PLJ 2013 Lahore 265
Present: Abdus
Sattar Asghar, J.
MATLOOB RABBANI
and 5 others--Petitioners
versus
MANZOORAN BEGUM
and another--Respondents
C.R. No. 564 of
2011, heard 29.1.2013.
Ocular account--
----Plea of
forgery and fraud alleged by respondent was not substantiated through any
reliable ocular or documentary account. [P.
269] A
Muhammadan Law--
----Matter of
gift and divorce--It is an established principle of Muhammadan Law that in
matters of gift and divorce, a Muslim can confer the authority to an
agent--There is no cavil to proposition that matters like gift and divorce being
personal act of principal are to be based upon his own mental decision. [P. 270] B
Gift--
----Declaration
of gift is prerogative of donor who after making such declaration however can
appoint an agent conferring authority upon him to take necessary steps for
accomplishment of gift. [P. 270] C
Muhammadan Law--
----Tamlik means
assignment of ownership--It is a kind of gift in favor of expected legal heir. [P. 270] D
Power of
Attorney--
----Contents of
general power of attorney--Bona-fide intention of its executant to make a gift
in favour of his son--Execution of general power of attorney in favour of his
real brother reflected that he had taken a conscious decision of making a gift
and for implementation of object executed general power of attorney in favour
of his real brother. [P. 271] E
Civil Procedure
Code, 1908 (V of 1908)--
----S.
115--Valid gift--Petitioners had established a lawful valid gift of the suit
property--Respondent had failed to establish that gift of suit property was
invalid or based on fraud--Judgment and decree passed by First Appellate Court
was based on misreading or non-reading of evidence against law and fact
suffering from factual and material illegalities and liable to set
aside--Revision was allowed. [P. 271] F
Mr. Muhammad
Mujtaba Hassan Khan, Advocate for Petitioners.
Mr. Arif Hussain
Cheema, Advocate for Respondents.
Date of hearing:
29.1.2013.
Judgment
This Civil
Revision under Section 115 of Civil Procedure Code, 1908 is directed against
the judgment and decree dated 20.10.2009 passed by learned Additional District
Judge Shorkot, District Jhang whereby judgment and decree dated 10.4.2008
passed by learned Civil Judge Shorkot, District Jhang was set aside and
respondents' suit for declaration etc. was decreed.
2. Succinctly facts leading to this Civil
Revision are that Manzooran Begum/Respondent No. 1 as widow and Fatima
Bibi/Respondent No. 2 as daughter of Muhammad Ali lodged the suit for
declaration etc. on 22.11.2002 against Muhammad Yaqoob/predecessor of the
petitioners and Ch. Din Muhammad/Defendant No. 2 (not impleaded in this
revision petition) alleging that as legal heirs of Muhammad Ali they are
owners-in-possession of 10/24 share in the suit property comprising 1 Kanal, 9
Marlas in Khata No. 1324/1239 situated at Mauza Shorkot Shumali, Tehsil
Shorkot, District Jhang as described in the head note of the plaint and that
Gift-Deed No. 59 dated 27.2.1994 and on the basis thereof Mutation No. 9507
dated 24.7.1994 in favour of Muhammad Yaqoob are against law and facts, based
on fraud, void ab-initio and ineffective against their rights. As a
consequential relief respondents also sought decree for possession through
partition of their share as well as permanent injunction restraining the
petitioners from interfering in the ownership, use and possession of the suit
property. Respondents averred in the plaint that Muhammad Ali died on 1.8.2002
and Muhammad Yaqoob is also one of his legal heirs as real son. Respondents
also averred in the plaint that Muhammad Ali had neither gifted out the suit
property in favour of Muhammad Yaqoob nor executed the impugned power of
attorney dated 5.1.1994 in favour of his real brother Ch. Din
Muhammad/Defendant No. 2 authorizing him to execute the gift in favour of
Muhammad Yaqoob; that the impugned power of attorney dated 5.1.1994 is based on
fraud, forgery and ineffective as against the facts.
3. Muhammad Yaqoob resisted the suit by filing
contesting written statement with the contentions that his father Muhammad Ali
(deceased) had orally gifted out the suit property in his favour and thereafter
executed general power of attorney dated 5.1.1994 in favour of real brother Ch.
Din Muhammad to execute the gift in his favour; that Ch. Din Muhammad lawfully
executed the Gift-Deed No. 59 dated 27.2.1994 in his favour; that he is owner
in possession thereof on the basis of gift; that the gift in his favour was in
the knowledge of every member of the family; that Mutation No. 9507 dated
24.7.1994 was correctly attested on the basis of registered gift-deed No. 59
dated 27.2.1994.
4. On account of divergent pleadings of the
parties, learned trial Court framed the following issues.--
ISSUES:
(1) Whether the plaintiffs are owners in
possession of Bungalow of Muhammad Ali deceased to the extent of 10/24 share being
legal heirs of the deceased? OPP
(1-A) Whether the power of attorney Bearing No. 3
dated 5.1.1994 in favour of Muhammad Ali deceased from the Defendant No. 2 is
against the law and facts and liable to be cancelled? OPP
(2) Whether Gift-Deed No. 59 dated 27.2.1994
and Mutation No. 9507 dated 24.7.1994 on the basis of gift-deed is against law
and facts, based on fraud, ineffective quo the rights of the plaintiffs and
liable to be set aside? OPP
(3) Whether the plaintiffs are entitled to
the decree for declaration and partition as prayed for? OPP
(4) Whether the suit is not maintainable in
its present form? OPD
(5) Whether the description of the suit
property is incorrect? OPD
(6) Whether the plaintiffs have no cause of
action or locus standi? OPD
(7) Whether the suit is time barred? OPD
(8) Whether the suit is false and baseless
and defendants are entitled to special cost under Section 35-A of CPC? OPD
(9) Relief.
5. After recording parties' evidence and hearing
the learned counsel for the parties, the learned trial Court dismissed
respondents' suit vide judgment and decree dated 10.4.2008. Respondents
assailed the said judgment and decree which was accepted and the suit was
decreed vide judgment and decree dated 20.10.2009 passed by learned first appellate
Court. Hence this Civil Revision.
6. It is argued by learned counsel for the
petitioners that the impugned judgment and decree dated 20.10.2009 passed by
learned Additional District Judge Shorkot, District Jhang is against law and
facts, based on misreading and non-reading of evidence and liable to set aside;
that the respondents have failed to establish alleged fraud in execution of
impugned general power of attorney, gift-deed and mutation; that the
petitioners have established a valid gift by Muhammad Ali in favour of the
petitioners' predecessor Muhammad Yaqoob as well as lawful execution of general
power of attorney in favour of Ch. Din Muhammad who executed the impugned
gift-deed in favour of Muhammad Yaqoob.
7. On the other hand learned counsel for the
respondents has argued that the learned trial Court had dismissed respondents'
suit against law and facts through judgment and decree dated 10.4.2008 based on
misreading and non-reading of evidence; that the learned first appellate Court
granted the appeal while appreciating the evidence in a salutary manner in
accordance with law; that the petitioners have miserably failed to establish a
valid gift in favour of their predecessor Muhammad Yaqoob; that the impugned
judgment and decree dated 20.10.2009 passed by learned first appellate Court
neither suffer from any legal infirmity nor misreading or non-reading of
evidence therefore petitioners have no cause to invoke the revisional
jurisdiction of this Court and that this civil revision is liable to be dismissed.
8. Arguments heard. Record perused.
9. Since the judgment of the learned Courts
below are at variance therefore think it appropriate to scan material evidence
produced by the parties on the record. Mst. Manzooran Begum/Respondent No. 1
herself appeared in the witness box as PW-1 and reiterated the assertion as set
forth in her plaint. While facing the cross-examination she expressed her
ignorance with regard to the marginal witness of the impugned gift-deed. She
also could not tell the square number, Killa number, location or description of
the suit property. Faqir Muhammad (PW-2) in his examination-in-chief stated
that any gilt by Muhammad Ali in favour of Yaqoob is not in his notice. In the
next sentence he stated that it is in his notice that Muhammad Ali had not made
any gift or executed any power of attorney with his thumb-impressions. He
stated that the gift may be forged or maneuvered by Yaqoob to disgrace
Manzooran Bibi. While facing cross-examination he admitted that Manzooran Bibi
is his neighbour and he has appeared in the witness box on her asking. He also
expressed his ignorance with regard to the registered gift-deed and mutation.
While lacing the cross-examination he also stated that it is possible that
Muhammad Ali had gifted out the suit property with the consent of the family.
He admitted that Yaqoob is in possession of the suit property.
10. Careful appraisal and analysis of the
respondents' ocular account therefore makes it crystal clear that plea of
forgery and fraud alleged by the respondents is not substantiated through any
reliable ocular or documentary account.
11. On the other hand petitioners being
beneficiaries of the registered gift-deed have produced Haq Nawaz/Stamp Vendor
as DW-1 who stated that he had issued the stamp papers in favour of Muhammad
Ali to execute general power of attorney (Ex.D-1) in favour of Din Muhammad and
that the same bear his signature as well as signature of Muhammad Ali. He
further stated that Muhammad Ali was personally known to him. Allah Dad/Deed
Writer (DW-2) deposed that general power of attorney dated 5.1.1994 (Ex.D-1)
was scribed by him on the instructions of the parties who had put their
signatures in his presence and that he had also obtained the signature of
Muhammad Ali on his register. He also stated that Muhammad Ali was personally
known to him. Mirza Afzal Baig/Registery Moharrer (DW-3) produced the original
record of registered general power of attorney dated 5.1.1994, The registered
power of attorney (Ex.D-1) was attested by Saeed Ahmad Shah/Sub-Registrar
Tehsil Abdul Hakeem, District Khanewal who has died. Rao Muhammad Akbar an
official of the DOR Office Khanewal being an associate of Saeed Ahmad Shah
appeared in the witness box as DW-4 and verified the signatures of Saeed Ahmad Shah/Sub-Registrar
on Ex.D-1. Din Muhammad General Attorney (DW-5) real brother of Muhammad Ali
while appearing in the witness box deposed that his real brother Muhammad Ali
had executed the registered general power of attorney (Ex.D-1) in his favour at
his own accord and freewill with regard to his land situated at village 10 Gagh
and Shorkot and on the basis thereof he had executed registered Gift-Deed No.
59 dated 27.2.1994 (Ex.D-2) in favour of Yaqoob son of Muhammad Ali. He further
deposed that Muhammad Ali died in 2002 and had never challenged the registered
gift-deed in his life time. Talib Hussain (DW-6) marginal witness of general
power of attorney (Ex.D-1) while appearing in the witness box verified his
signature thereupon and categorically stated that Muhammad Ali had executed the
general power of attorney in favour of his brother Din Muhammad at his own
accord and freewill. Muhammad Hanif the other marginal witness of general power
of attorney (Ex.D-1) admittedly has died. His son Muhammad Irshad (DW-7)
appeared in the witness box and verified the signature of his father on Ex.D-1.
Muhammad Asif (DW-8) tenant of the disputed property appearing in the witness
box stated that he had obtained the shops comprising the disputed property on
rent from Muhammad Ali and had been paying rent to Muhammad Ali who later on
directed him to pay rent to his son Muhammad Yaqoob and thereafter he had been
paying rent to Muhammad Yaqoob. Matloob Rabbani/Petitioner No. 1 son of
Muhammad Yaqoob (deceased) appeared in the witness box as DW-9 and reiterated
their contentions as set forth in the written statement.
12. It is an established principle of Muhammadan
Law that in the matters of gift and divorce etc. a Muslim can confer the
authority to an agent. There is no cavil to the proposition that matters like
gift and divorce etc. being personal act of the principal are to be based upon
his own mental decision. It is therefore obvious that declaration of gift is
the prerogative of the donor who after making such declaration however can
appoint an agent conferring the authority upon him to take necessary steps for
accomplishment of the gift.
13. The Hon'ble Supreme Court of Pakistan in the
case titled Mst. Bandi vs. Province of Punjab and others (2005 SCMR 1368) has
held that in case of a gift made by an attorney it must be shown that the power
of attorney had specifically authorized the said attorney to make a gift of the
land in favour of specified person. In the light of above quoted dictum of the Hon'ble Apex Court
it will be appropriate to examine the contents of the general power of attorney
(Ex.D-1) in this case allegedly executed by Muhammad Ali in favour of his
brother Din Muhammad, which read as below:
14. According to Muhammadan Law the word tamlik
means assignment of ownership. It is a kind of gift in favour of expected legal
heir. Above referred contents of the general power of attorney therefore clearly manifest bona-fide
intention of its executant
Muhammad Ali to make a gift in favour of his son Muhammad Yaqoob. Execution of
the general power of attorney (Ex.D-1) by Muhammad Ali in favour of his real
brother Din Muhammad therefore clearly reflects that he had taken a conscious
decision of making a gift in favour of his son Muhammad Yaqoob and for the
implementation of the object executed the general power of attorney in favour
of his real brother. General power of attorney (Ex.D-1) was executed on
5.1.1994 and on the basis thereof Din Muhammad executed the registered gift-deed
(Ex.D-2) in favour of Muhammad Yaqoob on 27.2.1994. Admittedly Muhammad Ali
died in the year 2002. He had never challenged the validity of the general
power of attorney (Ex.D-1) and registered gift-deed (Ex.D-2) in his life time.
Petitioners therefore have established a lawful valid gift of the suit properly
in favour of their predecessor Muhammad Yaqoob. On the other hand the
respondents have failed to establish that the gift of the suit property in
favour of Muhammad Yaqoob was invalid or based on fraud. For all above, the
learned Civil Judge Shorkot had rightly dismissed the respondents' suit for declaration etc. vide judgment and decree dated 10.4.2008.
Conversely impugned judgment and decree dated 20.10.2009 passed by learned
Additional District Judge Shorkot is based on misreading and non-reading of the
evidence against law and facts suffering from factual and material illegalities
and liable to set aside.
15. For the above reasons, this Civil Revision is
allowed. Impugned judgment and decree dated 20.10.2009 passed by learned
Additional District Judge Shorkot District Jhang is set aside and the judgment
and decree dated 10.4.2008 passed by learned Civil Judge Shorkot District Jhang
is upheld.
(R.A.) Revision
allowed
