2007 SCMR 996 (PLP)

RANA BHAGWANDAS, J.

This direct appeal within the contemplation of Article 185(2)(d) of the Constitution arises out of Lahore High Court judgment dated 24-5-2004 passed in civil revision whereby learned Judge in chambers of the Lahore High Court has set aside the Appellate Court judgment and restored the judgment and decree passed by the trial Court. Respondent No.1 Mst. Irshad Begum filed a suit for declaration and permanent injunction on 2-5-1995 challenging the registered gift deed dated 7-9-1954 purportedly executed by her gifting away her ancestral landed property measuring 98 Kanals, 16 Marlas situated in Mauza Mancher Chatha, Tehsil Wazirabad in favour of her real uncle i.e. Khushi Muhammad. She was co-sharer with the donee in the Khata to the extent of 1/2 share. It was averred in the plaint that she was married in Mauza Notheen Tehsil Hafizabad and was living with her in-laws in the house of her husband. Whenever she visited Mauza Mancher Chatha, Khushi Muhammad used to share the produce of Batai with her and the land being joint property, remained unpartitioned. She alleged that about 3-4 months before the filing of suit, she contacted Patwari Halqa for partition of her land, as the restrictions on partition of joint land had been lifted. When she obtained copies of the record, she came to know that her uncle had committed fraud and while she was still a minor got her property transferred in his name through a registered gift deed dated 7-9-1954. While denying that she ever gifted away her land and had not offered the same by way of gift, she challenged the transaction being void on account of her legal disability, being a minor at the relevant time. Consequently, subsequently mutations in relation to suit-land in the record of rights were void, illegal and inoperative upon her rights. Essentially, she challenged the gift deed and Mutation No.913, dated 8-1-1995 after the passage of more than four decades. 2. 0The suit was resisted by defendants Nos.1 to 12-A on a variety of grounds, including the bar of limitation, estoppel against respondent No.1 to file the suit; the suit being collusive; for want of cause of action and also for the reason that she had not prayed for the relief of possession of the suit-land. It was pointed out that respondent No.1 did not move any application for appointment of guardian-at-litem in respect of minor defendants Nos.7 to 11 under Order XXXII, rule 3 C.P.C. Defendants averred that the marriage of respondent No.1 was arranged by her uncle Khushi Muhammad, their predecessor-in-interest and she had been visiting the house of said Khushi Muhammad as well as defendant No.14 i.e. Ali Muhammad. Denial of execution of gift in favour of Khushi Muhammad was seriously resisted with the assertion that respondent No.1 was quite aware of the existence, execution and implementation of the gift deed in respect of her property; that she was not a minor and aged about 20 years at the time of execution of gift deed as she was aged about two years at the time of death of her father, who was murdered on 30-5-1937. Respondent No.1 had voluntarily executed the gift deed with her free-will, the defendants added. Sharing of produce of the suit-land with her by Khushi Muhammad was squarely denied by the defendants.

4. Respondent No.14 in his written statement conceded the judgment and filed a consenting written statement, leading to the settlement of as many as nine issues.

5. Beth the parties adduced evidence in support of their respective contentions. Upon evaluation of the evidence, learned Civil Judge; vide judgment dated 29-7-1999 held that Mst. Irshad Begum was minor at the time of alleged gift; that she was not competent to make a valid gift and the transaction was based on fraud. He, however, concluded that she being a co-sharer in the property and acquiring knowledge of alleged transaction only 3-4 months before, the suit was filed, within time. Consequently, he decreed the suit with costs.

6. In appeal, an Additional District Judge, Wazirabad, on reappraisal of evidence, however, took a contrary view and held that Mst. Irshad Begum had voluntarily and of her free-will executed a valid gift deed before the Sub-Registrar in consideration of the services rendered by her uncle, including the arrangement of her marriage because her father had died soon after her birth: Appellate Court also attached great importance to registered deed being 30 years old and enjoying the presumption of correctness by virtue of Article 100 of the Qanun-e-Shahadat Order, 1984. He held that respondent No.1 failed to rebut the presumption of law by convincing and cogent evidence, who also failed to produce any evidence tending to show that she was minor when the gift deed was executed. He took note of the fact that even at the time of execution of gift deed Irshad Begum was a married women, therefore, it could be presumed that she was able to understand about her independent act, therefore, the document could not be cancelled on the plea that she was suffering from disability of minority.

7. Faced with this unfavourable situation, respondent No.1 assailed Appellate Court judgment before the Lahore High Court through a civil revision, which has been accepted on the premises that the gift deed Exh.P.9 incorporated the reasons for execution of gift in favour of Khushi Muhammad, who had brought up respondent No.1 from her childhood, kept her happy all along and also borne expenses of her marriage. It was in lieu of such valuable services rendered by him that the respondent was favourably disposed in transferring the suit-land in his favour. On scrutiny of evidence and re-evaluation thereof, learned Judge in Chambers held that Mst. Irshad Begum being an illiterate and ignorant lady, rule laid down in Jannat Bibi v. Sikandar Ali PLD 1990 SC 642 relating to burden of proof in support of a document, purported to have been executed by a Pardanasheen lady, affecting her right or interest in immovable property would extend to ignorant and illiterate women. He held that Mst. Irshad Begum was admittedly a co-sharer with Khushi Muhammad but it was too high a price, i.e. alleged gift of the land measuring 98 Kanals, 16 Marlas in favour of her uncle in lieu of the services rendered by him was unconscionable in the circumstances of the case. In the opinion of the learned Judge, in view of joint Khata of the parties and the land being undivided, the gift remained incomplete and without the delivery of possession there was no valid gift in the eyes of law. Resultantly, he concurred with the opinion of the trial Court and reversed the Appellate Court judgment. It is as against this judgment that this appeal was filed as of right.

8. We have heard learned counsel for the appellants and respondent No.1 only, as respondents Nos.2 to 10 have not cared to enter appearance despite due service. With the able assistance of the counsel, we have thoroughly gone through the impugned judgment as well as the record.

9. Mr. Ihsanul Haq Chaudhry, learned counsel for the appellants vehemently urged that Mst. Irshad Begum had voluntarily executed the document of gift with a strong motive in lieu of valuable services rendered by Khushi Muhammad and admitted the execution of gift deed by appearing before the sub-Registrar, Wazirabad along with her maternal-uncle Ali Muhammad soon after her marriage when she was sufficiently grown up and a woman of full understanding. Learned counsel urged that the respondent No.1 utterly failed to 'establish that Khushi Muhammad had been sharing the produce of the land with her and that the gift was never acted upon. He referred to the consistent evidence of the appellants to indicate that respondent No.1 was 19 years of age at the time of execution of the deed, inasmuch as, she was 2-1/2 years old at the time of murder of her father in 1937 whereas the transaction of gift was made on 7-9-1954 followed by mutation in Register Haqdaran Zamin vide entry dated 8-1-1955 continuously followed in Jamabandies and mutations in the names of legal heirs of deceased Khushi Muhammad, who died somewhere in 1985. Without raising the issue of limitation, learned counsel pointed out that the filing of the suit after 41 years of the transaction militates against the bona fides of the respondent's case and it clearly tended to reflect an ulterior design on her part and that of her supporters. He vehemently discarded the issue of respondent being minor or viodability of the gift on that account.

10. Conversely, Mr. Gulzarin Kiani, learned counsel for respondent No.1 whole heartedly supported the judgment of the High Court. His submissions were three fold: first; that the respondent was a minor aged about 15/16 years at the time of execution of the gift and as such by virtue of para.127 of Muhammadan Law by D.F. Mulla as well as section 11 of the Contract Act, 1872, execution of gift deed, if at all any, was void and incompetent, which was not capable of even rectification or confirmation, secondly; assuming that she had executed the deed, upon her denial of execution, onus of proof of transaction shifted on the appellants, who had not examined a single marginal witness, scribe or any witness, who identified the executant before the Sub-Registrar and thirdly; that this Court would not validate an invalid and void document in the exercise of its constitutional jurisdiction.

11. Adverting to the first submission of learned counsel for the appellants, it is evident from the record that Mst. Irshad Begum, after about 2-1/2 years of her, birth was rendered orphan by reason of unfortunate and unnatural death of her father by 'way of murder in the year 1937. It is in the evidence that her mother was instrumental and indirectly responsible for the said murder with the natural consequence that she was completely deprived of natural love and affection of her real parents during her childhood. It is not disputed that she was brought up and looked after all along by Khushi Muhammad in his house, who also arranged her marriage on attaining the age of puberty. There is no denial of the fact that Khushi Muhammad had all along borne the expenses of her daily life and even the marriage expenses without any ostensible compensation or reward. In all probability, he must have sacrificed his time, energy and wealth towards upbringing of Mst. Irshad Begum, who was born in early 1935 and would, therefore, be more than 19 years of age at the time of execution of gift deed before the Sub-Registrar. These inferences can be conveniently and lawfully raised from the evidence of appellant Hameeda Begum D.W.3, Allah Ditta D.W.1 and Ghulam Haider D.W.2. They have consistently stated that at the time of death of her father, she was aged about 2-2-1/2 years and that she was aged about 18/19 years of age at the time of her marriage and she gifted away her property after about 4-5 months of her marriage. There is no strong and adequate evidence in rebuttal of these witnesses, except bald suggestions that she was younger at the time of her marriage.

12. Conversely, Muhammad Boota, P.W. and Mst. Irshad Begum P.W.2 claimed that she was aged about 15/16 years at the time of making gift but it does not fit in circumstances and reconcile with the date of death of Ghulam Muhammad as reflected in F.I.R. Exh.D.-II dated 12-6-1937.

13. Even otherwise, there is a presumption of due execution in favour of registered documents and such presumption would be stronger in the case of registered deed being more than 30 years old by virtue of Article 100 of the Qanun-e-Shahadat Order, 1984. Registered deed was not only acted upon by way of mutation in the Register Haqdaran Zamin but also by continuous entries for a period spread over four decades in the Jamabandi Register. Lastly that she was taken by her maternal-uncle to the office of the Registrar to acknowledge the transaction of exchange is neither borne out by the record nor attending facts and circumstances. In fact, on account of inheritance, she was co-owner to the extent of 50 Paisas in the suit-land with Khushi Muhammad who after the execution of the gift deed by her became owner of full share in the property to the exclusion of the respondent No.1. Inordinate delay and the passage of long period of time over forty years, in approaching the Court of law speaks-volumes about the truth and bona fides of the respondent's case and adversely reflects upon her conduct. In order to overcome this strong circumstance, untenable defence has been set up that Khushi Muhammad used to share produce of land with her but there is hardly any evidence supporting this circumstance except her solitary statement. In order to succeed in such instance, the respondent was supposed to adduce evidence of high standard, which is unfortunately lacking and the, facts clearly reflect that the transaction entered into by her was genuine, voluntary and of her own accord. In case Khushi Muhammad wanted to deprive her of valuable land by fraudulent means, he could do it earlier but the fact that the gift deed was executed after the marriage of Mst. Irshad Begum clearly tends to manifest the fact that she was adult and sufficiently independent to deal with her property independently. Analysis of evidence by the trial Court as well as the High Court, in our view, does not appear to be logical and appealing whereas the view taken by the Appellate Court seems to be more natural, consistent and reliable. There may be no cavil with the proposition that in case of transfer of immovable property executant having denied the transaction, onus of proof would shift to the beneficiaries of the instrument, the fact remains that the evidence adduced by the appellants is neither inadequate nor inclusive to rebut and controvert the case set up in the plaint.

14. Much stress was laid by learned counsel for respondent No.1 on the entries relating to the birth of Mst. Irshad Begum indicating her date of birth as 23-6-1938 vide extract purportedly issued by District Health Officer, Gujranwala, Exh.P.10. To say the least, we are hardly impressed by this document, which, though exhibited as P.10, was neither proved nor properly tendered in evidence. In fact this extract was tendered in evidence along with the statement of Advocate for Mst. Irshad Begum and placed on record after marking it as Exh.P.10. We have, nevertheless, minutely examined this document, which bears the signature of same person against column meant for signature of Head Clerk as well as District Health Officer. Even otherwise, appellants in their written statement before the trial Court had taken strong exception to this document. They had averred that the plaintiff had filed her birth entry with the plaint, which was bogus and manoeuvred and procured collusively with the lower staff of the office of District Health Officer and that the appellants reserved their right to proceed against the plaintiff and other culprits. In the face of such serious, emphatic and strong objection raised by the appellants at the earliest stage of the suit, it was imperative and incumbent upon respondent No.1 to affirmatively prove the contents of the entry heavily relied upon by Mr. Gulzarin Kiani. Learned counsel vehemently contended that once a document was admitted in evidence without an objection, its production and genuineness could not be objected to. According to learned counsel, such document once exhibited did not require any proof. He relied upon Galzar Hussain v. Abdur Rehman 1985 SCMR 301 in this behalf. The Ratio of the reported case appears to be that every document tendered in evidence must be proved in the mode prescribed by section 61 of Evidence Act, 1872. Document not so proved would be inadmissible in evidence subject to exception in cases where proof of a document was dispensed with under some special provision. It was held that mode of proof of a document was a question of procedure and was accordingly capable of being waived. Objection as to the manner of proof of a document not taken at time document was sought to be proved in trial Court and document was exhibited and referred to, no such objection could be allowed to be raised in appeal or revision. There may be no cavil with the proposition of law laid down by the larger Bench of this Court it is not possible to hold that the appellant had not objected to the manner of proof of this document. As pointed out earlier, the document was not produced through any witness but placed on record by the learned counsel for Mst. Irshad Begum behind the back of the appellants without notice to them with the consequence that it was taken on record and marked as Exh.P.10. We, therefore, hold that in the presence of a strong and serious objection taken in the pleadings it would be ridiculous to assume that the appellants had waived the mode of proof of such document, which, on the face of it, seems to be highly doubtful and manoeuvred. Be that as it may, since we are not persuaded to admit such document as a reliable piece of evidence, nothing turns out on the entries made therein, which remain unsubstantiated.

15. We now advert to submission of learned counsel for respondent No.1 that Mst. Irshad Begum being minor at the time of execution of gift, the document of gift would be void and incompetent, which even need not be challenged. Since we have disagreed with the findings of fact based on misreading of record and misconstruction of evidence with regard to the minority of Mst. Irshad Begum, the argument loses its efficacy and the transaction of gift cannot be held to be void or incompetent. In our considered view, it was a conscious, deliberate and wilful act to recompense the uncle for the services rendered by him for a long period of time. It was not only accepted as genuine and incorporated in the Revenue Record but also acted upon.

16. An argument was raised that the gift deed was not proved in evidence as none of the marginal witnesses, the persons who identified the executant to Registrar or the scribe was examined at the trial. A complete answer is available in the sworn testimony of Mst. Hameeda Begum D.W.3 and Sultan Ahmad D.W.6 to the effect that Nawab Din, Ali Muhammad and Nasrullah as well as the Sub-Registrar were dead when the suit was taken up for recording evidence. This statement of fact was neither rebutted nor controverted and, by legal implication, it shall be deemed to have been accepted. In this view of the matter, there is no merit in the point raised at the Bar.

17. Lastly, the submission that this Court being a constitutional Court would not validate an invalid and void document completely loses its significance in view of our definite findings that the document of gift was neither void nor incompetently executed by reason of minority of age. In view of our categorical finding as to the genuineness of the gift deed, the principle of law laid down in Janat Bibi v. Sikandar Ali PLD 1990 SC 642 and Abdul Rahim v. Jannatay Bibi 2000 SCMR 346 would not be attracted to the facts of this appeal as respondent No.1 was neither D defrauded not deprived of her right to dispose of her property in an unwarranted manner.

18. For the aforesaid facts, circumstances and reasons, this appeal is allowed. Consequently, judgment of the High Court and that of the trial Court are set aside while the judgment rendered by learned Additional District Judge, Gujranwala is restored. M.H./H-4/SC Appeal allowed.