1988 PLP 109 (CLC)

‑‑‑S. 115‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 79‑‑Gift‑ Execution of deed‑‑Revisional jurisdiction, exercise of‑‑Findings of Courts of fact not suffering from misreading or non‑reading of evidence‑‑Effect‑‑Where Courts of fact had taken notice of all the relevant circumstances and weighed evidence placed before them relating to execution of deed of gift, findings thereon, held, could not be deemed to be either based on misreading, non‑reading or non‑consideration of material evidence‑‑Trial Court having additional advantage of seeing and noting demeanour of witnesses who appeared before him was in a better position to assess their credibility‑ Revisional jurisdiction, against such findings of Courts of fact was declined by High Court. Bashir Ahmad Ansari for Petitioner. Khan Baig Janjua for Respondent. Date of hearing: 10th October, 1987. This civil revision arises out of a suit instituted by Mst. Sufaidan to set aside a registered deed of gift, which she was shown to have executed on 11‑5‑1985 in favour of Nisar Hussain, her step grand‑son. Suit was decreed by the trial Court, on 23‑11‑1986, and appeal preferred therefrom was dismissed on 21‑4‑1987. Courts below are agreed that gift‑deed was not a valid disposition of property and was not made by Mst. Sufaidan as set up in defence. 120 kanals 6 marlas of land, situated at Mauza Dharnal, Tehsil Fateh Jang, belonged to Mst. Sufaidan, widow of Amanat Ali. She was his second wife. From his first wife, Amanat Ali has a son, namely, Khadim Hussain, whose son is Nisar Hussain defendant in the suit. It was alleged in the plaint that Khadim Hussain, on a false pretext of withdrawing money from the Bank, which stood deposited in the name of late Amanat Ali, took her to Fateh Jang and obtained her 4/5 thumb‑impressions, and, thereafter, sent her back. It was further alleged that after about two months, it transpired that the aforesaid Khadim Hussain had fraudulently prepared a deed of gift in favour of his son and got it registered with the registration authorities. Plaintiff pleaded ignorance about the deed of gift and alleged that she was cheated of her property by Khadim Hussain and his son Nisar Hussain. Facts recited in the deed of gift were also traversed. Suit was instituted on 25‑11‑1985. Defendant contested the suit and it was urged that plaintiff's action in executing the deed of gift was voluntary and deliberate and that she fully understood, what she was doing. Story of fraud, misrepresentation and deception, as set up in the plaint was stoutly denied. It was also averred that under the deed of gift, possession was delivered to the donee and this fact was correctly recited in the deed. From the pleadings, trial Court raised five issues including relief. These are:‑ (1) Whether the gift‑deed dated 11‑5‑1985 was obtained by fraud and misrepresentation? (2) Whether gift was illegal, void and inoperative on the rights of the plaintiff? (3) Whether the suit is under‑valued for purposes of court‑fee, if so, what is the correct value and what is its effect? (4) Whether the plaintiff has revoked the gift, if so, what is its effect? (5) Relief. Plaintiff relied upon copy of the gift‑deed EX.P.1, copy of Jamabandi Ex.P.2, copy of Khasra Girdawari Ex.P.3, and in her statement denied to have made the gift. She also denied her appearance before any functionary for the purpose of acknowledging the gift in favour of the defendant. Defence relied on the testimony of Tariq Tanvir Nawaz, Advocate, (D.W.1), Aurangzeb (D.W.2) and his own statement as D.W.3. On consideration of the entire evidence produced for and against, both the learned Judges of the Courts below concluded that gift‑deed was a mere fabrication, and it was not executed by Mst. Sufaidan. In coming to this conclusion, they took notice of all the circumstances, weighed the evidence and found that donation of this large and valuable property, which practically was her entire property, did not appear to be a probable fact. Courts also found that voluntary execution of Ex.D.l was not established. On re‑appraisal of record and hearing of the learned counsel for the parties at some length, it is difficult to contribute to the view that a valid gift was made to Nisar Hussain as set up by him in his defence. Mst. Sufaidan was an aged, uneducated village woman. She had no issue from late Amanat Ali, who had given her this property in his life‑time. From the Haveli given to her by her husband, she was already dispossessed by Khadim Hussain. Her suit to recover possession of the Haveli was pending, at the time of the alleged gift, and, is still sub judice before the Civil Court. Civil suits had also been filed by the petitioner and his father Khadim Hussain against Mst. Sufaidan to recover large sums of money from her. These suits were either dismissed or were withdrawn. When she went to Fateh Jang, she was neither accompanied by any of her near relations nor any respectable from the village. It is not denied that the brother and sisters of Mst. Sufaidan were alive, and that she was on good terms with them. Except for Aurangzeb (D.W. 2), who claimed in someway to be connected with village Dharnal, where property in suit is situated. Hassu Khan and Maula Bakhsh, who are shown to have identified Mst. Sufaidan at the time of registration of the sale‑deed, were from different villages. One belonged to village Kaniyal, which place was situated at a distance of about 40 miles from Dharnal, and the other hailed from Marri, also situated at a distance of about two miles. Both these witnesses did not appear at the trial to support the gift. Hassu Khan was shown to have died, whereas the other witness had proceeded to a different place in connection with a murder case. Village Dharnal has three Lambardars. None of them were taken in confidence to be a signatory to the deed of gift. It was not the case of petitioner that he was on bad terms with them, or that they were not available or agreeable to witness the deed of gift. Khadim Hussain, against whom serious allegations of fraud, misrepresentation and deception were levelled by Mst. Sufaidan, did not choose to appear to controvert the allegations. Testimony of Tariq Tanvir Nawaz, Advocate, was not accepted by the Courts below. This witness had deposed that the deed of gift was prepared by his clerk under his dictation and thereafter its contents were read‑over to the donor, namely, Mst. Sufaidan who had put her thumb‑impressions on it. It is common ground that the clerk of the Advocate did not appear to make statement in support of the deed. It was conceded in cross‑examination by Tariq Tanvir Nawaz that Mst. Sufaidan was not personally known to him. No attempt was made to have thumb -impressions of Mst. Sufaidan appearing on the gift‑deed compared with her admitted thumb‑impressions by an Expert. Furthermore, no reason is forthcoming as to why the deed was not written by a Deed‑Writer. Stamp‑vendor, from whom the stamps were purchased for writing a gift thereon, was also not produced. It is also available in evidence that the petitioner had earlier also attempted for a gift from Mst. Sufaidan and had purchased some stamp‑papers also. However, this attempt proved abortive and the stamps were returned. It is correct that gift‑deed was registered. This, in itself, however, was no evidence to establish that Mst. Sufaidan had executed the deed and had also appeared before the Sub‑Registrar to admit its execution. She denied execution of the deed of gift and described it as a forgery. In the circumstances, petitioner, who was a beneficiary under the deed, was obliged to prove its execution by Mst. Sufaidan beyond reasonable doubts. Certificate of registration, to which the presumption is attached, shows mere execution of document. No presumption can be drawn there-from that a particular person had really executed it. In the given circumstances, it was for the petitioner to prove that Mst. Sufaidan had executed the document and thereafter had appeared before the Sub‑Registrar for admitting execution and agreeing for its registration. Fundamental question in the civil revision is, whether deed of gift was a genuine document and was really executed by Mst. Sufaidan. Relation inter se parties is not denied. Khadim Hussain, whose son the petitioner is, is the step‑son of Mst. Sufaidan. Records indicate that the parties were on bad terms and several litigations were going on between them at the time of the alleged gift. Gift covered a large area of land and its value given in the gift‑deed was Rs.70,

000. In evidence it was disclosed that its market value was about Rs.1,50,

000. Mst. Sufaidan had her brother and sisters alive. Donation, in the circumstances of the case, looked quite unusual and extraordinary also. No satisfactory reasons are forthcoming for Mst. Sufaidan to make gift of her entire property to son of a step‑son. Reasons given in the deed of gift were denied by her. As is shown to appear, Ex.D.l does not appear to be a natural and a straightforward transaction from grand‑mother to grand‑son. Testimony of Aurangzeb and Tariq Tanvir Nawaz discarded by the Courts does not appear to be trustworthy for basing a decision thereon in favour of the petitioner. Legal provisions and the decided cases have woven a sort of protection around Pardanasheen and illiterate women. Person taking property from them is obliged to establish that the transaction was free from doubt and that the Pardanasheen or the illiterate lady, on its own, without fear, coercion or undue influence, entered into the transaction. Looked at the case from these angles, I do not find that the petitioner had succeeded in discharging the burden, which lay upon him to establish that the transaction in question was a free and valid disposition by Mst. Sufaidan. On execution of the deed of gift, Courts of fact have taken notice of all the relevant circumstances and have also weighed the evidence placed before them. It was neither a case of misreading nor non‑consideration of material evidence. Learned original Court had also the additional advantage of seeing and noting the demeanour of the witnesses, who appeared before him and was in a better position to assess their credibility. It was not denied that some amount was lying in deposit in the name of late Amanat Ali in the Bank, which the parties were entitled to receive. In the circumstances, the version of Mst. Sufaidan that she was taken to Fateh Jang in connection with the withdrawal of the said amount does not appear to be improbable. In my opinion, it cannot be said that the evidence adduced, facts and circumstances of the case as also its probabilities have not been properly evaluated by the Courts below. On my own examination of the evidence, I have failed to discover any error in the approach of the Courts below. To the contrary from the records, I receive a clear impression that Khadim Hussain and his son, who were out to deprive Mst. Sufaidan of her property, given to her by her husband, made a crude attempt, which has been rightly frustrated by the Courts below. For the reasons given above, I would agree with the Courts below, accept their conclusions and dismiss this revision with costs. A. A./N‑71/L Revision dismissed.