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1995 C L C 130

 

[Azad J & K]

 

Before Syed Manzoor Hussain Gilani, J

 

ABDUL KARIM ‑‑‑Appellant

 

versus

 

MUHAMMAD AKRAM‑‑‑Respondent

 

Civil Appeal No. 5 of `1993, decided on 2nd October, 1994.

 

 

PLD 1984 SC (AJ&K) 138; PLD 1968 Azad J&K 85; PLD 1990 Azad J & K 34; PLD 1967. Lah. 744; 1981 CLC 962. and PLD 1975 SC 624 ref.

 

Khawaja Abdul Basit for Appellant.

 

Malik Muhammad Yusuf Khan for Respondent.

 

ORDER

 

A suit filed on 15‑9‑1982, in the Court of Additional Sub‑Judge, Kotli by the respondent for cancellation of‑a gift deed executed on 21‑8‑1971, by late Munshi son of Hasna in favour of appellant Abdul Karim for 2/7 share out of the land comprising Khasra Nos.39, 62, 66, 69, 83 and 59 measuring 39 Kanals and 19 Marlas and 49 Kanals and 9 Marlas comprising of Khata Nos. 957, 962, total measuring 89 Kanals and 8 Marlas, situated in Village Khore, Mora Dheri Chawran, Tehsil Kotli, was dismissed by the Additional Sub‑Judge on 27‑3‑1989. On appeal by the respondent, the District Judge, Kotli was pleased to set aside the judgment passed by Additional Sub‑Judge and remanded the case for a fresh trial and decision. This appeal is filed against the above, referred judgment of the District Judge, Kotli.

 

The brief facts of the case are that a gift deed for the above‑referred land was executed in favour of appellant by his brother late Munshi. This deed of gift was challenged through a civil suit by the respondent on the ground that gift deed was obtained by appellant by practising fraud and undue influence upon the deceased Munshi (hereinafter to be referred as Donor). During the pendency of the suit, another plea was taken by way of amendment of suit that deed has been obtained when the donor .was on the death bed. The respondent claims himself to be the son of the deceased donor. The donor died about two years after the execution of the deed. The suit was resisted by the appellant through written statement on the ground of its being time‑barred, the claim of the respondent as being son of the deceased Donor was also denied (later on abandoned) and rest of the grounds for cancellation of the gift deed were also denied. The Additional Sub‑Judge, as said earlier, dismissed the suit while the finding of Additional Sub‑Judge was vacated by the District Judge and the case was remanded for fresh trial.

 

I’ve heard the learned counsel for the parties at length. The learned counsel for the appellant raised mainly three grounds for setting aside the judgment passed by the District Judge and those are: that the suit was hopelessly time‑barred; that the execution of gift deed in favour of Donee was by the free will of the Donor without any fraud and undue influence; and, that the respondent‑plaintiff claiming himself to be the son of the donor is estopped from challenging the gift deed. The learned counsel in support of his contention made reference to Note 167 of Principles of Muhammadan Law by D.F. Mulla; 1980 CLC 872 and 1979 CLC 882. The learned counsel for the respondent controverting the arguments contended that the plea of limitation has been waived by the appellant as no appeal or counter‑objections have been filed against the finding of the Sub-Judge on the issue of limitation which has been decided in favour of respondent‑plaintiff by Sub‑Judge. The learned counsel further contended that the appellant as a brother of the donor had influence upon him and in view of that influence, the gift deed has been obtained by practising fraud and undue influence upon him. The learned counsel also contended that the witnesses produced on behalf of the appellant defendant were interested, and none of the witnesses cited in the gift deed are produced in the Court. The learned. counsel supported remand order of the District Judge. The learned counsel in support of his contention relied upon PL6 1990 Azad J&K 34; PLD 1975 SC 624; 1981 CLC 962; PLD 1963 Kar.825; PLD 1974 Note 91 p.f40; PLD 1984 SC (AJ&K) 138; PLD 1958 Azad J&K 90 and PLD 1967 Azad J&K 85.

 

After hearing the learned counsel for the parties, I’ve gone through the record of the case. As far as the question with respect to the paternity of respondent‑plaintiff is concerned, it has not been disputed rather the paternity of the respondent is accepted. The possession of the property in dispute is with the donee and it is so from the date of execution of the gift deed. The gift deed is also in his possession, which is duly recorded in the revenue record. The learned counsel for the appellant in support of his contention regarding the suit of respondent being time‑barred relied upon a Nikahnama produced by the respondent in the trial Court, wherein the age of the respondent is entered as 30 years. This Nikah Nama was”executed on 11‑5‑1981 at Rawalpindi. The suit for cancellation of the gift deed was riled on 5‑9‑1982. Ordinarily a suit for cancellation of deed ought to be filed within 3 years, but as the respondent alleges himself to be a minor, and if the benefit of the residuary Article 120 of the Limitation Act is given to him, the suit is still time‑barred. According to the learned counsel, the age of the respondent being 30 years in 1981, would mean that his year of birth is May 1951 and the respondent would be deemed to have attained the majority in 1969. He was major in 1970, when the gift deed was executed and the time had started running from the date of execution of deed and no disability being attached to appellant, the period of limitation continued running. The explanation furnished by the respondent for being late is that he was out of Azad Kashmir and then out of country for earning his livelihood till 1981, when he came back and filed the suit in 1982. It is settled principle of law that once the period of limitation starts running it does not break. Moreover, the cause of action for cancellation or revocation of the gift deed started from its registration. The donor died about more than two years after the registration of the gift deed and respondent had also attained majority in 1969. Thus there remains no doubt that the period of limitation which started running from the date of execution of deed could not be arrested for the respondent being out of Azad Kashmir or out of country. The suit filed by the respondent was clearly time‑barred. The contention of the learned counsel for the respondent that issue of limitation having been decided against the appellant by the trial Court has become conclusive for want of its being challenged through appeal or counter‑objections, cannot be accepted for the reason that the findings of the trial Court have been vacated as a whole by the District Judge which includes the point of limitation as well and no counter objections have been filed to the extent of this finding in this appeal. Moreover, the question of limitation becomes a question of law if the facts necessary ford”‘ resolution of the question are available on record. As Nikah Nama produced and relied upon by respondent clearly speaks of his age on the basis of which the period of limitation can be easily calculated, which is calculated as said earlier. It is also the settled principle of law that question of law can be raised at any stage and it becomes the duty of the Court seized with the matter to decide the question if record justifies its resolution. In view of above the suit filed by the respondent is held to be time‑barred.

 

As for the question that gift deed has been obtained by the appellant by practising fraud and undue influence upon the donor and during the course when he was on the death bed is concerned, it was for the respondent‑plaintiff to prove the fraud, undue influence and donor’s being on death bed. The proposition of law is clear enough that he who alleges a fact has to prove it and the instances of fraud have to be specifically narrated and stated by the person alleging the fraud. The argument of the learned counsel for the respondent that onus of proving the gift deed to be without undue influence and fraud ought to have been on the appellant‑defendant, cannot be accepted for the reason that the person who alleges has to prove. Be that as it may, when the finding and evidence of both the parties is on record and the Court can form its opinion on a particular issue, it becomes the duty of the Court to evaluate the evidence and decide the issue irrespective of the onus of proof. The Court must gather it from the evidence on record as to what is the actual position. In civil cases it is the preponderance of the probability, which decides the matter. Civil cases are not like the criminal cases where proof beyond doubt is the requirement of law for proving the guilt. In the case in hand, the donor was admittedly the brother of the donee i.e. the appellant and the respondent is the donor’s son. The donor during his lifetime could not revoke the gift deed as under the settled principles of Muhammadan Law, when a gift is made in favour of a person related in a prohibited degree to the donor, the same cannot be revoked except in exceptional circumstances, but not by his heirs at all after his death. This principle finds support from Note 167 of the Mulla’s Book on Principles of Muhammadan Law. The donor lived for more than 2 years after the execution of the gift deed and the possession of the suit land alongwith the documents executed by the donor were delivered to the donee and were in his possession. The combined effect of all these facts accepts no doubt that there was no element of pressure, fraud or undue influence upon the donor executing the gift deed. None of the witnesses produced by the plaintiff- respondent speaks of any undue influence or fraud by donee upon the donor. As against that, the witnesses produced on behalf of the appellant‑defendant speak of donor’s being in good health and sense when gift deed was executed. The recital in the gift deed that donee maintains the donor takes care of him and renders his good services to him, speaks of the fact that gift deed has been made out of goodwill, sympathy, love and affection by the donor. A clause also finds place in the gift deed that if the donee fails to serve the donor, the latter shall have a right to revoke the deed. But till death no complaint of the donor about misconduct of the donee is brought on record, which supports the contention that no fraud or undue influence has induced the donor to make the gift deed. A gift deed reciting having been made out of love and affection or for rendering services, maintaining and treating donor with kindness and affection and that a stipulation thereunder that he shall revoke it if the services, kindness and affection is not displayed, does not make the gift conditional but a gift simple and absolute. The stipulation is simply a wish, a desire and expectation that the past love and affection shall continue. The love and affection and kindness is not something tangible which can be seen, wighed or measured, it is a psychological, natural and spiritual feeling which can just be felt sensed or seen. When the past conduct of the donee with the donor was unblemished and so admitted in the gift deed, no complaint being later on made, witnessed or felt till the death of the donor, and donor’s respectful burial and other related customary ceremonies after his death also having been performed by the donee, are also not unquestioned, it can naturally be presumed that there was no break in the cordial relations before and after the gift deed.

 

The case‑law cited by the learned counsel for the respondent in support of his contentions is not applicable in the circumstances of the case and most of the cases cited are totally distinguishable from the case in hand. PLD 1988 SC (AJ&K) 184 and 1986 CLC 1699 are cited to support the order of remand by the District Judge. In the Azad Jammu and Kashmir ruling, the Supreme Court remanded the case on the ground that the High Court had not given its opinion on issues while in the case from Lahore jurisdiction, the important document on the file of the Court not having received attention of the Court was remanded. In the case in hand, all the issues raised by the trial Court are dealt with by the trial Court elaborately and the District Judge has also attended all the issues, though the latter has again directed the trial Court to decide the issues afresh. There was no reason to remand the case as all the issues were properly attended. A case cannot be remanded simply on the ground that first or second appellate Court is of a different opinion than that found by the trial Court. Moreover, as a Court of appeal and as a Court of record, it is the duty of the High Court to shorten the process of litigation and decide the case itself if the material is available on record. PLD 1984 SC Azad J & K 138 cited in support of the contention that attesting witnesses have to be produced for proving the due execution of a document. In that case one of the parties relied upon a document while the other repudiated the same and maintained it to be forged. The principle laid down in that case is not applicable here for the reason that execution of the gift deed is not denied but it is contended to have been obtained by practising fraud and undue influence. The fraud and undue influence ought to have been proved by the respondent /plaintiff. It is held in the hereinbefore referred case itself that the party on whom the onus lies must fail if not proved. As for the attesting witnesses are concerned, if is stated by the learned counsel for the appellant that they are all dead. This statement cannot be disbelieved as it is not controverted, moreover, execution of document is not denied. The contention of the learned counsel for respondent based on hereinbefore referred ruling that mere registration of the document by Registrar is no proof of its due execution cannot be denied. But . in the case in hand, the execution of gift deed itself is not denied. PLD 1968 Azad J & K 85 deals with the extra‑territorial registration of a document by a Sub‑Registrar and the principle of law that the gift of immovable property must be affected by the registered document. No such issue or question for resolution is involved in the case in hand. PLD 1990 Azad J & K 34 deals with the proposition of law where a gift deed is void for want of delivery of possession and donor’s being illiterate and influenced by the donee. The gift deed in that case was challenged by the donor himself in his lifetime, but case is otherwise here, so this ruling is also not applicable here. The learned counsel for the respondent has also relied upon PLD 1967 Lah 744; 1981 CLC 962; PLD 1975 SC 624 in support of the contention that the gift deed has been obtained by undue influence. The circumstances of the case in hand don’t warrant the drawing of the inference as suggested by the learned counsel for the respondent. Besides what has been stated above, the conduct and relationship of the parties before and after the execution of the gift deed and the conduct of the respondent as well, who has slept over the matter and invoked the jurisdiction of the Court 12 years after the execution of the document and none of the witnesses produced by him having spoken a word about undue influence of the donor over the donee, it cannot be assumed and inferred. Presumption is always in favour of due performance of acts and duties and thus being otherwise has to be pleaded and cogently proved.

 

In view of what has been stated above, there was no justification for the District Judge to remand the case. The appeal is accepted and the suit filed by respondent is dismissed. The judgment passed by the Additional Sub Judge, Kotli on 27‑3‑1989 is upheld in the above‑stated manner. In the circumstances of the case, no order as to costs.

 

AA./51/H.CA. Appeal accepted.

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