1984 PLP 1069 (MLD)

(3) Whether the suit is bad for misjoinder of parties and causes of actions? (4) Whether Mst. Karima Bibi had made valid gift in favour of plaintiff or defendants Nos. 1 and 2? (5) To what relief the plaintiffs are entitled? (6) What should the decree be?"

6. In support of the above issues the respondents/plaintiffs examined following witnesses Mst. Fatima, paternal-grand daughter of Mst. Karima Bibi (Exh. 5), Ghulam Hussain maternal grand-son of Mst. Karima Bibi (Exh.8) and Noor Ahmed (Exh. 13). In rebuttal the appellants/defendants examined Muhammad Yousuf (Exh.15) and Alaf Din (Exh.16). It may be stated that after making oral statement before the City Survey Authorities on 26-8-1965 Mst. Karima Bibi died in March, 1966 i.e. after about 6 months of the subsequent gift. The suit was filed by the respondents/ plaintiffs on 24-5-1966 i.e. after about 2 months of the death of Mst. Karima Bibi.

7. The trial Court held that the gift which was executed by registered deed by Mst. Karima Bibi was prior in time having been executed on 30th July, 1965 and that the respondents were also put in possession of the property constructively when notice was given by Mst. Karima Bibi to the tenants to attorny to them. Hence the subsequent oral gift made by statement of Mst. Karima Bibi before the City Survey Authorities was null and void and illegal. On these findings the suit of respondents Nos. 1, 2 and 3 was decreed. The appeal filed by the appellants was also dismissed by VIth Additional District Judge, Karachi as stated above, who concurred with the findings of the trial Court.

8. Mr. Mushtaq Memon, learned counsel for the appellants has argued that Mst. Karima Bibi was an old 'Pardahnasheen' lady. Hence the burden was upon the respondents/ plaintiffs to prove that the registered gift-deed was executed by Mst. Karima Bibi voluntarily, without undue influence or coercion. In support of this plea he had referred to section 16 of the Contract Act.

9. There is no dispute as to the proposition that the custom of Parda is presumed to exist among the ladies of Sind unless the contrary is pleaded and proved. It has not been contested that Mst. Karima Bibi was a 'Pardahnasheen' lady and that her age was about 70 to 90 years at the time of the disputed gift transactions. She has affixed her thumb-impression on the registered gift-deed as well as on her statement which she had given before the Assistant City Surveyor. This fact proves that she was illiterate as well. In view of these facts the burden lay heavily on respondents/ plaintiffs to prove that the registered gift-deed, dated 30th July, 1965 was executed by Mst. Karima Bibi in their favour voluntarily and without any undue influence. The question that in such cases the burden of proof is upon the person who wants to take benefit of the document in question, is now well -established. The principle which applies to 'Pardahnasheen' ladies equally applies to illiterate and ignorant persons. In support of this proposition Mr. Mushtaq Memon has relied on the following decisions:- (i) A I R 1925 P C 204; (ii) A I R 1931 P C 203; (iii) A I R 1940 P C 134; (iv) P L D 1968 Dacca 531; (v) P L D 1969 Kar. 324; (vi) P L D 1963 Kar. 825; (vii) 20 D L R 192; and (viii) A I R 1955 Cal. 17 .

10. Mr. Mushtaq Memon has further argued that there is no endorsement on the registered gift-deed, which is in english, to the effect that the contents were read over to Mst. Karima Bibi in the language which she understood and that she had accepted the contents. He has further argued that although on 30th July, 1965 when the gift-deed was presented for registration, Mst. Karima Bibi is shown to be present before the Sub-Registrar. But on 28-8-1965, when the deed was actually registered, it is not proved that this was done in, presence of Mst. Karima Bibi. It is, therefore, argued that the clear presumption from the manner, in which the deed was registered, shall be that fraud was practised upon the lady.

11. Mr. K.B. Bhutto on the other hand has argued that Mst. Karima Bibi had appeared before the Sub-Registrar on 30th July, 1965 and admitted the contents of the deed in presence of witnesses Haji Yar Muhammad who had identified the lady. Haji Yar Muhammad was identified by Mr. M.I. Siddiqui, Advocate. He has further argued that once the gift-deed is registered, it takes effect not from the date of registration but from the date of the presentation, which in this case was 30th July, 1965. In support of this plea he has referred to sections 47 and 75(6) of the Registration Act and also relied on a decision of the Supreme Court reported as P L D 1964 S C

236. There is no doubt as to the proposition that if the gift-deed is proved to be duly executed by Mst. Karima Bibi, then by virtue of section 47 read with section 75(6) of the Registration Act, the date of presentation i.e. 30th July, 1965 shall be deemed to be the date on which the gift-deed became effective notwithstanding the fact that it was registered on 28-8-1965. The Registration Act does not require the executant to be present on the date of presentation of the document before the Sub-Registrar and admits its execution, (sic) then her presence on the second occasion i.e. the date of actual registration shall not be necessary. Section 47 of the Registration Act lays down that a registered document shall operative from the 'time from which it would have commenced to operate, if no registration thereof had been required or made and not from the date of its registration.

12. Mr. K.B. Bhutto has further argued that the plea of fraud set up by the appellants in their written statement cannot be entertained because no particulars of fraud, as required by section 102 of Evidence Act, have been mentioned in the written statement. In the absence of such particulars the plea of fraud should be rejected at the very outset. Reliance is also placed in support of this plea on P L D 1958 Kar. 399 and P L D 1975 Lah. 1170.

13. The next argument advanced by Mr. K.B. Bhutto with regard to the second gift is that the Assistant City Surveyor had no authority to record statement of Mst. Karima Bibi, nor such statement would amount to cancellation of the prior gift-deed. Moreover no notice was issued by the City Surveyor to the respondents before making entries in the City Survey Record. Appellant Yousuf has admitted in his evidence that at the time of the subsequent gift by Mst. Karima Bibi effect by her statement before the Assistant City Surveyor, he was aware of the gift-deed pending before the Sub-Registrar for Registration. He further stated that he had also given a notice to the Registrar not to register the gift-deed. In view of this fact the appellants should have brought this fact to the notice of the City Survey Authorities that a gift-deed was already pending for registration before the Sub-Registrar on 26-8-1965, when statement of Mst. Karima Bibi was recorded by the Assistant City Surveyor. The silence of the appellants before the City Survey Authorities regarding the prior gift-deed shows that the appellants themselves got the subsequent gift transaction effected clandestinely. It was their duty to point out to the City Survey Authorities, before getting Mutation entered in their favour, that an earlier gift-deed, dated 30th July, 1965 was already pending with they Sub-Registrar, in favour of the respondents and that the respondents may be heard before mutations are effected.

14. Mr. K.B. Bhutto has further argued that in second appeal under section 100, C.P.C. concurrent finding of fact of the two Courts below in respect of the first gift-deed having been duly executed by Mst. Karima Bibi in favour of the respondents cannot be interfered with unless it is proved that the above point of fact was based on misreading of evidence or was arbitrary or was in violation of mandatory rules laid down in the Evidence Act. In support of his argument he has relied on (1) P L D 1978 Kar. 188; P L D 1969 S C 617; 1970 SCMR 510 and (4) 1981 S C M R 1233.

15. So far as proof of execution of registered gift-deed is concerned, there is evidence of Mst. Fatima, paternal grand-daughter of Mst. Karima Bibi (Exh.5). She has produced the registered gift-deed us Exh.2, which shows that it was presented on 30th July, 1965 before the Sub-Registrar in presence of witnesses Noor Ahmed and Haji Yar Muhammad. The Sub-Registrar on the same date also made an endorsement that the executant was present, but perusal of the deed shows that there is no endorsement on the gift-deed that it was read over to Mst. Karima Bibi in the language which she understood and that she admitted its contents. Unfortunately this fact has not been adverted to by both the Courts below. It would be advantageous to reproduce the endorse ments which were made by the Sub-Registrar on the disputed gift-deed on 30th July, 1965 and 28th August, 1965. These are as under:- "(1) Mst. Karima Bibi wife of Abdul Ghani, Muslim, 90, household, Soldier Bazar, Karachi, executing party. (2) Mst. Fatima Bibi wife of Peer Muhammad, Muslim, 30, household, Soldier Bazar, Karachi, executing party. (3) Mr. Ghulam Hussain son of Mohomed Bhai, Muslim, 28, Service, Soldier Bazar, Karachi, executing party. (4) Mr. Ismail son of Mohomed Bhai, Muslim, 23, Service, Soldier Bazar, Karachi, executing party. The above admit execution" (Paper torn) Below the above endorsement there are thumb-impressions of Mst. Karima Bibi, Mst. Fatima Bibi, Ismail and Ghulam Hussain. There is further endorsement as under:- "Haji Yar Mohomed son of Haji Abdur Rehman, Muslim, 42, business, Soldier Bazar states that he knows the executants and identifies them. He in turn is identified by Mr. M.I. Siddiqui, Advocate." Below this endorsement there are signatures of Mr. M.I. Siddiqui and Haji Yar Mohomed. The above endorsements are dated 30th July, 1965. The matter was then adjourned by the Sub-Registrar and again taken up on 28-8-1965 for registration. On this date he passed the following order:- "Admitted to registration." (Sd.) (Sub-Registrar, Karachi). 28-8-1965."

16. This is all about the registration. Mst. Fatima Bibi who has produced this gift-deed does not say that the contents of this deed, which are in english, were read over to Mst. Karima Bibi in the language which she understood and that she admitted the contents. P.W. Ghulam Hussain (Exh.8) also does not say that this gift-deed was explained contents after understanding the same. The dame would apply to the evidence of Noor Ahmed (Exh.13).

17. I am, therefore, convinced that both the Courts have failed to apply their minds to the question as to what are the requirements in respect of proof of a document executed by an illiterate 'Pardahnasheen' lady. The most important fact which makes both the gift-deeds doubtful is that both the parties kept silent about their respective gifts during the lifetime of Mst. Karima Bibi from August, 1965 upto March, 1966 when she was alive. During this period they could have filed a suit and made Mst. Karima Bibi a party to it to prove as to the which gift she was a consenting party. I am convinced that none of the parties G has come to the Court with clean hands. They had taken advantage of the old age and ignorance of the 90 years old lady and got transactions executed from her without fully making her understand the nature of the transactions. The appellants appear to be nearer relatives to Mst. Karima Bibi in comparison to respondents Nos. 1, 2 and

3. Respondents Nos. 1 and 2 are maternal grand-sons of Mst. Karima Bibi, while the appellants Nos. 1 and 2 are maternal grand-sons of Mst. Karima Bibi. In the ordinary course Mst. Karima Bibi would have gifted the property, if at all she wanted so, to her paternal-grand sons rather than to her maternal grand-sons. No doubt Mst. Fatima Bibi respondent No.3 is maternal grand-daughter, but she herself being a married lady, the benefit of gift in her favour would have also gone to her husband. Hence she also would not have been a favourite donee for Mst. Karima Bibi. However, the very fact that the parties exploited the old age and ignorance of the lady by getting one transaction executed after another according to their choice, shows that none of the two gifts was voluntary or was executed by her after having fully understood the nature of the transactions. The fact that the parties came to the Court after the death of Mst. Karima Bibi shows that they have not come with clean hands. Hence none of the parties is entitled to get any benefit out of the alleged gifts, the executions of which are highly suspicious and doubtful. For the above reasons the appeal is allowed, and the judgments of the first appellate Court and the trial Court are set aside with the observations that none of the gifts executed by Mst. Karima Bibi has been proved to be genuine. The parties will bear their own costs.- A.A. Appeal allowed.