P L D 1994 Lahore 100 (PLP)

A Shop No.B‑1V‑ST‑46‑A situate in Sheikhupura City was a non Muslim evacuee property. It was transferred to Fazal Din by the Assistant Settlement Commissioner, on 7‑5‑1959. Provisional Transfer Order was issued to him on 8‑11‑1959. Upon payment of the price and settlement dues, Permanent Transfer Deed was issued in favour of aforesaid Fazal Din. Consequently, he became its full owner. On 20‑3‑1961, Fazal Din constituted Muhammad Younas his special attorney and gave him a power of attorney in writing. By it, he authorised him to pay the price . of the shop to the Settlement Department, enter into association deeds and perform all and sundry allied acts relating to the shop. Special power of attorney was Exh.P.l. On 28‑3‑1961, Muhammad Younas entered into an association with Manzoor Ahmad, claimant for adjustment of Rs.2,822 from his compensation book towards payment of price of the shop. This deed of association was Exh. P.2. On 20‑10‑1961, Muhammad Younas entered into another association with Mirza Naseer Baig for adjustment of Rs.853 from his compensation book for payment of price of the shop to the Settlement Department. This deed of association was Exh.P.3. On 15‑8‑1963, Fazal Din himself entered into an association with Boota son of Sher Muhammad for payment of Rs.963 from his compensation book for adjustment of the price of the shop. Deed of association was Exh.P.4 on the file of the trial Court. On 20‑3‑1961, Fazal Din had agreed for sale of the shop to Muhammad Younas. Agreement to sell was reduced in writing. It recited that payment of price of the shop was made by Muhammad Younas and upon transfer of full ownership rights in it, he shall complete a sale of it in his favour. Permanent Transfer Deed was issued on 20‑9‑1963. Thereupon, Fazal Din executed a sale‑deed of the shop in favour of Muhammad Younas, on 27‑4‑1964. Sale‑deed was presented for registration by Fazal Din on 12‑5‑1964 and it was registered on the same day. Fazal Din was issuless. His wife was also dead. He died on 16‑7‑1965. His age at the time of decease was recorded 65 years in an extract from register of deaths, Exh.P.5. Jhanda claimed to be a real brother of deceased Fazal Din. He was shown to be residing at Rahimyar Khan. Upon gaining of knowledge of the death of his brother, he instituted a suit for possession of the shop against Muhammad Younas in the Civil Court at Sheikhupura. It was asserted that Fazal Din was an old weak person and Muhammad Younas had managed the sale of the shop from him by exercise of undue influence and without payment of any consideration to him. Initially, the plaint was rejected by the trial Court. In appeal, an order for rejection of the plaint was reversed and the suit was remanded on 20‑10‑1967 for its trial on merits. Thereupon, deficiency in payment. of court‑fee was made up and there was no more dispute about it. Defendant contested the suit and pleaded for a voluntary sale of the shop by Fazal Din in hi favour. Allegations of fraud, undue influence and nonpayment of consideration were denied. Keeping aside the preliminary issues which were resolved at the initial stages of trial and the decision on them was no more in dispute between the parties, the trial Court settled following issues on merits: (1) Whether the sale is void for reasons given in para.3 of the plaint? (2) Whether the sale is without consideration? (3) Relief. After the evidence was partly recorded, the suit was transferred to the file of learned Senior Civil Judge, Sheikhupura under an administrative order of learned District Judge, on 14‑5‑1970. The issues already framed were recast by him on 13‑9‑1970. These were: (1.) Whether the sale‑deed dated 20‑7‑1964, registered on 12‑5‑1964 in respect of the property in ‑dispute is the result of fraud and undue influence? (2) Whether the sale in question was for consideration? (3) Relief. Upon taking of evidence, oral as well as documentary and its scrutiny, learned trial Court found that the sale was outcome of exercise of undue influence and it was without consideration also. Consequently, the suit for possession of the shop was decreed in favour of the plaintiff, on 14‑11‑1G70 From the judgment and decree of . the trial Court, Muhammad Younas preferred an appeal to the District Court. It was heard by a learned Additional District Judge of Sheikhupura who allowed it on 2‑6‑1972 with the consequence that the suit for possession was dismissed. It was held that sale of the shop was not tainted with vice of undue influence by Muhammad Younas on Fazal Din and further that the sale was for consideration received by him. Aggrieved of this judgment, plaintiff came up in second appeal to this Court. It was admitted to hearing on 19‑12‑1972. It may be noticed that the appellant died during the course of second appeal in this Court and his sole legal representative Fateh Muhammad was substituted for him on record by an order of this Court made on 6‑12‑1981. Ch. Muhammad Hassan, Advocate, learned counsel for the appellant argued that there was convincing evidence available on record to establish beyond doubt that sale of the shop by Fazal Din was outcome of an exercise of undue influence by Muhammad Younas and it also suffered from the defect of absence of consideration. It was further argued that Fazal Din was an old person of weak intellect; he depended upon Muhammad Younas who arranged for his food and in result he felt greatly indebted to him. It was also argued that Fatal Din was an affluent person; he himself paid the price of the shop to the Settlement Department and Muhammad Younas had merely acted for him in this behalf. Learned counsel argued that taking ' advantage of loneliness of Fazal Din and his own influence on him, Muhammad Younas' betrayed his confidence and managed transfer of the shop from him in his favour. Record was read out to me by the learned counsel for the appellant. It may be observed at the outset that the execution of special power of attorney Exh.P.l.; deeds of association Exh.P.2, Exh:P.3 and the sale‑deed Exh.D.l. were not questioned by the appellant at the hearing. Execution of agreement to sell by Fazal Din in favour of Muhammad Younas was, however, denied in course of arguments by the learned counsel for the appellant. It was submitted that payment of transfer price of the shop was made by Muhammad Younas in the capacity of a special attorney of Fazal Din and the amount for purchasing the compensation books for adjustment of the transfer price was actually paid by Fazal Din to Muhammad Younas. It shall be of interest to observe that sale was sought to be avoided only on two‑fold grounds; exercise of undue influence and it being without consideration. Execution of sale‑deed by Fazal Din, its presentation for registration and admissions recorded in the endorsements by the Sub‑Registrar on it were not questioned. Before adverting to the real points at Issue, it was necessary to preface the discussion with some preliminary observations respecting pleadings and the proof in a suit for avoidance of transaction on ground of undue influence. As regards pleadings in a suit to avoid a transaction on ground of undue influence: it was incumbent on party, be he the plaintiff or defendant, to give full particulars of the circumstances on which he relied as the basis of his plea. It was not enough to baldly assert that undue influence had vitiated the transaction. Precise nature of influence exercised, manner of use of influence and the unfair advantage obtained by the other had to be clearly pleaded. See AIR 1972 Himachal Pradesh

33. Courts have taken the view that in dealing with the cases of undue influence, four different questions connected with each other namely:‑‑(1) Whether it was a transaction which a right‑minded person could be expected to enter into?; (2) Whether it shows so much improvidence as to suggest that the transferor was not in a state of mind to weigh what he was doing?; (3) Whether, it was a matter requiring legal advice?; (4) Whether the intention for making of the transfer originated with the transferor. See rulings in AIR 1937 Calcutta 492, AIR 1951 Travancore‑Cochin 42, AIR 1966 Andhra Pradesh

104. A finding on issue of undue influence in the nature of things must be based on general as well as specific evidence of exercise of undue influence. It was correct that undue influence was not a matter always capable of direct proof and, therefore, must depend on conclusion drawn from the nature of transaction itself and the circumstances in which it had its origin. Further, according‑to the definition of undue influence, in section 16 of the Contract Act, there are three ingredients:‑‑(1) that relation subsisting between the parties should be such that one of the parties was in a position to dominate the will of the other; (2) that the dominant party obtains an unfair advantage over the other; and (3) that the dominant party uses his dominant position to obtain that unfair advantage. It virtually means domination of a weak mind by a strong mind to an extent which causes the behaviour of the weaker person to assume an unnatural character. See AIR 1937 Patna 362, AIR 1961 Punjab

383. The essence of "undue influence" is that a person is constrained to do and against his will, but for the influence he would have refused to do, if left to exercise his own judgment. Having analysed the term "undue influence", its scope and ingredients and also the mode and manner of its proof, I propose now to advert to the evidence in the case to discover whether exercise of undue influence was proved by the plaintiff. As said above, Fazal Din was shown to have died at the age of 65 years. His brother Jhanda gave him a little older age, but there was no evidence that he was either physically or mentally infirm. Muhammad Younas was comparatively young. Rahim Bakhsh P.W.1 deposed that Muhammad Younas occupied the shop as tenant and Fazal Din also resided in it. Further, that Fazal Din had not sold the shop to Muhammad Younas. In cross‑examination, he deposed that he was unaware of the rate of monthly rent and that rent was not paid in his presence. Further, deposed that Muhammad Younas had demolished the shop and reconstructed it, though the residents of the locality including the plaintiff had stopped him from doing so. Ismail P.W.2 deposed that Fazal Din was an affluent person. He had quarrelled with his sisters and a grandson. Therefore, Muhammad Younas provided food to him. He further deposed that Muhammad Younas was his tenant in the shop and that the shop was not sold by him to Muhammad Younas. He also deposed that Fazal Din died of the electric shock in the shop. He further deposed that a Panchayat was convened to resolve the dispute in the Baithak of Luqman goldsmith, wherein Younas proclaimed that he had reconstructed the shop. Fatal Karim P.W.3 deposed that Fatal Din was in his senses; he was a rational person; he resided in the shop. Muhammad Younas was his tenant; he provided food to him; they maintained good relations and Muhammad Younas carried confidence of Fatal Din. He also deposed that price of the shop was paid by Fatal Din himself and he had told him of it. This witness initially worked with Muhammad Younas who was a tailor but had later separated from him. P.W.4 Shaja‑ud‑Din produced settlement file of the shop in Court. P.W.S Sheikh Fatal Muhammad deed‑writer gave evidence to prove that he had scribed power of attorney Exh.P.l, deeds of association Exh.P.2, Exh.P.3 at the instance of Fatal Din. He was old but understood the matters. Above documents were read over to him and thereafter, he thumb‑marked them. P.W.6 was Ch. Muhammad Ishaque, Advocate of Sheikhupura. He attested association deed Exh.P.4. In cross‑examination, the witness deposed that Fatal Din had approached him; the document was read over to him. He was an intelligent person. After the statement of P.W.6 learned counsel for the plaintiff produced plan Exh.P.6 extract from death register Exh.P.S and closed affirmative evidence by reserving evidence in rebuttal only. It was significant to observe that the statement of plaintiff was not recorded in affirmative, nor, was it reserved to be recorded in affirmative till after close of defendant's evidence. D.W.1 Hafiz Muhammad Jamil, deed‑writer deposed that he had scribed sale‑deed Exh.D‑1 at the instance of Fatal Din. He was in his full senses and the sale‑deed was explained to him and thereafter, he had put his thumb impressions on it. The witness disposed that the consideration was not paid in his presence, but Fatal Din had acknowledged its receipt in his presence. In cross‑examination, the witness deposed that he was not aware, whether, Muhammad Younas was tenant of the shop and that he provided food to Fatal Din. However, he admitted that the shop gave good income to Fatal Din. Muhammad Abdullah D.W.2 was a previous employee of Settlement Department. He deposed that he had witnessed the execution of Exh.D‑

1. He said that Fatal Din was in sound health at the time of execution of the sale‑deed. The witness deposed that consideration for the sale was not paid in his presence, but, Fatal Din admitted that‑he had been receiving money from Muhammad Younas. In cross‑examination, the witness deposed that he knew Fatal Din, he had good business and he (Fatal Din) was friendly with Muhammad Younas and that Fatal Din also resided in the shop. D.W3 Muhammad Sharif gave evidence that he had attested the, execution of sale-deed and agreement to sell Exh.D.2. In cross‑examination, he deposed that price was paid in presence of Tehsildar. D.W.4 Manzoor Ahmad and D.W.S Naseer Baig deposed that they had entered into association with Muhammad Younas and received price from him for adjustment of payments from their compensation books. Both the witnesses deposed that Muhammad Younas was attorney of Fatal Din. Muhammad Younas appeared himself as D.W.6. He deposed that he purchased the shop for a sum of Rs.3,000 from Fazal-Din, he purchased the claims from Manzoor and Naseer Baig and paid them the price and also paid Rs.500/700 to Fatal Din. He further deposed that he was attorney of Fatal Din who was of sound health. In cross‑examination, the witness deposed that he was known to Fatal Din for the past 10/12 years. He lived with his son‑in‑law in Galli Zargaran; he died a year and half after the registration of the sale‑deed; he ate the food at the house of his son‑in‑law and some times, the witness provided him the food. Also deposed that Fazal-Din was a poor person. Muhammad Younas again appeared as D.W.7 and gave further statement in support of his case. Testimony of D.W.8 and D.W.9, taxation clerks was not much material. They merely deposed on the entries in taxation records. D.W. 10 Fatal Muhammad, deed‑writer proved applications. Exh.D‑10/1 to Exh.D‑10/3, copies whereof were placed on file. Jhanda himself appeared as P.W.7 after the close of defendant's evidence. He deposed that Fatal Din was his brother; he had not sold the shop to Muhammad Younas nor he was paid any price for it; Muhammad Younas was tenant in the shop. He also deposed that he lived with his brother but after some time in the past, he left for Rahimyar Khan. He was a barber by profession. He said that he was about 80 years old and his brother was three years younger to him. Exh.D.W.10/i, Exh.D.W.10/2, Exh.D.W.10/3 were the applications addressed to the Deputy Settlement Commissioner, Sheikhupura for adjustment of the price from the compensation books of Manzoor Ahmad and Naseer Baig. First two applications were signed by Muhammad Younas as special attorney of Fatal Din and the last was thumb‑marked by Fatal Din himself. From the evidence adduced at the trial of the suit, it was manifest that Fatal Din was a person of average age; he was of sound physique and good health; though he was illiterate but he was an intelligent person. He gave power of attorney to Muhammad Younas and conferred extensive powers on him specified in it. Muhammad Younas purchased compensation books from Manzoor Ahmad and Naseer Baig for adjustment towards the price of the shop. They gave evidence that price for purchase of compensation books was paid to them by Muhammad Younas. There was no reliable evidence that Fatal Din had paid the amount to Muhammad Younas for purchasing of two compensation books. There was no reference to agreement to sell Exh.D.2 in the sale‑deed Exh.D.l yet, there was evidence to believe that agreement to sell was executed by Fatal Din. D.W.3 gave evidence to support its execution. Independent of it, when the sale itself was admitted, dispute on execution of agreement to sell was inconsequential. Fatal Din died after a year and few months from the registration of the sale‑deed. He never disputed the sale of the shop by him on account of undue influence and want of consideration. There was no evidence to prove that Fatal Din 'reposed confidence in Muhammad Younas which the latter betrayed to gain an unfair advantage from him. Further, there was no material to suggest that Muhammad Younas duped Fatal Din for entering into a sale transaction against his will. Also there was no evidence that Muhammad Younas dominated the will of, Fatal Din. A I mere allegation of good relations between the parties without any clear suggestion that one of them was in a position to dominate the other will nor justify the Court in assuming that undue influence must have necessarily been exercised. Even there was no sound evidence that parties were in fiduciary g relationship. In my opinion, sale of the shop by Fatal Din to Muhammad Younas appeared to be an open and straightforward transaction free from the taint of undue influence. Fatal Din himself was not a claimant either. Price for the shop was paid through adjustment from the compensation books. It was true that the claim worth Rs.963 was purchased by Fatal Din himself but that by itself shall not detract from the voluntary character of the sale‑deed. Similarly, sale was not without consideration either. Fatal Din himself admitted in the sale‑deed and also before the Sub‑Registrar that he had received the sale‑price. Muhammad Younas in his statement accounted for the details of the payments to Fatal Din and the learned District Judge had commented on it and found it reliable. Consideration expressed in the sale-deed was not inadequate also. In my view, finding on it was not faulty. Ch. Muhammad Hassan, Advocate listed four circumstances to spell out proof of undue influence by Muhammad Younas upon Fatal Din. These were: (1) Muhammad Younas was constituted special attorney by Fatal Din; (2) Muhammad Younas arranged for the food f Fatal Din from his house; (3) existence of close relationship between them; (4) Fatal Din was old arid illiterate. These circumstances either singly or collectively could not lead to an irresistible conclusion of exercise of undue influence by Muhammad Younas upon Fatal Din. Nature of close relationship was not elaborated at the hearing or disclosed in the evidence. Mere friendly relationship shall be an insufficient circumstance. Lastly, statement of the plaintiff after close of defendant's evidence could not have been read in affirmative proof of the pleas of undue influence and absence of consideration. Plaintiff had unreservedly closed his affirmative evidence and hence, he could not have been permitted to record his statement in affirmative after the close of defence evidence. To that extent, his testimony carried little weight. In view of the aforesaid, second appeal is without force and, is dismissed. However, in the facts and circumstances of the case, parties are left to bear their own costs here. Records be returned, AA./J‑63/L Appeal dismissed.