2008 PLP 1201 (SCMR)
GHULAM FARID and others — Petitioners Versus MUHAMMAD BAKHSH and another — Respondents
| Citation | 2008 PLP 1201 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ |
| Parties | GHULAM FARID and others — Petitioners Versus MUHAMMAD BAKHSH and another — Respondents |
| Primary Law | (b) Specific Relief Act (I of 1877), (a) Pardanashin lady |
Q1: What are the key laws and sections cited in 2008 PLP 1201 (SCMR)?
This judgment primarily cites: (b) Specific Relief Act (I of 1877), (a) Pardanashin lady as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2008 PLP 1201 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2008 PLP 1201 (SCMR) (GHULAM FARID and others — Petitioners Versus MUHAMMAD BAKHSH and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ch. Hamiduddin, Senior Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Petitioners.
- Nemo for Respondent.
- Date of hearing: 25th June, 2004.
- 3. The learned counsel for the petitioners argued that the High Court was not justified in law to interfere with the concurrent findings of fact recorded by the Courts below on proper appraisal of evidence on record. Reliance was placed on the cases of Muhammad Saleem v. Muhammad Aslam and others 1983 SCMR 53, Sheikh Muhammad v. Mst. Hashmat Sultana 1989 SCMR 34, Ch. Muhammad Ismail v. Mr. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 and Abdul Wali Khan through legal heirs and others v. Muhammad Saleh 1998 SCMR 760. It was next contended that the petitioner No.8 Mst. Saleeman was an illiterate Pardanashin lady to whom no independent advice was available. Neither the contents of so-called agreement were read over to her or explained nor the thumb marked by her on the same was with her free consent. Therefore, such an agreement was not enforceable by law. Reliance was placed to the cases of Nawab Sikandar Begum v. Zulfikar Wali Khan (minor) and others AIR 1938 Privy Council 38, Farid-un-Nisa v. Mukhtar Ahmad and another 52 IA 342=AIR 1925 PC 204 and Kali Bakhsh Singh and others v. Ram Gopal Singh and others (1913) (41 IA 23=21 IC 985). The learned counsel submitted that it was proved by evidence that the Clerk of an Advocate of the husband of petitioner No.8 had fraudulently obtained her thumb marks on plain papers. Therefore, such an agreement had no validity or sanctity in the eye of law being hit by Article 17(2)(a) of Qanun-e-Shahadat Order, 1984 as laid down in the case of Hussain and others v. Lal Din and others 1998 SCMR 99.
- 5. We have heard the learned counsel for the petitioners at length and have also gone through the available record. We find that the agreement to sell (Exh.P.II/1) was thumb-marked by the petitioner No.8 and was also signed by her husband Muhammad Ramzan, who appeared as D.W. He did not disown his signatures on the agreement to sell. He also admitted that he had brought his wife (the petitioner No.8) to the Court on the day the sale agreement of the land was executed with the respondents P.W.11 Raja Muhammad Yousaf, Clerk of the Advocate categorically stated that he was marginal witness of agreement to sell (Exh.P.II./1) executed by the petitioner N.8 which was read over to her who accepted its correctness and affixed her thumb impression on it. Needless to observe that the petitioners Nos.1 to 7 had purchased the suit land through husband of petitioner No.8 who had the knowledge of the agreement to sell. The husband of the petitioner No.8 was also her attorney. Therefore, the plea of the petitioners of bona fide purchasers of the suit land without notice to the earlier sale agreement was not tenable in the facts and circumstances of the case. Since the agreement to sell was executed by the petitioner No.8 in the presence of her husband, therefore, it could not be said that no independent advice was available to her at that time. The judgment by the trial Court as well as the First Appellate Court suffered from misreading and non-reading of material piece of evidence on record. The High Court was justified in passing the impugned judgment and decree in favour of the respondents. No exception can. be taken to the findings recorded by the High Court. The case law relied on by the learned counsel for the petitioners is distinguishable from the facts and circumstances of the present case.
Headnotes / Summary
(On appeal from judgment, dated 16-2-2001 of the Lahore High Court, Lahore, passed in Civil Revision No.1227 of 1989).
Agreement to sell by illiterate Paradanashin lady
Plea of non-availability of independent advice to such lady
Agreement was signed by her attorney/husband, who did not disown his signatures thereon during examination in Court
Husband admitted that he had brought his wife to the Court on relevant day
Marginal witness deposed that agreement was executed by such lady, which had been read over to her, who after accepting its correctness had put her thumb impression thereon
Lady, held, had executed the agreement in presence of her husband. Muhammad Saleem v. Muhammad Aslam and others 1983 SCMR 53; Sheikh Muhammad v. Mst. Hashmat Sultana 1989 SCMR 34; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and twenty others PLD 1996 SC 246; Abdul Wall. Khanb through legal heirs and others v. Muhammad Saleh 1998 SCMR 760; Nawab Sikandar Begum v. Zulfikar Wali Khan (minor) and others AIR 1938 Privy Council 38; Farid-un-Nisa v. Mukhtar Ahmad and another 52 I.A. 342 = AIR 1925 PC 204; Kali Bakhsh Singh and others v. Ram Gopal Singh and others (1913) (41 I.A. 23 = 21 I.C. 985 and Hussain and others v. Lal Din and others 1998 SCMR 99 ref.
Ss. 12 & 27(b)
Suit for specific performance of agreement to sell
Subsequent purchaser claimed to be bona fide purchaser having no notice of earlier agreement
Subsequent purchaser had purchased property from vendor through her husband, who was her attorney and had knowledge about earlier agreement
Such plea was not tenable in facts and circumstances of case.
Judgment & Decree
FAQIR MUHAMMAD KHOKHAR, J.
The petitioners seek leave to appeal against judgment, dated 16-2-2001, passed by the Lahore High Court, Lahore in Civil Revision No.1227 of 1989.
2. The respondents instituted on 21-11-1977, a civil suit against the petitioners for specific performance of an agreement to sell, dated 17-1-1977 (Exh.P.11/1). It was averred therein that the petitioner No.8 had executed the agreement to sell her land measuring 24 Kanals and 6 Marlas on 17-1-1977 in favour of the respondents for a consideration of Rs.24,350 out of which she had received a sum of Rs.12,000 on the date of execution of agreement. However, the petitioner No.8, by registered sale deed, dated 9-10-1977 sold the aforesaid land to petitioners Nos. 1 to
7. The trial Court dismissed the suit of the respondents, by judgment and decree, dated 28-10-1987. The appeal of the respondent was also dismissed by the Additional District Judge, Jhang, by judgment and decree dated 19-2-1989. Therefore, the respondent filed Civil Revision No.1227 of 1989 which was allowed by a learned Single Judge of the Lahore High Court, by the impugned judgment, dated 16-2-2001 whereby the suit filed by the respondent was decreed with the direction to the respondent to deposit the balance sale consideration of Rs.12,350 with the trial Court. Hence this petition for leave to appeal by the petitioners.
3. The learned counsel for the petitioners argued that the High Court was not justified in law to interfere with the concurrent findings of fact recorded by the Courts below on proper appraisal of evidence on record. Reliance was placed on the cases of Muhammad Saleem v. Muhammad Aslam and others 1983 SCMR 53, Sheikh Muhammad v. Mst. Hashmat Sultana 1989 SCMR 34, Ch. Muhammad Ismail v. Mr. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 and Abdul Wali Khan through legal heirs and others v. Muhammad Saleh 1998 SCMR
760. It was next contended that the petitioner No.8 Mst. Saleeman was an illiterate Pardanashin lady to whom no independent advice was available. Neither the contents of so-called agreement were read over to her or explained nor the thumb marked by her on the same was with her free consent. Therefore, such an agreement was not enforceable by law. Reliance was placed to the cases of Nawab Sikandar Begum v. Zulfikar Wali Khan (minor) and others AIR 1938 Privy Council 38, Farid-un-Nisa v. Mukhtar Ahmad and another 52 IA 342=AIR 1925 PC 204 and Kali Bakhsh Singh and others v. Ram Gopal Singh and others (1913) (41 IA 23=21 IC 985). The learned counsel submitted that it was proved by evidence that the Clerk of an Advocate of the husband of petitioner No.8 had fraudulently obtained her thumb marks on plain papers. Therefore, such an agreement had no validity or sanctity in the eye of law being hit by Article 17(2)(a) of Qanun-e-Shahadat Order, 1984 as laid down in the case of Hussain and others v. Lal Din and others 1998 SCMR 99.
5. We have heard the learned counsel for the petitioners at length and have also gone through the available record. We find that the agreement to sell (Exh.P.II/1) was thumb-marked by the petitioner No.8 and was also signed by her husband Muhammad Ramzan, who appeared as D.W. He did not disown his signatures on the agreement to sell. He also admitted that he had brought his wife (the petitioner No.8) to the Court on the day the sale agreement of the land was executed with the respondents P.W.11 Raja Muhammad Yousaf, Clerk of the Advocate categorically stated that he was marginal witness of agreement to sell (Exh.P.II./1) executed by the petitioner N.8 which was read over to her who accepted its correctness and affixed her thumb impression on it. Needless to observe that the petitioners Nos.1 to 7 had purchased the suit land through husband of petitioner No.8 who had the knowledge of the agreement to sell. The husband of the petitioner No.8 was also her attorney. Therefore, the plea of the petitioners of bona fide purchasers of the suit land without notice to the earlier sale agreement was not tenable in the facts and circumstances of the case. Since the agreement to sell was executed by the petitioner No.8 in the presence of her husband, therefore, it could not be said that no independent advice was available to her at that time. The judgment by the trial Court as well as the First Appellate Court suffered from misreading and non-reading of material piece of evidence on record. The High Court was justified in passing the impugned judgment and decree in favour of the respondents. No exception can. be taken to the findings recorded by the High Court. The case law relied on by the learned counsel for the petitioners is distinguishable from the facts and circumstances of the present case.
6. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. S.A.K./G-33/SC Leave refused.