Mst. ANWAR KALSOOM Versus GHULAM RAZA

CH. MUHAMMAD MASOOD JAHANGIR, J.--- Three real sisters/ petitioners instituted a declaratory suit against their brother respondent No.1 as well as subsequent transferee/respondent No.2 while claiming their exclusive ownership qua the subject property measuring 23 Kanals 06 Marlas with the assertion that it was leased out to respondent No.1 as well as other brother Ghulam Qamar, but the petitioners neither made any proposal of gift in favour of respondent No.1 nor the same was accepted by him whereas the possession of the suit property also did not change hands in lieu thereof; that respondent No.1 procured their thumb impressions in the garb of lease deed and might have used the same for transfer of property in his name through oral gift mutation No.474, which being result of fraud, misrepresentation and collusiveness was liable to be cancelled; that the subsequent alienation of the suit property by respondent No.1 to respondent No.2 through sale deed No.1318 dated 21.11.2005 reflected in mutation No.734 dated 28.02.2006 being superstructure of fraudulent transaction was also liable to cancellation. The suit was resisted by respondents through filing of their independent written statements.

2. The learned Trial Court as per divergent pleadings of the parties settled the following issues:--

1. Whether the oral gift mutation No.474 dated 08.01.1997 and registered deed No.1318/1 dated 28.02.2006 are against the law and facts, based on the fraud, collusion, ulterior motive, ineffective upon the rights of the plaintiffs? OPP

2. Whether the plaintiffs have no cause of action? OPD

3. Whether the suit of the plaintiffs is not maintainable in its present form? OPD

4. Whether the suit is against the law and facts, based on mala fide, hence the same be dismissed with compensatory costs under section 35-A, C.P.C.? OPD

5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so its effects? OPD

6. Whether the suit is time barred and liable to be rejected under Order VII, Rule 11, C.P.C.? OPD

7. Relief.

3. After recording and appreciating evidence, the Court of first instance while answering issues Nos.1 to 3 against the petitioners and rest of the issues against the respondents dismissed the suit in terms of judgment and decree dated 07.12.2010, which was affirmed by the learned Additional District Judge through impugned judgment and decree dated 27.07.2011, when appeal of the petitioners was disallowed. Hence the instant civil revision.

4. Heard and record perused.

5. Before embarking upon merits of the case and proceeding further for the determination of respective stances of the parties, I feel it appropriate to dilate upon the principles dealing with oral transfer of immovable property effected through mutation. It is well established by now that mutation is always sanctioned through summary proceedings and is intended to keep the record update for the collection of land revenue. Such entries are made in the concerned Register under section 42 of the Land Revenue Act, 1967, which attain no presumption of correctness prior to its incorporation in the Record of Rights. No doubt, the entries in the mutation are admissible in evidence of a case, but the same are required to be proved independently by the person relying upon it through affirmative evidence, because an oral transaction reflected therein neither confers the title in favour of its beneficiary nor can establish the same.

On the touchstone of this principle and its scheme, this case is to be dealt with, where the oral gift transaction is the inbuilt of the impugned mutation allegedly effected by the petitioners in favour of respondent No.1, who being its beneficiary was under obligation to plead and prove; firstly the original transaction of gift, which might have effected prior to the day of attestation of mutation or at least on the day when it was entered by the concerned revenue official and to that effect the basic three conditions i.e. "offer", "acceptance" and "delivery of possession" must have been established through his evidence, secondly, it was also sine qua non for the donee to prove that petitioners approached revenue officials for the entry and attestation of mutation in the assembly convened for this purpose and made their statements to acknowledge the oral transaction in presence of two notables of the vicinity. It is well established by now that a party before proving an act has to narrate its detail in his pleadings under the mandate of well recognized principle "secundum allegata et probata", which has full command of provisions of Order VII Rule 2 and Order VIII Rule 2 of the Code of Procedure, 1908, but written statement of respondent No.1 is silent to the extent of essential details i.e. time, date, venue and names of witnesses to disclose that when, where and before whom the donors had made declaration of gift, which was accepted by him (the donee) and in lieu thereof the possession changed hands.

6. As per available record, Nadeem Afzal, Special Attorney of the petitioners, (PW1) and Ghulam Qamar (PW2) the other brother of the petitioners and respondent No.1 to whom along with the latter, the land was leased out, congenially and explicitly worded that neither any gift was made nor the petitioners had ever appeared before the Revenue Officer for attestation of impugned mutation of oral gift (Exh.D2). The moment they deposed so, the onus was shifted upon the beneficiary/respondent No.1 to prove the attestation of mutation as well as transaction reflected therein, who while appearing as DW4 failed to disclose the afore-referred detail, rather in vague terms only deposed that declaration of gift offered by the alleged donors was accepted by him, that the petitioners/ sisters had alienated the suit property in his favour through oral gift mutation, which was thumb marked by them in presence of Abdul Qadoos Kiani, Advocate and Muhammad Ashraf Khan attesting witnesses before the Revenue Officer and no fraud was committed for attestation of impugned mutation, but in opening lines of his cross-examination he deposed as under:--

Whereas the Revenue Officer being DW1 in his cross-examination made a contradictory statement and for ready reference the same in verbatim is reproduced hereunder:--

He further added that:--

He further stated that:--

This part of deposition of star witness/ Revenue Officer is sufficient to conclude that if any offer of gift was reiterated by the donors before the Revenue Officer then the donee was not available before him for its acceptance. There is no second opinion that if any of the three ingredients of gift is not proved then it will not be a valid transaction. Moreover, the Revenue Officer also stated in his cross-examination as under:--

He further conceded that:--

The above captured major and vital contradictions found in the statements of DW1 and DW4 as well as number of cuttings in the relevant Register while making entry and attestation of impugned mutation as well as recording of statements of the donors on separate papers and subjoining of those with the mutation has really made it dubious and suspicious.

7. A bare perusal of copy of impugned mutation (Exh.D2) (available at pages 76 to 80) reveals that it was entered by Patwari on 22.12.1996 on behalf of five sisters in favour of their brother/respondent No.1, which was allegedly presented for the first time before Revenue Officer (DW1) on the same day, the ladies were identified by Abdul Qadoos Kiani, Advocate in presence of Muhammad Ashraf before the Attesting Officer but the latter deferred the same as till that time the required fee was not deposited and prior to its further proceedings, two out of five sisters/donors approached the Revenue Officer with the complaint that they had never made a gift and requested for the cancellation of mutation, the officer on 31.12.1996 while endorsing an order on the mutation summoned the parties and pursuant thereto the son of donee/respondent No.1 and petitioners on 08.01.1997 appeared before the Revenue Officer in presence of Ghulam Qamar (PW2), Muhammad Waris and Nazir Ahmed Chowkidar. The proceedings of the said day and statements of two sisters, who denied the transaction as well as statements of the petitioners were purportedly recorded on separate papers, whereas the order of attestation of mutation was authored on the "pert" of mutation. There is much force in the submission of Mr. Khawar, Advocate, learned counsel for the petitioners that the thumb impressions procured on blank papers for the execution of lease deed were utilized by respondent No.1 in connivance with the Revenue Officer to complete the proceedings of the impugned mutation, especially when the latter conceded in his deposition that no other mutation in his relevant Register was available wherein the statements of the parties or marginal witnesses were recorded on separate sheets. The reply of Mr. Hayat Hiraj, Advocate, learned counsel for respondent No.2 that as the petitioners had admitted their thumb impressions on the sheets attached with the mutation, therefore, respondent No.1 was no more required to prove its attestation, is misconceived. The attestation of mutation was a series of acts, which is required to be proved independently and mere signing or putting thumb impression would not amount to its valid attestation/execution in terms of Article 78 of the Qanun-e-Shahadat Order, 1984. Reliance in this respect is placed upon the judgment reported as Abdul Hameed v. Mst. Aisha Bibi and another (2007 SCMR 1808), para-5 of which is reproduced hereunder:--

5. After hearing the learned counsel for the parties and perused the record with their assistance, we find that sole question requiring determination would be whether the admission of vendor of his thumb-impression on the agreement to sell was sufficient to prove its execution and contents, the answer is in the negative as the document purporting to create a right in the property must be proved to have been actually executed by the person who allegedly executed such document. It appears from the record that Din Muhammad was an illiterate person and without being aware of the contents of the document put his thumb-impression on it at the instance of his son in good faith with the understanding that it was compound deed. This is a matter of common sense that in the normal circumstances, father would certainly trust his son and may act on his advice and thus in these circumstances, the inference drawn by the High Court that the vendor having no knowledge of the contents of the document, affixed his thumb-impression at the instance of his son with the impression that document pertained to the settlement regarding encroachment of the house was quite natural and denial of Din Muhammad to have put his thumb-impression on blank paper, would seriously reflect upon the genuineness of the agreement in question. In view thereof, the admission of Din Muhammad of his thumb-impression on the agreement in question, would not ipso facto prove its contents to raise the presumption of it being a genuine document to have the legal force....

The apex Court in case reported as Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others (2008 SCMR 1384) while dealing with registered gift deed challenged through civil suit by some ladies wherein their appearance before the Attesting Officer was an admitted fact, in its para-11 observed as under:--

11. The execution or appearance of the party before the Registrar/Sub-Registrar is not conclusive proof of the execution of gift. In such a case, the Court will have an overall view of all the attending circumstances of transaction and no presumption could be attached to such type of document. Reliance can be placed on the cases of Qazi Altaf Hussain and another v. Ishfaq Hussain 1986 SCMR 1427 and Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676. There is no doubt that the certificate of registration or endorsement on the registered document carries a presumption but no such presumption can be drawn therefrom that such person has really executed the same and it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same. The certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn therefrom. This view is supported by the dictum laid down in the cases of Gopal Das and others v. Sri Thakurji and others AIR 1943 PC 83 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633. In the latter case, a Division Bench of the Lahore High Court observed that the endorsement made by the Registrar on questioned document would not prove that such document was executed by donor in favour of donee; contents of gift-deed and constituents of gift must be proved in consonance with the provisions of "Qanun-e-Shahadat" and rules of gifts under Muhammadan Law.

It is also taken by surprise that the alleged donors, five in number for the first time on 22.12.1996 were not identified before Revenue Officer by any of the notable of the said revenue estate rather one Abdul Qadoos Kiani, Advocate was shown to be their identifier at that time, who neither was related to the petitioners nor was examined. Morever, Muhammad Waris and Nazir Ahmed on whose identification and attestation the impugned mutation was ultimately sanctioned on 08.01.1997 were not examined despite their availability for the reasons best known to respondent No. 1. They might be the star witnesses, who could prove the proceedings and statements recorded on separate sheets, but their non-examination has compelled this Court to draw an adverse inference against the beneficiary under Article 129(g) of the Qanun-e-Shahadat Order, 1984, whereas, Ghulam Qamar, the third available person on that crucial day, appeared on behalf of the petitioners as PW2 and denied their appearance before the Revenue Officer. He in his statement-in-chief unequivocally worded as under:--

It was the high time, when he was to be confronted with the proceedings allegedly conducted by the Revenue Officer in his presence, but nothing was asked from him during his cross-examination. So there is not an iota of evidence except statement of Revenue Officer to prove the proceedings and the recording of statements of the petitioners carried out on 08.01.1997. The stress of Mr. Hayat, Advocate, learned counsel for respondent No.2 that Muhammad Ashraf (DW5) was examined to prove the transaction as well as attestation of subject mutation is not tenable. His entire deposition is reflective of the fact that he did not utter a single word that prior to attestation of mutation, any transaction of gift was effected before him. Moreover, he was the witness of the proceedings when five sisters on 22.12.1996 made a statement before the Revenue Officer, but as per available record these proceedings were not accepted by two of the alleged donors and final proceedings were thereafter initiated on 08.01.1997, with which this witness had no relevancy.

8. Respondent No.1 also could not bring on record copy of Rapt Roznamcha Waqiati to prove that the impugned mutation had genuinely been entered by the concerned revenue Patwari on the asking of petitioners. The probe of record further affirms that donors were folk and illiterate ladies and when the mutation No.474 was allegedly attested, no independent advice was available to them. The argument of learned counsel for respondent No.2 that petitioners were not Parda observing ladies and cannot be equated with illiterate ladies, is not well founded. A lady, who is ignorant and illiterate, is equally entitled for the same treatment, which is available to a `Parda Nashin' woman for the object to protect that weak and helpless lady. So even in the case of a folk lady, who is outside the group of Parda Nashin and knows nothing regarding the transaction to be effected qua her property due to her illiteracy and ignorance, is to be treated at par with the regular parda observing ladies class and in such like cases, as per principle laid down by the superior Courts in the cases reported as Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another (AIR 1925 P.C 204), Chainta Dasya v. Bhalku Das (AIR 1930 Cal. 591), Jannat Bibi v. Sikandar Ali and others (PLD 1990 SC 642) and Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others (2013 SCMR 868), it is sine qua non for the beneficiary to establish that she entered into the transaction voluntarily and with full knowledge and import of what the transaction meant for. The apex Court recently has again approved the afore-referred principle in cases cited as Ghulam Farid and another v. Sher Rehman through L.Rs. (2016 SCMR 862) and Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225). His lordship Dost Muhammad Khan while speaking for the apex Court laid down the parameters for a beneficiary of a transaction struck with illiterate/parda observing ladies to be complied with to prove it legit. In Phul Peer Shah's case he authoritatively laid down some conditions in para-8 of the judgment in this regard, which for ready reference is reproduced hereunder:--

"8. In a case of such transaction with old, liberate/rustic village Parda Nasheen' lady onus to prove the transaction being legitimate and free from all suspicions and doubts surrounding it, can only be dispelled if the lady divesting herself of a valuable property, the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree. Amongst this condition, the pre-dominantly followed are as follows:-- i. That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; ii. That she was having independent advice from a reliable source/ person of trust to fully understand the nature of the transaction; iii. That witnesses to the transaction are such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her; iv. That the very nature of transaction is explained to her in the language she understands fully and she was apprised of the contents of the deed/receipt, as the case may be."

But none of these conditions was fulfilled by respondent No.1 while bringing on record convincing, reliable and cogent evidence. The Courts of law cannot remain oblivious regarding the erosion of moral values and the conduct of respondent No.1 is worth quoting as a classic example to deprive his real sisters of their valuable property.

9. The additional backdrop of the case was that the petitioners/ladies being married had their independent families including their husbands as well as siblings. A prudent man cannot conceive that while ignoring their families why they were compelled to make a gift of their property to one of their brothers. There is no second opinion and this Court is also conscious of the fact that a Muslim is free to transfer his property through declaration of gift in favour of any person, but there should be some reasons that why the donor was compelled to make a gift in favour of alien while eliminating his/her heirs, but in the case in hand this fact is totally lacking, which being militant to the ratio of judgments of superior Courts passed in cases reported as Mst. Khurshid Bibi and others v. Ramzan and others (2006 CLC 1023), Meraj Din v. Mst. Sardar Bibi and 5 others (2010 MLD 843) and Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938) has forced this Court to disapprove the transaction alleged by the beneficiary.

10. In the fag end of his arguments, Mr. Hayat Hiraj, Advocate, learned counsel for respondent No.2 emphasized with great vehemence that the petitioners did not appear in the witness-box to make a statement in support of their pleadings and failed to depose the facts exclusively within their knowledge, which stance might have some force, but each case has to be decided on its own merits. Ordinarily a party having personal knowledge of facts must examine himself to depose those and face the test of cross-examination as well for ascertaining the truth or otherwise of his claim failing which an adverse presumption under Article 129(g) of the Order, 1984 can be drawn against him, but if sufficient infirmity on part of party is existed, then he may be immuned from his personal appearance in the witness-box. In the case in hand the rights of the simpleton folk and illiterate ladies were involved, who might not be aware of the judicial proceedings and could not face the test of intricate questions to be put to them in their cross-examination and were justified to appoint their close relative as special attorney, who being conversant with the facts of the case magnified entire detail of the lis and succeeded to remain consistent to the stance advanced by the petitioners in their pleadings. So in the case in hand no adverse inference can be drawn against the ladies.

11. Having remained unsuccessful on all the above referred points, the stance of learned counsel for respondent No.2 that the learned Trial Court omitted to frame specific issue with respect to protection provided under section 41 of the Transfer of Property Act, 1882 despite his assertion in the written statement and suit may be remanded to do the needful is not sustainable. Respondent No.2 did not agitate the said issue before both the Courts below, where protracted trial of the suit was conducted. This Court is conscious of the fact that it was the prime duty of the learned Civil Court to settle the issues as per pleadings of the parties, but respondent No.2 was contributory towards that negligence, who remained mum throughout. Moreover, the entire pleadings were in his knowledge and he was under legal obligation to prove the same by production of the best available evidence during trial of the suit. The august Supreme Court of Pakistan has dealt with such question authoritatively while holding that where the parties led evidence keeping in mind their pleadings, objection regarding non-framing of any issue or improper settling of issue lost its weight. Reliance in this respect can be placed upon the judgments reported as Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another (1988 SCMR 04), Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) and Abdul Karim v. Haji Noor Badshah (2012 SCMR 212). Moreover, respondent No.2 being DW6 neither uttered a single word that he bona fidely purchased the disputed property after making a probe with regard to its title nor he examined any supporting witness in this respect. Moreover, since respondent No.1 has failed to prove the validity of the gift allegedly made by the petitioners, this Court is inclined to hold that the consequent entry in the revenue record had been managed fraudulently and thus it was void. It is settled principle of law that any superstructure built on the basis of a fraudulent transaction must collapse upon failure of such transaction. Therefore, the contention of respondent No.2 that he was bona fide purchaser of the subject property and such transaction was protected under section 41 of the Transfer of Property Act, 1882 does not carry any weight.

12. Having thus, going through the entire record and the submissions advanced by learned counsel for the parties, this Court finds that the impugned judgments of the Courts below although are consistent with each other, but those did not attain respect usually attached to such concurrent findings as the same are based on misreading and non-reading of material evidence, which was available before them, but escaped from their notice. The minute examination of available evidence leads this Court to conclude that respondent No.1 failed to prove the making of valid gift of the subject property by his sisters in his favour as well as the other respondent also remained unsuccessful to establish his bona fide purchase whereas the petitioners succeeded to establish that mutations were void, illegal, against law, based on fraud, misrepresentation and consequently inoperative upon their rights. Resultantly, the findings of the Courts below on issues Nos.1 to 3 are reversed while answering the same in favour of the petitioners.

13. In view of above discussion, the instant civil revision is accepted, impugned judgments and decrees passed by the Courts below are hereby set aside and suit filed by the petitioners is decreed with costs throughout.

ZC/A-1/L Revision allowed.