Mst. Shamim etc Vs Mst.Mumtaz Begum and others

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TUDGMENT

Date ofhearing.. .. ... . ...... .09,4,2025. o.... . ... .... . .

Petitioner(s) by:- Mr. Muhammad Tariq Javed, Advocate.

Respondent No.5 by: Syed Sikandar Rashid, Advocate.

Respondent No. 1:- In person.

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WIOAR AHMAD. f:- Brief facts, as stated in the plaint, were that respondents No. I and 3 to 8 were the daughters and sons, whereas respondentNo. 2 was the widow ofEazal-e-Elahi (deceased). The properly in dispute (House No. 1239ll situated at Mohalla Bazarqan, Asia Gate, Peshawar, along with tlree shops, as well as another shop bearing No. 5304/2020 along with a Bala Khana) was the legacy of their common predecessor. Respondents No. I to 8 were the legal heirs. Respondent No. 1 instituted a suit before learned Civil Judge- XVIII, Peshawar, for declaration and permanent injunction against respondents No. zto 8, claiming that she was entitled to her Shari share in the disputed property. She also alleged that, CR No. 692-Pn0l3

'\./ after the death of her father, the defendants fraudulently prepared a fake and bogus Tamleek Nama (Gift Deed) No. 109 dated 1 1.01.1987 regarding House No. 1239, (Ex.PW- ll2) and a Will Deed dated 07.01.1987 regarding Shop No. 530412020, (Ex.PW-lll), thereby depriving her of her rightful share in the legacy left by her father. She further averred that defendant No.

4 had been receiving the rent from the shops and had deprived the other legal heirs of their shares in the rental income.

2.Upon issuance of summons, respondents No. 2,3, 4, 6, and 7 appeared, submitted cognovits, and conceded to the plaintiff s claim. The petitioner (defendant No. 9) and respondent No. 5 ( Sifat Ilahildefendant No.4) however contested the suit by filing a written statement. Upon conclusion of proceedings, the suit filed by respondent No. I was dismissed vide judgment and decree dated 11.06.2012, passed by learned Civil Judge-XVIII, Peshawar. Feeling aggrieved, respondent No. 1 filed an appeal before learned Additional Distict Judge-I, Peshawar, which was allowed. The judgment and decree passed by learned civil court was set aside vide judgment & decree dated 10.07.2015, and the suit was decreed as prayed, granting shares to the legal heirs of Fazal Elahi in accordance with Shari law. The petitioner, Mst.

Shamim (Defendant No. 9 in the suit), then filed the present revision petition.

CRNo.69?,.PB0l5

if 3. Respondent No. 1 appeared in person and argued the case herself stating that she could not engage counsel. The arguments of learned counsel for petitioner and respondent No.

5 were heard, and the record was perused.

4.Perusal of record reveal that respondent No.l (Mst.

Mumtaz Begum) had instituted a suit before learned civil Court claiming therein that she had been entitled to her due share in the legacy of deceased Fazal Ilahi (her real father) and that two registered deeds i.e. Gift deed dated 1 1.1 .1987 (Ex.PW-ll}) and the Will deed Ex.PW-l/l were wrong, illegal and ineffective upon rights of plaintiff. Amongst other legal heirs of deceased Fazal Ilahi respondents No. 2,3,4,6 and 7 submitted cognovits and conceded to the stance of plaintiff while defendant No. 4 and 9, in the suit, contested the suit. It is important to be noted here that petitioner before this Court was defendant No.9 in the suit while defendant No. 4 namely, Sifat Ilahi was her former husband. Both had submitted joint written statement in the case.

Sifat Ilahi also appeared before the court as a witness and recorded his statement as DW-6. He had fully been defending executions of the two deeds mentioned above as well as the transaction incorporated therein. While replying to paru-7 ofthe plaint it had also been mentioned in the joint written statement that the prop erty acquired by defendant No.4 i.e. half share in the house in dispute, had further been given to defendant No.9 CR No. 692-Pn0l5

V (petitioner herein) and that the legal heirs of Fazal Ilahi had been bound by said deeds as well as the transactions creating title of the petitioner in respect of half share in the house. A development took place during pendency of the appeal where defendant No.4 in the suit namely Sifat Ilahi had appeared before leamed appellate court and conceded to the stance taken by respondent No.l in the appeal and gave his no objection on acceptance of the appeal. Rest of the respondents had not chosen to contest the appeal and had been proceeded Exparte except the petitioner (herein) This fact had been mentioned in para-5 of the impugned order as follows;

tts. Here too, the respondent No.9 did not let appellant to go unopposed as, her counsel appeared and put up opposition to the appeal, while the remaining respondents despite seruice of notice could not appear and so were proceeded against ex-parte, whereas respondent no.4 appeared and submitted his no objection upon the acceptance of the appeal to the exclusion of shops which he had statedlY have purchased."

5 The former husband and wife i.e. petitioner and respondent No.5 had developed an animosity amongst themselves by that time and the relations between the spouses had turned soar. This development was having substantial effect on the proceedings. learned appellate cotrt accepted the appeal and decreed the suit to the exclusion of the shops. The two impugned deeds i.e. Gift deed and Will deed were set aside as CRNo. 6Y2-?n0E

not proved. Regarding stance of respondent No.9 learned appellate court recorded his observations in para-ll of the judgment which are also reproduced for ready reference;

t'11. As far as the rights respondent No.9 Mst. Shameem Akhtar wife of Sifat Elahi is concerned, the respondent No.4 while submitting his written statement claiming to have transferred his property acquired by him through Tamleek nama in favour of his ex-wife i.e. respondent No.9 in lieu of dower is concerned, such deed was not exhibited on file nor has the respondent No.9 appeared in person or through attorney in support of this contention. Even otherwise when the foundation i.e. Tamleek Nama dated 11.1.1987 and will deed dated 7.i 1.1987 have been shaken and set at naught vide my aforementioned discussion, hence any edifice readied on the said deeds is bound to fall. The matter of dower being that of a family issue between husband and wife or ex- husband and ex-wife squarely falls beyond the jurisdiction of a civil court and the respondent No.9 is at liberty to knock the doors of a family court and seek redressal if so advised or desired."

6.Before this Court, only petitioner has filed instant civil revision challenging the judgment and decree dated t0.7.2015 of learned appellate court. It is also important to be noted that the gift deed Ex.PW-112 in favour ofpetitioner had though been mentioned in para-7 of the written statement however same had not been exhibited in evidence since there was no contest between spouses interse. Petitioner had not sep arately appeared and contested the suit while same was pending before learned civil Court. In the appellate court however, learned counsel for respondent No.9 had contested the appeal with fulI vigor. This CRNo.692-Pn0B

petition in such circumstances now involves the following questions;

(i)Whether Gift deed @x.PW'llz) and Will deed (Ex.PW-lll) have rightly been declared by learned appellate court through the impugned judgment to have been wrong, illegal and ineffective upon rights of respondent Nol?

(ii)Whether the gift deed in favour of former husband i.e. respondent No.S has rightly been discarded by learned appellate court in para-ll of the judgment (impugned herein)?

7 . So far as the first question is concerned, it is apparent that findings of learned appellate court were based on correct appraisal of evidence available on record. The situation as it stands regarding the gift deed (Ex.PW-ll2) and will deed Ex.PW-lll is that none of the legal heirs of Faz.al Ilahi have been defending same to have validly been executed. Rest of his legal heirs had submitted cognovits before the civil court and conceded stances of respondent No.l /plaintiff. Only one of the legal heirs namely Sifat Ilahi ( respondent No.5) had though contested the suit before civil Court but he too appeared before the appellate court and conceded stance of respondent No.l during pendency of the appeal. So by now none of the legal heirs of Fazal Ilahi (deceased) have been defending the two deeds. Same were also suspected for the right reasons by learned appellate court as mentioned in para-lO of the judgment. It included the main reason that at the time of execution ofthe two deeds Fazalllahi had been seriously ill and CRNo 69?,PB0l5

learned appellate court reached at the conclusion that he had been suffering from Marz Ul Mauth. Boththese deed had been executed less-than a month of his death. He had died on 5.2.1987 as per petitioner statement of respondent No. llplaintiff given in her cross examination. Said date of death had never been disputed by anyone during course of evidence and stood well established. Both these deeds had been executed in the month of January i.e. on 7 .1.1987 and I 1.1 .1987 .

Statement of the plaintiff that his father could not do anything except attending toilet had also been accepted by learned appellate court and the lack of affirmative evidence in respect of the fact that Faz.al Ilahi (deceased) had been in full senses while transferring his properly, have also been rightly noticed by said court. In the given circumstances when Fazal Ilahi (deceased) was living with his son Sifat Ilahi and wife Phoolan begum, the learned appellate court also inferred that he would also have been under undue influence of the two at the fag end of his life. These two documents have rightly been discarded in respect of which learned appellate court recorded valid reasons and findings. While findings of learned civil Court were found to be faulty and not arising from proper appreciation of evidence. Learned appellate court had also validly fixed onus of proof on respondent No.l in respect of execution of these two documents and findings of learned civil Court in this respect were not at all sustainable. It is even otherwise well CRNo.692-Pn0l5

\,, settled that when findings of two courts below are at variance then a revisional cotrt should give preference to findings of appellate forum. Reliance in this respect is placed on the case of Rao ABDUL REHMAN (DECEASED) through legal

heirs Vqrsus MUIfAMMAD ABZAL (DECEASED) through legal heirs and others reported as (2023 SCMR 815). Appraisal of evidence of appellate court was not the result of non-reading or misreading of evidence and this court has no reason to differ with findings of learned appellate court. In conclusion this court holds that both the gift deed (Ex.PW-L/2) and will deed (Ex.PW-lll) have rightly been declared by appellate cotrt to have been illegal, ultra vires and ineffective upon rights of respondent No.1/plaintiff. She has rightly been held entitled to her share in the legacy of her deceased father.

8.So far as Second question was concerned, it was apparent that strange relations had developed between petitioner and respondent No.5 after the matter had concluded in the civil Court. The matter has not been litigated or contested between petitioner and respondent No.5 at the stage of submission of pleadings, recording of evidence or making of final arguments before the Civil Cotrt. It was during pendency of the appeal that both the defendants (in the suit) took varying stances' Respondent No.9 had been claiming half of the house in dispute to have been given to her in dower or gift in lieu of dower which CRNo 692-Pl20lS

\,, fact have not remained disputed in the suit. It is a different matter that in para-7 of the joint written statement factum of execution of gift deed have been admiued by respondent No.5.

Now that this court has come to the conclusion that the will deed Ex.PW-lll' and gift deed Ex.PW-ll2have not been sustainable and same have rightly been set aside by learned appellate court even then it is conspicuous on record that gift in favour of petitioner had stood admitted on part of respondent No.5. Even if the two documents have been set at naught respondent No.5 was still having title in respect of share in the house in dispute to the extent of his shari entitlement in the legacy of F azal Ilahi (deceased) being his real son. When out of that entitlement he had admifiedly made gift in favour of petitioner i.e. ex-wife s€rme would be valid to the extent of his share in the house in dispute. The petitioner could not claim anything beyond shari share of respondent No.5 in the house in dispute as no one can transfer a better title than he himself possess but so far as the entitlement held by respondent No.5 is concerned, same has admiuedly been transferred in favour of petitioner. To said extent the registered gift deed (Ex.PW- ll2) in her favour would be valid, because same have been admitted in pata-7 of the written statement. It is well settled that facts admified need not be proved and in such circumstances learned appellate court should have given share of respondent No.5 in property in dispute to the petitioner when it has already made an order in CRNo 6Y2-PB0!5

v respect of distribution of the house inter-alia amongst the legal heirs. In respect of three shops an affidavit had been submitted by learned counsel for appellate and after his concession same had been executed from legacy being exclusively owned by respondent No.5 in para-L} of the judgment. None filed any revision in respect of said findings so this court would not like to touch said issue and leave that as it has been settled by learned appellate court. The petitioner has however made out a case to the extent of her entitlement in the properly in dispute to the extent of shari share of her former husband having been gifted in her favour.

g. In light of what has been discussed above, instant civil revision is partly allowed to the extent that judgment and decree of learned appellate court dated 10.7.2015 is modified to the extent that shari share of respondent no.5 held in the house in dispute shall be given to petitioner as her share in the properly in dispute. Rest of the judgment and decree of learned appellate court is kept intact.

Announced on;

09th of April,2025 *Zortg,lud*

(SB)Hon'ble Mr. Justice Wiqar Atrmad

CR No. 692-Pn0l5