2007 PLP 423 (CLD)

Present appeal, filed by the objector, under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against order dated 27-5-2006, whereby the learned Judge Banking Court, acting as Executing Court, dismissed appellant's objection petition.

2. Platinum Commercial Bank Limited (the predecessor-in -interest of the respondent-Bank) instituted the suit for recovery of Rs.1,85,88,690, inter alia, on the basis of mortgage of the property, bearing Plot No.90-E/I, Gulberg-III, Lahore, measuring 3 Kanals, 17 Marlas, 212 sq. ft. (the property) created in favour of' the Bank by Syed Amjad Hussain Jaffari (respondent No.2) against the respondents Nos.2 to 6, before the learned Judge Banking Court. The suit was decreed against the said respondents by the learned Judge Banking Court, vide judgment and decree dated 3-4-2001. Pursuant thereto the decree-holder initiated the execution proceedings for realization of the decretal amount through the sale of the mortgaged properties. When the property was put to auction, the appellant, on 20-5-2002, filed the application under Order XXI, rule 26, C.P.C., seeking stay of auction proceedings. It was pleaded by the appellant that the property was gifted by Amjad Hussain Jafri (respondent No.2) to her and respondents Nos.7 to 11, through gift-deed bearing Document No.6315, Book No.457, Bahi No.1, dated 12-7-1994, duly registered with Sub Registrar, Sadar Cantt., Lahore, and she and her children are owners in possession of the property, therefore, the property cannot be sold in execution of the decree. The objection petition was resisted by the decree-holder, asserting that respondent No.2, being the owner of the property, in order to secure the financial facility availed by Messrs. Hi Born International, mortgaged the property in favour of the Bank, which was legal and valid, therefore, the property is available for satisfaction of the decree. The learned Judge Banking Court, while holding that the property is not available for sale, allowed the said, objection petition, vide order dated 9-6-2003. The decree-holder challenged the said order before this Court, through the appeal (E.F.A. No.321 of 2003), which was allowed on 21-7-2003 and it was directed that the appellant's objection petition shall be decided by the learned Executing Court, after recording evidence of the parties. In obedience to the said order, the learned Executing Court framed the following issues:-- Issues: (1) Whether petitioner Mst. Iram Jaffary along with her children i.e. (1) Syed Ali Najaf Jaffary; (2) Syed Zail-ul-Aabdeen Jaffary; (3) Syed Aun Zafar Jaffary (sons); (4) Syed Zainab Batool Jaffary; and (5) Syed Maliah Batool Jaffary (daughters) are owner in possession of land Property No.90-E-I, comprising of land measuring 3 Kanals, 17 Marlas, 217 sq. ft. Gulberg-III, Lahore, on the basis of registered gift-deed dated 5-1-1994 registered on 29-6-1994. (2) Relief. The appellant appeared in person as witness, filed her affidavit Exh.A-1 and tendered documents i.e. gift-deed, letter written to L.D.A. and letter of L.D.A. to the appellant, which were exhibited as Exh.-A/2, Exh.-A/3 and Exh.A/4, respectively. The learned Judge Banking Court, after hearing the parties, decided Issue No.1 against the appellant and consequently dismissed appellant's objection petition, vide impugned order dated 27-5-2006, hence the present appeal.

3. Learned counsel for the appellant has contended that the appellant and respondents Nos.7 to 11, on the basis of registered gift-deed dated 12-7-1994, are owners in possession of the property. He has added that as the property was gifted in the year 1994; therefore, the same could not have been mortgaged in the year 1997. He has further submitted that under the Islamic Law a gift can be made orally and, therefore, the said gift is a valid. His further contention is that the execution of gift-deed stands established from its registration with Sub-Registrar as well as from the record of L.D.A.

4. We have heard the learned counsel and examined the available record. In post remand proceedings, the learned Executing Court framed the issue, as noted above, to the effect as to whether the appellant and other persons are owners of the property on the basis of gift-deed dated 5-1-1994, registered on 29-6-1994, onus of which was rightly placed upon the appellant. Obviously, the appellant claiming to be one of the beneficiaries of the gift-deed, was under legal obligation to establish and prove through the production of sufficient evidence that the gift-deed was validly executed by respondent No.2 and it is legal document conferring title upon the appellant and others to the exclusion of decree-holder. Furthermore, the gift-deed was denied by the respondent-Bank, therefore, heavy onus lies upon the appellant to prove the execution of the said document (Reference can be made to Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416). In order to prove the said issue, no independent witness was produced and the appellant 'appeared as her own witness and produced certain documents in evidence, including the gift-deed, which was exhibited as Exh.A/2. The appellant did not summon the stamp vendor and scribe of the .document. Even the record of Sub-Registrar was neither summoned nor produced in evidence in order to prove the execution of the document. We find from the record that the alleged gift-deed was presented and attested before the local commissioner, who was also not produced in evidence. It is evident from the report of the Commission that the alleged donor appeared before him on 29-6-1994. In this context the Local Commission was an important and independent witness to be produced by the appellant, who was in a position to state that in fact the donor appeared before him and presented the document for registration. Additionally, we find from the photocopy of gift-deed that it is attested by two marginal witnesses. Admittedly, none of them was summoned or produced in evidence in order to prove execution and genuineness of the gift-deed. No application appears to have been filed by the appellant for sending the signatures of the alleged donor (Syed Amjad Hussain Jafri) to the Handwriting Expert for its comparison with his admitted document. None was summoned from L.D.A. to prove the documents relied upon by the appellant. When the appellant has not been able to prove the execution of the valid gift-deed, then subsequent letters, even if admitted, would not advance the case of the appellant, as those are based on alleged gift-deed. It has rightly been noted by the learned Judge Banking Court that none of the other alleged donees (respondents Nos.6 to 11) entered appearance in evidence to support the case of the appellant. It has not been established through- evidence that the alleged donor respondent No.2 had, in fact, appeared before the Local Commissioner/Registrar at the time of the registration of gift-deed and acknowledged his signatures and the execution of the gift-deed. It has been held by the Honourable Supreme Court of Pakistan in the case reported as Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 that when the execution of a sale-deed could not be proved and it could also not be established that the plaintiff had appeared before the Registrar at the time of registration and payment of sale consideration could not be substantiated then the sale-deed was a void document. In this case too, as noted above, it has not been proved that the alleged executant of the gift-deed appeared before the Local Commissioner/Registrar and he did acknowledge the execution of the gift-deed, therefore, to our mind, said gift-deed is also a void document.

5. There cannot be any cavil with the proposition that under the Islamic Law a gift can be made orally if the three ingredients, i.e. offer of gift, its acceptance and delivery of possession, are established on record. Suffice it to say that the case of the appellant is not based upon the oral gift but from the very inception the appellant is only relying upon the gift-deed and, therefore, at this stage it can neither be argued nor held that even if the gift-deed is not proved, the oral gift may be accepted. It is settled law that a party to litigant can only succeed according to what was alleged and proved and he C cannot be permitted to deviate from his pleadings or can set up different pleas. Reliance can be placed to Amir Shah v. Ziarat Gul 1998 SCMR 593; Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770. Now when the appellant has failed to prove the execution of valid and legal gift, she cannot be allowed to fall back upon the oral gift.

6. There is another aspect of the case, on which the learned Judge Banking Court has mainly relied upon, while dismissing appellant's objection petition. Admittedly, the gift-deed was got registered in the office of Sub-Registrar Saddar, whereas the property is situated at Gulberg and falls within the jurisdiction of Sub-Registrar, Model Town. Section 28 of' the Registration Act, inter alia, provides that every document mentioned in section 17 shall be presented for registration in the office of a Sub-Registrar within whose sub-District the whole or some portion of the property to which such document relates is situate. In this case, as noted above, Sub-Registrar, Model Town had the jurisdiction to register the document. The learned Judge Banking Court has rightly relied upon the case of Muhammad Mushtaq and another v. Bashir Ahmad Chaudhry and another PLD 1991 Lahore 400, wherein it has been held, with reference to section 28 of the Registration Act and the Registration Rules, that registration of sale-deed by Registrar relating to land which was outside his territorial jurisdiction was without jurisdiction and void.

7. In the above perspective, we have examined the impugned order and find that the appellant has comprehensively failed to prove the execution and existence of valid and legal gift-deed qua the mortgaged property which stood mortgaged in favour of the respondent-Bank. The impugned order is legal and does not call for any interference by this Court, thus, the same is maintained.

8. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed in limine. H.B.T./I-75/L Appeal dismissed.