2006 PLP 375 (CLC)

MIAN SAQIB NISAR, J.

The petitioners have succeeded at the trial stage in their suit for the declaration challenging the sale made in favour of respondent No.1, but have failed in the appeal filed by respondent No.1 initiated against such judgment and decree.

2. Briefly the facts of the case are that admittedly, the petitioners and respondent No.2 were the owners of the land measuring 107 Kanals and 7 Marlas (fully described in the plaint); this land had been inherited by them and they held shares according to "Sharia"; respondent No.2, acting as an attorney on behalf of the petitioners, through a sale-deed dated 18-3-1987, sold the suit-land to respondent No.1 for a total consideration of Rs.5,36,

750. The petitioners, on 24-3-1988 instituted the instant suit alleging, that respondents Nos.1 and 2, in collusion with each other, have practised fraud upon them by manoeuvring and manipulating the power of attorney and the sale-deed; petitioner No.1, who is the mother of respondent No.2, never gave him the power of attorney for the purpose of the sale, while petitioner No.2 did not execute the sale-deed, by comprehending that the transaction was in the nature of the sale. They asserted that in fact the power of attorney and the sale document were got executed/thumb-marked by the respondents in collusion with each other while misrepresenting that some loan was being obtained from the Government for the improvement of the land, for which the two documents were needed.

3. Be that as it may, respondent No.1/the purchaser contested the matter, while Muhammad Chiragh respondent No.2 filed an evasive written, however, in paragraph No.2 thereof, he stated:-- Further in reply to paragraph No.5, he averred:-- No where in the written statement, respondent No.2 has alleged that respondent No.1 in any way had practised any fraud upon him. Anyhow, on account of the pleadings of the parties, issues were framed, evidence was accordingly recorded and the learned Civil Judge, while returning his findings on issues Nos.3 and 4 in favour of the petitioners, decreed the suit vide judgment and decree, dated 25-6-1995. Aggrieved of the above, respondent No.1 preferred an appeal, which has been accepted vide judgment and decree, dated 14-7-1996; the findings of the trial Court on the relevant issues have been reversed with the result that the suit of the petitioners stands dismissed.

4. Learned counsel for the petitioner contends, that the petitioners are illiterate Pardanashin ladies; according to the settled law enunciated in number of judgments, such as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 as also Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609, where in a lis, the question about the execution of a document by such ladies is involved, the onus to prove the valid execution is on the shoulders of the person, who is the beneficiary of the transaction; in this case, it is clearly deposed by Mst. Balgees Bibi in her statement that Muhammad Ikram and Muhammad Chiragh both practised fraud upon her in procuring the thumb-impression on the sale-deed, therefore, to prove that such sale-deed, at the time of its execution, was read over and explained to her, and she also had the advice of a male member of the family, was upon the shoulders of respondent No.1, which he had failed to discharge. It is also submitted that none of the respondents' witnesses, including the marginal witnesses, has stated that such requirement of explaining the document was meted; that the respondents Nos.1 and 2 have dodged and deceived the petitioners in procuring the power of attorney and the sale-deed on the pretext that these documents were required for obtaining the loan for the purpose of improvement of the land; all the P.Ws., who are five in number, have clearly supported the version of the petitioners and thus, after the discharge of initial burden by them, the onus of valid execution has not been discharged by the respondent. It is also argued that the payment of the consideration has not been proved by the respondent and according to law, any agreement/transaction without consideration is void; that the power of attorney by Mst. Fatima Bibi is dated 16-3-1987, whereas the sale-deed is dated 18-3-1987, which is two days thereafter, therefore, it can be inferred that if she could have appeared for the execution and the registration of the power of attorney, she could easily have even gone for the registration of the sale-deed, thus, safe inference can be drawn against the respondents. It is further argued that the respondent in defence has brought on record Exh.D.1, the agreement to sell dated 7-12-1986; this agreement has only been executed by Muhammad Chiragh, but for the whole of land, including the share of the petitioners, but at the relevant time, he had no such authority; moreover, this agreement to sell, on the basis of which respondent No.1 claims to have purchased the property, does not find mention in the sale-deed as also in the power of attorney.

5. Learned counsel for the respondents, on the contrary, has read the statements of the D.Ws. and also that of the scribe, who in their statements have clearly and unequivocally submitted that the power of attorney and the sale-deed, both were executed by the petitioners and at that time, those were read over to them.

6. I have heard the learned counsel for the parties. The most interesting feature of the case is that since the very beginning, the petitioners have been imputing collusion and fraud both to Muhammad Chiragh and Muhammad Ikram. But Chiragh, in his written statement, in fact has supported the petitioners' case. He admittedly is the son of petitioner No.1 and real brother of petitioner No.2 and thus, was a close male member of the family; he through the same sale-deed has sold his share of the property and has never ever alleged or claimed any fraud practised upon him by respondent No.1; he has also not denied the receipt of the consideration from the said respondent.

7. Though, mere appendage of signatures/thumb-impressions by an illiterate Pardanashin lady upon the document, particularly involving her valuable property rights, cannot be considered to be a valid execution, but when she has the advice of a male member, who fully understands the nature of the transaction, was present at the relevant point of time, coupled with the fact that the document was also read over to the lady, as has been deposed by the D.Ws. in this case, which statements have not been shattered in the cross-examination, the requirements of the law stated in the aforementioned dictums shall be considered to have been fulfilled. The argument of the learned counsel that instead of Muhammad Chiragh, against whom the petitioners have attributed the allegation of fraud, the husband of Mst. Balqees Bibi was the male member, who should have been the person advising her about the transaction. If this plea is weighed on the basis of the record of the case, according to the statement of Mst. Balqees Bibi, when Muhammad Chiragh and Muhammad Ikram first approached her, her husband was not present; she did not execute the document; on the next day, she went for the execution and thus, it was for her to have asked her husband to accompany her so that she should not be defrauded. Resultantly, taking into account the accumulative effect of the evidence on the record, I am of the considered view that instead of collusion between the petitioners Nos.1 and 2, it is the petitioners and respondent No.2, who after the sale C of their property, have filed the collusive suit, with a view to harass and blackmail a bona fide purchaser. I am also not impressed with the other pleas, raised by the petitioners' counsel, which are noted above, because all these submissions are inferential in nature. However, I feel it expedient to deal with the question about the payment of the consideration and hold, that the payment has been duly received by Chiragh on behalf of his mother as the attorney, and for Mst. Balqees, it is proved through the statements of the marginal witnesses that the payment was made to the vendees before the signatures at the time of the registration of the sale-deed.

8. As regards the question that Muhammad Ikram has not appeared in person, suffice it to say that no presumption of withholding the best D evidence, can be drawn against him in the light of Article 129(g) of the Qanun-e-Shahadat Order, 1984. Besides, as has been explained by the learned counsel for the respondents, at the relevant time, Muhammad Ikram was out of country and this fact is so mentioned in the power of attorney of the D.W., who appeared as his attorney. In the light of above, the revision petition has no merits and is hereby dismissed. F.M./F-129/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.