2007 PLP 3030 (YLR)

SARDAR MUHAMMAD ASLAM, J.

Respondent filed a suit for specific performance of an agreement to sell in respect of house measuring 5 marlas situated in Mohallah Puran Nagar Sialkot City for consideration of Rs. 1,50,000 out of which Rs. 50,000 has been paid as advance money and remaining price of one lac was to be paid at the time of execution of sale-deed 'which was to be registered within a period of two months. The plaintiff-respondent asked many a time to the defendant to receive balance amount within stipulated period and get the sale-deed registered but she avoided on one pretext or the other and replied that house has not yet been transferred in her name. On coming to know that the house has since been transferred in the name of defendant, once again, requested her for execution of the sale-deed but she has refused to accede his request. Suit was contested by the defendant and denied all the averments made in the plaint and submitted written statement. Controversy gave rise to framing of issues. Both the parties produced their respective evidence oral as well as documentary. The learned trial Court after hearing the parties decreed the suit in favour of the plaintiff. Aggrieved of the same, the defendant preferred an appeal which came up for hearing before 'the learned Additional District Judge, Sialkot who vide his judgment dated 21-3-1998 dismissed the same. Being dissatisfied with both the judgments and decrees the defendant filed the instant regular second appeal.

2. I have heard the learned counsel for the parties and perused the record.

3. Agreement to sell was produced as Exh.P.1. It was thumb marked by the appellant, marginally witnessed by Haji Inayat Ullah and Ghulam Nabi. It was authored on a stamp paper on 11-2-1989. Muhammad Younis Mughal, Advocate appeared as P.W.2. He stated that agree ment Exh. P.1 was authored and signed by him. He entered it at Serial No. 297 of register. In his cross-examination he stated that he did not know appellant personally. He stated that Safia Bibi has told him her caste Kakazai while Ghulam Nabi was Rajput. Ghulam Nabi was in possession of Identity Card. The appellant was accompanied by a female who did not witness the agreement. He admitted in cross-examination that the appellant-defendant was asked to bring some person but she told that her father is sick. He did not ask defendant to bring member, councillor or Lambardar. Plaintiff Muhammad Ajmal, P.W.3 stated that transaction of sale took place through agreement Exh.P.1. Earnest amount to the tune of Rs. 50,000 was paid. He admitted in cross-examination that he is not related to Mst. Safia Bibi. P.W.4. Inayat Ullah stated that he is father of Ajmal P.W.3. House in dispute was agreed to be sold against consideration of Rs. 1,50,

000. He is marginal witness of the agreement: He in cross-examination stated that at the time of agreement the defendant was accompanied by her sister and brother, Mst. Safia Bibi, appellant has appeared as D.W.1. She A denied execution of Exh.P.1. Ghulun Nabi was stated to be her stepbrother. Malik Siraj Din appeared as D.W.2. He stated that the appellant-defendant has not sold out the house in dispute. Ali Ahmad, D.W:3 stated. that no sale in respect of disputed property took place.

4. The agreement has not been proved through production of two marginal witnesses as required under Article 17 of Qanun-e-Shahadat Order 1984. Haji Inayat Ullah is the sole witness in support of agreement, who is father of the plaintiff. Ghulam Nabi son of Chiragh Din is step-brother of Mst. Safia Bibi. He did not enter in the witness box. Muhammad Younis Mughal, P.W.3 is not the attesting witness. He only authored the document and 'read over its contents to the parties and candidly admitted that Mst. Safia Bibi was not personally known to him. He required her to bring male member of family which shows his mind of non availability of independent advice to appellant. He cannot be treated at par with the petition writer, who maintains a register with page marking and entries are carried with serial No. and date. An Advocate is not obliged to keep record. He had not produced his register for examination in Court. His statement, thus, is of no evidentiary value. Reference can be had to Altaf Hussain Shah v. Nazar Hussain Shah (2001 YLR 1967) and Qasim Ali v. Khadim Hussain (PLD .2005 Lah.654)

4. Mst, Safia Bibi is an illiterate, village woman. Independent advice was not available to her. He was not accompanied by her father or any other person of her confidence-inspiring. Ghulam Nabi is step-brother. He too did not enter in the witness box. Both the learned courts below have failed to apply the law enunciated in Mst. Janat Bibi v. Sikandar Ali (PLD 1990 SC 642) Amirzada Khan and another v. Itbar Khan and others (2001 SCMR 609) providing protection to Pardanashin, illiterate ignorant lady and village women from exerting duress, fraud and mis representation. The respondent-plaintiff has failed to prove execution of Exh.P.1.

5. In Mst: Janat Bibi Supra, it was held than "Question whether a lady is a Pudahnashin lady is a question of fact

Burden of proof in respect of` a document purported to, have been executed by a Pardahnashin lady affecting her right or interest in the immovable property is on the person claiming the right or interest under the document and it is for him to establish affirmatively that it was substantially understood by the lady and if was really her free and intelligent act, if she is illiterate it must have been read over to her

Rule is also applicable to ignorant and illiterate women. In Amirzada Khan and another supra. Hon'ble Supreme Court observed as under:- "It is by now well-established requirement of law that burden of proof in respect of a genuineness of a transaction with a Pardahnashin lady and a document allegedly executed by such a lady lies on the person who claims benefit from transaction or under the document Such a person is legally obliged to prove and satisfy the Court; firstly that the document was executed b Pardahnashin lady and secondly that she had complete knowledge and full understanding about the contents of the document and thirdly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document. "

6. For what has been discussed above, this appeal merits acceptance, the judgments and decrees passed by the learned courts are set aside. Consequently, the suit filed by the respondent- plaintiff is dismissed. S.A.K./S-132/L Appeal Accepted