P L D 1991 Supreme Court 1140 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑This appeal through leave of f the Court is directed against the dismissal by the High Court of the appellant's Civil Revision. The facts briefly stated are that the property in dispute belonged to Mst . Badshah Begum plaintiff/appellant. She had married Ghulam. Ali after the death of her previous husband Ch. Daulat Khan. The suit property which the appellant inherited from her previous husband on his death h was purported to have been gifted by her in the name of her husband Ghulam Ali through a registered deed. Ghulam. Ali died in 1969. The respondents' side is his successors. They posed themselves as owners of this property through succession opened on the death of Ghulam Ali. She objected but without any success. Then she filed a suit out of which the present appeal has arisen. Her plea of fraud and misrepresentation can be seen from the following narrative in her plaint: The plaintiff/appellant's revision having failed, leave to appeal was granted in this and another similar case as follows:‑‑ "Leave to appeal has been sought in these two petitions directed against separate judgments of the High Court arising out of independent matters. They, however, involve a common question; as to whether, the female petitioners therein were not prejudiced on account of being Muslim female Pardanasheen ladies for lack of care in observing the well‑established rules for protection of their interests when they entered into contracts/transactions. After hearing the learned counsel for the petitioners and the caveator in one case, we consider them fit for grant of leave to appeal. They shall be heard together." It may be straightaway stated that the law, the facts and circumstances of this case are, including limitation, prima facie, fully covered by the rule laid down by this Court in the case of Ghulam Ali and 2 others v. Mst. Ghularn Sarwar Naqvi PLD 1990 SC

1. The appellant a female Muslim, according to respondents/defendants' case, is purported to have made a gift in favour of her husband Ghulam Ali of valuable property. The case decided in the above‑noticed judgment of this Court did not relate to a gift and the transaction involved therein was one of surrender of property by a female in favour of her brothers. However, the question of alienations made by female Muslim in Pakistan was also thoroughly dealt with and keeping in view the safeguard visualised in Islam as well as the Contract Act in so far as the female alienors are concerned, were spelt out in detail. They, prima facie, have not been satisfied in this case regarding the alleged gift made by Mst. Badshah Begum. to her husband. The learned counsel for the. respondents/successors‑in‑interest of Ghulam Ali while not denying the validity and application of the rule laid own in the case of Mst, Naqvi and in such like cases, has tried to show that the safeguards spelt out in the said judgment have been satisfied in the present case. With the help of the learned counsel, we have gone through the evidence. It is correct that the case of the respondents was that she voluntarily out of free Will gifted the suit property to her husband. And her plea was that she had been defrauded by him. Evidence was led from both the sides to rebut each other's case. It is also correct that the respondents' side examined an Advocate who proved the thumb impression of the appellant on a written statement filed on her behalf by the said Advocate in another suit regarding inheritance of her previous husband Ch. Daulat Khan. It is further undoubtedly correct that the transaction is evidence by a registered deed. Therefore, it will have to be accepted that Mst. Badshah Begum did thumb‑mark the written statement filed on her behalf in the previous suit which did contain the admission that she had gifted the property involved in the present suit to her husband. It will also have to be admitted that gnu had appeared before, the Registrar and did thumb‑mark the Registered Deed. There is ample evidence to prove these facts. But the question remains as to whether at that time when she appeared before the Registrar or she appeared before the lawyer, she was either a free agent or that she was not being duped by her husband; as in the case of Mst. Naqvi she was inveigled by her brothers. The plea of Mst. Badshah Begum consistently from the very beginning is that she was made to thumb‑mark some document which were represented to her to be in another different connection and no question ever arose of her making a gift in her husband's favour through these documents including the registered deed and/or the written statement. She is a childless widow and the learned counsel for the respondents has also offered a settlement formula; namely, that the respondents are ready to allow her the usufruct of the suit property for her lifetime. This type of relationship between the parties would show that if she would have willingly gifted the property she might have accepted such proposals. There is also no reason why she should tell a lie. But this all also is besides the point. Admittedly she was such a female Muslim who as held in Mst. Naqvi's case needed full protection and safeguard in so far as her property is concerned. It is absolutely clear from the evidence that there was nobody with her to advise or protect her interests as against the alienation through gift which admittedly deprived her of the valuable property rights. The lawyer who submitted a written statement on her behalf only stated that she had thumb marked it in his presence. That by itself would not show that she was the correct person. It has nowhere, been alleged that she was identified by such a person who had no interest against her in respect of the property in question. If Ghulam Ali her husband had then identified her before the lawyer this afforded no protection to her. Similarly, Jalal D.W. candidly admitted that when she had gone out of her house for purpose of executing the instrument in question she was accompanied by none else except by her donee husband. After hearing both the learned counsel at some length we are satisfied that the Muslim female involved in this case was not protected in the manner provided by Islam and the relevant law as held in the case of Mst. Naqvi. Accordingly, this appeal is allowed. The suit filed by the appellant is decreed. There shall be no order as to costs. Before dosing this judgment it needs to be clarified that when Ghulam Ali died, according to the statement made at the Bar, he left at least, generally speaking, two heritable properties,‑‑one consisting of the suit property which is the subject‑matter of the foregoing discussion and the other property which he owned 'otherwise than through gift made by 'the appellant. Therefore, this judgment is confined only to that property which is the suit property and was the subject‑matter of the alleged gift made by Mst. Badshah Begum in favour of Ghulam Ali. If Mst. Badshah Begum is entitled, as widow, to the other property of Ghulam Ali which is not the subject‑matter of this case and this judgment, it will not create any bar to her obtaining her share as heir of Ghulam Ali in the other property. M.BA./B‑186/S Appeal allowed.