P L D 1979 Supreme Court 965 (PLP)

MUHAMMAD AKRAM, J.‑This is a Petition for Special Leave to Appeal from the judgment and decree dated 14th of June 1976, whereby a learned Judge of the Lahore High Court at Lahore has dismissed a regular second appeal filed by the present petitioner against the respondents herein. Briefly stated the relevant facts are that on the 24th of January 1961, Muhammad Siddique respondent No. 1 brought the suit out of which this petition has arisen against the present petitioner and respondents Nos. 2 to 6 herein for possession of 7/40 share of land measuring 828 kanlas 16 marlas, fully described in the plaint, situated in the estate of Mandiala Waraich, Teshil and District Gujranwala. The plaintiff alleged in the plaint that he alongwith defendants Nos. 1 to 5 were the sons and defendant No. 6 was the wife of Chaudhry Atta Muhammad Khan who owned considerable properties in the estates of Mauza Nalwai and Sulkani, Tehsil Thanesar, District Karnal (East Punjab). He was however, disqualified to be Lambardar in his native estate in India. He therefore, decided to set up his son, Muhammad Siddique petitioner‑defendant No. 1 as a candidate for the post of the Lambardar there. For that purpose in order to improve upon his status and also for reasons of his business conveniences he fictitiously transferred a portion of his ancestral land situated in India in his name. On the eve of the Partition of the Sub‑Continent the parties along with their predecessor Chaudhry Atta Muhammad Khan migrated to Pakistan and settled in village Mandiala Waraich, Tehsil and District Gujranwala. In this village land measuring 570 kanals 6 marlas was duly confirmed in the name of their predecessor on his verified claim and the land in dispute measuring 828 kanals 16 marlas was confirmed in the name of defendant‑petitioner against his verified claim in lieu of the abandoned land standing fictitiously in his name in India. It is further alleged that in the lifetime of Chaudhry Atta Muhammad Khan, on the 5th of October 1953, in recognition of the claim of all the heirs defendant No. 1 petitioner executed a registered deed in their favour to the effect that the land in dispute measuring 828 kanala 16 marlas allotted in his name in lieu of the abandoned land in India shall be treated and considered as the ancestral land forming part of the estate of late Chaudhry Atta Muhammad Khan, their predecessor and on his death shall devolve upon his legal heirs in accordance with the Shariat law. Their prepositus died afterwards in Mandiala Waraich on the 1st of February 1960 and the plaintiff therefore, laid his claim for possession of his 7/40th share under the Shariat law in the land in dispute forming a part of the estate, left by him. Defendant No. 1 petitioner in his written statement denied these allegations and resisted the suit of the plaintiff. He raised the preliminary objections to the effect that the civil Courts in Pakistan had no jurisdic tion to entertain the suit which was even otherwise not maintainable in its present form. It was also barred by time. He denied that the plaintiff was a son of Chaudhry Atta Muhammad Khan deceased born out of lawful wedlock. He admitted that before migration the deceased had lawfully transferred a part of the land held by him in India and constituted him as the full owner thereof and repelled; the suggestion that this transfer made in his name was temporary or fictitious in its nature. According to him, the agreement in suit dated 5th of October 1953 was procured from him under undue influence and misrepresentation and was therefore, not binding on the parties. It was even otherwise revoked by him by a registered will executed afterwards on the 24th of January 1961. Defendants- respondents Nos. 2 to 6 in their separate written statements also joined with the petitioner in resisting the suit of the plaintiff. In due course the trial Court framed the following issues arising out of the pleadings of the parties in the suit :‑-- (1) Whether this Court has jurisdiction to try this suit? (2) Whether plaintiff is son of Atta Muhammad deceased? (3) Whether agreement dated 5th October 1953 was executed by defendant No. 1 under undue influence and coercion? (4) Is this suit time barred? (5) Whether defendant No. 1 is benami owner of the land described in para. 4 of the plaint? (5‑A) Whether the suit is not maintainable in the present form? (6) Relief. After recording the evidence, on the 26th of January 1966 the learned Senior Civil Judge, Gujranwala decreed the suit of the plaintiff‑respondent No. I against the defendants. The decree was upheld on appeal of the petitioner‑defendant No. 1 which was dismissed by the learned District Judge Gujranwala on the 8th of June 1967, and armed on his second appeal rejected by a learned Judge of the Lahore High Court on the 14th of June 1976. Hence this petition before us from the judgment and decree of the High Court. Issue No. 1 was treated as a preliminary issue and the dispute was ultimately taken upto the High Court in revision. On the 9th of April 1963, a learned Judge of the High Court in disposing of the revision after recording the statement of the parties, expressed the opinion that the cause of action disclosed in the plaint in this suit was based on the document dated 5th of October 1953, and related to the relief claimed in respect of the land in dispute situated in Pakistan in the estate of Mandiala Waraich, Tehsil and District Gujranwala. There was however an oblique reference in the plaint to some sort of an arrangement arrived at concerning the abandoned land in India. But as no relief was claimed on that score this averment did not in reality constitute the whole or a part of the cause of action in this which was instituted for the relief to establish as title to the land in dispute situated in Pakistan. As it is the suit was based on the document dated 5th of October 1953, executed in Gujranwala relating to the property situated there. As such the Civil Court at Gujranwala bad jurisdiction to entertain the suit. This finding recorded by the High Court in revision appears to be inviolable and no exception could be taken against it. The trial Court found that plaintiff‑respondent No. 1 bad adduced overwhelmingly strong, oral and documentary evidence on issue No. 2 which was not rebutted by the defendant. He failed to lead any evidence on issue No. 3 which was found against him. No arguments were addressed before the trial Court on issue No. 4 and the Court found that the suit for possession of the land filed within 12 years of the death of Chaudhry Atta Muhammad Khan deceased, father of the plaintiff was' well within time. In support of issue No. 5 the plaintiff led evidence to show that his father gave bulk of his property situated in Mauza Nalwai, Tehsil Thanesar, District Karnal in East Punjab to defendant No. 1, his step brother, with a view to enhancing his status for standing as a candidate for the post of Lambardar ‑in India. In this behalf the learned trial Court was impressed by the overwhelmingly strong oral evidence of witnesses produced by the plaintiff and saw no reason to disbelieve their testimony. The defendant however, did not produce any evidence whatever in rebuttal to suggest that he had got the land from his father for any purpose other than raising his status for the post of Lambardar. As a matter of fact it was conceded by the learned counsel on behalf of defendant No. 1 before the learned Senior Civil Judge that he had in fact obtained the land in Mauza Nalwai, in lieu of which the suit land was confirmed to him in Mauza Mandiala Waraich, Tehsil and District Gujranwala, from his father for raising his qualification for the post of Lambardar in India prior to the partition of the Sub‑Continent. The learned counsel however, strenuously contended that there was no basis of the conclusion that the land thus transferred by Chaudhry Atta Muhammad deceased in favour of defendant No. I in India was a benami transaction. But this contention was repelled by the learned trial Court in view of the clear admission in the document dated 5th October 1953 (Exh. P. 9) executed by him in favour of the other heirs during the lifetime of their predecessor concerning the land in dispute agreeing to surrender the same for treatment 'as a part of the ancestral estate for devolution among his heirs including the plaintiff. From this the learned Senior Civil Judge was satisfied that the land in India was given to Atta Hussain Khan defendant No. I by his father only for enhancing his status as a candidate for the post of Lambardar and thereby he was not constituted as its absolute owner so as to deprive the other co‑heirs of their right to succeed to it on the death of their predecessor. In conclusion therefore, the trial Court held that the aliena tion thus made in favour of Atta Hussain Khan defendant was "a sham transaction" and consequently "benami". Issue No. 5 was accordingly found in favour of the plaintiff. On issue No. 5‑A the learned Senior Civil Judge repelled the contention that the document in suit (Exh. P. 9) was unilateral, lacked mutuality, did not provide any remedy for the breach of its undertaking and was unenforceable in law or that the suit of the plaintiff in its present form on its basis was not maintainable. According to the learned Senior Civil Judge this document contained an admission made by its executants to the effect that the property belonged to his father and would devolve on the parties as co‑heirs in accordance with Muslim Personal Law and as such the suit filed by the plaintiff for a share in the inheritance was maintainable. In appeal before the learned District Judge the findings of the trial Court on issues Nos. 5 and 5‑A only were assailed. Under issue No. 5 the trial Court has held that the transfer of the land situated in India by Chaudhry Atta Muhammad Khan in favour of the petitioner was benami and fictitious. This finding, according to the learned counsel for the appellant was self contradictory in itself to say at the same time that it was fictitious as well as a benami transaction. But in the opinion of the learned District Judge what was meant by the trial Court by this was that the said transfer was made by the father in the name of Ch. Atta Hussain Khan defendant merely for showing the improvement in his status to set him up as a candidate for the post of Lambardar in India and that actually he did not intend to constitute him as an owner thereof and the other heirs of Chaudhry Atta Muhammad Khan were never deprived of their right to inheritance in the land and that this was a sham transaction. This contention was fully supported by the admission made by the defendant‑petitioner in the deed dated 5th of October 1953 (Exh. P. 9) executed by him. In this he acknowledged and admitted that the property in dispute shall be treated as that of his father and that after the demise of the father it would devolve on his heirs including the plaintiff according to their shares under the Muslim Personal Law. As the true nature of this document, the learned District Judge under issue No. 5‑A observed that it constituted an admission and an acknowledgment on the part of its executants to the effect that actually the land in suit which stood in his name belonged to his father Chaudhary Atta Muhammad Khan and on his demise it would devolve on his heirs including the plaintiff. In this connection the learned lower Appellate Court further observed that on a true interpretation of this document, it was nothing but a deed of acknowledgment and the admission leading to the family settlement about the rights of inheritance of the various heirs to the landed property of Chaudhry Atta Muhammad deceased. In the circumstances there could be no question against the form of the suit brought by the plaintiff for ‑a share in the inheritance of his father on his death. These findings were in substance upheld by the learned Judge in Chambers, who dismissed the second appeal of the defendant‑petitioner on the 14th of June 1976. He repelled the contention once again advanced before the High Court against the jurisdiction of the civil Courts in Pakistan to entertain the suit for the simple reason that it did not relate to any land situated in India and the relief was confined only to the land in suit confirmed to the petitioner in Pakistan and was based on the deed (Exh. P. 9) executed by him at Gujranwala. At the stage of the second appeal before the High Court it was contended that although it was expressly pleaded in the written statement of the petitioner that the deed (Exh. P. 9) bad been cancelled by means of a subsequently executed document on the 24th January 1961, but that the trial Court has failed to frame and try this issue. The High Court however, overruled this contention on the ground that this objection for framing the additional issue was never raised by the petitioner in the course of the trial nor even before the learned District Judge in the first appeal and could not, therefore, be allowed to be raised for the first time at that late stage in the second appeal before the High Court. Yet another objection was raised before the High Court which was in the first instance never raised in the trial Court. It was argued that the deed (Exh. P.9) also included the land which had been confirmed to the petitioner in lieu of his own land personally belonging to him which he had abandoned in India in addition to the land situated in the estate of Nalwai given to him by his father in India and that Courts below have failed to bear in mind this distinction to his great prejudice. In elaborating on this part of the case it was submitted that although admittedly the land situated in the estate of Nalwai belonged to his father and had been transfer red to him in India yet another land situated in the estate of Sulkani Tebsil Thanesar District Karnal belonged to him and was held by him personally in his own right to which his other brothers and sisters had no possible claim to lay. His grievance was that by inadvertence no distinction was made in these two abandoned lands at the time of the execution of the deed (Exh. P. 9). In this connection the Earned District Judge has observed that both these lands stood in. the name of the petitioner and there was no reliable evidence on the record to show that the land situated in the estate of Sulkani originally belonged to him personally. No specific plea and issue to this effect was at all raised by the petitioner in the trial Court about this disputed question of fact. It could not therefore, be allowed to be raised at a later stage in appeal. On the merits the High Court observed that the real point in controversy was about the true nature of the document (Exh. P. 9) forming the basis of the suit. The learned counsel for the appellant relied on section 16 of the Displaced Persons (Land Settlement) Act to contend that, no matter whatever the position of the land in question abandoned in India, the land in suit has vested absolutely in the petitioner. Thereby he was constituted as its full owner under the law and as such the plaintiff's claim to a share in this land is misconceived. But the High Court repelled this contention with the observation that the petitioner being the full owner of the land in suit had voluntarily agreed to surrender it in favour of his brothers and sisters, etc. under the deed Exh. P. 9 executed by him on 5‑10‑1953 in their favour. As to the nature of this document the learned Judge in Chambers observed that neither the trial Court nor the learned District Judge were clear about it. But according to him this deed amounted to a relinquishment of his rights in the suit land in future. In effect the deed was executed for a valid consideration in recognition of the right of his father to the land in India which he gave to the petitioner for the purpose of building up his status for his candidature for the post of Lambardar. In these circumstances, in the opinion of the learned Judge in Chambers this deed of relinquishment was validly made by the petitioner and was fully enforceable in law at the instance of the plaintiff‑respondent. In this Court before us the learned counsel for the petitioner submitted that the civil Courts in Pakistan had no jurisdiction to entertain the suit. This contention was twice repelled by the High Court firstly in revision and then again on second appeal preferred by the petitioner. Even otherwise there is no force in this objection. This suit is based on the deed dated 5‑10.1953 (Exh. P. 9) and the relief claimed is confined to the possession of the land in suit situated in Pakistan. In this suit no relief whatever is claimed relating to any property situated in India, There is no doubt that in the plaint the plaintiff has referred to an arrangement under which, according t o the plaintiff, their father had fictitiously transferred the land situated in India in the name of the petitioner in order to build up his status as a candidate for the post of a Lambardar in their native village in India. It was in recognition of this arrangement that the petitioner, afterwards after his migration, executed the deed Exh. P.

9. The arrange ment in India so to say had merged and culminated in this document executed in Pakistan which now forms the basis of the suit. Therefore, the reference in the plaint to the said arrangement concerning the land situated in India was made merely to serve as a background to this dispute in suit and it did not directly form any part of its cause of action. It was next argued on behalf of the petitioner that the deed (Exh. P. 9) also included the land which was confirmed in his favour in lieu of the abandoned lands held by him personally in his own right situated in village Sulkani, in addition to the land situated in village Nalwai which he got from his father. But this plea was never raised by the defendant in his written statement. Nor was any specific issue at all framed in that connec tion. The High Court was therefore, fully justified in not entertaining the objection necessitating an enquiry into disputed question of fact which was never put in issue and tried. The learned counsel also contended that in the written statement it was expressly pleaded by the petitioner that the deed in suit (Exh. P. 9) was cancelled afterwards on the 24th of January 1961. But at the trial no issue was at all claimed by the petitioner in that connection. We find that no such objection was also raised in the lower appellate Court. It must there fore, be deemed to have been waived by him. In the circumstances the High Court was justified in repelling this objection as well. As to the merits of this controversy between the parties the two lower Courts were satisfied from the evidence on the record under issue No. 5 that Chaudhry Atta Muhammad Khan, predecessor of the parties had fictitiously transferred a part of his land situated in India in the name of the petitioner in order to build up his status to enable him to stand as a candidate for the post of a Lambardar of the village and that this was a fictitious and sham transaction. Issue No. 5 is concluded by this concurrent finding of fact recorded b the trial Court as well as on first appeal by the learned District Judge. This finding was based on the oral evidence supported by the inferences drawn from the deed dated 5th October 1953 (Exh. P. 9). This finding of fact was binding between the parties and was never disturbed in second app.‑al before) the High Court. This part of the case is therefore, concluded by this finding of fact. In course of time after the migration of the petitioner to Pakistan the land in suit was in due course allotted and confirmed in the name of the petitioner in lieu of the aforementioned land fictitiously held by him in India. Afterwards on 5‑10‑1950 the petitioner executed the registered deed in suit (Exh. P.9) in favour of the respondents for the future disposition of the land in dispute measuring 828 kanlas 16 marlas situated in the estate of Mandiala Waraich, Tehsil and District Gujainwala thus allotted to him. It is not now disputed that it was executed by the petitioner by his own volition without any undue influence practised upon him in favour of the respondents during the life time of his father. In the title the document (Exh. P. 9) is described as a will. But it goes without saying that for the determination of its true nature and effect it must be read as a whole. It is a unilaterally executed document by Atta Hussain Khan petitioner in favour of the respondents. It lays down that for the sake of business convenience his father namely Ch. Atta Muhammad Khan had transferred some land in their native village in India in his name and that in lieu thereof land was allotted to him in Pakistan. The petitioner agreed that in Pakistan Shariat law is applicable to them in matters of succession according to which the respondents shall be entitled to proportionately succeed to the ancestral lands belonging to his father. He acknowledged that the land thus allotted to him in Pakistan shall form part of the estate of his father to which they shall succeed on his death in proportion to their due shares under the Shariat law. It goes without saying that on the very face of it this document executed by the petitioner had to come into operation and take effect on the death of his father concerning his (father's) estate and not on peti tioner's death about his own estate. Therefore, by no stretch of imagination it could in law be described as a will made by the petitioner. There was some difference of opinion amongst the three Courts below on the precise nature of this deed (Exh. P. 9). In the opinion of the learned trial Court it embodied an admission made by its executant con cerning the corpus of the land allotted in his name and its devolution on all the Sharie heirs of Chaudbry Atta Muhammad Khan deceased, and was enforceable as such. According to the learned District Judge it was in the nature of an acknowledgment and admission leading to a family settlement about the rights of inheritance to the land in suit amongst all the heirs of Chaudhry Atta Muhammad deceased. In the opinion of the learned Judge in Chambers this document constituted a relinquish ment in future of his rights in the land by the petitioner in favour of all the heirs of his father. It is evident from the above that the land in suit was allotted to the petitioner in lieu of the land held by him fictitiously for his father under a sham and a paper transfer made in his favour in India before their migration to Pakistan. It was in this background that on 5‑10‑1953 the petitioner executed the deed (Exh. P. 9) declaring that the land in suit allotted in his name in lieu of the abandoned land in India shall form part of the estate of his father for devolution on all his heirs at the time of his death. The inference seems to be irresistible that the petitioner executed this document in the lifetime of his father in favour of the respondents with a view to set at rest the conflicting claims to the suit land by the parties or at any rate to avoid any future dispute concerning inheritance to this property on the death of late Ch. Atta Muhammad Khan. In other words the document embodied a bona fide settlement arrived a the time whereby the petitioner agreed to surrender his rights if any in favour of the respondents for the preservation of the peace, amity and harmony between the members of their family. It therefore, amounted to a family settlement arrived between the members for lawful consideration and was fully binding on them. On this view of the matter. we find that there is hardly even force in the contention halfheartedly advanced before us that this deed in question contained merely a gratuitous admission which could be allowed to be withdrawn at any time. In connection with a family arrangement in Abdul Husain v. Mohomed Ibrahim (351 C 243), the Court pertinently observed that the proposition that a compromise should not be judged by what the Court concludes to be the rights of the parties, but by what is regarded as just and proper by the contracting parties, is subject to the proviso, 'that although mistakes in valuation or in ascertainment of rights might exist, if the transaction is entered into honestly and with a view to secure full justice to the various parties without undue advantage being taken by one of the members of the family so that litigation may be avoided and family peace restored, it is binding. In Ram Charan Das v. Girja Nandini Devi and others (A I R 1966 S C 323), the Supreme Court of India observed that the Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter. In Sital Singh and others v. Gijindra Bahadur Singh and others (A I R 1929 Oudh 373), the Court observed that it is a wrong principle of law to test the validity of the agreement by having recourse to the expedient of finding out whether the claims of the parties to the agreement were good. The true test is whether the parties had laid any claim against each other and whether those claims hail been settled by virtue of the agreement termed the "family settlement". If a settlement was arrived at, the strength of validity of the claims of the parties has nothing to do with the validity of the family settlement. The fact that the claims of the parties had been adjudged and that the disputes between them had been settled would amount to a sufficient consideration for the upholding of the family settlement. In Martin Cashin and others v. Paler J. Cashin (AIR1938PC103), their Lordships of the Privy Council observed that where family agreements have been fairly entered into, without concealment or imposition on either side, with the suppression of what is true, or sugges tion of what is false, then, although the parties may have greatly misunder stood their situation, and mistaken their rights, a Court of equity will not disturb the quiet, which is the consequence of that agreement; but when the transaction has been unfair, and founded upon falsehood and misrepresen tation, a Court of equity would have a very great difficulty in permitting such a contract to bind the parties. In this connection their Lordships of the Privy Council further observed :‑ "A parent can be generous to a son, or legitimate children to an illegitimate one, or a son to a mother upon the occasion of a family arrangement without its being proper or possible inequity, merely on that ground, to suggest that the arrangement is an unfair one and ought to be set aside." In Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan (PLD1966SC612), the facts were that Malik Ahmad Khan, father of the appellant and the respondent had acquired 12 squares of land under the Horse Breeding Conditions under the Colonization of Government Lands (Punjab) Act, 1912, in Chak No. 57/SB, Tehsil Sargodha. At the time the law of primogeniture applied in the case of succession to such lands and under that law the respondent alone would have inherited all the properties of his father. Knowing this, the father then acquired another 3 squares of land under the Sufaid Posh Grant Conditions and made a gift of these three squares in favour of his younger son for which the mutation was duly attested. But subsequently the rule of primogeniture was abolished while Malik Ahmad Khan was still alive. After his death, in accordance with law prevailing at the time, the 12 squares of land first acquired by him devolved on both his sons and were mutated in their names in equal shares. The elder brother felt dissatisfied and filed a suit for a declaration that he was the exclusive owner of the said 12 squares of land or that, in the alternative, he should be declared to be entitled to a half share in also the three squares of land mutated in the name of his younger brother. This suit was however, ultimately compromised and a decree was passed in terms thereof affecting the distribution of the two landed properties. In adjudicating upon the nature of this compromise the Supreme Court observed as under;

"The compromise, in our opinion, purported to effect a distribution of the estate of Malik Ahmad Khan on the basis that it consisted not of only 12 squares of land but of 15 squares. Even the mutation that was effected in pursuance of this compromise decree was not as in the case of a transfer by sale, exchange or gift but merely by the addition of the name of a co‑owner, vide Exh. D.

11. We are in agreement therefore, with the High Court that the compromise in this case was for the purpose of bringing about a family settlement and not a transference of a share on the basis of a consideration." We are now left to deal with the last remaining contention advanced before us by the learned counsel for the petitioner. In this connection he relied on section 16 of the Displaced Persons (Land Settlement) Act, 1958 and submitted that thereby the suit land which was permanently settled on the petitioner has vested absolutely in him by the operation of law and that consequently the respondents cannot be permitted to lay any claim to it. But there is hardly any force in this concention. The suit land was allottee in the name of the petitioner on a quasi‑permanent basis after his migration to Pakistan. Thereafter the petitioner executed the document in suit (Exh. P. 9) in favour of the respondents on 5‑10‑1953. This was much before the Displaced Persons (Land Settlement) Act came into force in 1958. After wards Ch. Atta Muhammad Khan, father of the petitioner, had died on 1‑2‑1960. Thereby the succession to the land in suit fell open to his heir in accordance with Exh. P.

9. There is nothing to show that before it this land had been permanently settled on the petitioner and vested in him absolutely. As such the deed in suit was in no way hit by the provisions contained in section 16 of the Act. For the foregoing reasons we find that there is no force in this petition which is hereby dismissed. S. A. H. Petition dismissed.