1976 PLP 486 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑‑One Ali Dad brother of petitioners 1 and 2 owned land in village Suraj Gilli, Tehsil Haripur. District Hazara. On 11‑8‑1966, he gifted his entire land property alongwith a residential house to his nephew Bostan respondent by means of a registered deed, Exh. PW. 3/1, executed by him in the house of one Fazal Dad in Pind Cujran a sburb of Suraj Galli where Sub‑Registrar, Sardar Mehboob Ilahi and Shahabuddin Saqib, petition‑writer were also summoned for the completion of the docu ment. About two months later. Ali Dad died on 17‑10‑1966. On 8‑12‑1966, his sisters Noor Jehan and Ilahi Noor and widow Mst. Rani instituted a suit against Bostan seeking a declaration that the gift deed was void and ineffective on account of having been fraudulently executed under undue in fluence during murzulmaut besides being hit by Martial Law Regulation No.

64. The allegations traversed by the respondents were crystallized into issues and the parties adduced evidence before the trial Judge. It appears that the only Issue pressed by the petitioner was the one pertaining to the fictitious and fraudulent nature of the gift and other pleas of marzulmaut under influence and its being against Martial Law Regulation were not pressed during arguments. During the pendency of the suit, Mst. Ran: widow of Mst Dad died and her legal heirs were brought on the record. The stall was, however dismissed. The learned District Judge accepted the appeal ride order dated 2‑5‑1968, finding the‑ gift deed to be the result of fraud and decreed the suit with costs throughout. The respondent filed a second appeal before the High Court two of the respondents, namely, Mst. Noor Ilahi sister of Ali Dad and Nawab a legal heir of his widow Mst. Rant on whose death he had also been impleaded as a party, died during the pendency of the appeal and their legal representatives were brought on the record. Awl.

2. The only point pressed for determination before the learned Judge of the High Court was as to whether the gift was the result of fraud and undue influence. Having carefully considered the evidence led by the parties and particularly that of the plaintiffs on whom lay the burden to establish the allegations, the learned Judge came to the conclusion that the onus remained undercharged by the oral statements of Mst. Noor Jehan and her two wit nesses. Gobar Rehman and Fazal Dad. Although Noor Jehan claimed to have been informed by her deceased brother Ali Dad about the fraud practis ed on him by Bostan, yet she took no action for the cancellation of the gift during the life time of Alt Dad. As against this rather shaky and unconvinc ing evidence, Sardar Mehboob Ilahi, Sub‑Registrar and Shahahuddin Saqib, petition‑writer entered the witness box on behalf of the defendants and gave a complete lie to Mst. Noor khan and her witnesses. Both of them categori cally stated that at the relevant time, Ali Dad was in perfect senses and fully understood the nature of the transaction. Consequently, the learned Judge accepted the appeal, set aside the judgment and decree of the District Judge and dismissed the suit.

3. In support of the petition, learned counsel in a half‑hearted attempt in vain tried to argue that the finding of the trial Court as well as of the High Court was contrary to the weight of evidence which had been rightly appreciated by the District Judge. Having considered the three judgments of the Courts below, we are satisfied that the plaintiff had miserably failed to discharge the onus of proving fraud and undue influence. No misreading of evidence is alleged, and the conclusion arrived at by the trial Court and the High Court are fully sustainable on the evidence. The petition has no merit and is accordingly dismissed. Petition dismissed.