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Petitioner: Haroon Zia Malik VS Respondent: Mst. Fariha Razzak
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Muhammad Faisal Kamal Alam Title: Haroon Zia Malik vs Mst. Fariha Razzak Case No.: (1) High Court Appeal No.47 of 2013 (2) High Court Appeal No.48 of 2013 Date of Judgment:2017-11-21 Reported As: 2017 SHC 351 Result: Appeal dismissed
Judgment Muhammad Faisal Kamal Alam, J: These two Appeals have been preferred by Appellant, calling in question the Judgment and Decree dated 28.01.2013 and 20.02.2013 respectively, whereby, the suit of Respondent No.1 decreed while Suit No.1461 of 2000 filed by present Appellant was dismissed. Since parties litigated in cross suit, therefore, it is necessary to describe them individually. Suit No.359 of 1996 was earlier in time filed by present Respondent No.1 (Mst. Fariha Razzak) against the present Appellant, primarily seeking a declaration of ownership in his favour (Appellant) vis--vis the property being House No.21, Khayaban-e-Hilal, Phase-6, DHA, Karachi, (the subject property), on the basis of a Gift Deed (purported) dated 08.02.1992, besides seeking cancellation of afore referred Oral Gift, whereas, the present Appellant subsequently filed a Suit No.1461 of 2000 against the present Respondent No.1, who was his former wife and also impleading latter?s father, namely, Muhammad Abdul Razzaq, Rais Hyder, Shazia Razzaq, Omer Razzaq, Mrs. Nishat Afza and Abbas Ali as Respondents No.2 to 7 respectively. Rais Hyder and Shazia Razzaq were / are contesting witnesses of the afore mentioned Gift Deed in question; whereas, Omer Razzaq is the former brother in law of present Appellant and Defendant No.7 was a Notary Public and has stamped the said Gift Deed in question. 2. The other relevant facts are that the present Appellant and Respondent No.1 got married on 08.01.1975 and were divorced on 21.03.1995. Out of the said wedlock three sons were born. The Gift Deed in question has said to have been made on 08.02.1992. Respond ent No.1 filed the above Suit on 24.04.1996, whereas, Appellant brought his action in the shape of aforementioned lis on 26.10.2000. Consolidated Issues were settled on 17.03.2000. Parties to the proceedings led the evidence by examining number of witnesses. Consolidated Issues framed were subsequently categorized and broadly falling into three categories; "9. Having considered the issues, it appears to me that they fall into three main categories: (a) Whether the suit property was gifted to Mst. Fariha by Mr. Haroon? This comprises issue Nos.1, 2, 4, 7, 8 and 10 and can (by reason of the number of issues devoted to it) be regarded as the main point in dispute. (b) Whether Suit
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No.1461/2000 is barred by limitation? This comprises issue No.5. (c) Whether the suit property was acquired and the house thereon built with funds contributed by Mst. Fariha and her father, or Mr. Haroon? This comprises issue No.3. As will become apparent, the remaining issues need not be decided (except of course, issue No.12, the final relief). I take up the issues in the foregoing order. Before proceeding further, I may note that learned counsel for Mr. Haroon filed written submissions, and learned counsel for both disputants also relied upon certain case law, which I have gone through. The case law shall be considered below if and as and to the extent necessary and appropriate." 3. Since cross suits were filed by the Parties, thus, in order to avoid any confusion about description of parties to the proceeding, the Plaintiff of Suit No.1461 of 2000 (Haroon Zia Malik) who is also present Appellants of these Appeals will be referred to as the "Objector? and Plaintiff of Suit No.359 of 1996 and other Defendants of Suit No.1461 of 2000 can be called Respondents, as they are defending the above Gift in question. 4. The Issues falling in category "C" was decided against Respondents, particularly, the present Respondent No.1 (Mst. Fariha Razzaq). This finding of the learned single Judge is with regard to the stance of said Respondent that the aforementioned property in question, which is the subject matter of the gift was purchased from the funds of Respondent No.1 and her father/Respondent No.2. However , no cross objection is preferred in present Appeals on this very finding of the learned Trial Court. Thus, the Issue relating to Benami / Ostensible ownership of Respondent No.1 in relation to the subject property has attained finality . 5. In view of the above, points of determination in the present Appeals are primar ily the Issues framed under the heading of category " A" and " B" which are already reproduced hereinabove. (i) whether the document titled Oral Gift dated 01.2.1992 (Exhibit-13/2 is a forged and fabricated document; (ii) whether the claimant has gifted the subject property to Respondent No.1 (Fariha Razzak) ; (iii) subsequent Suit No.1461 of 2000 filed by present Claimant (Haroon Zia Malik) is barred by law; (iv) whether the claimant has suffered any damage or mental distress at the hands of Respondents for which he is entitled to damages; (v) Is the Claimant is entitled to be put in physical possession of the subject property-House No.21 Khayaban-e- Hilal, Phase-VI, DHA, Karachi. 6. The crux of the arguments advanced by Mr. Mubarak Ahmed, the learned counsel representing the Objector (Appellant) is that the Gift Deed in question is a forged document. It was further contended that the document is forged because the relationship between Objector (Appellant) and Respondent No.1 (Fariha Razzaq) was always remained estranged and there was no occasion when the said Objector / Appellant could have gifted the subject House Property to present Respondent No.1 (former wife of Appellant) . With this background and in this contex t it was further argued that even the Gift in question is hit by Section 122 of the Property Law; relating to the Gift. Secondly , since the document is a Gift Deed, it has to be witnessed by at least one male and two female witnesses, or, two male witnesses, in terms of Article 79 of the Evidence Law and admittedly the said Gift Deed in question has not been attested as required, but only attesting witness is one male Raees Haider , Respondent No.3 and Mst. Shazia Razzaq, who is the real sister of Respondent No.1, thus impugned Gift deed has no legal value. The learned counsel argues that evidence of Mst. Shazia Razzaq has to be discarded as she is interested party and to fortify his arguments, he has relied upon the above mentioned case law and excerpt from the book authored by Mr. Khalid Raza, containing a decision about a dispute between the fourth Caliph Hazrat Ali (R.A.) and one Jew. The learned counsel has challenged the authenticity of the Gift from various angles. It is further argued that since the Gif Deed (Exhibit-13/2) contains the word `do hereby ?, which means that it was to be happened in future, whereas, such type of document should be in the form of `in praesenti, thus, this type of instrument should have been registered under Section 17 of the Registration Act, and admittedly since it is not, therefore, this non- registration is fatal to the case of Respondents, particularly , Respondent No.1-(the donee), in terms of Section 49 of the Registration Act, hence no right and interest can be claimed under the said gift. 7. The learned counsel for the Appellant has also relied upon reported Judgments, (supra) , relating to the additional evidence. According to Appellant, one of the witnesses of impugned Gift Deed is Raees Haider (present Respondent No.3) , who though stated to be a friend of present Appellant, but in fact he was an employee of brother
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of Respondent No.1, namely, Umar Razzaq-who has been impleaded as Respondent No.5 in the present Appeal. To substantiate this fact, the learned counsel has filed record of some other Constitutional Petition, which has been preferred by the Security Company of said Respondent No.5 through the said Raees Haider. 8. The learned counsel for the Appellant argued so is mentioned as one of the grounds in appeal, that the learned Single Judge erred in believing that Abbas Ali the present Respondent No.7, and Defendant No.7 in Suit No.1461 of 2000, who was a Notary Public, that the latter had in fact attested the docum ents. Per learned Advocate, the evidence of said Notary Public-Abbas Ali, who was the Claimant / Appellant's second witness had deposed in another Criminal Case between the partie s hereto, a private Complaint No.842 of 2008, that the said document of the impugned Gift was not attested by him. Since there is an apparent contradiction in the testimony of said Abbas Ali (Ex-14, Page-1521 of the Paper Book Part-2 of 3), therefore, the learned counsel for Appellant/Claimant argues that his evidence should have been discarded, but instead the Trial Court gave an unnecessary weightage to the said evidence. 9. The arguments of Appellant's counsel have been controverted by Mr. Khalid Javed, the learned counsel representing the contesting Respondents. Like Appellant's side, the Respondents have also submitted their Written Synopsis, which is a part of the record. The main line of argument that Respondents have adopted, is that the impugned Judgment has been handed down after proper appraisal of the evidence. The learned counsel for the Respondents have read and referred to various portions of testimonies of the parties and their witnesses. It has been argued on behalf of Respondents that none of the provisions of the Property Law and of Registration Act are applicable to the subject Gift, as the document itself says that it is a Deed of Declaration of Oral Gift and not a Gift Deed. Per learned counsel for Respondents, the document is in fact is a confirmation of Oral Gift, which in jurisprudence parlance is called `Hiba' and not a Gift Deed as mentioned in Section 122 of the Property Law, as argued by Appellant's side. He has relied upon the research material as well as case law in support of his arguments that firstly such type of document is not required to be witnessed as required under Article 17 read with Section 79 of the Evidence Law, or compulsory registerable. He has relied on the research material / from the Book-`The Principle of Muhammadan Law' reprint edition 2004 (supra); in Chapter-15 of this Book `Hiba' has been explained in detail. It was further argued that even if it is presumed, as alleged by the Appellant's side, that the attesting witnesses, above named Raees Haider and Shazia Razzaq, present Respondents No.3 and 4 respectively, were the interested witnesses, even then their depositions / evidence cannot be discarded. In support of this plea, he has relied upon the case law already mentioned in the opening part of this Decision. 10. Arguments of learned counsel representing the parties have taken into the account and with their assistance record and particularly evidence have been perused and considered. 11. The first question which should be decided in this matter is that whether docum ents filed by Appellant's counsel under his Statement dated 5th December , 2014 can be considered. These documents are the record of another case in the shape of Constitutional Petition No.S-476 of 2014 filed by Umar Razzaq Enterprises (Private) Limited, a Security Management Services Company against the widow of its erstwhile employee. Record of this Constitutional Petition has been placed on record by Mr. Mubarak Ahmed Advocate (for Appellant), to show that the said Petition has been filed by the above named witness Raees Haider , who is shown to be a Project Manager / employee of the said Umar Razzaq Enterprises, which is a Company owned by brother of present Respondent No.1, namely , Umar Razzaq. Thus, the Appellant's side has raised a further ground for discarding the evidence of one of the Respondent No.1's witnesses, the said Raees Haider , on the ground that he belied on oath when he stated that he was not an employment either of father or brother of the Respondent-Fariha Razzaq (Donee of the impugned Gift) . 12. The first Judgment of Commissioner Multan Division by Hon'ble Supreme Court, inter alia, on the point of additional evidence has been carefully examined. Admittedly in this case, the dispute between the parties started by filing a Writ Petition in the learned Lahore High Court. With this background and in this context, the learned Apex Court has held that additional documentary evidence should have been considered if the same is authentic and consistent with the pleadings of the petitioner (of that case). The ratio of this case is that such additional evidence facilitates resolution of controversy between the litigating parties, all the more when the evidence is admissible on record. This precedent in our considered view is clearly distinguishable from the facts of present
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case. It is a settled Rule, generally in a civil proceeding of the nature, that only that part of testimony/evidence is considered which has come on record during an evidence proceeding, particularly, those documents which are confronted to the witnesses and properly exhibited. Secondly, the record of the above referred Constitutional Petition is undisputedly of year 2014, whereas, the evidence of said Raees Haider was recorded way back on 30.05.2001. In his deposition, he has specifically stated he is a friend of the present Appellant (Flaroon Zia Malik) and in his cross-examination, he could not be falsified when he further clarified that he came to know the Appellant through an old friend Mr. Mujeeb. Thirdly, there is a long period of 13 years between the evidence of above named Raees Haider and the present record produced by Objector/Appellant about the employment with the afore mentioned Company of brother of contesting Respondent No.1. There is no legal bar that if in the intervening period, the said Raees Haider has joined the said Company as its Project Manager-the designation mentioned in the above mentioned Constitutional Petition No. S-476 of 2014. The present record upon which the Appellant side has placed much reliance does not established the plea of the Appellant; however, if the above record was of around same period when the evidence of said Raees Haider was recorded, only then weightage could have been attached to the same. Fourthly, there is a specific procedure mentioned in CPC for production and consideration of the additional evidence at the appellate stage; Order XL1 Rules 27 to 29, which admittedly has not been resorted to, for the simple reason, that the record about the afore named Company which has been filed now under the Statement was never produced before the Trial Court; thus, the same cannot be considered now, in view of the bar contained in Rule 27 ibid. Therefore, the plea of additional evidence of the Appellant in view of the above discussion is misconceived in nature and hence rejected. 13. The record of the evidence has been analyzed to see whether the learned Trial Court has correctly done the appraisal or not. 14. It has been admitted by Objector (Haroon Zia Malik) that first time he challenged the impugned Gift by way of his Suit No.1461 of 2000 filed in this Court. It is also an undisputed fact that the Suit filed by the Respondent No.1 (Donee) prior in time and filed in 1996 in which the factum of gift has been specifically mentioned. But even before that the Objector (Appellant) filed a Suit No.86 of 1996 in the Court of IX Civil and Family Judge, Karachi (South) and the plaint has been exhibited as D-1/7 with the testimony of said Objector, at Page-1231 of Part-II of the Paper Book. In this Suit the present Objector has claimed that even on persuasion of family members of Respondent No.1, who have been arrayed as Respondents No.2 to 6, the Objector was ready to revoke the Divorce Deed. It has been further pleaded by Objector that the latter allowed the Respondent No.1 to continue reside in the subject property on the basis of a Fatwa (Religious Decree) that the wife should complete her Iddat period at the place where she has been divorced. The cause of action as mentioned in Paragraph-13 of plaint of this earlier suit and the first cause of action as per the present Objector is that when the Revocation Deed to revoke the divorce was not signed and hence since Divorce Deed became final, therefore, the present Respondent No.1 (Donee) should have left the subject property . However , in above mentioned subsequent Suit filed in this Court an altogether different version has been pleaded. It has been pleaded that on 25.04.1996 the Respondent No.1 in connivance of other family members, who are Respondents in present appeal, forcibly dispossessed the present Appellant / Objector and his father (Mr. Ziauddin Malik) . The other undisputed fact is that the divorce was pronounced on 31.03.1995 and the present Objector / Appellant filed his first Civil Suit for Possession of the subject property on 10.02.1996, that is, after 11 months and it is not difficult to conclude that in all this period it is the present Respondent No.1 (Donee), Fariha Razzaq and her sons were residing in the subject property; the subject matter of the Gift. 15. In his cross-examination, the Objector / present Appellant has stated that he divorced the Respondent No.1 (his erstwhile wife) on 25.03.1995, whereas, the Gift Deed, subject matter of the suit proceeding is of 08.02.1992. Though he denied the suggestion that he ever had declared the gift in favour of the Respondent No.1 (Donee) which was duly accepted by her, but at the same time he answered in Affirmative to a suggestion that he never sought dispossession of the Respondent No.1 from the Suit property in any proceeding. He further acknowledged that the said Respondent No.1 (Fariha Razzaq) along with the three sons of Appellant and Respondent No.1 are residing in the subject property ever since. He has further admitted in his cross-examination that for the first time he
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has claimed damages and mesne profits in his subsequent proceeding instituted in the shape of Suit No.1461 of 2000. 16. The evidence of Shazia Razzaq is quite conclusive. She has specifically stated on oath that on 08.02.1992, that is, the date mentioned on the impugned gift document, the Claimant / present Appellant has brought the said declaration of Oral Gift and on his request the said witness-Shazia Razzaq (sister of Donee Fariha Razzaq) signed the document. She further stated that other witness Raees Haider and her sister the Respondent No.1 and Ms. Aysha were also present there. She has further deposed that after the dispute started between the Objector / present Appellant and present Respondent No.1 (Donee), the former (present Appellant) extending threats to said witness-Shazia Razzaq for which a Complaint was also lodged in CPLC (Citizens Police Liaison Committee) . The said witness Shazia Razzaq was cross-e xamined in an interesting way. No question was put to her with regard to her afore mentioned deposition, which was material and goes to the root of the case. One of the questions put to the said Shazia Razzaq (witness and the present Respondent) is as follows_ "Q. Was any person other than Faria Raza, yourself, Aisha and Rais Hyder present at the time when the declaration was made and the document signed?" Her answer is that_ "A. In addition to the above, Mr. Haroon Zia Malik was present.", that is, the present Appellant. She was not further confronted with this reply; which goes against present Appellant. 17. The evidence of other attesting witness-Raees Haider is also very important. He corroborated the version of Shazia Razzaq about the factum of the gift and the date and place of signatures. No question was put to said witness-Raees Haider with regard to his evidence that it was present Appellant, who took the said witness-Raees Haider to the subject property where the present Respondent No.1, her sister Shazia Razzaq-the Respondent No.4 and one other lady Aysha were present. It was specifically deposed by said Raees Haider that he signed the Gift Deed in question after reading the same. On this account also he was not cross examined. To a question that the signature of Appellant has been forged by said Raees Haider , the latter (witness Raees Haider) , denied the same. It is a settled rule of evidence as also laid down in the reported case of Nur Jehan Begum (1991 SCMR Page- 2300 ), if a witness is not cross-examined in respect of the material portion of his eviden ce, then that part of the evidence is considered to be admitted, therefore, the above portion of the evidence adduced by Respondents is in fact admitted by the present Appellant. 18. Similarly , the evidence of one of the sons Fahad Haroon is also very direct on the fact; when he could not be shaken in his cross-examination and deposed that the fact about gifting of the subject property by present Appellant to present Respondent No.1 was disclosed by the Appellant / Objector himself to the above witness Fahad Haroon, who is the eldest son of Objector . 19. Evidence of Muhammad Abdul Razza q, the father of Respondent No.1 is also corroborated to the deposition of other witnesses. The scrutiny of cross-examination of this witness leads to the conclusion that the present Appellant failed to impeach the credibility of said witness Abdul Razzaq, particularly on the point of gifting of the subject property as well as estranged relationship. It was categorically denied by the witness-Mr .Abdul Razzaq, that in 1991, that is, the period roundabout when the impugned gift in question was made, the relationship between present Appellant and Donee / Respondent No.1 was not good. 20. Taking into the account the record of these Appeals and even reappraisal of the evidence at this Appellate stage, it is not difficult to hold that the learned Single Judge has correctly appraised the evidence of the parties while handing down his findings. So the answer to the First Point of determination is that the impugned document, that is, the Deed of Declaration of Oral Gift (Exhibit 13/2, available at Page-1885 of Part-II of the Paper Book) is not a forged and fabricated document, but in fact the same was duly signed by the present Appellant / Objector (Haroon Zia Malik) as donor , by virtue of which the latter gifted the subject property to the Respondent No.1 (Fariha Razzaq) who was admittedly at that relevant time was his (Objector's) wife. 21. Now adverting to another ground of the present Appeals, that the learned single Judge erred in believing the evidence of Notary Public- Abbas Ali. Paragraphs-15, 16 and 17 of the impugned Judgment contain a discussion
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about the evidence of Notary public-Abbas Ali, who though, admittedly appeared as a witness of present Appellant, but during the evidence, he turned hostile. The learned single Judge has given a very categoric finding that the evidence of said Notary Public lacks credibility; thus the arguments of Appellant's learned counsel in this regard is devoid of any force. The learned Judge has held that the afore said impugned gift document was notarized by the above mentioned Abbas Ali, considering the established practice prevalent at that relevant time, which was never disputed by the Appellant. The other reason for giving a positive finding on the impugned gift document vis--vis its notarization, also does not warrant any interference in this Appeal, as again it is more of a matter of common sense, keeping in view the evidence that has come on record, that there was no occasion for the Donee / Responded No.1 that to search any Notary Public whose license lapsed at that relevant time, when the said gift document in question was prepared and signed. 22. Once it has been held that Exhibit 13/2, the Deed of Declaration of Oral Gift is neither a concocted document nor the signatures thereon of the present Appellants were forged, the other legal arguments raised by the learned counsel for the Appellants? side will now be considered. Much emphasis has been laid from the Appellants? side on the term `hereby used in Paragraph-5 of this document?, to show that it should be in presentia. But Paragraph-4 of the same document (gift) expressly states that "I declare that from this day the date my oral gift I have relinquished all of my rights, title, interests..."; it means that the intention of the Donor who is present Appellant was very clear on 08.02.1992 when the above subject property was gifted to Respondent No.1, that from the date of making of gift-08.2.1992, the Appellant divested himself of all the ownership rights and other interests incidental thereto vis--vis the subject property. Not only this, in Paragraph- 11 of this document, the present Appellant also acted as an indemnifier for the subject matter of the gift, viz. the house property. 23. Now the question is that whether the learned Trial Court has correctly held that the subject document is a…
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