PLJ 2010 SC 530
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Muhammad Akhtar Sahbbir &
Syed Sakhi Hussain Bukhari, JJ.
Mst. RASHEEDA BIBI & others--Appellants
versus
MUKHTAR AHMAD & others--Respondents
Civil Appeal No. 1448 of 2007, decided on 4.6.2008.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 1.3.2002 passed in C.R. No. 2-D of 1991).
Muhammadan Law--
----Clause 149--Gift-deed--Validity--Pardanasheen ladies--Suit for declaration challenging the registered gift deeds being a fraudulent and collusive transaction--Suit was dismissed by Courts below--Assailed--Held: Clause 149 of Muhammadan Law provided three essentials of a gift, if these conditions are complied with, the gift is valid--All the four donors in instant case/plaintiffs were "Simple, villagers, pardanasheen ladies" and according to the custom had never appeared in public and in such like case, very heavy burden lays on donees that a valid gift has been made in their favour by such ladies--Failure of donees to discharge such burden would be a proof that the gift was not made in their favour. [P. 535] A
1999 SCMR 1049, ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 1--No evidence to establish that under the gifts the possession of the property has been transferred in favour of the defendant--As no relevant and legal issues have been framed to prove the validity of the gift by performing the three requirements of law--Held: For non-framing of issues, the parties could not properly adduce the evidence--Court was bound to frame issues correctly primarily on pleadings of the parties, because the issues framed by the Court correctly reflect the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the party also knows on what fact the evidence should be led. [Pp. 536 & 537] B & C
1997 SCMR 1849; 2001 SCMR 772 & PLD
1961
Action or Inaction--
----Action or inaction" on the part of the Court cannot prejudice a party to litigation and the failure of Courts below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity--Case remanded to trial Court, for fresh decision after framing additional relevant issues. [P. 538] D
1997 SCMR 1849, 2001 SCMR 772 & PLD
1961
Syed Samar Hussain, ASC for Appellants.
Raja Muhammad Bashir, Sr. ASC and Mr. Mehr Khan Malik, AOR for Respondents.
Date of hearing: 4.6.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This appeal, by leave of the Court, is directed against the judgment dated 01.03.2002 passed by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No. 2-D of 1991.
2. The facts giving rise to the present appeal are to the effect that plaintiffs Mst. Rasheeda Bibi, Mst. Sakina Bibi and Mst. Aziza Bibi (daughters) and Mst. Bibi (Widow) of Ghulam Muhammad, Residents of Chak No.86/Fateh, Tehsil Hasilpur, District Bahawalpur, instituted a suit for declaration with regard to the property situated in Khata Nos. 14, 16, 19 of the said village challenging the registered gift deeds (Ex.D-I and Ex.D-II) in favour of Muhammad Shafi, predecessor-in-interest of the respondents being a fraudulent and collusive transaction, ineffective qua their rights and restraining the defendants from interfering with their proprietary and possessory rights over the property in dispute. The suit had been contested by the defendants who filed his written statement raising some preliminary objections and denying the averments of the plaint. From the factual controversies appearing on the pleadings of the parties, the learned trial Court framed various issues which are as under:--
(i) Whether the plaintiffs have locus standi to bring the suit?
(ii) Whether the plaintiffs are estopped by conduct from bringing the suit?
(iii) Whether the present suit is not maintainable in its present form?
(iv) Whether the suit is bad for misjoinder of causes of action?
(v) Whether the plaintiffs are owners of the suit land and `Tamlik' or `Hiba' registered on 19.05.1977 are based upon fraud, undue influence and coercion, if so, its effect?
(vi) Whether the Court has no jurisdiction to try the suit of defendants?
(vii) Whether the defendants are estopped by conduct from brining the suit?
(viii) Whether the defendants are owners in possession of suit land?
(ix) Whether Ghulam Muhammad was benami for the defendants?
(x) Whether the suit of defendants is not correctly valued for the purposes of Court fee and jurisdiction, if so, its correct valuation?
(xi) Relief.
3. After recording, appreciating the evidence of the parties, pro and contra, the learned trial Court dismissed the suit, vide judgment and decree dated 28.05.1989. Feeling aggrieved, the plaintiffs preferred an appeal which came up for hearing before the Appellate Court/Additional District Judge, Bahawalpur, who vide judgment dated 04.09.1990, dismissed the appeal. Both the judgments of the Courts below were assailed through a revision petition before the High Court which too met with the same fate, vide the impugned judgment and decree, the validity of which has been challenged through C.P. No. 2212-L of 2002, out of which the instant appeal has arisen out.
4. The learned counsel for the appellants argued that the appellants had challenged the validity of the gift deeds (`Tamliq' and `Hiba') raising objections on non-performance of three requirements of a valid gift. Further contended that the trial Court has not framed proper issues in accordance with the pleadings of plaintiffs regarding performance of three requirements of a valid gift; that the appellants had not been provided the opportunity to produce evidence on proper and legal issues; that all the three Courts below have not adverted to this aspect of the case. The learned counsel vehemently stressed that the plaintiffs were "simple, illiterate and Pardanasheen ladies" and they have denied the transfer of property through the gift deeds and the onus to prove the transfer of property through these disputed deeds shifted on the beneficiary-defendant/predecessor-in-interest of the respondents to discharge the responsibility of establishing a valid gift in his favour. The Courts below have not taken into consideration this legal and factual aspect of the case at all.
5. While on the other hand, the learned ASC for the respondents controverted the arguments of the counsel for the appellants, contending that the execution of the gift deeds (`Tamliq' and `Hiba') has been admitted by the PWs and that the admitted facts need not to be proved. He further contended that under the said gift deeds, the possession of the property was delivered to the defendant/vendee and by producing evidence, the defendant-respondents have established their case.
6. We have heard the arguments advanced by the learned counsel for the parties and perused the record with their kind assistance.
7. The plaintiffs namely Mst. Rasheeda, Mst. Sakina and Mst. Aziza were daughters of Ghulam Muhammad, step sisters of Muhammad Shafi defendant while Mst. Bibi (now deceased) was mother of Muhammad Shafi defendant with whom Ghulam Muhammad father of the Plaintiffs No. 1 to 3 had contracted marriage while Muhammad Shafi was her son from her wedlock with her previous husband. Muhammad Yousuf and Muhammad Ibrahim are the real brothers of Mst. Rasheeda and two other plaintiffs. Three daughters and two sons of Ghulam Muhammad were born from the womb of Mst. Bibi.
8. The plaintiffs in their plaint asserted that they had not declared their intention to gift their share of property in favour of Muhammad Shafi, defendant, nor delivered the possession to him under these gift deeds. They asserted that the whole transaction was the result of fraud, fabrication and collusiveness. There is no cavil to the fact that all the four plaintiffs were the "illiterate, simpleton, villager ladies". Mst. Sakina, one of the plaintiffs, who appeared in Court as PW-3 very clearly stated that Muhammad Shafi was their step brother and tenant of their land and he misstated/informed them that Muhammad Yousuf had got transferred the whole property in his name and a suit is to be filed against him and he brought them in the Court premises and got their thumb impressions on the papers and did not inform them about the real facts.
9. The mere admission of making thumb impressions or appearing before the Sub-Registrar is not sufficient to infer that the donors/plaintiffs have declared their intention to transfer their share of property (in dispute) which they have obtained as legal heirs of Ghulam Muhammad, their father and husband, respectively, in favour of the defendant. Moreover, mere registration of a document in itself is not under the law proof of its execution by a person by whom it was alleged to have been executed, if any of the parties in litigation had denied its execution by the said person. In the case in hand, the executants themselves disputed the execution of the document. Therefore, the person claiming the execution of such document is required under the law to prove its execution by producing evidence that it was in fact executed. Reliance in this behalf can be placed on the case of Muhammad Sharif Uppal v. Akbar Hussain (PLD 1990 Lahore 229).
10. The Courts below have observed that the documents Ex.D-I and Ex.D-II (`Hiba' and `Tamlik') had been validly executed by the executant on the basis of admission of Mst. Sakina Bibi. Abdul Majeed PW-1 (one of the marginal witnesses) who denied the execution of gift deeds has categorically deposed that he was told to sign on the `Abtal Nama' and he hurriedly signed the same because he had to appear in the Court. He further stated that in his presence the plaintiffs had not gifted the property through `Hiba' or `Tamlik'. He without reading the documents had signed the same. Similarly Muhammad Ashraf (DW-3), the alleged `scribe' of the documents, deposed in his statement that he did not personally know the executant/the donors, nor he demanded the national identity cards from the executant nor entered N.I.C. numbers on these writings. The same is the statement of DW-4 who stated that the purchaser of the stamp paper Mst. Sakina Bibi was not personally known to him neither she was identified before him by any body.
11. The execution or appearance of the party before the Registrar/Sub-Registrar is not conclusive proof of the execution of gift. In such a case, the Court will have an overall view of all the attending circumstances of transaction and no presumption could be attached to such type of document. Reliance can be placed on the cases of Qazi Altaf Hussain & another v. Ishfaq Hussain (NLR 1981 SCJ 451) and Muhammad Khan v. Mst. Rasul Bibi (PLD 2003 SC 676). There is no doubt that the certificate of registration or endorsement on the registered document carries a presumption but no such presumption can be drawn therefrom that such person has really executed the same and it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same. The certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn therefrom. This view is supported by the dictum laid down in the cases of Gopal Das and others v. Sri Thakurji & others (AIR 1943 PC 83) and Siraj Din v. Mst. Jamilan & another (PLD 1997 Lahore 633). In the latter case, a Division Bench of the Lahore High Court observed that the endorsement made by the Registrar on questioned document would not prove that such document was executed by donor in favour of donee; contents of gift deed and constituents of gift must be proved in consonance with the provisions of "Qanun-e-Shahadat" and rules of gifts under Muhammadan Law.
12. Clause 149 of Muhammadan Law provided three essentials of a gift which are reproduced below:--
"149. The three essentials of a gift.--It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee."
If these conditions are complied with, the gift is valid. All the four donors in this case/plaintiffs were "simple, villagers, Pardanasheen ladies" and according to the custom had never appeared in public and in such like case, very heavy burden lays on donees that a valid gift has been made in their favour by such ladies. Failure of donees to discharge such burden would be a proof that the gift was not made in their favour. Reference can be given to the case of P.M. Amer v. Qabool Muhammad Shah & 4 others (1999 SCMR 1049). Moreover, all the donors had taken the plea of fraud and one of them Mst. Sakina Bibi stated that they were made to thumb mark on the documents which were presented to them to be in another different connection and question never arose of their making gift in favour of the defendant. All the donors ladies were not identified by such a person who advised or protected their interest as against the alienation through gift which deprived them of their valuable proprietary rights. The donors being ladies and Muslim females needed full protection and safeguard in the manner provided by Islam and the relevant law insofar as their property was concerned. Reliance in this behalf can be placed on the cases of Mst. Badshah Begum v. Ghulam Rasul & 4 others (PLD 1991 SC 1140) and Janat Bibi v. Sikandar Ali & others (PLD 1990 SC 642).
13. As referred above in the preceding paragraph, there are three requirements of a valid Muhammadan gift. The defendant Muhammad Shafi, predecessor-in-interest of the present respondents was and now the respondents are the beneficiary of the gift. Since the plaintiff-ladies had denied the execution of the gift by transferring their property in favour of their step brother while they are married and having their own children, real brothers, the question arises why they gifted their property in favour of their step brother depriving the real ones? It was the legal and bounden duty of the respondents to establish by producing sufficient evidence of the three requirements i.e. declaration, acceptance and delivery of possession under the gift by the donors. From perusal of the whole evidence, we find that no evidence has been produced by the respondents to establish that the donors have been provided independent advice before execution of the gift deeds. There is not an iota of evidence to prove the declaration made by the donors showing their intention to transfer the property in favour of Muhammad Shafi through the gift deeds, despite the fact that they have pleaded that the transaction is based on fraud and mis-representation as is evident from Paragraph No. 4 (a), (c) and (d) of plaint. They stated that they had never declared their intention to make gift of the property in favour of the defendant and further asserted that they are married having their own children and not in a position to gift their property in favour of the defendant. They also denied the delivery of possession of the property under the gift in favour of the defendant. The Superior Courts have laid down the points for taking into consideration by the Courts with regard to gift deed executed by the "Pardanasheen" ladies. Some very important points to be considered by the Courts are as under:--
(i) Whether the plaintiff had any friendly advice before executing the deed and by a person whom the Court considers as being genuinely interested in her welfare?
(ii) Whether the document was explained to her and whether she really had the capacity to understand its consequences?
(iii) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?
(iv) Whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?
14. The trial Court has not framed the relevant legal issues to determine the genuineness of gift nor the First Appellate Court or the High Court has adverted to this legal aspect of the case and has not examined the evidence produced by the parties on such touchstone. There is no evidence on the file by the defendant establishing the three requirements of a valid Muhammadan gift and we have no hesitation to observe that the evidence produced by the donees fell short of the required standard of proof in a land dispute involving huge property. Mere fact that Muhammad Shafi, defendant was step brother of the three plaintiffs and son of the fourth, is not sufficient to believe or infer that the ladies-plaintiffs had knowingly/with free mind executed the gift deeds of their valuable landed property and any such transaction lacking any of the three requirements would be invalid and void. Reference in this context can be placed on the cases of Hakim Ali & three others v. Sheikh Muhammad Mazhar Ali (1994 SCMR 1939) and Mst. Azra Sultana v. Mst. Ashran Bibi (2000 PSC 107). The High Court of Peshawar has also followed the same principle in the case of Syed Mustafa Kamal Shah etc v. Syed Feroz Shah etc. (PLJ 1991 Peshawar 87).
15. There is no evidence on the file to establish that under the gifts the possession of property has been transferred in favour of the defendant. As no relevant and legal issues have been framed to prove the validity of the gift by performing the three requirements of law, we find that for non-framing of issues, the parties could not properly adduce the evidence. The trial Court was under the legal obligation to frame factual, legal and relevant issues arising out of the pleadings of the parties and hence it failed to perform its duty. From scrutiny of the judgment, it is clear that the parties have been prejudiced for not framing the issues correctly. That's why they failed to lead evidence properly. It is the duty of the Court to frame correct issues but the parties were also under duty to make application for amendment of issues. Nevertheless, the Court was bound to frame issues correctly primarily on pleadings of the parties, because the issues framed by the Court correctly reflect the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the party also knows on what fact the evidence should be led. Reference is made to the case of Roazi Khan & others v. Nasir & others (1997 SCMR 1849), Mst. Sughran Bibi & others v. Mst. Jameela Begum & others (2001 SCMR 772). In the case of Ananta Kumar Majumdar & others v. Gopal Chandra Majumdar & others (PLD 1961 Dacca 65), it has been held that plea that framing of a particular issue was not pressed by party affected is no ground for condoning failure to frame necessary issue and the mandate of Order XIV, Rule 1 CPC reveals that it is incumbent upon the Court to frame issues in the light of the controversies raised in the pleadings and after examination of the parties, if necessary. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by recording evidence on all material points. It is the settled principle of law that "action or inaction" on the part of the Court cannot prejudice a party to litigation and the failure of Courts below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity. Reference can also be made to the cases of Mst. Hafizan v. Muhammad Yasin & 2 others (1985 CLC 1448), Muhammad Khalid & another v. Muhammad Iqbal & another (2005 CLC 970), Barkat Bibi & others v. Mst. Gaman Bibi & others (2005 MLD 280) and Azizur Rehman v. L.D.A. (1985 CLC 2028), Muhammad Mansha & others v. Sabir Ali (1999 SCMR 1782), Muhammad Iqbal through legal heirs & others v. Khan Muhammad through legal heirs and others (PLD 1999 SC 35), the State v. Asif Ali (1997 SCMR 209), Ghulam Haider & others v. Mst. Raj Bharri & others (PLD 1988 SC 20) and Fateh Khan v. Boze Mir (PLD 1991 SC 782). In the case in hand, we find that proper legal issues have not been framed by the trial Court fully reflecting pleadings of the parties and this important aspect escaped notice of the Courts below.
16. Where the Courts below have missed the above discussed important features and legal aspects from taking into consideration, the Supreme Court as Court of last appeal would be under legal duty to interfere and correct the irregularity and illegality committed by the Courts below. We are surprised to note that the lower Courts and the High Court had made their observations declaring the deeds validly executed without considering the above referred lacunas in the case.
17. In view of the above discussion and the pointed out infirmities, illegalities in the judgments of the three Courts, we allow the appeal, set aside the judgments of the three Courts namely the High Court, First Appellate Court and the trial Court and remand the case to the trial Court/Senior Civil Judge, Hasilpur, for fresh decision after framing additional relevant issues taking into consideration the observations of this Court and to provide opportunities to the parties to produce evidence, within one year from the date of receipt of the copy of order of this Court.
These are the reasons for our Short Order of even date whereby this appeal was allowed.
(M.S.A.) Appeal allowed.