1999 PLP 728 (YLR)

SABIHUDDIN AHMED, J.‑‑‑ This appeal arises from a judgment of a learned Single Judge dismissing Suit No.218 of 1966 filed by the appellants seeking specific performance of a contract for sale of immovable property in Deh Sanharo and Khokar Tapo Landhi. The case as set out by the appellants in their plaint appears to be that on 28‑7‑1962, their father and predecessor‑in- interest late Sultan Muhammad Pathan (hereinafter mentioned as Purchaser) entered into an agreement on 28‑7‑1962 (hereinafter mentioned as first agreement) with respondent No.1 for purchase of land admeasuring about 18 Acres and 37 Ghuntas for total consideration of Rs.55,

000. By a separate agreement (hereinafter mentioned as second agreement) executed on the same day the purchaser also agreed to purchase the tenancy rights and all interests of the respondent No.2 (husband of the respondent No.1) who was also a Hari in respect of the aforesaid land as well as some land belonging to other persons for a total consideration of Rs.42,

000. An amount of Rs.10,000 was paid to respondent No. l upon the execution of the first agreement and a separate receipt thumb- marked by the aforesaid respondent No. l was also executed in presence of witnesses. As to the remaining amount of the sale consideration it was alleged that Rs.63,000 were paid by the purchaser to the respondent No.2 through a cross‑cheque, dated 1‑9‑1962 and according to the plaintiff this amount included Rs.30,000 to be paid to the respondent No. l by way of part payment of sale consideration. It was further alleged that on 17‑9‑1962 the purchaser deposited an amount of Rs.3,548 in the treasury by way of discharging the liabilities of the respondent No. l in connection with Malkano and only an amount of Rs.11,451.57 was outstanding which the purchaser was ready and willing to pay. Possession was delivered to the purchaser by the respondent No.2 after receipt of the amount of Rs.63,

000. Upon the failure of the respondent No. l to perform her obligations under the contract of sale the suit was filed on the original side of this Court, seeking specific performance against the respondent No. l as promisor and respondent No.2 as guarantor for the performance of the agreement.

2. The respondents Nos. l and 2 filed separate written statements but the respective positions taken up by them appear to be the same. The respondent No.1 admitted having thumb‑marked the first agreement (Exh.6) and having received Rs.10,000 in cash. However, she asserted that she had only agreed to lease the property to the purchaser for a period of 5 years at the rate of Rs.2,000 per year. She was given to understand that she was only being required to affix her thumb impression on the lease agreement and Rs.10,000 were being paid by way of lump sum consideration for the 5 years lease. She emphatically denied having agreed to sell the property to the purchaser or having received any sale consideration. She expressed awareness about execution of an agreement between the purchaser and the respondent No.2 regarding transfer of tenancy rights in her land as well as those of some other landlords but contended that consideration for the same was Rs.68,000 and not Rs.42,000 as alleged.

3. Likewise the respondent No.2 admitted the execution of the two agreements, one by his wife in his presence (Exh.6) and the other by himself (Exh.7). He also asserted that the first agreement was meant to be a lease agreement and with respect to the second the agreed consideration was Rs.68,000 and not Rs.42,

000. He signed the two documents purporting to be such agreements (the first as a witness and the second as a party) but being illiterate could not read the contents thereof. He also admitted having received Rs.5,000 in cash from the purchaser at the time of execution of the second agreement and a further sum of Rs.63,000 through cheque but stated that the entire amount was payable to him in terms of the aforesaid agreement. According to him he neither had the authority nor did he receive any payment from the purchaser for and on behalf of his wife i.e. the respondent No. 1.

4. Upon pleadings of the parties several issues were framed by the learned Single Judge, though at the stage of final arguments some of them were given up and only the following were pressed:‑‑ (i) Whether the defendant No.1 entered into an agreement of sale with late Sultan Muhammad as alleged by the plaintiff? (ii) Whether the defendant No. l had agreed to grant lease only in respect of survey numbers in suit as alleged in para. 2 of her written statement? (iii) What was the consideration for which late Sultan Muhammad had acquired rights of defendant No.2 in the land in suit? (iv) Whether late Sultan Muhammad had paid a sum of Rs.30,000 to defendant No.2 on behalf of defendant No.1. If so was this payment valid as against defendant No. l? (v) What amounts if any have been paid by late Sultan Muhammad to defendant No. l and on what account? (vi) What was the true nature of transaction between late Sultan Muhammad and the defendant No. l? (vii) To what relief if any is the plaintiff entitled?

4. The appellant No.1 Zaheeruddin Pathan examined himself, produced documents in his favour agreements with the defendants Nos.l and 2 (Exhs.6 and 7 respectively), payment receipts etc. and examined some witnesses claiming to have attested the aforesaid documents. Officials of the Revenue Department were also examined to show that permission to sell the aforesaid land was obtained from the Deputy Commissioner. The respondents Nos.l and 2 only examined themselves in support of their contentions.

5. There being no dispute as to the execution of the agreements, payment of the amounts mentioned therein, further payment of Rs.63,000 to the respondent No.2, through a crossed‑cheque and delivery of possession to the appellants the controversy between the parties had substantially narrowed down. The appellant principally relied upon the agreement of sale of property with the respondent No. l i.e. Exh.6 and the agreement for transfer of tenancy right with the respondent No.2 i.e. Exh.7. The two agreements (execution whereof was admitted by the respondents) mentioned consideration of Rs.55,000 and Rs.42,000 respectively and also stated that Rs.10,000 and Rs.5,000 were paid to the respondents Nos.l and 2 respectively at the time of execution of the agreements. The respondents acknowledged receipt of these amounts. In substance the case set up by the appellant was that apart from having paid Rs.5,000 by way of part payment to the respondent No.2 pursuant to the second agreement the purchaser also paid Rs.4,000 to one Mst. Amanat on behalf of the respondent No.2, who was the owner of certain lands in respect whereof tenancy rights were enjoyed by the respondent No.2 and which were also transferred to the appellant through the second agreement. As such Rs.9,000 having already been paid, when the appellant disbursed a cheque for Rs.63,000 on 2‑9‑1992, Rs.33,000 were to be appropriated by the respondent No.2 by way of outstanding consideration for the second agreement. Whereas Rs.30,000 were to be disbursed to the respondent No.1 towards part payment of the sale consideration. It was, therefore, contended that Rs.40,000 had already been paid to the respondent No.1. Moreover, an amount of Rs.3,548.43 was deposited by the purchaser in the treasury by way of Malkano on behalf of the respondent No. l at the time of grant of permission to sell the land given by the Deputy Commissioner. As such only Rs.11,452 were due and payable by way of remaining sale consideration.

6. The respondent No.2 denied the payments allegedly made to Mst. Amanat. However, acknowledging the remaining payment he explained that agreed consideration for sale of tenancy right in terms of the second agreement was Rs.68,000 and therefore, having received Rs.5,000 in advance at the time of execution of the agreement he was entitled to further payment of Rs.63,000 which was disbursed through a crossed‑cheque. He emphatically denied the allegation that he received any money for and on behalf of the respondent No.1 in connection with the first agreement or that he was entitled to do so. Likewise the respondent No. l also denied having received any payment from the respondent No.2 or having ever given any authority to the latter to receive payment from the appellant or any other person by way of sale consideration for her lands. Acknowledging the payment of Rs.10,000 she contended that she had only agreed to lease out her lands to the appellant for a period of 5 years at the rate of Rs.2,000 per year and being a illiterate and Pardanashin lady she was made to affix her thumb‑impression on the first agreement by giving the impression that it was only agreement of 5 years lease.

7. The learned Single Judge elaborately examined the evidence of the witness purported to have attested the first agreement and proceeded to record his findings to the effect that while the agreement in question was undoubtedly an agreement for sale of immovable property for total consideration of Rs.55,000 the aforesaid witnesses were not able to establish that the contents thereof were duly explained to the respondent No.

1. Relying upon the principle that the burden to prove that an agreement purported to be executed by a Purdanashin lady after fully comprehending implications thereof and of her own free‑will was upon the beneficiary of the agreement, he concluded that a valid agreement of sale was not proved and proceeded to hold that the respondent No. l had only agreed to grant a lease to the purchaser for a period of five years. With respect to Issue No.3 i.e. the quantum of sale consideration for the second agreement between the purchaser and the respondent No.2, the learned Single Judge declined to record any findings on the ground that it was not necessary as enforcement of the terms thereof were not sought. It was further held that the respondent No.2 had no power to receive any payment on behalf of the respondent No. 1 and there was no evidence to show that any amount allegedly received by the respondent No.2 was actually defrayed to the respondent No.

1. The suit was, therefore, dismissed.

8. We have heard Mr. Shabbir Ahmad Shaikh, learned counsel for the appellant and Mr. Khalilur Rehman, learned counsel for the respondent No.1 in great detail and have also carefully gone through the evidence and material on record. Learned counsel for the appellant in the first place contended that the learned Single Judge was not justified in extending the protection which the law grants to Pardahnashin ladies and placing additional burden on the plaintiff to prove the authenticity and validity of an agreement in writing admittedly executed by the parties. Secondly it was argued that the learned Single Judge erred in isolating the second agreement from the first and declined to record a finding on the controversy between the parties regarding this agreement, inasmuch as the two agreements were interconnected and all evidence relating thereto ought to have been considered for the purpose of reaching a correct finding of facts involved in the controversy.

9. The rule that absolute free‑will in executing an agreement and clear comprehension of its terms on the part of a Purdanashin or illiterate woman ought to be proved by the beneficiary of such agreement or a person attempting to enforce it, is a rule evolved by Courts to dispense even handed justice. It is designed to ensure, that nobody should be able to take undue advantage of the handicap that rustic, illiterate women living in seclusion and prevented from participating in social life suffer in our social set‑up. To this extent there can be no cavil with the proposition of law enunciated by the learned Single Judge in the impugned judgment for whose learning and mastery of legal principles we have a great deal of respect and admiration. The contours of this rule have been, inter alia, laid down in a Division Bench decision of this Court in Hawwa v. Muhammad Yousuf PLD 1969 Kar. 324, which has been relied upon in the impugned judgment and with which we fully agree. Nevertheless, it needs to be kept in view that it is not a rule of legal disability but only one of legal protection and does not stand from a statute but has been evolved by way of judicial propriety. In other words, there is no strict definition of the expression "Purdanashin woman" nor can a contract made with a woman found to be "Purdanashin" held to be void. All that the law requires is that instead of presuming free consent and absence of undue influence, the Court must, keeping in view all the evidence and surrounding circumstances, be satisfied that the agreement was made by the lady after adequate understanding of its terms, before enforcing the same. To determine whether such understanding existed, the factum of availability of independent advice from someone near to the lady and not having an adverse interest is always relevant.

10. At the same time, reported cases show that the above rule of protection cannot be applied as a matter of cause, merely on the ground that the lady in question was illiterate or observed purdah but again all the facts and circumstances will have to be considered before invoking the same. In Mahmooda Begum v. Maj. Malik Muhammad Ishaque, the Honourable Supreme Court observed:‑‑ "It cannot be said as a rule that Pardahnashin ladies are ignorant, week minded and have no capacity to understand their matters because of living in seclusion."

11. Indeed it is not disputed that the respondent No. l was illiterate and there is evidence on record to show that she observed purdah. Nevertheless in her deposition before the Court she appears to have shown substantial awareness to matters relating to her property. She has categorically asserted that she is the owner of the land and her husband is her Hari. She gave the land to the plaintiff on lease for five years for consideration of Rs.2,000 per year and did not sell it to him. She further stated that the purchaser also purchased Hari rights from her husband for Rs.68,000 and such rights were in respect of her lands as well as belonging to another lady as well as rights for Government 'land which was in Mohag of her own land. She has then gone on to mention not only the amounts received by her from the plaintiff but also those received by her husband. Further, she has described the number of different types of trees grown on the land in question. In cross‑examination she described the nature of her contractual relationship with her husband in the capacity of her Hari and his entitlements and also talked about the land that she had sold earlier to other persons as well as the consideration therefor. Keeping in view the level of consciousness displayed by her in the witness stand, we are constrained to, observe that the contention of Mr. Shabbir Ahmad Shaikh to the effect that inability to understand the nature of the transaction could not be inferred on her part is not without force.

12. An important consideration for application of the rule relating to Purdahnashin lady is the fact whether independent advice was available to her at the time when she entered into a transaction. This principle has been inter alia stated in para. 30 of the judgment of this Court in Hawa v. Muhammad Yousuf cited above PLD 1969 Kar. 324 and by. the Honourable Supreme Court in Muhammad v. Rehman 1998 SCMR 1354. Indeed while the findings of the learned Single Judge to the effect that the witnesses produced by the plaintiff were not able to establish that they had fully explained the nature of transaction to the lady have not been convincingly assailed, the fact that the agreement was executed in the presence of her own husband i.e. respondent No.2 has not been disputed. In fact the agreement (Exh.6) bears the signature of respondent No.2 on each page and the aforesaid respondent has acknowledged signing the same at the time when it was executed by respondent No.1. Therefore, it cannot be said that no independent advice was available to the respondent No.1 at the time of executing the agreement. The only explanation offered by the respondent No.2 is that he himself was illiterate and did not know contents of the documents but was told that only a lease agreement was being signed. However, as rightly contended by Mr. Shabbir Ahmad Shaikh the respondent No.2 at least could not claim the privilege available to a Purdanashin lady. The learned Single Judge has also considered the possibility of the respondent No.2 himself being instrumental in misleading the respondent, but has correctly observed, that this was not the case set‑up by any party.

13. With profound respects to the learned Single Judge we find it difficult, keeping in view all the oral and documentary evidence on record and upon a balance of probabilities that the agreement between the Purchaser/Plaintiff and the respondent No. l was one of lease for a five years term and not out‑right sale. There is no dispute as to the fact that written sale agreement (Exh.6) was in fact signed by the parties, at least in the presence of the respondent No.2 i.e. husband of respondent No.1. Even if it be assumed that the contents of the agreement were not fully explained to the lady, an altogether different agreement of lease would be required to be independently proved. Except for the bare statement of the two respondents there is no evidence to indicate that any negotiations between the parties regarding grant of lease hold rights for a five years term had taken place. Moreover, when possession of the property was already being delivered to the purchase and all tenancy rights held by respondent No.2 were being transferred to him pursuant to the second agreement (Exh.7) it is difficult to conceive that the purchaser agreed to enter into an independent lease agreement with the respondent No. l for additional consideration for a limited duration, when she could not otherwise eject him without legal process. Moreover, though the respondents entered the witness‑box in 1971 it was not shown that any process for seeking repossession of the land was ever undertaken, after the expiry of five years in 1967. It also appears incongruous that through one agreement the purchaser acquired all the rights of cultivating possession, in respect of the land on a permanent basis by purchase of such rights from the tenant/Hari, and at the same time he entered into a separate agreement of lease with the landlady only for a limited duration. Upon a reading of the evidence and consideration of all surrounding circumstances, we are of the humble view that the transaction between the purchaser and the respondent No. l was not of lease but of sale in terms of the agreement (Exh.6) and the latter could not be deemed to be unaware of its contents. It is, therefore, not possible to uphold the findings of the learned Judge on these aspects of the controversy.

14. With respect to the second agreement (Exh.7) the learned Single Judge has correctly observed that enforcement of its terms was not sought in the plaint. Nevertheless, with profound respects, we find force in the contention that such terms and the evidence relating thereto cannot be altogether ignored in the context of the real controversy between the parties. Indeed the terms of the agreement were reduced into writing and its execution has not been disputed. It clearly mentions the amount of Rs.42,000 as consideration for sale of tenancy rights. The respondents, however, deposed that the agreed consideration was Rs.68,

000. Such oral evidence, contradicting the terms of a written instrument, was clearly inadmissible under Article 103 of the Qanoon‑e‑Shahadat Order or section 91 of the erstwhile Evidence Act. Even otherwise these statements were not controverted by any independent evidence. Obviously such an untenable plea was only raised to explain away the payment in excess of Rs.42,000 received by the respondent No.2 from the purchaser to repudiate the latter's assertion that it was made by way of part payment of sale consideration and to lend an air of credibility to the story about a lease agreement. Such statements fortify our view that the respondents' assertion that a lease agreement was contemplated between the purchaser and respondent No.1 deserves no credit. As such we are of the opinion that the agreement of sale (Exh.6) is liable to be specifically enforced.

15. Nevertheless, with respect to Issues Nos.4 and 5 regarding the quantum of payment received by the respondent No. l the findings of the learned Single Judge are entirely unexceptionable. It is indeed established that the money paid by the purchaser to the respondent No.2 was in excess of the amount payable to him pursuant to the second agreement and it is certainly possible that he might have expected the respondent No.2 to pay Rs.30,000 to his wife i.e. the respondent No.

1. The fact nevertheless remains that there is no evidence to show that the lady actually received the amount. Admittedly the purchaser made the sale agreement with the respondent No. 1, who was owner of the lands and she alone was entitled to receive sale consideration. Part payment was also made to her. There is no evidence to show that the respondent No.2 had been authorised to receive payment on her behalf nor does the agreement require so. It was the purchaser's duty to ensure that payment was disbursed to the owner. If he made payment to an unauthorised person, he did so at his own peril. Unless it could be established that the amount was delivered to the owner of the land, the purchaser must suffer the consequence. For the foregoing reasons we will partly allow this appeal, recall the impugned judgment and decree the suit directing the appellant to deposit an amount of Rs.41,451.57 by way of remainder of sale consideration within one month from today. The respondent No.1 will execute a conveyance in favour of the appellants within one month after such deposit and withdraw the amount. In the event of her not doing so within the given time the Nazir will execute the sale deed. There will be no order as to costs. Q.M.H./M.A.K./Z‑45/K Appeal allowed.