Mst Noor Bibi vs Waryam etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH

MULTAN

JUDICIAL DEPARTMENT

Regular First Appeal No.02 of 2017

Mst. Noor Bibi widow of Muhammad Ramzan & others Versus Waryam s/o Lal Din (deceased) through legal heirs

JUDGMENT

Date of hearing: 07.09.2026.

Appellants by: Haji Muhammad Tariq Aziz Khokhar, Advocate.

Respondents by: M/s Ch. Pervaiz Akhtar Gujjar and Azam Sohail Azmi, Advocates.

MUHAMMAD SAJID MEHMOOD SETHI, J.- This Regular First Appeal is directed against the judgment and decree dated 01.12.2016 passed by the learned Additional District Judge, Chichawatni ("the learned trial Court"), whereby the suit filed by the appellants for recovery of Rs.10,00,000/- on the basis of a pronote and receipt dated 24.04.2012, allegedly executed by Waryam, predecessor- in-interest of the respondents, was dismissed.

FACTS

2.The appellants' case, briefly, is that their predecessor Muhammad Ramzan and Waryam, predecessor-in-interest of the respondents, were real brothers. It was pleaded that on 24.04.2012 Waryam borrowed Rs.10,00,000/- from Ramzan in the presence of witnesses and, in lieu thereof, executed a pronote and a receipt of the same date. It was further pleaded that Waryam did not repay the amount during his lifetime despite demand, and that after his death the respondents, being his legal heirs, remained liable to discharge the debt but failed to do so, giving rise to the suit.

3.The respondents resisted the suit, denying the existence of cordial relations between the two families on account of pending criminal litigation, and denying execution of the pronote and receipt

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altogether. Their specific case was that Ramzan had obtained Waryam's thumb impression on blank papers under the pretext of effecting a compromise in a criminal case, and had subsequently misused the same to fabricate the pronote and receipt in question, on the basis of which the present suit was maliciously instituted.

4.On the divergent pleadings, the learned trial Court framed the following issues:

(i)Whether the plaintiffs are entitled to a decree for recovery of Rs.10,00,000/- on the basis of the pronote and receipt dated 24.04.2012 as prayed for? OPP (ii) Whether the plaintiffs have got no cause of action to file this suit? OPP

(iii)Whether suit of the plaintiffs is not maintainable in its present form and liable to be dismissed? OPP

(iv)Whether the plaintiffs have not come to the Court with clean hands? OPD

(v)Whether the suit of the plaintiffs is based on malafide and liable to be dismissed and the defendants are entitled to get special cost under Section 35-A of CPC?

OPD

(vi)Relief.

5.The appellants examined Noor Bibi (appellant No.1) )PW-1(, Nizam Din (PW-2), Rajab Ali (PW-3), who claimed to be witnesses to execution, Umar Hayat (PW-4), the scribe of the pronote; and Bashir Ahmad Zia, Advocate/Notary Public (PW-5), who attested the document. The respondents, in rebuttal, examined Munir Ahmad as DW-1 and placed documentary material on record, including a suit instituted by the respondents themselves for cancellation of the very pronote in question (Ex.D-1). By the impugned judgment, the learned trial Court decided Issue No.1 against the appellants, holding that execution of the pronote and payment of consideration had not been proved, and consequently the suit was dismissed.

CONTENTIONS OF THE PARTIES

6.Learned counsel for the appellants contends that the learned trial Court ignored the pleadings and evidence produced by the appellants. He argues that the suit was dismissed on mere technicalities without touching the real merits of the case. He further

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submits that once due execution of a negotiable instrument stands proved through the scribe, the identifying/marginal witnesses and the attesting Notary Public, the statutory presumption of consideration under Section 118 of the Negotiable Instruments Act, 1881 (“the Act of 1881”) comes into play, and the burden shifts onto the respondents to rebut the same, which burden they failed to discharge.

7.Conversely, learned counsel for the respondents supports the impugned judgment and submits that the finding on Issue No.1 is essentially a finding of fact based upon proper appreciation of the evidence, which does not warrant interference in appeal.

DISCUSSION AND FINDINGS

ISSUE NO.1

8.The controversy essentially involves two distinct but connected questions: first, whether Waryam consciously and genuinely executed the pronote and receipt dated 24.04.2012; and, second, whether the alleged instrument represented a transaction for consideration of Rs.10,00,000/-. The distinction is important. Section 118(a) of the Act of 1881 raises a statutory presumption that a negotiable instrument was made or drawn for consideration until the contrary is proved. The presumption is one of law and is therefore available to the holder of a duly proved negotiable instrument. It is, however, rebuttable and cannot be treated as an irrebuttable substitute for proof of the foundational facts where execution itself is specifically and plausibly denied.

9.The legal position is that the statutory presumption under Section 118 is intended to facilitate commercial efficacy of genuine negotiable instruments; it does not relieve the claimant of the obligation to establish the identity and genuineness of the instrument when the executant's conscious execution is specifically put in issue. Once a probable defence is raised from the circumstances appearing on the record, the Court must evaluate the evidence as a whole and determine whether the transaction has been established on the touchstone of preponderance of probabilities. The Supreme Court in Mehr Noor Muhammad v. Nazir Ahmed (PLD 2024 Supreme Court

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45)has reiterated that the presumption under Section 118 is rebuttable and that a probable defence may displace it. Thus, the question is not merely whether a thumb impression appears on a document, but whether the evidence establishes that the document was consciously executed for the transaction asserted by the claimant.

10.This approach also finds support from Abdul Jabbar v. Abdul Sattar (1998 SCMR 530), wherein the Supreme Court, in circumstances involving denial of execution and an allegation of fraud, emphasized that the onus upon the beneficiary was heavy to establish conscious execution of the disputed instrument. The principle emerging from the said judgment is of particular relevance where the very act of execution, rather than merely the terms of an admitted instrument, is disputed. Similarly, Syed Mubarak Hussain Shah v. Syed Muhammad Ayub Shah (deceased) through L.Rs (2024 MLD 1633) reiterates that mere production, registration or formal proof of a disputed document does not by itself establish the underlying transaction; where execution and the transaction are questioned, the beneficiary must establish the genuineness and essential ingredients of the transaction through cogent evidence. Although that case concerned a registered sale deed, the evidentiary principle is equally instructive here: proof of a document and proof of the transaction embodied in it are not necessarily synonymous.

11.The same principle must, however, be applied with due regard to the nature of the present instrument. A pronote satisfying Section 4 of the Act of 1881 is a negotiable instrument by virtue of the statute, and attestation is not an indispensable condition for its validity. The decisive question, therefore, is not whether the pronote contains attesting signatures or a notarial endorsement, but whether its execution by Waryam has been proved as a conscious and voluntary act. The Court must distinguish between proof that a thumb impression is that of the alleged maker and proof that such thumb impression was consciously affixed to the pronote in acknowledgment of a loan transaction.

12.The respondents' defence cannot be characterized as a bare or evasive denial. They specifically pleaded that Waryam's thumb

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impression had been obtained on blank papers under the pretext of compromise in criminal proceedings and that those papers were subsequently converted into the disputed pronote and receipt. This plea directly attacks the conscious execution and genuineness of the instrument. Once such a specific defence emerged from the pleadings and evidence, the Court was required to examine the entire factual matrix rather than mechanically applying the presumption under Section 118.

13.In this context, the circumstances emerging from the record assume considerable significance. First, PW-1 admitted the existence of prior criminal litigation between Muhammad Ramzan and Waryam. Such hostility does not, by itself, make a loan transaction impossible. It does, however, acquire evidentiary significance when read alongside the specific plea that a thumb impression was obtained on blank papers in the course of an attempted compromise and later misused. In such circumstances, the appellants were required to provide a convincing and coherent account of the circumstances in which a substantial sum of Rs.10,00,000/- was allegedly advanced between persons whose relations were admittedly strained.

14.Second, the documentary circumstances surrounding the alleged execution do not furnish the corroboration which might ordinarily strengthen the appellants' case. PW-5, the Notary Public, stated that although the pronote bore his seal and date, there was no corresponding register entry or serial number. The absence of a notarial register entry is not, in isolation, sufficient to invalidate an otherwise satisfactorily proved instrument. Its importance lies in its cumulative effect when considered with the specific allegation of misuse of blank papers and the other deficiencies in the appellants' evidence.

15.Third, the conduct of the respondents shortly after the alleged transaction is relevant. They did not merely deny the pronote in their written statement; they had also instituted separate proceedings seeking cancellation of the very instrument relied upon by the appellants, which was produced as Ex.D-1. This contemporaneous conduct lends substance to their plea that the genuineness of the

Regular First Appeal No.02 of 2017

document had been questioned independently and was not a defence subsequently invented merely to defeat the recovery suit. The appellants have not furnished a satisfactory explanation for this circumstance.

16.Fourth, the evidence of the appellants' witnesses, when examined in its entirety, does not satisfactorily explain the circumstances of the alleged advancement of Rs.10,00,000/-. The witnesses support the formal execution of the document, but the record does not disclose convincing particulars regarding the source and arrangement of such a substantial amount, the precise circumstances of its delivery, or any subsequent conduct of Waryam acknowledging the alleged liability. It is not being held that independent proof of physical delivery of cash is an indispensable requirement in every suit on a pronote. Once genuine execution is established, Section 118(a) may legitimately operate without requiring the plaintiff to prove cash by a separate documentary trail. The difficulty for the appellants in the present case arises earlier: the foundational fact of conscious and genuine execution itself has not been established to the required standard.

17.The evidentiary principle is further illuminated, though on distinguishable facts, by Jannat Bibi v. Sikandar Ali and others (PLD 1990 SC 642). The Supreme Court there dealt with documents attributed to illiterate/pardanashin women and emphasized that, where execution is denied and the beneficiary relies upon the transaction, the beneficiary must affirmatively establish that the document was genuinely and freely executed and understood by the executant. The special safeguards applicable to a pardanashin lady obviously have no direct application to Waryam; nevertheless, the broader proposition that formal production or attestation of a disputed document is not by itself sufficient where its conscious execution is specifically denied is relevant to the present controversy.

18.The cumulative effect of the evidence, rather than any isolated circumstance, is decisive. The admitted background of litigation; the specific plea of procurement of a thumb impression on blank papers; the absence of corresponding notarial register material; the

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respondents' contemporaneous institution of proceedings for cancellation; and the lack of satisfactory corroboration regarding the circumstances and source of the alleged loan, when considered together, create a probable and reasonable doubt as to whether the disputed pronote was consciously executed by Waryam in respect of a genuine loan transaction. Each circumstance, standing alone, may not be conclusive. Civil adjudication, however, requires the Court to consider the cumulative probative value of the evidence and circumstances.

20.Once such circumstances are present, the statutory presumption under Section 118(a) cannot be invoked as a device to bridge an evidentiary gap concerning the very execution of the instrument. The presumption assists a holder of a genuine negotiable instrument; it does not prevent the Court from examining a specific and probable defence that the instrument itself was not consciously executed or that the document was created by misuse of a pre-existing thumb impression. The ultimate burden in the suit remained upon the appellants to establish their entitlement on the basis of the case pleaded by them. On an overall appraisal, they have failed to discharge that burden on the standard of preponderance of probabilities.

21.It is, therefore, not the absence of a witness to the physical counting or handing over of cash which independently defeats the appellants' claim. Rather, even after excluding that consideration, the remaining evidence does not satisfactorily establish the genuineness of the pronote and the underlying transaction. The learned trial Court may not have articulated the entire evidentiary reasoning in the manner set out herein; nevertheless, its ultimate conclusion that the appellants failed to prove their entitlement under Issue No.1 is supported by the record and calls for no interference.

ISSUES NO.2 TO 5

22.As regards Issues Nos.2 to 5, the onus was upon the respondents. The record does not disclose substantive evidence sufficient to establish the pleas relating to want of cause of action, non-maintainability, lack of clean hands, or mala fide institution of the

Regular First Appeal No.02 of 2017

suit so as to justify special costs under Section 35-A, C.P.C. The learned trial Court, therefore, rightly decided these issues against the respondents. These findings have not been shown to suffer from misreading or non-reading of evidence and consequently do not warrant interference.

23.For the foregoing reasons, the cumulative evidentiary circumstances do not establish, on the preponderance of probabilities, that Waryam consciously and genuinely executed the pronote and receipt dated 24.04.2012 in consideration of a loan of Rs.10,00,000/-. Consequently, the presumption under Section 118(a) of the Act of 1881 cannot be pressed into service to supply the missing foundational proof. The finding on Issue No.1 is accordingly upheld, albeit for the reasons recorded herein. The findings on Issues Nos.2 to 5 are also maintained.

24.For the foregoing reasons, this Regular First Appeal is dismissed, and the judgment and decree dated 01.12.2016 passed by the learned Additional District Judge, Chichawatni, in Civil Suit No.23/ADJ of 2015 is maintained. Parties are left to bear their own costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan*