2008 S C M R 1384

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir, and Syed Sakhi Hussain
Bokhari JJ

Mst. RASHEEDA BIBI and others----Appellants

Versus

MUKHTAR AHMAD and others----Respondents

Civil Appeal.No.1448 of 2007, decided on 4th June, 2008.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 1-3-2002
passed in Civil Revision No.2-D of 1991).

(a) Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration challenging the registered gift deeds by the plaintiffs being
a fraudulent and collusive transaction, ineffective qua their rights and restraining the defendants
from interfering with their proprietary and possessory tights over the property in dispute---Alleged
executants of gift deed who were Pardanashin, illiterate, simpleton, villager ladies had disputed its
execution---Mere admission of making thumb-impression or appearance before the Sub-Registrar
was not sufficient to infer that the donors (plaintiffs) had declared their intention to transfer their
share of property (in dispute) which they had obtained as legal heirs of their father and husband
respectively in favour of defendant---Mere registration of a document in itself was 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---Executants, in the present case,
had themselves disputed the execution of such document, therefore, the person claiming the
execution of such document was required under the law to prove its execution by producing
evidence that it was in fact executed.

Muhammad Sharif Uppal v. Akbar Hussain PLD 1990 Lah. 229 rel.

(b) Islamic law---

----Gift---Proof---Execution or appearance of the party before the 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 the transaction and no presumption of truth could be attached to such type of
document.

Qazi Altaf Hussain and another v. Ishfaq Hussain 1986 SCMR 1427 and Muhammad Khan v. Mst.
Rasul Bibi PLD 2003 SC 676 rel.
(c) Registration Act (XVI of 1908)---

----S. 17---Registration of a document---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---
Certificate of registration is only to show the execution of the document and presumption beyond
that cannot be drawn therefrom.

Gopal Das and others v. Sri Thakurji and others AIR 1943 PC 83 and Siraj Din v. Mst. Jamilan
and another PLD 1997 Lah. 633 ref.

(d) Islamic law---

----Gift---Proof---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, 1984
and rules of gifts under Islamic law.

Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633 quoted.

(e) Islamic law---

----Gift---Validity---Proof---Non-compliance with three essential conditions---Effect---Where all

the four donors 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 had
been made in their favour by such ladies---Failure of donees to discharge such burden would be a
proof that gift was not made in their favour.

Muhammadan Law Clause 14, by Mulla and P.M. Amer v. Qabool Muhammad Shah and 4 others
1999 SCMR 1049 ref.

(f) Islamic law--

----Gift---Validity---Proof---All the four doners who were simple, villagers, Pardanashin ladies
and according to the custom had never appeared in public, had taken plea of fraud and one of them
had 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
alleged donees---Donor ladies had not been 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---Donors being ladies and Muslim, needed full protection and safeguard in the
manner provided by Islam and the relevant law insofar as their property was concerned.

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 rel.
(g) Islamic law---

----Gift---Validity---Proof---Gift deed executed by Pardanashin ladies---Points to be considered

by the Court enumerated---Transaction lacking any of such points and three ingredients would be
invalid and void---Principles.

Points for taking into consideration by the courts with regard to gift deed executed by the
"Pardanashin" ladies are as under

(i) Whether the plaintiff (donor) 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?

The trial Court, in the present case, had not framed the relevant legal issues to determine the
genuineness of gift nor the First Appellate Court or the High Court had adverted to this legal aspect
of the case had not examined the evidence produced by the parties on such touchstone. There was
no evidence on the file by the defendant establishing the three requirement of a valid Muhammadan
gift. The evidence produced by the donees fell short of the required standard of proof in a land
dispute involving huge property. Mere fact that donee was step-brother of the three donors and son
of the fourth was not sufficient to believe or infer that the aches had knowingly/with free mind
executed the gift deeds of their v cable landed property and any such transaction lacking any of
the three requirements would be invalid and void.

As no relevant and legal issues had been framed to prove the validity of the gift by performing the
three requirements of law, 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. Parties had 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 reflected the
controversies arising from the pleadings of the parties and the court thus could render an effective
judgment on the disputed facts and the party also knows on what fact the evidence should be led.

(h) Civil Procedure Code (V of 1908)---

----O. XIV, R.1---Framing of issues---Duty of Court.

Plea that framing of a particular issue was not pressed by party affected 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. "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.

(i) Constitution of Pakistan (1973)---

----Art. 185---Where the courts below had missed the 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.

Syed Samar Hussain, Advocate Supreme Court for Appellants.

Raja Muhammad Bashir, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-
Record for Respondents.

Date of hearing: 4th June, 2008.

JUDGMENT

MUHAMMAD AKHTAR SHABBIR, J.--- This appeal, by leave of the Court, is directed against
the judgment, dated 1-3-2002 passed by a learned Single Judge of the Lahore High Court,
Bahawalpur Bench, Bahawalpur in Civil Revision No.2-D of 1991.

2. The facts giving rise to the present appeal are to the effect that plaintiffs Mst. Rasheeda
Bibi, Mst. Sakina Bibi and Mst. Aziza Bibi (daughters) and Mst. Bibi (widow) of Ghulam
Muhammad, residents of Chak No.86/Fateh, Tehsil Hasilpur, District Bahawalpur, instituted
a suit for declaration with regard to the property situated in Khata Nos.14, 16, 19 of the said
village challenging the registered gift deeds (Exh.D.I and Exh.D.II) in favour of Muhammad
Shafi, predecessor-in-interest of the respondents being a fraudulent and collusive transaction,
ineffective qua their rights and restraining the defendants from interfering with their
proprietary and possessory rights over the property in dispute. The suit had been contested
by the defendants who filed his written statement raising some preliminary objections and
denying the averments of the plaint. From the factual controversies appearing on the
pleadings of the parties, the learned trial Court framed various issues which are as under:

(i) Whether the plaintiffs have locus standi to bring the suit?

(ii) Whether the plaintiffs are estopped by conduct from bringing the suit?

(iii) Whether the present suit is not maintainable in its present form?
 (iv) Whether the suit is bad for misjoinder of causes of action?

(v) Whether the plaintiffs are owners of the suit-land and "Tamlik" or "Hiba"
registered on 19-5-1977 is based upon fraud, undue influence and coercion, if so, its
effect?

(vi) Whether the Court has no jurisdiction to try the suit of defendants?

(vii) Whether the defendants are estopped by conduct from bringing the suit?

(viii) Whether the defendants are owners in possession of suit-land?

(ix) Whether Ghulam Muhammad was Benami for the defendants?

(x) Whether the suit of defendant is not correctly valued for the purposes of court-fee
and jurisdiction, if so, its correct valuation?

(xi) Relief.

3. After recording, appreciating the evidence of the parties, pro and contra, the learned trial
Court dismissed the suit, vide judgment and decree, dated 28-5-1989. Feeling aggrieved, the
plaintiffs preferred an appeal which came up for hearing before the Appellate
Court/Additional District Judge, Bahawalpur, who vide judgment, dated 4-9-1990, dismissed
the appeal. Both the judgments of the Courts below were assailed through a revision petition
before the High Court which too met with the same fate, vide the impugned judgment and
decree, the validity of which has been challenged through C.P. No.2212-L of 2002, out of
which the instant appeal has arisen out.

4. The learned counsel for the appellants argued that the appellants had challenged the
validity of the, gift deeds ("Tamliq" and "Hiba") raising objections on non-performance of
three requirements of a valid gift. Further contended that the trial Court has not framed proper
issues in accordance with the pleadings of plaintiffs regarding performance of three
requirements of a valid gift; that the appellants had not been provided the opportunity to
produce evidence on proper and legal issues; that all the three Courts below have not adverted
to this aspect of the case. The learned counsel vehemently stressed that the plaintiffs were
"simple, illiterate and Pardanasheen ladies" and they have denied the transfer of property
through the gift deeds and the onus to prove the transfer of property through these disputed
deeds shifted on the beneficiary-defendant/predecessor-in-interest of the respondents to
discharge the responsibility of establishing a valid gift in his favour. The Courts below have
not taken into consideration this legal and factual aspect of the case at all.

5. While on the other hand, the learned Advocate Supreme Court for the respondents
controverted the arguments of the counsel for the appellants, contending that the execution
of the gift deeds ("Tamliq" and "Hiba") has been admitted by the P.Ws. and that the admitted
facts need not to be proved. He further contended that under the said gift deeds, the
possession of the property was delivered to the defendant/vendee and by producing evidence,
the defendant-respondents have established their case.

6. We have heard the arguments advanced by the learned counsel for the parties and perused
the record with their kind assistance.

7. The plaintiffs namely Mst. Rasheeda, Mst. Sakina and Mst. Aziza were daughters of
Ghulam Muhammad, step-sisters of Muhammad Shafi defendant while Mst. Bibi (now
deceased) was mother of Muhammad Shafi defendant with whom Ghulam Muhammad father
of the plaintiffs Nos. 1 to 3 had contracted marriage while Muhammad Shafi was her son
from her wedlock with her previous husband. Muhammad Yousuf and Muhammad Ibrahim
are the real brothers of Mst. Rasheeda and two other plaintiffs. Three daughters and two sons
of Ghulam Muhammad were born from the womb of Mst. Bibi.

8. The plaintiffs in their plaint asserted that they had not declared their intention to gift their share
of property in favour of Muhammad Sharif, defendant, nor delivered the possession to him under
these gift deeds. They asserted that the whole transaction was the result of fraud, fabrication and
collusiveness. There is no cavil to the fact that all the four plaintiffs were the "illiterate, simpleton,
villager ladies", Mst. Sakina, one of the plaintiffs, who appeared in Court as P.W.3 very clearly
stated that Muhammad Shafi was their step-brother and tenant of their land and he
misstated/informed them that Muhammad Yousuf had got transferred the whole property in his
name and a suit is to be filed against him and he brought them in the Court premises and got their
thumb-impressions on the papers and did not inform them about the real facts.

9. 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.

10. The Courts below have observed that the documents Exh.D.I and Exh.D.II ("Hiba" and
"Tamlik") had been validly executed by the executant on the basis of admission of Mst. Sakina
Bibi. Abdul Majeed P.W. (one of the marginal witnesses) who denied the execution of gift deeds
has categorically deposed that he was told to sign on the "Abtal Nama" and he hurriedly signed
the same because he had to appear in the Court. He further stated that in his presence the plaintiffs
had not gifted the property through "Hiba" or "Tamlik". He without reading the documents had
signed the same. Similarly Muhammad Ashraf (D.W.3), the alleged "scribe" of the documents,
deposed in his statement that he did not personally know the executant/the donors, nor he
demanded the national identity cards from the executant nor entered N.I.C. numbers on these
writings. The same is the statement of D.W.4 who stated that the purchaser of the stamp paper
Mst. Sakina Bibi was not personally known to him neither she was identified before him by
anybody.

11. 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
B 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. This view is
supported by the dictum laid down in the cases of Gopal Das and others v. Sri Thakurji and others
AIR 1943 PC 83 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633. 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.

12. 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.

13. 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 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.
15. 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. Reference is made to the case of Roazi Khan and others v. Nasir and others
1997 SCMR 1849, Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR
772. In the case of Ananta Kumar Majumdar and others v. Copal 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 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. Reference can also be made to the cases of Mst.
Hafizan v. Muhammad Yasin and 2 others 1985 CLC 1448, Muhammad Khalid and another v.
Muhammad Iqbal and another 2005 CLC 970, Barkat Bibi and others v. Mst. Gaman Bibi and
others 2005 MLD 280, Azizur Rehman v. L.D.A. 1985 CLC 2028, Muhammad Mansha and others
v. Sabir Ali 1999 SCMR 1782, Muhammad Iqbal through Legal Heirs and others v. Khan
Muhammad through Legal heirs and others PLD 1999 SC 35; The State v. Asif Ali 1997 SCMR
209, Ghulam Haider and others v. Mst. Raj Bharri and others PLD 1988 SC 20 and Fateh Khan v.
Boze Mir PLD 1991 SC 782. In the case in hand we find that proper legal issues have not been
framed by the trial Court fully reflecting pleadings of the parties and this important aspect escaped
notice of the Courts below.

16. 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 ease.

17. In view of the above discussion and the pointed out infirmities, illegalities in the judgments of
the three Courts, we allow the appeal, set aside the judgments of the three Courts namely the High
Court, First Appellate Court and the trial Court and remand the case to the trial Court/Senior Civil
Judge, Hasilpur, for fresh decision after framing additional relevant issues taking into
consideration the observations of this Court and to provide opportunities to the parties to produce
evidence, within one year from the date of receipt of the copy of order of this Court.
These are the reasons for our short order of even date whereby this appeal was allowed.

M.B.A./R-8/SC Appeal allowed.