2016 PLP 1883 (YLR)

NISAR HUSSAIN KHAN, J.

Petitioner has assailed the judgment of the learned Additional District Judge-III,, Mardan, dated 18.1.2006 whereby accepting respondents' appeal, judgment and decree of learned Civil Judge-VII, Mardan, dated 1.3.2005 was set aside and consequently her suit was dismissed.

2. Precisely stated facts of the case are that petitioner/plaintiff filed a suit against respondents seeking declaration to the effect that she is owner in possession of the property, described in the heading of the plaint, situated in the Revenue Estate of Rustam, Tehsil and District Mardan, while defendants have got no concern whatsoever with it; that Mutation No.428, dated 26.6.1996 in favour of defendant No.2 on behalf of plaintiff through defendant No.1 is based on fake and fictitious power of attorney No.422, dated 23.11.1986, so the same is false, illegal, collusive and ineffective upon her rights as such is liable to be cancelled. She also sought perpetual mandatory injunction as ancillary and consequential relief. She alleged in her plaint that she is illiterate parda nasheen lady and defendant No.1 Zarshaid being her brother was looking after her interest in the suit property. It is further alleged that defendant No.1 collusively got attested mutation No.428 in favour of his wife defendant No.2 on 26.6.1996 which is illegal and void ab initio. Similarly, she also questioned the legality and propriety of power of attorney No.422, dated 23.11.1986.

3. The suit was contested by the defendants. They alleged that the suit mutation was attested on the instructions and instance of the plaintiff, after payment of sale consideration and there is no collusion and fraud in attestation of the mutation. The learned trial court after recording evidence, decreed the suit. However, appeal filed by the defendants/ respondents was allowed by the appellate court and consequently the suit of the plaintiff was dismissed after setting aside the decree of the trial court, hence this revision petition.

4. Learned counsel for petitioner argued that defendants/respondent No.1 Zarshaid is brother of the plaintiff/ petitioner who obtained power of attorney on the pretext of management of her property and after passage of some time, he got the property transferred in favour of his wife through impugned mutation which is illegal, unwarranted and inoperative upon her rights. He maintained that the petitioner was parda nasheen lady who has been deceived by her near and dear by deceitful means, hence the impugned judgment is liable to be set aside. In support of his arguments, he placed reliance on cases reported as Mst. Ghulam Fatima v. Muhammad Din and others ( 2004 SCMR - 618), Muhammad Yousaf Siddiqui v. Haji Sharif Khan through L.Rs. and others (PLD 2005 Supreme Court 705), Fateh Khan (deceased) through L.Rs. and another v. Surriya Begum (2006 SCMR 930), Maqsood Ahmad and others v. Salman Ali (PLD 2003 Supreme Court 31), Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), Muhammad Akram and another v. Altaf Ahmad (PLD 2003 Supreme Court 688), Mst. Suban v Allah Ditta and others (2007 SCMR 635), Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 01), Abdul Hameed through L.Rs. and others v. Shamsuddin and others (PLD 2008 Supreme Court-140), Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. (2008 SCMR 855) and Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others ( 2010 SCMR 1370).

5. Learned counsel for respondents argued that plaintiff had entered into compromise because she had not filed instant suit nor she had pursued the same. Rather whole proceedings had been pursued by one Mst. Zarpasanda her sister in law. He maintained that power of attorney executed in favour of respondent No.1 has never been cancelled and hence the suit mutation was rightly attested in favour of wife of defendant.

6. I have heard arguments of learned counsel for the parties and have gone through the record with their valuable assistance.

7. Perusal of record transpires that power of attorney being registered deed No.422 was executed on 23.11.1986 by the plaintiff in favour of defendant Zarshaid, her brother, vide which she gave him the authority to appear and pursue on her behalf all the cases pending before the civil, criminal and revenue courts in connection with suit, appeals, revisions from trial court upto the High Court and Revenue Board where he may pursue the case by filing plaint, withdrawal of the plaint, filing of written statements cognovit, affidavit, to record statements, summon witnesses, appoint advocate, deposit the amount or withdraw the same on her behalf. It is further provided that in case of decree, he may pursue the execution proceeding, obtain the possession, file application for recovery of suit, cancellation of ex parte decree appoint arbitrator, enter into agreement, pay and receive the cost, receive the rent from the tenants, receive Lagaan, usufruct and produce on her behalf, enter into agreement with the tenants by inducting them in possession or ejecting them, increase or decrees the rent. After providing all these conditionalities, it has also been added at the end that he may alienate by sale, mortgage, exchange or gift, her property.

8. The suit mutation was entered and attested in 1996. One wonders to comprehend that if lady was going to alienate her property, why she also made other covenants by describing different events and instances regarding litigation of her property in the power of attorney. It appears that she was confided by her brother for obtaining power of attorney that her property shall be managed by him under the said authority and he shall pursue the litigation in the form of any suit filed by or against her and she consented to the suggestion. While entry of last line regarding authority of alienation of property through sale, mortgage, exchange or gift, was a cyclostyle one which in normal course is mentioned as a routine matter. Consequences of which may not be comprehended by the principal at the time of execution and the same was the case with the plaintiff/lady. Had it been intended to alienate her property in favour of wife of the defendant, registered deed in his favour at the same time would have conveniently been attested in her favour instead of attestation of power of attorney. The suit mutation No.428 was entered and attested by attorney in favour of his wife on 26.6.1996 after ten years without taking the lady into confidence, as is borne out from the record.

9. Section 214 of the Contract Act 1872 stipulates that agent is duty bound to use all reasonable diligence in communicating with his principal, in cases of difficulty and in seeking to obtain his instructions. Whereas section 215 of the ibid Act ordains the consequence of non-communication with the principle namely that if agent deals, without first obtaining the consent of principal in the business of the agency and without acquainting the principal with all material circumstances, the principal may repudiate the transaction if the matter shows that any material fact has been dishonestly concealed from the principal by the agent or dealing by the agent is disadvantageous to him. The illustration-(a) being part of the Section elaborates the circumstances, which is reproduced herein below in extenso along with Section:-

215. Right of principal when agent deals on his own account, in business of agency without principal's consent.

If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows, either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him. Illustrations (a) A directs B to sell A's estate. B buys the estate for himself in the name of C. A on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material fact, or that the sale has been disadvantageous to him."

10. Bare perusal of the section read with Illustration-(a) manifests that principal may repudiate the sale if the agent buys the estate for himself in the name of someone else and sale is disadvantageous to the principal. Case in hand squarely falls within the mischief of Illustration-(a) of the Section because defendant No.1 has transferred the plaintiff's property in favour of his own wife, without acquainting principal who is also parda nasheen lady. Similar question came under consideration before the august Supreme Court in Fida Muhammad Khan v. Pir Muhammad Khan through legal heirs (PLD 1985 Supreme Court 341) and it was held that notwithstanding an authority to alienate principal's property, the attorney is not absolved from his two essential obligations, amongst others: firstly in cases of difficulty (and it will be a case of difficulty if the power-of-attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions; and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction.

11. With identical facts, same question came under consideration in case Maqsood Ahmad and others v. Salman Ali (PLD 2003 Supreme Court - 31), their lordship in the light of principle laid down in Fida Muhammad Khan v. Pir Muhammad Khan(deceased) through legal heirs (PLD 1985 Supreme Court 341) and Muhammad Yasin v. Dost Muhammad (PLD 2002 Supreme Court 71), observed that when an attorney holder intends to transfer the property in favour of his close relative, he is required to acquire consent of the principal.

12. In case titled Fateh Khan (deceased) through L.Rs. and another v. Surriya Begum (2006 SCMR 930 ) suit of the plaintiff/lady was decreed on the same principle in identical circumstances. In the said case too, attorney holder transferred the property of his principal in favour of his wife without bringing the same to the notice of the lady. In the case of Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCMR 618), sale of land by attorney in favour of his wife without consent of the principal was struck down. Same principle was reiterated in Muhammad Yousaf Siddiqui v. Haji Sahrif Khan through L.Rs. and others (PLD 2005 Supreme Court 705 ).

13. Another aspect of the case is that the transferor whose property has been transferred is a parda nasheen lady. The superior courts have woven a cloak in different pronouncements to protect interest of the Parda Nasheen Ladies, particularly in this conservative society, where parda observing ladies are mostly dependent on their kith and kins regarding the management of their property which more often than not are misused and exploited by the male member of the family. In most of the cases their properties are transferred by anyone, proceeds whereof is often misappropriated by the male members and not a single penny is paid or meagre amount is handed over to them. Keeping in view social constraints and interest of the ladies, time and again High Courts as well as the august Supreme Court have pronounced in their judgments that their interest be jealously protected. Whenever suit is brought on their behalf with the allegation of collusion and fraud, it is keenly observed that they may not have been deprived of their valuable rights by undue influence of the fiduciary relations. There is chain of judgments since pre-partition till date wherein their rights have been protected when it is established that their interest has been usurped by the male members of the family. In appreciating their case, it is oftenly scrutinized as to:-- I. Whether an independent friendly advice was available to the lady at the time of transaction? II. Whether she has been benefited from the transaction? III. Whether her hand while impressing thumb or signing deed was accompanied by her mind? IV. Whether she has retained some part of the property for herself or disposed of the whole? V. Whether the transaction was free from any shadow of doubt? VI. Whether the transaction was righteous in character? VII. Whether she was not under the undue influence of her kith and kin or beneficiary of the transaction? VIII. Whether she was in actual need of transaction to sell out her property and what were the circumstances which constrained her to enter into transaction? IX. Whether the document of sale/gift was explained to her and whether she really understood its consequences? X. What were the compulsive elements which forced her to transfer/gift whole property to brother/nephews, depriving her own children? If answer to any one of the questions posed, is wavering in character or unsatisfactory, it would adversely affect the very root, veracity and genuineness of the transaction, entered into on her behalf. The proposition has extensively been discussed in Khawas Khan's case (2004 SCMR 1259). On broad survey of case law declared by the courts since pre -partition and subsequent thereto, it was held that the burden of proof in respect of documents purported to have been executed by parda nasheen lady, affecting her right or interest in the immovable property, is on the person claiming the right or interest under the deed. He is required to prove that contents of deed were substantially understood by the lady and it was really her free and intelligent act. If she is illiterate, it must have been read over to her. The proposition was based on Ramanamma v. Marina Virania (AIR 1931 Privy Council 100) and Faridunnisa v. Mukhtar Ahmad (AIR 1925 PC 204). With reference to Chainta Dasya v. Bhalku Das (AIR 1930 Cal. 591), it was further observed that such rule is equally extended to an ignorant and illiterate lady. It was observed that it would be unreasonable to restrict the rule only to a specific class of pardanasheen lady and not extend the same to poor woman though she is an illiterate and ignorant but not parda observing. If this view is consciously adopted, the effect clearly would be to confer an unfair advantage upon a specific class of women by depriving the poor class. The object of the rule of law is to protect weak, helpless and dependent women from the manoeuvring of their male guardians.

14. To better appreciate and understand the import of the principle of law applicable to pardanasheen and ignorant woman set out in chain of judgments since pre-partition till date, it would be beneficial to reproduce the relevant part of the judgment in Shrimati Saratkumari Dasi v. Amullyadhan Kundu and others AIR 1923 PC 13 which runs as under:-- "According to the principles which have always guided the Courts in dealing with sales or gifts made by Pardanashin ladies the strongest and most satisfactory proof ought to be given by the person who claims under a sale or gift from them, that the transaction was a real and bona fide one and was fully understood by the lady whose property is dealt with. In Shampati Keori v. Jago Bibi (supra) Sir Andrew Scoble said, "It is a well-known rule of this committee that in the case of deeds and powers executed by Pardanashin ladies it is requisite that those who rely upon them should satisfy the court that they have been explained to and understood by those who executed them." Similarly, in Mst. Faridunnisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204, it was observed as follows:-- "The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it. Wajid Khan's case (1891) 18 Cl. 545, Sunitabala Debi's case (1919) 46 Ind. App. 272." Similar view was adopted in chain of judgments including: Taleh Bibi and others v. Mst. Maqsooda Bibi and another (1997 SCMR 459), Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642), Mst. Badshah Begum v. Ghulam Rasul and 4 others (PLD 1991 SC 1140), Khawas Khan through legal heirs v. Sabir Hussain Shah and others (2004 SCMR 1259), Muhammad Tufail and 4 others v. Akbar Ali and 4 others (2004 SCMR 1370).

15. With reference to bar of limitation, their lordship by placing reliance on Samar Parvaiz v. B.I.S.C.E (PLD 1971 SC 838), concluded that efflux of time would not sanctify the action based on fraud and misrepresentation. To further cement the proposition, reference was also made to Fatahuddin v. Zarshad (1973 SCMR 248) wherein it was held that time would run from the date when right to sue would accrue. The same view was followed in Bakhsha and others v. Ghugatta (2002 SCMR 1353). Having considered this legal aspect of the case it was ruled that cause of action accrued to the plaintiffs when they came to know about fraud and mis-representation practiced upon their predecessor. It is pertinent to mention that in this case too registered deed was attested on behalf of predecessor, mother of the plaintiffs in 1938 and thereafter mutation was attested in 1944 in favour of the predecessor of the defendants. While the suit was filed by her L.Rs. By holding such, the decree passed in favour of the plaintiffs was upheld and the appeal was dismissed.

16. Besides that it is well settled law that whenever mutation is challenged on the basis of fraud and collusion, it is the bounden duty of its beneficiary to fall back to the original transaction and prove the same through cogent and trustworthy evidence, that before entering the mutation, the transaction was struck between the parties which was later on incorporated in mutation and attested in his favour. On failure to prove the genuineness of the transaction, beneficiary is to face the consequences. Mere entry of mutation does not create any right in his favour because it is not a document of title. The revenue record is maintained for fiscal purposes. It neither creates nor extinguishes right of a party unless it is proved to the satisfaction of the court that it was genuinely entered into and attested after payment of consideration with free consent of the vendor. In the instant case, beneficiary has failed to prove genuineness of the transaction, hence the mutation in question is not sustainable on this count too. In this regard reliance may be placed on Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. (2008 SCMR 855), Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 01), Mst. Suban v. Allah Ditta and others (2007 SCMR 635), Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729) and Muhammad Akram and another v. Altaf Ahmad (PLD 2003 Supreme Court 688).

17. For the reasons discussed above, instant revision petition is allowed, the impugned judgment of the appellate court is set aside and that of the trial court is restored, with no order as to costs. ZC/426/P Revision allowed.