Muhammad Sajjad Zamil and another Vs Irshad Zamil & 28 others

JUDGMENT SHEET

IN THE PESIIAWAR HIGH COURT,

(Judicial Department)

C.R No.70 9-Pt2008

Muhamma d adZamil and another ve$us adZamil &28 others.

Present: Mr. aheed . Advoca for oetiti on€nl.

M/s M Firdous e Arshad Jemel Oureshi.

Advocate fo r Resoondents.

Date ofhearing: 14.04.202s.

JT'DGMENT

MUHAMMAD NAEEM ANWAR "I.- This single judgment in the instant Civil Revision No.709/2008 shall also decide connected Civil Revision No.794-P of 2024 titled "Ghalib and others versas MsL Balsees Begum and others" as an identical question oflaw and fact is involved in both these petitions. Muhammad Sajjad and his wife Mst. Husan Bano are the petitioners of the instant petition who had questioned the legality and correctness of the judgment of Additional District Judge-, Peqhawar dated 04.6.2008, whereby the judgement & decree of learned Cvil Judge Peshawar, dated, 24.07.2007 dismissing the suit of respondent No.l, was allowed and the suit of plaintiff (respondent No.l) was decreed. Irshad Zamil son of Muhammad Gul Zamil, the plaintiff of suit No.28lll instituted on 01.11.2003, was seeking declaration that Muhammad Gul Zanil, his predecessor, was the owner of property bearing Khasra No.l20,l2l on the strength of deed No.l448 dated 30.10.1947 and of shop bearing No.l18, l19 on the strength of deed No.22 dated 03.01.1945, house No.l32 with 08 shops No.lll to 115 on the strength of deed No.l949 dated 06.11.1947, two shops bearing No.l16, 117 on the strength of deed tI- No.2055 dated 05.09.1946, two shops bearing No.l22 and 123 on the strength of deed No.35 dated 05.1.1945, two shops bearing No.l24, 125 on the strength ofdeed No.l855 dated 25.10.1962 as described in the plaint, situated in the Abadi of Choti Lal Kuti and Cantt Peshawar, who had never alienated the properties to anyone including petitioner No.l through any mean as he was an old-age person suffering from

dementia and was unable to manage the affairs of his properties and petitioner No.l being son had succeeded in manipulating the alienation of properties through gift deed No.2304 dated 03.08.1987,inhis favour which hansfer through tamleek is wrong, illegal, against the fact and repugnant to his rights. Likewise, transfer of property to petitioner No.2 by petitioner No.l through deed No.3068 dated 18.10.1995 is also based on mela fide and illegal. He through his suit had sought declaration, injunction, recovery of possession and recovery of rent. which properties are in possession of defendants No.13 to 3l through defendants No.l and 2 and he is entitled for receipt of their rent to the extent of his share. This suit was resisted by the petitioners on different legal and factual objections, who alleged that Muhammad Gul Zamil was the owner of the property, remained with them till his death, was sound, fit and competent to alienate the property, who with knowledge and satisfaction alienated the property to petitioner No.l and petitioner No. being the owner has transferred the property to petitioner No.2. They have controverted the allegations leveled in the plaint outrightly. Defendant No.5 submitted cognovit. Plaintiff produced Dr. Hilal as PW-I, Tariq Mehmood LDC of Cantonment Board PW-2, Iqbal Ahmad Registration Clerk PW-3, plaintiff himself entered in witness box as PW-4, Abdul Haleem appeared as PW-5 and closed their evidence, whereas defendant produced Taj Muhammad son of Khair Muhammad, Fazal Dad s/o Maula Dad, Fayaz Muhammad s/o Fida Muhammad as DW-l to DW-3 and petitioner No.1 himself appeared as DW-4, Ziarat Gul as DW-5 and closed their evidence. Learned Civil Judge through his judgment and decree dated 24.07 .2007 dismissed the suit being not proved, against which the plaintiff preferred appeal, which was allowed by learned Additional District Judge-l Peshawar on 04.06.2008, hence the instant petition.

2.In connected CR No.794 respondent No.l MsL Balqees Bibi now dead has filed a suit against her brothers and others seeking her share in the properties as described from relief (i) to (xi) and questioned the registered deed and other documents to be ineffective upon his legal and Shari status, which suit was resisted by defendant

No.2 and No.l4. After completion of evidence, the suit of the plaintiff Mst. Balqees Bibi was partly decreed and she to the extent of dismissal of her suit being aggrieved filed appeal, which was allowed, and her suit was decreed in her favour to the extent of prayer (&) of the plaint i.e. recovery of possession through partition. Hence, the connected petition.

3.Learned counsel for petitioners of the instant Civil Revision contended that the plaintiff alleged the old age and dementia of their predecessor but no evidence to that effect was placed on file. The certificate issued by PW-l was not of no help to the plaintiff being issued after the alienation of property through impugned deeds, possession of the property was transferred to petitioner No.l, who had alienated it to his wife being owner of the property. Marginal witnesses of gift deed were produced before the court in compliance with the provision of Article 79 of Qanoon-e-Shahadat Order of 1984, thus the suit could not be decreed, the findings oflearned appeal court based on no evidence, thus the judgment and decree of learned appeal court requires reversal, whereas the judgment of leamed trial court was well reasoned and in consonance with law. In support of his submission, he placed reliance on: (2002 S C M R 1330) ABDUL HAO Versus Mst. SURRYA BEGUM and others (200sscMR1278) (MsL PHAPIIAN throush L. Rs Vercus MaIIAMLIAD BAKHSH and others. (2007scMR 1446) ATTA MUHAMMAD Vercus MAULA BAKHSH and otherc. (2013 S C M R 291 MaIIAMMAD RUSTAM and onother Versus MsL MAKIIAN JAN qnd others. (zozs s c M R 1402) "Mst FAHEEMAN BEGUM throush L Rs and others YersusISLAM-UILDIN OECEASED) throush L. Rs qnd others and (2024 C L C i33) ABID SHERANI Versus TAHIR

SHERANI.

4.As against that learned counsel for respondent No.l contended that the gift deed, its ingredients i.e. offer, acceptance, transfer of possession were required to be proved but no such evidence was available on record, the witnesses, who appeared in support of petitioners could not contribute much in favour of defendants No.l and 2. Both the witnesses have negated the stance of the petitioners, as such

the learned appeal court has rightly reappraised the evidence through the impugned judgment and reversed it by decreeing the suit of the plaintiff/respondent No.l. In support of his submissions, he placed reliance on:(P L D 1950 Peshawar 45) SARDAR AHMED KHAN and others Versus Mst ZAMROOT JAN, (1972 S C M R 50) ASHIQ HUSSAIN AND ANOTHER Versus ASHIQ ALI, (P L D 1975 Supreme Court 624) Mst. IIAMIDA BEGUM Versus MsL MURAD BEGUM AND OTHERS, (P L D 1981 Peshawar 86) Qureshi NOOR HUSSAIN AND 7 OTHERS Versus GHUI-,,|M IAN AND 5 OTHERS, (1986 S C M R 1238) MUIAMMAD NAWAZ and others Versus Mst" ISMAT JAN, (1990 S C M R 1031) MAJEEDaDDIN KHAN and others Versus SARDAR KHAN and others, (1993 C L C 2448) Raja MUHAMMAD YASIN Versus ZAITOON BEGUM and others, (2000 S C M R 1845) MsL ROSIAN AXIITAR Vercus MUHAMDAD BOOTA and 4 otherc, (2000 S C M R 346) ABDUL RAHIM Versus Mn. JANNATAY BIBI and 13 otherc, (2002 S C M R 1938) BARKAT ALI vercus MUIIAMMAD ISMAIL through Legal Heirs and others, (P L D 2003 Azad J&K 2, KHARSHID AHMED and 7 others Versus ZEENAT BEGUM and another, (2005 Y L R 2994 (Lahore) SINDHI Versus ASHIQ ALI and 10 otherc, (2008 S C M R 1381) Mst RASHEEDA BIBI and others Vercus MUKHTAR AHtuIAD and others, (2012 C L C 1690) MUIIAMMAD AIRAN IIAN Versus MUIAMMAD IQBAL KHAN and 1 others, (2022 S C M R 1291) BASHIR AHNAD and another Versus Muhammad Raliq, (2022 S C M R 346) TAESINULI-AH Versus MsL PARWEN (DECEASED) through L Rs and otherc, (P L D 2022 Supreme Court 85) FAQIR ALI and others Versus SAKINA BIBI and others and (2022) S C M R 61) Mst PARWEN (DECEASED) through LRs Versus MUIIAMMAD PERVAIZ and others.

5.In the connected petition leamed counsel for petitioners has questioned the validity of judgment and decree of the leamed appeal * court and contended that the suit was rightly decreed partly, but for rest of the property the suit could not be decreed, and the leaned appeal court has wrongly allowed the appeal, which resulted into grave miscarriage of justice. He placed reliance on: (2012 S C M R 695) SAMAR SaLTAN and otherc Versus Mst. BIBI SaFAIDAN and others, (2015 S C M R 284) QaziABDaLALI and others Versus KhawaiaAFTAB AHMAD, (2016 Y L R I4E9 Peshawar) Syed AZIIAR HUSSAIN SIAH

Versus MEMBER BOARD OF REVENaE KHYBER PAKHTaNKHWA PROWNDE PESHAWAWR ond 9 others, (P L D 2016 peshawar 8) MUHAMMAD AYAZ und othen Vercus Malik ZAREEF KHAN and others, (2021 S C M R 772) BASHIR AHMAD ANJUM Versus MUIAMMAD RAFFIQaE and others, (2022 S C M R 55) MUSHTAQ AL AARIFIN Versus MUMTAZ MUHAMMAD and othen, (2023 S C M R 1645) REHMAT NOOR Versus ZULQARNAIN, (2023 S C M R 1118) FEDERATION OF PAKISTAN through Secretary, Ministry of Defense Rawalpindi and another Versus Messrs. FARRUKH INTERNATIONAL (PVT.) LTD. Through Proprietor and (2023 S C M R 980 MaIIAMMAI) RAFIQVenUs MsL GHAI-AM ZOHARAN MAI and another.

6.Conversely learned counsel for the respondents supported the impugned judgment.

L Arguments heard and record perused.

8.It is not disputed that Muhammad Gul Zamil was an old age person however, the plea that he could not manage the affairs of the property has not been proved by the plaintiff. Moreover, the plea that he was suffering from dementia or any other disease of the nature of Marz-ul-Maut death bed illness has also not been proved on record. The significant aspect was the alienation of the property through gift deed No.2304 dated 03.8.1987 (tamleek) whereby, the property was allegedly transferred by the father to son and was questioned by the plaintiffand under article 117 of Qanun-e-shahadat Order was required to be proved by the beneficiary. It is also in my mind that the one aspect of the allegations was the incompetence of donor of the gift but the question would be that even if the factum of senile dementia, mental illness, insanitv, lunacy or impairment of memory or abstract thinkine 't is not oroved. the olaintiff would be non-suited e ciallv. when the validin of the sift was challense d bv the olaintiffand it is an admitted nor was an old rson and the b ne cla ct that the a d is the son ofdonor and no familv member was the witness of Tamleek or the deed alle sedlv executed? T\e authentici ty and correctness ofthe deed was required to be proved by petitioner No.l. Ex DW-4/1 is the gift deed, which was allegedly executed on 10.0 1987 witnessed by

Fazal Dad and Taj Muhammad along with Syed Zahid Hussain Shah. Fazal Dad, Taj Muhammad and special attomey for petitioners appeared before the court but none of them could substantiate the factum of gift with reference to offer, acceptance and delivery of possession.

9.It is worth to mention that allegedly deed was executed on 10.05.1987, stamp papers were purchased on 08.04.1987 and deed was registered on 03.08.1987, witnesses of the deed Ex PW-4/l deposed that they being illiterate were unaware about the contents of the deed. There was nothing in the statements of special attorney for petitioners and marginal witnesses about the offer, acceptance and transfer of possession. Moreover, the marginal witnesses of the deed were Fazal Dad and Taj Muhammad, who appeared before the court, but the transferor was identified by Mushtaq Hussain councilor and Niqab Shah, none of them was produced before the court. The date of purchase ofthe stamp papers, execution ofthe deed and attestation of the registered deed is not of one and the same date. Stamp papers were purchased on 08.04.1987, allegedly the deed was executed on 10.05.1987 whereas the witnesses deposed that all the proceedings were conducted on one and the same day. Lack of the evidence about the basic ingredients of gift, non-production of identifier, difference of three dates, marginal witnesses being illiterate cold not depose about the contents of the deed before the court were the grounds, which were taken into consideration by the learned appeal court. In such an eventuality neither the validity ofthe gift deed could be proved by the petitioners, nor the execution of the documents has been established through direct, cogent and reliable evidence. ln Muhammad Sarwar vs. Mumtaz Bibi 2020 scMR 276 Hon'ble Supreme Court has observed that:

The petitioner also failed to independently prove the validity of the alleged gift mutation. This Court has held in a number of judgments thot where the validity ol a gift mutation is challenged, it is incumbent upon the benefici.ary not only to prove the validity and legality of the gift mutation by producing all relevant evidence,

but it is also necessary that the gift itself be proved through cogent and reliable evidence. Both the said requirements were admittedly not mel Neither the alleged oral gift was proved by any credible evidence not ntas the legality or validity of the alleged gilt mutation proved by producing credible evidence.

Likewise, in the case of "Peer Baksh throush LRs and others. vs MsL Khanzadi and others" (2016 SCMR 1417) the Hon'ble Supreme Court has held that

"4,.. the petitioner was under an obligation to establish the ingredients of the gift claimed by him under the impugned mutations. However, no particulars whatsoever of the fime, date, place and witnesses of the declaration of the gdt made by Ghulam Muhammad deceased in favour ol the petitioner have been provided in his pleadings nor any evidence could be produced by him in this behalf '.

Reference may be made to the case of "Abid Hussain and others vs. Muhammad Yousaf and others" decided by the Supreme Court recently in CIVIL PETITION No. 1647 OF 2018 decided on 03.02.2022, In the case in hand the petitioners could not prove the essential ingredients of gift as observed by the Supreme court in the case Bilal Hussain and another vs. Dilowar Shah ( PLD 2018 SC 698\. Asha Sved Mushtaoue Ali Shah v. Mst. Bibi Gul Jan and others Q0l6 SCMR 910), Forid and others vs. Tufail and others 2018 SCMR 139 . The judgment of the learned trial court was not in consonance with the basic principle of the gift, as such it was rightly tumed down by the learned appeal court. Correct that the frst plea about the mental capacity, incompetency or dementia was alleged by the plaintiffbut no evidence could be brought on record to prove the said fact but it is equally important that since the correctness an validity of the gift was required to be proved by the petitioners who could not substantiate their contentions through cogent, reliable, direct or positive evidence thus, irespective of the proof of ailment of alleged doner, the alleged tamleek could not be held to be a valid transfer in favour of petitioner No.l.

10.Adverting to the legal aspect of the connected petition whereby Mst. Balqees Bibi d/o Muhammad Gul Zanil (now deceased) was seeking declaration about her legal and Shari share in the property described at S.No.l to S.No.ll being the daughter of Muhammad Gul Zanil. The erstwhile predecessor-in-interest Muzamil Khan was owner of property described at S.No. i and S.No.viii, wherein the predecessor-in-interest of Mst.Balqees Bibi was the owner of the property from S.No.l to S.No.l0 being the sole legal heir of Muzamil Khan, which was devolved upon her on the death of Muzamil Khan. The plaintiffhas made construction therein.

The property at S.No.l I was purchased by her vide payment of sale consideration however, defendant No.2 Muhammad Sajjad Zunil was benamidar, who had no ownership right. Defendant No.l to 3 with their collusion inter-se have manipulated the execution of forged deed in favour of defendant No.l, who alleged himself to be the special attomey on behalf of Balqees Bibi, who was illiterate and parda nasheen, has never appointed defendant No.l as attorney, neither she appeared before any authority nor put her thumb impression or signature on any such deed. The alienation of the property on the shength of alleged forged power of attorney is inoperative upon her right. Since the basic question that whether the alienation of the property on behalf of defendant No.l being alleged attorney on behalf of plaintiff was correct and whether through registered deed No.l267 the property was purchased by Muzamil Khan and defendant No.l was not more than benamidar, who was admittedly minor at that time. So far as first question is concemed, the execution of power of attorney was required to be proved by the ,\ beneficiary and on the strength of power of attomey the transaction/alienation made in favour of rest of the defendants were also to be proved by defendants, but they have not brought on record any evidence in support of their contention. It is an axiomatic principle of law that when legality and correctness of a deed was questioned, the beneficiary will have to prove it. Reliance is placed

on the case of 'oKhan Muh ammad V/S Muhammad Din throush LRs". 2010 scMR 1351 wherein it has been held that:

"S.,Jt is seuled principle of law that who lodges afact must prove it on the well-known mtxim of Secundam allegata et probata It is also I settled principle of law that the appetlant is a beneliciary of the aloresaid documen&, therefore, it is the duty and obligation of the appellant to prove the documents os pointed out by lhe learned counsel in occordunce with the provisions of Qanoon-e-shahadat Order, 1984...1t is well settled principle of law that initial burden to prove execution of documents is on party which is relying on documents. Once this onus is discharged, burden to provefactum of fraud or undue intluence or genuineness of documents shifts to party which alleges fraud".

In addition, in the case of "MsL Parveen eil throush LRs v. Muhammad Pervaiz and others" 2022 SCMR 64 it has been held that:

"10...On the death of a Muslim his/her propemy devolves upon his/her legal heirs. However, if any heir seeks to uclude the other legal heirs, as in the instant case by relying on a purported gW the benefrciary of such gift must prove it".

It is an admitted fact that in the year 1994 when registered deed No.l267 was attested defendant No.l was minor and he could not purchase the property, pay the sale consideration rather Muzamil Khan has made the execution of the deed in favour of his grandson, Muzamil Khan has paid the sale consideration. In such a scenario the gift as alleged by the defendants was also required to be proved but no evidence to that effect was brought on record, thus the courts below has rightly held that this property was the ownership of Muzamil Khan, which was devolved upon Muhammad Gul Zamil and later to all the legal heirs. Leamed appellate court has rightly appreciated this aspect and granted preliminary decree for recovery of possession. Neither the stance taken by the defendants/petitioners could be established nor the execution of alleged power of attorney has been proved. Even otherwise the attomey can perform the

function in the best interest of the principle and if any alienation is made by him, he is required to get special permission from the principle, which too is lacking on the part of petitioner/defendant. Reliance is p laced on "Maos ood Ahmad and others vs. Salman A li" PLD 2003 S 31 wherein it was held that:

"13. With reference to the context of power of afrornqt we have pointed out to the learned counsel for appellants that os appellant Maqsood Ahmad had been authorized to deal with the affairs of the propedy including the Jinancial powers, therefore, { he wanted to transfer the land in respect whereof alkgedly respondent appointed him as altorney to deal with his proper$, it was incumbent upon him to have sought prior approval of the Prtncipal betore transferring the land on the name of his brother Muhammad Ayub being the close relative of the attorney in order to make il a valid transaction in terms of section 21 I read wilh section 21 5 of the Contract AcL.".

Reliance may also be placed on "lamil Akhtar and olh Baba and others" LD 2003 SC 494 , wherein it has been held that:

"8. It is a settled principle of law that whenever a general attorney transfers the property of hb principal in his even namc or in the name of his close ftduciary relations, he has to take special permiss ion from th e p rincipal ".

Learned appeal court has rightly dilated upon the factual and legal aspect and decided the mater in favour of plaintiff now dead. Leamed counsel for the petitioner has not been able to point out any illegality, legal error in the judgment of the leamed appellate court. Since it was held that transfer in favour of petitioner No. I and thereafter, to petitioner No.2 was not legally correct thus, the property would be devolved upon all the legal heirs to the extent of their legal and Shari shares thus, the appellate court has rightly evaluated the evidence of the case of connected civil revision which too require no interference.

'J

11.For the reasons discussed above, the instant Civil Revision as well as the connected Civil Revision petition, being bereft of merits, are hereby dismissed.

Announced.

JUDGE

(SB)Hon'ble Mr. Justicc Muhrmmrd Nreem Anwsr ,{rirr,".9.s.s