1988 PLP 931 (CLC)

Hamida Begum v. Murad Begum P L D 1975 S C 624 rel. Muhammad Hanif Khatana for Appellant. Amanat Ali Bokhari for Respondents. Dates of hearing: 2nd and 5th December, 1987. This civil revision under section 115, C . P. C . arose out of a suit filed by the respondents for declaration to the effect that Karam Din defendant /petitioner had no right whatsoever in the land in question and that mutation No.20 dated 24‑11‑1976 obtained on the basis of a forged and fictitious will with respect to 1/3rd share of the total land left by Ali Gohar was null and void and ineffective as against their rights. It was averred that Ali Gohar had never bequeathed any land in favour of Karam Din. Karam Din, petitioner/ defendant is son of one Nizam Din who was husband of Sardaran Bibi. Sardaran Bibi, after the death of Nizam Din had married Ali Gohar and from this husband namely Ali Gohar, Sardaran Bibi gave birth to Muhammad Ramzan son and Siddiqan Bibi, daughter. Ali Gohar died in 1975. Mutation of inheritance of Ali Gohar was entered in the name of Sardaran Bibi, widow, Muhammad Ramzan, son and Siddiqan Bibi, daughter on 24‑8‑1975. In the meanwhile, Karam Din set‑up a will on the basis of registered deed Ex. D1 dated 18‑1‑1954. On account of this registered document, mutation was ultimately sanctioned on 24‑11‑1976 allowing 1/3rd share to Karam Din and the remaining land was mutated in the names of aforesaid heirs. This led to the filing of present suit on 3‑1‑1977. The suit was resisted by Karam Din and on the basis of the pleadings of the parties, issues as under were framed by the trial Court: (1) Whether mutation No.20 dated 24‑11‑1976 is illegal and in operative upon the rights of the plaintiffs? O . P . P . (2) Whether the plaintiffs have no cause of action and locus standi to bring this suit? O . P. D . (3) Relief. After recording the evidence of the parties and hearing the arguments, the learned trial Court dismissed the suit vide judgment and decree, dated 29‑11‑1984. On appeal of the respondent /plaintiffs, the judgment and decree of the trial Court was reversed, the appeal was accepted and the suit as prayed was decreed together with the relief that the will EX.D1 was declared to be a forged, illegal and void and ineffective document. Karam Din then filed the civil revision.

2. I have heard the learned counsel for the parties. Mr. Muhammad Hanif Khatana, Advocate for the petitioner argued that the suit was liable to be dismissed as the registered will was not challenged specifically and directly. He added that the learned appellate Court should have not cancelled it without there being any amendment in the pleadings. In support of this plea reliance was placed on Hamida Begum v. Murad Begum (PLD 1975 SC 624). I have also perused the record of the suit.

3. The case of the plaintiffs/ respondents since beginning was that mutation No.20 dated 24‑11‑1976 with respect to 1/3rd share of the land in dispute left by Ali Gohar was procured on the basis of some forged and fictitious will and as the said Ali Gohar had not bequeathed any land in favour of Karam Din, petitioner/ defendant and that the question of making a will in his favour could not otherwise arise as he had never performed any service to the deceased. The petitioner, in order to meet out this assertion, produced Munshi Barkat Ali scribe, DW.1, Hakam Din, DW.2 besides appearing himself as DW.3. As against it, Wali Muhammad whose name appears as one of the attesting witnesses appeared as PW.2. It may be noted here that no specific issues on the question of genuineness of the deed of will or its execution was framed. Such an issue was also not claimed by any of the parties. It appears that this question was taken to be falling under issue No.l as framed. Be that as it may, the petitioner did produce evidence in order to prove the execution of the document. In these circumstances, the prejudice, if any, can at best be canvassed by the respondents/ plaintiffs and not by the petitioner.

4. Having gone through the evidence on the question of execution of deed of will, I am of the considered view that the said evidence was neither sufficient nor of the nature that the same could be relied upon for returning the finding that Ex/D1 was executed by Ali Gohar. DW.1 Munshi Barkat Ali, scribe though stated that Ali Muhammad and Shah Muhammad and other witnesses affixed their signatures before him, yet in cross‑examination he admitted that he did not know Ali Gohar personally and. that the other witnesses were also not personally known to him. It appears that Karam Din was also not present. It is apparent from the deed itself as Taj Din representing to be the Trustee "Motbar" of Karam Din, appeared. before the Sub‑Registrar on behalf of Karam Din but neither the parentage nor the address of the said Taj Din has been recorded in the Deed. Hakam Din, PW.2 is one of the attesting witnesses. He also appeared before the Sub‑Registrar and purportedly identified B the parties at the time of registration of the document. He stated that Ali Gohar got the deed of will written in favour of Karam Din but he did not state that Ali Gohar had thumb‑marked the document in his presence. Moreover, from the cross‑examination, it appears that he hardly knew Ali Gohar or the other witnesses. It is strange that an utter stranger undertook the job of identifying the parties and witnesses before the Sub‑Registrar. The intrinsic feature of the deed is that Karam Din on his own showing was not present at the time of execution or registration of the document. Some Taj Din got this document attested and register. This Taj Din had not been pro duced in the trial Court nor his identity has been established. In these circumstances, it cannot be urged successfully that the execution of the deed of will by Ali Gohar had been established on record. Merely for the fact that the document was got registered would not be sufficient to give rise to any presumption that the document was in fact executed by Ali Gohar. It was held in Muhammad Jafar Ali v. Muhammad Abdul Majid (PLD 1968 Dacca 201) that registration of document does not rise legal presumption as regards validity of its execution. Once we come to the conclusion that the execution of document has not been established and the said deed of will thought registered was fictitious and forged, then there was no need for having such a deed cancelled or set aside. It was pointed in Hamida Begum v. Murad Begum (PLD 1975 SC 624) that where the deed or instrument is ab initio null and void, it can be treated as a nullity without having to be cancelled or set aside. On the other hand, if the instrument is only voidable, then it is necessary to have it set aside or cancelled in order to remove the impediment in the way of the plaintiff. The document which is forged and fictitious, is null and void and as such the suit as framed was competent and there was no need to ask for the cancellation of the said deed specifically. This being the position, the learned Additional District Judge was right in reversing the judgment of the learned trial Court and in decreeing the suit by accepting the appeal.

5. The net result of the above discussion is that this revision petition is without merit and the same is, therefore, dismissed with costs. M . Y . H . / K‑57/ L Petition dismissed.