1990 PLP 1259 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This appeal arises out of a suit filed by Mst. Maqbool Begum wife of Syed Muhammad Akhtar (Respondent No.l) against the Executive Officer Cantonment Board, Peshawar Cantt. Syed Mansoor Ahmad (appellant) and Syed Mushtaq Ahmad, her father‑in‑law, in the Court of Senior Civil Judge, Peshawar, for declaration that she is the owner in possession of the house in dispute and that the entries in the record of the Cantonment Board were incorrect which may be rectified. ?The admitted position is that the disputed house was originally owned by Syed Mushtaq Ahmad which was purchased by respondent 1 by means of a registered sale‑deed, dated 19th January, 1965, for a consideration of Rs.10,000, According to the said respondent, the cause of action for the suit arose on account of her coming to know of the entries made in Cantonment Board record, behind her back, showing the property to have been retransferred in the name of Mushtaq Ahmed by the respondent through a subsequent sale‑deed, dated 8th February, 1967, and further transferred by Mushtaq Ahmad in favour of the appellant. The defendants in the suit resisted the claim of the respondent No.l, inter alia on the plea that the suit was filed mala fide by the respondent at the instance of her husband. Mushtaq Ahmed the original vendor did not deny the execution of the first sale‑deed in favour of the respondent No.l, dated 19th January, 1965 but his plea was that the sale was a benami transaction, without consideration, executed in order to enable his son Muhammad Akhtar, the husband of the respondent No.l to obtain a loan from the House Building Finance Corporation. It was alleged that the latter had agreed that the house would be retransferred after the needful had been done. He further pleaded that subsequently the house was in fact transferred in his name through a registered sale‑deed, dated 8th February, 1967. He alleged that the original instrument was in his possession but it was forcibly taken away by the husband of respondent No.l. Before the suit could go to trial there were some arbitration proceedings taken and an award was given which was, however, set aside by consent and eventually the suit was proceeded with on merits. But in the meantime Mushtaq Ahmad, the original owner died and his legal representatives were substituted in his place. He was, therefore, not examined as a witness in the proceedings of the suit. The main issue tried by the Court was issue No.4 which reads as under:‑

"Whether the plaintiff is owner in possession of the suit house and transfer in favour of defendants 2 and 3 is fictitious and based on fraud." The respondent's (plaintiff's) evidence consisted of her own statement and that of her husband Muhammad Akhtar. On the side of the defendants, only the statement of the appellant was recorded. The trial Court, on examining the evidence, came to the conclusion that the disputed house was validly transferred in favour of respondent No.l by way of sale and rejected the plea of benami transaction for want of evidence. The second sale‑deed whereby the property was allegedly retransferred Mushtaq Ahmed, dated 27th January, 1967, which was sought to be proved by a certified copy of the sale‑deed was held not to have been proved in accordance with law, because its execution was specifically denied by respondent No.l. Also the trial Court disbelieved the allegation that the original instrument was taken away by the husband of the respondent. In view of the conclusions the suit of the respondent was decreed on 3rd February, 1986. Appellant's appeal against the decree also failed and was dismissed by the learned Additional District Judge, Peshawar, on 23rd June, 1986. Ultimately the appellant sought to challenge the decree in a civil revision before the Peshawar High Court which was dismissed in limine by a learned Single Judge of that Court, vide judgment, dated 18th February, 1987. Being dissatisfied the appellant came up before this Court and leave was granted to examine the contention, "whether in the circumstances of the case, the certified copy of the sale‑deed registered on 8th February, 1967, was admissible in evidence and the Courts below have erred in law in ignoring the same". Before adverting to the legal question for determination it will be useful to refer to some material evidence on record which was considered by the 1st Appellate Court while disposing of issue No.4 drawn up by the trial Court in the following extract from the judgment of the learned Additional District Judge, Peshawar:‑‑ "The judgment impugned hinges around issue No.4 only which is the main issue in the instant case. Perusal of the record reveals that the registered deed dated 19‑1‑1965 is not disputed between the parties through which the property in dispute was transferred in favour of Mst. Maqbool Jan, plaintiff. Syed Mansoor Ahmad and late Syed Mushtaq Ahmad defendants Nos.2 and 3 contended that it was a benami transaction without payment of any sale consideration. It was alleged by the defendants that the husband of the plaintiff needed loan for construction of a house from the House Building Finance Corporation, therefore, the suit house was transferred in the name of the plaintiff without payment of any sale consideration on the protest to retransfer the same to Syed Mushtaq Ahmad, defendant, and as such a registered document was executed by Syed Mushtaq Ahmad in favour of Mst. Maqbool Jan in whose name her husband had applied for getting loan for construction of house. The defendant Mansoor Ahmad stated that it was retransferred to his father Syed Mushtaq Ahmad on the basis of registered deed the certified copy of which is marked as Exh.D.W.l. It was alleged that the original of the said deed was torn by the husband of the plaintiff and the matter was reported to the police vide F.I.R. Exh.D.W.l/2. The witness further stated that later on the suit house was transferred in his favour in the year 1968 through mutation attested by the Cantonment Board on the basis of an affidavit Exh.DA. The witness further stated that the husband of the plaintiff executed a rent deed in his favour after the transfer of the suit house in his name. Photostat copy of the rent deed is marked as Exh.D.W.l/1. According to this witness the original Rent Deed was also torn by the plaintiffs husband alongwith the original sale‑deed. The witness stated that the plaintiff has got no concern whatsoever with the disputed house and that he is its lawful owner. A perusal of the affidavit Exh.D.X.l/2 placed by the plaintiff on the file reveals that Rs.10,000 was fixed as dower of the plaintiff at the time of marriage with Syed Muhammad Akhtar, son of Syed Mushtaq Ahmad. It was agreed that Syed Mushtaq Ahmad would pay Rs.3,000 and Syed Muhammad Akhtar husband of the plaintiff would pay the rest of the amount of Rs.7,

000. At the time of execution of the agreement to sell which is marked as Exh.D.W.l/1 the matter was made more clear and it was agreed that the sale with the regard to the house in dispute would be for the amount of Rs.3,000 which was due from Syed Mushtaq Ahmad and would be adjusted against the sale consideration of Rs.10,000 whereas Rs.7,000 would be paid to the vendee by his son Syed Muhammad Akhtar. As such the allegation of the defendant that the registered deed with regard to the sale of the suit house in favour of the plaintiff being without sale consideration has got no force, because ultimately a registered sale deed the copy of which is Exh.D.X.l was registered in favour of Mst. Maqbool Jan the plaintiff on the basis of the aforesaid affidavit and the deed of the agreement to sell. There is no cog6nt evidence to the effect that the said transaction was a benami and was without sale consideration. The contention of the defendant that husband of (sic) the House Building Finance Corporation in the name of the plaintiff is also unsupported by any documentary or strong impartial oral evidence. According to the evidence available on the record when the plaintiff and her husband had no house of their own excepting the suit house and had also got no vacant site, in these circumstances the contention of the defendant that they had applied for getting loan is without any force. No single document was placed on the file to show that the plaintiff or her husband had ever applied for getting loan from the quarter concerned. It has also been contended by the defendant that the original of the retransferred deed and the rent deed were torn into pieces by the husband of the plaintiff and in this connection the defendants have placed copy of an F.I.R. in the trial Court but I do not admit the aforesaid contention of the defendant for the reason that neither the defendants have produced the torn pieces of the said document nor they have applied to the trial Court for production of secondary evidence in the absence of the original document. As such the execution of the said retransferred sale‑deed and the rent deed as alleged by the defendant stands unproved. Because a single marginal witness of these documents was not produced by the defendants during the course of their evidence in the trial Court." On the merits of the case learned counsel for the appellant, conceded that no evidence was produced to prove that first sale‑deed by which Mushtaq Ahmad sold the property to respondent No.l was a benami transaction, in that there is nothing on the record to show that any loan was obtained by Muhammad Akhtar from the House Building Finance Corporation, much less that the disputed property was used for the purpose of securing the repayment of such loan by respondent No.l. For that matter if the loan was to be taken by Muhammad Akhtar and a security on the basis of immovable property was at all necessary, his father Mushtaq Ahmad could have done so, as owner of the property in question. This would totally obviate the necessity of having to go through the botheration of an ostensible sale. The theory of benami transaction is therefore, unsustainable. As against that, as the learned Additional District Judge has discussed, from the evidence it appears that prior to the sale there was an agreement to sell in which it was clearly laid down, how the consideration was to be paid. The transaction was, therefore, concurrently held to be a valid sale and binding on the parties. These are findings of fact and are supportable by evidence on record, which are not liable to be disturbed. In view of this conclusion, the entire basis of the appellant's plea that the property was reconveyed to the real owner as originally, respondent was a Denami owner, would be wiped out. At any rate the only witness examined on the side of the appellant, was he himself. He has categorically admitted that he was not present at the time of execution of both sale transactions between Mushtaq D Ahmad and respondent No.l. He cannot obviously vouch for the genuineness of the sale‑deed, dated 8th February, 1967. No attesting witness of this deed was examined and respondent No.l has categorically denied having executed such a sale‑deed. The execution of the said sale‑deed was not proved by any legal evidence. It was urged on behalf of the appellant that, the production of a certified copy of the registered deed was admissible in evidence without the original being tendered, under section 57(5) of the Registration Act, 190$, and the appellant was not required to adduce any other secondary evidence to prove the original sale deed. This argument is devoid of substance. The only effect of section 57(5) of Registration Act, as plainly warranted by its terms is that the certified copy of a registered document "shall be admissible for the purpose of proving contents of the original document". Admissibility of evidence is to be distinguished from proof. The certified copy of a registered document may prove the contents of the original document, but merely showing as to what were the contents of the original document, is not sufficient in absence of the proof of execution of the original document. Therefore, at best it is secondary evidence of the contents of the original. Still the question whether such secondary evidence could be produced depends upon the satisfaction of the conditions laid down in Article 76 of the Qanun‑e‑Shahdat, 1984, and in the present case clause (c) thereof is attracted, namely, that it must be proved that the original was destroyed in the manner alleged. Therefore, the appellant had no right to lead the secondary evidence of the contents of the original. In Kartar Singh v. Didar Singh and others A I R 1934 Lah. 282, it was held that production of a registered document in evidence did not dispense with the necessity of proving its execution if it is denied. Similarly in Muhammad Cherag v. Dullay Khan P L D 1954 Dacca 134, it was laid down that a person relying on a document is bound to prove its execution and the fact that it was registered makes no difference, because the inquiry made under the Registration Act with regard to the execution of the document by the alleged executant is not a judicial inquiry by a Court, but is confined to the purposes of registration as departmental duty. It is also well‑settled that a document adversely effecting the interest of a woman in favour of a person standing in relationship of active confidence requires strict proof of execution and availability of independent advice to such executant. No such evidence was attempted to be produced in this case. The finding reached by the Courts below that the appellant had failed to prove the second sale‑deed" is, therefore, unexceptionable. In the result this appeal fails and is accordingly dismissed with costs. AA./M‑1219/S ?????????????????????????????????????????????????????????????????????? Appeal dismissed.