PLJ 2024 Lahore (Note) 201
Present: Ch. Muhammad Masood Jahangir, J.
versus
QAISAR MUSTAFA, etc.--Respondents
C.R. No. 3604 of 2014, decided on 9.12.2020.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 39 & 42--Punjab Partition of Immovable Property Act, 2012,
S. 4--Petitioner’s suit for declaration was dismissed, while respondent’s suit for partition & cancellation was decree--Appeal- dismissed--Gift deed--No material irregularity was proved--Jurisdiction--Application for examining private witnesses--Dismissed--Withholding of evidence--It is well established by now that a party cannot be allowed to fill in lacunas left by it, especially when any such effort was not made before learned Trial as well as Appellate Court below--The other drawback of withholding of best evidence was sufficient to compel Courts to draw adverse inference against petitioners that had they been examined, they might not have withstood their credibility--Indeed through gift in favour of some of legal representatives, remaining were disinherited--It became sine qua non as well for petitioners to have proved reason as to why donor intended to deprive others, but nothing was brought on record to that effect, therefore, impugned gift deed could not be sustained--Advocate for petitioners had failed to persuade that either Courts below committed material irregularity patent illegality or impugned decrees were suffering from jurisdictional defect--Civil revision dismissed.
[Para 4, 5, 6 & 7] A, B, C & D
Ch. Muhammad Akram Shahid, Advocate for Petitioners.
Ch. Muhammad Nawaz Bowgun, Advocate for Respondents No. 1 & 3.
Mr. Sohail Zafar Sipra, Adv. For Respondent No. 2.
Mr. Abid Raza Shaheen, Advocate for Respondent No. 4 in connected CR No. 3675 of 2014.
Date of hearing: 9.12.2020.
Judgment
The Civil Revision in hand as well as connected bearing No. 3675 of 2014 being stringed with common question of fact & law are going to be decided conjunctively through this single judgment. However, source point for reference will be file in hand.
2. Briefly put, Mst. Sakina Bibi, mother of the parties in dispute was exclusive owner of the suit property, on whose death, it was devolved upon her husband Shaukat Ali Khan as well as daughters/petitioners and the sons/respondents. Thereafter, the entire share derived by Shaukat Ali Khan, father of the parties from the legacy of his widow was transferred to the daughters/petitioners through registered gift deed No. 176 dated 23.02.2008. It was admitted fact that the father/alleged donor then died within next three months. The sons/respondents having notice of the said instrument challenged the same by filing civil suit asserting that their father was suffering from cancer and incapacitated person, who neither pronounced the declaration of gift nor appeared before any person for execution/registration of gift deed, that the father was impersonated, that it being forged and fictitious document was inoperative upon their rights, thus not only prayed for its cancellation, rather also requested for the partition of joint property among the parties as per their respective shari shares. The daughters/beneficiaries not only defended the said case, rather on their behalf a declaratory suit for the confirmation of their exclusive title on the basis of aforenoted gift deed was independently filed as well. As the subject matter inter se the parties was common, therefore, both the suits were consolidated and while keeping in mind divergent pleadings of the parties, as many as 13 issues were framed, however, the pivotal one was Issue No. 11, which for brevity sake is solely reproduced hereunder:--
“11. Whether the impugned gift deed dated 23.06.2008 is false, illegal, after thought, collusive, ante-dated, outcome of fraud, mis-representation, therefore, the suit is liable to be dismissed? OPD.”
The parties were invited to lead evidence in pros & cons and after its appreciation, the learned Trial Court vide single judgment dated 30.01.2014 dismissed the suit of the sisters/beneficiaries/ petitioners, whereas the other instituted by the brothers/sons/ respondents was preliminary decreed. Although it was assailed through two different appeals, but without any success having been dismissed on 10.09.2014, therefore, instant as well as connected Civil Revision.
3. Arguments heard, record perused.
4. Before coming to main case, it is felt appropriate to attend applications (C.Ms.No. 2&1-C of 2019 in both the files respectively) made under Order XLI, Rule 27 of the Code, 1908 on behalf of petitioners seeking examination of four private witnesses, out of whom, Tahir Hussain is the marginal witness of the gift deed. It is well established by now that a party cannot be allowed to fill in lacunas left by it, especially when any such effort was not made before the learned Trial as well as the Appellate Court below. Moreover, its perusal reveals that explanation only to the extent of marginal witness was given therein that for his illness, he could not be examined earlier, but neither nature of his disease disclosed nor any supporting document attached therewith. Even these applications were filed after five years of the preferring of main cases in hand, which appeared to be meant just to prolong the proceedings, thus having no merit is dismissed.
5. Coming to the features of the main case, the moment two of the plaintiffs/brothers appeared in the witness-box as PWs. 1 & 2 and stated on oath in lines with the allegation narrated in the plaint, the onus of pivotal issue was shifted upon the petitioners/beneficiaries not only to prove the due construction of gift deed, but also to establish that alleged offer of gift was pronounced by the donor, accepted on behalf of the donees and possession changed hand in lieu thereof. It was wondrous that gift deed dated 23.02.2008 was only attested by single marginal witness, Tahir Hussain, whereas it being a document of future obligation under Article 17 of the Qanun-e-Shahadat Order, 1984 was required to be attested by at least two male or one male & two female witnesses and in absence thereof, its construction was not as per requirement of law. The next drastic aspect was that neither the said sole attesting witness nor the Attesting Officer, who registered the gift deed were examined. For these very reasons, the gift deed was not liable to be taken as evidence. The other drawback of withholding of best evidence was sufficient to compel the Courts to draw adverse inference against the petitioners/beneficiaries that had they been examined, they might have withstood their credibility. Besides it, on behalf of beneficiaries, Mst. Abida Shaukat (PW.1) although deposed in his statement-in-chief that gift was made by her father, but she never uttered that the said offer ever accepted or possession as a consequence thereof transferred to them. No doubt, the Scribe (PW-2) and Identifier (PW-3) were examined, but they did not depose a single word with regard to original transaction. Indeed by examining meager, weak & inconsistent evidence as well as withholding of the best one, neither the due construction of the subject document nor transaction referred therein proved by the beneficiaries. In absence thereof, the alleged transaction as well as the disputed instrument was rightly disbelieved as per ratio of the cases reported as Mst. Rasheeda Bibi vs. Mukhtar Ahmad (2008 SCMR 1384), Mst. Nagina Begum vs. Mst. Tahzim Akhtar (2009 SCMR 623), Mst. Shafqat Parveen us. Muhammad Iftikhar Amjad (2012 SCMR 1602) and Islam-ud-Din vs. Mst. Noor Jahan (2016 SCMR 986).
6. The next drawback of the case was that indeed through gift in favour of some of the legal representatives, the remaining were disinherited. In such given circumstances, it became sine qua non as well for the petitioners/beneficiaries/daughters to have proved the reason as to why the donor intended to deprive the others, but nothing was brought on record to that effect, therefore, impugned gift deed could not be sustained. See Ghulam Haider vs. Ghulam Rasool (2003 SCMR 1829) Mst. Kulsoom Bibi and another vs. Muhammad Arif and others (2005 SCMR 135), Abdul Ghafoor and others vs. Mukhtar Ahmad Khan and others (2006 SCMR 1144), Mst. Manzoor Begum through LRs. vs. Mst. Fateh Bibi, etc. (2016 SCMR 1596), Allah Ditta and others vs. Manaka Muhammad Siddique and others 2017 SCMR 402), Fareed and Others us. Muhammad Tufail and another (2018 SCMR 139) and Muhammad Sarwar vs. Mumtaz Bibi and others (2020 SCMR 276).
7. Ch. Muhammad Akram Shahid, Advocate for the petitioners has failed to persuade that either the Courts below committed material irregularity/patent illegality or the impugned decrees were suffering from jurisdictional defect. He even failed to convince that judgments under attack were tainted with misreading and non-reading of evidence, thus no case of interference is made out.
8. Consequently, the instant Civil Revision as well as connected Civil Revision No. 3675 of 2014 having no force and substance is dismissed. No order as to costs.
(J.K.) Civil revision dismissed
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