1998 PLP 323 (CLC)

In their evidence, respondents produced Allah Ditta D.W.1. He is a marginal witness to the general power of attorney and according to him, it has been executed for the purpose of sale of the land in dispute. He did not utter a word as to whether or not, the contents of the general power of attorney were read out to the petitioner, Muhammad Ashraf, vendee of the suit land, deposed about having purchased the same for sum of Rs.85,000.

4. After conclusion of the trial, learned Civil Judge came to the conclusion that the power of attorney in question was not the outcome of fraud and it has been validly executed by the petitioner for sale of the property in question. He accordingly dismissed the suit. The appeal filed by the petitioner was dismissed by learned Additional District Judge on 4‑2‑1996. Hence this revision petition.

5. It is contended by learned counsel for the petitioner that she was an illiterate Pardah‑observing lady and heavy onus lay on the respondents to prove that at the time of execution of the power of attorney independent advice was available to her and that contents of the said document were read out to her. It is also urged that there is nothing on record to prove that sale proceeds were passed on to the petitioner.

6. On the other hand, learned counsel for the respondents has pleaded that there are concurrent findings of fact recorded by two learned Courts below which are based on evidence and no justification exists in law to upset the same in revisional jurisdiction.

7. From the perusal of the evidence and material on record certain facts stand established: ‑‑ (i) the petitioner is an illiterate Pardah‑observing lady, (ii) the contents of power of attorney were read out to her at the time of attestation and no independent advice was available to her, (iii) there is no evidence that the sale proceeds were received by her, and (iv) the general attorney was a total stranger.

8. Keeping in view the above proved facts, the question that emerges for determination is as to whether in such a situation, the two learned Courts below have acted in accordance with law in non‑suiting the petitioner. Their Lordships of the Supreme Court have in Jannat Bibi v. Sikandar Ali and others (PLD 1990 SC 642) laid down law on the point on the following terms:‑‑ "It is well‑settled that the question whether a lady is a Pardahanashin lady is a question of fact (See Bank of Khulna Ltd. v. Jyoti Prokash Mitra and others (AIR 1940 Privy Council 147)). It is also well‑settled that ‑the' burden of proof in respect of a document purported to have been executed by a Pardahnashin woman affecting her right or interest in the immovable property is on the person claiming the right or interest under the document. It is for him to establish affirmatively that it was 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." It is, thus, clear that both the learned Courts below in the face of the proved facts, noted above, acted illegally in failing to follow the law as laid down in Jannat Bibi's case (supra) 5.

9. That is not all. Both the learned Courts below also have failed to draw the necessary adverse inference against the respondents due to non‑production of the Sub‑Registrar as witness. The only presumption that could have been drawn was that had he been produced, he would have not supported the respondents on the question of reading out the contents of the document and making her understand the same. This is yet another error apparent on the fact of the record.

10. No reason is forthcoming as to why the petitioner in the presence of her husband would have granted the general power of attorney in favour of a total stranger.

11. For what has been stated above, the judgments impugned in this revision petition are not sustainable in law and the same are set aside. The net result is that the suit of the petitioner is decreed as prayed for with costs. A.A./M‑442/L Revision accepted.