Case Summary of 2008 SCMR 1384

The mere admission of making thumb-impressions or appearing before the Sub-Registrar is not
sufficient to infer that the donors/plaintiffs have declared their intention to transfer their share of
property (in dispute) which they have obtained as legal heirs of Ghulam Muhammad, their father and
husband, respectively, in favour of the defendant. Moreover, mere registration of a document in itself
is not under the law proof of its execution by a person by whom it was alleged to have been executed,
if any of the parties in litigation had denied its execution by the said person. In the case in hand, the
executants themselves disputed the execution of the document. Therefore, the person claiming the
execution of such document is required under the law to prove its execution by producing evidence
that it was in fact executed. Reliance in this behalf can be placed on the case of Muhammad Sharif
Uppal v. Akbar Hussain PLD 1990 Lah. 229.
The execution or appearance of the party before the Registrar/ Sub-Registrar is not conclusive proof
of the execution of gift. In such a case, the Court will have an overall view of all the attending
circumstances of transaction and no presumption could be attached to such type of document.
Reliance can be placed on the cases of Qazi Altaf Hussain and another v. Ishfaq Hussain 1986
SCMR1427 and Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676. There is no doubt that the
certificate of registration or endorsement on the registered document carries a presumption but no
such presumption can be drawn therefrom that such person has really executed the same and it will
be open to the parties to prove that the document in question was not really executed by the person
shown to have executed the same. The certificate of registration is only to show the execution of the
document and presumption beyond that cannot be drawn therefrom.
In the latter case, a Division Bench of the Lahore High Court observed that the endorsement made by
the Registrar on questioned document would not prove that such document was executed by donor in
favour of donee; contents of gift-deed and constituents of gift must be proved in consonance with the
provisions of "Qanun-e-Shahadat" and rules of gifts under Muhammadan Law.
Clause 149 of Muhammadan Law provided three essentials of a gift which are reproduced below:--
"149. The three essentials of a gift. --- It is essential to the validity of a gift that there should be (1) a
declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the
donee, and (3) delivery of possession of the subject of the gift by the donor to the donee."
' If these conditions are complied with, the gift is valid. All the four donors in this case/plaintiffs were
"simple, villagers, Pardanasheen ladies" and according to the custom had never appeared in public
and in such-like case, very heavy burden lay on donees that a valid gift has been made in their favour
by such ladies. Failure of donees to discharge such burden would be a proof that the gift was not made
in their favour. Reference can be given to the case of P.M. Amer v. Qabool Muhammad Shah and 4
others 1999 SCMR 1049. Moreover, all the donors had taken the plea of fraud and one of them Mst.
Sakina Bibi stated that they were made to thumb-mark on the documents which were presented to
them to be in another different connection and question never arose of their making gift in favour of
the defendant. All the donors ladies were not identified by such a person who advised or protected
their interest as against the alienation through gift which deprived them of their valuable
proprietary rights. The donors being ladies and Muslim females needed full protection and safeguard
in the manner provided by Islam and the relevant law insofar as their property was concerned.
Reliance in this behalf can be placed on the case of Mst. Badshah Begum v. Ghulam Rasul and 4
others PLD 1991 SC 1140 and Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642.
As referred above in the preceding paragraph, there are three requirements of a valid Muhammadan
gift. The defendant Muhammad Shafi, predecessor-in-interest of the present respondents was and
now the respondents are the beneficiary of the gift. Since the plaintiff-ladies had denied the execution
of the gift by transferring their property in favour of their step-brother while they are married and having
their own children, real brothers, the question arises why they gifted their property in favour of their
step-brother depriving the real ones? It was the legal and bounden duty of the respondents to establish
by producing sufficient evidence of the three requirements i.e, declaration, acceptance and delivery of
possession under the gift by the donors. From perusal of the whole evidence, we find that no evidence
has been produced by the respondents to establish that the donors have been provided independent
advice before execution of the gift deeds. There is not an iota of evidence to prove the declaration
made by the donors showing their intention to transfer the property in favour of Muhammad Shafi
through the gift deeds, despite the fact that they have pleaded that the transaction is based on fraud
and misrepresentation as is evident from paragraph No,4(a), (c) and (d) of plaint. They stated that they
had never declared their intention to make gift of the property in favour of the defendant and further
asserted that they are married having their own children and not in a position to gift their property in
favour of the defendant. They also denied the delivery of possession of the property under the gift in
favour of the defendant. The Superior Courts have laid down the points for taking into consideration
by the courts with regard to gift deed executed by the "Pardanashin" ladies. Some very important
points to be considered by the Courts are as under:---
(i) Whether the plaintiff had any friendly advice before executing the deed and by a person whom the
court considers as being genuinely interested in her welfare?
(ii) Whether the document was explained to her and whether she really had the capacity to understand
its consequences?
(iii) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?
(iv) Whether the entire transaction was free from circumstances
throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?
14. The trial Court, has not framed the relevant legal issues to determine the genuineness of gift nor
the First Appellate Court or the High Court has adverted to this legal aspect of the case and has not
examined the evidence produced by the parties on such touchstone. There is no evidence on the file
by the defendant establishing the three requirements of a valid Muhammadan gift and we have no
hesitation to G observe that the evidence produced by the donees fell short of the required standard
of proof in a land dispute involving huge property. Mere fact that Muhammad Shafi, defendant was
step-brother of the three plaintiffs and son of the fourth is not sufficient to believe or infer that the
ladies-plaintiffs had knowingly/with free mind executed the gift deeds of their valuable landed property
and any such transaction lacking any of the three requirements would be invalid and void. Reference
in this context can be placed on the cases of Hakim Ali and 3 others v. Sheikh Muhammad Mazhar Ali
1994 SCMR 1939 and Mst. Azra Sultana v. Mst. Ashran Bibi 2000 PSC 107. The High Court of
Peshawar has also followed the same principle in the case of Syed Mustafa Kamal Shah and others
v. Syed Feroz Shah and others 1992 CLC 355.
There is no evidence on the file to establish that under the gifts the possession of property has been
transferred in favour of the defendant. As no relevant and legal issues have been framed to prove the
validity of the gift by performing the three requirements of law, we find that for non-framing of issues,
the parties could not properly adduce the evidence. The trial Court was under the legal obligation to
frame factual, legal and relevant issues arising out of the pleadings of the parties and hence it failed
to perform its duty. From scrutiny of the judgment, it is clear that the parties have been prejudiced for
not framing the issues correctly. That's why they failed to lead evidence properly. It is the duty of the
court to frame correct issues but the parties were also under duty to make application for amendment
of issues. Nevertheless, the court was bound to frame issues correctly primarily on pleadings of the
parties, because the issues framed by the court correctly reflect the controversies arising from the
pleadings of the parties and the court thus can render an effective judgment on the disputed facts and
the party also knows on what fact the evidence should be led.
In the case of Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others PLD 1961
Dacca 65, it has been held that plea that framing of a particular issue was not pressed by party affected
I is no ground for condoning failure to frame necessary issue and the mandate of Order XIV, rule 1,
C.P.C. Reveals that it is incumbent upon the court to frame issues in the light of the controversies
raised in the pleadings and after examination of the parties, if necessary. Issues of law and facts are
to be illustrated clearly, to enable the parties to understand the points at issue to support their
respective claims by recording evidence on all material points. It is the settled principle of law
that "action or inaction" on the part of the court cannot prejudice a party to litigation and the failure of
courts below to determine material issue amounted to exercise of jurisdiction illegally or with material
irregularity.
Where the Courts below have missed the above discussed important features and legal aspects from
taking into consideration, the Supreme Court as Court of last appeal would be under legal duty to
interfere and correct the irregularity and illegality committed by the Courts below. We are surprised to
note that the lower Courts and the High Court had made their observations declaring the deeds validly
executed without considering the above referred lacunas in the case.