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Petitioner: SOHAIL AHMED JAN VS Respondent: SIRAJ AHMED JAN and 9 others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: SOHAIL AHMED JAN vs SIRAJ AHMED JAN and 9 others Case No.: C.R. No.73 of 2016 Date of Judgment:2017-10-02 Reported As: PLJ 2018 Islamabad 143, 2018 CLC 919 Result: Revision dismissed.
JUDGMENT
JUDGMENT MIANGUL HASSAN AURANGZEB, J.---Through the instant civil revision petition, the petitioner, Sohail Ahmed Jan, impugns the judgment and decree dated 11.12.2015, passed by the Court of the learned Additional District Judge, Islamabad, whereby the petitioner's Appeal against the judgment and decree dated 26.03.2012, passed by the Court of the learned Civil Judge, Islamabad, was partly accepted and the said judgment and decree passed by the learned civil Court was modified. Vide the said judgment and decree dated 26.03.2012, the learned civil Court had dismissed the suit for declaration, permanent and mandatory injunction, instituted by the petitioner against his brothers and sisters etc. 2. The facts essential for the disposal of this petition are that the petitioner is the brother of respondent No.1 (Siraj Ahmed Jan), respondent 2 (Kamran Ahmed Jan), respondent No.3 (Rehana Gulzar), and respondent No.4 (Alia Khalid). Their father (Gulzar Ahmed) died in May, 1994, whereas their mother (Razia Sultana) died on 22.05.2005. The essential dispute in the case at hand is whether House No.26, Street No.55, Sector G-9/4, Islamabad ("suit property No.1") was gifted and transferred by Razia Sultana to her daughter, Rehana Gulzar/respondent No.3, and House No.AA/349, Mohalla Pir Harra, Jamiah Masjid Road, Rawalpindi, ("suit property No.2") was gifted and transferred by Razia Sultana to her son Kamran Ahmad Jan/respondent No.2. 3. On 11.08.2005, the petitioner instituted a suit for declaration, permanent and mandatory injunction before the learned civil Court, praying for inter alia a declaration to the effect that he was entitled to inherit and receive his share in the following properties:- (i)House No.26; Street No.55, G-9/4, Islamabad. (ii)Commercial Unit/Building No.B-I/352 Lower Bazaar, Murree, District Rawalpindi.
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(iii)House No.AA/349, Mohalla Pir Harra, Jamiah Masjid Road, Rawalpindi, (iv)Defence Saving Certificates and Special Saving certificates. 4. Furthermore, in the said suit it was prayed that the transfer of Razia Sultana's abovementioned properties be declared as illegal, without any lawful authority and ineffective on the petitioner's rights. The petitioner also prayed for a mandatory injunction and a direction for the cancellation of the transfer and the reversion of the title in the said properties to Razia Sultana so that they are distributed amongst her legal heirs according to Islamic law. Respondents Nos.1 to 3 contested the said suit by filing a joint written statement. Respondent No.4 filed a separate written statement in which she prayed for the suit to be decreed. On 12.04.2010, the learned civil Court framed the following issues:- 1.Whether the plaintiff is entitled to receive his share in the suit property being legal heir of deceased Gulzar Ahmed Khan? OPP 2.Whether the transfer of suit property in the name of defendant No.3 is illegal and unlawful and ineffective upon the rights of plaintiff? OPP 3Whether the suit is not maintainable in its present form? OPD 4.Whether the suit of plaintiff is false and vexatious and as such defendants are entitled to recover special costs? OPD 5.Whether the suit is hit by Order VII, Rule 11 of C.P.C.? OPD 6.Relief" 5. The petitioner entered the witness box as PW-1, whereas Mr. Abdali Shah, from the Estate Management Directorate of the Capital Development Authority ("C.D.A.") appeared as PW-2. Respondent No.4/Alia Gulzar appeared as DW-1; respondent No.3 (Rehana Gulzar) as DW-2; and respondent No.1 (Siraj Ahmed Jan) as DW-3. Vide judgment and decree dated 26.03.2012, the learned civil Court dismissed the suit. Against the said judgment and decree, the petitioner preferred an appeal before the Court of the learned Additional District Judge, Islamabad. Vide judgment and decree dated 11.12.2015, the said appeal was partly accepted. The learned Appellate Court held that the petitioner was entitled to inherit and receive his Islamic share in the properties which were in Razia Sultana's name when she died. These properties were identified as building No.B-1/352, Lower Bazaar, Murree, and the saving certificates issued in Razia Sultana's name by the National Saving Centres at Markaz G-6, and Markaz G-9, Islamabad. As regards the saving certificates in which respondents Nos.1 to 3, were named as 'nominees' and which had already been en-cashed by the said respondents, it was held that the petitioner was also entitled to get his Islamic share in the amount so en-cashed by the said respondents. Suit property No.1 was held to have been validly gifted and transferred by Razia Sultana to respondent No.3, whereas suit property No.2 was held to have been validly gifted on 29.09.2003, by Razia Sultana to respondent No.2. 6.The petitioner in the instant civil revision petition has impugned the judgments and decrees passed by the learned Courts below. Even though the learned Appellate Court partly accepted the petitioner's appeal, respondents Nos.2 to 4 have not challenged the appellate judgment and decree. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER:- 7.Learned counsel for the petitioner submitted that suit property No.1 had been given to Razia Sultana by her late husband; that it had not been proved that suit property No.1 had been gifted by Razia Sultana to respondent No.3; that in fact respondent No.3 had obtained suit property No.1 fraudulently from Razia Sultana, when she was paralyzed; that respondent No.3 was the only witness who appeared before the learned civil court to prove the transfer of suit property No.1 in her favour; that respondent No.4/DW-1 was in Karachi when the alleged gift regarding Suit property No.1 was executed; that respondent No.4's stance in her written statement supports the petitioner's
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case; that after filing the written statement, respondent No.4 was won over by respondent No.3, which resulted in respondent No.4's evidence to be contrary to her position in her written statement; that the ingredients of a valid gift had not been satisfied as regards suit property No.1; that possession of suit property No.1 had not been delivered by Razia Sultana to respondent No.3 when the said gift was allegedly made; that even now respondent No.3 is not in exclusive possession of suit property No.1; that a 'family transfer' at the C.D.A. cannot be recognized as a valid gift; that the word 'gift' has not been used in any of the documents on the basis of which suit property No.1 was transferred to respondent No.3's name in the C.D.A. records; that the transfer letter dated 26.08.2003, (Exh.P.8) cannot be termed as a gift deed; that a gift deed is required to be registered under the law; that if Razia Sultana wanted to gift suit property No.1 to respondent No.3, she should have executed a registered gift deed in respondent No.3's favour; that suit property No.1 belonged to Razia Sultana at all material times, and the petitioner is entitled to his inherited share in the said property; and that the petitioner was unlawfully denied the right to inherit his share in suit property No.1, which was owned by his mother. 8.Learned counsel for the petitioner further submitted that the learned trial Court had not framed the issues properly; that the onus in the issues has been wrongly placed by the learned civil Court; that the learned civil Court should have re-framed the issues; that the alleged donee of suit property No.2, did not appear as a witness; and that the concurrent findings of the learned Courts below are as a consequence of misreading and non-reading of evidence. Learned counsel for the petitioner prayed for the concurrent judgments and decrees of the learned Courts below to the extent of the findings with respect to suit property No.1 and suit property No.2 to be set aside, and for the petitioner's suit to be decreed. In support of his contentions, learned counsel for the petitioner relied on the following case law:-- (i)Shabbir Hussain v. Asghar Hussain Shah (2007 SCMR 1884), wherein it has been held as follows:--- "9. .... According to Article 78 of the Qanun-e-Shahadat, 1984, execution of a document is to be proved to be in the handwriting or signature or thumb-mark of the alleged executant, which would mean signing or putting thumb-mark over a document as consenting party thereto. Execution of document would not only mean mere signing or putting thumb-impression but something more than mere signing or putting thumb-impression by the executant. It must be proved that thumb-mark was made in the presence of witness in whose presence the document was written and read over and it was understood by the vendor and would not only be limited to merely signing a name or placing thumb-impression upon a blank sheet of paper so as to prove the document to have been executed whose identification should also be proved by reliable and authentic evidence that a person who has affixed thumb-mark or signature was the same person who owned the land and sold the same to the vendee. Execution would mean series of acts; which would complete the execution. Mere signing or putting thumb-mark would not amount to execution in terms of Article 78 of Qanun-e-Shahadat, 1984. A document which is not proved is inadmissible in evidence, unless strict proof of it is waived." (ii)Aurangzeb v. Muhammad Jaffar (2007 SCMR 236), wherein it has been held that in a transaction of gift, heavy onus lies on the beneficiary to prove by convincing evidence which satisfies the judicial conscience of the Court that the transaction shown to be a gift was executed by the donor in favour of the donee. Law to this effect has also been laid down in the case of Manzoor v. Bakhan Mai Khokhar (2010 CLC 328). (iii)Muhammad Idrees v. Zeenat Bibi (2005 SCMR 1690), wherein it has been held that the factum of gift had to be proved by the donee through cogent and concrete evidence. It was also held that the essential ingredients of a valid gift were (i) declaration of the gift, (ii) acceptance of the gift, and (iii) delivery of possession to the donee.
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(iv)Rabnawaz v. Ghulam Rasul (2014 SCMR 1181), wherein it has been held that when a gift was challenged, the burden lay on the donee to prove that all the essentials of a valid gift has been fulfilled. In the said case the donor was very old, infirm and incapacitated and was living at the mercy of the donee, in the latter's house. The trial Court and the appellate Court had concurrently held that the gift was an outcome of undue influence. The Hon'ble Supreme Court agreed with the said findings, and also held that another reason militating against the validity of the gift was want of delivery of possession. (v)Rashida Bibi v. Mukhtar Ahmad (2008 SCMR 1384 = NLR 2008 Revenue 97), wherein it was held that a very heavy burden lay on the donee to prove that a valid gift had been made in his favour. In the said case, the donors were pardanashin illiterate ladies. It was also held that mere admission of making thumb impression or appearing before the Sub-Registrar was not sufficient to infer that the donors had Declared their intentions to transfer their share in the property in question. It was also held that mere registration of a document in itself is not proof of its execution by a person by whom it is alleged to have been executed the same, if the execution of such a document had been denied by any of parties in the litigation. (vi)Mian Ghayassuddin v. Hidayatun Nisa (2011 SCMR 803). In the said case, a mutation of gift allegedly made by a mother in favour of her sons was disputed by her daughter, who claimed her Islamic share in the legacy of her deceased mother. The donor at the relevant time was ninety years of age and was held to have lost her faculty of memory and understanding. The alleged mutation of gift was made soon before the donor's demise. It was held that the sons/donees had not satisfactorily discharged the onus of proving that the gift was made without exercising undue influence over the donor or that she had been given independent advice at the relevant time or that she had made the gift with her free will and consent. (vii)Khan Muhammad v. Muhammad Din (2010 SCMR 1351), wherein it has been held that the initial burden to prove the execution of a document is on the party which relies on such a document, and once this onus is discharged the burden to prove the factum of fraud or undue influence or genuineness of the document shifts to the party which alleges fraud. (viii)Mst. Shafqat Parveen v. Muhammad lftikhar Amjid (2012 SCMR 1602), wherein it has been held that under Islamic law, offer, acceptance, and delivery of possession were the three essential ingredients of a valid gift and the onus was on the donee to prove the said components. (ix)Riaz Mehmood v. Altaf Hussain (2011 YLR 1674), wherein it has been held that when a fact renders the physical and mental capacity of a donor to make a gift highly doubtful, it is for the beneficiaries to prove that the donor was in mentally fit condition, and that he had independent advice available to him, and that he had made a valid offer of a gift which had been accepted by the donee. In the said case, the donor was suffering from a serious illness and was paralyzed. His thumb impression was obtained through a local commission who appeared as a witness before the trial Court and admitted that two witnesses did not sign the gift deed in his presence. He had also deposed that the two witnesses were not present when he went to get the donor's thumb impression on the gift deed. The gift was held not to have been validly executed. (x)Miraj Din v. Mst. Sardar Bibi (2010 MLD 843), wherein it has been held that where a gift was made to the exclusion of legal heirs, the absence of reason or justification for the same adversely affected its validity. It was also held that where an oral gift was recorded through a mutation, and the Revenue Officer attesting the same was not examined as a witness, a serious doubt as to its validity would arise. (xi)Khaliqdad Khan v. Zeenat Khatoon (2010 SCMR 1370), wherein it has been held that the onus to prove a transaction embodied in a gift mutation would essentially be upon the beneficiary, who would be required to establish that the gift was the result of a conscious application of the donor's mind, and not the result of undue influence or fraud played on him. It was also held that the
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beneficiary of the gift must prove the mutation by producing evidence in accordance with the accepted principles and in terms of the Qanun-e-Shahadat Order, 1984. CONTENTIONS OF THE LEARNED COUNSEL FOR RESPONDENTS NOS.2 TO 4:- 9. Learned counsel for respondents Nos.2 to 4 submitted that suit property No.1 was given to Razia Sultana by her parents, and not by her husband; that Razia Sultana died in 2005, whereas suit property No.1 was gifted and transferred to respondent No.3 in 2003; that Kamran Ahmad Jan/respondent No.2 accompanied his mother to the C.D.A. where she transferred property No.1 to respondent No.3; that the indemnity bond executed by Razia Sultana had also been signed by respondent No.2 as a witness; that Razia Sultana was mentally alert when she transferred suit property No.1 to respondent No.3; that at no stage was any application under the provisions of the Mental Health Ordinance, 2001, filed regarding Razia Sultana's mental health; that Razia Sultana was not paralyzed as asserted by the petitioner; that Razia Sultana would go herself to receive her pension; that in the plaint, the petitioner had not alleged that his mother's signature on the transfer documents was forged; that the petitioner, in his appeal, had not taken a ground regarding non- framing of an issue; that respondents Nos.1 to 3 had filed a joint written statement; that after filing the written statement, respondent No.1 changed his stance and sided with the petitioner; that respondent No.1 could not take a position contrary to the one taken by him in the written statement that respondent No.1 did not file an application to transpose himself as a co-plaintiff; that respondent No.4, in her written statement, had taken a position adverse to the interests of respondent No.3; that the evidence adduced by respondent No.4 contradicts her pleadings in her written statement; that since the evidence adduced by respondent No.4 did not support her pleadings in her written statement, the contents of her written statement are of no consequence; and that respondent No.4 did not sign the written statement in the presence of her counsel; that respondent No.4's written statement was attested and verified at Karachi. 10.Learned counsel for respondents Nos.2 to 4 further submitted that a Muslim had unfettered powers to gift away his property to one of his legal heirs to the exclusion of the others. In this regard, he placed reliance on the law laid down in the case of Ghulam Muhammad v. Mian Muhammad (2007 SCMR 231). He further submitted that the petitioner, in his suit, had not sought the relief of possession of suit property No.1; and that a simple declaratory suit by a plaintiff without seeking the consequential relief of possession when such a plaintiff was out of possession of the suit property, would not be maintainable. In this regard, reference was made to the law laid down in the cases of Abdur Razzaq v. Zahoor Ahmad (2005 CLC 556), Muhammad Saeed v. Munawar Shah (PLD 1973 Peshawar 80) and Farmanullah v. Qalandar (1999 YLR 1610). 11.Learned counsel for respondents Nos.2 to 4 further submitted that the petitioner was bound to annex with this civil revision petition, certified copies of the pleadings, the complete evidence, orders and judgments/decrees, and that non-filing of such documents rendered the revision petition incompetent. Reference in this regard was made to the law laid down in the cases of Mst. Banori v. Jilani (PLD 2010 SC 1186), Saleem Khan v. Province of Punjab (2013 MLD 1618), Raja Muhammad Kamran v. Shaheer Constructions (2013 MLD 118), and Abdul Hafeez v. Shaukat Ali (2014 MLD 555). Learned counsel for respondents Nos.2 to 4 prayed for the revision petition to be dismissed. 12.I have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs Nos.2 to 6 above, and need not be recapitulated. 13.The main contest in this case is between the petitioner (who claims his inherited share in suit property No.1) and respondent No.3 (who claims that the said property was gifted and transferred to her by her mother. Razia Sultana, two years before the latter's demise).
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14.The Petitioner in his suit has inter-alia pleaded that Razia Sultana, after her husband's death, became seriously ill and also got an attack of paralysis rendering her incapable of performing "ordinary functions of life". It was also pleaded that she had to be continuously nursed, and remained in a state of ill-health until her death on 25.05.2005. The petitioner asserted that the transfer of suit property No.1 in respondent No.3's favour was the consequence of fraud on the part of respondent No.3, who took undue advantage of Razia Sultana's mental incapacity and illness. In his suit, the petitioner inter-alia pleaded that "the documents of transfer were false and manipulated without any free will and consent of the transferor." 15.The petitioner said assertions were denied by respondents Nos.1 to 3 in their joint written statement. In the said written statement, it was pleaded that other than diabetes, for which Razia Sultana was being treated, she suffered from no other serious disease. It was also pleaded that she was mentally quite perfect and until February, 2005, she would go to the bank to receive her pension. Respondents Nos.1 to 3 in their written statement have pleaded that their mother, Razia Sultana, transferred suit property No.1 in respondent No.3's favour with her free will and consent. It was also pleaded that all of respondent No.3's siblings, including the petitioner, had given their consent to the said gift; and that suit property No.1 was transferred by Razia Sultana in respondent No.3's name on 26.08.2003 whereas suit property No.2 was transferred in respondent No.2's name on 29.09.2003. 16.Respondent No.4/Mst. Alia Khalid had filed a consenting written statement in which she admitted all that was pleaded in the petitioner's civil suit. 17.The petitioner appeared as PW.1 before the learned trial Court and buttressed his pleadings in the civil suit by deposing in his examination-in-chief that after his father's demise, his mother became seriously ill and got an attack of paralysis; that she could not write, and that all her affairs were dealt with by the petitioner. In his cross-examination, the petitioner deposed inter-alia that his mother had herself received her pension on 22.03.2005 and that he had accompanied her; that when his mother would receive her pension, the bank officials would take her signature and thumb impression; that his mother had not given an authority letter to anyone for receiving her pension; that he or his brothers had not approached any Court with a plea that his mother was incapable of carrying out official work (daftri kaam) due to her illness; that her mother used to reside in suit property No.1; that respondent No.3 was divorced and used to live with her mother; that respondent No.3 is still unmarried; and that respondent No.3 used take care of her mother. 18.The petitioner does not dispute the fact that the suit property No.1 was transferred by Razia Sultana to respondent No.3, but asserts that "the documents of transfer were false and manipulated without any free will and consent of the transferor". Other than this, there is no other pleading as regards the allegation of fraud against respondent No.3. It is essential that in a case where fraud, undue influence, or coercion is put at the forefront, the complainant party should set out the facts in full and give essential particulars instead of making general allegations. This is a legal requirement enshrined in Order VI, Rule 4 of C.P.C. and reiterated by the superior Courts in several cases including Faizum alias Toor v. Nander Khan (2006 SCMR 1931), Mst. Sahib Noor v. Haji Ahmed (1988 SCMR 1703), and Pakistan Banking Council v. All Maohtaram Naqvi (1985 SCMR 714). Recently in the case of Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi (2013 CLD 1581), the Hon'ble Supreme Court has held that it is an elementary principle of pleadings that where allegations of fraud, misrepresentation, collusion or mala fide are attributed, necessary particulars and the details in that context are to be unfolded in the pleadings, and that bald or vague statements to that effect are of no legal consequence. It is also well settled that a Court must scrutinize the pleadings to find out that a plea has been made out and that full particulars thereof have been given before examining whether fraud or undue influence was exercised. In the case at hand, the petitioner's pleadings in his suit regarding the falsehood and manipulation of the
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transferred documents are not so appealing and telling so as to invalidate the validity of the oral gift of suit property No.1 by Razia Sultana in favour of respondent No.3, duly recorded in the Capital Development Authority records. 19.The thrust of the petitioner's case in his suit was that Razia Sultana could not have transferred any of her properties because she was "seriously ill", "incapable", "not mentally conscious", and "could not perform any normal functions of life". The petitioner (PW-1) in his cross-examination admitted that Razia Sultana had not given an authority letter to any of her children to receive her pension, and that she had herself received her pension for the last time on 22.03.2005. He also deposed that none of Razia Sultana's children filed any application before any forum regarding her inability to perform any official work. The petitioner's testimony regarding his mother's heath is not in consonance with his pleadings in the suit. In the absence of any independent proof as to the mental incapacity of the donor/Razia Sultana, it could not be held that the transfer of the suit properties was unlawful or void. In the case of Muhammad Khan v. Mst. Hayat Bibi (1987 CLC 1187), the petitioner (donor's son) had challenged the validity of a gift made by the donor in favour of the donee/respondent (donor's daughter), alleging that the donor was…
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