Syed Mubarak Hussain Shah vs Syed Muhammad Ayub Shah art — 2024 MLD 1633 LAHORE-HIGH-COURT-LAHORE

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Syed Mubarak Hussain Shah VS Syed Muhammad Ayub Shah art. 85---Specific Relief act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of instrument (registered sale-deed---Execution of a registered instrument, denial of---Executant of document being an old and week person---Effect---Beneficiary to prove that old aged vendor aware of import of transaction---Claim of the plaintiff / father was that he was owner of the suit-house, regarding which neither sale was settled nor any was consideration received, rather his signatures over blank papers were deceitfully procured to maneuver the subject instrument(sale-deed), which being outcome of forgery and fraud was liable to be cancelled---Plea of the defendant / son was that a true sale was made against consideration, and subject -sale deed was genuinely executed/registered---Defendant / son filed revision before High Court as the Lower appellate (District) Court, while reversing decision passed by the Civil Court, decreed the suit instituted by plaintiff/father---Drastic aspect of case of the petitioner (son/defendant) was that respondent (father/plaintiff) admittedly was of much advanced age but was not accompanied by some independent advice, when impugned sale-deed (exhibited by defendant) was allegedly executed, and the plaintiff subsequent to filing of suit breathed his last---In such situation, it was sine qua non for the petitioner / defendant to prove that plaintiff was fully cognizant and aware of the import of transaction, which aspect was not taken care of as well---any document executed on behalf of feeble, weak and old person, if disputed, has to be proved with more inspiring, consistent and strong evidence, otherwise in such like situation when a father at the end of his life was living at the mercy of his son/defendant, the possibility of exerting undue influence could not be ruled out---No illegality as well as mis-reading/ non-reading of evidence or jurisdictional defect was committed by the lower appellate Court while passing the impugned judgment decreeing the suit of plaintiff---Revision, filed by defendant, was dismissed, in circumstances. Citation Name: 2024 MLD 1633 LAHORE-HIGH-COURT-LAHORE Syed Mubarak Hussain Shah VS Syed Muhammad Ayub Shah arts. 129(g) & 85---Specific Relief act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of instrument (registered sale-deed)---Execution of a registered instrument, denial of---Details of contract, non-revealing of---Effect---Independent persons / witnesses, withholding of ---Effect---Claim of the plaintiff / father was that he was owner of the suit-house, regarding which neither sale was settled nor any consideration was received, rather his signatures over blank papers were deceitfully procured to maneuver the subject instrument(sale-deed), which being outcome of forgery and fraud was liable to be cancelled---Plea of the defendant / son was that a true sale was made against consideration and subject -sale deed was genuinely executed/registered---Defendant / son filed revision before High Court as the Lower appellate (District) Court, while reversing decision passed by the Civil Court, decreed the suit instituted by plaintiff/father---although contents of the written statement revealed that defendant paid consideration amount (Rs.2,20,000/- ) to purchase the suit house, but rest of essential detail viz when, where and before whom the sale was offered as well as accepted, were kept secret---There would be no other eventuality that alleged happening of oral bargain was accomplished prior to execution of registered sale-deed, but the evidence brought by the defendant remained missing---Statement-in-chief of the defendant did not even reveal that against what price the sale was settled---Though marginal witnesses ofregistered sale-deed (exhibited by defendant) appeared as defence witnesses ,in aid of the defendant, to corroborate that said document was executed/registered in their presence, yet they kept mum to the effect that original deal and payment of sale price was witnessed by them---Surprisingly, the Stamp Vendor, Deed Writer, Sub-Registrar (who were independent persons) despite availability were withheld, who being best and self-reliant persons could be the sole source to establish that plaintiff approached them for issuance of stamps and execution as well as registration of Sale Deed, so that allegation of the plaintiff that his signatures were obtained prior to any writing could be refuted---Mere attestation of a document, its exhibition or even proof of due construction thereof are not enough for the beneficiary of registered instrument, rather it is much important for him to fulfil the basics of the transaction for which it was executed---No illegality as well as mis-reading/ non-reading of evidence or jurisdictional defect was committed by the lower appellate Court while passing the impugned judgment decreeing the suit of plaintiff---Revision, filed by defendant, was dismissed, in circumstances. Citation Name: 2024 MLD 1633 LAHORE-HIGH-COURT-LAHORE Syed Mubarak Hussain Shah VS Syed Muhammad Ayub Shah Judgments of Trial Court and Appellate Court---Conflict---Preference---In case of conflict inter se the judgments of the Trial Court and the lower Appellate Court, the findings of the latter, in the absence of any cogent reason to the contrary, must be given preference. Citation Name: 2024 MLD 1633 LAHORE-HIGH-COURT-LAHORE Syed Mubarak Hussain Shah VS Syed Muhammad Ayub Shah art. 78---Specific Relief act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of instrument registered sale-deed---Execution of a registered instrument, denial of---Signature of executant, admission of---Scope and sufficiency---Claim of the plaintiff/father was that he was owner of the suit-house, regarding which neither sale was settled nor any was consideration received, rather his signatures over blank papers were deceitfully procured to maneuver the subject instrument (sale-deed), which being outcome of forgery and fraud was liable to be cancelled---Plea of the defendant / son was that a true sale was made against consideration, and subject -sale deed was genuinely executed/registered---Defendant / son filed revision before High Court as the Lower appellate (District) Court, while reversing decision passed by the Civil Court, decreed suit instituted by plaintiff/father---argument of the petitioner / defendant was that once signatures over the disputed document were admitted by the plaintiff, thus there was no further need to prove it---Validity---Record revealed that it was the specific stance of plaintiff /father that he never affixed his signatures for execution of Sale Deed, thus onus was upon the defendant to prove that those were genuinely affixed for the transfer of house in lieu of sale settled among them---Per spirt of art. 78 of the Qanun-e-Shahadat, 1984, due execution of document can be proved by examining its executant or those, who signed/thumb marked it being marginal witnesses or the one who scribed it---However, execution of a document is not restricted only to prove that the same bears signatures of those, who appeared in the witness-box, but it is to be established that in presence of the parties accompanied by number of witnesses, the instrument on asking of the executant with consent of the beneficiary was written and prior to affixing thumb impression in presence of the witnesses, it was read over for understanding to them---For such reasons, theemphasis of the defendant that plaintiff's admission qua affixing of signature was enough proof about due execution of Sale Deed was not plausible---Thus, District/appellate Court while appreciating available evidence in its true perspective perfectly answered two relevant issues (No.1 & 2) in favour of the plaintiff, which findings deserved approval and were thus confirmed---No illegality as well as mis-reading/ non-reading of evidence and jurisdictional defect was committed by the lower appellate Court while passing the impugned judgment decreeing the suit of plaintiff---Revision, filed by defendant, was dismissed, in circumstances. Citation Name: 2024 MLD 1633 LAHORE-HIGH-COURT-LAHORE Syed Mubarak Hussain Shah VS Syed Muhammad Ayub Shah S.3---Specific Relief act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of instrument (registered sale-deed)---alleged sale deed---Fraud---Limitation---Scope---Claim of the plaintiff / father was that he was owner of the suit-house, regarding which neither sale was settled nor any was consideration received, rather his signatures over blank papers were deceitfully procured to maneuver the subject instrument(sale-deed), which being outcome of forgery and fraud was liable to be cancelled---argument of the petitioner / defendant was that suit was instituted with the delay of four years, thus was liable to be dismissed on this score alone---Validity---any document, which is proved to be result of misrepresentation or fraud cannot be protected as it vitiates even most solemn proceedings---No illegality as well as mis-reading/ non-reading of evidence and jurisdictional defect was committed by the lower appellate Court while passing the impugned judgment decreeing the suit of plaintiff---Revision, filed by defendant, was dismissed, in circumstances. Citation Name: 2024 MLD 1633 LAHORE-HIGH-COURT-LAHORE Syed Mubarak Hussain Shah VS Syed Muhammad Ayub Shah art. 85---Specific Relief act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of instrument (registered sale-deed)---Execution of a registered instrument, denial of---Public document, status of---Scope---Beneficiary of transaction/document---Burden of proof---Claim of the plaintiff / father was that he was owner of the suit-house, regarding which neither sale was settled nor any consideration was received, rather his signatures over blank papers were deceitfully procured to maneuver the subject instrument(sale-deed), which being outcome of forgery and fraud was liable to be cancelled---Plea of the defendant / son was that a true sale was made against consideration and subject sale deed was genuinely executed/registered---Defendant / son filed revision before High Court as the Lower appellate (District) Court, while reversing decision passed by the Civil Court, decreed the suit instituted by plaintiff/father---Plaintiff via his statement-in-chief was found to have stated on oath in line with his stance---No doubt, during test of cross-examination, the plaintiff at some stages was found to be bit capricious/shaky, but the Court while dispensing with justice, has to keep in mind the facts and situation of the case before it---Plaintiff ,as a witness, was an extremely old person (might have appeared first time in the Court), who faced tricky, sly, furtive and shrewd questions extended by an expert/professional---Statement of a witness is to be considered as a whole so that it can be appreciated per its essence/crux and obviously cannot be read in isolation, so as to disbelieve or disregard his testimony while picking up some of his sentences---Nonetheless, the plaintiff (as a witness) remained firm that neither sale inter se the parties was offered nor accepted, that consideration was neither paid nor received, and that there was no need to execute a document for the transaction, which never originated---Other two witness produced by the plaintiff also came forward in support of the plaintiff, thus succeeded to shift the onus towards the beneficiary/defendant to confirm otherwise---No illegality as well as mis-reading/ non-reading of evidence or jurisdictional defect was committed by the lower appellate Court while passing the impugned judgment decreeing the suit of plaintiff---Revision, filed by defendant, was dismissed, in circumstances. Citation Name: 2024 MLD 1633 LAHORE-HIGH-COURT-LAHORE Syed Mubarak Hussain Shah VS Syed Muhammad Ayub Shah art. 85---Specific Relief act (I of 1877 ), Ss. 42 & 39---Suit for declaration and cancellation of instrument (registered sale-deed)---Execution of aregistered instrument, denial of---Public document, status of---Beneficiary of transaction/document---Burden of proof---Claim of the plaintiff / father was that he was owner of the suit-house, regarding which neither sale was settled nor any consideration was received, rather his signatures over blank papers were deceitfully procured to maneuver the subject instrument(sale-deed), which being outcome of forgery and fraud was liable to be cancelled---Plea of the defendant / son was that a true sale was made against consideration and subject -sale deed was genuinely executed/registered---Defendant /son filed revision before High Court as the Lower appellate(District) Court, while reversing decision passed by the Civil Court, decreed the suit instituted by plaintiff/father---Validity---Party, which approaches the Court to seek some relief, has to first prove its stance/allegation, however once it is discharged/shifted, then in cases like the present one, it becomes obligatory for the beneficiary to prove that a genuine transaction while accomplishing its ingredients was struck before the witnesses and in lieu thereof document was executed---Per spirit of art. 85 of the Qanun-e-Shahadat, 1984, only registered instrument, the execution whereof was never denied, falls within the category of public document and the one, whose construction is doubted or questioned, then it is sine qua non for the beneficiary to prove it per modes prescribed for the proof of private document---Plaintiff was over the age of 100 years and no independent advice was with him, when sale-deed (exhibited by the defendant ) was written or presented before the attesting Officer for its registration---although, the plaintiff admitted to having signed the papers, but with the claim that at that very point of time, the papers contained no writing---No illegality as well as mis-reading/ non- reading of evidence or jurisdictional defect was committed by the lower appellate Court while decreeing the suit of plaintiff---Revision, filed by defendant, was dismissed, in circumstances.

Syed Mubarak Hussain Shah vs Syed Muhammad Ayub Shah art — 2024 MLD 1633 LAHORE-HIGH-COURT-LAHORE

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