1988 PLP 2023 (CLC)

This Civil Revision calls in question the validity of the judgment/decree dated the 15th of January, 1986, of the learned Additional District Judge, Gujranwala, whereby the respondents plaintiffs' appeal was accepted and the case was remanded to the trial Court for taking partition proceedings.

2. The plaintiff and the defendant are real brothers. They developed a dispute in regard to the house in question which, according to the respondent‑plaintiff Abdur Rasheed was left by their deceased father but the defendant got it transferred to himself on the 21st of July, 1973, for a sum of Rs.4000 from their mother. He assailed this transfer to be fake, without consideration and‑void ab initio, inasmuch as the mother as widow had only 1/8th in it and could not possibly convey the whole thereof. He asserted that she died on the 22nd of the next January, (presumably 1976) whereafter the petitioner defendant occupied the entire house without conceding his right therein. Next, his assertion was that the cause of action accrued initially when their father died and lately when the petitioner denied his share in the inheritance.

3. The suit was seriously contested by the deceased defendant Abdul Hameed, inter alia, urging that since their father died in 1935, or 1939, the cause of action accruing thereon would make the present suit filed in 1979 hopelessly barred by time. He pleaded that the respondent had accepted the mother to be the exclusive owner of the house by having signed as a marginal witness a will dated the 16th of January, 1971 made by her in his favour and that he was estopped from denying her exclusive title to the same. He further explained that the house had been given to her by their father during his life time in lieu of dower debt and that ever since she was so recorded in all official records particularly of the Taxation Department. He denied if the sale made by her in his favour was fake or without consideration and contended that after having genuinely purchased it, he had spent huge amount of Rs.11,000 on its reconstruction. He assailed the frame of the suit which essentially being for distribution of inheritance was brought without joining three more brothers and a sister and maintained that due to non‑joinder, it was absolutely untenable. Lastly, he claimed special costs stating that the suit was vexatious and frivolous. According to him, the correct valuation of the suit for purposes of court‑fee was Rs.50,000 and the plaint had not been properly valued for this purpose.

4. Appropriate issues were framed on these pleadings and the trial Court dismissed the suit holding that the parties' father had transferred the house to their mother in lieu of her dower debt; that she was its full owner, that she had genuinely transferred it in favour of the defendant‑petitioner and lastly that the suit was bad for non joinder of other heirs. The lower appellate Court, however, upset these findings in appeal and instead held that there was no evidence to prove transfer of the house by the parties' father in favour of their mother in lieu of her dower debt. It noted that the act of respondent‑plaintiff in having signed the Will Exh. DA made by his mother in favour of the petitioner in 1971 did not suffice to conclude that he had accepted her to be full owner of the house. Likewise non‑joinder of other heirs in the suit did not in its opinion adversely affect the frame of the suit. As to limitation, the view taken by it was that the respondent‑plaintiff being co‑sharer shall be deemed to be in possession and that the suit was not barred by time despite the fact that the cause of action partly accrued in 1935 or 1939 when their father died leaving behind the disputed house in his estate. Consequently it accepted the appeal and passed a preliminary decree giving 2/7th shares of the house to the respondent plaintiff and the remaining to the petitioner defendant and other heirs of the deceased.

5. Mr. Muhammad Aqil Mirza for the petitioners seriously. assailed the impugned order of reversal urging that the evidence showing that the parties' father had in fact given this house to their mother in lieu of dower debt, was totally ignored. He relied upon the testimony of the parties' own brother Khadim Hussain, D.W.1, who in clear terms affirmed that the house had been given to their mother in lieu of her dower debt. He added that such a transaction did not require any writing or registration because sections 54 and 129 of the Transfer of Property Act were not applicable to the Punjab. He found support from Allah Jawai v. Allah Ditta (represented by heirs) (P L D 1975 Lahore 1399) for this view and the same was approved in Maulvi Abdullah and others v. Abdul Aziz and others (1987 S C M R 1403). He added that the respondent‑plaintiffs admitted signature on the Will Exh.D.A. whereby the mother attempted to bequeath this house in favour of the petitioner‑defendant, was arbitrarily ignored to infer that the same did not estoped the respondent from denying his mother's title to the house. Lastly he observed that the sale‑deed Exh. D.2. executed by the mother in favour of the petitioner‑defendant could not be disregarded ‑ merely because she was an old lady or had not been paid adequate consideration amount. In this behalf he placed reliance on Mst. Wilayat Jan and another v. Mohammad Sharif and another (1985 S C M R 1131).

6. On the other hand Mr. Faiz‑ul‑Hassan Naqvi, Advocate contended that the sale‑deed was the result of fraud as also undue influence exerted by the petitioner defendant on the old, aged, sick and infirm lady, whereby she was made a party to an unconscionable disposition of the house in favour of one son excluding altogether other four/five children.' He sought support for this view, among others, from Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC

624. Moreover, he canvassed that the so‑called Hiba‑bil Ewaz made by the parties' father in favour of their mother had to be in writing and registered. He referred to Haji Ghulam Hussain v. Mist. Amir' Khatun (P L D 1976 BJ 37) and Mst. Wilayat Jan and another v. Mohammad Sharif and another (supra). Supporting the impugned judgment on the point that the sale made by the lady it ravour of the petitioners was hit by undue influence, he relied upon Abdul Rehman v. Khalilur Rehman and others (P L D 1966 (W.P.) Pesh. 121).

7. There was considerable justification to assume that at least on two points the approach of the learned Additional District Judge was arbitrary. The Will Exh. D.1 dated 16‑1‑1971 admittedly bore the respondent‑plaintiff's own signature. This was a document by which the mother attempted to give the property to the petitioner‑defendant to the exclusion of all other children. The view that by having signed it, the respondent did not signify his acceptance of the lady being exclusive owner of the house was really capricious. He is quite an educated person and knew well that he was signing a document by which none else than his own mother was trying to pass on her title to the house in question to his brother. His conduct in doing so will clearly justify acceptance on his part of the lady's title and he would be estopped in law from going back upon his overture. It fulfilled all the ingredients of estoppel contemplated under Section 116 of the Evidence Act inasmuch as on his acquiescence the lady may have chosen to make the Will. She changed position to her detriment and the same clearly had the effect of precluding the respondent from 'taking a somersault. This was a point of law or at least a mixed point of law and fact upon which the finding of the learned Additional District Judge could not be sustained.

8. Similarly; the evidence was grossly misread in regard to Hiba bil Ewaz made in favour of the lady by her husband. It was no doubt oral, in that no written document was brought forth. Sections 54 and 129 of the Transfer of Property Act have not been applied to the Punjab and, therefore, it could have been made orally. Haji Ghulam Hussain's case will not help the respondents because it related to the territory of Bahawalpur State where those sections were applied. Besides the inference in favour of the lady's ownership stemming from the above mentioned will, there was sufficient direct evidence bearing out the Hiba bil Ewaz made to her in lieu of dower. Khadim Hussain, D.W.1 who was one of her sons, deposed that their father had before his death transferred the house to their mother in lieu of her dower. No question was put to him in order to shake his testimony, on the point. Obviously his version will be deemed to have emerged unscathed. The learned Additional District Judge totally ignored it and that was an instance of non reading of evidence.

9. Mr. Naqvi in vain tried to support the impugned judgment on the basis of fraud. No such finding was recorded by the lower appellate Court. It simply held that the mother did not get the house in lieu of dower debt and hence could not transfer beyond her respective‑ share in the house. Thus it will be completely otiose to introduce the element of fraud at this late stage much too against the judgment of the learned Additional District Judge. The rule laid down in Mst. Hamida Begum's case may not be invocable here on mere assumptions. However, when half of the progeny of the lady supports her title as also transfer made by her, there may be no idea of pressing the point that she was being duped, pressurised or coerced as an infirm lady, during her old age or ill health, by none else than her own son. Conversely, there was plausible reason to believe that by her conduct evinced as early as 1971 in making a bequest in favour of the petitioner, she had been all along very much of the conscious mind that she will part with the property in favour of the petitioner‑defendant. The bequest, however, fell presumably on a legal objection as it was being made in favour of an heir, but then she signified the same intention in another ,form viz. execution of a sale‑deed. The objection that the consideration of Rs.4,000 was quite inadequate was not much material in face of the rule laid down in Mst. Wilayat Jan's case especially when bona fide intention to make the transfer on her part was adequately proved.

10. As a result of the above discussion, the impugned judgment cannot be sustained and the same is set aside by accepting the revision petition. Instead the decree of the trial Court is restored leaving the parties to bear their own costs throughout. A . A . / M‑701/ L Revision accepted.