IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Civil Revision Appln.No.S-58 of 2017

 

Applicants                         :    Attiq-u-Rehman and others through

                                                Mr. Abdul Rehman Bhutto, Advocate

 

 

Respondents                  :       Through Mr.Rafique Ahmed Abro,

Advocate for respondent No.1,

 

Mr.Gulshan Dayo, Advocate

for respondent No.2   &

 

Mr.Asif Raza Pathan, State Counsel.

                   

                                               

Date of hearing              :       22.10.2018          

Date of order                :        26.10.2018                             

 

O R D E R

 

IRSHAD ALI SHAH, J.- The applicants, by way of instant Civil Revision Application, have impugned judgment dated 11.11.2017 and decree dated 15.11.2017, passed by learned 4th Additional District Judge, Larkana, in Civil Appeal No.82/2017 “Re-Attiq-u-Rehman and others Vs. Khadim Hussain and others”, whereby the appeal filed by the applicants against the consolidated judgment and decree dated 03.06.2017, passed by learned 2nd Senior Civil Judge, Larkana in F.C.Suit No.233/2015 “Re-Attiq-u-Rehman Vs. Khadim Hussain and others” and F.C.Suit No.284/2015 “Re.Khadim Hussain Vs. Attiq Rehman and others, were maintained.

2.                The facts in brief necessary for disposal of instant civil revision application are that Muhammad Siddique, the predecessor in interest of the applicants and the private respondents, was having residential house bearing City Survey No.2614, area of 237-4 square yards, situated at Ward-B, Larkana (which hence forthwith would be called and referred as suit house), the same according to applicant Attiq-u-Rehman was gifted to him by Muhammad Siddique (who happened to be his father) by way of registered deed, which was executed on 09.07.1992, and he as per him was accordingly put into possession whereof and subsequently he transferred the same by way of sale to his sons Amjad Hussain, Kashif Hussain, Shahzad Ali and Sajjad Hussain (co-applicants). On the basis of such gift deed, applicant Attiq-u-Rehman filed a suit before learned trial Court to be declared owner of the suit house.

3.                The respondents Khadim Hussain and others filed a separate F.C.Suit No.284/2015, before leaned 2nd Senior Civil Jude, Larkana, seeking declaration that the gift deed in favour of Attiq-u-Rehman allegedly executed by his father Muhammad Siddique is managed by applicant Attiq-u-Rehman and they being legal heirs (sons and daughters) of Muhammad Siddique are also entitled to inherit the suit house. By seeking such declaration, they also sought for partition and separate possession of the suit house.       

4.                The applicants and the private respondents submitted their written statements in denial to the averments made to their respective pleadings. Both the suits were consolidated and then learned trial Court framed the following consolidated issues.

i.       Whether the suit No.233/2015 is not maintainable?

ii.     Whether the suit property was gifted to the plaintiff by his father and he is lawful owner of suit property in Suit No.233/2015?

 

iii.  Whether the plaintiff Attiq-u-Rehman is entitled for relief as claimed in Suit No.233/2015?

iv.   Whether the Suit No.284/2015 is not maintainable?

v.     Whether the gift deed dated 09.07.1997 in favour of defendant Attiq-u-Rehman is forged and (is) liable to be cancelled?

 

vi.   Whether the plaintiff Khadim Hussain is entitled for relief as claimed in Suit No.284/2015?

 

vii.            What should the decree be?

5.                Applicant Attiq-u-Rehman in order to prove his case on above said issues examined himself at Exh.27, produced gift deed “Sanad”, true copy of registered deed, whereby he sold the suit house to his sons (co-applicants), “Sanad” and certified copy of order passed by this Court in civil petition and then closed the side.

6.                Respondent Khadim Hussain in order to prove his case on above issues produced copy of “Sanad”, application made by him and others to D.I.G Larkana, FIR, “Iqrarnama” dated 01.02.2014, letter dated 05.07.2015 for Faisla, D.W-02 Abdul Ghaffar at Exh.42 and then closed the side.

7.                D.W/Respondent Muzafar Hussain examined himself at Exh.49 and then closed the side.

8.                On the basis of evidence so produced, the learned trial Court dismissed the suit filed by the applicants while decreed the suit, filed by private respondents, by way of judgment and decree dated 03.06.2017, those on appeal preferred by the applicants were maintained by learned Appellate Court vide judgment and decree dated 11.11.2017 and 15.11.2017 respectively, as stated above.

9.                It is contended by the learned counsel for the applicants that applicant Attiq-u-Rehman was enjoying all the rights of ownership over the suit house which was gifted to him by his father Muhammad Siddique during his life time, which was not objected by any one. It was registered document, as such was carrying with it the presumption of correctness, the same ought not to have been disbelieved by learned trial and Appellate Courts. By contending so, he sought for reversal of concurrent findings of learned trial and Appellate Courts, as the same according to him have been based on misreading of evidence.

10.              It is contended by learned counsels for the private respondents that the learned trial and Appellate Courts have rightly dismissed the suit and appeal of the applicants by assigning very cogent reasons, the decree passed has already been satisfied. By contending so, they sought for dismissal of instant civil revision application. In support of their contentions, they have relied upon cases of Farid Bakhsh vs. Jind Wadda and others (2015 SCMR-1044), 2). Faridullah Shah and others Vs. Syed Inamullah Shah Bacha and others (2016 YLR-1248), 3). Shafi Muhammad and others Vs.Khanzada Gul and others (2007 SCMR-368), 4). Muhammad Ishaq Vs. Junan and others (2014 CLC-548), 5). Khurshid Anwar Jalil and others Vs. Muhammad Hafeez Mirza and others (2003 CLC-1695), 6). Ch. Muhammad Boota vs.Mst.Bano Begum (2003 CLC-485), 7). Abdul Haque and others Vs. Mst.Aasi through L.Rs and others (2009 CLC-510) and 8). Mst.Hayatan Mai Vs. Mst.Aziz Mai alias Azizi through L.Rs (2016 YLR-539).

11.              Learned State Counsel was fair enough to say that no public interest is involved in the instant litigation.

12.               I have considered the above arguments and perused the record.

13.               Before going into merits of the case, it is appropriate to state that it shall always be the beneficiary of any transaction, may it be a sale or gift, who shall have to prove the same by convincing evidence which, too, to satisfaction of judicial conscience of the Court. The reference may well be made upon the case of Aurangzeb through L.Rs and others v. Muhammad Jaffar and another (2007 SCMR-236), wherein it has been held that;

 

9….. It is a settled law qua the transaction or sale or gift, that it is the duty of the beneficiary and a heavy onus lay on the beneficiary to prove by convincing evidence satisfying the judicial conscience of the Court that the transaction shown to be a gift was executed by the donor in favour of the donee.

 

14.              It is also added that legally for making a gift complete and valid, it is not the requirement of law that it must be in writing or be got registered. Establishing satisfaction of required ingredients would always be sufficient even if the gift is claimed to be oral, however, once it is claimed to be in writing then same is to be proved as required by law for proving a document. Reference may be made upon the case of Muhammad Ejaz & 2 others v. Mst. Khalida Awan & another (2010 SCMR-342) wherein it has been observed that;

 

“6.     Under the Mohammedan Law, a gift, in order to be valid and binding upon the parties, must fulfill the following three conditions:-

 

a)    a declaration of gift by the donor;

b)    acceptance of gift by the donee; and

c)     delivery of possession of corpus;

 

On the fulfillment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the pre-requisites are complied with. Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registerable under the Registration Act, 1908”

 

15.              Having said so, it is found that applicant Attiq-u-Rehman has sought for declaration of ownership over the suit house, on the basis of registered gift deed, which allegedly was executed in his favour by his father Muhammad Siddique, which was challenged by the private respondents as managed. Undeniably, it is applicant Attiq-u-Rehman, who is the beneficiary of the claimed transaction (gift) therefore, once it was challenged as managed then burden was upon him to have proved the same by convincing evidence satisfying the judicial conscience of the Court. In that event, applicant Attiq-u-Rehman was under lawful obligation to have proved it in terms of Article 79 of the Qanun-e-Shahadat Order, 1984, which reads as under;

“Article-79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [at] least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence”.

 

16.              No attesting witness to above said document, as required by Article-79 of Qanun-e-Shahadat Order, 1984, applicant Attiq-u-Rehman was able to examine. It is a matter of record that the applicant Attiq-u-Rehman never claimed witnesses of document to be dead yet without any explanation avoided to examine them so as to prove genuineness of claimed gift-instrument. Such deliberate with-holding of the witnesses would always operate against the claimant. Reference in this context may well be placed upon the case of Farid Bakhsh v. Jind Wadda (2015 SCMR-1044) wherein it has been observed that;

 

“..The words ‘two attesting witnesses at least’ further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We , thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such.

         

The argument addressed on the strength of the judgment rendered in the case of Dil Murad and others v Akbar Shah (supra) has not moved us a bit when the appellant failing to call the other attesting witness failed to prove the deed in accordance with the requirements of law. Such failure, in the absence of any plausible explanation, would also give rise to an adverse presumption against the appellant under Article 129(g) of the Order”.

 

17.              However, Abdul Ghaffar, one of the attesting witness to the said agreement, was examined by Khadim Hussain and others, he during course of his examination was fair enough to state that it does not bear his signature. In that situation, it could be concluded safely that applicant Attiq-u-Rehman was not able to prove the execution of gift deed in his favour beyond shadow of doubt. In that context, the learned trial Court was right to refuse calling of the Sub-Registrar for his examination at the instance of applicant Attiq-u-Rehman.

18.              No strength is found in contention of learned counsel for the applicants that since document was registered one, hence was not liable to be declared invalid. It is added here that mere admission of making thumb-impression by appearing before Sub-Registrar or admission thereof in such office alone would not be sufficient to rebut all the challenges, if made/raised towards genuineness thereof. I am guided in such view with case of Rasheeda Bibi v. Mukhtar Ahmed (2008 SCMR-1384) wherein it has been held that;

“9. The mere admission of making thumb-impression or appearing before the Sub-Registrar is not sufficient….. Moreover, mere registration of a document in itself is not under the law proof of its execution by a person by whom it was alleged to have been executed, if any of the parties in litigation had denied its execution by the said person. In the case in hand, the executants themselves disputed the execution of the document. Therefore, the person claiming the execution of such document is required under the law to prove its execution by producing evidence that it was in fact executed. Reliance in this behalf can be placed on the case of Muhammad Sharif Uppal v. Akber Hussain PLD 1990 Lah. 229”.

 

 19.             Be that as it may, It is further added that since per Section 149 of Mohammedan Law, the validity of a gift shall always be dependent upon satisfactory completion of all three required ingredients. For clarity, the section 149 of Mohammedan Law is reproduced as under;

149. The three essential of a gift.--- It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the done, and (3) delivery of possession of the subject of the gift by the donor to the done as mentioned in Sec. 150. If these conditions are complied with, the gift is complete”.

 

 20.             Bare perusal of above provision of law would reveals that the gift would be valid whenever the offer is made by the donor, it is accepted by the donee with delivery of the possession of the property gifted out. It is also added here that even if one claims co-existence of all above three ingredients but if it is proved that donor, having made a declaration of gift, yet continues to exercise any act of ownership over it, then it would be sufficient to hold such claimed gift as invalid. Reference in this context is made to section 148 of Mohammedan Law, being relevant, which reads as under;

“148. Relinquishment by donor of ownership and dominion.—It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.

                  

A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void when he continues to exercise any act of ownership over it”.

 

21.              In the instant matter, applicant Attiq-u-Rehman during course of his cross examination was fair enough to state that it is fact that after the gift deed, we all brothers and sisters are residing in the suit house”, such statement on his part prima facie indicates that the possession of suit house was not delivered to him by his father Muhammad Siddique, as consequence of declaration of gift deed, which has made the very declaration of gift deed to be invalid. It was also not the claim of the applicant that after declaration of gift, the donor had practically parted from gifted property and never exercised any act of ownership.

22.              In the said circumstances, the learned trial and Appellate Courts were right to dismiss the suit of the applicants, such dismissal is not calling for any interference by this Court by way of instant civil revision application; it is dismissed accordingly, with no order as to costs.

 

                                                                                          JUDGE

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