HASSAN BIBI Versus GHULAM SIDDIQUE

Ghulam Siddique and two others brought the present Suit No.421/1 on 24‑11‑1985 in the Court of Civil Judge, Peshawar against Abdur Raziq and two others namely Mst. Hussan Bibi daughter of Abdul Samad widow of Abdur Rauf and Mst. Khurram Jan daughter of Abdul Samad widow of Saifullah for declaration to the effect that the plaintiff and defendant No.1 are owners of 13 Kanals 2 Marlas out of total land measuring 27 Kanals 11 Marlas on their own and as heirs of Mst. Miryan and that gift of land measuring 13 Kanals 2 Marlas made by Mst. Maryam Jan alias Miryan in favour of defendant No.2 was fictitious, fraudulent and ineffective on their rights. It was further claimed that the property being joint Mst. Miryan was not entitled to gift away specific Khasra numbers till regular partition by meats and bounds was to take place. In the alternative prayer as made for possession of the suit Land

2. Admittedly on the death of Abdtur Raqib his Inheritance Mutation No.675 was attested in favour of Mst. Maryam his mother, Mst. Khushbano his widow, Mst. Mumtaz his daughter, Abdur Raziq and Ghulam Siddiq his sons, according to Muhammadan Law. Mst. Maryam allegedly gifted the suit land through a registered deed dated 24‑12‑1956 in favour of her daughter Mst. Hussain Bibi wife of Abdur Rauf on the ground that Mst. Maryam was an illiterate `Pardahnashin' lady under the undue influence of Mst. Hussan Pari and her husband, with whom she was residing during those days, fraudulently and collusively managed to get the land transferred in her favour. According to the plaintiff she was sick, deaf and incapable of understanding. Defendants in their written statement have, however, set up a case that Abdul Raqib in his lifetime had given the specific suit Khawa number to his mother and thereafter she competently made gift of it in favour of his daughter and since then she is in possession of it as full owner. Apart from raising the plea of bar of limitation in challenging the registered gift deed further plea was raised that they have become owners by adverse possession of the suit land for more than 12 years. The learned trial Judge after recording evidence of the parties on the issues framed in the case found that the bur .ten was on the plaintiffs and they having failed to prove that the deed was the result of undue influence or that she was sick, deaf and incapable of under standing decided the issue against the plaintiffs. The issues with regard to limitation, adverse possession and cause of action were also decided against them and on such finding dismissed the plaintiffs' suit. The learned Additional District Judge, before whom the judgment and decree of the trial Court was challenged in appeal by the plaintiffs, on re‑appraisal of the evidence reversed the finding of the Court on the aforementioned issues and decreed the plaintiffs' suit as prayed for in the plaint.

3. In this revision petition by the defendants the controversy is confined to the issue whether Mst. Maryam allegedly made gift of the suit land in favour of defendant No.2 and in that matter the burden of proof has been argued at great length.

4. In order to appreciate the arguments of the learned counsel for the parties addressed on the issue it would be advantageous to refer to the evidence of the parties led on the point. Statement of Patwari Halqa, in this respect, is relevant for purposes, of entries in the revenue record, of the suit land. Sher Muhammad Sub‑Registrar was examined by the plaintiffs to prove registration of the gift deed Exh.P.W.2/1 and its entry in the relevant register. Ghulam Siddique plaintiff in his statement has set up a case that at the time of the death of their father namely Abdul Raqib they were minors and were residing with their maternal grandfather and the suit property was managed by their paternal mother Mst. Maryam Jan and their two aunts defendants 2 and 3. It was further stated that Mst. Maryam Jan was living with Mst. Hussan Bibi defendant‑2 and that she died in the year 1957 at the age of 93/94 years. That at the time of her death she was of extremely old age and ill and was looked after by defendant NO‑2. In those days Mst. Maryam Jan was not capable of understanding and under the undue influence of defendant No.2 she had managed to get the impugned gift deed executed. It was stated that the property is still joint and they came to know of the gift deed from the perusal of the revenue record some time before filing of the suit. Plaintiff is supported by Naeem Jan aged about 55 years who stated that the parties are related to him and that after the death of Abdur Raqib his children were residing u5 Landi Arbab with their maternal grandfather, that Mst. Maryam died at the age of 95/100 years in the house of defendant No.2 with whom she was residing. That she was ill and had lost her sight and could not manage her affairs. She was looked after by defendant No.2. In cross‑examination he stated that Mst. Maryam and her daughter Mst. Hussan Bibi both were `Pardah' observing ladies.

From the other side Munsif Khan son and attorney of defendant No.2 stated that after the death of Abdul Raqib Mst. Maryarn, his mother, was residing with her daughter Mst. Hussan Bibi defendant No.2 and that she of her own and free will gifted the suit land through a registered deed copy Exh.P.W.2/1. That for execution of the deed she was produced before the Sub Registrar by defendant No.2, Ashraf Khan, Dost Muhammad and Abdul Wahab. He admitted that at that time he was not present and that Ashraf Khan D.W.2 was leis tenant and Abdul Wahab is his uncle. Dost Muhammad was stated to be the resident of Hussan Garhi. He admitted that the donor was 85 years of age at the time of execution of the gift deed. He denied the suggestion that the donor was deaf, blind, incapable of understanding and that the gift was made under undue influence. He reiterated that the suit property was given to the donor by Abdul Wahab in his lifetime and that she did not inherit it. The other witness, Ashraf Khan, his tenant, is stated to be a marginal witness to the execution of the deed. However, he admitted that the donor and donee both were observing Pardah from him. Abdul Wahab, who is related to the parties and Dost Muhammad who is a disinterested person, both were not produced to prove due execution of the deed in question.

5. From the evidence recapitulated above it is proved that on the death of Abdur Raqib the predecessor‑in‑interest of the contesting parties, the entire property was managed by his mother i.e. grandmother of the plaintiffs who were then minors. The relevant part of the judgment of the learned Additional District Judge dealing with this aspect of the case is as follows:‑‑

"The inheritance mutation of Abdur Raqib, father of the appellants, was attested in favour of the appellants and Mst. Maryam Jan alias Maryam vide inheritance Mutation No.675 dated 6‑9‑1952. No cogent evidence on the record exists that Abdur Raqib had given the entire property to Mst. Maryam Jan in his lifetime therefore, in these circumstances the appellants are admittedly co‑sharers in the suit property. At the time of death of Abdur Raqib appellants Nos.1, 3 and respondent No.1 were minors, therefore, the suit property was under management of Mst. Maryam Jan, their grandmother."

Mst. Maryam Jan was not the sole owner of the land, therefore, she could not make a valid gift of it in favour of Mst. Hussan Bibi her daughter. As already pointed out on the death of Abdur Raqib, his minor children were residing with their paternal grandfather in village Landi Arbab and their land was managed by Mst. Maryam Jan the donor and their aunts respondents 2 and 3 herein, therefore, no question of bar of limitation for filing of the present suit or adverse possession claimed by the defendant, would arise.

6. With regard to validity of the gift by Mst. Maryam Jan of her share it is not denied that she was more than 80 years of age and was entirely dependent on Mst. Hussan Bibi, the donee, her daughter and her son‑in‑law and no independent advice was available to her. She was illiterate, Pardahnashin and as such was not in a position to manage her day to day affairs and for that matter to look after her property. The solitary marginal witness produced in Court could not discharge the burden of proving the transaction with a Pardahnashin lady as required under the law. The learned trial Judge while giving his finding on the issue fell into error in placing the burden of proof on the plaintiff‑respondent in disregard of the law and overwhelming authorities on the point. In a case like the present one when the donor is a lady of an old age the burden shifts to the beneficiaries under the deed executed with such ladies.

7. In Kamawati v. Digbijai Singh (AIR 1922 Privy Council page 14), their Lordships dealing with the question of burden of proof of transaction by a `Pardahnashin' lady it was observed as follows:‑‑

"The deed, in short, is a deed substantially without any consideration by a donor of her entire property in favour of a donee who, or whose representatives, submit the prepared document to her and obtain, within the parda, her signature. It is the established law of India in these circumstances that the strongest and most satisfactory proof ought to be given by the person who claims under a sale or gift from them, that the transaction was a real and bona fide one, and fully understood by the lady whose property is dealt with."

It was further observed:‑‑

"When, however, the law is that the lady must fully understand the transaction, this is but a secondary way of saying that it is the obligation of the donee in any transaction proceeding from her to see that she does so understand it. The relations of parties demand that this duly be performed, and when Courts of law declare that the onus rests upon the donee of showing that he did so, that of course, is founded upon the fundamental fact that it was his duty to do it. If accordingly this obligation thus arising out of relations of the parties be not fulfilled, the case for rescission and consequent remedy is clear."

In Ayana Dasi v. Arena Bala Dasi and others PLD 1961 Dacca page 140 it was observed:‑‑

"According to the established principle, in case of a document executed by an illiterate Pardanashin lady, the burden lies on those who seek to hold the lady to the terms of her deed to satisfy the Court on evidence that the deed was actually executed by her with full understanding of what she was about to do; that she had full knowledge of the nature and effect of the transaction into which she is said to have entered; and that she had independent and disinterested advice in the matter."

In Mst. Hussain Bibi etc. v Mst. Aisha Bibi (1981 CLC page 962), the facts whereof are somewhat identical with the facts of the present case, it was observed as follows:‑‑

"On the basis of the evidence on record the learned District Judge was fully justified in raising a presumption that Nizam Din's mental capacity were affected on account of old age, mental and physical infirmity. The fact that he was living with his granddaughters and that they were in a position to dominate the will of the donor is quite evident from the circumstances of the case. The very fact that it was stated in the deed that he had no daughter when admittedly it has been held by both the Courts below on the basis of the earlier litigation as well as the evidence on the present file that the respondent was the daughter of Nizam Din deceased. This fact by itself is a strong evidence of the undue influence exerted by the appellants in obtaining the entire property to the exclusion of the respondent."

In the instant case, the donor 85/90 years of age, residing with her daughter and son‑in‑law, was dependent upon them and was under their influence. She had her grandsons and granddaughters and normally, in the absence of any other cogent reasons, the burden of proving such fact was on the donee, she would not have disinherited them.

For the reasons stated above, no exception could be taken to the, judgment and order of the learned District Judge. There is, therefore, no mere I in this revision petition which is dismissed with costs.

A.A./1270/P Revision dismissed.