2021 S C M R 1986
(a) Specific Relief Act (I of 1877)---
----Ss. 39 & 42---'Suit for declaration of a document' and 'suit for cancellation of a document'---Distinction between both remedies---Marked yet subtle distinction existed between a suit for cancellation of a document under S. 39 of the Specific Relief Act, 1877 ('Act of 1877'), and a suit for declaration of a document under S. 42 of the Act of 1877---Crucial feature determining which remedy the aggrieved person was to adopt, was: whether the document was void or voidable---In case of a voidable document, for instance, where the document was admitted to have been executed by the executant, but was challenged for his consent having been obtained by coercion, fraud, misrepresentation or undue influence, then the person aggrieved only had the remedy of instituting a suit for cancellation of that document under S. 39 of the Act of 1877, and a suit for declaration regarding the said document under S. 42 was not maintainable---On the other hand, in respect of a void document, for instance, when the execution of the document was denied as being forged or procured through deceit about the very nature of the document, then the person aggrieved had the option to institute a suit, either for cancellation of that instrument under S. 39 of the Act of 1877, or for declaration of his right not to be affected by that document under S. 42 of the Act of 1877; it was not necessary for him to file a suit for cancellation of the void document.
(b) Specific Relief Act (I of 1877)---
----Ss. 39, 42 & 54---Gift deed---Suit for declaration and permanent injunction challenging the gift deed---Maintainability---High Court had dismissed the suit on the basis that as the gift deed was a registered document, only a suit for cancellation of the gift deed under S. 39 of the Specific Relief Act, 1877 was competent; and second, a suit for simple declaration without seeking any consequential relief, in particular possession of the disputed property, was not legally competent---Legality---Petitioners (plaintiffs) had not only challenged the gift deed to be void, but had also sought consequential injunctive relief---Thus, the finding of the High Court on the maintainability of the suit was factually unfounded, and legally incorrect---As far as not seeking possession of the disputed property was concerned, the record was clear that no reliable evidence was adduced by the respondents (defendants) to prove their exclusive possession thereof---No independent evidence was produced by the respondents to prove the factum of transfer of possession of the disputed property to them under the gift deed---In fact, there was a clear finding of the trial court that the possession of the disputed property remained under the control of the purported donor till his death, and further that the same was being cultivated by the tenants---Even otherwise, the petitioners claim themselves to be the co-owners of the disputed property with the respondents, having inherited the same from their father---Possession of one co-owner was considered, in law, to be the possession for and on behalf of all the co-owners---Thus, the suit of the petitioners in its form and content was maintainable and competent under the law--
(c) Qanun-e-Shahadat (10 of 1984)---
----Arts. 117 & 188---Onus of proof---Onus to prove the claim was ordinarily on the person moving the court to seek his relief, as he was the one who was to fail if no evidence at all was given on either side---However, when the contesting party took up a defence and desired the court to pronounce judgment as to his legal right dependent on the existence of facts which he asserted, then the onus to prove those facts laid on him---After the parties had produced their respective evidence, the court was to consider and evaluate the evidence, in civil cases, on the touchstone of preponderance of evidence---On whoever's side the scale of evidence tilted would emerge as the victor, and be awarded the positive verdict.
(d) Qanun-e-Shahadat (10 of 1984)---
----Art. 129(e)---Registered gift deed---Proof---Presumption of truth---Factum of registration of a document was essentially a notice to the public regarding its existence and validity, and having been registered by the Sub-Registrar in the performance of his official act there was a presumption of truth attached thereto under the law---However the moment the said document was challenged by the alleged executant or his successor-in-interest, that presumption stood rebutted, and the beneficiary thereof had to prove not only the execution thereof, but also the original transaction embodied therein---In the present case the alleged donees (respondents) were unable to prove the factum of due execution and valid registration of the gift deed---No attesting witness of the gift deed had been examined to prove execution---Competent officer of the Sub-Registrar Office of the concerned District, where the gift deed was claimed to have been registered, would have been the competent and relevant witness to prove the factum of registration of the gift deed---Failure on the part of the alleged donees to produce the said witness would surely go against them---No independent witness was produced to prove that the purported donor had made declaration of gift of the disputed property, in his presence to the purported donees---Only evidence in such regard was the oral testimony of one of the purported donees which, in the present case, did not cross the threshold of veracity and sufficiency required in such a contested transaction---Similarly, the factum of transfer of possession was also not very clear---Khasra Gardawari produced by the alleged donees was not of the relevant period---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of High Court was set aside and suit filed by petitioners was decreed.
(e) Islamic law---
----Gift---Conditions for a valid gift---Under Islamic law the conditions of a valid gift, were, first, a declaration of gift by the donor; second, acceptance of gift expressly or impliedly by or on behalf of the donee, and third, delivery of possession of the subject-matter by the donor to the donee---If these three conditions were fulfilled, the gift was complete---Registration of the gift deed would not be of much legal usefulness, if any of the said conditions was missing.
