Fraudulent transaction

2023 CLC 471 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss.22 & 25Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.41Evacuee propertyCivil Court, jurisdiction ofFraudulent transactionConcurrent findings of two Courts belowDispute between the parties was with regard to evacuee land

Revenue hierarchy passed concurrent findings against petitioner declaring mutation in question as bogus / fictitious document

Validity

Parties were venturing to obtain evacuee land and any dispute regarding such property / land could only be adjudicated or settled exclusively at the forum of Settlement Department

Civil Court had no jurisdiction to intrude into the jurisdictional realm of revenue department under S.41 of Pakistan (Administration of Evacuee Property) Act, 1957 and Displaced Persons (Land Settlement) Act, 1958

Even if Civil Court had passed any decree that was without jurisdiction and nullity in the eyes of law or void ab initio and same was in-executable

Both the parties failed to prove title of that person from whom they allegedly derived their title

High Court directed Settlement Authorities to retrieve possession of land in question

Constitutional petition was dismissed accordingly.

2021 CLC 1098 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.42Suit for declarationFraudulent transactionIlliterate ladyBurden of proofScope

Respondents' predecessor-in-interest filed suit for declaration seeking ownership of the land which was allegedly got transferred by the petitioners by means of fraud and misrepresentation

Trial Court dismissed the suit while Appellate Court decreed the same

Validity

Predecessor-in-interest of respondents was an illiterate lady who had filed declaratory suit alleging therein that she had not appeared before the Revenue Officer rather she had no knowledge of the transaction in question nor had she received any consideration amount in that regard

No evidence was available regarding any independent advice forthcoming from her husband or son at the time when the impugned mutation was sanctioned

Petitioners who were under legal obligation to prove the factum of transaction had failed to bring on record any persuasive evidence of the cogent nature

Petitioners had failed to point out any illegality or infirmity in the impugned judgment

Revision petition was dismissed.

2019 CLCN 18 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 3Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11Scheme for Management and Disposal of Available Urban Properties, 1977, Paras. 1, 6, 11, 12 & 30Transfer of Property Act (IV of 1882), S. 41Evacuee propertyAllotment, cancellation ofUrban limitsFraudulent transactions

Allottees of evacuee land were aggrieved of order passed by Notified Officer whereby allotment in their favor was cancelled and land was resumed in favour of the State and validated allotment in favour of appellants

Single Judge of High Court, in exercise of Constitutional jurisdiction, set aside order passed by Notified Officer

Validity

Allotment in favor of predecessor-in-interest of appellants was result of blatant fraud and was void ab initio

Such allotment did not confer any right or title upon fraudulent allottee or any subsequent purchaser from said allottee

Subsequent vendee had to sail and sink with title of their vendor and they were debarred to claim any better title than that of their vendors

Stance of appellants as bona fide purchaser was initially turned down by the Chief Settlement Commissioner which had never been challenged by appellants and attained finality

Appellants themselves had moved application for purchase of said land under S. 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 as well as Scheme for Management and Disposal of Available Urban Properties, 1977, meaning thereby that they themselves abandoned or waived claim of bona fide purchasers

Appellants were precluded to reassert pleas of bona fide purchaser as such protection of S. 41 of Transfer of Property Act, 1882 was not available to the subsequent purchaser

Land in question fell within urban limits of Municipal Committee vide notification dated 12-5-1961 and under notification dated 16-5-1973 as well as S. 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and Paras. 1(d), 11, 12 and 30 of Scheme for Management and Disposal of Available Urban Properties, 1977, thus same could not be allotted against any agricultural claim

Division Bench of High Court set aside findings of the Single Judge of High Court to such extent as same were not in consonance with law on the subject and remaining judgment was maintained

Intra-court appeal was dismissed in accordingly.

2016 SCMR 670 SUPREME-COURT Judicial Precedent

Ss. 53 & 54Liquidator/receiver of an insolvent entity, powers ofVoluntary transfersFraudulent transactionsLiquidator/receiver of an insolvent entity was vested with the power to avoid voluntary transfers made by the insolvent

Likewise, a liquidator/receiver had the power to avoid transactions that may be deemed to constitute fraudulent preferences.

2016 CLCN 22 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 27Transfer of Property Act (IV of 1882), S. 41Suit for declarationFraudulent transactionDefective titleEffectSale of government property by an unauthorized personBona fide purchaserAudi alteram partem, principle ofApplicability

Contention of plaintiff (claiming to be a bona fide purchaser) was that he had purchased the suit property through registered sale deed and mutation had been effected in his favour which could not be cancelled by the revenue authority

Suit was dismissed concurrently

Validity

One could competently transfer a title but he could not transfer what he did not have

Transferee could not claim to have acquired a better title than the one transferor was capable of

What one could not get directly, he could not get the same indirectly

Plaintiff had not sought any declaration with regard to the title of vendor under whom he was claiming and which was the basic/route

Foundation/route of the subject matter was not being sought to be protected by the plaintiff

Where foundation was found defective, the whole superstructure raised thereon should collapse

Benefit of S.41 of Transfer of Property Act, 1882 would be available to a bona fide owner but such benefit/protection was not available to one who had acquired a title from an unauthorized and incompetent person or from the person who had acquired the title through fraudulent mean

Even a bona fide claim could not save 'fraud' from the action of process of law as and when it had come to light

Suit property was a Government property and vendor (under whom the plaintiff was claiming) had got the entry in record of rights fraudulently without any allotment or reference to earlier seller

Vendor, in the present case, was never a legal and lawful owner of the subject matter capable to enter into any lawful transaction of suit property with the plaintiff

Protection of S.41 of Transfer of Property Act, 1882 would not be available against a fraudulently obtained title or with regard to which fraud had been committed

Object of said Act was not to provide a legal protection to an ill-gotten or fraud

Principle of 'audi alteram partem' could not be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of situation

Concerned quarter on coming to the know the fraudulent entry in the name of vendor exercised jurisdiction to cancel the same

Cancellation of such fraudulent entry had not caused any harm to the plaintiff as same was of root entry which had not been challenged

Plaintiff being transferee was to sail and sink with the vendor and his claim if any would lie against the said vendor

Plaintiff had accepted the title of vendor to be fraudulent

Principle of 'audi alteram partem' was not of universal application but would be excluded if importing the right to be heard had the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation had so demanded

Impugned judgments passed by both the courts below appeared to be well reasoned

Only civil court was competent to cancel the registered deed but one could not be entitled to derive his legal character from a fraudulent transaction

No illegality or irregularity had been pointed out in the impugned judgments

Revision was dismissed in circumstances.

2015 SCMR 1704 SUPREME-COURT Judicial Precedent

Illiterate and pardanashin ladyGift made by such lady, genuineness ofFraudulent transaction

Alleged donor, who was an illiterate and pardanashin lady, allegedly gifted suit property to her relatives/alleged donees

Legality

Alleged donees were related to the alleged donor and were in a position to encash her shortcomings

Alleged donor had no reason to make the alleged gift especially when she had five children of her own

Alleged donees failed to discharge the burden of proving the validity of the gift

Alleged donees had sold the suit property to a third party, which party also failed to prove the necessary ingredients of alleged gift

Entries in the revenue record with respect to the purported gift had been managed fraudulently

Appeal was dismissed accordingly.

2014 MLD 993 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.42Civil Procedure Code (V of 1908), O.IX, R.13Suit for declarationEx-parte decree, setting aside ofFraudulent transactionPlaintiffs claimed to be the owners of suit property which was originally a public property

Suit was ex parte decreed in favour of plaintiffs and application for setting aside ex parte decree was dismissed by Trial Court as well as Lower Appellate Court

Validity

All proceedings were fraudulent, when after cancellation of original allotment in favour of plaintiffs, there was complete silence of 19 years and after that on the basis of forged document claiming that payment had been made but payment had no value in the eye of law

Plaintiffs in their plaint asked for performance of some acts and duties, therefore, direction given by Trial Court through ex-parte decree to issue conveyance deed in favour of plaintiffs was not in the jurisdiction of Trial Court

Trial Court had no jurisdiction to pass such decree in favour of plaintiffs and the same were set aside and suit was dismissed

Revision was allowed in circumstances.