1991 PLP 1742 (MLD)

FAZAL KARIM, J.--This suit was brought by the plaintiff, Rana Muzaffar Ali Khan, appellant herein, to have it declared that the gift deed dated 9-1-1980 registered on 12-1-1980 was the result of fraud and forgery and was, therefore, not binding upon the plaintiff. The suit was dismissed by the judgment of the learned Civil Judge, Lahore, dated 13-9-1986.

2. The suit was instituted on 2-9-1980.

3. The defendants in the suit were Mst. Walayat Begun, wife, Khalid Mahmood, son, and Mst. Shagufta Jabeen Rana, Mst. Shahnaz Akhtar Rana and Mst. Samna Yasmin Rana, daughters of Rana Muzaffar Ali Khan, plaintiff. Muhammad Anwar attesting witness to the gift deed (Exh.D.A,) and Shamas uddin Lambardar, who had purportedly identified the plaintiff before the registering officer on 12-1-1980, were defendants Nos.6 and 7 respectively in the suit.

4. Mst. Walayat Begum, defendant, died during the pendency of the suit and her name was deleted from the list of the defendants.

5. The land in suit measures 525 kanals 4 marlas and is situated in Chak No.39, Tehsil Ferozewala, District Sheikhupura. The suit was originally instituted in the Court of the learned Civil Judge, Ferozewala, but was tried at Lahore by the order of this Court.

6. The plaint of the plaintiffs suit is a very detailed document shorn of unnecessary details, his case is that his wife Mst. Walayat Begum was a woman of bad character and his marriage with her had run into difficulties years before the suit. Due to her influence over her children, they too had turned against the plaintiff. They were, however, pulling on with the plaintiff on account of his landed property though they had tried to kill him a number of times. Sometime before the suit, Khalid Mahmood, defendant, persuaded him to deliver possession of the land to him for cultivation. But when on account of the misdeeds of his wife and children, it became intolerable for him to continue to live with Mst. Walayat Begum, 'he divorced her on 16-7-1980. Yet Mst.Walayat Begum remained living with him in the same house. The defendants entered into a conspiracy and without his consent and by producing some body else, had the gift deed in question registered. For that purpose, they secured the services of the lambardar of another village, Khaki. They represented that the land in suit was worth rupees five lacs only while in point of fact it was worth as much as rupees sixty to seventy lacs. In short, the plaintiff denied the execution of the gift deed and its registration at his instance.

7. The suit was contested by Mst. Walayat Begum, Khalid Mahmood, Mst. Shagufta Jabeen Rana, Mst. Shahnaz Akhtar Rana and Mst. Samina Yasmin Rana (to be referred to as the contesting defendants). They asserted that the plaintiff had the gift deed written and that he had himself executed it. According to them, the plaintiff had lived with them till 19-7-1980. They denied that there was any serious dispute between the plaintiff and Mst. Walayat Begum. According to them on 10-7-1980 disputes arose on account of the marriage of the daughters; the plaintiff wanted Mst. Shagufta Jabeen Rana to be married to his sister's son, Sarfraz Khan, who was already married. The contesting defendants did not agree to this marriage. The plaintiff wanted Mst. Shahnaz Akhtar Rana, defendant, to be married to one Shah Nawaz. To this also, the contesting defendants were not agreeable. It was on account of these differences that the plaintiff left the house with various articles including the gift deed. Later, on 16-7-1980, on being so induced by his relatives, he divorced Mst. Walayat Begum. They pleaded that the gift was complete in all respects. Earlier also, on 25-5-1976, the plaintiff had executed a gift deed but due to the death of his son, Riaz Mahmood, which occurred on 30-8-1976, that gift could not be given effect to. As the original gift deed was in possession of the plaintiff, he should, so asserted the contesting defendants, produce it.

8. The 6th defendant Muhammad Anwar, filed a written statement saying that Khalid Mahmood, defendant, was his friend and that he had obtained his signatures on the deed; according to him, at that time, besides Khalid Mahmood, Mst. Walayat Begum, her brother Humayon was present. He added that the plaintiff was not present at that time. He also denied that he had appeared before the registering officer and identified the plaintiff.

9. The 7th defendant, Shamas-Uddin, said in his written statement that the gift deed was the result of forgery and fraud. According to him, at the time of registration, Khan Mahmood and Muhammad Anwar were present. He knew Muhammad Anwar and Khalid Mahmood, defendants, personally; they had assured him that the plaintiff was making a gift of the land in favour of his wife and children. It was on that assurance that he had identified a person as the donor. In fact, the donor was not known to him.

10. On the parties' pleadings, the following issues were formulated and tried:-- (1) Whether the impugned gift deed dated 7-1-1980 (it should be 12-1-1980) is result of fraud and misrepresentation? OPP. (2) If issue No.1 is proved whether the plaintiff is entitled to mesne profit? If so, to what extent? OPP. (3) Whether the suit is bad for misjoinder of parties? OPD (4) Whether the plaintiff has not come to the Court with clean hands? OPD. (5) Whether the suit has been properly valued? If not, then what is the correct valuation; its effect? OP Parties. (6) Relief.

11. In support of his case, the plaintiff examined himself and called six witnesses, namely, Iftikhar Ahmed Clerk (P.W.1), who had brought the record of the registration office; Muhammad Bashir, Hand-writing Expert (P.W.2), Muhammad Anwar (P.W.3), Surayya Sarfraz, Lady Doctor (P.W.4), Muhammad Munir, a Clerk from the Treasury Office, Sheikhupura (P.W.5) and Haji Muhammad Hayat (P.W.6). On the other hand, the contesting defendants' evidence consisted of the testimony of Rana Khalid Mahmood (D.W.4) and three other witnesses, namely, Qazi Mahmood Ahmed, registration clerk (D.W.1), Shah Muhammad Lambardar (D.W.2) and Rehmat Ali Lambardar (D.W.3).

12. On the crucial issue, namely issue No.1, the learned Civil Judge began his discussion with the observation that "it is undisputed law that a document registered under the law carries a presumption of truth. However, every presumption is rebuttable". In his view, the gift deed "apparently appeared to have been properly executed and registered after observing all the due formalities. The onus to prove it that the impugned gift deed is result of fraud or misrepresentation was put on the plaintiff'. Dealing with the evidence of the plaintiffs witnesses, the learned Civil Judge observed that the evidence of the Handwriting Expert (P.W.2) was not helpful to the plaintiffs case, for the report was obtained in connection with a criminal case; in any case, "no record whatsoever regarding specimen signatures, proved signatures or disputed signatures, have been brought on record" and at best, the evidence was opinion evidence. Regarding the evidence of Muhammad Anwar (P.W.3), defendant No.6 the learned Civil Judge observed that his statement was "full of doubts". He had "half-heartedly attempted to favour the plaintiff owing to a compromise reached of between them according to which the witness was to be got acquitted by the plaintiff in criminal case registered by him against the witness". The learned Civil Judge was also not impressed by the evidence of Mst. Surayya Sarfraz (P.W.4). Qazi Muhammad Hayat (P.W.6) was, so observed the learned Civil Judge, examined to show that the plaintiff "had not good relations with his wife and children".

13. The learned Civil Judge thus concluded that the plaintiff had failed to "successfully rebut the registration/execution of impugned gift deed Exh.P.2".

14. As to the defendant's evidence, the learned Civil Judge was impressed by the evidence of the registration clerk. In his view, the statement of Shah Muhammad (D.W.2) remained "unimpeached during cross-examination". Rehmat Ali Lambardar (D.W.3) claimed to be "pag badal bhai" of the plaintiff. He stated that the plaintiff wanted him to appear for him as his witness but he declined "as he could not depose against facts". He too was "subjected to a lengthy cross-examination but nothing derogatory to the case of the defendants has come out of his mouth".

15. In short, the finding returned by the learned Civil Judge was that the plaintiff "has failed to lead a confidence inspiring evidence ..Muhammad Anwar has made a statement which is full of doubts and it appears that he has been won over by the plaintiff as a result of a compromise in criminal case wherein the plaintiff withdrew his application for rejection of bail of Muhammad Anwar." In his view, "the witnesses adduced by the defendants have made a solid, unimpeached and unshaken evidence in this case".

16. The first contention raised by the learned counsel for the appellant was that the gift deed in question was ineffective in law. This contention was based on the assumption that section 123 of the Transfer of Property Act was applicable at the date of the gift and as by that section "for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested at least by two witnesses", but the deed in question was attested by only one witness, Muhammad Anwar, no transfer by way of gift was effected. To support his contention that section 123 applied, learned counsel relied upon Notification No.15246-74/2237-LR-V, dated 17-12-1974 published in the Gazette of Pakistan (Extraordinary) dated 30-12-1975 issued by the Government of the Punjab in exercise of powers conferred by section 1 of the Transfer of Property Act, 1882, extending the provisions of sections 54, 59,107, 118 and 123 of the Transfer of Property Act, to the whole of the Province of the. Punjab. Learned counsel for the contesting defendants also proceeded on the same assumption and contended that the gift deed conformed to the requirements of section

123. That assumption turned out to be erroneous. After we had heard the arguments, luckily, we learnt that by another Notification No.30078/1511-LRI dated 27-11-1978 published in the Punjab Gazette (Extraordinary) dated the 6th December, 1978, the Notification No.15246 74/2237-LRV, dated the 17th December, 1974, was modified and the application of the provisions of sections 54, 59, 109, 118 and 123 of the Transfer of Property Act was restricted to the Municipalities and notified areas as declared and notified under section 241 of the Punjab Municipal Act, 1961. In consequence of this Notification dated 22-11-1978 section 123, had ceased to apply with effect from that date to areas in the Punjab other than the Municipalities and the notified areas. Thus, much ingenuity was, if we may say so with respect, wasted on the effect of failure to comply with the provisions of section 123 upon the validity of the gift. Happily, however, we were saved from the embarrassment of deciding this appeal on altogether a wrong premises.

17. We now come to the question whether the execution of the gift deed in question was proved. Learned counsel for the appellant argued that there was no evidence whatever in proof of the execution of the gift deed by the appellant. Learned counsel for the contesting defendants on the other hand was of the view that the evidence of Muhammad Anwar. P.W. and the evidence of the defendants' witnesses sufficiently established that the appellant had made a gift of the land in favour of the contesting defendants; that he had the deed written and that it was he who had executed the deed and then had it registered.

18. The original gift deed was not produced. Only an attested copy of the gift deed (Exh.P.2) was produced. It shows that on the date of its purported execution viz. 9-1-1980, it was attested by only one witness and that was Muhammad Anwar, defendant. The gift deed was produced before the registering officer on the same day but was registered on 12-1-1980. On that day, Rana Muzaffar Ali Khan, appellant, purportedly admitted its execution and though the deed was a gift deed and the gift was without consideration, yet Rana Muzaffar Ali Khan was described as a vendor and was recorded to have received the entire sale consideration from the "vendees". Before the registering officer, Muhammad Anwar and Shamas-Uddin Lambardar had signed the gift deed as identifying witnesses.

19. The primary evidence of the deed of gift was the deed itself (section 62 of the Evidence Act, 1872), but as observed above, the original gift deed was not produced at the trial. Secondary evidence i.e. a certified copy of the deed was produced. By section 64 of the Evidence Act, 1872, documents must be proved by primary evidence except in the cases-mentioned in section 65 thereof, namely, (a) when the original "is shown or appears to be in the possession or power of the person against whom the document is sought to be proved and when after the notice mentioned in section 66, such person does not produce it"; .and (c) when the original has been destroyed or lost. Ordinarily, the original deed should have been in the possession of the contesting defendants. It was they who claimed to derive title from it. It was said in the written statement that the plaintiff had lived with them till 10-7-1980 and that when he left the house on account of differences with them, he took away his things including the deed of gift. Khalid Mahmood, defendant, did not give this explanation in the witness box. What he said was that all that was required for the execution and registration of the deed, was done by the plaintiff himself and that he it was who had obtained the deed from the registration office. But the deed had, according to the contesting defendants' written statement, remained in the house in which they all lived together. The circumstances of the case tend strongly to show that the plaintiff and the contesting defendants were not a happy family and that their relations were not as cordial as the defendants would have us believe. Mst. Walayat Begum was the mother of as many as six children of the plaintiff and had been his wife for more than 20 years and the fact that he had divorced her on 16-7-1980, unmistakably shows that very serious differences had arisen between them, so serious indeed as to compel the plaintiff to divorce Mst. Walayat Begum. In truth, the very fact that need was felt to obtain a gift in favour of the very persons who had ultimately to succeed to the estate of the plaintiff was itself strong proof of the unhappy, or if we may say, uneasy relationship between the parties. It is, therefore, hard to believe that the contesting defendants had allowed the original deed to remain with the plaintiff or had not tried to secure it even when the differences had taken so serious a turn as to result in the divorce of Mst. Walayat Begum. In our opinion, therefore, it makes demand upon one's sense of credulity to believe that the plaintiff had taken away or had been allowed to take away the original deed of gift with him. The contesting defendants would not have allowed him to do so when he was leaving them for good and when the breach in their relations was to their knowledge beyond repairs. Here, it is pertinent to note that in connection with his bail application in the criminal case, learned counsel for Khalid Mahmood had offered to produce the original gift deed before the learned Additional Sessions Judge and one of the grounds which influenced the learned Additional Sessions Judge in rejecting his bail application was that he was not cooperating with the Investigating Officer "and also failed to put forward any justification for the non-production of the gift decd which was in his possession". In this connection, reference may be made to the order of the learned Additional Sessions Judge dated 14-12-1980 (Ex.PD). We do not, therefore, think that the contesting defendants had made out a case for secondary evidence. The inevitable inference from the fact that the contesting defendants had withheld the original gift deed must be that if the original gift deed had been produced, it would have exposed the contesting defendants' claim that the deed was a genuine deed and had been executed by the plaintiff.

20. We pause here to note that according to the Handwriting Expert, Muhammad Bashir (PW.2), the disputed signatures on the gift deed were compared by him with the specimen signatures of the plaintiff obtained in the criminal case and those of the plaintiff. This would have been an important piece of evidence. Unfortunately, however, no evidence was led to the effect that the specimen signatures were those of the plaintiff, and this must render Ex.P.2 of little value.

21. There was no proof of the gift deed having been executed by the plaintiff on 9-1-1980. The scribe of the deed was not called as a witness. Muhammad Anwar, the only attesting witness, was called as his witness by the plaintiff but he did not say that the plaintiff had signed the gift deed in his presence. What he said was: His evidence, therefore, was not that he had seen the plaintiff signing the deed or affixing his mark to the deed or that he had received from the plaintiff a personal acknowledgement of his signatures.

22. Muhammad Anwar P.W's evidence was not relied upon by the learned trial Judge and for good reasons. It is in evidence that shortly after the institution of the suit that is on 9-1-1980, a case under sections 471, 468 etc. of the P.P.C. was registered on the complaint of the plaintiff against the defendants including Muhammad Anwar and Shamas-Uddin. Muhammad Anwar P.W. admitted in his cross-examination that he was on bail in the criminal case; that the plaintiff had applied for the cancellation of his bail in the Sessions Court and that the plaintiff had withdrawn that application. The least that can be said about him is that he had been changing sides. He had first lent his name as a witness to the deed and had then probably to gain favour with the plaintiff, filed a consenting written statement and appeared as the plaintiff's witness.

23. Khalid Mahmood, defendant, the only other person who had signed the deed on 9-1-1980 as one of the donees made some significant admissions in his cross- examination. He did not know who had scribed the deed. According to him, nobody had signed the deed before it was put before the registering officer which means that he had not signed the deed when it was scribed and allegedly executed by the plaintiff. He did not even know how many days before registration, the deed was written.

24. If the learned Civil Judge meant by saying that "a document registered under the law carries a presumption of truth" that the deed was presumed also to have been executed by the plaintiff, he was obviously wrong, for section 67 of the Evidence Act, 1872 (Article 78 of Qanun-e-Shahadat, 1984) requires that "if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting". In making that observation, the learned Civil Judge had probably in mind the provisions of sections 58 and 60 of the Registration Act, 1908. Section 58 provides that on, every document admitted to registration, there shall be endorsed from time to time the following particulars, namely, (a) the signature and admission of every person admitting the execution of the document; (b) the signature and admission of every person examined in reference to such document under any of the provisions of this Act; and (c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. Section 60 enacts that "after such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word "registered", together with the number and page of the book in which the documents have been copied", and "such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purposes of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned". Thus, the certificate under section 60 is admissible for the purposes of proving that the facts, including the signature and admission of the person executing the document, mentioned in the endorsements referred to in sections 58 and '59 have occurred in the manner therein mentioned. But it is plain that such certificate will be evidence of the admission of the document only if the identity of the person .who purportedly made the admission is, established.

25. It has been said that in civil matters onus of proof is not a line in the stone. The evidence of the plaintiff coupled with that of Muhammad Anwar (PW.3), whatever the worth of the latter's evidence, and the circumstances of the case referred to above, had in our view the effect of shifting the onus of proof as to the execution of the deed, on to the contesting defendants. Indeed, they were entitled to prove it by collateral evidence; they were also entitled to rely upon the endorsement of the registering officer containing the admission of the execution of the deed by the plaintiff. For that purpose, they called Qazi Mahmood Ahmad, Shah Muhammad Lambardar and Rehmat Ali Lambardar. Qazi Mahmood Ahmad had acted as the registration clerk when the gift deed was executed. He claimed that it was the plaintiff who appeared before him and signed the deed when the deed was registered. He went so far to support the contesting defendants as to say that the plaintiff had visited his office about a week after the registration to obtain the deed. That shows the length to which he was willing to go to oblige the contesting defendants. Shah Muhammad and Rehmat Ali were Lambardars of different villages. They were not witnesses to the deed and had not signed it in any capacity. The Lambardar of the village, to which the plaintiff belonged, was Ghulam Rasul. He figured nowhere. Shah Muhammad and Rehmat Ali D.Ws stated that they were present before the registering officer when the deed wag, presented for registration; they also claimed that the plaintiff had admitted the execution of the gift deed before the registering officer. According to Shah Muhammad D.W., he had visited the registration office in connection with the registration of the deed of one Aslam Butt, but to corroborate his evidence, copy of the deed of Aslam Butt was not produced. Rehmat Ali Lambardar D.W. had been cited as a plaintiffs witness and much was tried to be made of that fact. He said that the plaintiff wanted him to give his evidence in his fav6ur but he declined to do so. His claim was that he had been especially asked by the plaintiff to be present for the purpose of the gift deed. It is not known for what purpose the plaintiff wanted to examine him as his witness but if he had travelled for the purpose in question, he would have signed the deed in some capacity. We are, therefore, not inclined to accept the evidence of these witnesses that it was the plaintiff who had appeared before the registering officer at the time when the deed was registered or that it was the plaintiff who had admitted the execution of the gift deed before the registering officer.

26. For these reasons, we would reverse the finding of the learned Civil Judge on issue No.1 and hold that the execution of the gift deed by the plaintiff was not proved. We would, therefore, accept the appeal, set aside the judgment and decree of the` learned Civil Judge and decree the plaintiff's suit. As the contesting defendants are the son and daughters of the plaintiff, the parties are left to bear their own costs. A.A./M-2916/L Appeal accepted.