KHAN MUHAMMAD vs Mst. ROBINA MAROOF KHAN
This matter arises from a petition for leave to appeal against the judgment of the High Court, which had set aside the dismissal of the respondent-wife's suit for possession of a house claimed through a gift made at the time of her nikah by her father-in-law, the petitioner. The core legal question concerned the validity of the gift, delivery of possession, and the appreciation of evidence regarding the execution of the gift deed by an illiterate donor. The Supreme Court held that the High Court rightly interfered in revision upon finding that the lower appellate court had misread evidence, misinterpreted the document, and misapplied the law, as disinterested witnesses and the scribe duly proved the execution of the gift and the thumb impression. The petition for leave to appeal was accordingly refused. The key principle laid down is that a High Court in revisional jurisdiction can interfere with concurrent or appellate factual findings where there is a clear misreading or non-reading of evidence.
- Can a High Court interfere in revision with findings of fact recorded by the lower appellate court?
- Whether a gift deed executed by an illiterate person is invalid solely because it was not read out to him?
- Is delivery of possession established when the donee resides in the gifted house with her husband?
ORDER
' FAZAL ILAHI KHAN, J.---Robina Begum respondent was married to Maroof Khan son of Khan Muhammad, petitioner, on 3-11-1985. At the time of Nikah the house in dispute was gifted to her by the petitioner and since 1987 she was allegedly residing in the same house alongwith her husband as an owner. As relations between the spouses became strained she filed suit for possession of the house. The suit was contested by the petitioner and his son; namely, Maroof Khan by filing their joint written statement in which they denied the contents of the plaint altogether.
2. After recording evidence of the parties on the issues which arose from the pleadings of the parties the learned Civil Judge decreed respondent/plaintiff's suit by judgment dated 12-6-1991.
However, in appeal filed by the petitioner the learned Additional District Judge, Abbottabad on his finding that the gift was made on 3-11-1985 though the marriage took place on 10-11-1985, therefore, possession has never been delivered to the respondent under the gift. It was further held that the petitioner was an illiterate person, therefore, for that reason he has put his thumb- impression on the gift deed and that the same was never read out to him after it was scribed.
Accordingly, appeal was accepted, the judgment and decree was set aside and the respondent/plaintiff's suit was dismissed.
3. Qazi Abdur Rashid, learned counsel for the petitioner heard and record perused. Learned counsel contended that in revision filed by the respondent/plaintiff learned High Court reappraised the entire evidence and came to the conclusion that the lower Appellate Court had misread the evidence, misinterpreted the document and misapplied the law while giving decision and in setting aside the finding of the learned Trial Court. Regarding gift deed it was held that two disinterested reliable witnesses as well as the scribe of the deed have deposed of the gift having been made by the petitioner in favour of the respondent/pldintiff and that he has thumb-impressed the same.
The scribe has deposed that the deed was scribed at the instance of the parties which fact has not been controverted by the petitioner. Petitioner never challenged the gift deed till the time that respondent/plaintiff, due to strained relations with her husband, brought the present suit. Such being the case the finding recorded by the learned High Court is not open to any exception. Leave to appeal is, accordingly, refused.