstances, when, through a gift, deprivation of legal heirs is involved, either intended or unintended, the burden to prove original E transaction of gift with all its ingredients strongly rests, upon the beneficiaries of such gift. This Court, in similar circumstances, had nullified a transaction of gift in case of Muhammad Ashraf 1989 SCM R 1390, where the question arose as to why in the presence of legal heirs, particularly the children, the donor would have gifted out the entire land to a nephew. Quite recently in case of Barkat Ali 2002 SCM R 1938, this Court once again reiterated such principle holding that in cases of gifts, resulting into disinheriting of the legal heirs, the burden to prove original transaction of gift squarely rests upon the donees. Such burden has not been touched at all, much less proved.

11. Last is question of 'Maraz-ul-Maut'. It is admitted that Muhammad Fazil, the alleged donor was serious patient of cardiac disease along with diabetes. During the days when the alleged deed was executed, Muhammad Fazil was repeatedly admitted in the hospital and quite soon after the execution of deed on 27-12-1992, he died on 5-2-1993 within an interval of 35 days. We would not go into the details of the implications involved under this topic because even a gift made during Marz-ul-Maue is subject to all the conditions necessary for the validity of a 'Hibba' or gift, including delivery of possession by the donor to the donees. When once we have categorically held that the gift in the instant case was fraudulent and the very transaction of gift in original has not been proved by the so-called donees, the very gift becomes non-existent and nullified, regardless of whether it is made during 'Marz-ul-Maut' or otherwise.

12. There is another aspect of the case which though not discussed, yet has come to our notice. The instant one is a gift in favor of two donees. We have already discussed that the transfer of physical possession at the time of gift is not proved and such discrepancy and non-proof arises from the very evidence of the defendants. When once the possession in favor of donees is not proved, it is also utterly lacking as to whether each donee was put in possession of his respective share. It is not at all the case of the defendants/donees that they had subsequently partitioned their share between themselves. If all these conditions are not completed, a gift of property, capable of division, to two or more persons without specific share or without dividing it at the time of gift is invalid. Para. 161 of Principles of Mahomedan Law by 'D.F. Mullah' explains the notion involved. All the witnesses have admitted about the existence of both the diseases and it is also proved that Muhammad Fazil died of the said diseases. This Court has elaborately discussed the implications of 'Marz-ul-Maue in case of Mst. Chanan Bibi PLD 1977 SC 28 and Mst. Saleem Khatoon PLD 1994 SC

160. We have also been apprised of Mst. Sakina Begum's case AIR 1941 Lahore 58, on the subject.

13. Just for the sake of academic discussion it may be recalled that a gift made by a Muslim during 'Marz-ul-Maut' cannot take effect beyond 1/3rd of his estate (after payment of funeral expenses and debts) unless the heirs give their consent after the death of donor, to the excess taking effect.

Such malady was sufficient for Muhammad Fazil during last days of his life inducing an apprehension of death.

14. Learned counsel for the respondents defended the arguments by saying that the gift stood otherwise proved through record. We do not accept this argument because it is on record that neither the gift as such nor the deed in question has strictly been proved in accordance with the law on the subject. The second stance of the learned counsel for the respondents, to the effect that the deed is challenged on the ground of 'Marz-ul-Maut' and not fraud, loses its force in view of clear assertion in the plaint where it is challenged on grounds of fraud as well, thereby, shifting the burden to the opposite aside.

15. Lastly, the learned counsel while referring to sections 32-A, 34, 35, 52, 58 and 59 of the Registration Act, argued that the document in question was properly presented and the Sub- Registrar had acted in accordance therewith and hence it be considered as proved. In view of what we have already observed, discussed and concluded, the argument loses significance and the rulings produced in that behalf are of no avail.

16. Consequently, the appeal is accepted, the impugned judgment and decree dated 24-12-2003 of the High Court is set aside and that dated 31-7-2003 of the learned Additional District Judge, Rawalpindi is restored with costs.