1982 PLP 2076 (CLC)

(4‑A) Is the disputed sale‑deed genuine ? Is it not tainted with fraud or undue influence TO. P. D. (5) Relief.

5. Issues Nos. 1, 1‑A and 2 were found by both the Courts below in favour of the appellant. Issues Nos. 3, 4 and 4‑A were decided by the learned trial Court in favour of the plaintiff‑appellant, but these findings were varied by the learned Additional District Judge by the impugned judgment. Since it was found concurrently by the learned Courts below that the appellant and her mother both were illiterate as well as pardahnashin ladies, both the Courts were cognizant while discussing the evidence that the burden to prove Issues Nos. 3, 4 and 4‑A ought to have been placed on the defendants‑respondents at least to the extent of proving that the documents Exhs. D/2 and D/1 were executed by the executants knowingly after fully understanding their contents. But as both the parties had given evidence, it was not considered necessary to reframe these issues for placing onus on the respondents. The evidence was appreciated keeping the principle of onus in view. This procedure cannot be said to be incorrect nor has it been challenged in this Court on the ground of the parties being prejudiced by any error in the framing of issues.

6. The learned Additional District Jud`‑ after discussing the entire evidence on the record came to the conclusion that ‑ (1) Exhs. D/t and D/2 were thumb‑marked by, the appellant and bet mother ; (2) the document EXh. D/2 may require registration and as such would not vest any title as mortgagee in favour of respondents No.. 1 and 2, but it was also an agreement to sell and proved the payment of consideration ; (3) the consideration is proved to have been paid ; (4) this consideration whether of Rs. 6,500 or Rs. 6,650 was adequate consideration in view of the evidence of P. W. 5, a witness produced by the appellant herself ; (5) the appellant and her mother Mst. Hashmat Bibi executed the agreement Exh. D/2 with their freewill, consent, after understanding the contents thereof and after receipt of full consideration of sale. Similarly Exh. D/1 was executed by the appellant after full understanding and after accepting its contents as correct, and lastly (6) that the appellant was not a lady who had no one from among the male members to whom she could look for proper advice. She had her husband Ismail, her husband's brother Muhammad Ramzan P. W. 9 as well as an adult son namely ; Nisar. The husband and the son were hot produced in Court.

7. Although there is no provision to this effect in the Contract Act, the judicial pronouncements have afforded protection to pardahnashin ladies as well as illiterate ladies on grounds of public policy, and have enunciated the principle that the burden of proving that they had executed a document with proper understanding and after full knowledge of the contents thereof should be upon the person in whose favour the document A is executed. This principle of law has been followed by both the learned Courts below and their judgment cannot be challenged on this score. Having followed this principle the learned Additional District Judge has given a finding of fact on the point enumerated above, which being a finding of fact caqnot be interfered with in exercise of this Court's 8 jurisdiction under section 100, C. P. C.

8. The learned counsel for the appellant referred to the finding given by the learned trial Court and relying upon Madan Gopal and others v. Heeran Bepari and others (PLD1969SC617) argued that the Additional District Judge has not adverted to most of the reasons which prevailed with learned trial Court; as such his judgment could not be considered to be a judgment on question of fact.

9. The learned counsel read the following points stressed upon by the learned trial Court :‑ (1) The proceedings here not started against the tenants under the mortgage deed, (2) The respondents should have obtained receipt separately for payment of the consideration of Rs. 6,650. (3) The document Exh. D/2 although a document of mortgage was not proved to have been attested in accordance with the principles of the Transfer of Property Act. (4) Even Exh. DPI has not been proved to have been executed by the appellant and there is an unexplained discrepancy of the consideration amount in Exh. D/2 and Exh. D/l, while in the former the amount of Consideration is said to be Rs. 6,650, in the latter it is Rs. 6,500 only.

10. It was argued that the evidence about the payment of the consideration amount was not believed by the learned trial Court for the additional reason that there was a discrepancy between the, statements of D. W. 4 and D. W. 5 regarding the container from which the money was produced at the time of payment. According to D. W. 4 the money was in a bag, but on this point he was contradicted by D. W.

5. The learned counsel also argued on matters which relate to the appreciation of evidence and to which it is not necessary to make reference.

11. These arguments have not impressed me. The observation of the learned trial Court about the commencement of proceedings against the tenants is clearly based upon no evidence. No dates have been fixed when proceedings were started against the tenants. The only point clear from the evidence of the appellant is that the appellant did not raise any objection or file a suit when action was taken against the tenants ; she stirred into action only when proceedings for her own ejectment were started. This is an admission which should have gone against the appellant and not against the respondent.

12. The emphasis on the point that the receipt was not obtained, is also irrelevant in view of the proof of the payment of consideration in Exh. D/2 itself. I do not understand why a second receipt should have been obtained by the respondents from the appellant and her mother for payment of the amount when this receipt was incorporated and could be proved by other documentary evidence. The question of attestation lost its value, once the learned District Judge held that the document of mortgage being unregistered, could not vest the respondents with any beneficial ownership of the mortgagees right in the property. So far the proof of thumb‑impression is concerned it was unnecessary in the circumstances of this case since it is admitted in paras. 5 and 6 of the plaint that the thumb‑impressions were fixed on documents by the appellant and her mother. It may also be noted that the appellant challenged the document of sale on the ground that although it bears her thumb‑impression, but it was not the document executed by her as a sale‑deed. She filed a copy of the document as a part of the plaint. In these circumstances it was not at all necessary to prove the thumb‑impression on the document. The only question was whether these two documents were executed deliberately knowing their contents, by the appellant or her mother. So far as the discrepancy in the statements of D. W. 4 and D. W. 5 is concerned, that is not very relevant and could be ignored by any Court appreciating the evidence. It appears from the judgment of the learned Additional District Judge that he had gone through the entire evidence on record. In these circumstances there would be a presumption that he had gone through each and every place of evidence and had taken it into consideration while delivering the judgment.

13. There is one argument on which the learned counsel laid much stress and that is to the effect that the difference of Rs. 150 in the consideration shown in Exh. D/2 and Exh. D;1 remains unexplained. This, however, is not material: once it is held that these two documents were executed with their free consent by the appellant and her mother or by the appellant alone. The question raised by the appellant was that of inadequacy of consideration of a sum of Rs. 6,500 which was convassed as an additional circumstances to prove that the document Exh. D/1 was not executed by consent. But this plea has been proved to be incorrect, by D.W. 5 who admitted the value of this property to range from Rs. 6,000 to Its. 7,000.

14. I have gone through the evidence myself also and find that the evidence of the respondents on all the points is as consistent as could be expected in the circumstances of the case. There is no material discrepancy and a view could be held in these circumstances that this evidence should be believed. On the other hand the evidence produced by the appellant cannot be believed. Apart from being self contradictory, most of the evidence does not throw any light on the issues before me. P. W. I stated that about 2 years ago Ch. Farzand Ali, defendant No. 3 had told Mst. Jannat Bibi that she would secure P. T. O. for her. His statement was recorded in the year 1966. The statement takes‑us in the year 1964 while admittedly both these documents had been executed as far back as, in 1961/63. Moreover the P. T. O. has not been produced in evidence. Ultimately it is the P. T. D. Exh. P/5 which was produced and that also bears the date of September, 1963. The evidence is, therefore, unreliable. The cross‑examination further proves that the witness is not aware whether it was P. T. O. or a P. T. D. about which he had made the reference. P. W. 2 only talks about the appellants being pardahnashin lady and being in possession of the house. P. W. 3 has also made a similar statement. P. W. 4 has stated that he had intervened in the dispute between the parties Farzand Ali assured him that he would return the house if the appellant pays back to him a sum of Rs. 1;000 which he had given her. He put the value of the house as Rs. 20,000 to Rs. 25,

000. He stated that Farzand Ali and the plaintiff had met him in the Court of Mr. Inayatullah Khan, Tehsildar and bad stated that they had to obtain the P. T. D. The cross‑examination of this witness proves that he did not have much knowledge about the facts. He even did not know the husband of the appellant. This witness, however, has further been contradicted by Farzand Ali according to whom all this talk took place before a Punchayat which was taken on Eid day to defendant No.

3. He stated that the. Punrbayat was attended by Rab Nawaz, Muhammad Aslam, Nazar Muhammad witnesses, Feroze Din and Allah Ditta. None of these witnesses including P. W. 4 have made any statement' about there being any Punchayat. 1t is further clear that the attestation of the document Exh. D/1 was not :made by Mr. Inayatullah Khan, Tehsildar. On the other it was made by Mr. Muzaffar Khan, Tehsildar. P. Ws. 6 and 7 have only knowledge about the possession and ownership of the appellant. P. W. S stated that on the 10th and 11th of August, 1963 he was in Samundari. On 10th he got an application scribed. . At that time he saw the plaintiff and defendant No. 3 sitting with the scribe. On an inquiry the appellant stated that her father had died and she wanted to get her name incorporated in the record of the house. He then said that he again went on the 11th of August and again saw them. On his inquiry the appellant stated that on that date she had been made to thumb‑impress three or four documents. This is cock and bull story. There. was no occasion for the appellant to say that she had thumb impressed the documents. Even if what is said to‑ have been happened on the 10th of August may have some value, this witness further contra dicted himself‑ in the examination‑in‑chief and said that the dates on which he had gone to the scribe were 10th of October and 11th of October and not 10th or 11th of August. He further admitteding cross‑examination that no thumb‑impression was affixed in his presence nor did he go to the Court of the Tehsildar nor was the plaintiff at all related to him. He knew only the. husband of the appellant It is furthet apparent from his evidence that he was a. close friend of Nisar son of the appellant. Both of them had been challaned for gambling: This witness was rightly disbelieved. P. W. 9 does not make any statement to support the appellant on these issues. He is the brother of Ismail husband of the appellant. P. W. 10 is Mst. Janat Bibi herself. Her statement is full of contradictions and is contrary to the statement made‑in‑para. 5 of the plaint that she had affixed the thumb‑impression on the representation that some powers of attorney were required. In her examination‑in‑chief she stated that at that time the thumb‑impressions were obtained for preparation of receipt. In examination‑in‑chief she stated that the P. T. O. and P. T. D. were handed over to her by defendant No. 3, but on a Court question which appears to be absolutely misconceived in view of this admission, she stated that these two documents were kept by defendant No. 3 with him and were not handed over to her and they were never given to her. There are other circumstances also which go to prove that she could not be relied upon.

15. One important circumstance to which there is no answer is that the appellant has a husband and an adult son and other members of the family of her husband, e.g. P. W.

9. This is not a case where any one could make a misrepresentation to ‑her with impunity. She could obtain the advice of male members. The appellant has not been able to rebut the evidence produced by the respondents. I find no force in this appeal and dismiss it with costs. M. Y M. Appeal dismissed.