2006 PLP 1588 (YLR)

JAWWAD S. KHAWAJA, J.

The petitioner, Muhammadi Begum, impugns the concurrent decrees of the learned trial Court dated 17-9-1997 and of the learned appellate Court dated 1-11-1999, whereby her declaratory suit claiming title to the suit property has been dismissed.

2. The parties to this petition are related inter se being the lineal descendents of Abdul Aziz. Abdul Aziz had, in all five daughters and four sons. The petitioner is one of the daughters of Abdul Aziz. Abdul Latif, respondent No.1, is the grandson (Pota) of Abdul Aziz being the son of Abdul Ghafoor. According to Abdul Latif, his grandfather gifted the suit property which is a shop measuring 1-112 Marla to him and his brother Abdul Majid, vide gift deed dated 23-1-1965.

3. The petitioner plaintiff challenged the gift deed for a number of reasons. It was her case that Abdul Aziz never executed the deed and did not present the same for registration. It was also asserted that Abdul Aziz was not competent on account of unsoundness of mind and, therefore, lacked the legal capacity to convey the suit property through gift. Thirdly, it was alleged that possession of the suit property had never been delivered to the alleged donees, Abdul Latif and Abdul Majid, since possession was with Abdul Haq, another grandson (Pota) of Abdul Aziz.

4. Only Abdul Latif contested the suit. All other legal heirs of Abdul Aziz agreed with the petitioner that Abdul Aziz had not made any gift in favour of Abdul Latif and Abdul Majid. At this juncture it is also relevant to note that Abdul Majid had died prior to the filing of petitioner's suit. His L.Rs., who were impleaded as defendants Nos.2 to 7 in the suit, filed a separate written statement and admitted the petitioner's assertion that no gift had been made by Abdul Aziz. Even Ramzan Bibi, who is the mother of the alleged donees and who had been impleaded as defendant No.8, conceded through a separate written statement that no gift had been made in favour of Abdul Latif and Abdul Majid.

5. Based on the pleadings of the parties, a number of issues were framed. However, Issue No.5 is dispositive of the case. It was framed in the following terms:-- "

6. Whether the Gift Deed No.248 dated 23-1-1965 is illegal, fraudulent, non-existent and inoperative against the rights of the plaintiff and is liable to be cancelled? OPP"

6. Here it is of relevance to note that the original gift deed was never produced in evidence. This is so notwithstanding para.4-C of the written statement filed by Abdul Latif, respondent/defendant wherein he averred that the validity of the gift deed could be seen from the stamp paper on which it was executed. Despite this assertion the original deed was not produced in Court nor indeed was a photocopy submitted with the written statement. Only certified copies of the alleged gift deed were produced as Exh.P.2 by the petitioner/plaintiff and Exh.D.1 by the respondent/defendant.

7. It is also significant that no application was filed before the learned trial Court setting out any of the grounds in Article 76(c) of the Qanun-e-Shahadat Order, 1984, for proving the gift deed through secondary evidence. In these circumstances, the certified copy of the gift deed did not suffice for the purpose of proving the same. It is true that Habib Mustafa (D.W.3) son of defendant, Abdul Latif, appeared as a witness and stated that the gift deed had been lost. This, however, certainly is not sufficient for the purpose of Article 76 of the Qanun-e-Shahadat Order to justify the admission of certified copy of the deed in evidence, bearing in mind the circumstances noted above.

8. The learned Courts below unfortunately have completely ignored the above aspect of the case and have thus fallen in error in exercise of their jurisdiction. What has prevailed with the learned Courts below is that the gift deed was more than thirty years old and, therefore, a presumption of correctness. attached to the same. It was not realized by the Courts below that the document produced on record was not a gift deed executed in 1965. It was merely a certified copy thereof which was prepared in 1996. In addition, in a Division Bench judgment of this Court in the case titled Ahmad Ali v. Mukhtar Ahmad and 13 others 2002 YLR 2505, the issue, which has arisen in this case has been fully discussed. The ratio thereof supports the contention of the petitioner that no presumption of correctness could attach to the certified copy of the gift deed and, secondly, that the certified copy produced on record was not admissible in evidence because the conditions precedent to the admission of c secondary evidence had not been fulfilled.

9. In addition to the above, there are the material circumstances, which I have noted above including the statement of Mst. Ramzan Bibi conceding that no gift had been made in favour of Abdul Latif and Abdul Majid.

10. In the foregoing circumstances, it is clear that the decrees of the learned Courts below are not legally sustainable. The same are, therefore, set aside. As a result, the suit of the petitioner/plaintiff is decreed and she along with the other legal heirs of Abdul Aziz are declared to be owners of the suit property. The petitioner shall also be entitled to her costs throughout. F.B./M-72/L Petition allowed.