P L D 1969 Karachi 324 (PLP)

(a) Government Occupants (Sind) Act (III of 1899), S. 8 and Sind Rural Credit and Transfer of Land Act (XLIX of 1947), S. S‑Sanction of Collector pre‑requisite for alienation of land Transaction without such sanction void and hence enforceable Courts cannot enforce a contract which is against imperative provi sion of law‑Contract Act (IX of 1872), S.

23. According to section 8 of the Government Occupants (Sind) Act, 1899, no sale in respect of land or lease beyond a period of 10 years could be executed by the grantee without the previous permission of the Collector. Another enactment, namely, The Sind Rural Credit and Transfer of Land Act XLIX of 1947, also controls the disposal of land by agriculturists at the time the sale deeds are executed. Under this latter Act, a person possessing an area less than 300 acres of agricultural land could not make a permanent alienation of his land without the sanction of the Collector. The Courts cannot enforce any contract which is against the statute. The legality of a transaction at once comes into question as soon as it is found that it is against an impera tive provision of law. The sanction of the Collector being a pre‑requisite for all alienations under Act III of 1899, the failure to perform the condition precedent would render the transaction void. Dharamdas Thawardas v. Sorabji and others A I R 1930 Sind 75 rel. (b) Contract Act (1X of 1872), S. 23‑Contract void by statute when made‑Cannot become valid by subsequent repeal of statute. , Sale of agricultural land measuring less than three hundred acres was prohibited under the provisions of Sind Rural Credit and Transfer of Laud Act (XLIX of 1947), without the sanction of the Collector. The impugned transaction took place without such sanction. It was contended that the said prohibition was subsequently repealed and as such the transac tion was no longer void by statute. The High Court observed: "At the time the sales took place, the provisions regarding the sanction of the Collector existed in Act XLIX of 1947. The transactions of sale will, therefore, be governed by the law as it existed at the time they were entered into. Any subsequent change in law will not retrospectively affect the rights that may have been acquired and the liabilities that have been incurred. The subsequent omission of the provisions regarding the require ment of the sanction of the Collector for sale of agricultural land measuring less than three hundred acres, will not in any way affect the nature of the transactions of sale in this case". "Craies" on Statute Law (1963), 6th Edn., p. 414 and Hitchcock v. Way (1837) 6 A & E 943 rel. (c) Contract Act (IX of 1872), S.16‑Transactions with pardanashin lady‑Document allegedly executed by illiterate purdanashia lady‑Suit for cancellation of document on grounds of fraud‑Onus of proof regarding genuineness of deed lies on party taking advantage of transaction‑Protection to pardanashin lady Rule stated‑Protection for pardanashin lady applicable in all cases whether such lady a plaintiff or defendant‑[Muhammad Shqfi and another v. Mst. Kalsum Bi and others A I R 1924 Lah. 200 dissented from]. The judicial pronouncements have woven a cloak of protec tion for pardanashin ladies, who because of their ignorance, inexperience of business matters and social conditions are not able to understand the nature of business transactions. The Privy Council defined a pardanashin lady as a woman of rank living in seclusion but the law regarding pardanashin ladies equally applies to illiterate and ignorant women. The question of fraud is quite separate from the doctrine that governs the transactions entered into by pardanashin or illiterate women. This rule shall apply even if there is nothing in the nature of coercion or deception in the transaction. The whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the executant. The onus is always on the person who takes advantage of a transaction to show that the transaction was actually conceived and put into practice by the disposer herself. The party taking advan tage must show to the Court that the deed was explained and understood by the executant and she adopted it with full knowledge and comprehension. The fact whether independent advice was available to a pardanashin lady at the time when she entered into a transaction can be taken into consideration in order to determine whether she thoroughly comprehended and had deliberately of her own free will, carried out the transaction. If it is found that the document was conceived and executed by her free will, it shall be upheld notwithstanding the fact that the executant is a pardanashin lady. The legal protection given to a pardanashin or an illiterate woman, cannot be transmuted into a legal disability. The protection that the Courts have built up for the pardanashin and illiterate women, would apply in all cases whether the lady is plaintiff or the defendant. Khas Mahal v. The Administrator‑General of Bengal 5 C W N 505 ; Ram Lal Singh v. Mst. Sept! A I R 1926 Pat. 295 ; Chainta Dasya v. Bhalku Das A I R 1930 Cal. 591 ; Ayana Dasi v. Arena Bala Dasi and others P L D 1961 Dacca 140 ; Farid‑un‑Nisa v. Mukhtar Ahmad 52 I A 342 ; Mst. Izhar Fatima Bibi and others v. Mst. Ansar Fatima Bibi and others A I R 1939 All. 348 ; Sayed Zawar Husain Shah and another v. Mian Saleh Muhammad Shah A I R 1940 Lah. 515 and Kati Bakhsh Singh and others v. Ram Gopal Singh and others

41. I A 23 rel. Mahomed Shafi and another v. Mst. Kalsum Bi and others A I R 1924 Lah. 200 dissented from. Kali Prashad Tewari v. Raja Sahib Perhald Sen (1869) 12 MIA282ref. (d) Government Occupants (Sind) Act (III of 1899), S. 8, proviso (b) ‑ Lease deeds executed piecemeal in succession during subsistence of previous lease and extending total period beyond ten years‑Held, hit by provisions of cl. (b) of proviso to S. 8 hence unenforceable. JUDGMENT ATAULLAH SAJJAD, J. ‑ This judgment will dispose of First Appeal No. 32 of 1964, filed by Mst. Hawa, resident of Mohalla Allahdad Chand, Hyderabad, against Muhammad Yusuf Brohi and others, residents of 87‑Nusrat Taluka Nawabshah (hereinafter called the defendants), and First Appeal No. 37 of 1964 filed by the aforesaid Muhammad Yusuf Brohi and others against the above‑named Mst. Hawa.

2. The two appeals arise out of the judgment of Mr. Fakharuddin H. Sheikh, Civil Judge, Nawanshah, dated 20th of April 1964. The property in suit is agricultural land, measuring 272 acres and eight ghuntas, situated in Deh 87 Nusrat in Taluka Nawbshah, and was owned by Mst. Hawa. She filed a suit for cancellation of sale deeds she was alleged to have executed in favour of the defendants and also prayed for the delivery of the possession of the land in suit. The Court decreed the suit of Mst. Hawa to the extent of declaring all the sale deeds executed by her in favour of defendants to be null and void. The relief regarding possession of the land in suit was, however, refused to Mst. Hawa on the ground that lease deeds executed by her in favour of the defendants still continued to have force, and she was not entitled to get possession of the land in suit till the year 1974‑75.

3. Appeal No. 32 of Mst. Hawa is directed against the refusal of the learned trial Judge to grant relief of possession, whereas the appeal filed by Muhammad Yusuf Brohi and others is directed against the finding of the learned trial Judge that the sale deeds were null and void.

4. The land in suit was given as an occupancy grant under the Government Occupants (Sind) Act 111, 1899, to one Subedar Lashkri Khan son of Sumar Khan, Mir Jat. He died issueless, and the husband of Mst. Hawa being his nephew inherited this property. After the death of her husband the property devolved on Mst. Hawa. She executed a lease deed Exh. 60/A, dated 5th of January 1953, for three years, beginning from Kharif crop of the year 1954 to the Rabi crop of 1956, at the rate of Rs. 5,440 per year in favour of Sideman, the dcceased brother of Muhammad Yusuf. While this lease deed was subsisting another lease deed Exh. 60/B dated 29th of April 1954, was executed by Mst. Hawa in favour of Muhammad Yusuf, defendant for the entire land for two years, i.e. 1957‑58 and 1958‑

59. The lease money was the same as fixed in the lease deed Exh. 60/A. Another lease deed Exh. 60/D was executed in respect of 232 acres 8 ghuntas of land in favour of Muhammad Yusuf on 16th‑ of Tune 1955, with effect from Kharif 1959 to Rabi 1964. The amount of lease was to be Rs. 4,500 per year. The area of the land leased out vide Exh. 60/D decreased because in the meanwhile Mst. Hawa and sold 40 acres of land to Muhammad Yusuf by sale deed Exh. 60/T dated 2Lth of February 1955. Another lease deed Exh. 60/E dated 15th of January 1957, was executed from Kbarif 1964‑65 to Rabi 1968‑69 in favour of Muhammad Yusuf in respect of area of 212 acres 8 ghuntas, at the rate of Rs. 3,809 per year. In between the execution of lease deed Exh. 60/D and Exh. 60/E, two sale deeds Exh. 60/S and ‑ Exh. 60/R were executed in favour of Muhammad Yusuf Brohi on 11th of October 1955 and 6th of March 1956. The area sold by Exh. 60/S measured 12 acres and its price was fixed at Rs. 3,

600. The area covered by the sale deed Exh. 60/R was 8 acres and was sold for Rs. 2,

400. Another lease deed Exh. 60/C dated 10th of July 1958, was executed in favour of Muhammad Yusuf for the years 1969‑70 to 1973‑74 in respect of 160 acres of land. The lease money was fixed at Rs. 3,000 per year. The area leased out had diminished because meanwhile 52 acres of land had been sold by Mst. Hawa to Muhammad Yusuf by sale deeds Exh. 60/M and Exh. 60/P dated 2nd of November 1957 and 14th of April 3 958, respectively. The sale deed Exh. 60/M covered an area of 40 acres while the sale deed Exh. 60/P covered an area of 12 acres. There after lease deed Exh. 60/F dated 18th of February 1959, was executed by Mst. Hawa in favour of Muhammad Yusuf in respect of an area of 144 acres of land for one year. The period of various lease deeds thus executed started from Kharif 1954 and extended to the year 1975. In between the execution of lease deeds Exh. 60/C and Exh. 60/F Mst. Hawa had sold 16 acres of land to Gul Hasan, a son of Muhammad Yusuf, on 18th of February 1959, vide sale deed Exh. 60/L. On 2nd of December 1959, she sold an area of 19 acres and two ghuntas of land to Muhammad Usman, defendant No. 4, a brother of Muhammad Yusuf, vide sale deed Exh. 60/Q for Rs. 6,

000. Again on 18th of October 1960, 16 acres of land were sold by Mst. Hawa to Muhammad Usman vide sale deed Exh. 60/K for a sum of Rs. 4,

800. On 23rd of July 1959, land measuring ?4 acres was sold to Abul Hasan, a minor son of Muhammad Yusuf vide sale deed Exh. 60/N for a sum of Rs. 7,

200. Thereafter, she executed sale deeds Exh. 60/J, Exh. 60/H and Exh. 60/G in favour of Muhammad Yusuf on 18th of October 1960, 16th of November 1960 and _18th of September 1961, respectively.

5. It would appear from the above narration of facts that while consecutive lease deeds were being executed by Mst. Hawa, she was also gradually divesting herself of her property by executing sale deeds in favour of Muhammad Yusuf, his two sons and his brother Usman during the subsistence of the periods of various sale deeds. The result was that by the execution of the sale deed Exh. 60/G, she was deprived of entire property which she inherited from her husband.

6. It has been stated above that the land in dispute had been granted to Lashkri Khan, the predecessor‑in- interest of Mst. Hawa under the Government Occupants (Sind) Act III of 1899. According to section 8 of the above Act, no sale in respect of this land or lease beyond a period of 10 years could be executed by the grantee without the previous permission of the Collector. Another enactment namely The Sind Rural Credit and Transfer of Land Act, XLIX of 1947, A also controlled the disposal of land by agriculturists at the time the sale deeds were executed. Under this latter Act, a person possessing an area less than 300 acres of agricul tural land could not make a permanent alienation of his land without the sanction of the Collector. This sanction, however, could be given by the Collector under section 5 of the above Act even after the completion of the transaction. It will thus be seen that the alienation of the land in suit was controlled by the provisions of the two statutes mentioned above.

7. On 14th of December 1962, Mst. Hawa filed a suit for cancellation of documents of sale and possession of the and in suit on the ground that she was an old, infirm and alliterate pardanashin lady of about 85 years of age, and that the defendants after obtaining fraudulently the sanction for the sale of the land in dispute vide Exh. 101 dated 18th of February 1955 and Exh. i03 dated 9th of September 1957, had got executed deeds of sale purporting to bear her signatures. It was asserted by her that she never sold any land belonging to her nor did she agree to do so. The documents of sale, according to the plaint, were the result of fraud and collusion between the defendants and Allah Bachayo deceased who was her relative and who admittedly, so long as he lived, acted for her in respect of the lease deeds and the sale deeds. It was further asserted in the plaint that the sale deeds purporting to be in the names of Gul Hasan, Abul Hasan and Muhammad Usman were for the benefit of Muhammad Yusuf defendant No.

1. It was also alleged that the sale deed dated 16th of November 1960, was against the provisions of Martial Law Regulation No. 64, and, therefore, was void on that account the execution of iease deeds was admitted by her but it was stated in para. 26 of the plaint that she was given to understand that every lease deed was for one year only. She alleged that a number of signatures were obtained from her on various occasions on the pretext that the same were in relation to the leases executed by her from time to time, in respect of her entire holding measur ing 272 acres 8 ghuntas. The plaintiff denied that she had ever received the sale proceeds in respect of the alleged sales as according to her in fact no sale had been made.

8. The defendants in their written statement denied that they had fraudulenty obtained the sanction of the Collector or that they had colluded with Allah Bachayo in obtaining the impugned sale deeds from Mst. Hawa. It was asserted that she had herself obtained the two sanctions from the Collector and sold her property. So far as lease deeds were concerned, it was asserted that the leases were "dissolved" because of the subsequent execution of the sale deeds. Objections on the basis of lack of cause of action, limitation, the form of the suit and court‑fee were also taken.

9. The trial Court struck the following issues :‑ (1) Is the suit time barred ? (2) Is the suit bad for multifariousness of causes of action? (3) Is the plaint insufficiently stamped ? (4) Is the suit not in proper form ? (5) Has this Court no jurisdiction to entertain the suit ? (6) Is the suit not maintainable at law ? (7) Are the sanctions obtained by the purchasers defend ants for transfer and alienation of land under dispute from Daftardar/Deputy Commissioner, proper, valid, effective and according to law ? (8) Were the sale deeds under dispute executed by the plaintiff with full understanding as to what she was doing and whether she had full knowledge of the nature and effect of transactions into which she had entered, if so, whether she had independent and disinterested advice at the time of those transactions ? (9) Is the plaintiff entitled to the relief sought for ? (10) What should the decree be ? Out of these issues Nos. 4, 5 and 6 were not pressed. The Court found that since the allegation in the plaint was to the effect that the transactions of sale were ab initio void,, the suit was not for mere cancellation of documents but was in its essence for possession and was, therefore, not barred by time. It relied on Shamshad Ali Shah and others v. Syed Hasan Shah and" others (P L D 1964 S C 143). It was also found that the suit did not suffer from multifariousness and was properly stamped. In regard to Issue No. 7, it was found that the sanctions for the sale of land were not in order and, therefore, the sale deeds were unenforceable. On Issue No. 8, it was found that the execution of the sale deeds had been proved and the allega tions of fraud, made in the plaint, had not been substantiated. The trial Court purporting to act under section 41 of the Specific Relief Act, directed that notwithstanding the fact that it had found the sale deeds to be devoid of legal sanction, the lease deeds will have effect till 1975. It, therefore, refused the relief of possession to the plaintiff till that year.

10. According to the evidence produced at the trial, it appears that Mst. Hawa made a statement Exh. 100 at page 182 of the record on 29th of April 1954, before Mukhdarkar Nawabshah that she wanted to sell 59 acres 25 ghuntas of her land to Muhammad Yusuf son of Haji. Sumar Khan at the rate of Rs. 350 per acre because she wanted to purchase some other land in the neighbourhood of Hyderabad. She was identified by Allah Bachayo at the‑ time she made the statement before the Mukhtlarkar. This statement was incidentally made on the same date on which she had come to Nawabshah to execute the lease deed: Exh. 60/B in favour of Muhammad Yusuf. It appears from the noting part of Exh. 101 at page 183, that this statement was treated as a petition by Mst. Hawa and reports of Mukhtiarkar of Nawabshah and Deputy Collector Nawabshah recommending the grant of permission as well as robkar dated 29th of December 1954, Exh. 79, addressed by Barrage Mukhtiarkar, Hyderabad, to Mst. Hawa informing her that.. she could give her offer for about 241 acres in Deh Mangria, in Taluka Dero Muhabat, were before the sanctioning authority. The Dafterdar of the Collector then passed the following order on 18th of February 1955 :‑ "The Dafterdar is pleased to permit applicant Mst. Hawa to sell her S. Nos. 87/1, 4, 88/2, 3, 4, 112/1, 3, 4, 113/1, 3, 4, 120/1, 2, 3, 121/1, measuring 59/28 acres in Deli, 87‑Nusrat." It appears from Exh. 111 that before the Dafterdar accorded permission for sale on 18th of February 1955, the Mukhtiarkar Nawabshah had asked the Supervising Tapedar on 30th of October 1954, that the woman should be produced before him. There is no indication on the record that there was any compliance with this order, but the Supervising Tapedar made a report on 18th of January 1955, that he had taken down the statement of Mst. Hawa to the effect that she had applied to the Barrage Mukhtiarkar, Hyderabad, for grant of 241‑11 acres of land. He had also obtained from her the robkari Exh. 79 and had attached it with the papers.

11. In pursuance of the sanction for sale by the Daftardar dated 18th of February 1955, sale deeds Exhs. 60/R, 60/S and 60/T were executed by Mst. Hawa in favour of Muhammad Yusuf.

12. Another application Exh. 102 (page 184 of the record) was filed by Mst. Hawa on 4th of June 1957, before the Deputy Commissioner, Nawabshah. It was for sanction to dispose of 212 acres 8 ghuntas of her land on the 'ground that it was not convenient to her to manage the same and that she wanted to purchase some other land near Hyderabad in place of the land intended to be sold. The Deputy Com missioner, Nawabshah gave sanction for sale on 19th of September 1957, vide Exh. 103 (page 185). We find from the noting part of this document that it was brought to the notice of the Collector that Mst. Hawa held land under Act III of 1899 but the attention of the Collector was not at all invited to the provisions of Act XLIX of 1947, nor does the Deputy Commissioner appear to have adverted to the pro visions of this latter law before giving sanction.

13. Before the Deputy Commissioner had given this latter sanction, the Deputy Collector, Nawabshah, vide Exh. No. 109, asked the Mukhtiarkar, Nawabshah for further particulars in relation to the application made by Mst. Hawa vide Exh. 102 and called upon him to state as to what was the proof that she will purchase some other land. A suspicion was expressed that some people taking advantage of her old age may usurp her property. We find from Exh. No. 110 that Muhammad Usman defendant No. 4 and one Muhammad Bakhsh appeared before the Mukhtiarkar, Nawabshah, on 17th of August 1957, and made a statement that Mst. Hawa was an issueless widow of about 70 years of age and had no brother or sister, and was not able to manage the property in dispute. It was further stated that the land was on lease with Muhammad Yusuf Brohi who looks after that.

14. Mst. Hawa categorically denied during her statement before the trial Court that she had ever appeared before any officer to ask for permission to sell the land. The clerk of the Barrage Mukhtiarkar appeared and stated that there was no application of Mst. Hawa for purchase of the alternative land in Deh Bongri, nor had any robkari been issued to her by the Barrage Mukhtiarkar Hyderabad in this connection. It appears from the statement of Fateh Khan (P. W. 3) a relative of Mst. Hawa, that he had made queries about the availability of land about which Mst. Hawa was alleged to have received a robkari but was told that at the time the robkari is alleged to have been issued, the land mentioned therein was not available for aliena tion as it was evacuee land and had been disposed of under the Evacuee Laws.

15. The learned trial Court held that the statement of Mst. Hawa that she had not applied for sanction for the sale of land in dispute, could not be accepted in view of the fact that the matter had passed through many officials and all of them could not be a party to a conspiracy to deprive her of her property. The learned trial Court, however, ignored the fact that after the denial of Mst. Hawa to have thumb‑marked any statement in this respect, the onus clearly lay on the defendants to prove that she had actually filed these applications.

16. Dealing with the matter as to whether the robkari Exh. 79 was or was not issued by Mukhtiarkar Barrage, the learned trial Judge observed that the original statement of Mst. Hfawa had been produced before the Barrage Mukhtiarkar by Ali Murad (P. W. 5) from the file of the Mukhtiarkar, Nawab shah and thus the plea of Mst. Hawa that she had not applied for purchase of alternative land to the Barrage Mukhtiarkar, was not correct.

17. We have said above that the onus to prove the state ments and applications alleged to have been made by Mst. Hawa lay on the defendants after she had denied to have made them. No evidence in rebuttal was made. The identity of Mst. Hawa as the woman who appeared before various officials in this connection remains unestablished. A peculiar feature of the statements alleged to have been made by Mst. Hawa before Mukhtiarkar, Nawabshah on 29th of April, 1954 Exh. 114 and the statement she is alleged to have made before the Mukhtiarkar Barrage Exh. 112 is, that they have been made without any application having moved in this behalf. It is not known under what procedure the statements of Mst. Hawa could be recorded straightaway without there being any formal application before the Mukhtiarkar. The alleged statement of Mst. Hawa before the Mukhtiarkar Barrage is in fact an application addressed to the Collector Nawabshah stating that she had received intimation from Mukhtiarkar Barrage that 241 acres of land was available in Deh Mangria Taluka Dero Muhabat, and that she should, therefore, be permitted to sell her land. The date on this document is given as 5/1, but the year is not given. It is not known why an application addressed to the Collector Nawabshah went to the Mukhtiarkar Barrage. There is no endorsement on this document showing as to how and when was it received in the office of the Collector. The name of the officer before whom this document was produced is not known. The words Barrage Mukhtiarkar Sahib, Hyderabad, written in Sindhi are in different ink than the rest of the application. After the Mukhtiarkar Barrage had issued robkari on 29th of December 1954, there was no occasion for Mst. Hawa to go to him and make a statement before him. There is no reference to this document in the order of the Daftardar dated 18th of February 1955, although there is a reference to the robkari. So far as the robkari is concerned, there is no proof that it was issued from the office from which it purports to have been issued. Actually, it could not have been issued because the land that Mst. Hawa allegedly wanted to purchase was not avaifiable for disposal. The robkari was allegedly placed before the Tapedar by Mst. Hawa who denied to have ever appeared before any person in this connection. Last but not the least suspicious circumstances is the promptitude with which it was issued on 29th of December 1954, in reply to the application of Mst. Hawa of the same date. 1t is hard to believe that if there was a genuine application from Mst. Hawa, her application could have been replied on the same day, because, before any reply could be made to her, the report of the field staff should have been called regarding availability of the land, and this could not have been done on the same day.

18. Even if Mst. Hawa appeared before any officer in this connection, it is clear that she was being over‑shadowed by Allah Bachayo in the first instance and then by Muhammad Usman defendant No. 4 on the second occasion. A reference to Exh. 110 would show that Muhammad Usman and Muhammad Bakhsh appeared before the Mukhtiarkar, Nawabshah, on 17th of August 1957, and made a statement in support of her applica tion for grant of sanction to sell her property. Muhammad Usman, who appeared as D. W. 4, when questioned in the witness box about this statement, denied that he had made any statement on the basis of Exh.

110. He was not able ‑to recollect Muhammad Bakhsh. who was alleged to have made the above statement jointly with him.

19. We, therefore, do not agree with the learned trial Court that it has been satisfactorily proved that Mst. Hawa had appeared before various Revenue Officers of her own free will to obtain sanction of the Collector for the disposal of the land in suit, and to purchase some other land. We, however, agree with the learned trial Court that the sanction in both the cases was not in order. In the first case, the sanction was given by the Daftardar and it has not been shown to us that officer had any authority to give sanction. Of course, the Government has the power under section 2 of Act III of 1899 to appoint any officer to perform the function of a Collector under the above Act, but no evidence has been produced to show that Daftardar was so appointed. The sanction given by the Daftardar on 18th of February 1953, was, therefore, rightly held to be invalid by the trial Court. It was also vitiated because the proceedings were tainted with fraud and sanction was obtained by misrepresentation that Mst. Hawa wanted to purchase some other land after selling the land in dispute.

20. So far as the second sanction is concerned, we have noticed number of suspicious circumstances about it. Even if the statement attributed to Mst. Hawa is thumb‑marked by her, there is no evidence that she had any independent advice in that respect or that the request for grant of sanction for alienating the land actually emanated from her. Muhammad Usman who along with one Muhammad Bakhsh is alleged to have supported her application for sale of land vide Exh. 110 denied that he had ever made such a statement. We agree with the learned trial Court that there is no sanction under Act XLIX of 1947. It does not appear from the material on this record that the mind of the learned Deputy Commissioner was at all attracted to the question that there was another statute, namely, Act XLIX of 1947, under which a person holding area less than 300 acres could not sell his property without the sanction of the collector. The sanction for sale of the disputed land was given on the terms and condi tions under Act III of 1899, and it is clear that the bar contained in Act XLIX of 1947, was not present to the mind of the Deputy Commissioner. The sanction is vitiated also on this ground.

21. Mr. Brohi, the learned counsel for Muhammad Yousuf, etc. argued that the lack of sanction was a matter between Mst. Hawa and the State, and the transactions of sale were not affected by the omission of a proper sanction. It was further argued that even if the sanction under Act XLIX of 1947 was not obtained at the proper time, the Collector was empowered to give sanction under section 5 of that Act even after the completion of the transactions. It was urged that the provisions regarding sanction had been repealed later on and that would mean that the ban on the sale of land without the sanction of the Collector had ceased to be applicable with retrospective effect. We do not agree with any of these contentions. The Courts cannot enforce any contract which is against the statute. The legality of a transaction at once comes into question as soon as it is found that it is against an imperative provision of law. The sanction of the Collector being a prerequisite for all alienations under Act III of 1899, the failure to perform the condition precedent would render the transaction void. It was held in Dharamdas Thawardas v. Sarobji and others (A I R 1930 Sind 75) that a mortgage effected in violation of section 73‑A of the Bombay Land Revenue Code without obtaining the sanction of the Collector was void.

22. As far the other part of the argument of Mr. Brohi, which relates to Act XLIX of 1947, is concerned, we may say that at the time the sales took place, the provisions regarding the sanction of the Collector existed in Act XLIX of 1947. Thel transactions of sale will, therefore, be governed by the law as it existed at the time they were entered into. Any subsequent change in law will not retrospectively affect the rights that have been acquired and the liabilities that have been incurred. It is true that even after the completion of a transaction, the Collector could give sanction under Act XLIX of 1947, but it is. nobody's case that this was done. The subsequent omission of the provisions regarding the requirement of the sanction of the Collector for sale of agricultural land measuring less than three hundred acres, will not in any way affect the nature of the transactions of sale in this case. We get support for this view from Craies on Statute Law. At page 414 of the 6th Edition (1963), the learned author. ,has dealt with a similar question. Certaine ontracts had been .declared to be illegal by a statute. That statute was repealed and it was argued that the transactions hit by the statute were no ;longer illegal. It was held that a contract which was void by statute when made, could not be set up again by the repeal of the statute between the time of the contract and the commencement .of the suit. The learned author has in this connection referred to the following observations of Coleridge, J. in Hitchecock v. Way ((1837) 6 A & E 943, 947) "It had been originally a good contract, and a statute had passed which had made it void, and then that statute had been repealed, the contract would have been set up again. But there was .originally a void contract by virtue of a statute, and therefore it cannot be made valid by the repeal of that statute."

23. Issue No. .8 was decided against the plaintiff on the ground that the execution of sale deeds had been proved and it was not .established that the defendants had played any fraud on the plaintiff. We are not convinced that execution of the sale deeds by the plaintiff has been satisfactorily proved. The scribes of these documents are Ghulam Mehdi Shah (D. W. 3) and Pir Bakhsh (D. W. 7). In respect of sale deed Exh. 60/L, which was scribed by Pir Bakhsh D. W., Ghulam Mehdi Shah appeared as an attesting witness. He is also the attesting witness of Exh. 60/P of Which he was the scribe. Pir Bakhsh was the attesting witness of Exh. 60/M which was written by Ghulam Mehdi Shah. Out .of the twelve sale deeds, ten were attested by Allah Bachayo. No attesting witness was examined at all in respect of sale deeds Exhs. 60/T, 60/Q, 60/N, 60/J, 60/K and 60/H. Muhammad Usman ~D. W. 4) appeared as an attesting witness to respect of sale deed Exh. 60/N which is in favour of Mohammad Yousuf's son Abul Hasan. Maula Bakhsh, Tonga driver D. W. appeared as an :attesting witness in respect of sale deed Exh. 60/S, Muhammad Saleh (D. W. 2) a brick layer was examined as an attesting witness of Exh. 60/R, and Juman (D. W. 5) appeared as an attesting witness of Exh. 60/G. We do not think that the testimony of the above attesting witnesses is entitled to any ‑weight. Muhammad Usman is a defendant in the case and is brother of Muhammad Yusuf. Maula Bakhsh is a cart driver by profession and knows Muhammad Yusuf since 25/26 years. According to him the money was paid in his presence but the woman was first taken to the Sub‑Registrar and the document was completed thereafter. Muhammad Saleh is a brick layer and an employee of Muhammad Yusuf and was called by Muhammad Yusuf when the document was being written. Juman (D. W. 5) resides at a distance of nineteen miles from Nawabshah and professed to have come to Nawabshah to receive certain papers from Barrage Office. He admittedly was staying with Muhammad Yusuf. The case was adjourned to enable this witness to produce the document that be received from the Barrage Office on the day he is said to have attested the sale deed. The record does not show hat he appeared again and produced the document that he was asked to do. The trial Court observed that Mst. Hawa admitted to have thumb‑marked the sale deeds. We do not find any such admission in her statement. All that she said was that she thumb‑marked a number of documents in the belief that they: were connected with the lease deeds that she had executed in: respect of her land. The admission has been wrongly attributed to Mst. Hawa.

24. Mst. Hawa is an issueless, illiterate and pardah observ ing woman whose back is bent with the burden of years. She is about 70 to 80 years of age. This is borne out by the statements of Muhammad Yusuf (D. W. 1), Muhammad Usmark (D. W. 4) and Maula Bakhsh (D. W. 6). The trial Court procee ded on the assumption that Allah Bachayo was related to, Mst. Hawa and was looking after her interest. It is in evidence that Allah B3chayo was the son of a distant cousin of Mst. Hawa.. It is correct that he was managing the property of Mst. Hawa but from the facts of this case, it is clear that he had not the. welfare of the old widow at heart. The way Allah Bachayo looked after the interest of the plaintiff is indicated by the fact that during the period of a few years she stood deprived of every; inch of her property. He was in a way in a fiduciary position vis‑a‑vis the lady and the conclusion is irresistible that he: 'controlled her will. The scribes of these documents are Ghulam Mehdi or Pir Bakhsh. They are partners in business and work in the same premises. It is admitted by Muhammad Yusuf that all documents were executed at his otak. According to Ghulam, Mehdi some of the documents were written at his shop and the others at the otak of Muhammad Yusuf. On the other hand, the story of Pir Bakhsh was that all the documents of which he was the scribe were written at his shop while the lady used to be in the house of Muhammad Yusuf. He stated that she was first consulted before drafting a document and then was apprised of the contents of the documents after its completion, and she would thumb‑mark these documents on her way to the office of the Registrar. The lady asserts that she never appeared before the Registrar in his office, and we find it from the statements of Muhammad Yusuf and Muhammad Usman that the Registrar came to the house of Muhammad Yusuf for the registration of at least some of the documents: The documents stated above were executed at the otak of Muhammad Yusuf on his own admission. It is, therefore, hard to expect that the fresh air of free advice could find entry into the closed quarters where Muhammad Yusuf, Ghulam Mehdi, Pir Bakhsh and persons under their influence, had encircled the old lady. There is not an iota of evidence that any independent advice was available to the plaintiff or the sale deeds were the result of her free will: It was. held in Khas Mahal v. The Administrator‑General of Bengal (5 C W N 505) as under: "When dealing with the case of a will or a deed executed by a pardanashin lady, a particular and peculiar onus rests upon those who come forward to support the document to show that the executants thoroughly understood what she was, doing, and. was thoroughly and fully acquainted with the terms of the document she was executing. The presumptions as to the knowledge of the executants of the contents of the document she is executing do not equally apply in the case of a pardanashin lady as in the case of other persons."

25. Muhammad Yusuf admitted that he had a bank account and yet the money in each case is said to have been paid in cash. It does not appear from any of the endorsements made by the Sub‑Registrar that any money was paid in his presence or that the woman admitted in his presence that she had received money. 7 he trial Court was wrong in holding that it had been proved that consideration had passed in this case. Even if execution of the sale deeds had been admitted by Mst. Hawa, the onus to prove that consideration had passed, rested on the defendants. In Ram Lal ‑Singh v. Mst. Septi (A I R 1926 Pat. 295) it was held that the mere admission of execution of a document on the part of a pardanashin lady is not sufficient to dispense with the necessity of proving that consideration had passed.

26. Another intrinsic piece of evidence to show that these sale deeds are not genuine is found from the documents themselves. No adjustment of any amount having been paid on account of lease money was made in the sale deeds. According to Mst. Hawa lease vas for seven or eight years and was from year to year. Surely, if she had received money under these lease deeds Muhammad Yusuf could not have been so indifferent to his own interest that he would not deduct the lease money already paid from the price settled according to various sale deeds.

27. The judicial pronouncements have woven a cloak of protection for pardanashin ladies, who because of their ignorance, inexperience of business matters and social conditions are not able to understand the nature of business transactions. The Privy Council defined a pardanashin lady as a woman of rank living in seclusion but the law regarding pardanashin ladies equally applies to illiterate and ignorant women. It was so held in Chainta Dasya v. Bhalku Das (A I R 1930 Cal. 591) and Ayana Dasi v. Arena Bala Dasi and others (P L D 1961 Dacca 140).

28. The trial Court reached the conclusion that no fraud had been played on Mst. Hawa by the defendants. We have found above that Mst. Hawa was surrounded by persons who did not permit the access of any independent advice to her. The question of fraud is quite separate from the doctrine that governs the transactions entered into by pardanashin or illiterate women., This rule shall apply even if there is nothing in the nature of coercion or deception in the transaction. In Farid‑un‑Nisa v. Mukhtar Ahmad (52 I A 342) the Privy Council restated the rule and observed that the whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want off comprehension, is in itself no real proof of a true understanding mind in the executant.

29. The onus is always on the person who takes advantage of a transaction to show that the transaction was actually conceived and put into practice by the disposer herself. The party taking advantage must show to the Court that the deed was explained and understood by the executants and she adopted it with full knowledge and comprehension. We have, in this connection, already referred to Mst. Farid‑un‑Nisa v. Mukhtar Ahmad. The case of Ayana Dasi referred to above also lays down the same proposition. In addition, reference may be made to Mst. Izhar Fatima Bibi and others v. Mst. Ansar Fatima Bibi and others (A I R 1939 All. 348) and Sayed Zawar Husain Shah and another v. Mian Saleh Mohammad Shah (A I R 1940 Lah. 515).

30. The fact whether independent advice was available to a pardahnashin lady at the time when she entered into a transaction can be taken into consideration in order to determine whether she thoroughly comprehended and had deliberately of her own free will, carried out the transaction. If it is found that the document was conceived and executed by her free will, it shall be upheld notwithstanding the fact that the executant is a pardanashin lady.l The legal protection given to a pardanashin or an illiterate woman, cannot be transmuted into a legal disability. See Kali Bakhsh Singh and others v. Ram Gopal Singh and others (41 I A 23).

31. Mr. Brohi, the learned counsel for the defendants referred to Monir's Commentary of Law of Evidence. He sought to draw a distinction between a case where a Pardanashin lady is a plaintiff and another case where she is impleaded as defendant. He, in this connection, relied on Mahomed Shafi and another v. Mst. Kalsum Bi and others (A I R 1924 Lah: 200). We have gone through this Judgment but with the greatest respect to the learned Judges, who decided the precedent case, we have not been able to discover the principle of law on which this case was decided. The protection that the Courts have built up for the pardanashin and illiterate women, would apply in all cases whether the lady is plaintiff or the defendant. The Bench which decided the above case relied upon a Privy Council decision, namely, Kali Prashad Tewari v. Raja Sahib Perhald Sen ((1869) 12 M I A 282). The learned Commentator himself observed that the latter pronouncements of the Privy Council were not in accord with the Judgment which was relied upon by the Division Bench of the High Court which decided the case of Mohamed Shafi, referred to above. We therefore, hold that the above case does not lay down the correct law regarding transactions entered into by pardanashin and illiterate ladies.

32. The defendants have failed to prove that Mst. Hawa had any independent advice and the sale deeds were actually conceived by her and were executed by her after fully understanding their nature. We reverse the finding of the trial Court on this issue.

33. We find no force in the argument of the learned counsel for Mst. Hawa that Martial Law Regulation No. 64 had been violation in this case. Since in this case the entire holding was transferred by Mst. Hawa, it is no longer necessary to examine the question of the violation of the Martial Law Regulation.

34. The trial Court found that Mst. Hawa could not be permitted to keep the consideration of the sales effected by her and also to have the property. It, therefore, permitted the defendants to keep the property with them till 1975, when the period of the leases expires. We have found that no consideration appears to have been passed to the lady. We also find that the lease deeds were in contravention of the clear provisions of clause (b) of proviso to section 8 of the Government Occupants (Sind) Act of 1899. Under that clause, a lease or a mortgage for a period exceeding ten years cannot be effected without the previous consent of the Collector. In this case, the lease deeds were executed piecemeal with effect from the year 1954 to the year 1975. The period exceeds ten years. The lease deeds were executed in succession during the subsistence of previous lease deeds and the intention by executing these lease deeds piecemeal was to circumvent the law. They are clearly hit by the provisions of section 8, and are, therefore, unenforceable and illegal.

35. The result is that we accept .Appeal No. 32 of 1964 filed by Mst. Hawa and decree her suit in its entirety. She will get the costs of this litigation throughout. The appeal filed by Muhammad Yousuf etc. i.e. First Appeal No. 37 of 1964, is dismissed with costs throughout. A. E. Appeal accepted.