Pardhanashin Lady

Such lady, if did observe strict "Pardah" and was reluctant to go to male dominated departments/offices, could be termed as a "Pardahnashin" lady

Illustration.

Standards stated.

Principles stated.

Law had laid considerable emphasis that while dealing with Pardanashin ladies, whether taking their statements or striking bargains wherein their vested rights were likely to be disturbed, much care and caution was to be observed and entire process/transaction must appear to be transparent because they belonged to a special and protected class as statutory law had extended enough safeguards in that regard.

Strong proof should be given that she had advice of her relatives, such as husband and sons.

Such assertion had no legal substance as it was in the knowledge of a common man that ladies living away from big cities, were not trained and intelligent enough to deal and handle acts of execution of agreements and attestation of mutations, therefore, the lady although not wearing a veil, was a non-working lady and as such was entitled to protection under the law provided to a Pardanashin lady.

Where transaction is denied, it is for the beneficiary to prove that the lady had executed the same with her own free will under independent advice of her relations fully knowing the nature of transaction

Illiterate lady is deemed to be a Pardanashin lady, though she works without "Parda" in fields

If the lady denies execution of document and challenges the transaction on the basis of fraud and misrepresentation, the onus shifts on the other party, i.e. the beneficiary of the document

Other party has to establish that the document at the time of its execution and registration was read over to the lady and she as a token of its correctness on the basis of independent advice and her intelligence, accepted and thumb-marked the same.

Interest of Pardanashin lady has to be strictly safeguarded by the Court and her consent should not roughly be presumed.

Many Pakistani women live with their husbands abroad and it could not be said by virtue of their going abroad that they had lost their character of being a Pardanashin

Burden of proof in respect of documents purported to have been executed by a Pardanashin lady was on the person claiming the right or interest under said documents

Beneficiary had to affirmatively establish the genuineness of the transaction

Where fraud had been alleged by a Pardanashin lady, the onus was on the person who took advantage of the transaction to prove otherwise.

Such lady had not only executed sale-deed before Sub-Registrar, but had not challenged same till her death, which took place four years thereafter

Husband of the lady was present at time of execution of sale-deed and was one of marginal witnesses

Lady through publication in newspaper had warned public in general that any deed allegedly executed by her would not be acceptable to her unless same had been verified by her counsel or attorney

Counsel of the lady as witness had supported sale on payment of consideration

Lady had independent and disinterested advice not only of her husband, but also of her counsel

Dispute between parties started not with regard to genuineness of sale-deed, but over an order of Revenue Officer, whereby mutation entered on basis of sale-deed was cancelled

Sale-deed was still subsisting, which had not been challenged in her lifetime-Held, evidence on record showed that she had complete knowledge and full understanding about the contents of sale-deed.

Court should be very careful in recording findings as to execution of any agreement by an illiterate and Pardanashin lady, if she had challenged it on the ground that it had been obtained from her by fraud.

Even if execution of some document is not denied by the illiterate and Pardanashin lady, the burden would still be on the person who wants to rely on the document executed by such lady to establish that she signed the document after having become conversant with the contents of, the document without being subjected to coercion, fraud or misrepresentation.

Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies in alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such document were fully concerned and understood by the executant independently and freely.

Where any sale executed by an illiterate lady, it is for the purchaser to establish that she had executed the same of her own free-will under independent advice from her relations and fully knowing the nature of transaction.

Pardanashin lady who was old, illiterate and had weak eye-sight filed suit for declaration challenging alleged gift by her to her daughters

Plaintiff alleged to have been deprived of her valuable property by exercising fraud and undue influence on her by her real daughters

Evidence on record showed that though she had four sons yet none of them was present or accompanied her

Plaintiff alleged that she was made to believe by her daughters that she was being sent to Hajj and on such pretext got her thumb-impressions on certain papers

Plaintiff's such statement stood unrebutted

Daughters (defendants) never appeared before Court below in person or through attorney to rebut, allegations of fraud levelled against them by their real mother

Where plea of fraud and undue influence was raised by plaintiff, who was Pardanashin lady, regarding alleged gift-deed in her plaint and evidence, burden of proof shifted to persons in whose interest deed in question was executed and it was for such persons to establish that deed in question was made by free will of donor Pardanashin illiterate lady and she was made to understand the pros and cons of her act

Evidence on record did not disclose that any special care or precaution had been taken by Sub-Registrar, scribe of deed or marginal witnesses

Allegations of fraud and undue influence remained unrebutted on record

Findings of Appellate Court in decreeing plaintiff's suit were maintained while that of Trial Court dismissing suit were set aside in circumstances.

Perusal of oral evidence examined by defendant (husband) indicated that none of the marginal witnesses of such deed previously knew plaintiff (wife) and had come to know about her for the first time when she allegedly executed document in question

Both marginal witnesses admitted that none of close relatives of plaintiff accompanied her at the time of execution of said document

Plaintiff being Pardanashin lady, law required abundant caution to be exercised while dealing with her regarding such transaction

No justification was pointed out that while , giving permission to her husband for taking second wife, instead of receiving something in lieu thereof, she would relinquish her right of debt, which was available to her as per Nikah deed

Plaintiff had denied execution of document and also relinquishment of Dower amount, therefore, some unimpeachable evidence should have been brought on record to show that plaintiff had entered into alleged transaction voluntarily or had actually signed or thumb-marked relinquishment deed

Even no attempt was made by defendant to get alleged signatures of plaintiff examined through expert or alleged thumb-impression of plaintiff identified from experts of Finger Print Bureau

Statement of defendant showed that none of relatives of plaintiff accompanied her at the time of execution of document in question

Defendant had two stories regarding dower money viz. that he had paid specified amount to plaintiff which was returned to him.subsequently and that plaintiff while giving permission to him for re-marrying had also agreed to replenish dower amount

Such stories were mutually destructive and highly incredible

Evidence of detettdant anc his witnesses relating to genuineness of document in question way contradictory

No lacuna having been found in judgments and decrees passed by Courts below, no interference was warranted in concurrent findings of Courts below in circumstances

Constitution of Pakistan (1973), Art.199.

Non-taking of such plea was not material for in circumstances of each case, Court can itself come to conclusion whether a lady was or was not Pardanashin lady.

Decree on basis of alleged agreement to sell, purportedly executed by Pardanashin lady was granted by Trial Court and affirmed in appeal

Courts have to be very cautious while dealing with documents purportedly executed by Pardanashin ladies

Document purportedly executed by illiterate Pardanashin lady has to be proved beyond any shadow of doubt by that person who relied upon such document

Courts below by placing onus of proof upon defendant (Pardanashin) lady had committed material illegality and irregularity and misread evidence by holding that alleged deeds were duly executed by illiterate Pardanashin lady

Court had to satisfy itself that document -executed by such lady and its subject-matter was within her full knowledge and comprehension and that she .understood about the nature and effect of transaction with independent application of mind and that execution of such documents was independent and voluntary

In absence of such ingredients document in question would not be deemed to be genuine

Plaintiff had failed to establish that alleged documents were independent, voluntary and with complete knowledge of defendant lady

Documents in question, in fact were not sale-deeds but agreement to sell

Decree on basis of such documents was not valid

Plaintiff, thus, failed to establish their claim; therefore, judgments and decrees of Courts below were set aside by High Court and plaintiff's suit was dismissed in circumstances.

Where any person transacts with a lady or was beneficiary of such transaction he was required to prove by positive evidence that at the time of entering into transaction in question independent advice was available to the lady and that she had entered into such transaction with her free consent and full knowledge of contents/particulars of transaction

Such advice having not been rendered to lady and person holding power of attorney in spite of his authority having been cancelled a day earlier, transaction effected by him on, behalf of lady was without lawful authority and not binding on her.

Every Muslim woman was presumed to be a Pardanashin lady unless otherwise proved.

[Burden of proof].

Plaintiff, although a Pardahnashin lady had actively participated in sale transaction and had also thumb-impressed mutation of sale in presence of her son who had signed the same in English alongwith Lambardar of the village

Plaintiff, by her such participation, therefore, did not suffer from any handicap

Plaintiff was required to prove her case and to have established fraud or collusion as alleged by her in plaint with regard to transaction of sale but she failed to prove the same

Transaction of sale could not be controverted on basis of evidence on record.

Claim of a lady to be a "Pardanashiri" would depend upon the factum as to how she happened to confront her domestic, social and business affairs

Such aspect being a question of fact, same was to be proved through evidence provided that such fact had been alleged/claimed in pleadings

Where lady had never claimed to be a Pardanashin lady in her plaint, she would not become "Pardanashin lady" merely because she happened to be a woman.

Appellant being a married woman had come to the house of her step-brothers at the time of Chehlum of their father when her husband was not with her and stayed there for about two months where she was treated very nicely

Alienees respondents thus, stood in fiduciary relationship with alienor appellant when she alienated the property in question

In absence of independent advice, transaction in question could not be sustained.

While effecting service upon Pardanashin ladies special care had to be taken to inform them of the filing of suit against them

Effort should be made to personally serve Pardanashin ladies in the presence of their close relatives.

Where father claimed ownership of land in question, on basis of gift from her daughter, he failed to establish satisfactorily that his daughter had gifted her land to him voluntarily and executed the gift deed for it

In presence of such daughter's own sons and daughters, there was net sound reason for her to donate her entire estate to her father

Transaction of gift in question, was, therefore, improbable and unnatural

Onus to prove voluntary execution of deed of gift lay upon father who was its beneficiary which he failed to establish

Transaction of alleged gift was, thus, , a void instrument which was not binding on plaintiff lady.

(Gift).

Pardhanashin Lady Surrender document (renouncing rights in inheritance) purportedly executed by two Pardanashin and ignorant ladies on 13-10-1972

Such document finding reference in the application of defendant made on 22-6-1972 viz. much earlier in time than the surrender document itself

Inconsistencies in defendant's evidence showed that there was nothing but blatant attempt to usurp property of two helpless, Pardanashin and ignorant ladies

Burden to prove facts against them or execution of document in case of Pardanashin/ignorant ladies would lie on the person alleging such facts or execution of document adverse to such ladies

Mortgage deed, surrender deed and the agreement of sale purportedly executed by ladies, having not been proved, no case was made out by defendant who was not found entitled to property in question.

Burden to prove execution of such document relied upon by petitioner and payment allegedly made by petitioner as mentioned therein, was heavily upon petitioner who failed to discharge the same

Petitioner did not produce respondent ladies before Trial Court in support of his alleged compromise deed

There being no legal error in the judgments of three forums below, in rejecting petitioner's claim, leave to appeal was refused.

Statement made by illiterate lady in a proceeding where house in question was not the subject-matter of lis without there being any evidence about availability of independent advice, and being without consideration

Such statement was not sufficient to prove transaction of relinquishment of right in immovable property in absence of any other independent evidence of transaction.

Presumption would be that they had absolutely no knowledge about the passing of the decree against them unless and until it was shown that they had acquired knowledge of the decree prior to the time on which they had alleged to have acquired knowledge

Onus was always on the other side to show that the transaction or the events in question, where ladies were involved had in fact taken place as alleged

Principle relating to onus involving transaction by ladies, could be pressed into service while deciding the question, as to whether service of defendants ladies had been effected in accordance with law

Such principle having been ignored defendants ladies could not be deemed to have been served.

Beneficiaries of such document were bound to establish by highly satisfactory and strong evidence that not only the document in question was executed by such Pardanashin, illiterate lady but also that such lady had fully understood the contents of the document in question.

To prove genuineness of transaction entered into with old and illiterate lady interested party must discharge necessary onus to the effect that lady had executed agreement of sale with her free mind after having independent advice at her disposal.

Contention of applicant that his deceased father being very sick was in the same position as a Pardahnashin lady, therefore, he should have availed independent advice before signing application for compromise

Deceased, being not so sick as not to understand the compromise, there was .no need of such advice in circumstances.

Petitioner lady had sought declaration to the effect that she continued to be the owner in possession of land in question, notwithstanding attestation of mutations of alienation from her side in favour of respondent as the same were based on fraud and collusion and thus were ineffective

Petitioner's such suit was dismissed by trial Court; decreed by Appellate Court but appellate judgment was reversed by High Court in its revisional jurisdiction

Circumstances which had gone against petitioner's plea of fraud on the plea regarding protection to a pardanashin lady were; that she had actively participated in the transaction; had not suffered any handicap and had also thumb-marked certain entries there being no explanation for the same

Apart from such factual aspect, husband of petitioner had appeared with her during mutation proceedings and she appeared several times and her interests were then fully protected even if questions relating to her being a Pardanashin lady were brought under scrutiny

One of the transactions being an exchange, petitioner while alleging fraud regarding the entire exchange, had accepted the property received in exchange and was not willing to give it away, thus wanting to avoid that part of exchange transaction in which she had to part with her property given in exchange of the property retained by her

Petitioner could not have been allowed both the benefits

Fact whether petitioner was a victim of fraud was doubtful

Neither allegations regarding fraud and collusion had been accepted by Courts below nor it seemed that petitioner suffered from any practical disability as a Pardanashin lady

Case was not such in which any of the principles laid down in Ghulam Ali's case reported as PLD 1990 SC 1, would be helpful to petitioner

Leave to appeal was refused in circumstances.

Pardansheen lady was entitled to greater protection under law.

Compromise having been allegedly executed at a village different from the one where said lady resided and no male member of her family was shown to have accompanied her to the place of execution of compromise deed

No attempt was made to identify thumb-impression of the lady

Lady, before executing such deed had no independent advice

Lady was, thus, not a willing party to the alleged compromise.

[Compromise].

Burden of proof in respect of a document purported to have been executed by a 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

Rule is also applicable to ignorant and illiterate women.

[Burden of proof].

Pardhanashin Lady A Parda observing lady is not necessarily a Pardanashin lady-Pardanashin lady is a lady who does not appear in public according to her religious belief or according to rules of custom followed by her.

Pardhanashin Lady Plea of being a Pardanashin lady, held, would not be available to a lady who had been a lady doctor and was still so??Such lady being not illiterate and Pardanashin, her admission before Registrar of having received sale price would not need any further proof.

Plea of being Purdanashin lady, held, would not be available to a 'lady who had been Managing Director of a Company and had been .running affairs thereof for a number of years.

Lady appearing in public ; appearing before Court to give evidence and regularly collecting monthly rent of her propertySuch lady, held, could not be regarded as Pardanashin lady.

Such lady is one who remains behind curtain and has no communication except from behind pardah with any male person save a few privileged relations or dependants-Such lady has no access to independent advice other than from such persons

Pardahnashin lady as a matter of rule is not ignorant, weak-minded having no capacity to understand her affairs because of living in seclusion.

S. 100-Suit-Collusive proceedings-Husband of appellant admittedly not a party to suit or any previous proceedings described as being collusive-Nothing on record to show any collusive proceedings having taken place-Suit even if assumed to be brought under advice of somebody, such fact not to have effect of converting suit into collusive proceedings-Every citizen, possessed of right to seek advice from well wishers and such advice, held, cannot have effect of converting suit into collusive proceedings.

Execution of document-Rule for protection of pardanashin lady executing a document.-[Document].

Doctrine governing transactions entered into by pardanashin and illiterate women.

Transfer of Property by-Transferee must Prove affirmatively that transfer was result of free will of Pardanashin-Independent advice-Opportunity for, necessary in case transferee stands in position of confidence.