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Petitioner: Dr. Obaid ur Rehman & others VS Respondent: Mrs. Neelofer Khalid & others
Court Name: Sindh High Court Judge(s): Adnan Iqbal Chaudhry, Syed Hassan Azhar Rizvi Title: Dr. Obaid ur Rehman & others vs Mrs. Neelofer Khalid & others Case No.: H.C.A. No. 185 of 2015 Date of Judgment:2019-04-23 Reported As: 2020 YLR 1783, 2019 SHC 110 Result: appeal disposed off
Judgment Adnan Iqbal Chaudhry J. - This appeal is from a judgment and decree dated 24-03-2015 passed by a learne d Single Judge of this Court whereby Suit No. 1733/2008 (Said Suit) filed by Muhammad Khalid (the plaintif f, husband and father of the Respondents 1 to 9) against his brothers, the Appellants (defendants 1 to 3) was decreed to the extent of prayers (i) and (ii) which prayed for a declaration that the registered Gift Deed dated 14- 02-1977 said have been executed by the plaintif f in favour of the defendants 1 to 3 (the Appellants) for his 50% share in the Suit Property , was a bogus document, and for cancellation of the same. 2. The subject matter of the Said Suit was House No.B/26, Block H, measuring 416 square yards, North Nazimabad, Karachi (the Suit Property?), which was initially held jointly in the names of Muhammad Khalid (the plaintiff) and his mother (Noor Jahan) vide a registered conveyance deed dated 09-04-1970. The Appellants are the brothers of Muhammad Khalid and the other sons of Noor Jahan (the mother). There was a fifth brother, namely Mustahibul Islam who had passed away before the Said Suit. Muhammad Khalid (the plaintif f) passed away on 06-05-2014 when the Said Suit was at the stage of arguments, and the Respondents 1 to 9 were brought on record as his legal heirs. 3. The facts are as follows. On 02-12-1974, the mother gifted her 50% share in the Suit Property to the Appellants vide a registered Gift Deed dated 02-12-1974, where after the Suit Property was held 50% by the Appellants and 50% by Muhammad Khalid. This Gift Deed dated 02-12-1974 is not in dispute between the parties. A photocopy of a certified copy of this Gift Deed dated 02-12-1974 is on the record as Exhibit DW 1/16 to which Muhammad Khalid is one of the attesting witnesses. 4. By another registered Gift Deed dated 14-02-1977, Muhammad Khalid (the plaintif f) is said to have gifted his 50% share in the Suit Property to his brothers, the Appellants (Obaidur Rehman, Habibur Rehman and Shafiqur Rehman). It is this Gift Deed dated 14-02-1977 that was disputed by Muhammad Khalid, who alleged that his signatures thereon were forged.
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5. From the it appears that a dispute between the legal heirs of the deceased brother, Mustahibul Islam on the one hand, and the other brothers i.e. Muhammad Khalid and the Appellants on the other hand, relating to partnership business of the said brothers and certain properties held by the brothers, which included the Suit Property as well, was referred to arbitration. An arbitration award was filed in this Court and registered as Suit No.649/2004. That arbitration award was being contested by Muhammad Khalid. 6. On 10-06-2008, Amtul Quddos, the widow of the deceased brother Mustahibul Islam, lodged FIR No.318/2008 as PS North Nazimabad against Muhammad Khalid and his sons, alleging that they had entered the Suit Property by force. On 18-06-2008, the Appellant No.1 (Obaidur Rehman) also made a complaint to the DSP North Nazimabad alleging that on 09-06-2008 Muhammad Khalid and his sons took possession of the Suit Property by force. Thereafter, on 20-06-2008, the Special Judicial Magistrate and DDO (Revenue), North Nazimabad Town, issued notice to Muhammad Khalid and his sons under section 145 Cr.P.C. (for breach of peace). 7. In July 2008, Muhammad Khalid filed Suit No.494/2008 before the VIII Civil Judge Karachi Central against the Appellants and the legal heirs of his late brother, Mustahibul Islam, contending that he (Muhammad Khalid) was 50% owner of the Suit Property; that he was residing thereat; and that he apprehended dispossession. 8. In the meanwhile, in the proceedings before the Special Judicial Magistrate, the Appellants filed photocopies of certified copies of the registered Gift Deeds dated 02-12-1974 and 14-02-1977 to show that they were owners of the Suit Property to the exclusion of Muhammad Khalid. The Special Judicial Magistrate sought verification of the said Gift Deeds from the Sub-Registrar Central Record Karachi, who, vide letter dated 28-10-2008 reported that both the Gift Deeds were genuine and duly registered. 9. On 22-12-2008, Muhammad Khalid withdrew Suit No.494/2008 from the Court of VIII Civil Judge Karachi Central, and on 23-12-2008 he filed Suit No.1733/2008 (the Said Suit) to challenge the registered Gift Deed dated 14-02-1977, as according to him the same was a forgery and he came to know of its existence only when a photocopy of a certified copy of the said Gift Deed was filed by the Appellants in proceedings before the Special Judicial Magistrate. 10. In the Said Suit, it was pleaded by Muhammad Khalid that he was 50% owner of the Suit Property; that the registered Gift Deed dated 14-02-1977 said to be executed by him in favor of the Appellants for his 50% share in the Suit Property, had been 'recently' forged by the Appellants in collusion with the Sub-Registrar 'T' Div. VIII, Karachi (defendant No.4); and that he was residing at the Suit Property since 1971, and now his married sons resided thereat. The prayer in the Said Suit was as follows: "(i) Declaration that Gift Deed dated 14th February-1977 allegedly executed by the Plaintiff in favour of the Defendants in respect of his 50% share in the Suit Property , is a bogus docume nt and Plaintiff continues to be owner of 50% share in the Suit Property; (ii) Cancelled the Gift Deed dated 14 th February-1977; (iii) Decree for Damages to the extent of Rupees Five Million; (iv) Permanently restrain the Defendants from ejecting the Plaintiff and/or his children from the Suit Property without due process of law; (v) Grant any other relief ........................... ..; (vi) cost of the Suit " 11. In their written statement to the Said Suit, the Appellants (defendants 1 to 3) pleaded that the registered Gift Deed dated 14 02-1977 was genuine, duly executed by Muhammad Khalid, and thus the Said Suit was time-barred. The Appellants pleaded that the originals of both the registered Gift Deeds dated 02-12-1974 and 14 02-1977 were in the custody of Muhammad Khalid. They contended that Muhammad Khalid was not in possession of the Suit Property ever since he executed the registered Gift Deed dated 14-02-1977. The Appellants 1 and 2 were doctors by profession and they pleaded that from 1984 till 1996, the Appellants along with their elder brother, Dr. Mustahibul Islam, ran a clinic in partnership at the Suit Property; and that Muhammad Khalid occupied the Suit Property unlawfully in 2008. They pleaded that the Suit Property had been purchased from the money of the mother and before divesting his share in the Suit Property in favor of the Appellants, Muhammad Khalid had held 50% of the Suit Property only as benamidar of the mother.
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12. On 13-10-201 1, Amtul Qudoos and her children, as legal heirs of the other brother , Mustahib-ul-Islam, moved CMA No.10413/2011 under Order I Rule 10 CPC to become parties to the Said Suit. The application contended that the dispute between Mustahib-ul-Islam and his brothers (Muhammad Khalid and the Appellants), had previously been settled vide a Family Settlement agreement dated 02-03-1996 executed by all the brothers; that subsequently, the dispute between the legal heirs of Mustahibul Islam and his surviving brothers was referred to a sole arbitrator, who passed an Arbitration Award dated 08-09-2003 with the consent of the parties. That Award was filed in Court and registered as Suit No.649/2004. Per the Intervenors, the said Family Settlement and the said Award had envisaged a distribution of properties amongst the brothers and the legal heirs of Mustahibul Islam, which included the Suit Property. However, the application of the Intervenors was dismissed for non-prosecution on 28-01-2013. 13. In the Said Suit, the following issues were settled on 08-11-2010 and a Commi ssioner was appointed to record evidence: "(i) Whether the suit is maintainable under the law ? (ii) Whether the gift was validly made by the Plaintif f to the Defendants ? (iii) Whether the Plaintif f is entitled to the cancellation of Gift Deed made by him ? If yes, what is the ef fect ? (iv) What should the decree be ?" As stated in para 1 above , the Said Suit was decreed to the extent of prayers (i) and (ii); hence this appeal. 14. Vide CMA No.1690/2015 moved unde r Order XLI Rule 27 CPC, the Appellants have prayed for permission to adduce additional evidence in this appeal by summoning the Sub-Registrar Centra l Record to produce the register of thumb impression and signatures in respect of the registered Gift Deed dated 14-02-1977 so as to match the thumb impression and compare the signature of Muhammad Khalid (plaintif f). In support of such application, learned counsel for the Appellants subm itted that when the Sub-Registrar Central Record (DW 2) was cross- examined by the plaintiff's counsel, the Sub-Registrar had stated that though he had not brought the register of thumb impression on that day, he could produce the same if required by the Court; but then he was never asked to produce the same by the plaintiff's counsel. The application is of course opposed by the Respondents 1 to 9 whose Counsel submitted that it was for the Appellants to have summoned the register of thumb impression, and since they chose not to do so, such lacunae cannot be filled at the appellate stage. Vide order dated 20-10-2016 passed in this appeal, it was observed that the application for additional evidence would be heard with the main appeal in order to enable the Court to assess whether additional evidence is required or not. Therefore, the said application and the main appeal were heard together by us. 15. Mr. Mohsin Shahwani, learned counsel for the Appellants submitted that in passing the impugned judgment and decree the learned Single Judge had misread the evidence; that the diaries of Muhammad Khalid produced as Exhibit PW 1/33 and Exhibit PW 1/34, and the documents produced by official witnesses, DW 2 and DW 3, which included a certified copy of the registered Gift Deed dated 14-02-1977, was sufficient to prove that the said Gift Deed had been executed by Muhammad Khalid; that a presumption of correctness attached to the latter evidence; and that the utility bills, tax receipts etc. produced by the Appellant No.1 had proved that possession of the Suit Property had been delivered by Muhammad Khalid to the Appellants to complete the gift. He submitted that the letters of Mybank Ltd. produced as Exhibit DW 1/26 and DW 1/27 proved that the original of the Gift Deed dated 14-02-1977 was with Muhammad Khalid. He submitted that to the extent Muhammad Khalid had initially held 50% of the Suit Property, he was only a benamidar for the mother and that it was on her instructions that he executed the registered Gift Deed dated 14-02-1977 in favor of his younger brothers, the Appellants. He submitted that the Said Suit was time-barred; that the Appellants had never given up the point of limitation that was expressly pleaded and covered under Issue No.1; and that in any case, under section 3 of the Limitation Act, 1908 it was incumbent on the Court to dismiss a time-barred suit. 16. On the other hand, Mr. Ishtiaq A. Memon, learned counsel for the Respondents 1 to 9 submitted that suit was not time-barred as limitation would run from the date when Muhammad Khalid (plaintiff) acquired knowledge of the Gift Deed dated 14-02-1977, which was in the year 2008. He pointed to the complaint dated 18 06-2008 made by the Appellant No.1 to the DSP (Exhibit PW 1/13) to submit that since the same acknowledged that Muhammad Khalid was 50% owner of the Suit Property, it established that the Gift Deed dated 14-02-1977 had been fabricated
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sometime thereafter. Regards the diaries of Muhammad Khalid (Exhibit PW 1/33 and PW 1/34), learned counsel submitted that though the diaries were not disputed, but their contents and the interpretation being placed by the Appellants on the writing therein was disputed. He submitted that the Appellants being beneficiary of the alleged Gift Deed dated 14-02-1977, it was for them to first dispel the presumption that the original of the same was not in their possession. He submitted that had the Gift Deed dated 14-02-1977 been actually executed, the Appellants would have mutated the Suit Property to their names, and he relied on the case of Mushtaque Ali Shah v. Bibi Gul Jan (2016 SCMR 910) to argue that in the absence of such mutation, the presumption would be against the Appellants. He submitted that the allegation that the disputed Gift Deed dated 14-02-1977 was with Muhammad Khalid was belied by Exhibit DW 1/30, a publication made by the Appellants in Daily Aman to state that the original documents of the Suit Property had either been lost or stolen. He submitted that when the signature of Muhammad Khalid on the Gift Deed dated 14-02-1977 had not been proved, the said Gift Deed was not proved. He submitted that in any case, the disputed gift had never fulfilled conditions to constitute a valid gift under Muslim Law. 17. Heard the learned counsel and perused the record. The original of the disputed Gift Deed dated 14-02-1977 had not been tendered in evidence. Therefore, in passing the impugned judgment and decree the learned Single Judge held as follows: " The Defendants No.1, 2 and 3 are admittedly not in possession of the gift deed as well as the title documents of the property said to have been gifted to them. No explanation offered by the defendants to justify their failure to produce the original or even copy of it. The defendants have failed to discharge their burden of proof of execution of gift deed which squarely was on them being beneficiary of the gift. The conclusion of the above discussion is that the defendants have failed to establish execution of gift deed and therefore issue No.2 is decided in negative. No gift was validly executed. Consequently issue No.3 is decided in affirmative and if there is any gift deed that should be treated as cancelled and of no legal consequence." 18. The learned Single Judge has essentially held that since the document of the disputed Gift Deed dated 14-02-1977 had not been proved by the Appellants, there was no evidence of its execution, and thus the plaintiff must prevail. The judgment shows that to arrive at such conclusion, the learned Single Judge tested the evidence on the burden of proof rather than the balance of probabilities. It is settled law that once the parties have produced their respective evidence, and it is not their grievance that any evidence was shut-out, the question of evidentiary burden of proof losses significance. That question becomes material only where the Court finds evidence to be so evenly balanced that it cannot come to any definite conclusion. In the Said Suit, since both sides had lead evidence and had cross-examined each other, we proceed to decide the case on the balance of probabilities. 19. The point that emerges for the determination of this appeal is whether the document of the registered Gift Deed dated 14-02-1977 had been proved ? And if so, whether on a preponderance of the evidence, had the execution of the said Gift Deed by Muhammad Khalid in favour of the Appellants also been proved ? 20. The observation of the learned Single Judge that the Appellants had not even produced a copy' of the disputed Gift Deed dated 14-02-1977, is a mis-reading of the evidence. A certified copy of the Gift Deed dated 14-02-1977 bearing Registered No.897, pages 25 to 28, Vol. 112 of Book No.I Addl, Sub-Registrar T. Div.VIII, Karachi, was on record as Exhibit DW 2/1. Such certified copy had been produced in evidence by the Sub-Registrar Central Record, Karachi (DW 2), who had been summoned by the Appellants. The Sub-Registrar (DW 2) was cross-examined by Muhammad Khalid's counsel and then re-examined by the Appellants' counsel. He informed that the process of micro-filming of registered documents had not been implemented at the concerned Sub-Registrar until the year 1986. He denied the allegation that the record of registration of the Gift Deed dated 14-02-1977 was forged or manipulated. On being queried whether he could produce the thumb impression and signature register related to the Gift Deed dated 14-02-1977, he said he could if it had been shifted by the concerned Sub-Registrar to the office of the Central Registrar. But then none of the parties asked him to do so. Be that as it may, the certified copy of the registered Gift Deed dated 14-02-1977 produced as Exhibit DW 2/1 was duly signed and sealed by the concerned Sub-Registrar and the certificate on such copy states that it is a true copy, duly compared with the record maintained by the concerned Sub-Registrar. Needless to state that being a certified copy, such document did not bear signatures of the persons who had signed the original document, and instead read sd? in place of such signatures. However, sub section (5) of section 57 of the Registration Act, 19081
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provides that "All copies given under this section shall be signed and sealed by the Registering Officer, and shall be admissible for the purpose of proving the contents of the original documents." 21. Per Article 72 of the Qanoon-e-Shahadat Order, 1984, "The contents of documents may be proved either by primary or by secondary evidence." Per Article 74(1), "Secondary evidence means and includes certified copies given under the provisions hereinafter contained." That provision is contained Article 87 which requires every public officer having the custody of a public document, which any person has a right to inspect, to give on demand and on payment of a fee, a certified copy of such public document. Needless to state that the record of the registered Gift Deed dated 14-02-1977 maintained by the Sub-Registrar is a Public Document under Article 85 of the Qanoon-e-Shahadat Order, 1984 read with sub-section (1) of section 57 of the Registration Act, 1908, and therefore a certified copy of the registered Gift Deed dated 14-02-1977 (Exhibit DW 2/1) is secondary evidence thereof. However, Articles 75 and 76 of the Qanoon-e-Shahadat Order, 1984 provide that documents must be proved by primary evidence and only where the case falls under Article 76 can secondary evidence be given of the "existence, condition or contents" of a document. Therefore, the question that arises is whether the Appellants had made out a case under Article 76 of the Qanoon-e-Shahadat Order, 1984 so as to be permitted to produce secondary evidence of the registered Gift Deed dated 14-02 1977 i.e., its certified copy as Exhibit DW 2/1. 22. Article 76 of the Qanoon-e-Shahadat Order , 1984 provides: "76. Cases in which secondary evidence relating to document may be given.- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: (a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77, such person does not produce it; (f) when the original is a public document within the meaning of Article 85; (g) when the original is a document of which a certified copy is permitted by this Order , or by any other law in force in Pakistan, to be given in evidence; In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible. In case (f) or (g), certified copy of the documents, but no other kind of secondary evidence, is admissible. 23. It was the case of Muhammad Khalid that he came to know of the Gift Deed dated 14-02-1977 when a copy of a certified copy of the same was produced in proceedings before the Special Judicial Magistrate. On the other hand, the case of the Appellants from the outset was that the possession of the original of the registered Gift Deed dated 14-02- 1977 was with Muhammad Khalid (para 7 of the written statement). In para 6 of his affidavit-in-evidence, the Appellant No.1 stated that the original title documents of the Suit Property including the registered Gift Deed dated 14-02-1977 were originally in the custody of the mother of the parties, then (after the mother?s death) with their father, and then they came to be with Muhammad Khalid. On cross-examination, Muhammad Khalid acknowledged that when their father died in the year 2003, he was living with Muhammad Khalid. Both sides had given notice to the other under Article 77 of the Qanoon- e-Shahadat Order, 1984 to produce the originals of certain documents including the registered Gift Deed dated 14-02- 1977. When the Appellant No.1 lead evidence he produced a certificate dated 26-06-2008 issued by Mybank Ltd. (previously Bolan Bank Ltd.) as Exhibit DW-1/26, which confirmed that the registered Gift Deed dated 02-12-1974 (the one executed by the mother in favour of the Appellants for her 50% share in the Suit Property) had been mortgaged with the bank for the issue of a bank guarantee dated 11-01-1996 to Sui Southern Gas Co. Ltd. on behalf of M/s. Islam Brothers. The said certificate stated that the said Gift Deed dated 02-12-1974 was released to "our account holder". Exhibit DW-1/27 produced by the Appellant No.1 was another letter dated 06-06-2009 issued by Mybank Ltd. stating that the current account of M/s. Islam Brothers maintained with the said bank was operated by Muhammad Khalid. On cross examination, Muhammad Khalid stated as follows: "I did deposit the gift deed in Bolan Bank, it is mine and did not belong to my mother . I do not remember in the year 1996 the said gift deed was deposited in Bolan Bank. I think the said gift deed pertained to the Suit Property . I do not remember if the said gift deed was deposited in Bolan Bank for guaranteeing Sui Southern Gas Company". Therefore, the Appellants had brought evidence to show that the original of the other Gift Deed dated 02-12-1974, the one executed by the mother in favor of the Appellants for her 50% share in the Suit Property, was in the possession of
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Muhammad Khalid, even though he was not a beneficiary thereof. Admittedly, the original of the initial conveyance deed dated 09-04-1970 whereby the Suit Property had been purchased, was also in Muhammad Khalid's possession which he produced as Exhibit PW 1/2. Therefore, it could well be inferred as a presumption of fact under Article 129 of the Qanoon-e-Shahadat Order, 1984, that the original of the registered Gift Deed dated 14-02-1977 (the disputed Gift Deed) was also in Muhammad Khalid's possession. Given the fact that the Appellants had summoned the record of the registered Gift Deed dated 14-02-1977, it appears unlikely that they had reason to withhold the best evidence. Mr. Ishtiaq Memon, learned counsel for the Respondents 1 to 9 had submitted that the fact that the registered Gift Deed dated 14 02-1977 was not with Muhammad Khalid, had been accepted by the Appellant No.1 in Exhibit DW 1/30, which was a notice dated 20-06 2008 published in a newspaper to state that important documents? relating to the Suit Property had either been lost or stolen, which public notice was owned by the Appellant No.1 when he was confronted with it during cross-examination. But then such submission fails to appreciate firstly that had the Appellants even set-up such a case, which they did not, they had nonetheless brought evidence to show that the original was not in their possession so as to bring their case also under sub-Articles (f) and (g) of Article 76 of the Qanoon-e-Shahahdat Order , 1984 for the production of a certified copy as secondary evidence; and secondly , the public notice (Exhibit DW 1/30) became insignificant when there was evidence to show that two of the important documents? referred to in the public notice, ie., the initial conveyance deed dated 09-04-1970 and the other Gift Deed dated 02-12-1974 (by the mother), were in the possession of Muhammad Khalid. 24. The upshot of the discussion above is that the Appellants had brought sufficient evidence to show that the original of the registered Gift Deed dated 14-02-1977 appeared? to be with Muhammad Khalid, and thus the Appellants had laid the foundation for bringing their case under sub-Article (a) of Article 76 of the Qanoon-e-Shahadat Order, 1984 for giving secondary evidence of the said Gift Deed. It is to be noted that in order to bring a case under the said sub-Article (a) of Article 76, the party desiring to give secondary evidence…
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