2005 PLP 2310 (YLR)

Judgment of reversal, passed by learned Additional District Judge, Burewala on 18-2-1999, has been challenged through this civil revision, by Mst. Haleema Bibi, plaintiff-petitioner, who had got a decree in her favour, from the learned Civil Judge, Burewala on 13-11-1997.

2. The facts, as found from the record and narrated by the learned counsel are that Dil Muhammad was married to one Mst. Safia Bibi, from whom respondents Nos.1 to 3 were born. Aforesaid Dil Muhammad contracted a second marriage with Mst. Haleema, who was a lady having a landed property. A gift-deed was got executed allegedly from Mst. Haleema Bibi by Dil Muhammad in his favour through Deed No.657, registered on 27-4-1986, as with regard the lands measuring 82, Kanals 14 Marlas, situated in Chak No.469/EB, Tehsil Burewala. Mst. Haleema Bibi challenged the validity of this registered gift-deed dated 27-4-1986, which was entered into the Revenue Record through Mutation No.171 dated 24-6-1986. She narrated in her suit that she had not appeared before the Sub-Registrar and had never got registered or gifted away the property to Dil Muhammad. She also asserted that she was an illiterate villager, Pardanasheen lady and the deed is the result of fabrication and forgery. Giving the reasons of having not gifted away, it was stated by her in her plaint that she could not gift out that property to Dil Muhammad, as she was issueless and it could not be presumed from her that she would alienate her last source of income to Dil Muhammad, which was consequently to devolve upon the issues of his second wife (step-sons and step-daughters).

3. The suit was contested. The issues were framed and the parties had adduced their evidence. After appreciation and evaluation of the evidence, learned Civil Judge decreed the suit in favour of Mst. Haleema Bibi on 13-11-1997. Aggrieved from that judgment and decree, heirs of Dil Muhammad, who were defendants in the suit, filed appeal before the learned Additional District Judge, Burewala, which was accepted and the suit was dismissed on 18-221999. Hence, this revision petition.

4. It has been submitted by the learned counsel for the petitioner that the impugned judgment and decree of the learned Additional District Judge is liable to be reversed because learned Judge has failed to appreciate and apply the correct law, which was provided in case of an illiterate villager woman. The evidence must be of cogent and satisfactory nature in case of transaction being executed with that lady. There must be evidence showing conscious application of mind for the execution and for transacting or getting a transaction of benefit from the aforesaid lady. As the burden to prove the correctness/validity of the gift-deed was heavily placed upon the shoulders of respondents/defendants, they had to bring credible evidence in which they had failed. D. W.6, Ch. Ghulam Mustafa Ghumman, Advocate, who had identified the alleged executant at the time of registration of the disputed gift, had stated that the woman was clad in a Burqa and the contents were never narrated to that woman while Malik Khuda Bakhsh, Sub-Registrar, D.W.7 had admitted in his statement that he had not known the lady personally. D.W.8, Abdul Haq, the marginal witness of Exh.D. 1 (gift-deed) had not been able to state as to why the gift was made. D.W.1, Syed Hatam Hussain Gillani, scribe was also not believable as he had not known Dil Muhammad personally, while Mst. Haleema Bibi was allegedly known to him personally which statement was incredible. (Wife was known and not of her husband. Strange was the sentence). The statement of D.W.4 has also been challenged by the learned counsel by stating that the statement was unbelievable because a lady cannot, who go and fetch the witnesses to witness the making of her gift. So, the learned counsel has prayed that the judgment and decree, passed by learned Additional District Judge be reversed.

5. On the other hand, learned counsel for the respondents has replied that D.W.1, Syed Hatam Hussain Gillani had categorically stated that Mst. Haleema Bibi was known to her personally while D.W.2, Abdullah Saeed Anwar, defendant No.2 had also supported the gift transaction and had proved the transaction of gift. There was no specific denial of thumb-impression having not been affixed upon the gift-deed in dispute. The judgment of the learned Additional District Judge was passed upon sound reasonings. He has also stated that marriage of Mst. Haleema Bibi with Dil Muhammad was the result of love affair, so Mst. Haleema Bibi had alienated the lands in dispute to him. The plaintiff had not produced any other witness except her own statement, which was got recorded by her as P.W.1. The plaintiff was a wise lady and had admitted that she could compare between good and bad in affairs. The possession having been changed in the Revenue Record, the judgment of the learned Additional District Judge requires to be upheld.

6. After considering the arguments of both the learned counsel and from the perusal of the record, I have found that it is an admitted fact that Mst. Haleema Bibi was a lady, who was villager, Parda? observing and illiterate also. In such cases, the law is well-settled, that not only the transaction has to be proved with cogent evidence but that it was entered by her with conscious application of mind and through independent advice. Other factors, such as reason to make gift are also to be kept in view. The disputed land was the only asset of the aforesaid lady. It was not expected from her to gift away that land to a c husband, having another wife and the children from that other wife. I cannot subscribe to the view that due to love affair, the lady had contracted marriage with Dil Muhammad and had gifted away the property to him. There may be a love affair, which has also not been proved on the record, yet it could not be presumed that the lady had gifted away all her lands to that alleged donee. Such a lady could not lose all her assets, after the culmination of that alleged love affair into marriage. Independent advice was imparted to Mst. Haleema Bibi was to be proved on the record by the alleged beneficiary. Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Ch. Nasrullah Khan v. Muhammad Ramzan and others 1991 CLC 104; Muhammad Hashim and others v. Arshad Javed (Irshad Javaid) and another 1991 MLD 986; Mst. Saleema Bibi v. Sardar Khan and 4 others 1991 MLD 2359; Lal Shahadat Khan and another v. Mst. Gul Marjana 1989 CLC 803; Mst. Hussain Bibi v. Zafarullah Khan and another PLD 1967 Lahore 744 and Amirzada Khan and another v. Itbar Khan and others 2001 SCMR

609. The above noted decisions and the evidence, which I have noted in the arguments of the learned counsel for the petitioner, fully prove that the gift document was not proved up to the hilt. The arguments of the learned counsel for the respondents that the possession was changed and was with the respondents, so, the gift was proved, cannot be accepted in the instant case, because the petitioner who was a villager, parda-observing lady was not managing the property herself. It was naturally her husband, the male, who was holding its possession on her behalf, therefore, the change of entries even if made on the basis of disputed registered gift-deed in the Revenue Record, were the. consequences of that deed. There was no independent proof of delivery of possession. The possession of husband who was living with that wife, would be presumed to be that of his wife. As regards solitary statement of plaintiff, the argument is fallacious, because the plaintiff had only to controvert, negate and refute the execution of the alleged gift-deed, while it was for the respondents to prove the execution and attestation of the deed of gilt and transaction. The plaintiff was not required by any law to bring more witnesses necessarily and mandatorily, as the burden of proof after the statement of Mst. Haleema Bibi had shifted towards the defendants/respondents. The judgment of the learned Additional District Judge is not maintainable in the eye of law, which has proceeded to reverse the judgment of the learned Civil Judge on presumptions and C conjectures not warranted by any law and due appreciation of facts/evidence of the case. Therefore, by accepting this civil revision, judgment of the learned Civil Judge having been found based on sound and cogent reasons is restored and upheld while the impugned judgment of the learned Additional District Judge is set,aside, with no order as to cost. H.B.T./H-80/L???????????????????????????????????????????????????????????????????????????????????? Revision accepted.