P L D 1954 Peshawar 39 (PLP)

MUHAMMAD SHAFI, J.‑Allahdad Khan was a big landlord, having an extensive landed property in Mardan District. He died on the night between the 28th and 29th of June 1941, leaving behind a widow by the name of Mst. Feroza, two sons Muhammad Yusaf Khan and Isa Khan, and four daughters Mst. Aftaba, wife of Karam Khan, Mst. Marghai, wife of Sher Afzal Khan, Mst. Basra, wife of Sher Akbar Khan, and Mst. Rekhmina, wife of Arsalla Khan. On the 7th of July 1941, the four daughters mentioned above, executed a deed, by which they gave up their share in the property left by their father, in favour of their two brothers Muhammad Yusaf Khan and Isa Khan. The reasons which they gave in the deed for abandoning their share in the property were as follows :‑ (1) their father had given them ornaments and clothes of the value of thousands of rupees in dowry, and had been on all festivals and harvests giving them reasonable help, (2) they did not like that the position of their brothers be lowered (in the eyes of the people) and difficulties arise in their living as respectable persons, (3) some portion of the property left by Allahdad Khan, was burdened with liabilities, (4) considerable amount of debt was due from Allahdad Khan, which had been borrowed for the purchase of certain properties and the discharge of certain liabilities, and (5) on account of sisterly love which they have for the two donees. This deed was presented for registration by Muhammad Yusaf Khan, in his paternal house on the 8th of July 1941. S. Shaliq Ram, the then Sub‑Registrar Mardan, went there on the application made to that effect by Muhammad Yusaf Khan, and made the necessary endorsement on the deed. It was formally registered on the 14th of July 1941. On the 11th of July 1941, Subedar Ghulam Akbar Khan, a real brother's son of Allahdad Khan, lodged a report in Rustam Police Station, that he wail informed by Mst. Rekbmina, one of the four daughters of Allahdad Khan, that her brothers Muhammad Yusaf Khan and Isa Khan bad fraudulently made her give her consent to relinquish her share in the property of her father, and affix bar thumb‑impression on, a certain document. A notice to the same effect in the Pushto language was also sent by Mst. Rekhmina to her brother Muhammad Yusaf Khan on the 12th of July 1941. Mst. Rekhmina has now brought a suit for the possession of her 7/64th share in the property of her father. In the plaint she attacked the deed as fraudulent and ineffective on account of the reason that the plaintiff was a simple‑minded and illiterate Pardahnashin lady, who by the death of her father was at the time of the execution of the deed so much overwhelmed with grief and sorrow that she was not in a fit condition to form an independent opinion. She asserted that taking advantage of her simple‑minded ness, illiteracy and Pardahnashinship, as well as of her helplessness and ignorance and without explaining the actual facts to her or letting her think over the matter, Muhammad Yusaf Khan and Isa Khan made bar put her thumb‑impression on the document, the real nature of which she never understood or realized. The suit was resisted by all the defendants, but principally by her two brothers, who inter alia alleged that the plaintiff had of her own free will and accord and after considerable consultation and deliberation put her thumb‑impression on the document in question. She did so after hearing and understanding its contents in the presence of her mother, sisters and other relations. Her husband Arsallah Khan prevented her from executing the document, and 'also threatened her in sufficiently strong words with dire consequences if she completed it, but in spite of that the plaintiff gave up her share in the property of her father. The following issues were framed in the case :‑‑ (1) Is the suit properly valued for purposes of Court‑fee and jurisdiction ? (2) Does the present suit lie without first having the deed of relinquishment dated 7th July 1941, cancelled within the prescribed period? (3) If not, is the present suit within time? (4) Has the plaintiff got any cause of action against defendants Nos. 3‑6 ? (5) Was the deed of relinquishment dated 7th July 1941, executed by the plaintiff under undue influence and while fraud was practised upon her? (6) Whether the said deed of relinquishment was also invalid for want of consideration ? (7)'Is the plaintiff entitled to the relief claimed ? The learned trial judge disposed of the case on the 28th of March 1951. He found that the defendants had failed to discharge the onus on issue No. 5, which lay upon them to prove that the deed was properly explained to the plaintiff, and was intelligently executed by her with a full comprehension of her position in relation to it and of its bearing upon her interests. He recorded his finding that not only was there want of intelligent execution of the deed of release, but the plaintiff was also subjected to undue influence by the defendants, which prevented her bringing an unbiased and free mind to the disposal of her property, and that, therefore, the deed being even otherwise vitiated by fraud, misrepresentation and coercion could not be enforced against her both in point of equity and in law. The learned trial judge also held that the deed of relinquishment was void for want of consideration. As a result of his decision primarily on these two issues, he granted the legal representatives of the plaintiff, for the plaintiff bad died during the pendency of the suit, a decree for possession of 7/64th share in the property in dispute against the defendants, with costs, to be recovered from defendants Nos. 1 and

2. Muhammad Isa has come up on appeal to this Court. His learned counsel has only challenged the findings of the learned trial Court on issues Nos. 5 and

6. Now a woman occupies a peculiar and in fact a pathetic position in Indo‑Pakistan Sub‑Continent. She has been since time immemorial treated as a mere chattel, and an inferior and a degraded creature, incapable of having any respectable place in human society. She has entirely been excluded completely from all national activities. She cannot inherit any property from her father, husband, son or any other relation of hers. She is only entitled to maintenance under certain circumstances. So far as the education is concerned it is something which does not deserve any serious consideration. All that she is taught to do is bow to serve her menflolk, upon whom she depended at different stages of her life; when young upon her father, when grown up upon her husband and when old upon her sons. The brother has always occupied a very important position in her eyes. Having been brought up together and being the playmates of each other, the sister always has a tender corner for her brother. After the marriage a woman continues‑to have the same feelings, if not more, and in majority of cases it is found that the brother takes undue advantage of those feelings. In any case, the brother's influence over his sister is always very great and at time it is known to produce disastrous results in sister's married life Islam brought about a marvelous change in the human society. The state of a woman was elevated and improved. Her position both from the material and spiritual point of view was recognized as equal to that of a man. She could earn money acquire and inherit property over which she had full control and disposing power, follow a profession and take full part in the political, commercial and economic activities of her country and nation. Muslims conquered India and brought along with them all those good principles and institutions of Islam, but this was true only in the beginning. Later on the Mughal Emperors attached more importance to their ownselves than to the propagation of Islam, with the result that the canons of Islam were completely ignored and the woman of India continued to be what she was before. It is strange to see that even 1300 years after the introduction of Islam to the world, a Muslim woman in India still was incapable of having any respectable place in the human society, and followed the contrary's custom in preference to the law laid down by the Holy Quran and Surma. A woman whether she is a Muslim or not still continues to be the same ignorant, illiterate and a helpless being, dependent on and believed to be destined for the service of her father, brothers, husband and sons. With the establishment of Pakistan the position of the woman is bound to change, but it would take some time. At present the woman in majority of cases in Pakistan is what she used to be in the pre‑partitioned India. There are some women who are educated and business‑like, but Mst. Rekhmina, the plaintiff in this case, is not one of them. She and her sisters are illiterate, Pardanashin, and ignorant women. This is stated by Mst. Aftaba, one of the executants of the deed and Muhammad Yusaf defendant himself, It has also been stated by other witnesses produced by the defendants. The law with regard to the deeds executed by such woman is now well settled and admits of no doubt. It is for the person, who seeks to hold a Pardahnashin, ignorant and illiterate woman to the terms of the deed, transferring the property to her disadvantage to prove affirmatively that not only the document was read over and explained to her before she put her thumb‑impression to it, but that it was the result of her own free will, after she had thoroughly comprehended the terms of the document. If a person deriving benefit under the deed stands towards her in fiduciary character or in some relation of personal confidence, then the Court is to act with greater caution and in ordinary circumstances must presume confidence put and influence exerted. It is for him to bring evidence on the record to show that the lady executing the document was free from all undue influence, and when she executed it, she understood the terms of it quite intelligently and nothing was concealed from her. Generally it is prudent, although the rule is not rigid or inelastic, that a woman of the description mentioned above before she disposes of her property to her disadvantage, is given an opportunity to seek an independent advice given by a person, who has no interest in the party acting or in the property proposed to be disposed of, It, however, all depends upon the circumstances of the individual case, whether such an advice was necessary or not, arid what kind of advice was needed. In cases where the transfer is gratuitous and in favour of a person, who stands towards a woman in fiduciary character or in some relation of personal confidence, the presumption will be still strong against the validity of the deed, Now, in the case before us the transfer is gratuitous and in favour of brothers, who admittedly stand in relation of personal confidence towards the plaintiff. It consequently lies very heavily upon the brothers to prove that the deed of extinguishments was a deliberate and intelligent act of Mst. Rekhmina. This, we are of opinion, they have helplessly failed to do. Allahdad Khan died on the night between the 28th and 29th of June 1941. Mst. Rekhmina, as is the practice and custom of this country, went to her father's house in order to take part in the funeral ceremonies. While she was still there, surrounded by her brothers, sisters, who favoured the brothers, and mother, and away from her husband and other in‑laws, she was made to put her thumb‑impression on the document in question on the 7th of July 1941, i.e. eight days after the death of her father. The mother, who definitely has a very great influence over her daughters, including the plaintiff', is admittedly a dependent of her two sons; so she could not help but use her influence in their favour. Mst. Aftaba, another sister of hers, who has come into the witness‑box, is also living with the two contesting defendants, because her relations with her husband are strained since some time now. She bad also to act for her brothers. The plaintiff, as is evident from the statement of Muhammad Yusaf Khan, was not permitted to see her husband before the deed was executed. The husband came to know of it at the time when the document was being registered, and he actually tried to prevent his wife from putting her thumb -impression on the deed in the presence of the Sub‑Registrar, but then it is said that the plaintiff refused to listen to him, and admitted the execution of the document in spite of it. So it is obvious that at the time of the execution of the document the plaintiff was not only under the influence of her brothers and the people favouring them, but she was actually in their grip. The two beneficiaries under the document then got bold of Sardar Diyal Singh a petition‑writer, who had been writing deeds of their father since the last 10-11 years, for the writing of this deed. He was so much connected with the two contesting defendants and had so much regard for them, that he did not charge even his fees for writing this document. To be the attesting witnesses of this document, the two distant relations of Muhammad Yusaf Khan and Isa Khan, namely, Said Jamal and Pensioner Subedar Ghulam Haider Khan were procured. The ladies were identified in the presence of S. Shaliq Ram, the Sub‑Registrar, by Subedar Ghulam Haider Khan mentioned above, and Malik Feroz Khan Lambardar who is completely disconnected with the parties, but it is alleged that he is the playmate of the ladies and the latter, therefore, did not observe Pardah from him. Now, a person, who knows a little bit of the habits of the people of this Illaqa, would at once understand that the women of this Illaqa belonging to respectable family, as the plaintiff and her sisters do in this case, observe strict Pardah from all those person, who are not related to them within the prohibited degree. The two attesting witnesses and the Lambardar, who identified them in the presence of the Sub-Registrar, are definitely not related to them within the prohibited degree, and the ladies must in all probability be observing Pardah from them. They consequently do not stand in a position to see that the ladies act independently. Their evidence to prove that the document was actually read over and explained to them or was a free act of the ladies will be of no avail. S. Shaliq Ram appeared in the witness‑box and stated that he did not read out the document word by word to the ladies but had only given them the contents thereof in brief. The document was thus written and executed in an atmosphere when the ladies, or in any case, the plaintiff could not exercise her free will, and this document was not explained to her. The property left by Allahdad Khan was extensive, the details of which were not given in the extinguishment deed at all. No evidence has been produced on the record to show that before this deed was executed the plaintiff was made to realise as to what she was giving up. It is possible that she might have been informed that the property which she was giving up was only worth a few hundred rupees, and she did not consider it worth‑while to brother about it. If she bad been told that the property was worth about thousands, it is very unlikely that she would have given up this property, and not got it for her children, which include both sons and daughters. Apart from that it is stated in the document that some portion of the property of Allahdad Khan was burdened with liabilities, and a considerable amount of debt was due from their father. The two contesting defendants have failed to prove if Allahdad Khan owed any debt to anybody, and barring a small amount of Rs, 400 there was any other amount due for which the property of Allahdad Khan was under mortgage. Again, it is not proved that in the dowry to all the executants of this document the property which was given was so extensive that it equalled or at any rate almost equalled the share which they would have got on the death of their father. The document consequently is full of such details which are proved to be false or at any rate not true. It was repudiated soon after it was executed. We are. therefore, constrained to bold that the contesting defendants have failed to prove that the execution of the document was a deliberate act of the plaintiff entered into of her own free will and accord. We consequently concur in the findings arrived at by the learned trial Court and dismiss this appeal. The parties will bear their own costs. Orders announced. A. H. Appeal dismissed.