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Official Citation: 2018 MLD 739
Court / Jurisdiction: LAHORE-HIGH-COURT-LAHORE
Parties: Mst. PATHANI MAI vs AHMED BAKHSH
This judicial decision was delivered by the LAHORE-HIGH-COURT-LAHORE. The matter involves proceedings between Mst. PATHANI MAI and AHMED BAKHSH, officially reported as 2018 MLD 739. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
2018 M L D 739 [Lahore (Multan Bench)] Before Abdul Rahman Aurangzeb, J Mst. PATHANI MAI through L.Rs.---Petitioner Versus AHMED BAKHSH and others---Respondents Civil Revision No. 650-D of 2010, heard on 27th September, 2017. (a) Gift--- ----Valid gift---Requirements---Gift mutation on behalf of illiterate pardanashin lady---Proof---Procedure---Defendant being beneficiary of gift mutation was bound to prove the pre-conditions of a valid gift i.e. offer, acceptance and delivery of possession through independent evidence---Co-beneficiaries had denied the factum of gift by their mother---Defendant only appeared in the witness-box and his stance that mother herself had gifted suit property to him and his two sisters was not substantiated with cogent proof---If executant of document was a pardanasheen or illiterate lady and she denied the execution of said document then burden to prove would shift to the party placing reliance on such execution---Original transaction could only be independently proved with the production of original record along with attesting and official witnesses---Neither Patwari who made entries of mutation nor the Revenue Officer was produced in the Trial Court---Attesting witnesses of gift mutation were also not produced in evidence to substantiate the claim of defendant---Defendant had failed to discharge the initial burden of proof in the present case---Mere affixation of thumb impression of an illiterate pardanashin lady without any corroborative piece of evidence could not be said to be a valid execution of Tamleek---Plaintiff was illiterate and pardanashin lady and was ignorant with regard to transaction of gift mutation---Essential and valid contents of gift mutation were not expressly conveyed to the donor with independent advice---Mutation was not a proof of title and beneficiary was bound to prove the original transaction---Impugned judgments and decrees passed by the courts below were set aside and suit was decreed---Revision was allowed in circumstances. Ghulam Muhammad v. Farooq Ahmad and others 2002 SCMR 1801; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884; Arshad Khan v. Mst. Reshman Jan and others 2005 SCMR 1859; Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others 2013 SCMR 868; Ghulam Farid and another v. Sher Rehman through L.Rs. 2016 SCMR 862; Peer Bakhsh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417 and Abdul Rahman v. Mst. Majeedan Bibi alias Majeedan 2017 SCMR 1110 rel. (b) Islamic Law--- ----Gift---Ingredients---Ingredients of a valid gift are offer, acceptance and delivery of possession. (c) Civil Procedure Code (V of 1908)--- ----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings could be interfered with by the High Court in revisional jurisdiction if courts below had acted with material irregularity and legal infirmity. Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel. Muhammad Maalik Khan for Petitioners. Muhammad Irfan Arbi for Respondents Nos.1 and 2. Date of hearing: 27th September, 2017. JUDGMENT ABDUL RAHMAN AURANGZEB, J.---This Revision Petition calls in question the validity of the judgment and decree dated 04.06.2008 and 22.02.2010 passed by learned Courts below, whereby the suit for declaration, cancellation of gift mutation No.8905 dated 02.10.2000 along with permanent injunction was dismissed concurrently. 2. The controversy involved in this case, as per the record, revolves around the validity of gift mutation No.8905 dated 02.10.2000 (Ex.P-1) entered on the basis of an oral gift allegedly made by the petitioner Mst. Pathani Mai in favour of his son and two daughters. The daughters, however, have conceded the stance of the petitioner whereas the only beneficiary of gift mutation Ahmad Bakhsh respondent No.1 has contested the suit vehemently. The learned trial court after recording the evidence of the parties proceeded to dismissed the suit against which an appeal was filed which also met the same fate. Flence, this civil revision. 3. Learned counsel for the petitioner has contended that both the courts below have erred in law while interpreting the settled principle of onus to prove the factum of valid gift in the case of beneficiary of the gift mutation. 4. Learned counsel for the respondent No.1 has vehemently contested the petition on the ground that the concurrent findings of the fact recorded by the learned courts below in his favour, therefore, the petition is liable to be dismissed. 5. Arguments heard. Record perused. 6. At the first instance, it has to be examined that whether respondent No.1 who is the beneficiary of the gift mutation has succeeded to prove the validity of the alleged gift mutation through credible evidence. It is pertinent to mention here that the co-beneficiaries i.e. respondents Nos.2 and 3 have already denied the factum of gift by their mother, hence, the claim of the respondent No.1 has already been ruined by his co-beneficiaries. The respondent No.1, who is the remaining sole beneficiary of the alleged gift mutation Ex.B-1 had to prove the existence of pre-conditions of valid gift i.e. offer, acceptance and delivery of possession through an independent evidence. But in the evidence the respondent No.1 himself only appeared as a witness and took a specific plea that his mother-petitioner alienated and gifted the property to him and his two sisters namely Noor Mai and Sharam Mai with her free will and consent. As discussed earlier that co-beneficiaries of the respondent No.1 have already belied the version of respondent No.1, therefore, the respondent No.1's stance is not substantiated with any cogent proof. The specific version of the petitioner which has been rebutted by the respondent No.1 is as under:--
From perusal of the above referred portion of evidence of PW-1 reveals that the petitioner has out rightly rejected the factum of tamleek in favour of respondent No.1. In such situation it is the bounden duty of the respondent No.1 to prove the existence of the same. It is also noticed that even no suggestion with regard to any offer, acceptance and delivery of possession was given to the petitioner. 7. This is established law that in the case in which the executant of the document is a Pardanashin or illiterate woman, notwithstanding the fact that she is known to the donee, if she denies the execution of document, the party placing reliance on such execution then the burden of proving the negative fact is shifted to such a woman, executant, if the initial burden of proving the genuineness of document is discharged. It was held in "Ghulam Muhammad v. Farooq Ahmad and others" (2002 SCMR 1801) as under:-- "It has been held by the Supreme Court consistently that in the case of illiterate and pardanashin lady, the courts should be very careful in recording the findings as to the execution of any agreement by her if she had challenged the same on the ground that it had been obtained from her by fraud." It is also settled in "Muimmmad Akram and another v. Altaf Ahmad" (PLD 2003 Supreme Court 688) as under:-- "It is a settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This often-repeated principle of law is quite logical because a mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to fail in the event of the non-proof of transaction. Only the trial Court realized it." Reverting to the case in hand on the touchstone of the cited principles the contention of the respondent No.1 has been examined. The stance of the respondent No.1 is that the mother of the respondent No.1 i.e. petitioner has allegedly affixed her thumb impression while transmitting the land in question through mutation of tamleek. Therefore, the transaction of alleged mutation, where the thumb impression of the petitioner was shown to be affixed on impugned mutation. Although there is no requirement, is provided in section 42 of the West Pakistan Land Revenue Act, 1967 for affixation of thumb impression of executant. The malice of the petitioner, who for the purpose of mere strengthening his fraud, was also not of any avail, because the original transaction can only be proved independently with the production of the original record along with the attesting and official witnesses. But neither the patwari who made entries of mutation nor the revenue officer was produced. It is observed that the alleged attesting witnesses of the mutation were also not produced in evidence to substantiate the claim of the respondent No.1, hence, the execution of the impugned mutation remained in the mystery. The dubious performance of mutation without any corroborative piece of evidence of offer, acceptance and delivery of possession reveals that the petitioner failed to discharge the burden of proof. In "Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others" (2007 SCMR 1884) where the question of alleged execution by affixing thumb impression is involved, it was held as under:-- "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 the document as consenting party thereto. Executing of document would not only mean 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 present 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." Therefore, mere affixation of thumb impression of an illiterate Parda observing lady without any corroborative piece of evidence, can not said to be the valid execution of tamleek. 8. The most glaring aspect of the case in hand is that the petitioner is admittedly illiterate and Parda observing lady and was completely ignorant about the transaction of gift mutation. The essential and vital contents of the gift mutation were not expressly conveyed to the donor with independent advice and were without any duress or coercion so as to enable the donor to be in knowledge regarding the consequences of the transaction. In "Arshad Khan v. Mst. Reshman Jan and others" (2005 SCMR 1859) it was held as under:-- "This is settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it, to prove the good faith and genuineness of the transaction as envisaged in Article 127 of Qanun-e-Shahadat, 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in a position of active confidence. This is settled law regarding the disposition of property of Pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convincing evidence." This view later on further explicitly highlighted in "Mian Allah Ditta through L.R.s v. Mst. Sakina Bibiand others" (2013 SCMR 868) that protection provided to Pardanashin lady in law was on account of the fact that they invariably were helpless, weak and vulnerable. Said considerations would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation. The enshrined principles were later on further clarified in "Ghulam Farid and another v. Sher Rehman through L.R.s. (2016 SCMR 862), "Peer Bakhsh through LRs and others versus Mst. Khanzadi and others" (2016 SCMR 1417) and "Abdul Rahman v. Mst. Majeedan Bibi alias Majeedan" (2017 SCMR 1110) where it has been authoritatively held that mutation was not a proof of title and a beneficiary is under an obligation to prove the original transaction. Needless to again reiterate that all the above settled principles were severely violated in the execution of the alleged transaction. Therefore, the same should not be sustainable. 9. At this stage, the respondent has agitated that the concurrent findings of the courts below cannot be disturbed. This plea is also not admissible as it has already been discussed in plethora of judgments of August Supreme Court that if the courts below acted with material irregularity and legal infirmity, the High Court while exercising the revisional jurisdiction conferred under section 115, C.P.C. can take the cognizance of the matter. It is also settled that if the lower court misreads the evidence on record and fails to take notice of a vital fact appearing therein comes to an erroneous conclusion, it would he deemed to have acted with material irregularity and its decision is open to revision by the High Court. My respectful reliance is placed upon "Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others" (2016 SCMR 24) wherein it has been held as under:-- "It is settled law that ordinarily the revisional court would not interfere in the concurrent findings of fact recorded by the first two courts of fact but where there is misreading and non-reading of evidence on the record which is conspicuous, the revisional court shall interfere and can upset the concurrent findings, as well as where there is an error in the exercise of jurisdiction by the courts below and/or where the courts have acted in the exercise of its jurisdiction illegally or with material irregularity." 10. In view of above discussion this civil revision is allowed. The judgment and decree passed by learned lower courts are set-aside and consequently the suit filed by the petitioner is decreed with no order as to costs. ZC/P-1/L Revision allowed.