Pardanasheen lady

2020 PLD 338 SUPREME-COURT Judicial Precedent

Illiterate village womenTransaction involving property

Illiterate village women were to be treated at par with Parda-Nasheen ladies and where a transaction involved anything against their apparent interest, it must be established that independent, impartial and objective advice was available to them and the nature, scope, implication and ramifications of the transaction they were entering into was fully explained to them and they understood the same.

2020 CLC 688 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

O.XXVI, R. 1, O.V, R. 3, Ss. 75 & 132Suit for declarationPardanasheen ladyAppointment of local commission to record statement

Defendant moved application for appointment of local commission to record her statement on the ground that she was a Parda observing lady, which was dismissed

Validity

Status and claim of being a Pardanasheen lady by itself was a question of fact which had to be determined on the basis of evidence and material produced on record

Defendant had executed special power of attorney and filed written statement as well as constitutional petition

Nothing was on record that said documents were attested at the residence of defendant which had negated her version

Court had discretion to appoint local commission depending on the facts of each case

Local commission was to be appointed for the examination of a Pardanasheen lady unless her application was not based on mala fide or would not amount to an abuse of the process of the Court or it might not into injustice to any party

Court could not delegate powers to the local commission to decide material issues where the matter should be decided by direct evidence

Power to record such evidence could not be delegated to the local commission

Findings recorded by the Courts below were neither perverse nor suffered from any illegality or irregularity

Constitutional petition was dismissed, in circumstances.

2020 PLD 184 ISLAMABAD Judicial Precedent

Arts. 30, 34, 35 & 36Registration Act (XVI of 1908), Ss.17 & 49Specific Relief Act (I of 1877), Ss. 12, 42 & 54Suit for specific performance of agreement to sellPardanasheen ladyUnregistered documentOnus to proveRecord tamperingEffectPlaintiff sought specific performance of agreement to sell duly executed by defendant on behalf of pardanasheen ladyTrial Court dismissed suit and judgment and decree was maintained by Lower Appellate Court

Plea raised by plaintiff was that she had paid consideration amount and documents were admitted to be signed by original allottee

Validity

Admission of signature by original allottee on 'authority letter' was in ignorance of her rights and same was made erroneously

Mere admission regarding signatures on 'authority letter' without admission regarding its contents was of no use therefore, same could not be relied upon

Original allottee was an illiterate lady and in this regard, plaintiff was burdened with heavy responsibility to discharge onus that no fraud was committed while executing 'authority letter'

Power of attorney required registration in terms of S.17 of Registration Act, 1908

Document conveying transfer of title or authority to transfer required compulsory registration

In case of non-registration in terms of S.49 of Registration Act, 1908 it had no legal effect

'Authority letter' had no legal sanction to convey any right or title on behalf of original allottee in favour of defendant to execute agreement with plaintiff

Agreement to sell, even though was conceded by defendant had no legal value

High Court declined to interfere in concurrent findings of both courts below as no legal defect was found and both courts rightly passed judgments and dismissed suit for specific performance

Concurrent findings of facts could not be interfered with as there was neither any error nor any factor of misreading or non-reading of evidence available on record, even no illegality was observed therein

High Court directed defendant to return entire amount of sale consideration and additional compensation to plaintiff as same was received by him through agreement to sell from plaintiff

Revision was dismissed accordingly.

2020 PLD 129 ISLAMABAD Judicial Precedent

Arts. 30, 34, 35 & 36Registration Act (XVI of 1908), Ss.17 & 49Specific Relief Act (I of 1877), Ss. 12, 42 & 54Suit for specific performance of agreement to sellPardanasheen ladyUnregistered documentOnus to proveRecord tamperingEffectPlaintiff sought specific performance of agreement to sell duly executed by defendant on behalf of pardanasheen ladyTrial Court dismissed suit and judgment and decree was maintained by Lower Appellate Court

Plea raised by plaintiff was that she had paid consideration amount and documents were admitted to be signed by original allottee

Validity

Admission of signature by original allottee on 'authority letter' was in ignorance of her rights and same was made erroneously

Mere admission regarding signatures on 'authority letter' without admission regarding its contents was of no use therefore, same could not be relied upon

Original allottee was an illiterate lady and in this regard, plaintiff was burdened with heavy responsibility to discharge onus that no fraud was committed while executing 'authority letter'

Power of attorney required registration in terms of S.17 of Registration Act, 1908

Document conveying transfer of title or authority to transfer required compulsory registration

In case of non-registration in terms of S.49 of Registration Act, 1908 it had no legal effect

'Authority letter' had no legal sanction to convey any right or title on behalf of original allottee in favour of defendant to execute agreement with plaintiff

Agreement to sell, even though was conceded by defendant had no legal value

High Court declined to interfere in concurrent findings of both courts below as no legal defect was found and both courts rightly passed judgments and dismissed suit for specific performance

Concurrent findings of facts could not be interfered with as there was neither any error nor any factor of misreading or non-reading of evidence available on record, even no illegality was observed therein

High Court directed defendant to return entire amount of sale consideration and additional compensation to plaintiff as same was received by him through agreement to sell from plaintiff

Revision was dismissed accordingly.

2019 MLD 401 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 5, Sched, 7, 9, 17-A & 18Family Courts Rules, 1965, R. 4Civil Procedure Code (V of 1908), S. 132 & O. VI, R. 15Suit for recovery of maintenance allowance, dower and dowry articlesAppearance of parties in personScopeRepresentation through counsel/attorneyScopeDefendant-husband living abroad submitted wakalatnama and written statement without his signaturesStriking of defenceScopePersonal appearance of a party before Family CourtPardanasheen ladyAppearance through agentExemption from personal appearanceAppointment of a counselAuthority of agentIrregularity in the wakalatnamaEffectWife filed suit against her husband who lived abroad and his father

Wakalatnama and written statement signed by the father of husband were filed but without signatures of defendant-husband

Family Court struck-off defence of defendant-husband

Validity

Suit with regard to family matters could be filed before Family Court by presentation of a plaint

Court on presentation of plaint was to fix a date for appearance of defendant issue summons for appearance on the date fixed therein

If defendant received summon then he should appear before the Family Court and file written statement with list of witnesses

Pardanasheen lady/party to a family suit might be permitted to be represented by a duly authorized agent

Defendant was not bound to appear in person before Family Court

Right to be represented through counsel was a statutory right

Any person who was of the age of majority and was of sound mind might employ an agent through an express or implied authority

Said agent could perform every lawful action which was necessary in order to do such act

When a party was not required to personally appear then he could be represented through attorney or counsel

Appearance of the parties before the Court would include appearance through duly constituted attorney

Court had to confirm genuineness of pleadings/presentations and consent of parties to be represented having not been obtained by way of force, fraud or undue influence

Counsel appointed by a party to the proceedings could represent his/her client before the Court

Execution of wakalatnama was the written instrument and proof of such appointment

If from the record it was clear that party to the proceedings had appointed a counsel, mere omission of certain particulars in the wakalatnama was irregularity which would not vitiate the relations between the counsel and client

Family Court could strike-off defence if order for interim maintenance had not been complied with and decree the suit

If conduct of defendant was contumacious and he had willfully disobeyed the lawful order of Family Court then Court had jurisdiction to strike off the defence

Written statement was signed by one of the defendants and counsel in the present case

Submission of power of attorney at belated stage was not fatal

Order for striking-off defence in presence of valid written statement and that too without notice was unwarranted and not sustainable in the eyes of law

Non-signing of pleadings as well as wakalatnama were mere irregularity and said defect could be cured at any stage by allowing the party to put his/her signatures on the same

If any of the defendants had signed written statement then it would be deemed as valid written statement before the Court

If there was any defect in the power of attorney then same could be cured by filing power of attorney duly attested by the Consulate of Pakistan abroad

Defendant had been restrained from defending his case through impugned order which was against law; said order being illegal and final in nature was amenable to the constitutional jurisdiction of High Court

Defendant could be represented through duly authorized agent

Wakalatnama should be returned to the counsel for the defendant for resubmitting the same before the Trial Court

Defendant-husband was allowed to place on file the power of attorney executed in his favour

Impugned order passed by the Family Court was set aside

Constitutional petition was allowed in circumstances.

2017 SCMR 1110 SUPREME-COURT Judicial Precedent

Pardanasheen ladyGift by an illiterate village lady

Principles

2017 CLC 277 PESHAWAR-HIGH-COURT Judicial Precedent

Arts. 49, 79, 80 & 117Suit for declarationExecution of sale deedDocumentProofTransaction with Pardanasheen ladyLong standing entries in the revenue recordScope

Contention of plaintiffs was that they were owners in possession of suit property and alleged mutation in favour of defendants was based on fraud

Suit was decreed concurrently

Validity

Whoever desired court to give judgment as to any right or liability dependent on existence of fact must prove such facts

Plaintiff had failed to prove the alleged sale as well as execution and contents of sale deed

If a document was required by law to be attested, same should not be used as evidence until two attesting witnesses at least had been called for the purpose of proving its execution

If no such attesting witnesses were found, it must be proved that witnesses had either died or could not be found and document was executed by the person who purported to have done so

Mere production of sale deed would not absolve the plaintiffs from proving the contents of the same

Mere statement of plaintiffs with regard to death of witnesses of disputed sale deed would not absolve and exonerate them of their obligation to prove the contents of the same

Burden of proof would lie on the person claiming benefit and title from the transaction with old infirm, illiterate persons, women under influence of elders of family and parda observing ladies

Plaintiffs being beneficiaries of disputed sale had to discharge their burden but they had failed

Defendants being co-owners and co-sharers were owners in every inch of joint property till partitioned

Plaintiffs had failed to prove sale deed through cogent and tangible evidence

Long standing entries in the revenue record were in favour of defendants and plaintiffs had failed to rebut the said entries through evidence

Long standing entries in the register of record of rights would carry presumption of truth and could not be controverted by mere oral evidence unless proved otherwise by sufficient evidence

Courts below had ignored the facts and circumstances of the case reflecting from the record and evidence

Findings recorded by the courts below were illegal, result of misreading and non-reading of evidence

Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed

Revision was allowed in circumstances.

2017 CLC 84 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 12 & 22Qanun-e-Shahadat (10 of 1984), Art.79Transfer of Property Act (IV of 1882), S.41Suit for specific performance of agreement to sellBona fide purchaserProtection envisaged under S.41 of Transfer of Property Act, 1882ConditionsOstensible ownerPardanasheen ladyReasonable careScopeOne person could not transfer to another a title or a right greater than what he himself possessedVendee could not take more than what the vendor could sell

Purchaser/vendor/transferee of an immovable property could only avail the protection provided under S.41 of Transfer of Property Act, 1882 if he fulfilled the conditions

Transferor of suit property, in the present case, was neither true owner nor the ostensible owner of the same but was identifier of Pardanasheen ladies who were true owners and sellers of the disputed property

Fact that consideration amount did not reach the true owners would not affect the transferee's position of making payment of sale consideration for the disputed property

Plaintiff was not bona fide purchaser of suit property and he did not exercise reasonable care for availing protection provided under S.41 of Transfer of Property Act, 1882

Plaintiff had not been able to prove the condition precedent for being entitled to avail the protection provided under S.41 of Transfer of Property Act, 1882

If a single condition precedent was not fulfilled then the purchaser could not avail the protection provided under S.41 of Transfer of Property Act, 1882

Plaintiff had failed to prove agreement to sell as per mandate of Art.79 of Qanun-e-Shahadat, 1984

Plaintiff was not entitled for exercise of discretion in his favour for specific performance of contract

Impugned judgment and decree passed by the Trial Court were based on correct appreciation of evidence

Appeal was dismissed in circumstances.

2017 YLR 1020 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Suit for declarationInheritanceOral giftIngredientsProofProcedurePardanasheen ladyContention of plaintiff was that gift mutation was based on fraudSuit was dismissed concurrentlyValidityNothing was on record as to when, where and in whose presence alleged oral gift was madeDefendants were required to prove the transaction of oral gift independently irrespective of execution of gift mutationDefendants had failed to prove oral gift and its ingredients through any independent and confidence inspiring evidence

No official from revenue side was produced to prove the scribe and signatory of alleged gift mutation which was mandatory under the law

Plaintiff had not gifted her share of land in favour of her brothers and her thumb impression was obtained by playing fraud and misrepresentation

Donor was an illiterate and Pardanasheen lady and was completely ignorant with regard to transaction of gift mutation

No family member of plaintiff was accompanying her when the alleged gift mutation was attested

Alleged gift mutation was dubious and liable to be set aside

Courts below had decided the lis on the basis of surmises and conjectures

Impugned judgments and decrees passed by both the courts below were set aside and suit was decreed

Revision was allowed in circumstances.

2016 SCMR 1225 SUPREME-COURT Judicial Precedent

Property transaction undertaken by an old, illiterate, village 'Pardanasheen' ladyOnus to prove

Mandatory conditions to be fulfilled so as to prove such a transaction to be legitimate, stated.

2016 SCMR 1225 SUPREME-COURT Judicial Precedent

Property transaction undertaken by an old, illiterate, village 'Pardanasheen' ladyOnus of proofTransaction denied by the lady

Burden would shift to the beneficiary of the transaction to prove the same.

2016 SCMR 1225 SUPREME-COURT Judicial Precedent

Property transaction undertaken by an old, illiterate, village 'Pardanasheen' ladyFraud and deceptionConnivance of defendant and revenue staff in destroying the original mutation

Nature of the transaction, payment of sale consideration, presence of the witnesses attesting the same not proved through evidence

Attesting witnesses giving conflicting statements

Pardanasheen lady not given independent advice

Impugned transaction was set aside in circumstances with the observation that principle of caution in protecting the legitimate rights of the illiterate/rustic village 'Pardanasheen'lady, must be applied vigorously and rigidly.

2016 SCMR 862 SUPREME-COURT Judicial Precedent

Transaction made by "Pardanasheen" ladyAuthenticityProof

Conditions to be fulfilled to establish authenticity of a transaction made by/with a Pardanasheen" lady stated.

2016 YLR 1883 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Contract Act (IX of 1872), Ss. 214 & 215Suit for declarationPower of attorneyPardanasheen ladyExecution of documentBurden of proofMala fideProof ofLimitationTransfer of property by the attorney in favour of his relativeEffect

Contention of plaintiff was that she was owner in possession of suit property and impugned mutation in favour of defendant was fake and fictitious

Suit was decreed by the Trial Court but same was dismissed by the Appellate Court

Validity

Suit mutation was entered and attested by the attorney in favour of his wife without taking the vendor lady into confidence

Vendor lady was confided by her brother for obtaining power of attorney that her property would be managed by him under the said authority

Entry with regard to sale, mortgage, exchange, or gift was a cyclostyle one which in normal course was mentioned as a routine matter

Had it been intended to alienate her property in favour of wife of the defendant then registered deed at the same time could have conveniently been attested

Principal might repudiate the sale if agent had bought the estate for himself in the name of someone else and sale was disadvantageous to the principal

Defendant had transferred the plaintiff's property in favour of his wife without acquainting principal who was a pardanasheen lady

Rights of pardanasheen ladies should be protected when it was established that same had been usurped by male members of the family

Burden of proof with regard to documents purported to have been executed by pardanasheen lady affecting her right or interest in the immovable property would be on the person claiming the right or interest under the deed

Beneficiary of said document was required to prove that contents of deed were understood by the lady and it was her free and intelligent act

If executant of said document was illiterate then same must have been read over to her

Mere efflux of time would not sanctify the action based on fraud and misrepresentation

Time would run from the date when right to sue would accrue and fraud and misrepresentation came in the knowledge

When mutation was challenged on the basis of fraud and misrepresentation then beneficiary would be bound to prove original transaction through cogent and trustworthy evidence

Beneficiary would have to face the consequences on failure to prove the genuineness of the transaction

Mere entry of mutation did not create any right as same was not a document of title

Revenue record would be maintained only for fiscal purposes which did not create nor extinguish right of a party unless proved to the satisfaction of court that same was genuinely entered into and attested after payment of consideration with free consent of vendor

Beneficiary of mutation had failed to prove genuineness of the transaction

Impugned mutation was not sustainable in circumstances

Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored

Revision was allowed in circumstances.

2016 CLCN 41 PESHAWAR-HIGH-COURT Judicial Precedent

Burden of proof in respect of document purported to have been executed by an illiterate 'Parda Nasheen' woman affecting her right or interest in the immovable property, was on the beneficiary of document

Beneficiary of document was to establish that same was understood by the lady and was with her free and intelligent act

If the lady was illiterate, then document must have been read over to her in her native language.

2016 MLD 1372 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.12Agreement to sellProofProcedureDiscretion of court to pass decree for specific performanceScopePardanasheen ladyIndependent adviceRequirementsCourt was not bound to grant a decree for specific performance in every case even if an agreement to sell was proved

Court had discretion to grant decree for specific performance after scrutinizing the evidence in favour of plaintiff who had proved the case that he was entitled for such decree

Court could refuse to grant such decree when there was even a slightest doubt

Plaintiff was bound to prove agreement to sell through concrete, convincing and unimpeachable evidence

Stamp-Vendor along with his record should be produced to prove that stamp paper was issued on a specific date in favour of its purchaser to prove agreement to sell

Petition-Writer along with his register of petition writing must be produced to prove that agreement to sell was written on specific date

Two marginal witnesses of agreement to sell should be produced to prove the same and struck of bargain

Stamp paper for agreement to sell was not purchased by the vendee

Contradictions in the evidence of plaintiffs were on record

Alleged agreement to sell had not been proved by the plaintiffs which was not a genuine document

Plaintiffs were required to prove delivery of possession of suit property but same had not been proved

Executant of agreement to sell was a pardanasheen illiterate lady

No independent advice was available to the said executant of agreement to sell

Contents of agreement to sell were not read over to her

Impugned judgment and decree passed by the Appellate Court were set aside and suit was dismissed

Revision was accepted in circumstances.