MUHAMMAD HANIF vs ZARDAD KHAN Ss — 2021 YLR 1090 PESHAWAR-HIGH-COURT

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MUHAMMAD HANIF VS ZARDAD KHAN Ss. 42 & 54---Suit for declaration, permanent injunction and possession---Genuineness of the document---Presumption of truth attached with the registered document---Scope---Gift to the stranger---Scope---Allegation of fraud, proof of---Petitioner/plaintiff instituted suit on the basis of registered sale-deed in his favour contending that the gift-mutation in favour of the donee-defendants was fraudulent in which requirement of gift of immoveable property were lacking and that the donor-defendant was not in blood relationship with the donee---Held, that presumption of truth was attached with the registered sale-deed so the defendants/respondents were under obligation not only to shatter genuineness of the alleged registered sale-deed but also to prove genuineness of the gift-mutation attested in their favour---Record revealed that the donor-respondent himself had contested the suit; he denied the execution of registered sale-deed and had admitted the genuineness of the gift-mutation in favour of donor-respondents---Donor-respondent asserted that throughout his life, he had lived with the donee-respondents who (donee) had looked after him (donor)---Petitioner/plaintiff also placed reliance on the affidavit allegedly executed by the donor-respondent showing his admission regarding the registered sale-deed---Said affidavit was, however, not proved as the petitioner failed to produce the very executants and even he (executant-donor) was not cited as a witness in the list of his witnesses, though he (donor) was alive at the time of recording of evidence---Petitioner failed to produce two witnesses, in presence of whom he entered into oral sale-agreement with the donor-respondent---No sale-consideration was, admittedly, paid before the execution of registered deed---There was difference in all three relevant dates regarding alleged registered sale-deed (i.e. purchase of stamp paper, scribing of sale-deed and execution/attestation of sale-deed), which the petitioner , in his evidence, attributed to on and off visits of the donor-respondent from remote city (of his (donor's) residence---It was not appealable to a prudent mind that donor-respondent would have been coming from other city on different (three) dates for undergoing process of execution of the registered sale-deed---Evidence adduced by the petitioner carried discrepancies in the statements regarding time of purchasing stamp-papers, scribing of registered sale-deed, presence of the witnesses and appearance before the Registrar---Gift-mutation was prior in time and the second transaction of sale-deed, if any, allegedly made by the donor-respondent was illegal and void as he (donor) was no more owner of the suit-property after alienating in favour of donee-respondents---Record revealed that gift-mutation was sanctioned in the presence of the concerned Tehsildar in a public meeting and on inquiry by the Tehsildar, Donor/respondent accepted that he was making gift with his own free will---Donor/respondent had also admitted in his written-statement that the possession of the suit-land had been delivered to the donor/respondents---Basic three ingredients of the gift, in the present case, were fulfilled as when the donee had been possessing the land and had got his name mutated in the revenue record in respect of land, the same implied his acceptance---Donor-respondent had not objected to the gift-mutation during his life-time rather he had admitted its execution---Though, gift mutation executed by a sick person, dependant at the mercy of his attendants under compelling circumstances, was illegal and was not binding but, in the present case, nothing existed on record to indicate that donor-respondent was sick and infirm at the time of execution of the gift-mutation and the same had been obtained by the donor-respondent through fraud, coercion, undue pressure and undue influence was exercised on him (donor) to constitute the said gift---Mere assertion of the petitioner regarding fraud was of no consequence as it was very easy to assert fraud but it was difficult to prove the same---Muslim donor enjoyed vast unfettered power to alienate his property by way of gift during his lifetime, subject to his proper state of health so that gift was to be made of his own without any coercion or inducement---Merely non-existent of blood relation would not be sufficient to declare the gift invalid---Concurrent findings of questions of fact were based upon true appreciation of material on record---High Court could not supersede even if another view would have been deducible from the evidence---No ground of interference existed in the conclusion drawn from comprehensive consideration of the case by both the Courts below---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below dismissing the suit of the petitioner declaring the gift-mutation in favour of respondents as valid one---Revision petition was dismissed, in circumstances.

MUHAMMAD HANIF vs ZARDAD KHAN Ss — 2021 YLR 1090 PESHAWAR-HIGH-COURT

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