P L D 1967 Lahore 391 (PLP)

MUHAMMAD GUL, J.‑This is the plaintiffs, first appeal against the dismissal of their suit in which the reliefs claimed were: (i) a decree to the effect that the registered sale‑deed dated the 31st May 1955, (Exh. V. 5) executed by the plaintiffs' father Babu Chanan Din (defendant No. 2) conveying absolutely 836 Kanals 5 Marlas of agricultural land and an Ihata measuring 8 Kanals 4 Marlas, situate in Chak No. 8/1‑AL, Tehsil Okara, District Montgomery, in favour of his wife Walayat Begum. (defendant No. 1), purporting to be in lieu of her dower stated to be Rs. 50;000.00, be adjudged void and cancelled; (ii) alternatively, a decree for a declaration that the aforesaid sale‑deed being in respect of the ancestral property and not being for consideration or necessity .would not effect the plaintiffs' reversionary rights under the Customary Law governing the parties; and (iii) to either of the above reliefs was added a prayer for permanent injunction restraining the defendant from ejecting the plaintiffs from the land in dispute except under the order of a competent Court.

2. The plaintiffs' father Chanan Din had married four wives. His first wife did not bear him any child. The plaintiffs are his sons from the second and the third wives. Mst. Walayat Begum, defendant No. 1, is his 4th wife and respondents 2 to 6 are children by her who were brought on the record as his legal representatives, after his death during the pendency of the suit.

3. According to the allegation in the plaint, the. property in dispute was purchased by Chanan Din in the year 1939 for Rs. 45,000.00, the amount having been drawn from the sale proceeds of his ancestral land situate in Krishan Nagar, Lahore, and therefore, the suit land purchased as aforesaid partook of the nature of the ancestral property. It was alleged that the sale of the property in dispute was without consideration and necessity and was, therefore, ineffectual against the plaintiffs' reversionary rights after the death of their father Chanan Din. It was further alleged that in December 1953 Chanan Din was struck by the paralysis which seriously impaired his physical and cognitive faculties; that by reason of his illness he also lost his speech at about the time of the execution of the impugned sale‑deed and Mst. Walayat Begum procured the impugned sale- deed in her favour by exercising undue influence over her ailing husband. Allegation was also made that at the relevant time, Chanan Din was not possessed of his full senses and, therefore, too, the sale‑deed was void ab initio. An objection was also taken to the validity of the sale‑deed because Chanan Din, despite being assessed to agricultural income‑tax, executed the deed without the sanction of the Collector.

4. Mst. Walayat Begum and Chanan Din in their joint written statement raised a number of preliminary pleas objecting to the frame of the suit, its valuation for purposes of Court‑fee and jurisdiction and the locus standi of the plaintiffs to sue. On merits, the validity of the sale‑deed was maintained on the ground of its having been executed in lieu of dower fixed at the time of the marriage of the defendant and which was recited in the Kabinnama, dated the 18th May 1931 (Exh. D. 4). Allegations as to the incapacity of Chanan Din to execute the sale‑deed or any undue 'influence having been brought to bear upon him by the other defendant were repudiated. 5‑. The judgment of the trial Court dated the 16th December 1957 proceeded on the following issues, the rest not having been pressed, namely:‑ (1) Have the plaintiffs a right to sue for the cancellation of the sale‑deed in the lifetime of the vendor? (2) Is defendant 2 under the undue influence of defendant 1 and was the sale in dispute executed under that influence? (3) Was not defendant 2 in possession of his senses at the time of the sale in dispute and could he not look after his interest? (4) . (5) Is the sale in dispute void for lack of consideration? (6) Are the plaintiffs entitled to raise the points contained in issues 2 to 5 ? . . (12) What was the dower of defendant No. 1? (16) Relief.

6. The learned Senior Civil Judge found that the plaintiffs had no locus standi to sue during the lifetime of their father, more so, when the latter by his written statement jointly filed with his wife Mst. Walayat Begum, affirmed the validity of the impugned sale‑deed and, thereby, fully acquiesced into the transaction. On issues Nos. 2 and 3 the learned trial Court found that Chanan Din executed the sale‑deed Exh. D‑5 of his own free will when possessed of a sound and disposing mind despite his physical disability brought about by his illness. The Kabinama Exh. D‑4, dated the 31st May 1931, produced to prove con sideration of the sale was found to be genuine and the impugned sale was held to be, in essence, an hiba‑bil‑iwrvaz and, therefore, binding,. any inadequacy of consideration for the sale, notwithstanding. Issues Nos. 5 and 12 were disposed of accordingly. On the above findings, issue No. 6 was also found against the plaintiffs. On issue No. 7, the learned trial Court found that the property in dispute .was non‑ancestral, and this made remaining issues on the validity of sale under custom, otiose. The suit was accordingly dismissed.

7. The plaintiff ‑appellants in their memorandum of appeal assailed the findings of the trial Court on all the issues set forth above. However, in the course of arguments, the question for decision narrowed down because Sheikh Aftab Hussain the appellants learned counsel did not question the trial Court's finding as to the non‑ancestral character of the land and, therefore, conceded that the plaintiffs could not claim any relief under custom. The main argument addressed by the appellants learned counsel was: (i) that the plaintiffs' suit was perfectly competent and that at any event, with the death of Chanan Din on 6th July 1956, during the pendency of the suit, any impediment existing at the time of its institution disappeared; (ii) that the Kabinama dated the 18th May 1931 Exh. D‑4 produced in proof of the consideration for the impugned sale deed, was wholly fictitious and, therefore, the sale was void, being without. consideration; (iii) that Chanan Din at the time of the execution of the impugned sale‑deed was not possessed of sound and disposing mind and therefore the deed was void ab initio; and (iv) that at any rate, Chanan Din because of his extreme oldage and feeble mind and body owing to his illness since 1953, was incapable of exercising his free will and judgment and executed the sale‑deed under the undue influence by Mst. Walayat Begum with whom he was living at the relevant time.

8. It would be convenient to dispose of the preliminary objection as to the plaintiff-appellants' locus standi to sue at the outset. On this point, the argument of Sheikh Ghias Muhammad, learned counsel for the respondents was two‑fold. It was argued that vide section 19‑A of the Contract Act, 1872, a contract caused by undue influence is "voidable at the option of the party whose consent was so caused" and; therefore, it at once excluded the plaintiffs from bringing the suit, not being party to the sale. He argued with some emphasis that the plaintiffs did not sue as reversioners under custom and, therefore, their expectancy of inheritance under the Muslim Law of inheritance was a mere spes successions and, as such, they could not have brought the suit during the lifetime of their father. In support of his argument, learned counsel relied upon monograph 52 of the Principles of Muhammadan Law by Mulla, 15th Edition and cited Hassan Ali v. Nazo (I L R (1889) 11 All. 456, 458), Thakir Singh v. Uttam Kaur (A I R 1922 Lah. 295) and 19 I C

255. The next argument was that Chanan Din by admitting in his written statement the validity of the impugned sale‑deed ratified the transaction and the plaintiffs as his heirs and successors‑in‑interest are estopped from attacking its validity.

9. Section 19‑A of the Contract Act, on its plain reading, is an enabling provision; it cannot be read in a sense of being exhaustive or absolute on the subject‑matter to which it relates. As pointed out in Mst. Man Bhari v. Pandi Siri Ram (A I R 1936 All. 672), to hold that section 19‑A of the Contract Act is confined solely to the parties to the contract might lead to some extraordinary results. Persons on their death‑bed are frequently induced to enter into contracts by means of undue influence, yet if the respondent's contention in that case as also in this case, was sound such contracts could but rarely, be set aside. In the precedent case Shravan Gova v. Kashi Ram Devi Jee (A I R 1927 Bom. 384), was also referred to in support of the above view. Indeed, Sheikh Ghias Muhammad had to concede, that subject the Law of Limitation, the plaintiffs could have validly brought a similar suit to avoid the impugned sale after the death of their father. Privy Council judgment in Qurratul Ain v. Nuzhat‑ud‑Dowla (I L R (1,905) 33 Cal. 116), is a clear authority in point. If then, the objection merely is that the plaintiffs could not have sued during the lifetime of their father Chanan Din, then the objection has disappeared on his death on the 5th of July 1956, during the pendency of the suit. In this 4 view of the matter the suit became perfectly competent as from that date. It was held in Valluru Appalasuri and others v. Sasapu Kannama (A I R 1926 Mad, 6), at pages 11, 12 that it is permissible to take notice of the events that happened even after the filing of the suit- including those as to the title of the plaintiffs. This principle has been established by several cases which are noted at the foot of the judgment. Similarly, it was held in Subbarya Chetty. v. Nachiary Amman (A I R 1918 Mad. 143), that Courts have power, in certain circum stances, to grant a decree in a case where the cause of action arose subsequent to the filing of the plaint. In Kanshi Ram v. Jaimal Singh (A I R 1923 Lab. 590), it was also held that in a suit for the recovery of money, decree may be given even though the cause of action has arisen during the pendency of the suit. In each of the above precedents, the Courts leaned to the justice of the plaintiff's cause rather than to non‑suit him on mere technicality. In view of these authorities, whatever initial impediment there might have been in the way of the suit by the plaintiffs during the lifetime of their father, it disappeared with his death, during B the pendency of the suit, and therefore the suit already instituted could proceed unhampered without requiring the plaintiffs to institute a fresh suit for precisely the same relief.

10. Furthermore, the respondents learned counsel's argument against the maintainability of the suit by the plaintiff appellants overlooks the provisions of section 39 of the Special Relief Act, 1877, which, for, the material purpose;‑ reads as follows:‑ "Any person against whom written instrument is void or voidable, who has reasonable apprehension that such instrument, if left oustanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court ‑may, in its discretion, so adjudge it and order it to be delivered up and cancelled." The use of the words "any person" in contradistinction with the words "voidable at the option of the party whose consent was so caused" in section, 19‑A of .the Contract Act given a wide scope to the above section and the relief can, therefore, be, properly claimed not only by the party to the instrument but any person against whom the instrument is void or voidable. It is precisely because of the above provisions that a creditor may sue on behalf of himself and all other creditors to set aside the deed executed by his debtor by which the creditors are defrauded, defeated or delayed within the meaning of section 53 of the Transfer of Property Act. So also it was held in Badri Narain v. Kodosah (28 I C 138), that a person can invoke the provisions of section 39, who had some interest in the land covered by the impugned instrument. ‑In the instant case, the plaintiffs alleged that they were in possession of the entire land iii dispute since it was purchased by their father in 1939. Indeed, it is clear from entries in column No. 8 of the application Exh. P. 38 submitted by Chanan Din for permission for the purchase of the land in dispute that it will be managed by his son, he himself then being a Clerk in the Irrigation Department. The Jamabandis produced in the case, record the plaintiffs' possession at least on a part of the suit land. In these circumstances, it would be only. fair to say that if plaintiffs had left the impugned sale‑deed outstanding, it would have caused them serious in jury in that they would have been dispossessed by their stepmother on the basis of the impugned transfer in her favour. For the forgoing reasons, therefore, we are clear in our mind that the preliminary objection ''raised by the respondents' learned counsel is devoid of substance and the finding of the learned Senior Civil Judge that the plaintiffs had no locus standi to sue notwithstanding Channan Din's death during the pendency of the suit, cannot be sustained. both in principle and on the judicial authority noticed above.

10. On the genuineness of the Kabinama, dated 18th May 1931 (Exh. D‑4) which constituted consideration for the impugned sale‑deed, Mst. Walayat Begum (who was examined on com mission) besides relying upon her own statement, produced Mian Zahur Din (D. W. 111 and Feroze Din Chowkidar (D. W. 12) both of whom are the marginal witnesses of the document. Abdul Hamid (I

3. W. 8) was also produced to identify the signatures of his father Abdul Ghani, who was also an attesting witness to the deed. The evidence of these witnesses, particularly that of Mian Zahur Din, impressed the learned Senior Civil Judge, and we have no reason to differ from his appraisal of the evidence bearing on the point. To rebut this evidence, the plaintiffs examined Feroze Din (P. W. 7) Taj Din (P. W. 10) and Haji Feroze Din (P. W. 12), who stated that they joined the marriage between Mst. Walayat Begum and Channan Din and at the time of marriage the dower was settled at Rs.

32. Din Muhammad (P. W. 8), on the other hand, stated the dower to be Rs. 35‑8‑0 and Muhammad Nazir, plaintiff, himself stated it to be Rs. 32‑8‑

0. According to the plaintiff's witnesses Taj Din son of Shadi, Maulvi Abdul Aziz and Mehar Ahmad Din were also witnesses to the marriage and Maulvi Muhammad Ramzan acted as Nikahkhawn. Of these' persons, Taj Din alone was summoned by the plaintiffs but later given up. According to some of the witnesses examined by the plaintiffs the marriage in question was entered in the Register of Marriages but no such entry has been produced. Muhammad Nazir, plaintiff, admitted in his statement that he made no attempt to find out the whereabouts of Maulvi Muhammad Ramzan who performed the Nikah.

11. To rebut the genuineness of the Kabinama, learned counsel for the appellants referred to the applications made by Chanan Din during his lifetime to the Co‑operative Credit Society, Mozang, asking for the grant of loans. These are marked Exh. P‑1 and P‑

2. According to the entries in these applications, he denied that he owned any debt, but learned counsel overlooked the fact that column No. 9 of these entries referred to debts owing to money‑lenders with rate of interest and instalments, if any. It is obvious, therefore, that this column in Exh. P‑1 and P‑2 could not possibly have referred to the dower debt payable by the applicant to his wife. Reliance was also placed on the sale‑deed dated 2nd February 1941 Exh. P‑51 which Channan Din jointly executed with a number of other vendors, stating that the land sold was free of every kind encumbrances including the dower debt. From this recital in the sale‑deed, it was sought to be argued that it negatived the existence of the Kabinnama in question, otherwise Channan Din would have made a mention of it, in the sale‑deed. With this contention we do not agree. By means of the relevant recital the vendors only warranted that the laud sold was free from all encumberanees, including the dower debt, and it is nobody's case that Channan Din created a charge in favour of Mst. Walayat Begum as respect her dower.

12. Apart from the unsatisfactory evidence produced in rebuttal produced by the plaintiffs, there is no getting away from the circumstances that Mst. Walayat Begum was a virgin of 20 years at the time of her marriage with Channan Din, who was more than twice her age and who had married thrice pre viously. It is therefore no wonder that Rs. 50,000‑0‑0 were settled to be the dower, the entire amount being specified as prompt. Therefore, on the balance of the evidence produced in. proof of the Kabinnama Exh. D‑4, we have no reason to differ from the conclusion, reached by the learned, Senior Civil Judge that it was a genuine document; more so, when it accords with the probabilities of the case.

13. A half‑hearted argument was raised by Sheikh Aftab Hussain, the appellant's learned counsel that even if it be held that Kabinnama Exh. D‑4 was genuine document, then dower must be deemed to have been paid by Channan Din. Learned counsel rested his argument on the entries of bank accounts which tended to show that between years 1949‑52, Channan Din paid large sums of money on to Mst. Walayat Begum's account. She also admitted in her statement, having received Rs. 30,000‑0‑0 in 1952. From this evidence, a presumption was sought to be, raised that these payments were in payment of dower. We cannot allow this plea to be raised at this stage, for the plaintiffs did not raise an alternative plea in their plaint or replication that the dower as alleged by the defendants in their written statement was wholly or partly paid prior to the execution F of the impugned sale‑deed. Secondly, there is not seintilla of evidence to show whether these payments were appropriated towards the payment of dower and were not free gift from a loving husband to his beautiful and favourite wife.

14. The next question that falls for consideration is whether Channan Din was in his senses, that is to say was he in possession of sound mind; this is a sine qua non for the capacity to enter into a contract. It is not very clear from the plaint whether it was the plaintiffs' case that Channan Din had lost all rationality after he suffered the first stroke of paralysis in. 1953, and thus became dis qualified from entering into any contract or incurring other obliga tion. The respondents have, however, examined Ghulam Rasul D. W. and Dr. Abdul Aziz (D. W. 4) who had examined Channan Din at the time when he was to execute the impugned sale‑deed. Both of them testified to the fact they found Channan Din in his proper senses. According to the witnesses Channan Din could talk intelligibly, though, not very distinctly. Add to this, tote evidence of the Sub‑Registrar Mr. Muhammad Sharif (D. W‑ 10), who visited Channan Din's house at the time of the registration of the sale‑deed. This evidence, in our view, amply supports the finding reached by the learned trial Judge that Channan Din was possessed of conscious mind, or that his capacity to enter into contract was in no way impaired by the attack of paralysis which otherwise had crippled him.

15. This brings us to the most vital question in the case, namely, as to whether the impugned sale‑deed was a spontaneous act of Channan Din or whether, as is alleged by the plaintiffs, it was procured by undue influence brought to bear upon him by Walayat Begum, that sole beneficiary of the instrument. It may be conceded that Mst. Walayat Begum was his favorite wife and generosity of a husband towards his wife is well‑known form of manifestation of affection to her. We are also conscious of the fact that Mst. Walayat Begum has succeeded in proving the genuineness of the Kabinnama Exh. D‑

4. But, nevertheless, these two factors together, per se will not establish that the impugned sale‑deed was spontaneous act or that it was a result of his free will or judgment, and not of any undue influence. The impugned sale in so far it purports to transfer the property in dispute, so as to exclude other heirs of the executants from its inheritance, when succession opens, is subject to different consideration it is not to be treated as mere payment of dower debt. There are certain peculiar circumstances in the case which it is not possible to overlook and to which reference will be made presently which at once attract the application of section 16 of the Contract Act, which, for the 'material purpose, reads :‑ "16.‑(1) A contract is said to be induced by undue influence where the relation subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another‑ (a) . (b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of the age, illness or mental or bodily distress. . In Inche Noria v. Shaik Allie ( A I R 1929 P C 3), in which the `donor was a feeble old woman relying entirely upon the donee, who was her nephew, for everything so that she had no knowledge of her own affairs their Lordships of the Privy Council raised the presumption of "undue influence" of the donee over the donor, and held that it was incumbent upon the former to prove that the gift was spontaneous act of the donor acting under the circumstances which enabled her to exercise an independent will and which justified the Court in holding that the case was the result of the free exercise of her will. In A. Y. Palan v. Neelavathia Amman (A I R 1937 P C 50), it was also held that ordinarily the onus of proving undue influence is on the party who sets up that plea, but where the person stands in a position of active confidence to another, onus is on him to prove good faith of the transaction. The beneficial provisions of the section came in for interpretation by the Privy Council in the case of Qurra‑tul Ain v. Nuzhar‑ud Dowla, to which reference has already been made above, and Thakir Ji Maharaj v. Mst. Ram Devi (A I R 1930 P C 131) and the same principle was enunciated.

16. Certain facts in this case are beyond any controversy and, in our opinion, are sufficient to lay a foundation for the application of the provisions of section 16 of the Contract Act as interpreted in the judgments of their Lordships of the Privy Council, referred to above. Channan Din married Mst. Walayat Begum' in 1931, while he was employed as a Clerk in the Irrigation Department on a modest salary. He retired from service in 1944. In 1953, he suffered an attack of paralysis which not only seriously impaired his physical capacity but he also almost lost power of speech. His health appears to have deteriorated to the extent that Mst. Walayat Begum thought it prudent to call two doctors to certify that her husband was in proper senses so as to be capable of executing the sale‑deed.

17. The most striking fact in this case is that although Mst. Walayat Begum was married to Channan Din as early as 1931, it was not until 1955 when her husband almost lay on his death‑bed, that she took into her head to recover her dower by means of sale‑deed in her favour. It is also in evidence that during the time Channan Din remained in service, his entire agricultural property was under the management of his sons, presumably by his previous wives. During this period, Channan Din is not shown to have paid any money. worth the mention to Mst. Walayat Begum. It was only some years after his retire ment as he. advanced in years that he started paying large sums of money from his bank account to Mst. Walayat Begum. Accounts have been produced to show that between the year 1949‑52 Channan Din transferred or paid a total sum of Rs. 55,000 to Mst. Walayat Begum, though in her own statement she admits the payment of only Rs. 30,

000. No explanation whatever is forthcoming as to why Mst. Walayat Begum waited all these long years since 1931 to demand the payment of her dower, till he became so seriously ill and her illness at the, relevant time not only crippled him physically, but seriously impaired his freedom of will and other cognitive faculties. Normally one would have‑ expected her to demand her dower or transfer of property in lieu thereof, during the early years of her marital life, when the success of her marriage for variety of circumstances pointed out above was not very certain and her husband's property remained under the‑ management of his sons by his previous wives. The possibility cannot be entirely excluded that she did not confront him with a demand for the payment of dower by transfer of property in lieu thereof for he might have spurned her demand which in turn might nave affected the harmonious life of the spouses. There is nothing, whatever, to show as to who selected the land for Channan Din for transfer to his wife. Surely he could not do it himself for he was speechless, and he is not shown to have sought the advice of an independent person. Add to this the fact, that according to modest estimate the property was worth well over a lakh of rupees and was being transferred in payment of R s. 50,

000. It is true that the transaction, in essence, is hiba‑bil-iwwaz and will be valid and enforceable any inadequacy of consideration, notwithstanding. But this not to, say that an instrument relating to a transaction in the nature of hiba‑bil‑iwwaz, albeit, obtained by fraud or undue influence of the like, would be valid. There is clear distinction between mere inadequacy of consideration for the transfer of a property and securing its transfer by means of fraud or undue influence for a consideration which is inadequate.

18. It is unnecessary to determine for the purpose of this appeal, whether Mst. Walayat Begum's control over her husband was a result of her devotion to her husband or the latter's antipathy towards the plaintiffs, who were living apart and who seeing him pay to their stepmother large sums of money from his bank account, sought in vain to restrain him by injunction from operating his account and drawing his pension. The fact remains that towards the close of his life, after he suffered the attack‑ of paralysis Channan Din, became increasingly under the influence of Mst. Walayat Begum, and thus all avenues of independent advice in the matter of disposition of his property were closed to him and she took full advantage of this situation.

19. Learned Senior Civil Judge seems to have overlooked these circumstances although they were so obvious in the case. He appears to have fallen into this error by treating issues 2 and 3 as allied , and dealing with them together, although they related to two distinct matters. Issue No. 3 concerned the capacity or the competency of Channan Din to enter into contract depending upon his sanity or soundness of his mind. Issue No. 2 on the other hand, concerned the question so to whether the sale‑deed in dispute was procured by undue influence? The latter question can arise only if there is a capacity to contract but it becomes ineffective owing to exercise of certain external influence or a supervening, event. On the other hand if there is absence of sound mind no contract can be entered at all. Such a contract will be void ab initio and not merely voidable. By treating these two issues together, the learned Senior Civil Judge, on the basis of the evidence of the two doctors and the Sub‑Registrar, who only testified to the proper senses or rationality of Channan Din, unwittingly came to the conclusion that Channan Din was not only possessed of proper senses or sound mind at the time of execution of the sale‑deed but that it‑ was also his spontaneous act. It never occurred to the learned Senior Civil Judge to consider whether, because of his acute distress and physical disability owing to his grave illness, Channan Din needed any independent advice other than that of Mst. Walayat Begum under whose spell passing his last days of earthly life.

20. Having given our anxious consideration to the circum stances surrounding the execution of the impugned sale‑deed, we have come to the conclusion that section 16 of the Contract Act applied to the case and defendant No. 1 has failed to discharge the onus that the impugned transaction was a, spontaneous act of her husband and she did not obtain an unfair advantage over him while he practically lay on his death‑bed, under her sole care and protection. Accordingly, we are con strained to reverse the finding of the trial Court on issue No. 2.

21. The findings of the learned trial Court on the first two issues having been reversed, we accept the appeal, set aside the judgment of the lower Court and adjudge the sale‑deed Exh. D‑5 to be void and of no consequence and order it to be cancelled. A copy of this judgment shall be sent to the Registrar, Montgomery, for necessary entry in the relevant register. In the circumstances of the case, we leave the parties to bear their own costs in this appeal. K. M. A. Appeal accepted.