1994 PLP 467 (MLD)

Basic point for decision in the civil revision was whether Taj Din made a gift of his land measuring 127 Kanals 10 Marlas in village Lakhankey of Tehsil Pasrur in favour of his brother Sultan, and, had executed a valid gift deed on 12-1-1978 and presented it for registration on the same day. Relevant facts for the decision of the civil revision are briefly these:-- Taj Din owned 127 Kanals, 10 Marlas of land, at Mauza Lakhankey of Tehsil Pasrur in district Sialkot. He was issueless. Presumably, he was unmarried. Sultan and Ghulam Muhammad were his real brothers. Ghulam Muhammad had predeceased him. Taj Din had two sisters. They were Mst. Sardar Bibi and Mst. Hussain Bibi. Mst. Hussain Bibi survived Taj Din. She died, on 1-11-1980. She was survived by three sons and four daughters. They were plaintiffs Nos.2 to 8 in the civil suit. Taj Din suffered from ascites. He was admitted for treatment in the Civil Hospital, Pasrur on 11-1-1978. On 12-1-1978, a deed of gift in respect of his land was executed at Pasrur. It was presented to the Sub- Registrar, Pasrur for registration at 3/4-00 p.m. on the same day. Gift-deed was eventually registered, on 24-1-1978. It was marked Exh.P.1 on the file of the trial Court. Soon after, Taj Din died. There was a dispute on date of his death. Plaintiffs' case was that he died on 13-1-1978. Conversely, the defendant described his date of death as 29-1-1978. On 9-6-1981, Mst. Sardar Bibi sister of deceased Taj Din alongwith the sons and daughters of her deceased sister Mst. Hussain Bibi brought a suit for declaration of rights and relief for possession respecting the land in dispute against Sultan son of Ibrahim. In the suit, the gift of the land by Taj Din was challenged under Customary law, in addition to its being the outcome of fraud and misrepresentation. It was asserted that Taj Din did not make a gift of his land to Sultan; he was seriously ill and was incapable of making a gift of his land. The donee of the land contested the suit and filed his written statement. It was averred that the gift was valid and that its formalities were faithfully observed. As far the death of Taj Din, it was averred that he died on 29-1-1978. Initially, the trial Court had dismissed the suit on 27-10-1983. It was observed that Punjab Ordinance XIII of 1983 had abated the suit. On appeal, this decision of the trial Court was reversed, on 20-10-1985, by learned District Judge, Sialkot who remanded the case for its decision afresh on other grounds taken in the plaint for invalidating the gift of the land by Taj Din. Thereupon, necessary issues were settled by the trial Court and evidence from the parties was taken on them. Plaintiffs gave evidence of three P.Ws. and one of them, namely Karamat Ali appeared as P.W.4 to record his own statement. In addition, copy of the gift-deed Exh.P.1, an extract from death register Exh.P.2, an extract from crops inspection register Exh.P.3 and copy of Jamabandi for the year 1969-70 Exh.P.4 were produced in evidence by them. In rebuttal, Riasat Ali son of Sultan appeared as D.W.1 and closed his evidence. It may be observed that the sole defendant in the suit,-namely, Sultan was dead at trial and was represented by his legal-representatives who defended the suit filed against him. Upon review of oral and documentary evidence adduced in the case, the trial Court decreed the suit in favour of the plaintiffs, on 1-11-1987 and gave them their share of the land in it. It was held that valid gift of land by Taj Din in favour of Sultan was not proved. In appeal by the defendants, judgment of the trial Court, was maintained, on 6-5-1990 by learned Additional District Judge, Sialkot and the findings recorded in the judgment of the trial Court were mostly affirmed. Seen from the above, fundamental question requiring examination and decision in the civil revision was about the genuineness of the gift deed Exh.P.1. To put it more tersely, real point requiring focus of attention was whether Taj Din had really executed the gift-deed Exh.P.1 respecting the land in favour of his brother Sultan on 12-1-1978. Clear answer to the question posed above was in the negative. No other conclusion was possible on the existing record. Onus to prove execution of the gift-deed by Taj Din heavily rested on the donee who claimed to be its beneficiary. Plaintiffs had pleaded perpetration of fraud by him in this behalf. Obviously, they had denied execution of the gift deed by Taj Din. Therefore, it was for the donee to prove that he had received a valid gift of land from its owner. The gift-deed was written on a stamp-paper of required value. Stamp-papers were purchased on 12-1-1978. Gift-deed was scribed by Khushi Muhammad, who was a licensed deed-writer. It was thumb-marked by Taj Din. Sher Muhammad Lambardar of village Sarakpur and Ahmad Din of the same village had witnessed the execution of the gift-deed by Taj Din. These very two witnesses had appeared before the Sub-Registrar to identify the parties before him. Neither the stamp-vendor not the deed-writer, nor the marginal witnesses were produced in evidence by the defendants. There was no reason forthcoming on record for withholding their appearance from the Court. Obviously, their absence from the witness-box shall raise an adverse inference against the truth of the defendant's case that if they had appeared, they may have deposed adversely against them. Both the marginal witnesses were from a different village. None from the village Lakhankey had witnessed the execution or registration of the gift-deed. It was a little exceptional circumstance for raising eye-brows. It was an agreed premise that Taj Din was admitted to the hospital on 11-1-1978. There was no sound evidence for his leaving the hospital on the following day for purchase of stamp-papers and writing of a gift-deed in favour of his brother. Record of the hospital was silent on it. Practically, no evidence was given on this point by the defendants. The case of the plaintiffs was that Taj Din died on 13-1-1978. It was supported by an entry in Exh.P.2. Dr. Gul Nawaz as P.W.1 deposed that Taj Din was discharged from the hospital on 20-1-1978. Karamat Ali one of the plaintiffs appearing as P.W.4 deposed that upon inquiry into the actual date of death of Taj Din, it was found that he died on 13-1-1978 but in the records of the hospital Taj Din was shown admitted still 20-1-1978. Riasat Ali D.W. 1 deposed that Taj Din had fully recovered from illness on 20-1-1978. However, he gave no precise date of the death of Taj Din. In the written statement submitted by Sultan, the date of death given was 29-1-1978. There was a sharp dispute between the parties on actual date of death of Taj Din. Either it was 13-1-1978 or 29-1-1978. Extract from death register showed it on 13-1-1978. Record of the hospital showed him to have been discharged on 20-1-1978. Testimony of Riasat Ali D.W.1 synchronized with it. However, for decision of the basic point touching on genuineness and validity of the gift deed, it was unnecessary to find on the precise date of death of Taj Din. Be it 13-1-1978 or 29-1-1978 as asserted in defence statement, it shall not be material to the proof of gift of the land in dispute. Whatever be his date of death, execution of gift-deed by Taj Din and its registration on his behalf was not proved beyond doubt. There were clear impressions on record that a last minute attempt was made by Sultan to lay hands on the land of his brother for depriving his real sisters from inheriting their share in it. But it proved futile and nature successfully foiled this attempt. The result of it was that a living sister and the progeny of the other were entitled to take their Sharie shares in the land covered by Exh.P.1. In my opinion, the lower Courts rightly found that execution on the gift-deed and its registration at the instance of Taj Din was not proved. I would, accordingly, agree with them and uphold their decision. Resultantly, civil revision is dismissed in limine. AA./R-110/L Revision dismissed.