2003 PLP 1643 (YLR)

2. Plot No.304 Jinnah Abad Township, measuring 600 sq: yards is subject of lis between the parties. The petitioner and Syed Anwar Gul Bukhari, defendant No. 1, who is brother of the husband of the former, purchased the plot in equal share through registered deed No.351, dated 1-4-1980. The petitioner on 17-12-1989 filed a suit against the respondents for declaration that she is owner to the extent of 1/2 share, challenging the registered sale-deed No.559, dated 29-5-1980, as being outcome of fraud and collusion, besides being without consideration as well as the subsequent registered sale-deeds Nos.556 and 544, dated 10-5-1987 and 29-3-1988 respectively, are void and ineffective on her rights. Briefly, the plaint proceeds on the allegations that she is a Pardanashin lady and taking undue advantage of her stay abroad, respondent No.1, who is dexterious person, inclusion with respondent No.2, without her consent and knowledge, deprived her of her share in the plot. The plaintiff neither struck any bargain nor did she appear either before the Petition Writer or before the Sub-Registrar. Later on, on the strength of tainted registered deed respondent No.2 further transferred by means of Registered Deed No.556 in favour of respondents 3 and 4, who in turn transferred the plot in favour of respondent No:5 through Deed No.544, dated 29-3-1988. All the respondents contested the suit by filing a joint written statement wherein technical and factual pleas were raised, giving rise to as many as 13 issues, but for the purpose of the controversy the following issues are material:-- (4) Whether the entries in the Deed No.351 dated 1-4-1980 to the extent of 1/2 in favour of plaintiff is Benami and without consideration? (6) Whether the rights of defendants 2 to 5 are protected under section 141 of the T.P. Act as they are purchasers for value for consideration? (10) Whether the plaintiff is valid owner of 1/2 share of Plot No.304 through the Registered Deed No.351, dated 1-4-1980? (11) Whether the registered Deed No.559 dated 29-5-1982 and registered Deed No.556 dated 10-5-1987 and Registered Deed No. 544 dated 29-3-1988 inter se between the defendants with respect to the entire plot are fake, fictitious without any sale consideration and as such are not binding on the rights of plaintiffs? (12) Whether the plaintiff is entitled to the decree as prayed for?

3. On consideration of evidence led by the parties the trial Judge decided Issues Nos.4 and 6 in the affirmative while Issues Nos.10, 11 and 12 were decided against the plaintiffs. The suit was dismissed vide judgment and decree, dated 6-5-1993, and appeal filed by the plaintiffs bore no fruit.

4. The learned Appellate Court simply confined discussion as to whether or not, the petitioner executed the Sale-Deed No.559 and held that she of her own free will executed the deed and appeared before the Sub -Registrar as well at the time of registration of the sale-deed. The other issues were considered redundant.

5. It has been contended by Mr. Muhammad Younas Khan Tanoli, on behalf of the petitioner, with reference to statement of the petitioner, that she had been victim of fraud and deprived of her property by respondents 1 and 2, in that, she never entered into any bargain of sale with them nor appeared before any authority including Sub Registrar/Tehsildar. Being a Pardanashin lady, onus heavily lays on the defendants to prove genuineness of the transaction embodied in the registered deed.

6. On the other hand, Sardar Nasir Aslam Khan, appearing for the respondents, did not admit her to be a Pardanashin lady by submitting that she had been living in Saudi Arabia for a considerable period and that she miserably failed to prove her absence from the country at the time of registered deed No.351. She was a ' benamidar' and plot was in fact ownership of respondent No. 1 and at any rate the rights of the transferees are protected under section 41 of the Transfer of Property Act, being bona fide purchasers. The petitioner, according to the learned counsel for the respondents, did appear allegedly before the Sub-Registrar and admitted the factum of sale whereafter the deed was registered.

7. First crucial question for determination is whether the sale-deed is genuine or otherwise and whether or not she was present at the time of registration of the deed. The petitioner did claim to be a Pardanashin lady and needless to mention that a Muslim lady is presumed to be a Pardanashin unless otherwise proved through cogent evidence. Merely because she happened to live in Saudi Arabia would not mean that she ceased to be a Pardanashin. Living style, social conditions and life prevalent in Saudi Arabia is well known and needs no comment. Again there are many Pakistani women, who live with their husbands, but it cannot be said by virtue of their going abroad that they have lost the character of Pardanashin. It is well-settled that burden of proof in respect of documents purported to have been executed by a Pardanashin lady is on the person claiming the right or interest under the document. It is for the beneficiary to affirmatively establish the genuineness or the transaction. In case of "Ramanamma v. Marina Virana" AIR 1931 Privy Council 100, it was held as under:-- "The law as to disposition of property by Pardanashin ladies has been discussed by the Board on many occasions. It is for the person claiming the benefit of any such disposition to establish affirmatively but it was substantially understood by the lady and was really her free and intelligent act. "

8. Where fraud has been alleged by Pardanashin lady the onus is on the person who takes advantage of the transaction and this view was also taken by the Supreme Court in "Janat Bibi v. Sikandar Ali" (PLD 1990 SC 645) and Mst. Raj Bibi and others v. Province of Punjab (2001 SCMR 1591). Leaving aside the question of onus of proof, ample evidence, in my view is available to substantiate the plea of the petitioner. Muhammad Ismail (D.W.1-A) is a marginal witness of registered deed. Although he claimed to know the petitioner as well as respondent No.1 but he was unable to tell what was the name of the brother of the petitioner and how many brothers she had. He was unable to tell the original residence of the petitioner. He did concede in plain words that the plaintiff was wearing 'Burqa' when she received sale consideration before Sub- Registrar and had not seen her face and further it was disclosed by respondent No. 1 that the lady in ' Burqa' was Shamim Akhtar petitioner. Further he stated that the money was paid to her in the house of some body in Mohallah Kehial and at that time none else but Ehsanul Haq was present. This witness also conceded that the Sub-Registrar was not present at the time of payment of sale consideration. As to whether the document was registered, if the document is seen then it was attested in Mohallah Kehial but this witness stated that the Sub-Registrar has not gone to Mohallah Kehial at that time. Similarly his admission that he had seen the plaintiff in 'Burqa' only on the day when the sale consideration was paid and had never seen before that would lend remarkable support to the assertion of the petitioner that she was not at all present at the time of registration and had not entered into agreement with any one. Syed Anwar Gul respondent No. 1, on the one hand, claimed to be the only real purchaser, but on the other hand he stated that he and the petitioner sold the plot to defendant No.2 for a sum or Rs.60,000, which was paid before the Sub-Registrar. These important pieces of evidence were overlooked by the Courts below.

9. The findings of the learned District Judge as well as that of the trial Judge that she appeared and executed the sale-deed are reversed and it is held that she did not enter into agreement nor did she appear and the Registered Deed No.351 is offspring of fraud and collusion and is thus void to the extent or her rights in the plot.

10. As stated earlier one of the points raised on behalf of the respondents was that Registered Deed No.351, dated 1-4-1980, to the extent of 1/2 share in favour of the petitioner, is 'benami'. Reliance was placed on the statement of the petitioner, that according to her own admission the amount was given by her husband and that according to the statements of Syed Iftikhar Shah and respondent No.2 the original transaction was with respondent No.1 only but the sale was also shown in the name of the petitioner. If we go by the statement of respondent No. 1 he entered into an agreement, paid the sale consideration and got, the deed registered but the deed reveals that it was presented for registration by Syed Jawad Hussain Shah, husband of the petitioner. The deed was not presented by respondent No.

1. There is nothing wrong if the petitioner got the amount from her husband for payment as a sale consideration and on that score it cannot beheld and at least the respondent cannot say that the transaction is 'benami' 2001 SCMR page 1443 relied upon by the learned counsel for the respondents proceeds on different and distinguishable facts. The petitioner is valid owner to the extent of 1/2 share and she is not a ' benamidar'.

11. Benefit under section 41 of the Transfer of Property Act cannot be extended to respondent No.2 or others for three-fold reasons. Firstly, sale transaction in favour of respondent No.2 was the outcome of fraud and collusion and would not adversely affect the rights of the petitioner. Secondly important ingredient of section 41 of the T.P. Act is missing. 'Protection of section 41 is available where it is shown that with the consent, expressed or implied, of the persons interested in the immovable property an ostensible transfer is made for consideration and the transfer shall not be voidable. Here I would again mention that no evidence is available that the petitioner consented expressly or impliedly. Lastly this section speaks of voidable transfers whereas the sale- deed No.351, dated 1-4-1980, is held to be void on the ground of fraud etc. There is a lot of difference between void and voiable transfer.

12. As a result I accept the revision, set aside the judgments and decrees of the Courts below and declare Deed No. 351 dated 1-4-1980, Deed No.559 dated 29-5-1982, Deed No.556 dated 10-5-1987 and Deed No.544 dated 29-3-1988 as void to the extent of share of the petitioner. She is also given a preliminary decree for partition of the suit, property with no order as to costs. H.B.T./756/P Revision accepted.