SAFYYA Versus MUHAMMAD RAFIQUE

AJMAL MIAN, J.‑‑This is an appeal with the leave of this Court against the judgment dated 17‑9‑1989 passed by a learned Single Judge of the Lahore High Court in Civil Revision No.1357‑D of 1989, filed by the appellants, dismissing the same and maintaining the judgments/decrees, dated 12‑12‑1987 and 6‑2‑1989 passed by the learned Civil Judge Ist Class, Ferozewala, and the learned Additional District Judge, Sheikhupura, in Civil Suit No.322/1 of 1982 and Civil Appeal'No.1 of 1988, respectively, whereby the appellants" suit for declaration that the two registered sale‑deeds, dated 25‑3‑1982 executed by their father, Ghulam Rasul in favour of his brother, Ghulam Ali (now deceased), were without consideration‑ and were fraudulently got executed by showing considerations of Rs.2,10,000 and Rs.90,000 for depriving the appellants from inheritance of their deceased father, was dismissed.

Leave to appeal was granted to consider the question, whether the Courts below have not considered material evidence showing the appellants the daughters of Ghulam Rasul.

2. The brief facts are that Ghulam Rasul executed and got registered two sale‑deeds on 25‑3‑1982 in favour of his real brother, Ghulam Ali, in respect of land measuring 114 Kanals 8 Marlas, situated in Village Long Wala, Tehsil Ferozewala, District Sheikhupura, for an alleged consideration of Rs.2,10,000 and land measuring 72 Kanals 12 Marlas,.situated in Village Mandiali, Tehsil Ferozewala, District Sheikhupura, for an alleged consideration of Rs.90,000. It further seems that Ghulam Rasul died on 27‑3‑1982 i.e. hardly before the expiry of two days. After the expiry of about three months from the date of death of Ghulam Rasul, the appellants filed the above suit, claimingto be the daughters of said Ghulam Rasul for the above relief. It may be advantageous to reproduce the prayer clause, which reads as follows:‑‑

3. In the plaint, it was alleged that Ghulam Rasul was an old ailing person and was not in senses on 25‑3‑1982, when the defendant/respondent Ghulam Ali got the above sale‑deeds executed and registered without consideration by fraudulently showing payment of the above considerations. It was also averred that the appellants requested the defendant/respondent to get the above sale‑deeds cancelled, which he failed. Therefore, they filed the above suit.

4. The above suit was resisted by Ghulam Ali inasmuch as a written statement was filed, in which it was denied that Ghulam Rasul was an old and sick man. It was also denied that he was not in senses on 25‑3‑1982 or that no considerations for the above two sales were paid.

On the basis of pleadings of the parties, the learned trial Court framed the following issues:‑‑

(1) Whether the plaintiffs are legal heirs of Ghulam Rasul deceased? If so, what is their legal share? OPP

(2) Whether the defendant is bona ride purchaser with consideration and without notice? OPD

(3) Whether the suit is bad for multifariousness of causes of action? OPD

(4) Whether the suit has not been properly valued; if so, what is correct valuation and its effect? OPP

(5) Whether the sale‑deeds dated 25‑3‑1981 are illegal, void and ineffective upon the plaintiffs' rights? OPP

(6) Relief.

5. In support of the claim in the suit, the appellants/plaintiffs examined P.W.1 Ismail, Pesh Imam of the mosque of the locality, P.W.2 Ashiq Hussain, the Nikah Registrar, P.W.3 Ahmad Ali, who was allegedly present at the time of registration of the sale‑deeds, P.W.4 Muhammad Sharif, P.W.5 Mst.Razia Bibi (appellant No.2); whereas, the respondent/defendant examined D.W.1 Muhammad Malik, D.W.2 Khushi Muhammad, D.W.3 Nazir Ahmad and D.W.4 Muhammad Rafiq son of Ghulam AIL as the attorney of Ghulam Ali.

In rebuttal, the appellants examined P.W.6 Syed Altaf Hussain and P.W.7 Mst.Razia Bibi.

6. It appears that during the pendency of the suit, Ghulam Ali expired leaving behind the respondents as his legal heirs.

7. The learned trial Court, after hearing the parties, by its aforesaid judgment/decree dated 12‑12‑1987, decided above Issues Nos.1, 2 and 5 against the appellants by holding that the' appellants failed to prove that they were daughters of Ghulam Rasul and that although Ghulam Rasul had died one day after the execution of the disputed sale deeds, but the appellants failed to prove that he was in a condition of Marzul Maut at the time of execution of the sale deeds or that Ghulani Ah, defendant/respondent, had played any fraud at the time of execution of sale‑deeds. Whereas, Issues Nos.3 and 4 were decided against the respondents. However, in view of the above findings on Issues Nos.1, 2 and 5, the suit was dismissed.

8. Against the above judgment and decree, the appellants filed above CiA AppeaL which was also dismissed by the learned Additional District Judge, Sheikhupura, by holding that the Birth Certificates Exhs.8 and 9 produced by the appellants, did not relate to them and that there was contradiction about the participation of Ghulam Rasul in the appellants' marriages. The evidence of the other witnesses of the appellants was also discarded. The Civil Revision 'filed by the appellants also failed before the learned Judge in Chamber, who found the factum that Ghulam Rasul did not sign Nikahnamas of the appellants (Exhs.P/1 and P/2), as a strong piece of evidence against them. Thereupon, they filed a petition for leave to appeal, which was granted to consider the above question.

9. We have heard Sh. Hamid Mukhtar, learned counsel ‑ for the appellants, and MrJahangir A. Jhojha, learned ASC for the respondents.

The two main questions which require consideration are, firstly, whether the appellants are the daughters of Ghulain Rasul deceased, we find that the three Courts below have misread the evidence on the above question and have failed to give proper consideration to the material facts which have direct bearing on the above issue. The most important piece of evidence was the two Nikahnamas of the year 1970 when there was no dispute between the parties and said Ghulam Rasul was stiff alive. It may be observed that he died on 27‑3‑1982 as per Exh.P.7. In the above Nikahnamas, Ghulani Rasul has been shown as the father of the al~pellants and Gliblarn Oadir, who married to Mst.Rashida after she was divorced by Ghulain Rasul, has been shown as Wali. The above documentary evidence is corroborated by the statement of P.W.1, 19mail, Pesh Imam, who had performed the Nikahs of the appellants. The above evidence is reinforced by P.W.2 Ashiq Hussain, Nikah Registrar, who had registered the Nikahs of the appellants. Nothing has been brought out in the cross‑examination to shake the evidence of the above two witnesses who were independent witnesses. It is true that Exhs. 8 and 9, the alleged Birth Certificates, are not clear and, therefore, were rightly discarded by the Courts below. However, in our view, even if we were to exclude the above Birth Certificates, the above documentary and oral evidence of the appellants was sufficient for concluding that the appellants were the daughters of Ghulam Rasul as there was no reliable evidence produced by the respondents in rebuttal. The evidence of the respondents' witnesses on the above question does not inspire confidence. Mst. Razia Bibi, when she was examined as P.W.2, was asked about the pedigree of her father, to which she replied as follows‑

OLD. JJ_‑)

10. . The veracity of the above statement of the appellant Mst.Razia Bibil was not challenged in further cross‑examination. If she would not have been I the daughter of Ghulani Rasul, she could not have given the above answer. It, has also been deposed by her that her husband was in fact maternal nephew of Ghulam Rasul. The respondents' counsel in the cross‑examination of P.W.1 suggested that Ghulam Rasul was also known by the name of Ghularn Qadir, whereas to P.W.2, it was suggested in the cross‑exaqiination that Ghulani Qadir was also known by the name of Ghulam Rasul. Similarly, in the cross- examination of P.W.4, it was suggested by the learned counsel for the respondents, that Ghulam Rasul was also known by the name of Ghulam Oadir. The above suggestions, though denied by the above witnesses, adversely reflect on the respondents' case. If Ghulam Qadir and Ghulam Rasulare one and the same person, it will support the case of the appellants.

11. The second,question is, as to whether the sale‑deeds were executed without any consideration by Ghulam. Rasul when he was not physically fit to make an independent judgment, and whether Ghulam Ali got them executed fraudulently in order to deprive the appellants from their share. On the above question, the evidence of the appellants' witnesses P.Ws. 3, 4, 5 and 6 is that Ghulam Rasul was ill for quite sometime and that on 25‑3‑1982 when the above two sale‑deeds were executed, he was brought from the village to the Tehsil office on a cot when he did not have senses. On the other hand, the evidence of the. respondents' witnesses is that he was fit except that after getting the sale‑deeds' registered, he got fever and died within 4‑5 days. However, D.W.1 Muhammad Malik, in his cross‑examination, made the following admission:‑

12. The evidence of the respondents' witnesses is belied by the entries in the Death Certificate (Exh.P/7), wherein in Column 8 under the caption the word has been mentioned; whereas in column which is under the caption ( ‑~" 4‑ V c:‑ _ue ), the words ( z U ‑ 7>) are written. The above entries indicate that factually he was a sick person. This fact is corroborated by the facalm that he died after one day from the date of execution and registration of the above sale‑deeds. It is also interesting to note that Ghulam Ali was the real brother of Ghulain Rasul and was the only legal heir if we were to exclude the appellants, it is not believable that a sole legal heir who was to succeed to the estate of Ghulam Rasul, would have paid the above large amount of Rs.3,00,000 as a consideration for the above sale‑deeds. The only logical inference from the above, execution and registration of sale deeds is, that Ghulani Ali got them executed and registered without payment of any consideration with the intention to deny the appellants their share as the legal heirs of G hulam Rasul.

13. If factually Rs.33,00,000 in cash, would have been paid by Ghulam Ali to Ghulain Rasul one day prior to his death, there would have been some material on record to indicate what happened to that amount. The proximity of the date of registration and the date of death, lends support to the appellants' case. It may also be pointed out that the suit was filed by the appellants on 22‑6‑1982 i.e. within less than three months from the date of execution and registration of the ‑ sale‑deeds and the death of Ghulam Rasul, which indicates that the appellants acted promptly and it was not an after‑thought suit . The above aspects have not been considered by any of the Courts below, which resulted into miscarriage of justice.

14. Mr. Jahangir A. Jhojha, learned counsel for the respondents, has contended that since leave was granted only to consider the question, whether the appellants were the legal heirs of the deceased Ghulam Rasul, the appellants are not entitled to press into service any argument to impugn the above. two sale‑deeds.

15. It is true that normally this Court does not permit an appellant to urge a ground on which leave has not been granted, but at the same time, in a fit case if the dictates of justice so demand, this Court permits an appellant to urge any other ground particularly when the same was an issue before the Courts below and is directly linked with the ground on which leave has been granted. We may observe that Clause (1) of Article 187 of the Constitution empowers this Court to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. The power contained in the above clause is quite wide and far‑reaching. A party cannot be denied a relief on a technical ground if he is otherwise entitled to such relief. The controversy between the parties in fact related to the inheritance of the, estate of the deceased Ghulain Rasul and in that context, the issue was *raised by the respondents that the appellants were not the daughters of the said Ghulam Rasul.

16. The upshot o I f the above discussion is that we allow the above appeal; set aside the judgments/decrees of the Courts below and decree the suit in terms of the above‑quoted prayer. However, there will be no order as to costs.

A./S‑716/S

Appeal allowed