2016 PLP 144 (CLCN)

ABDUL LATIF KHAN, J.

My this single Judgment will dispose off the following regular first appeals bearing No.02-D of 2012, 13-D of 2012, 48-D of 2012, 49-D of 2012 and 50-D of 2012 filed by Maseehuddin. All the above mentioned appeals filed by appellants against consolidated judgment of the learned trial court.

2. Short facts leading to the instant regular first appeals are that Iftikharuddin and other filed four suits for declaration, etc, the details of which are given in the head notes of the each plaints. The defendants appeared before the learned trial court and filed their written statements. The learned trial court after framing issues from the divergent pleadings of the parties, recorded evidence of the parties, hearing arguments of learned counsel for the parties, decreed all the suits of the plaintiffs through a consolidated judgments and decrees on 21.12.2011. The present appellants aggrieved from the judgments and decrees of the learned trial court filed the instant regular first appeals.

3. Learned counsel for the appellants contended that property in dispute owned by Mst. Jan Bibi alias Begum Sahiba, widow of Khan Sahib Ali Safdar Khan, who vide registered deed No.3 attested on 16.3.2001 attorned, Allah Bakhsh alias Channu, who in term transferred the property in favour of appellant No.1, son by dint of different mutations and the plaintiffs/respondents challenged the power of attorney through instant suit, which was wrongly decreed by the trial court through impugned judgment. It was further argued that subsequent suits also filed by the plaintiffs/respondents challenging subsequent mutations and even those not attested on the basis of power of attorney rather she herself got the mutations attested in favour of her son, appellant, in lieu of services rendered by him to his mother. He added that all these suits were decided through one consolidated judgment impugned herein without proper evaluation of evidence. He contended that gift mutations attested in favour of appellant No.1 on behalf of his mother were never challenged by her rather the suit in hand filed by his brothers/plaintiffs, who have no locus standi to do so, but the trial court failed to appreciate this legal aspect of the case. He added that plaintiffs have failed to substantiate the averments made in plaint. Solitary statement of PW-5, Iftikharuddin, plaintiff No.1 recorded of his own and not as attorney of other plaintiffs and other plaintiffs failed to enter into witness box in support of their case and to their extent suits were liable to be dismissed, at least. He contended that donor/mother had not questioned the transaction in her life time. The mother was arrayed as defendant No.6 by the plaintiffs/respondents in their suits, who attorned appellant through special power of attorney to defend the suit. He argued that the solitary statement of one of the plaintiffs recorded in departure to the pleadings. He argued that plaintiffs have claimed that their was insane, aged and helpless lady, however, no issue to this extent has been framed in the trial court. He contended that the ingredients of gift are complete i.e. offer, acceptance and delivery of possession. Admittedly appellant No.1 is in possession of the property as plaintiffs have specifically admitted it in unequivocal manner that after transfer deed, possession was handed over to appellant No.1, but all these points escaped notice of trial court at the time of decree in favour of respondents. He contended that all the brothers and sister were given property through gift by the mother as well as father. The appellant No.1 having rendering services to his mother was given disputed property who left his job and opted to stay with mother in the village whereas all other including plaintiffs remained enjoying their jobs both inside and outside the country and have now illegally challenged the transaction on the basis of malice. He contended that in three revenue estates, Mst. Begum Sahiba, mutated land in favour of appellant No.1 through different mutations herself which are not challenged so far. He argued that contrary to plaintiffs, appellant No.1 has produced 26 witnesses in support of his pleadings and successfully proved the genuineness of transaction in his favour but strange enough that trial court failed to appreciate the evidence in true perspective. All the witnesses, except one, fully corroborate the version of appellant No.1 /defendant, who was won over, declared hostile. His statement could not damage the stance taken by the appellant No.

1. He contended that plaintiff No.3 Mst. Mahi Noa, sister of plaintiffs Nos.1 and 2 and appellant, had attorned appellant No.1 with power of attorney, which is still intact and had transferred property in the name of two sons of appellants and plaintiffs Nos.1 and 2, which shows her confidence in appellant No.1 and on her behalf suits have been wrongly filed, as she never come to the court, nor deposed in favour of plaint herself or through attorney. It was added that even plaintiffs have attorned the appellant to conduct the case of partition on their behalf which too amounts to good character certificate on their behalf and negates their allegations and accusation made against the appellant, in their plaints. He referred to C.D and argued that donor mother has herself admitted the transaction as valid. He contended that suit filed in life time of mother, which was not maintainable as she never questioned the transaction. It was argued that issues, are not properly framed and burden of the same was also placed improperly. It was added with great vehemence that initial burden lies upon plaintiffs to prove the case. Moreover, fraud alleged but without giving its particulars and no evidence to this effect produced but strangely trial court ignored all these vital issues and decreed the suits arbitrarily and against the norms of justice, law besides and as such, proclaims its own arbitrariness.

4. As against that, the learned counsel for the respondents contended that ingredients/grounds of the C.D are missing in the instant case. Apart from this fact the operator was appellant No.1, which is not reliable. He argued that Mst. Begum Sahiba born in the year 1920 and was aged about 81 years, in the year 2008 and was subjected to undue influence and coercion for the transaction. He contended that plaintiffs have not termed her as insane. He added that suits have been filed by the respondents at the instance of mother who was arrayed as proforma defendant No.6. in the suits. He added that deed in question does not fall within the definition of power of attorney, will or gift. She was second wife of Khan Sahib Ali Safdar Khan and had only one daughter and word daughters has been used, which casts doubt in the matter. He contended that Allah Bakhsh was the servant/Kardar of Khan Sahib, who later on became employee of appellant No.1 and was made attorney with mala fide intention. He contended that Asadullah came for recording evidence on zamima 'Bey' from Jail who has refused to accept the signature on deed and this shows that deed was fictitious and fabricated. He vehemently supported the impugned judgment, however, stated that cross-objection was filed for recovery of mesne profits but requested that he is no more interested in it and be dismissed as not stressed.

5. I have heard the arguments of learned counsel of the parties and perused the record with their valuable assistance.

6. The plaintiffs instituted a suit on 09.9.2006 bearing No.163/1 of 2006 for cancellation of general power of attorney registered deed No.3 attested on 23.4.2001 executed on behalf of Mst. Jan Bibi alias Begum Sahiba, who was also arrayed as defendant No.6 in this suit, in favour of Allah Bakhsh. They also prayed for revocation of gifts made by defendant No.6 in favour of defendant No.1 through mutations. They filed another suit on same dated i.e. 09.9.2006 bearing No.164/1 of 2006 for revocation of gift made by said Mst. Jan Bibi in favour of his son, defendant No.1 and cancellation of gift mutations, mesne profits through rendition of accounts also sought for four years. They instituted another suit bearing No.166/1 of 2006 on same date i.e. 09.9.2006 for revocation of gift and cancellation of mutation, got attested on the basis of general power of attorney on behalf of Mst. Jan Bibi in favour of Allah Bakhsh. Another suit bearing No.314/1 of 2009 was filed on 31 7.2009 for revocation of gift and cancellation of mutations, attested on the basis of general power of attorney on behalf of Mst. Jan Bibi, in favour of her servant/Kardar Allah Bakhsh.

7. The plaintiffs and defendant No.1 are sons of Mst. Jan Bibi and plaintiff No.3 is her daughter. Defendants Nos.3 to 5 are revenue/government officials and defendant No.6 is the principal/donor Mst. Jan Bibi. All the suits were consolidated and evidence recorded in suit No.164/1 and decided through one consolidated judgment but four R.F.As have been filed against decree in each suit, which are disposed of with this single judgment.

8. All the appeals were disposed of by learned Civil Judge-V, D.I. Khan through consolidated judgment dated 21.12.2011 out of which Appeal No.02-D of 2012 and cross objections No.13-D of 2012 of suit No.163/1 of 2006 were filed before this court in respect of mesne profits whereas appeal against the other suits were filed before learned Additional District Judge-IV, D.I. Khan, C.M No.29-D of 2013 was filed by the learned counsel for petitioner for requisitioning the record of that appeals and disposal by this court along with this appeal as the appeals come out from one and the same consolidated judgment. The C.M not contested by the respondents and raised no objection and as such alleged on 08.4.2013 and files of three appeals R.C.A. No.47/xiii of 2012, R.C.A. No.49/xiii of 2012 and R.C.A. No.50/xiii of 2012 were requisitioned and given numbers as R.F.A No.48-D of 2012, R.F.A No.49-D of 2012 and R.F.A No.50-D of 2012 and were heard together by this court.

9. The plaintiffs have alleged that their mother was insane, under the influence of their brother, defendant No.1 and general power of attorney Ex:DW1/4 got executed from her under coercion and undue influence and sought its cancellation and revocation of all the mutations attested on the basis of said general power of attorney. They made the principal/donor, their mother as party to suit as proforma defendant No.6, who attorned her son defendant No.1 through special power of attorney Ex:PW1/6, to contest the suit but died during pendency of suit, which shows that she ratify the previous transaction of gift on her behalf in favour of defendant No.1/appellant. The important question for consideration would be that she never challenged the general power of attorney and gift mutations in her life time, which shows that all these were executed and attested with her freewill and consent. Had it been the case that she was under pressure, undue influence and coercion in executing and attestation of mutations, she could concede the claim of plaintiffs when arrayed as proforma defendant or should have files suits herself she died on 29.11.2006, during pendency of suits but neither instituted her own suits to question the validity of impugned transaction nor complained of coercion, undue influence and pressure on behalf of defendant No.1/appellant, as alleged by plaintiffs, nor admitted the suits of plaintiffs. It is prerogative of the donor to revoke the gift on the basis of any ground in peculiar circumstances of the case, but in her life time, sons challenging the gift did not claim through donor, but against her. In such eventuality sons have no locus standi to file the suit against donor and others. Reliance is placed on Ahamd Sher's case (2004 SCMR 1624) wherein their lordship observed that:- "In the instant case plaintiffs/respondents (sons of donor) challenged the gift during life time of the donor, their father, they were not claiming through the donor but against him. Following the aforementioned principle the respondent had no locus standi to file the suit against donor (their father) during his life time"

10. So far as gift mutations are concerned, some of these were attested through attorney on the strength of impugned general power of attorney but other were got attested by the donor herself. Offer and acceptance are there and possession transferred, which is admitted. It is prerogative of owner to enjoy the property or dispose of as per need and requirement to any body he/she liked. The donor would not be bound to explain reasons as to why gift made as no provision of any enactment requires so. The plaintiffs have filed three suits on one and same day against the same parties and same subject matter, which are not permissible under the law. All these cases hinge upon cancellation of general power of attorney and revocation of gifts. Subsequently fourth suit, too relating to same issue between same parties filed unnecessarily as subsequent mutation if any could be challenged and added to previously instituted suit through amendment in the plaint to that effect, relinquished the claim in previous suit, the same is case in subsequent suit.

11. There was option with plaintiffs to request the court under Order 18, rule 16, C.P.C. to examine her at pre-trial stage keeping in view her age and other circumstances as alleged in plaint with special reference to insanity, weakness and other mental and body condition but no serious effort made to this effect which shows that she neither suffered from insanity nor remained under undue influence or pressure, nor ready to accept the claim of plaintiffs and it is due to this reason that she did not file any suit.

12. The plaintiffs have levelled serious allegation of insanity, undue influence coercion at the hands of appellant as she was residing with appellant/defendant No.1 in the village but no evidence adduced to this effect. Solitary statement of plaintiff No.2 was recorded as PW-5 who has reiterated the same story averred in the plaint but without the aid of any proof. None of the allegation proved nor evidence of independent nature brought on file in support of their contentions rather plaintiffs Nos.1 and 3, did not bother to come to the witness box in support of their pleading in person or through any agent. The plaintiffs have alleged the fraud in execution of general power of attorney wasiqa No.3 dated 23.4.2001 and subsequent mutations attested on the basis of general power of attorney and attested independently. It was the bounden duty of the plaintiffs to give particulars of fraud in the plaint and to prove the same with tangible evidence. The undue influence, mis representation, breach of trust and fraud must be narrated with particulars as provided under Order VI, rule 4, C.P.C. which his reproduced as below:- "Particular to be given where necessary.

In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are examplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."

13. Under Article 118 of Qanun-e-Shahadat Order (10) 1984, burden of proof was on the plaintiffs to produce cogent evidence in support of allegations made in the plaint and would not cast any responsibility on the defendant to negatively disprove the same. When fraud is alleged and no evidence to substantiate the plea has been produced, the same could in no eventuality be held as case of fraud and raising of vague, ambiguous allegations would not be sufficient, rather material facts be shown, how alleged fraud committed and how document was fake and fraudulent, must be narrated. Mere allegations could not be considered as gospel truth unless proved through unimpeachable and impartial evidence. The facts stated and clearly spell out contents of fraud, undue influence and coercion. General averments/allegations regarding fraud are not sufficient and particular of the same must be given and proved through cogent evidence. The plaintiffs have not relieved of the obligation of giving particular as to how and when fraud committed and shall be substantially proved. In the instant case the plaintiffs have gone a step ahead by alleging insanity of their mother but strange enough even a single word has not been uttered in the solitary statement made by plaintiff No.2, as PW-5. Neither medical evidence to this effect has been produced nor prayer made to the court for examining of the lady/defendant No.6 for this particular purpose. Moreover, heading of the plaint itself negates the version of the plaintiffs to the extent of insanity of their mother, as she was arrayed as proforma defendant No.6 without guardian as provided under Order XXXII, rule 3, of the C.P.C., which speaks about appointment of guardian for the suit to be appointed by the court for insane defendant. No application to this effect has been moved and if they alleged that their mother was insane it was mandatory to appoint proper person as guardian to the suit for such insane defendant. The learned counsel for the respondents/defendants when confronted with this situation, he flatly refused that the plaintiffs have not mentioned about the insanity of their mother in the pleadings but the explanation is not correct for the reason that Para No.2 of the plaint in suit No.314/1 reveals that the allegation of insanity was levelled against Mst. Jan Bibi alias Begum Sahib a/mother of the plaintiffs and as such on this score the suit of the plaintiffs was not proper in its format.

14. Para No.2 of the plaint in same suit along with other suits reveals that the plaintiffs have admitted in their pleadings that general power of attorney wasiqa No.3 attested on 23.4.2001, which is the bone of contention between the parties in all the suits was admitted to have been executed albeit for other purposes i.e. look after all the lands/property. On one hand, the plaintiffs have filed four suits for cancellation of this deed and revocation of gift mutations attested on the basis of this deed while the pleadings of the plaintiffs speak otherwise to the effect that though the general power of attorney was executed only to look after the property and not meant for transfer of property. To ascertain the real position, perusal of the deed was necessary which reveals that it is general power of attorney wherein the principal/mother/defendant No.6 has categorically attorned the agent/her personal servant namely Allah Bakhsh alias Channu for transfer of her property in favour of her son/defendant No.1, Maseehuddin son of Khan Sahib Ali Safdar Khan. She has also mentioned this fact in general power of attorney that Maseehuddin her son is looking after her and in lieu of his services she wish to gift the property in his name but is unable to get the instrument attested herself due to being pardha nasheen and wish to do needful through attorney, her personal servant/ agent for transfer of property both agriculture/residential in the name of defendant No.

1. This shows that the plea of the plaintiffs that deed was executed only for look after of the property is totally misconceived and in fact the same was executed for the transfer of property by way of gift and has been validly attested in accordance with law.

15. The defendants have produced as many as 26 witnesses which includes marginal witnesses of the mutations, deeds partition of the property and other independent mutations, to prove that deed was properly executed and mutations were attested validly. As the plaintiffs have admitted the execution of the deed wasiqa No.3 dated 23.4.2001 Ex:PW1/4, albeit for different purpose i.e. for, look after of the property which is not correct as held above but one thing is established that they accept the execution of document. There was no need of producing all these witnesses as the execution of deed was admitted, even then defendants have produced huge number of witnesses, who deposed in favour of the stance taken by the defendant, have produced document when necessary except DW Asadullah who was only witness to the deed before petition writer has come to depose before court from Jail on zamima "bey" as he is behind the bars in a murder case. The witness due to relation with both the parties have avoided to depose the truth as he was declared as hostile and cross-examined by defendant but his refusal to put his signature before petition writer on the deed would not make the attestation of the deed invalid for the reason that he was not witnessed before the Sub-Registrar at the time of attestation and in peculiar circumstances of the case when the execution of deed was admitted by the plaintiffs then his deposition to this extent would be of no significance to the issue as oral assertion and that too without support by anyone, in rebuttal of documentary evidence in shape registered deed would not prevail special, when presumption of correctness attached to the document. Even otherwise admission, if any, made against the fact would not be binding upon the party.

16. For the foregoing reason, the Appeals Nos.02-D of 2012, 48-D of 2012, No.49-D of 2012 and No.50-D of 2012 are accepted, the impugned consolidated judgment and decree passed by the learned trial court is set aside and the suits filed by respondents-plaintiffs are hereby dismissed with no order as to costs.

17. As no good ground taken in cross-objection No.13-D of. 2012 and learned counsel for the respondents states that respondents are no more interested in it, therefore, dismissed as not stressed. ZC/239/P Appeal allowed.