2004 PLP 1459 (CLC)

(1) What properties were left by deceased Syed Muzaffar Ali Shah and Syeda Zohra Begum at the time of their death, to be inherited by their son Hashmat Ali Shah and daughter Mst. Rahat Begum? (2) Whether suit is bad for non-joinder of Ghulam Hussain and Mst. Badshah Zadi. If yes, what is its effect? (3) To what relief, the appellant/plaintiff is entitled? After a very elaborate discussion and in depth examination of the evidence available on record, the learned 1st Appellate Court decided the point No. l in the following terms: "From the perusal of evidence, discussed above, and admission of the respondent/defendant No. 1, it is proved that parents of appellant/plaintiff and respondent/defendant No. 1, has only left property mentioned in Part-I of Schedule "A" and one revolver and one gun, mentioned in Schedule "D". They had left one daughter, the plaintiff/appellant and one son the defendant/respondent No. l as their legal heirs to inherit their properties". While deciding Point-II the learned Appellate Court held that the finding of learned trial Court was not in accordance with law and the suit was not bad and was not liable to be dismissed for the non-joinder of parties. The finding of learned trial Court on this point was alleged accordingly. The learned Appellate Court decided the Point-III as under:-- "From the evidence discussed under the above points, it has been held that the appellant/plaintiff had failed to prove that sale-deed, dated 24-5-1971 in respect of properties shown in Schedule B was obtained by defendant No.1 through misrepresentation, fraud, without consideration and during death-bed illness of Syeda Zohra Begum and that properties mentioned in Schedule "C", purchased by Syed Muzaffar All Shah were Benami transaction in the name of defendant No. 1 and she had succeeded to prove that her parents had only left properties mentioned in Part-I of Schedule "A" and a revolver and a gun. The plaintiff has also claimed compensation, use and occupation i.e. mense profits of the properties, but the burden of proving mense profits actually received is on the person, who received them and that of proving the amount that might have been received is on the person claiming them. None of parties have led any evidence to prove the same, therefore; the appellant/plaintiff will only be entitled to relief of partition of properties mentioned in Part-I of Schedule "A" and a gun and a revolver left by deceased Syed Muzaffar Ali Shah. It has come in evidence that the deceased had left only one daughter, the plaintiff/appellant and a son the respondent/defendant No.1 as his legal heirs. They will be entitled to inherit the above said properties and partition thereof according to their shares under the Muhammadan Law. The learned trial Court had only decreed the suit of the appellant/plaintiff for partition in respect of properties, mentioned in Part-I of Schedule "A". However, as already held above the appellant/plaintiff will also be entitled to share according to Muhammadan Law from the gun and revolver left by the parents of the parties. Except slight modification to that effect there is no illegality in the impugned judgment and decree, as such it does not call for any interference. Preliminary decree be passed accordingly.' I have heard Mr. Jhamat Jethanand learned counsel for the applicant and Mr. Hassan Mehmood Baig learned counsel for the respondents. Mr. Jhamat Jethanand contended that the part decree is against the admission of defendant No. l on record. He stated that the objections to the execution of documents by father were not pressed and the sole objection pressed is to the execution of sale-deed by mother Syeda Zohra Begum. He meekly objected to the findings on the point of Benami transaction but in view of the fact that no witness was examined on behalf of plaintiff except her husband Iqbal Hussain Shah the sole objection which has been pressed is to the legality of the sale-deed executed by mother Syeda Zohra Begum. He contended that the defendant &o. l was looking after the parents and the properties. Mother Syeda Zohra Begum was old, infirm and was on death-bed illness; the defendant No. l got the sale-deed executed without her consent and will and by practising misrepresentation and fraud. The main emphasis of Mr. Jhamat Jethanand was that Syeda Zohra Begum mother of plaintiff and defendant No. l was an illiterate and Pardanashin lady, therefore, toe, burden was on defendant No. l to prove that the sale-deed was executed by consent and free-will of his mother and after knowing the contents of the sale-deed. In support of his contention he has placed reliance on several judgments. The first judgment is in the case of National Bank of Pakistan v. Mst. Hajra Bai (PLD 1985 Karachi 431). In this case reference was made to the judgment of Privy Council reported as Mst. Farid-un-Nisa v. Mukhtar AIR 1925 PC 204 wherein it was held as follows:-- "The real point is that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it". In the same judgment dealing with the denuding herself of a major portion of her property by an illiterate Pardanashin lady it was held as follows: "Further, the whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, protest of obvious signs of misunderstanding or want of comprehension, is in itself no real proof or a true understanding mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained. If it is in a language which she does not understand, it must, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend on the circumstances. " It was observed by the Division Bench of this Court that, "repeated judicial pronouncements have provided a cloak of protection to Pardanashin ladies who on account of their ignorance, inexperience and social conditions are not able to understand the nature of business transaction, and therefore in their case the onus is always on the person who takes advantage of a transaction to show that the transaction was actually conceived and put into practice by disposer herself. The passage from the judgment in the case of Mst. Farid-un Nisa was further cited, which reads as under:-- "The question of fraud is quite separate from the doctrine that governs the transaction entered into by Pardanashin or illiterate women" This rule was applied even if there is nothing in the nature .of coercion or deception in the transaction. Reference was made to another judgment by Lahore High Court in the case of Sri Ram v. Nand Kishore AIR 1925 Lah.

196. In this case the deed of gift was executed by an old, ignorant and Pardanashin lady. It was held:-- "There is no doubt that when -a person relied upon a deed of gift executed by Pardanashin lady, who is such in the true meaning of the term, that party must prove not only that the transaction is free from-any pressure exercised to procure the making of the gift, but also that the donor thoroughly understood the nature and the effect of her action". In the above cited case observation made by the Privy Council in the case- of Kamawati v.'Digbijai Singh (AIR 1992 PC 14) was also referred as follows:-- "It is established law of India in these circumstances that the strongest and most satisfactory proof ought to be given by the person who claims under a sale or gift from them that the transaction was real and bona fide one and fully understood by the lade whose property is dealt with." After citing several other authorities learned Division Bench held as follows:- "From the above authorities the legal position that crystallizes is that in the case of a document allegedly executed by an illiterate person or Pardanashin lady, the party taking advantage under it must establish by strongest and most satisfactory proof that not only the document was executed by such illiterate person or Pardanashin lady but also that the said illiterate person or pardanashin lady had fully understood what was contained in the document Mere fact that the execution was unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension is in itself no real proof of true understanding mind in the executant. The evidence must show that the document was read over and if necessary explained to the execution and in the case it was in the language which the execution did not understand. it was translated for the executant's comprehension- However if subsequently the executant makes a declaration- that he or she had not understood what he or she was doing-, that by itself is not conclusive. It must be a question whether, having regard to the proved personality of the executant, the nature of the transaction, the circumstances under which it was executed and the whole history of the parties, it was reasonably proved that the document was the free and intelligent act of the executant or not. If the answer was in the affirmative, the person relying on the document had discharged the onus resting upon him. Thus the Courts have no doubt evolved certain rules for their guidance in such cases, but the rules so laid down are only rules of prudence rather than rules of law and therefore, their application depends upon facts of each individual case. If these rules are moulded into inelastic formulas or crystallized into inflexible rules and treated as of universal application, there will be grave risk of failure of justice." The second judgment relied upon by Mr. Jhamat Jethanand is Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC

1. In this case it has been held that entries in the record of rights maintained by Revenue authorities do not confer any right in the property and a brother cannot legally claim adverse possession against his sister and much less the ouster. I am of .the opinion that ratio of this judgment is not applicable to the facts of the present case as no adverse possession or ouster is claimed in this case. The third judgment is in, the case of Jannat Bibi v. Sikandar Ali PLD 1990 SC

642. In this case Honourable Supreme Court has laid down the law that the question whether a lady is Pardanashin, is a question of fact. Burden of proof in respect of a document purported to have been executed by Pardanashin lady affecting her right or interest in the immovable property is on the person claiming the right or interest under the document and it is for him to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act and if she is illiterate, it must have been read over to her. The rule was also made applicable to ignorant and illiterate woman. In this case the suit for declaration regarding immovable property was filed on the plea that *the alleged sale-deed was obtained from plaintiff by defendants through fraud, misrepresentation and without consideration. The Trial Court decreed the suit but the same was dismissed in appeal by the Additional District Judge and in IInd Appeal by the High Court. The Honourable Supreme Court after laying down the law as stated above, examined the record and finding that the contents of alleged sale-deed were not read over and explained to the appellant, a Pardahashin lady and it was not consciously executed by her the plea of the plaintiff that the respondent an ASI in police department got the sale-deed executed by practising fraud on the executant was accepted and the judgment of the trial Court was restored. It is pertinent to keep in view that in the cited case the executant had herself denied the conscious execution of document as was in the case of National Bank of Pakistan v. Hajra Bai (supra). Mr. Jhamat Jethanand has next relied on the judgment in the case of Mst. Hafeeza Bibi:v. Ali Hussain 1994 SCMR 1194. In this case the rule laid down by Honourable Supreme Court in the case of Ghulam Ali PLD 1990 SC 1 and Jannat Bibi PLD 1990 SC 642 were reiterated. It was held that an alienation made by the Pardanashin lady in favour of her step-brothers in the absence of her husband and without independent advice was not sustainable. The rule laid down by the Privy Council in the case of Mst. Farid-un-Nisa (supra) was also referred to. M. Jhamat Jethanand has further placed reliance on the case of Talib Bibi v. Maqsooda Bibi 1.997 SCMR

459. In this judgment the law laid down in the case of Jannat Bibi PLD 1990 SC 642 has been followed. On the other hand Mr. Hassan Mehmood Baig learned counsel for respondents has submitted that in order to succeed in a revision, it is incumbent on the applicant to point out any non-reading or misreading of evidence or any illegality or irregularity causing miscarriage of justice. He has submitted that Mr. Jhamat Jethanand has not been able to point out any illegality or irregularity, non-reading or misreading of evidence. He has submitted that Mr. Jhamat Jethanand has merely argued that the appreciation of the evidence was not proper. According to him it is a trite law that the revisional Court shall not enter into an exercise of reappraisal of evidence, particularly, in the case of concurrent findings of facts. According to him the Revisional Court shall not arrive at any view different from the concurrent finding of fact, even if it is possible to do so. He has submitted that the defendant No.1 being the real brother of the plaintiff did no injustice to his sister and himself got the properties mutated in her name to which she was entitled. Mr. Hassan Mehmood Baig has further submitted that the plaintiff did not deny the execution of sale-deed by mother in favour of defendant No. 1 in the plaint. He has specifically referred to Para. 7 of the plaint in which she has stated as follows:-- "That on 24-5-1971 during the death-bed illness of Syeda Zohra Begum, in absence of plaintiff, through misrepresentation and fraud defendant got a 'sale-deed executed in respect of properties shown in Schedule "B" purporting to have been executed by Syeda Zohra Begum in his favour without any consideration. He has further contended that the plaintiff never entered into witness-box and her husband Iqbal Hussain Shah gave statement, at whose behest the plaintiff filed the suit. In his deposition Syed Iqbal Hussain Shah changed the version and slated that the sale-deed was not signed at all by Syeda Zohra Begum and her husband Syed Muzaffar Ali Shah father of plaintiff and defendant No.

1. He has further submitted that before execution of sale-deed the sale agreement was executed by Syeda Zohra Begum and the sale agreement as well as sale-deed both were executed in presence of Syed Muzaffar Ali Shah father of plaintiff and defendant No.

1. He is witness to both the documents: He has further contended that Syeda Zohra Begum attended the offence of Sub-Registrar Tando Allahyar, alongwith her husband Syed Muzaffar Ali Shah and it is specifically stated in the sale-deed that the contents were read over and explained to the parties in their mother tongue, "Urdu". Mr. Hassan Mehmood Baig has submitted that Mr. Jhamat Jethanand has not pressed his objection to the documents executed by Syed 'Muzaffar Ali Shah, therefore, the objection to the genuineness of the sale-deed executed by Syeda Zohra Begum in. presence of Syed Muzaffar Ali Shah is not open to any exception. He has further submitted that Syeda Zohra Begum executed the sale agreement on 15-3-1971 Exh.106 and sale-deed on 24-5-1971 Exh.107 and remained alive till 13-3-1972, but did not raise any objection to the execution of sale- agreement and sale-deed. He has next contended that the plaintiff cannot be allowed to change the version in evidence which is contrary to the version in the pleadings. Even otherwise it was for the plaintiff to lead evidence to establish that the sale agreement and sale-deed were not signed by her mother Syeda Zohra Begum and father Syed Muzzfar Ali Shah. At this juncture I would like to observe that according to the memo. of revision application the sole witness examined on behalf of plaintiff was Iqbal Hussain Shah husband of plaintiff Mst. Rahat Begum but the perusal of record shows that on remand of case to the trial Court, the plaintiff Mst. Rahat Begum was also examined in Court. Her statement is on same lines as that of her husband Iqbal Hussain Shah. I have carefully considered the contentions raised by learned advocates -for the parties. So for the law laid down by the Privy Council and superior Courts in the sub-continent is concerned, by now it stands settled that if a sale-deed, gift-deed, or any other document denuding) herself of valuable properties i5 executed by a Pardanashin, illiterate or infirm lady and subsequently the execution of document by a conscious and intelligent application of mind and after full apprehension of the facts, is denied by the executant, the burden is on the beneficiary to prove that no facts were concealed, entire facts were disclosed and made intelligible to such Pardanashin and illiterate lady and after disclosure of entire facts the document was executed with free-will of the lady without any coercion or duress. However it is basically the question of fact and the cloak of protection around the Pardanashin and illiterate lady have been woven by the superior Courts entirely to protect their interest looking to the social conditions prevailing in the sub-continent. In the present case I find that Syeda Zohra Begum mother of plaintiff and defendant No. l executed the sale agreement in presence of stamp vendor and her husband on 15-3-1971 and executed sale-deed in presence of Subz-Registrar and her husband Syed Muzaffar Ali Shah on 24-5-1971. She never raised any objection to the execution of these documents although she-remained alive for a period of about one year after the execution of documents. Signing bf the documents by dyed Muzaffar Ali Shah husband of Syeda Zohra Begum and father of plaintiff B and defendant No. I further indicates that she had the assistance and advice of her husband. In the wake of Syed Muzaffar Ali Shah being an attesting witness it cannot be said that the defendant No. l got the document executed by misrepresentation; fraud or concealment of facts. She remained alive for a period of about one and half month after the death of her husband Syed Muzaffar Ali Shah but never disclosed to her daughter, the plaintiff that the sale-deed was got executed by defendants No. l against her free-will or without disclosure of real facts to her. The facts involved in the judgments on which Mr. Jhamat Jethangnd has placed reliance are distinguishable from the facts of the present case, as in the cited case, the execution of documents were denied by the executants themselves and not by heirs. Looking to the facts and circumstances of the present case I am of the opinion that the learned two Courts below have rightly appreciated the evidence on record and the relevant law to which no exception can be taken. Consequently I do not find force in the contention of Mr. Jhamat Jethanand 'that the judgments of the learned two Courts below suffer from illegality. The revision application is without substance which stands dismissed accordingly alongwith listed-application. H.B.T./R-13/K Revision application dismissed.