P L D 1998 Lahore 183 (PLP)

This order shall decide Civil Revision No.2158/89, calling in question, judgment and decree, dated 30-9-1989 of the learned Additional District Judge, Toba Tek Singh, dismissing the appeal of the petitioners and affirming the judgment and decree, dated 14-7-1987 of the learned trial Court.

2. A suit for joint possession, to the extent of 1/3rd share, of land measuring 44 Kanals 9 Marlas, was filed by the respondent, wherein it was claimed that he was nephew of Ibrahim (deceased) while the petitioners were his daughters. The deceased was allottee of the land in issue who died on 2-5-1975, leaving behind four daughters and respondent as his legal heirs. It was claimed, that respondent had 1/3rd share in the land and that the mutation of gift, in favour of petitioners was illegal, ineffective, invalid and inoperative as against his rights. The respondent challenged the mutation of gift as being fictitious, fake, non-existent and never made by the deceased Ibrahim. ?

3. The suit was resisted by the petitioners who took certain preliminary objections and also denied the claim of respondent.

4. After issues and evidence, the learned trial Court decreed the suit on 14-7-1987, which decree was affirmed in appeal. The appeal filed by petitioners was dismissed by the learned Additional District Judge on 3-9-1989. ?

5. In this revision, the two judgments of the learned Courts below have been subjected to challenge.

6. Learned counsel for the petitioners, argued, that a valid gift was made by the deceased; he appeared before the Revenue Officer and got entered the factum of gift; the donor and donees being related to each other, delivery of physical possession was not mandatory; the suit would be governed by Article 91 of the Limitation Act and was barred by time as it was not filed within three years from the death of Ibrahim.

7. Conversely, learned counsel for the respondent, defending the judgments of the two Courts below, argued, that the petitioners had not made specific denial of important facts in the written statement, did not take specific plea and thus could not lead evidence in regard thereto; did not cross-examine the witnesses of the respondent on important aspect of the issue; and that the concurrent findings of fact was recorded by the two Courts below and that no misreading of the evidence has been pointed out. A reference was also made to the statement of tenant, to assert, that the possession was never delivered and hence the gift was not complete and finally it was submitted that the case was within time as Article 120 of the Limitation Act was attracted in this case and it was filed within period of time prescribed in law. 8 In the course of hearing of this petition, the learned counsel for petitioner, read the entire oral and documentary evidence on record, but no misreading or non-reading of the evidence could be pointed out.

9. The main stress was on the applicability of Article 91 of the Limitation Act, which provides for three years' time to seek cancellation of an instrument. From the plaint and also the evidence led by the respondent, it becomes obvious, that the respondent did not accept the making of any gift by the deceased and claimed the same to be fake and non-existent. Though one of the points of attack is that as no possession was ever delivered, therefore, the gift could not be claimed to be complete yet the fact remains that the existence of gift or transfer of property through gift by deceased Ibrahim to his daughters, was seriously disputed. The case of the respondent, therefore, before the trial Court was, that the transaction is void ab intio as the deceased had never made any gift or transferred the property to his daughters and that the entries to this effect were fake and inoperative in law.

10. While considering the applicability of a particular Article of limitation, one has to keep in view as to how the transaction or document is. challenged. In cases where the transaction is claimed to be void, the party aggrieved therefrom, need not to seek cancellation thereof and it can simply apply for declaration that a document or the transaction, purportedly made is inoperative as against his rights. The situation, in a case where the execution is admitted and cancellation is sought, is different, as in such-like cases, the document or the transaction is said to be voidable at the option of the aggrieved person who can challenge the same on the ground of fraud, misrepresentation, lack of consideration, coercion or other grounds as available in law. In the cases, where the document or the transaction is termed as void, one can file a suit for declaration under Article 120 of the Limitation Act which provides for six years' period, from the date when the right to sue accrues. However, in the cases where cancellation is sought by a party to the document or the person claiming therefrom, then of course, Article 91 of the Limitation Act would apply.

11. In a case where one denies to be a party to the transaction, he can simply ask for a declaration that the document shall not be deemed to be operative as against his rights and the Court need not give any relief of cancellation thereof. Reference can be made to Daibakilal Basak v. Iqbal Ahmed Qureshi and another (PLD 1965 Dacca 439) and Abdul Hamid alias MD Abdul Hamid v. Dr. Sadeque Ali Ahmed and others (PLD 1969 Dacca 357).

12. In this case, the gift is being claimed as inoperative, fake and void, hence the respondent could file a suit under Art. 120 of the Limitation Act. The ~,, right to sue, would obviously accrue after the demise of Ibrahim, as the heirs cannot file a suit, during the lifetime of their propositus.

13. Learned counsel for the petitioners, relying on Mst. Hamida Begum v. Mst.Murad Begum and others (PLD 1975 SC 624), argued, that Article 91 should apply. Even the case referred to by the learned counsel for the petitioners supports the view expressed hereinabove, to the effect that there is a difference between void and voidable instrument. In that case it was held that if an instrument is executed by a person suffering under legal disability at the time of its execution, by reason of minority, unsoundness of mind etc., the document would be null and void and if the instrument is executed by a person competent to do so, and was challenged on the ground that the executant was forced or persuaded to execute the same under coercion, fraud, misrepresentation or undue influence, then it would be a voidable instrument in accordance with the principles embodied in sections 19 and 19-A of the Contract Act and the document remains operative as long as it was not set aside by a competent Court. It was further held, that Article 91 of the Limitation Act would not apply to a suit where the cancellation of a document is merely incidental or ancillary to the substantial relief, namely, recovery of possession or a declaration that the instrument is ineffective as against the plaintiff's right. It was observed in that case, that Muhammadan Law does not recognise rule of spes, successionis and a suit by a Muslim during lifetime of his father to challenge gift would not be maintainable. It will be noted that in that case, the allegations in the plaint were that the two Wakf deeds were obtained by collusion and fraud from the father of the plaintiff who was about 90 years of age at the time of execution and was not mentally fit. The said case, has, therefore, a distinguishing feature, as the documents sought to be challenged in the said suit were challenged on the ground that the same was obtained by fraud and that the executant was not mentally fit. It was not a case that the documents were never executed. The application of Article 91 was examined, in the? context with the grounds taken to attack the document. In the present case, the distinguishing feature is, that the respondent has disputed the existence of the gift and challenged the same as fake one. In this suit, therefore, the principal and substantial relief is not the cancellation of any document but it is a simple case for declaration of treating the mutation as void and inoperative, which could be filed within six years under Article 120 of the Limitation Act, after the demise of Ibrahim.

14. Even otherwise, the mutation did not convey any title. For challenging entries in the revenue record, every successive entry gives rise to a new cause of action.-The suit could safely be filed within six years from the last entry in the record of rights or on the discovery of the fraud. Reference can be made to Fatahuddin v. Zarshad and another (1973 SCMR 248) where it was ruled, that under Article 120 of the Limitation Act, time begins to run from the date right to sue accrues and the right to sue in the cases, where a gift is challenged on the ground of fraud, accrues from the date of discovery of fraud.

15. In view of what is observed supra, the plea of limitation raised by learned counsel for the petitioners, does not have any substance and the suit was rightly held to be within time by the two Courts below as it was filed within six years from the demise of deceased Ibrahim.

16. The other submissions made by learned counsel from petitioners are also devoid of any force. It could not be established from the record that the gift was made by deceased Ibrahim in his lifetime. The revenue record, produced on record, proved that Ibrahim, remained in possession of the property throughout, during his lifetime and managed as well as administered the same and that at no stage, the property was ever put under the control of the petitioners. The plea that delivery of possession was not necessary, is without any legal substance. To complete, the gift, declaration, acceptance of gift and delivery of possession,', simultaneously with the declaration and acceptance were mandatory. No' convincing evidence could be produced of making of declaration or acceptance of gift during the lifetime of Ibrahim. Delivery of possession could not be proved. The property was in possession of a tenant, Imam Ali, who was mentioned in the list of witnesses of the petitioners but was produced by respondent as P.W.3. He had deposed that no gift was made and that he had been making payment, to Ibrahim, during his lifetime. On the substantial part of his statement which was relevant to the plea of gift or ingredients of gift, no cross-examination was made, which would mean that the petitioners had accepted his testimony. Even otherwise, no reason has been shown for not believing this witness who appears to be an independent witness. The son-in-law of the deceased, started cultivating the land, only after his demise and not during his lifetime, which fact is evident from the statement of P.W.4 and, therefore, the plea that the possession was given under the gift to the daughters and they cultivated the land in the lifetime of Ibrahim does not find support from the record. So much so, the Patwari D.W.2, admitted that till such time he remained posted, as Patwari in the area, no report of transfer of possession was ever recorded by Ibrahim or by anyone else. The circumstances, place and the environment, in which the mutation of gift is claimed to have been attested would be sufficient to create considerable doubts as to the plea of gift or genuineness of the transaction and thus the whole case of the petitioners, would appear to have shrouded in mystery. No gift was attested in 'Jalsa Aam' nor it was attested at the place where the land was situated. The mutation does .not bear any thumb-mark of the donor or donee. Even Mst. Hamidan Bibi, one of the alleged donees was not produced in support of the plea of gift which would raise an adverse presumption in the matter against the petitioners.

17. So much so, the petitioners, in their statements, denied even the relationship of respondent with the deceased. Though in evidence the relationship was admitted. It cannot be assumed that the petitioners were not aware of the relationship of respondent with the deceased as he was his nephew but despite that, they took a false plea which will raise a lot of suspicion in their defence and would show the mala fide of the petitioners, who would even go to the extent of taking a plea which, according to their own knowledge, would be untrue. 18 The two Courts below also, after taking into consideration the entire evidence on record, concluded, that no gift was made by deceased Ibrahim and that the respondent was entitled to share claimed in the plaint. The findings of (lie two Courts below could not be shown to have suffered from any misreading or*non-reading of the record nor legal infirmity in the reasoning of the Courts below could be pointed out.

19. For the reasons above, there is no merit in this revision petition, the same is dismissed. The parties to share their own costs. A.A/H-41/1 Revision dismissed