1988 PLP 1703 (SCMR)

SHAIFUR RAHMAN, J.‑‑Leave to appeal was granted to the defendant, who had been unsuccessful in all the three Courts, to examine whether in the face of the specific objection taken by he and the registered deed produced in support of the claim it had become necessary for the plaintiff‑respondent to seek the cancellation of the registered deed under section 31 of the Specific Relief Act and a mere declaration in terms in which it has been granted could not at all suffice. The facts necessary for the disposal of this appeal are that the appellant Mst. Sahib Noor was married to Ghulam Hussain a brother of the plaintiff‑respondent Haji Ahmed. They had no issue from the marriage. Ghulam Hussain owned 20 kanals 3 marlas of land in village Dareer, Tehsil and District Rawalpindi. Ghulam Hussain by a registered deed dated 10‑8‑1970 transferred this land to the appellant in lieu of her dower and a mutation consequent upon the registered deed was also attested in her favour on 26‑10‑1970. On 2‑1‑1971 Ghulam Hussain died. On 23‑2‑1971 Haji Ahmed respondent instituted a civil suit claiming 3/4th share in this property which‑once belonged to Ghulam Hussain on the ground that he was the brother and after his death was entitled to that much of share in his property as Ghulam Hussain had died issueless. In para. 2 of the plaint it was stated that Mst. Sahib Noor, the appellant had got it circulated that she had purchased this property from the deceased and if there was any such document it was fictitious and inoperative on the rights of the plaintiff. In the Written Statement the appellant pleaded the registered deed in he favour and also claimed that unless it was got cancelled, the suit could not proceed. It was also stated that without further specification of the particulars of fraud or fictitious nature of the document, the suit could not proceed. On merits the sale in lieu of dower in favour of the appellant was sought to be protected. The Trial, Court frame the following issues on the pleadings of the parties:‑

(1) Whether the suit is properly valued for the purposes of court‑fee and jurisdiction? OPP. (2) If issue No.1 is not proved, what is the correct valuation? OPP. (3) Whether Ghulam Hussain deceased had transferred the suit land to the defendant against her dower, during his lifetime? OPD. (4) If issue No.3 is not proved what are the respective shares of the parties in the properties left by Ghulam Hussain deceased? OPPs. (5) Whether the defendant is entitled to special costs under section 35‑A of C.P.C. If so, to what amount? OPD. (6) Relief. On the material issue No.3, the trial Court held as follows:‑ "In view of the flagrant inconsistency in the witnesses produced it had become necessary to have produced the other marginal witness Qurban who was never examined as a witness. The other most important witness was the village Lambardar who was told by D.W.3 to come for attestation of the deed, who never came. The aforesaid Lambardar despite the fact that he did not attest the deed raises a presumption the possibility of which cannot be excluded that he denied to stand as a witness to a document based on forgery or that he may not have concurred with them to identify a different man in place of Ghulam Hussain. Despite the fact that the Lambardar was not cited as a witness he could still have been examined so to give some oral support to any agreement or transaction made or entered into between the defendant and Ghulam Hussain deceased. The factum of which can give rise to a fair adverse presumption, against the. defendant, that if at all they have been produced they may not have supported EXh.D.l. In view of my above discussion since the execution of EXh.D.l has not been proved, therefore, this issue is answered in the negative. " The relief was granted by the trial Court in the following words:‑

"The onus probandi of this issue is on the defendant. The defendant as is clear from my findings on issue No.3 has tried to grab the entire property left by Ghulam Hussain the deceased by preparing a fictitious registered sale deed EXh.D.l with the object of depriving the plaintiff to get his due share under the law, and the same is very much within the knowledge of the defendant, therefore, I impose Rs.150 as special costs of the defendant which are to be payable by him to the plaintiff. In view of my findings on the aforesaid issues, the plaintiff's suit for possession of 3/4th share out of the land in dispute described in the heading of the plaint is decreed with costs of the suit." An appeal was preferred to the District Judge. The District Judge also disbelieved the witnesses and maintained the finding the trial Court on issue No.3. The findings on issue No.5 were set aside on the observations made as hereunder:‑

"However, findings of the learned lower Court on issue No.5 cannot be sustained because the appellant claimed special costs and the respondent did not claim such costs, but the lower Court awarded special costs to the respondent. Therefore, special costs imposed on the appellant are re‑called. In view of the abovementioned facts and discussion, there is no force in this appeal and it is accordingly dismissed. There shall be no order as to the costs." A Revision was then preferred and in the Revision Petition a specific objection with regard to the form of the suit was taken in the following words:‑ "That the present appellant resisted this suit on legal and factual grounds. On legal side it was taken in the written statement, the suit was not competent as the respondent has not prayed for the cancellation of the document of registered Hiba Nama in favour of the appellant in respect of the land in question. " As regards the registered document and its proof the following objection was taken in the Revision Petition:‑ "That the learned Courts below discarded the registered Hiba Nama Exh. D.1 on the ground that the appellant‑defendant failed to prove its execution by not producing the marginal witness Qurban. This document was registered in accordance with the provisions of the Registration Act, 1908, hence under the Proviso to section 68 of the Evidence Act, 1872 it was not necessary to call attesting witness in proof of execution of this document. The findings of the Courts below on issue No. 3 are contrary to law. The judgments and decree in challenge suffer from inherent infirmity and are not maintainable in law." And finally another objection was taken with regard to the actual finding recorded by the trial Court. "That there is no issue that the deed in question was fictitious, the trial Court had no authority to give findings in this regard because this was not raised as a point at issue." Similarly, with regard to the appellate Court's finding, the following objection was taken:‑ "That the learned lower appellate Court has said in its judgment that the land of the respondent /plaintiff was never transferred to the appellant and in fact some other person instead of his deceased brother was produced before the Registrar at the time of execution of sale‑deed. These observations of learned Additional District Judge which became the basis of his judgment are not mentioned either in the pleadings or in evidence. Rather contrary to this as stated above the case of the respondent as set forth in his evidence is that he had not filed this case for declaration of the mutation and the registered sale‑deed as invalid and further that after death of Ghulam Hussain registered deed was got executed from him. The finding of the lower appellate Court has no basis in this regard." The learned Judge in the High Court dismissed the Revision petition in limine without attending to any of these legal objections on the grounds as hereunder:‑ "The learned counsel read over the depositions made by the relevant witnesses from his own brief but he could not point out any instance of misreading or non‑reading of evidence. The concurrent finding of facts of both the Courts below is based upon well appraisal of respective evidence adduced by the parties. The learned counsel could not point out any material on the record to substantiate that the learned Courts below have acted in the exercise of their jurisdiction illegally or with material irregularity. In the given circumstances of this case an application in revision is not competent and the same is dismissed in limine." Kh. Muhammad Farooq, Advocate the learned counsel for the appellant has in support of the petition and in support of the appeal contended that legal objection had been taken at the very first opportunity by the appellant in the Written Statement with regard to the form of the suit, the necessity for the plaintiff to seek cancellation of the registered deed and also the requirement of law contained in Order VI, Rule 4 of the Code of Civil Procedure that the particulars of misrepresentation or fraud had to be pleaded. None of the Courts attended to this aspect of the case and instead recorded findings of fact which were neither pleaded nor stated by the plaintiff when he appeared in the witness‑box. Another legal infirmity according to the learned counsel for the appellant is that in view of section 68 of the Evidence Act, the document being a registered one, no proof in the form invited, at all, was required and the necessary presumptions arising out of it were not in fact raised and given effect. The learned counsel has relied on Vellayya Konar and another v. Ramaswami Konar and another A I R 1939 Madras 894 and Mst. Hamida Begum v. list. Murad Begum and others P L D 1975 S C 624, in order to demonstrate that the suit could not proceed and the finding recorded could not be recorded on the material on record. Maulvi Siraj‑ul‑Haq, Advocate, the learned counsel for the respondent on the other hand contended that as no issues were framed with regard to the form of the suit and the particulars of the misrepresentation or fraud and the onus was placed on the appellant the Courts have recorded findings of fact and affirmed them on re‑examination and it is not open either in revisional jurisdiction for the High Court or at this stage for this Court to interfere with such a finding of fact. As the plaintiff‑respondent was a heir of Ghulam Hussain, he could ignore the registered deed and claim his share in the property. It has rightly been allowed by the Courts. The plaintiff respondent had in paras. 2 and 3 of the plaint mentioned as follows:‑ In reply the appellant pleaded in defence the registered deed and specifically stated that without further clarification of the allegation in para. three of the plaint, it made no sense and that plea of avoidance could not prevail. The plaintiff respondent did not at all attend to this objection, and did not clarify or elucidate his stand on this point. Order VI, Rule 4, Code of Civil Procedure, provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleadings." In the case of Eliza F.T. Higgs Vatcher and others v. Henry Paull and others A I R 1914 Privy Council 184 it was held that "their Lordships are of opinion that where charges of fraud are intended to be made, full particulars thereof ought to be given in the pleadings, either as originally framed or as amended for that purpose." The ingredients of 'fraud' were enumerated as follows:‑ "In order to establish fraud it must be proved first that representation was made; secondly that this representation was untrue; thirdly that it was untrue to the knowledge of the person making it; and fourthly that it induced the contract." The Privy Council in that case reversed the concurrent finding of fact after examining the evidence itself. In Bharat Dharma Syndicate Ltd. v. Harish Chandra A I R 1937 Privy Council 146 their Lordships held on the question of 'fraud' as follows:‑ "Their Lordships desire to call attention to the great difficulty which is occasioned both to persons charged with fraud or other improper conduct, and to the tribunals which are called upon to decide such issues, if the litigant who prefers the charges is not compelled to place on record precise and specific details of those charges. In the present case the petitioner ought not to have been allowed to proceed with his petition and seek to prove fraud, unless and until he had, upon such terms as the Court thought fit it to impose, amended his petition by including therein full particulars of the allegations which he intended to prove. Such cases as the present will be much simplified if this practice is strictly observed and insisted upon by the Court, even if, as in the present case, no objection is taken on behalf of the parties who are interested in disproving the accusations." In the case of Ghulam Shabbir v. Nur Begum and others PLD 1977 S C 75 the decision in Bal Gangadhar Tailak and others v. Shrinivas Pandi and others A I R 1915 Privy Council 7 was approve holding that "in pleadings general allegations, however strong may be the words in which they are stated, are insufficient event amount to an averment of fraud of which any Court ought to take notice. In this case the vague allegations taken by the defendant in her written statement could have resulted in prejudice to the plaintiff at the trial." As regards the form of the suit and the necessity of seeking cancellation of the registered deed, the two decisions of this Court which are relevant are those of Shamshad Ali Shah and others V Syed Hassan Shah and others P L D 1964 S C 143 and that of Mst Hamida Begum v. Mst. Murad Begum and others P L D 1975 S C

624. In the case of Shamshad Ali Shah, the decision of Privy Council in the case of Ramchandra Jivaji Kanago and another v. Laxman Shrinivas Naik and another A I R 1945 P C 54 was quoted with approval that "if the deed of gift is a void transaction no question of cancelling, or setting it aside, would arise, but if it is only a voidable transaction, that is, a transaction valid until rescinded, then the necessity to se it aside is obvious before possession of the property can be claimed. In the case of Hamida Begum, the following observations relevant to the case were made:‑ "At the same time, it is also clear that a plaintiff, claiming through or as a successor‑in‑interest of, a party to the instrument is in the same position as the principal, and would be obliged to have the instrument set aside if it constitutes an impediment in the way of the relief sought by him. Sajjad Ali v.. Muhammad Zulfiqar Ahmed Khan 83 PR 1916 Vithu v. Devtdas A I R 1918 Nag. 20; Kunjilal v. Chandar Singh A I R 1921 Nag. 74 and Ganapathi Aiyar v. Sivamalai Goundan I L R 36 Mad.

575. In the present case the appellant has no other right or locus standi except as a successor‑in‑ interest of her father Sh. Mehar Din, and she must, therefore, ask for avoidance of the two instruments in question before she can succeed to the property in dispute. From the language of the Article itself, it is clear that it will not apply when the cancellation of an instrument is not an essential part of the plaintiff's relief. An obvious case of this kind would be where the deed or instrument is ab initio null and void, in which case it can be treated as a nullity without having to be cancelled or set aside. If on the other hand, the instrument is only void-able, then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of the plaintiff. It is perhaps not possible to enumerate exhaustively the circumstances which would render an instrument null and void, but it is at least clear that if the person who executes the document had no authority in law to do so, or if he had only a conditional authority to dispose of property, and the conditions under which authority could be exercised were not fulfilled, then the instrument could be regarded as null and void. Similarly, if the instrument is executed by a person suffering under a legal disability at the time of its execution, say by reason of minority, unsoundness of mind etc. the document would be null and void. If, however, the instrument is executed by a person competent to do so, but it is alleged that he was forced or persuaded to execute the same under coercion fraud, misrepresentation or undue influence, then it would be a void-able instrument in accordance with the principles embodied in sections 19 and 19‑A of 'the Contract Act. The instrument would remain operative as long as it was not set aside by a competent Court. As the grounds on which the plaintiff sought to avoid the document were not specifically pleaded as required under the law, he had on the facts stated, to seek cancellation of the document. The facts fully brought out in evidence are that Sahib Noor was the wife of Ghulam Hussain, that they were issueless and that the health of Ghulam Hussain was in diffferent. In lieu of dower by registered deed. he transferred the property in favour of his wife. There was no averment from any quarters that the dower had been paid otherwise. The document by which the transfer was evidenced, was got registered and the transaction evidenced by the registered deed was incorporated in the Revenue record during the lifetime of Ghulam Hussain. In this background on the vague allegations of the plaintiff respondent who was not a party to these transactions, it could not be thrown out. The concurrent finding of the Courts does not take full view of the nature of the pleadings of the parties, the law applicable to it and the evidence required to prove what the plaintiff. sought to establish. This appeal is allowed with costs and the suit filed by the respondent stands dismissed. M.B.A./S‑171/S Appeal allowed.