Atnan Lal vs Joseph Lal

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

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Atnan Lal Vs. Joseph Lal S.No. of Date of Order with signature of Judge, and that of parties or counsel, order/ order/ where necessary.

proceeding Proceeding.

17.09.2026 Mian Abdul Rauf, Advocate for the petitioner.

Through this Civil Revision under Section 115 of the Code of Civil Procedure, 1908 (“C.P.C.”), the petitioner has called in question the judgment and decree dated 08.03.2025 passed by the learned Trial Court, whereby the suit for declaration and cancellation of gift deed instituted by the respondent was decreed, as well as the judgment and decree dated 18.11.2025 passed by the learned Appellate Court, whereby the appeal preferred by the petitioner was dismissed.

2.Briefly stated, the respondent instituted a suit for declaration and cancellation of gift deed against the petitioner, pleading that the parties are father and son, respectively. It was averred that the respondent, aged about 76 years, was suffering from a neurological ailment and had remained mentally incapacitated for a considerable period. According to the respondent, the petitioner, taking undue advantage of his condition, procured Registered Gift Deed No.521 dated 17.01.2019 in respect of land measuring 12 Marlas 208 square feet, situated in Mouza Mohra Shah Wali Shah, Tehsil Taxila, District Rawalpindi, without his free, conscious and informed consent. It was further pleaded that, at the relevant time, the respondent was not mentally competent to comprehend the nature and consequences of the transaction; that he had neither

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voluntarily executed the alleged gift nor delivered possession of the suit property to the petitioner; and that he came to know of the impugned gift deed only shortly before institution of the suit when the petitioner allegedly attempted to alienate the property through local property dealers. The petitioner contested the suit by filing a written statement. Issues were framed and the parties led their respective evidence. Upon appraisal thereof, the learned Trial Court decreed the suit vide judgment and decree dated 08.03.2025. The petitioner’s appeal was dismissed by the learned Appellate Court vide judgment and decree dated 18.11.2025. Hence, this Civil Revision.

3.Learned counsel for the petitioner contends that the impugned judgments and decrees are contrary to law and the evidence on record; that the Courts below wrongly concluded that the respondent, merely because of his advanced age and neurological condition, lacked the mental capacity to execute the gift deed; that Gift Deed No.521 dated 17.01.2019 was validly executed with the respondent’s free and voluntary consent; that the findings regarding fraud, deceit and undue influence are unsupported by any reliable evidence; that the material evidence produced by the petitioner in proof of due execution and attestation was misread and material evidence favourable to the petitioner was ignored; and that the learned Appellate Court also fell into error in dismissing the petitioner’s applications for production of additional evidence. Learned counsel accordingly seeks acceptance of the revision, setting aside of the judgments and decrees of the Courts below and dismissal of the respondent’s suit.

4.Heard. Record perused.

5.At the outset, the petitioner’s grievance regarding rejection of the applications for additional evidence requires consideration. The record shows that three

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applications were moved before the learned Appellate Court for production of additional evidence. All three applications were dismissed. The discretion vested in an Appellate Court under Order XLI Rule 27, C.P.C. is not intended to enable a party to fill lacunae in its case or to introduce evidence which, despite having the opportunity, was not produced before the Trial Court. The applicant must bring his case within one of the circumstances contemplated by the Rule and establish the necessity of such evidence for pronouncing judgment or for some other substantial cause. In the present case, the petitioner neither disclosed with requisite specificity the witnesses whom he intended to examine nor identified the documents sought to be produced, much less demonstrated their relevance or explained why such evidence could not be produced before the learned Trial Court. The learned Appellate Court, therefore, committed no illegality or material irregularity in declining the applications.

6.The principal controversy, however, concerns the validity of the alleged gift. The petitioner, being the beneficiary under the impugned transaction, was required to establish its lawful execution by cogent, confidence-inspiring and affirmative evidence. The burden assumes greater significance where the donor is an aged and infirm parent and the beneficiary is his close relative. The evidence produced by the petitioner does not satisfactorily discharge that burden.

7.DW-1 Mehmood Khan, who claimed to have attested the impugned deed, admitted in cross- examination that his signature and thumb impression do not appear on pages 1 and 2 of Exh.D.1. DW-2 Muhammad Mushtaq further admitted that the photograph of the respondent was taken inside a vehicle and not at the office of the Sub-Registrar; that his own photograph was not taken; and that the deed was signed

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outside the office of the Tehsildar rather than in the presence of the registering authority. He also admitted that the suit property continues to remain in the possession of the petitioner. These admissions materially weaken the petitioner’s assertion that a voluntary and completed gift was duly brought into existence and effectuated in accordance with law.

8.The testimony of CW-1 Qaisar Mehmood, who claimed to be the scribe as well as a marginal witness of the impugned deed, is equally significant. He admitted that neither the respondent nor the petitioner was present when the deed was typed; that the expression “Witness No.01” was inserted manually; that “Witness No.02” does not bear the name of any person; and that the document does not contain the signature or thumb impression of a second marginal witness. Such admissions cannot be brushed aside as mere technical irregularities when the very execution and attestation of the gift are in dispute.

9.Section 122 of the Transfer of Property Act, 1882 defines “gift” as the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Section 123 thereof prescribes the mode of making a gift of immovable property and requires that such gift be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Thus, registration by itself does not dispense with proof of the essential ingredients of a valid gift, nor does it conclusively establish that the instrument was voluntarily executed by a competent donor. The Supreme Court in Khaliqdad Khan v. Mst. Zeenat Khatoon (2010 SCMR 1370) has reiterated the necessity of establishing the essential ingredients of a gift and has cautioned that mere registration of an

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instrument cannot, in itself, cure fundamental defects in the transaction. Likewise, where a party relies upon a gift as the foundation of his title, the burden lies upon him to establish the transaction through reliable evidence.

10.In the present case, the evidentiary deficiencies are not confined to the manner of attestation. The petitioner has also failed to satisfactorily establish the voluntary and conscious participation of the respondent in the transaction. The respondent appeared as PW-1 and consistently maintained that, owing to his neurological condition, he was not mentally capable of understanding or voluntarily entering into the transaction. Muhammad Asif appeared as PW-2 in support of his case. The respondent also produced medical record comprising medical report dated 23.10.2019 (Exh.P.1), MRI report dated 25.10.2019 (Exh.P.2), MRI request form dated 22.10.2019 (Exh.P.2/1), and reports of Shifa International Hospital dated 14.10.2019 and 21.11.2019 (Exhs.P.3 and P.4).

11.It is true that the medical documents relied upon by the respondent are subsequent to the date of the impugned gift, i.e. 17.01.2019. However, their evidentiary value cannot be discarded merely on that account where they relate to the same neurological condition and are supported by other evidence on record. More importantly, DW-1, an attesting witness produced by the petitioner himself, admitted that the respondent had been under treatment for a mental illness. The Courts below were, therefore, justified in examining the subsequent medical record in conjunction with the oral evidence and the surrounding circumstances to determine whether the respondent possessed the requisite capacity at the time of the transaction.

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12.The governing principle is embodied in Section 11 of the Contract Act, 1872, which provides that every person is competent to contract who is of the age of majority, is of sound mind, and is not disqualified from contracting by any law to which he is subject. Section 12 further explains the meaning of soundness of mind in relation to contractual capacity. It provides:

“12. What is a sound mind for the purposes of contracting.— A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.”

The test, therefore, is transaction-specific and time-specific. Advanced age or illness, by itself, does not render a person legally incapable; the material question is whether, at the time of the transaction, the person was capable of understanding the transaction and forming a rational judgment as to its effect upon his interests. Where credible evidence establishes absence of such capacity at the material time, the transaction cannot be sustained merely because it bears the formal appearance of registration. The principle has been recognized by the august Supreme Court in Rab Nawaz and others v. Ghulam Rasul (2014 SCMR 1181), wherein it was observed that: - “In Muhammad Bakhsh Khan v. Hosseini Bibi (ILR 15 PC 684), their Lordships of the Judicial Committee observed that “where undue influence is alleged it is necessary to examine very closely all the circumstances of the case. The principles are always the same, though the circumstances differ; and, as a general rule, the same questions arise;

(a)whether the gift in question is one which a right- minded person might be expected to make; (b) is it or is it not an improvident act on the donor’s part;

(c)is it such as to have required advice, if any, obtained by the donor; and (d) whether the intention to make the gift originated with the donor” In Inche Noriah v. Shaikh Allie Bin Omer (1929 AC 127) it was stated that “where the relation between the donor and donee raises a presumption that the donee had influence over the donor, the Court will set aside the gift unless the donee establishes that it

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was the spontaneous act of the donor acting in circumstances which enabled him to exercise an independent will, and which justified the Court in holding that it was the result of a free exercise of the donor’s will.”

13.The present case also involves the relationship between the donor and donee. The parties are father and son; the donor was of advanced age and, according to the evidence, was suffering from a neurological condition. In such circumstances, the transaction calls for careful judicial scrutiny. Section 16 of the Contract Act, 1872 defines undue influence and provides, inter alia, that a contract is induced by undue influence where the relations subsisting between the parties are such that one of them is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Sub-section (3) further provides that where a person in a position to dominate the will of another enters into a transaction with him which appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that the contract was not induced by undue influence lies upon the person in a position to dominate the will of the other. The Supreme Court in Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) has recognized the necessity of heightened scrutiny in transactions involving relationships of confidence, dependence and dominance, while holding that : - “The doctrine of undue influence, as contained in section 16 of the Contract Act, is to the effect that “a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other. “Subsection (2) of this section elaborates the principle further by saying that “a person is deemed to be in a position to dominate the will of another--

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The principle assumes particular relevance where an aged or infirm parent is alleged to have transferred valuable property in favour of a child.

14.In the case in hand, the petitioner was not merely a stranger beneficiary but the respondent’s son. The respondent was admittedly an elderly person and the evidence regarding his neurological and mental condition was available on the record. In these circumstances, the burden upon the petitioner was not discharged by merely producing the registered instrument. He was required to demonstrate, through reliable evidence, that the respondent understood the nature and consequences of the transaction, voluntarily executed the instrument, and that the gift was duly completed in accordance with law. The evidence of the petitioner’s own witnesses, however, introduces material contradictions and admissions concerning execution, attestation and the circumstances in which the deed was prepared and signed.

15.It is also settled that registration of an instrument does not constitute conclusive proof of the validity of the underlying transaction. Registration establishes compliance with the statutory requirement of registration; it does not, by itself, conclusively establish the donor’s mental capacity, free consent or absence of undue influence. Where execution itself is questioned on the ground of incapacity, fraud or undue influence, the Court remains obliged to examine the entire transaction on the basis of the evidence produced by the parties. The principle is also reflected in Mst. Akhtar Sultana v. Major (Retd.) Muzaffar Khan Malik (PLD

2021 SC 715).

16.Viewed in the above legal and evidentiary framework, the findings recorded by the learned Courts below cannot be termed arbitrary or perverse. The medical evidence, though subsequent in point of date,

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was considered along with the oral evidence and the circumstances attending the transaction. The admission of DW-1 regarding the respondent’s treatment for mental illness assumes particular significance, as it emanates from a witness produced by the petitioner himself. Likewise, the admissions of DW-1 and DW-2 regarding the manner of execution and attestation, coupled with the testimony of CW-1 concerning the preparation of the instrument and absence of proper identification of the second marginal witness, furnish independent circumstances casting serious doubt upon the petitioner’s assertion of due and voluntary execution.

17.The continued possession of the suit property with the petitioner also assumes relevance in the overall assessment of the transaction. Although possession is not, in every case, the sole determinant of the validity of a gift of immovable property through a registered instrument, the surrounding circumstances relating to possession may legitimately be considered in determining whether the alleged transaction was genuinely completed and acted upon. In the present case, the evidence concerning possession operates cumulatively with the other deficiencies rather than in isolation.

18.The petitioner’s reliance upon the registered character of the gift deed, therefore, cannot overcome the substantive defects identified by the Courts below. Registration is not a substitute for proof of voluntary execution by a donor possessing the requisite mental capacity, nor can it dispense with the statutory requirements of execution and attestation under Section 123 of the Transfer of Property Act, 1882.

19.So far as the revisional jurisdiction of this Court is concerned, Section 115, C.P.C. does not confer upon the High Court an unrestricted appellate jurisdiction to

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reassess the entire evidence merely because another view may conceivably be taken. Interference is warranted where the subordinate Court has exercised jurisdiction not vested in it by law, failed to exercise jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity. Concurrent findings of fact, recorded after proper appraisal of the evidence, ordinarily do not warrant interference unless shown to be perverse, based upon misreading or non-reading of material evidence, or otherwise suffering from a jurisdictional defect.

20.In the present case, learned counsel for the petitioner has not been able to identify any material piece of evidence which was ignored by the Courts below or any material finding which is demonstrably the result of misreading or non-reading of the record. On the contrary, the impugned judgments reflect consideration of the oral testimony, medical record and circumstances surrounding the alleged gift. The Courts below have concurrently concluded that the petitioner failed to establish a valid and voluntary gift in his favour. Such findings, being based upon evidence available on the record, do not call for interference in the limited revisional jurisdiction of this Court.

21.For what has been discussed above, no illegality, material irregularity, jurisdictional defect or perversity has been demonstrated in the concurrent judgments and decrees passed by the Courts below. The impugned judgments and decrees are consequently found to be well founded and do not warrant interference under Section 115, C.P.C.

22.Resultantly, this Civil Revision, being devoid of merit, is dismissed.

(Syed Ahsan Raza Kazmi) Judge Amjad