1999SCMR1299 (PLP)

KHALIL-UR-REHMAN KHAN, J.

Mst. Wazir Begum, petitioner, seeks leave to appeal against the judgment dated 6-2-1996 dismissing the revision petition and thereby affirming the concurrent finding of the two learned Courts below.

2. Facts of the case, briefly stated, are that Mian Jan Muhammad was owner of 93 Kanals and 9 Marlas of land situated in village Madsudanpura, 43 Kanals and 2 Marlas of land situate in Baghbanpura, Tehsil Cantt., District Lahore, and a residential house situate in village Bhogiwal, Tehsil Cantt., District Lahore. He had married Mst. Begum Bibi, Mst. Inayat Begum and Mst. Khurshid Begum. Mst. Begum Bibi died in his life time leaving behind Mst. Wazir Begum (petitioner) and Mst. Mukhtar Begum (respondent No.5), while Mst. Inayat Begum died leaving behind one son namely, Muhammad Nazir (respondent No. l) and two daughters namely, Mst. Mumtaz Begum and Mst. Mehraj Begum (respondents Nos.2 and 3 ). Mst. Khurshid Begum, respondent No.4, the youngest wife is alive but is issueless. Mian Jan Muhammad died in the Mayo Hospital during the night between 24th and 25th of June, 1981, according to the petitioner, in a state of coma as he was an old, infirm, weak and sick person having the age of more than 95 years and that due to his ailment he was a person having no control over his mind anybody for the last many years. It was also asserted in the plaint that he was under influence of his son Muhammad Nazir and wife Mst. Khurshid Begum, who was step mother of the remaining parties and real aunt of Muhammad Nazir respondent No. 1, from his mother side, and that Mian Jan Muhammad lived till his death with the said respondents, (Muhammad Nazir and Mst. Khurshid Begum). The petitioner further averred that she was married about 47 years earlier to the filing of the suit and was residing since then with her husband at Chak No.3-GD, Tehsil and District Okara while her father and other parties were permanent residents of Lahore and the property in dispute was in possession of the respondents. She added that she came to Lahore in the year 1984 (before institution of suit) and then she came to know about the execution of some sale-deeds for making private houses Scheme, and on inquiry Muhammad Nazir, respondent No. t told her that he was owner of the property in dispute being vendee from his father vide registered sale-deed dated 12-12-1972 and 21-1-1973, The case of the petitioner precisely was that the remaining defendants had colluded with Muhammad Nazir respondent No. l and all of them manoeuvered the execution of sale-deeds by exerting undue influence and coercion on Mian Jan Muhammad, without consideration with a view to usurp the share of other lawful heirs and cause wrongful gain and undue advantage to respondents/defendants. She added that the house in dispute was got transferred on 24-6-1981 when Mian Jan Muhammad was struggling for his life and death and was in state of coma and died on the same night and this was done to deprive her from her lawful share which necessitated filing of a separate suit. The said suit which was already pending in the civil Court was not subject matter of litigation in the present proceedings. The petitioner and respondent No.5 further averred that they were old, illiterate, Pardanasheen ladies.

3. Both the suits were contested by respondents with the pleas that Mian Jan Muhammad was aged 80 years at the time of his death, was quite hail and hearty, that he died of a heart attack, that the suit property was alienated in the name of Muhammad Nazir respondent No.l, the only son, as he had already married his daughters during his lifetime and he intended that there should be no dispute of inheritance after his death.

4. Learned trial Court framed necessary issues arising out of the pleadings of the parties, recorded oral as well as documentary evidence produced by them and after hearing them dismissed the suits on 22-5-1991. Two appeals were filed; one by Mst. Wazir Begum and the other by the legal heirs of Mst. Mukhtar Begum, Learned Additional District Judge, dismissed both the appeals vide judgment and decree dated 22-2-1995. This led to the filing of two revision petitions and the same were dismissed by the learned Single Judge of the Lahore High Court, Lahore vide impugned judgment. Hence this petition for leave to appeal.

5. Mr. S.M. Masud, Advocate, learned counsel for the petitioner argued that the learned Courts below have failed to appreciate the evidence on record in its true perspective and in the light of the principles enunciated by this Court in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811). He added that Mian Jan Muhammad, the father of the parties was a man of means and there was as such no occasion for him to sell the land to the son, namely Muhammad Nazir (respondent No. l); and that the factum of sale of the land against almost no consideration was kept concealed from the sisters which shows on the one hand the fake nature of the transaction and on the other hand it was a crude effort to deprive the sisters, who were illiterate, old and Pardansheen ladies, of their due share in the inheritance. On the above premises, he argued that the learned Courts below have erred in law in non-suiting the petitioner.

6. We have given serious consideration to the aforenoted contentions and have also gone through the evidence on record minutely. The case of the petitioner as set out in the plaint has been noted above. The plea of the petitioner in nut-shell is that the defendants colluded with each other and manoeuvered the sale by exercising undue influence and coercion on Mian Jan Muhammad to execute the above fictitious sale-deed in favour of Muhammad Nazir respondent No. l without consideration so as to provide his wrongful gain and undue advantage. According to her, Mian Jan Muhammad was under influence of Muhammad Nazir respondent/son and Mst. Khurshid Begum, the step-mother was also real aunt of Muhammad Nazir respondent from mother side and he being an old, infirm and weak and sick person had no control over his mind and body for the last many years.

7. The question is whether the aforenoted averments have been established by producing reliable and cogent evidence and if so, whether the circumstances or material brought on record is sufficient for inferring exertion of undue influence or coercion so as to render the sales of the land made in favour of Muhammad Nazir illegal and void. Learned Courts below, specially the learned Additional District Judge has appraised the evidence produced by the parties in detail in paragraph 6 of the judgment and recorded the conclusion in paragraph 7 that the plaintiffs had miserably failed to establish any undue influence and coercion alleged to have been exercised by Muhammad Nazir respondent over Mian Jan Muhammad to get the suit land alienated in his favour The finding of fact concurrently recorded by all the Courts is that Mian Jan Muhammad as per death entry Exh. D.6 died of heart attack and not on account of any protracted illness. There is nothing in the statements of Wazir Begum or Mukhtar Begum even to suggest that at the time of execution of sale-deeds on 12-12-1972 and 23 1-1973, Mian Jan Muhammad was in such a state of health that he was not possessed of the disposing mind. Mian Jan Muhammad admittedly died in the month of June 1981 after about 8 years of the execution of sale-deeds in dispute and he was quite healthy then as is apparent froth the statement of Mukhtar Begum P.W.1 herself. The assertion of Mukhtar Begum that no one in the family knew of the sale-deeds and that they only came to know of the same when after dividing the land in the plots the same was put to sale, firstly fails to show the use of any undue influence or coercion on Mian Jan Muhammad at the time of execution of sale-deeds, secondly the said plea even stands belied from the statement in cross-examination of Wazir Begum P.W.6. She admitted that Ch. Abdur Rahman, is brother of her husband and that the bungalow of said Ch. Abdur Rahman is situated in same area and the land in dispute. She also admitted that her husband had purchased three Marlas of land from Muhammad Nazir respondent No. l but volunteered that she was not told of the said purchase by her husband. She in her examination-in-chief stated that she had not received any share from the estate of father but then in cross-examination she denied knowledge of the fact that the land left by her father was mutated in the names of all the heirs. It is also in the evidence that she, after receiving her share in the land left by the father, sold the same to Muhammad Nazir respondent No.

1. It stands established on record that Mian Jan Muhammad, according to his service record, was born in 1901 and he was aged 80 years when he died on 24-6-1981. This also belies the assertion of the petitioner/plaintiff that he was aged 95 years or over 90 years at the time of his death. The evidence of Muhammad Ashraf P.W.3 and Ghulam Qadir P.W.4 also shows that Mian Jan Muhammad used to cultivate the suit land himself. These witnesses have not said anything about the allegations levelled by the plaintiff in the plaint. Thus, it was nowhere shown that Mian Muhammad was a sick or ailing person and was not possessed of the disposing mind at the time of the execution of sale-deeds in question. The appraisal of evidence made by the learned Court below admittedly does not suffer from misreading or non-reading of the material pieces of evidence,

8. The plea that the said evidence was not appraised in its true perspective has also no substance. It is well-established that a party in order to avoid transaction on ground of undue influence has to give full particulars of circumstances on which the said plea is based. Not only precise nature of influence exercised, manner of use of influence and unfair advantage obtained by the other party has to be clearly pleaded but also has to be established by producing reliable and cogent evidence. A finding on issue of undue influence must be based on general as well as specific evidence of exercise of undue influence and such evidence must be of the nature establishing a position to dominate the will of the other to the extent that the person under influence was constrained to do what he would have refused to do if left to exercise his own judgment. Mere allegation of good relation between the parties without any clear suggestion that one of them was in a position to dominate the other does not justify the Court to assume that undue influence must have necessarily been exercised. (See AIR 1937 Cal. 492; AIR 1937 Patna 362 and AIR 1961 Punjab 383). Here, both the plaintiffs, petitioner and respondent No.5, in their statements, have taken the plea that their father had served the Railways for quite some time and had proceeded on retirement. It is apparent that he was not financially in a subordinate position that an undue benefit could be obtained by the respondent No.

1. Again he did not give over his entire property to the son. It is in evidence that land in Baghbanpura was received by all the heirs after the death of Mian Jan Muhammad.

9. This Court,, in the case of Ghulam Ali (supra), pointed out that the principles of public policy as understood in Islam require the Courts to scrutinise the transactions whereby a female has statedly relinquished her right in the inheritance. It was observed that females action in agreeing to the relinquishment being against public policy, the very act of agreement and contract constituting relinquishment was void. This is not the case here, as the plaintiff had not agreed to relinquish the rights in the inheritance of father. The question of using undue influence to a Pardansheen lady or other similarly placed parties does not arise in the instant case. There is not even an iota of evidence establishing use of undue influence or coercion on Mian Jan Muhammad, the father.

10. In the other case relied upon by the learned counsel for the petitioner, i.e., case of Mst. Fazal Jan, (supra), this Court noting that the petitioner lady being unable to put up her case properly and to protect her property rights examined the case itself lest others may not have taken undue advantage of her incapacity. In such circumstance, it is the duty of the Court to meticulously examine the case especially of the ladies, illiterate, indigent and poor so as to do

11. The Courts below have analysed the evidence on record in its true perspective but obviously no case on the basis of mere surmises or conjectures can be made out. Moreover, this Court cannot substitute the conclusions, which were concurrently and reasonably drawn by the learned Courts below by proper appreciation of evidence. If no error of law or defect in procedure had been committed in coming- to a finding of fact, neither the High Court nor this Court can substitute such a finding merely because a different finding could be given. (See Muhammad Rauf and others v. Muhammad Abbas and another, 1994 SCMR 973 and Abdullah Jan and others v. Tila Muhammad and others, 1982 SCMR 248

12. For what. has been stated above, we do not find any merit in this petition. Leave to appeal is, therefore, refused and the petition is dismissed. (Sd.) Irshad Hasan khan, J. (Sd.) Khalil-ur-Rehman Khan, J. RAJA AFRASIAB KHAN J.

On 18th of February 1985, Mst. Wazir Begum instituted a suit seeking cancellation of the sale-deeds dated 12-12-1972 and 23-1-1973 having been executed by her father, Mian Jan Muhammad (deceased) in favour of his son, Muhammad Nazir saying that these were illegal and inoperative to the extent of her share in the disputed property. She averred that the sale-deeds were executed on account of undue influence and coersion and no sale consideration was paid by the vendee/son to the vendor/father. It was prayed that 7/48th share out of the inheritance may be given to the petitioner. Mian Jan Muhammad, the father of the petitioner and the respondents Nos, 1 to 3 and 5, was the owner in possession of 93 Kanals and 6 Marlas of urban land situate in Mauza Maqadaspura, Lahore. A House bearing No.NE-XVI-39-8-5 in Bhogiwal, Baghbanpur, Lahore was also owned by him. Mian Jan Muhammad had married thrice one after the other. His first wife was Mst. Begum Bibi and after her death, he married Mst. Inayat Begum who also died and then lastly he married Mst. Khurshid Begum, the younger sister of Mst. Inayat Begum (his second wife). The respondent No. l denied the claims of the petitioner by filing written statement. His case was that he purchased the disputed property through sale-deeds referred to above from his father and as such the petitioner had no right to claim any share from the disputed property. On divergent pleadings of the parties, issues were framed by the trial Court. Mst. Mukhtar Begum P.W.1, Ahmad Din P.W.2, Muhammad Ashraf P.W.3., Haji Ghulam Qadir P.W.4, Faqir Muhammad P.W.5 and Mst. Wazir Begum P.W.6 appeared in support of the case of the petitioner while her plea was ontroverted by Abdul Majid D.W.1, Muhammad Bashir D.W.2, Allah Reham D.W.3., Mian Abdul Khaliq D.W.4., Muhammad Nazir D.W.5, Abdul Maid D.W.6., and Sakhi Muhammad D.W.7. the trial court dismissed the suit of the petitioner vide judgment dated 22-5-1991. The appeal and the revision of the petitioner were also dismissed by the Additional District Judge, Lahore and the High Court on 20-2-1995 and 6-2-1996 respectively. This is a petition for leave to appeal having been filed by the petitioner to call in question the validity of the impugned judgments and decrees of the Courts below.

2. We have heard the learned counsel for the petitioner at some length. The record has also been perused by us with his assistance. In her evidence, Mst. Mukhtar Begum deposed:- This version has been supported by reliable evidence available on record. Exh. D-6 shows that at the time of execution of sale-deed, Mian Jan Muhammad was 70/71 years of age. The evidence of the petitioner has, however, disclosed that his age was beyond 90 years. His cause of death was heart failure. The facts brought on record demonstrate that Mian Jan Muhammad had sold the land in favour of his son, Muhammad Nazir (Respondent) No. l) for no financial consideration. A heavy burden was on the respondent to displace the plea of the petitioner which he failed to do. No evidence was led by the respondent that the alienation took place in lieu of some valid consideration and it was not concealed from the family. It was proved that Mian Jan Muhammad was old and sick. He had been living with his son and last wife. It is established that the old man was under the influence of his son and wife. It could not, therefore., be said that he had a disposing mind at the relevant time. It can be presumed that the documents mentioned above were executed under the undue influence of his son, Muhammad Nazir and his wife who was, otherwise, the real sister of his mother. The petitioner is a Pardanashin lady. To support the case of the petitioner, reliance may be placed on Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) Wherein it was observed:- "Two even if all the conditions for a valid transfer under the existing set and system of law, after the due accrual of inheritance are satisfied, the protection afforded by section lb of the Contract Act against undue influence, to Pardanashin Ladies and others similarly placed parties and entrenched in the case-law as also available under the Islamic Law already discussed, would require so many conditions to be satisfied. Admittedly in such like cases the burden of proof is upon the alienee. The presumption exists regarding undue influence on prima facie satisfaction regarding inter se position of the parties and the State and status of the alienor. The discussion in this behalf in Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) is instructive besides being valuable and useful. Had it been a case to be examined on that touchstone, the petitioners even then would have failed on account of undue influence, the presumptions regarding which in respondent's favour, have not been rebutted. This and other issues discussed and answered in this summarization will, it is clarified, in no way detract from the findings on the touchstone of Islamic principles, including those of public policy and morality, which would remain the main ratio in the case." It may also be noted that in case of Mst. Fazal Jan v. Roshan Din and others (PLD 1992 SC 811), the suit of the plaintiff was decreed by this Court after its complete reconstruction to do complete justice between the parties. The case in hand has similarity of facts and law with the quoted cases. The Courts below have failed to consider the plea that the respondent No. l was the only male issue of Mian Jan Muhammad and that he being ailing and living with him, was surely under his influence and was not acting as free agent to dispose of his property. Similarly, he was under the influence of his wife, the respondent No.4 who happened to be issueless. She, as pointed out above, was the real maternal aunt of the respondent No.1. The findings on all the issues except issue No.12 were given in favour of the petitioner and no cross-appeal was filed by the respondent NO. I.. At any rate, the principles laid down by this Court in cases of Ghulam Ali and Fazal Jan (supra) were not followed by the Courts below to meet the ends of justice. This is a fit case for reappraisal of the evidence of the parties in the light of the judgments of this Court. Leave to appeal is, accordingly, granted to the petitioner. M.B.A./W-22/S Leave granted