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Petitioner: Mst. Saadia Andaleeb VS Respondent: Mst. Farzana Zia and 5 others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Mst. Saadia Andaleeb vs Mst. Farzana Zia and 5 others Case No.: C.R.No.35/2016 Date of Judgment:2018-06-12 Reported As: 2018 [M] C.L.R. 1644, 2018 IHC 96 Result: Petition Allowed
Judgment MIANGUL HASSAN AURANGZEB, J:- Through the instant civil revision petition, the petitioner , Mst. Saadia Andaleeb, impugns the judgment and decree dated 21.01.2016, passed by the Court of the learned Additional District Judge (West), Islamabad, whereby the petitioner's appeal against the judgment and decree dated 27.07.2015, passed by the Court of learned Civil Judge, Islamabad, was dismissed. Vide the said judgment and decree dated 27.07.2015, the learned civil Court decreed the suit for declaration, separate possession through partition and permanent injunction, instituted by respondent No.1 (Mst. Farzana Zia) and her sister , Mst. Fakhra Zia, against their brother , respondent No.4 (Ihtisham-ul-Haq) and the petitioner who is respondent No.4' s wife. FACTUAL BACKGROUND: 2. The controversy in this case is primarily regarding ownership of House No.386, Street No.64, Sector I-8/3, Islamabad, measuring 355.55 square yards ("the suit house"), which had been purchased by Mr. Zia-ul-Haque Zia, who died on 03.12.2007. He was survived by the following legal heirs:- (i) Widow (Mst. Khadija Begum), who died on 10.04.2012 (ii) Son (Ihtisham-ul-Haq/ respondent No.4) (iii) Daughter (Farzana Zia/respondent No.1) and (iv) Daughter (Fakhra Zia), who died on 15.01.2015, and was survived by her husband/respondent No.2 ("Hafiz Nazir Ahmed") and her daughter/respondent No.3 ("Aqsa Nazir"). 3. For the sake of brevity , Saadia Andaleeb/petitioner shall be referred to as "Saadia" ; Ihtisham-ul-Haq/respondent No.4 shall be referred to as "Ihtisham" ; Farzana Zia/respondent No.1 shall be referred to as "Farzana" ; Fakhra Zia shall be referred to as "Fakhra" ; and Farzana and Fakhra shall be collectively referred to as "the plaintiffs" . 4. On 24.06.2013, Farzana instituted the said suit before the Court of learned Civil Judge, Islamabad. The prayer made in the said suit, is reproduced herein below:-
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"In these circumstances, it is, therefore, respectfully prayed that a decree for declaration to the effect that Release Deed No.2894, dated 30.05.2009, may be declared null and void ab initio and ineffective upon the rights and interest of the plaintiff as obtained through fraud and misrepresentation and without consideration may please be passed in favour of plaintiff and against the defendants. It is further prayed that a decree for separate possession through partition of the suit house No.386, Street No.64, Sector I-8/3, Islamabad to the extent of 1/4 share of the plaintiff be passed in favour of plaintiff and against the defendants. It is also prayed that the defendants be restrained from transferring or alienating the suit property in favour of any other person till the partition of the suit property . Any other relief which this Hon'ble Court deems just and proper be also awarded to the plaintiff." 5. In essence, Farzana' s case in the said civil suit was that when her father Mr. Zia-ul-Haque Zia died, all his legal heirs became co-owners of the suit house; that in order to have the suit house transferred in the co-owners' names, Ihtisham took his mother and sisters to the District Courts at Islamabad and obtained their signatures and thumb impressions on a stamp paper; that since Ihtisham' s mother and sisters reposed faith and confidence in him, they put their signatures and thumb impressions on the stamp paper; that Farzana was"unaware of the business of the courts and legal languages and was unaware of the legal proceedings required for the transfer of the inherited property" ; that subsequently , on 10.04.2012, Mst. Khadija Begum passed away; that on 10.06.2013, Ihtisham asked Farzana to vacate the suit house which caused her to seek legal advice; that after seeking legal advice, she came to know that on the basis of release deed No.2894, dated 30.05.2009, the suit house had been transferred on 18.06.2013 in Ihtisham' s favour; that Ihtisham had fraudulently obtained his sisters' and mother 's signatures and thumb impressions on the said release deed; that the said release deed had not been executed by Farzana with her free will; that Ihtisham had misrepresented that the signatures and thumb impressions on the stamp paper were required for the transfer of the suit house in favour of Mr. Zia-ul-Haque Zia's legal heirs; that Farzana had been deprived of her 1/4th share in the suit house; and that Farzana had not appeared before the Capital Development Authority and the Federal Government Employees Housing Foundation ("F.G.E.H.F .") for the transfer of the suit house. 6. When the said suit was instituted, Farzana's sister, namely, Fakhra, was impleaded as one of the defendants. On 23.09.2013, Fakhra filed an application praying for her transposition as plaintiff No.2 in the said suit. Fakhra asserted that she had also been cheated and defrauded by her brother and that her stance was similar to that of her sister, Farzana. The learned civil Court, vide order dated 23.09.2013, allowed the said application and Fakhra was transposed as plaintiff No.2 in the said suit. 7. On 04.10.2013, Ihtisham filed his written statement, wherein he refuted the allegations of fraud and misrepresentation made against him by his sisters. Ihtisham pleaded that Farzana was a well educated lady and her qualification was B.A. and B(Ed); that she was teaching in the Federal Government High Secondary School, Rawat, since the past 14 years; that Farzana was well aware of the laws of inheritance and the procedure of the Courts; that she was neither illiterate nor a 'pardahnashin' lady; that Farzana had also authored and published books including Bazm e-Janaa, Khawab Zinda Hain and Zia Ilm'O'Paiker'O'Wafa; that Farzana had willingly gone to the District Courts and appeared before the Joint Sub-Registrar for the registration of the release deed; that the said release deed was duly executed, witnessed and registered in accordance with the law. Ihtisham took the position that he had already transferred the suit house in favour of his wife, Saadia. 8. On 21.10.2013, Saadia filed an application under Order 1, Rule 10 C.P.C. for her impleadment as a party in the said suit. She asserted that she was a bonafide transferee of the suit house. The learned civil Court, vide order dated 08.01.2014, allowed Saadia' s application and she was impleaded as a defendant in the said suit. On 24.02.2014, she filed her written statement, wherein it was pleaded, inter-alia, that she being a bonafide transferee had become the lawful owner of the suit house. She also prayed for the dismissal of the suit with special costs. Out of the divergent pleadings of the parties, the learned civil Court, on 22.09.2014, framed the following issues:- "1. Whether the plaintiff is entitled for a decree for declaration to the effect that Release Deed No.2894 dated 30.05.2009 be declared null and void ab-initio and ineffective upon the rights and interest of the plaintiff as obtained through fraud and
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misrepresentation and without consideration? OPP 2. Whether the plaintiff is entitled for a decree for separate possession through partition of the suit house, to the extent of 1/4 share of the plaintiff in favour of the plaintiff and against the defendants? OPP 3. Whether the plaintiff has no cause of action or locus standi to file the instant suit? OPD 4. Whether the suit of the plaintiff is false, frivolous and vexatious? OPD 5. Whether the suit of the plaintiff is barred by law? OPD 6. Relief." 9. Farzana gave evidence as PW-1, whereas Fakhra as PW-2. The said witnesses were subjected to rigorous cross-examination. Mr. Zaheer Ahmed, Assistant Record Keeper, Federal Government Employees Housing Foundation ("F.G.E.H.F.") appeared as PW-3 and produced the allotment letter of the suit house as Exh.P/3; application form for the transfer of the suit house submitted by Ihtisham as Exh.P/4; release deed as Ex.P/5; proclamation regarding transfer as Exh.P/7; transfer letter dated 08.06.2011 in the name of Ihtisham, as Exh.P/9; and application for the issuance of N.O.C. as Exh.P/10, etc. 10. Ihtisham appeared as DW-1 and produced a succession certificate as Mark D/A. Saadia Andaleeb gave evidence as DW-2, whereas the marginal witnesses of the release deed, namely , Mr. Ahmed Nadeem Qaiser and Muhammad Ehsan, gave evidence as DW -3 and DW -4, respectively . 11. On 15.01.2015, Fakhra passed away . After Fakhra' s demise her legal heirs, namely Hafiz Nazir Ahmad/respondent No.2 and Aqsa Nazir/respondent No.3 were impleaded as co-plaintif fs in the suit. 12. On 27.07.2015, the learned civil Court passed a preliminary decree regarding the suit house. Hafiz Ali Asghar , Advocate, was appointed as the local Commission with the direction to suggest different modes of partitioning the suit house. It was also ordered that if the suit house was not capable of being partitioned, the Local Commission was to submit a report regarding the determination of its market value. It was also held that the release deed dated 30.05.2009 and the subsequent transfer of the suit house was void ab initio and ineffective on the rights of the plaintif fs in the suit, and liable to be cancelled. 13. The said judgment and decree dated 27.07.2015 was challenged by Ihtisham in appeal No.79/2015. This appeal was filed beyond the limitation period provided by law. Vide judgment dated 27.10.2015, the said appeal was dismissed as time barred. Ihtisham did not assail the said judgment any further . 14. The said judgment and decree dated 27.07.2015 was also challenged in appeal No.116/2015 by Saadia before the Court of the learned Additional District Judge, Islamabad. Vide judgment and decree dated 21.01.2016, the learned appellate Court dismissed the said appeal. The concurrent judgments and decrees passed by the learned Courts below have been impugned by the petitioner in the instant civil revision petition. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER: 15. Mr. Sajid Abbas Khan, learned counsel for the petitioner/Saadia, after narrating the facts leading to the filing of the instant civil revision petition, made submissions in reiteration of the written statements filed by Ihtisham and Saadia. Furthermore, it was submitted that the release deed dated 30.05.2009 was executed by Ihtisham's sisters and mother of their own accord and free will and without any compulsion or coercion on Ihtisham's part; that through the said release deed, Ihtisham's sisters and mother had relinquished their ownership rights in the suit house in Ihtisham's favour; that the said release deed was witnessed by two attesting witnesses and had been registered in accordance with the law; that during Mst. Khadija Begum's lifetime, the validity of the said release deed had not been questioned; that in their suit, the plaintiffs admit the execution of the said release deed but assert that their signatures and thumb impressions thereon were obtained through fraud and misrepresentation; that no particulars of fraud and misrepresentation had been given in the suit; that the plaintiffs claim to be pardahnashin ladies and were not aware of the legal languages but it is an admitted position that both the plaintiffs were educated ladies and were, therefore, well aware of the contents of the release deed; that since Farzana had also authored books, she could not assert that she was unaware of the contents of the release deed; and that the plaintiffs in the suit were unable to prove that the release deed was executed on the basis of fraud and misrepresentation. Learned counsel for the petitioner/Saadia prayed for the revision petition to be allowed and for the concurrent judgments and decrees passed by the learned Courts
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below to be set-aside. In making his submissions, learned counsel for the petitioner placed reliance on the cases of Mian Allah Ditta through L.Rs. Vs. Mst. Sakina Bibi (2013 SCMR 868), Nabi Bakhsh Vs. Fazal Hussain (2008 SCMR 1454), Habib Khan and others Vs. Mst. Bakhtmina and others (2004 SCMR 1668), Amir Haider Vs. Shabbir Ahmad through Legal Heirs and others (2000 SCMR 859) , Muhammad Akhtar Vs. Mst. Manna and others (2001 SCMR 1700), Syed Zulifqar Hussain Naqvi Vs. Syed Gulzar Hussain Shah (2005 YLR 2817 Lahore) and Noor Muhammad Vs. Jamal Din and others (2000 CLC 305 Lahore). CONTENTIONS OF THE LEARNED COUNSEL FOR THE RESPONDENTS NO.1 to 3: 16. On the other hand, learned counsel for respondents No.1 to 3 submitted that the concurrent judgments and decrees passed by the learned Courts below do not suffer from any misreading or non-reading of evidence so as to warrant interference in the revisional jurisdiction of this Court. He made submissions in reiteration of the pleadings in the suit. He further submitted that Ihtisham, being the beneficiary of the release deed, had not proved its execution in accordance with the law; that Ihtisham was in a position to dominate the will of his mother and sisters; that although the plaintiffs were well educated ladies, they observed pardah and were not proficient in legal matters; that Ihtisham had given his mother and sisters the impression that they were executing documents for the devolution of Mr. Zia-ul-Haque Zia's ownership rights in the suit house amongst his legal heirs; that Ihtisham had caused his mother and sisters to execute the release deed through fraud and misrepresentation; that Fakhra who was a disabled person had not signed the release deed in the presence of the Sub-Registrar; that Ihtisham had deprived the plaintiffs of their inherited shares in the suit house; and that Ihtisham's appeal against the judgment and decree passed by the learned civil Court had been dismissed by the learned appellate Court as time-barred. Learned counsel for the said respondents prayed for the revision petition to be dismissed. In making his submissions, learned counsel for respondents No.1 to 3 placed reliance on the cases of Muhammad Ahmad Chatta Vs. Iftikhar Ahmad Cheema (2016 SCMR 763), Jehanzeb Vs. Muhammad Israr (PLJ 2014 Peshawar 92), Mrs. Nasreen Awan VS. M. Sadiq (K.L.R. 1990 Civil Cases 520), Shouket Ali Vs. Muhammad Anwar (NLR 2004 Civil 515), Sahib Noor and others Vs. Feroz Khan (1992 MLD 2563 Peshwar), Munir Hussain and others Vs. Raja Mushtaq Ahmad (PLD 2006 Lahore 48) , Ghulam Bheek and others Vs. Mst. Salamat Bibi and others (2001 CLC 1078 Lah), Taisei Corporation Vs. A.M Construction Company (PLD 2012 Lah 455), Abdul Hameed through L.Rs. and others Vs. Shamasuddin and others (PLD 2008 SC 140), Muhammad Ashraf Vs. Muhammad Tahir Ismail and others (2011 MLD 1848 Lah), Kalsoom Akhtar Vs. Fazal Noor and others (2000 MLD 1653 Lah), Mst. Farzana Khatoon Vs. Mst. Bushra and others (PLD 1994 Karachi 92), Mst. Rasheeda Bibi and others Vs. Mukhtar Ahmad and others (2008 SCMR 1384), Ghulam Ali and others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Baja through L.Rs. and others Vs. MSt. Bakhan and others (2015 SCMR 1704), Muhammad Nazir Vs. Khurshid Begum (2005 SCMR 941), Muhammad Boota Vs. Mst. Rashidan BIbi and others (2008 SCMR 343), Syed Shabbir Hussain Shah Vs. Asghar Hussain Shah and others (2007 SCMR 1884), Fateh Khan (deceased) through L.Rs. Vs. Surriya Begum (2006 SCMR 930), Mst. Khurshid Bibi and others Vs. Ramzan and others (2005 CLC 1714 Lah), Khair Din Vs. Mst. Salaman and others (PLD 2002 SC 677), Haji Khuda Bukhsh and others Vs. Deputy Registrar, Cooperative Societies, Punjab, Lahore and others (PLD 2007 Lah 341), Syed Muhammad Baqir Shah Vs. Farida Sajid (2013 CLC 52 Lah), Muhammad Idrees and others Vs. Muhammad Pervaiz and others (2010 SCMR 5), Muhammad Tufail and others Vs. Akbar Ali and others (2004 SCMR 1370), Abu Bakar and others Vs. Mst Khayber Jan (2014 YLR 178 Peshwar), Ayub Khan Vs. Mst. Makhnoon (2010 CLC 870 Peshwar), Ch. Muhammad Boota Vs. Mst. Bano Begum (2003 CLC 485 Lah) and Muzaffar Khan Vs. Additional District Judge and others (2014 CLC Lah 318). 17. I have heard the contentions of the learned counsel for the contesting partie s, and have perused the record with their able assistance. The facts leading to the filing of the instant civil revision petition have been set out in sufficient details in paragraphs 2 to 14 above and need not be recapitulated. 18. The pivotal question that needs to be determined is whether Mst. Khadija Begum, Farzana and Fakhra, had relinquished their respective shares in the suit house in favour of Ihtisham through a registered release deed dated 30.05.2009.The pleadings in the civil suit show that the plaintif fs therein had impeached the said release deed on the following grounds:-
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"(1) that plaintif fs' signatures and thumb impressions on the release deed were obtained by Ihtisham through fraud and misrepresentation; (2) that the plaintif fs were under the impre ssion that they were signing documents for the transfer of the suit house in the names of their father 's legal heirs; (3) that the plaintif fs had signed the documents on the basis of confidence reposed by them in Ihtisham; and (4) that the plaintif fs were "house ladies" and did not know the "business of the Courts, and legal languages and were unaware of the legal proceedings required for the transfer of the inherited property ." 19. The release deed dated 30.05.2009 was produced in evidence as Ex.P/5 by PW-3 who was the Assistant Record Keeper of F.G.E.H.F . The said release deed was a registered document and bears registration No.2894. The certificate on the reverse of the said release deed shows that it was registered by the Joint Sub-Registrar , Islamabad, on 30.05.2009. 20. In order to prove the execution of the said release deed, Ihtisham-ul-Haq produced his two marginal witnesses, namely, Mr. Ahmed Nadeem Qaiser and Muhammad Ehsan as DW-3 and DW-4, respectively. These witnesses, in their examination-in-chief, deposed that they had signed the release deed as marginal witnesses. In his cross-examination, DW-3 deposed that he was asked by Ihtisham-ul-Haq and his mother to sign the release deed as a witness; that Fakhra did not sign the release deed in his presence but before his arrival; and that he and the other marginal witness signed the release deed after its executants had signed the same. Similarly, DW-4, in his cross-examination, also deposed that he was asked by Ihtisham's mother to become a marginal witness. There is nothing in the cross-examination of DW-3 and DW-4 which would show that they had not signed the release deed as its marginal witnesses. 21. True, marginal witnesses of a document are produced not merely to identify the signatures of the executants but also to prove that the executants had put their signatures on the document within their view. In the case at hand, DW-3 deposed that the release deed had been signed by Fakhra before his arrival, but this, in my view, is not sufficient to hold that the execution of the release deed has not been proved. I say this because neither Fakhra nor Farzana denied their signatures on the release deed. Since the executants of the release deed had admitted their signatures thereon, there was no need to prove the execution of the said document in terms of Article 79 of the Qanoon-e-Shahadat Order, 1984. A document which requires attestation can be admitted in evidence after the examination of the attestor, only if the execution is specifically denied. Law as we all know postulates that an admitted document need not be proved. Article 81 of the Qanoon-e-Shahadat Order, 1984 provides that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. In the case of Dr.Ijaz Ahmad Vs. Mst. Nasreen Akhtar (2005 SCMR 1259), it has been held that where the executant had not denied his signatures on the sale deed, there was no need to put the same to the executant. In the case of Mst. Zainab Khatoon Vs. Amir Abdullah Khan (PLD 2004 Lahore 330), the Hon'ble Lahore High Court, after making reference to Article 81 (ibid) held that where the execution of a document is admitted and not denied, admission thereof is sufficient proof of its execution and that such a document need not be proved in terms of Article 79 of the Qanoon-e-Shahadat Order, 1984. Law to the said effect has also been laid down in the cases of Mehmood Ahmad Vs. Malik Abdul Ghafoor (PLD 2011 Lahore 522), Iqbal Ahmad Sabri Vs. Fayyaz Ahmad (2007 CLC 1089) and Bashir Ahmed Vs. Akbar Ali (2005 MLD 2830). 22. Given the fact that the plaintiffs did not deny signing and putting their thumb impressions on the release deed and given that the marginal witnesses of the said release deed in their evidence did not deny signing the said deed as marginal witnesses, it is my view that the execution of the said release deed, which is a registered document, stands proved. In the case of Mirza Muhammad Sharif Vs. Mst. Nawab Bibi (1993 SCMR 462), it has been held that a "registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness". Law to the said effect has also been laid down in the cases of Muhammad Idrees Vs. Muhammad Pervaiz (2010 SCMR 5), Chaudhry Manzoor Ahmed Vs. Faisal Manzoor (2016 YLR 671), Asif Vs. Mst. Sangeeta (2013 CLC 1597 ), Syed Imdad Hussin Shah Vs. Syed Makhdoom Hussain Raza (2010 CLC 722),
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Mrs. Khalida Azhar Vs. Rustam Ali Bakhshi (2007 CLC 339) and Muhammad Aslam Vs. Rehmat Ali (2000 MLD 1459 ). 23. Now, as regards the question as to proof of transaction, the release deed in question has features akin to a gift. The operative portion of the release deed is reproduced herein below:- "AND WHEREAS in consideration of love and affection which the releasers have for the transferee wish(s) to renounce their right, interest, claim etc. in the above said plot/property in favour of Mr .Ihtisham-ul-Haque. NOW, this deed witness that the releasers hereby transfer/renounce their rights, interest, or claim in the above said plot/property, in favour of said Mr.Ihtisham-ul-Haque son of Zia ul-Haque Zia Late and hereafter releasers right interest or claim will cease and extinguish in the above mentioned plot/building." 24. The three executants of the release deed relinquished their shares in the suit house in Ihtisham' s favour without any monetary consideration. They divested themselves of all proprietary interest in the suit house. In effect, the three executants of the release deed gifted their shares in the suit house in Ihtisham' s favour . As mentioned above, the plaintif fs do not deny their signatures and thumb impressions on the said release deed, but in effect, assert that they did not know what they were signin g and putting their thumb impressions on. Therefore, they dispute the transaction under the release deed. 25. Since Ihtisham was the beneficiary of the said release deed, it was his obligation to prove the contents of the same and the transaction under the said deed. In the cases of Amjad Ikram Vs. Mst. Asiya Kauser (2015 SCMR 1), Rab Nawaz Vs. Ghulam Rasool (2014 SCMR 1181), Noor Muhammad Vs. Azmat-e-Bibi (2012 SCMR 1373), Khan Muhammad Vs. Muhammad Din (2010 SCMR 1351) and Aurangzeb Vs. Muhammad Jaffar (2007 SCMR 236), it has been held inter-alia that it is the duty and obligation of the beneficiary of a transaction or a document to prove the same in accordance with the Qanoon-e-Shahadat Order , 1984. Such a transaction, be it a gift or a release, has to be proved by convincing evidence satisfying the conscience of the Court that the document in question was executed by the donor in favour of the donee/beneficiary . 26. The essential ingredients of a valid gift are (i) declaration of the gift, (ii) acceptance of the gift, and (iii) delivery of possession to the donee. In the instant case, the satisfaction of the first condition has been disputed by the plaintiffs. Where there is no declaration of a gift, the question of its acceptance will not arise. It is not disputed that Ihtisham continued to remain in possession of the suit house after the execution of the release deed. Ihtisham appeared as DW-1 and deposed that the plaintiffs were well educated ladies and were aware of the contents of the release deed. Therefore, the pivotal question that needs to be determined is whether the plaintiffs were aware of the contents of the release deed and voluntarily signed the same mindful of the consequences. 27. In paragraphs 5 and 6 of the plaint, it is pleaded inter-alia that the plaintif fs are pardanashin ladies and do not know the business of the Courts and are unaware of the proceedings required for the transfer of a property to legal heirs. In Pakistan,…
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