2006 PLP 929 (CLC)

MAULVI ANWARUL HAQ, J.

On 17-3-1972, Mst. Sakina Begum predecessor-in-interest of the respondent (hereinafter to be referred to as plaintiff) filed a suit against Muhammad Suleman, predecessor-in-interest of the appellant (hereinafter to be referred to as defendant). It was stated in the plaint that the plaintiff is owner of the suit property mentioned in the plaint. The defendant had friendly relations with the deceased husband of the plaintiff and Nabi Bukhsh son of the defendant is a reader in the Court of Special Judge, Multan. Her husband died four years ago and the defendant and his son Nabi Bukhsh started visiting her and advised her that she should reconstruct the property with her savings. She did accordingly. The father and the son took her along on the pretext that they will get exemption from the property tax for her. She is an illiterate Pardanasheen old woman and accompanied the defendant and his son who obtained her thumb-impression on some papers. About one month ago she received a notice for payment of property tax and she inquired from the defendant who declared that she has gifted away the property to him and he is owner of the property. According to her she had never made a gift to the defendant and the same is illegal and void being forged and fabricated and result of fraud. She accordingly sought a decree for cancellation of the gift deed dated 29-12-1970. The defendant in his written statement pleaded a valid gift by the deceased lady in his favour. Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit vide judgment and decree, dated 9-12-1974 and learned Additional District Judge, Multan allowed the first appeal of the plaintiff and decreed her suit on 3-1-1978.

2. Learned counsel for the appellant contends that the execution of the gift deed Exh.D.1 has been proved and this has been conceded even by the learned Additional District Judge. According to the learned counsel learned Additional District Judge has proceeded on conjectures and surmises by referring to the general principles applicable to execution of document by illiterate old ladies and non-suiting his client. He particularly refers to the document Exh.D.5 to urge that the same having been got produced at the insistence of the plaintiff-lady its contents go to prove that a valid gift was made by her in favour of the defendant. Learned counsel for the respondents on the other hand relies on the cases Muhammad Nazir v. Khurshid Begum 2005 SCMR 941; Baja and 8 others v. Mst. Bakhan and 3 others 2004 YLR 3047; Muhammad Rasheed v. Mst. Saleema Bibi 2004 CLC 1026 as also Suleman Khan v. Makhmal Jan and another PLD 1974 AJ&K 106 to urge that the impugned judgment of the learned Additional District Judge does not suffer from any error or law, and the attending circumstances of the case fully support the same.

3. I have gone through the records with the assistance of the learned counsel for the parties. Needless to state that the onus lies squarely upon the defendant to prove a valid gift by Mst. Sakina, plaintiff in his favour.' There is no relationship between the parties. His case is that Mst. Sakina treated his wife as her daughter and the defendant to be his son-in-law and out of love and affection made the said gift. Now Exh.D.1 is the gift deed and this document itself narrates that Mst. Sakina was 70 years old and that she thumb-marked the said document. It has also come on record that she had no other property in the world except the suit property and she had demolished the same and constructed some shops to have a source of income. Now I deem it proper to reproduce here some portions of statements of P.Ws. produced by the appellants themselves to demonstrate the status and condition of the said lady. Ch. Zia Elahi, Advocate, D.W.5 stated as follows:-- D.W. 12, Abdul Rasheed son of Haji Kalloo has stated as follows: It will be thus, seen that what love and affection, the defendant and his wife had for the said lady and further the condition of the said lady who is stated to have gifted away her only property in this entire world to the defendant.

4. It is a matter of record that no relative of the deceased lady was present when the gift is stated to have been executed. She, of course, had no independent advice. Now she appeared as P.W.4 to state that she is an illiterate old "Pardanasheen" lady and is simpleton. She had not given the house to the defendants. It was after the death of her husband that the defendant and his son Nabi Bukhsh and Bashir started visiting her. She had saved Rs.15,000 and she was advised by the defendant to reconstruct the property so as to build shops as a source of income for her and she spent all the money on the said construction. She specifically stated that she or her husband were never served by the defendant. She was subjected to a prolonged cross-examination. She was not confronted with the gift deed Exh.D.1. She was not put the reasons stated in Exh.D.1 for making gift i.e. that she considered his wife as her daughter and the defendant as his son-in-law and for the services rendered by them she gifted away the suit property to them. She was never suggested that she was served by the defendant or his wife. Despite her specific statement in the manner that she was taken to the Courts by the defendant and his son on the pretext of getting exemption from the property tax. It was not at all put to her as to whether she had any independent advice in the matter.

5. Now Suleman, defendant himself never entered the witness-box. His son Bashir, appeared as D.W.15 and he stated in his cross-examination that his father is well and alive and is present in the city. He stated in his cross-examination that Mst. Sakina is more than 70 years old woman. She is illiterate and wears "Burqa". He admitted that the plaintiff had no other property other than the suit property and that she had no other source of income.

6. Now so far as Exh.D.5 is concerned, it is true that it was on insistence of the learned counsel for the plaintiff that it was got produced in the statement of D.W.3. However, nothing turns on the same in favour of the defendant other than that several documents were thumb-marked to cater for all possibilities. Exh.D.5 gives the impression that the lady has sold the property to the defendant and has received consideration. I, therefore, do uphold the findings recorded by the learned Additional District Judge, on Issues Nos.3 and 4.

7. Regarding Issue No.1, to my mind this issue does not even rise in the case. There is no question of collusion between Abdul Rasheed and the deceased lady for the simple reason that Rasheed will not be benefited at all by a favourable decision in the suit. So far as Issue No.2 pertaining to possession is concerned, it is a matter of record that the property stands rented out and in such circumstances there was no need for the deceased lady to have filed a suit for possession.

8. The said judgments being relied upon by the learned counsel do spell out the degree of caution to be exercised by the Courts in the matter of dealing with the transactions alleged to have been made by illiterate old ladies. In the attending circumstances apparent on the face of record, learned Additional District Judge has correctly followed the said dictum. No grounds stand made out for interference with the impugned judgment and decree of learned Court of first appeal. R.S.A. accordingly is dismissed with costs throughout. M.H./N-69/L Revision dismissed