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Petitioner: NATIONAL BANK OF PAKISTAN VS Respondent: Mst. HAJRA BAI AND 2 OTHERS
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed, Munawar Ali Khan Title: NATIONAL BANK OF PAKISTAN vs Mst. HAJRA BAI AND 2 OTHERS Case No.: High Court Appeal No, 49 of 1976 Date of Judgment:1985-02-13 Reported As: PLD 1985 Karachi 431 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' MUNAWAR ALI KHAN, J.-This judgment governs two appeals : H. C. A. No, 49 of 1976 and H. C. A. No, 50 of 1976 both filed by National Bank of Pakistan (hereinafter referred to as the Appellant-Bank) against Dawood Yousuf Mithani and his wife Mst. Hajran Bai and legal representatives of his mother Mst. Hanifan Bai. These appeals have arisen from the facti and circumstances wnich are briefly narrated as follows. The respondent Dawood Mithani, the Sole Proprietor of the Messrs United Fleet Ways, who has since been declared insolvent (on 29-5-1967) and hence is no longer party before the Court, had allegedly purchased 14 Truck chassis of F-600-194 W. B. Diesal Chassis from Messrs Ali Auto Ltd. Rit) Rs, 39,100 per unit. The purchase was made in two lots : the first lot of six chassis was purchased for Rs, 2,41.369.89 inclusive of interest payable in 12 equal monthly instalments, first monthly instalment due on 1-3-1966 and the second lot of 8 chassis was purchased for Rs, 3,26,254.17 inclusive of interest payable in equal monthly instalments, first monthly instalment due on 1-1-1965. To ensure the payment of above two sums the appellant-Bank on request of all the respondents issued two separate guarantees. In turn the said Dawood Mithani endorsed a promisory note for Rs, 5,75,000 executed on 2-11-1964 in his favour by the two ladies-respondents, in favour of the appellant-Bank. By way of further guarantee to cover the liability of the appellant- Bank Dawood Mithani executed agreement of hypothecation which was also signed by the ladies respondents, hypothecating the trucks built on the cnassis purchased by him and got the trucks registered with the Excise and Taxation Authorities in the joint name of himself and the appellant- Bank. On failure of Dawood Mithani to pay the price of the chassis due to Messrs Ali Autos Ltd. The appellant-Bank, on being called upon to discharge their liability as per guarantees issued by them paid the entire amount to the said dealers leaving a small sum of Rs, 20,780.83 unpaid at the time
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of institution of the suit. After adjustmens of the payments made by Dawood Mithani from time to time, he still owed Rs, 5,14,124.77 to the appellant-Bank for recovery of which the latter filed a Suit No, 20/1966 against 'urn and the two ladies respondents on 22-1-1966. ' The suit was resisted by all the three respondents. They denied having. Requested the appellant- Bank to issue any guarantee to cover the payment due to Messrs Ali Autos Ltd. On account of the alleged transaction of truck-chassis. They also denied the execution of hypothecation deed in favour of the appellant-Bank. It was also denied by them that the ladies-respondents executed promissory note in favour of the respondent-Dawood -Mithani or that the latter endorsed the said promissory note in favour of appellant-Bank. The ladies-respondents expressed their complete ignorance about the alleged transaction between the appellant-Bank and respondent Dawood Mithani. They also raised a plea of their being illiterate Pardanashin ladies and denying' execution or signing of any document for guarantee or hypothecation. However they stated that the respondent Dawood Mithani had obtained their signatures on several blank papers and had also fraudulently taken away title deeds of their properties. They further stated that when they were produced before the District Registrar, Karachi, they refused to admit the contents of the document intended to be registered and accordingly the said document was returned unregistered. ' On the other hand the respondent Dawood Mithani pleaded that Mr. Fakhuruddin Burni who was employed as Superintendent with appellant-Bank being his close ftiend persuaded him to start transport business for which he promised to get him 8 chassis of trucks from Messrs Ali Autos Ltd. Under the guarantee of the appellant-Bank so that he was to repay the price in the instalments. Accordingly, he admitted, the appellant-Bank issued a guarantee for Rs, 3,20,000 with his consent. He further averred that Mr. Burni booked another lot of 10 chassis without his knowledge and consent for which the appellant-Bank also issued guarantee on their own. However from the said lot only 6 chassis were delivered whereupon Mr. Burni got the previous guarantee substituted for fresh guarantee for six chassis only. He further stated that as soon as he came to know that the latter six chassis were obtained in his name, he asked Mr. Burni to return the same. But after some time Mr. Burni told him that the dealers were not willing to take back the sold chassis. The respondent-Dawood Mithani further averred that Mr. Burni persuaded him to take the delivery of the said lot of chassis on the assurance that he would get him facility of overdraft. According to him Mr. Burni promised to have the case of these chassis adjusted after disposal of the trucks. This respondent's further plea was that when the deal about the purchase of chassis came to the knowledge of high officers of the appellant-Bank, Mr. Burni was taken task and thereupon he requested the said respondent, for temporary deposit of title deeds of some property until the trucks were sold so as to save him from disciplinary action. On this he handed over to him the file containing the title documents of the properties of the ladies respondents. ' On the above pleadings, the following issues were framed :- "(1) Whether the defendants did not execute and endorse the Promissory Note in favour of the plaintiff ? If so, its effect ? (2)Whether the defendants Nos. 2 and 3 are not the guarantors of the defendant No, 1 ? If so, its effect ? (3)Whether the defendants Nos. 2 and 3 were not aware about the transaction which took place between the plaintiff and defendant No, 1 ? If so, its effect ? (4) Whether the plaintiff is liable to return the title deeds to the defendants Nos. 2 and 3 ? If so, its effect ? (5) Whether the defendants Nos. 2 and 3 are illiterate Pardanashin ladies and the signatures on the documents were obtained by defendant No, 1 on plain papers ? If so, its effect ? (6) Whether Mr. Burney of the plaintiff played any fraud against the defendant No, 1 ? (7) Whether the entries of the statement of Account are not correct ?
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(7)-A. Whether any of the trucks belongs exclusively to the plaintiffs ? (8) Whether the suit is premature ? (9) To what relief, if any, the plaintiff is entitled,? ' It may be noted here that the ladies-respondents also brought a Suit No, 310 of 196b against the Appellant-Bank and respondent Dawood Mithani for declaration that the detention of the title deeds of theii properties is illegal, void and in operative, Their further prayer was to restrain the appellant-Bank from using the said deeds in any manner. The case of the ladies-respondents in their later suit was that two properties: one known as `Hajran Manzil' at Nazimabad, Karachi and another a house on Lawrence Road, Karachi were respectively owned-by Mst. Hajran Bai and Mst. Hanifan Bai. The respondent Dawood Mithani being the husband of the first lady plaintiff and son of the second lady plaintiff supervised the said properties and paid all taxes and other dues in respect theteof. In the middle of 1965 the said Dawood Mithani took away the title deeds of the aforesaid properties and also obtained the signatures of the ladies-plaintiffs on some blank papers. He ultimately took the ladies-plaintiffs to the Registrar of Karachi on the pretext of registration of some documents. When questioned by the Registrar if they had given their consent for registration of mortgage document in respect of their above properties in favour of the appellant-Bank, they denied, refusing to sign the documents. They showed complete ignorance about the alleged transaction between the two defendants. Their plea was that there was no privity of contract between the parties nor they had executed any guarantee for repayment of the dues that the defendant-Dawood Mithani owed to the appellant-Bank. Accordingly they prayed for the reliefs mentioned above. ' Although Dawood Mithani : admitted the case of the lathes-plaintiffs and reiterated the stand he had taken in the first mentioned suit, the appellant-Bank contested the suit. It was claimed on behalf of the appellant Bank that the ladies-plaintiffs had not only executed the documents as mentioned in the first suit but also had executed the agreement to mortgage their properties, the title deeds whereof they handed over to the appellant-Bank as security for the Bank guarantees that were given by the appellant-Bank on behalf of defendant-Dawood Mithani. It was further averred by the appellant-Bank that it was only subsequently .That the ladies-plaintiffs in collusion with defendant Dawood Mithani wriggled out from their commitment as regards mortgaging of their properties and refused to have the mortgage deed registered t with consent of In the second suit the issues after having been recast the parties were framed as under : "(1) Whether the plaintiffs did not execute and endorse the promissory note in favour of the plaintiffs ? (2) Whether the plaintiffs are not guarantors of the defendant No, 2 ? (3)Whether the defendant No, 1 is liable to return the title deeds to the plaintiffs ? (4)Whether the plaintiffs are illiterate Pardanashin ladies and the signatures on the documents were obtained by the defendant No, 2 on plain papers ? (5)Whether Mr. Burney of the defendant played any fraud against the defendant No, 2 ? (6)To what decree, if any are the plaintiffs entitled ? ' After due consideration of the evidence led by the parties, the learned Single Judge disposed both the suits by the common judgment dated 14-5-1976. The Suit No, 20 of 1966 was decreed only against Dawood Mithani with costs but the same was dismissed in respect of the other defendants. The Suit No, 310 of 1966 was however decreed with costs. The appellant-Bank have challenged the above judgment of the learned Single Judge in two separate appeals. In Appeal No, 49 of 1976, the findings of the learned Single Judge in the Suit No, 310 of 1966 have been called in question whereas Appeal No, 50 of 1976 has arisen from the findings arrived at in the Suit No, 20 of 1966. ' The arguments of the learned counsel for the parties were heard for more than two days and with the assistance of the said learned counsel, we also went through the evidence and other
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documents available on record. ' The points relevant for disposal of these appeals, which were hotly contested at the bar may be put as under : (a) Whether the two ladies-respondents were illiterate and/or were Pardanashin woman. (b)Whether the said ladies-respondents had signed the documents in question particularly the promissory note. (c) Whether the said ladies-respondents had signed the said documents particularly the promissory note with full knowledge and understanding as to what was contained in those documents. ' The contention of the learned counsel for the appellant was that the findings of the learned Single Judge in regard to the above ladies being illiterate and Pardanashin are erroneous as they are neither in conformity with the law nor with the facts available on record. According to him the authorities relied upon by the learned Single Judge in support of his above findings are not applicable. The learned counsel contended that no plea was raised by the ladies-respondents that they were illiterate and Pardanashin ladies and hence entitled to the protection available to such women. He further submitted that evidence outside the pleadings was not permissible and hence could not be taken into consideration. The learned counsel cited a number of authorities in support of his arguments. ' The first case relied upon by the learned counsel is of Ch. Bros. Ltd. v. J. C. Coop. Bank Ltd. (1), wherein it was held : "No evidence should have been allowed to be adduced on facts, which (1) 1968 SCMR.804 had not been raised in the pleadings or incorporated in the issues framed." ' An other case is of Hamchand v. Pearey La! (I), wherein it was held :- "Their Lordships desire to observe that though the case has been decided on all the points which arose on the evidence led by the parties, the procedure adopted by the trial Court of allowing the parties to adduce evidence on points not raised in the pleadings or issues was irregular and should not have been allowed without amending the pleadings and raising the necessary issues." ' The third case in the same context is of Messrs Fairland Export Syndicate v. Messrs Bengal Oil Mills Ltd. Karachi (2), in which it was observed as follows : "It is therefore not possible to allow the defendant to set up altogether a new case during the course of evidence. A plea on which the cue is based must be specifically stated in the pleadings and cannot be afterwards introduced." In the fourth case on the same point reported as Yusuf v. Hashim Bhoy & Co. And others (3), it was held :-- "I am afraid I cannot do so having regard to the laws of pleadings and the well-settled rule that a party cannot prove a case different from what has been pleaded by it." ' It was claimed on behalf of the two ladies-respondents that they were both Pardanashin and illiterate. In this connection reference may be made to paragraph 5 of the written statement filed by the said ladies-respondents. It is reproduced as under : "With reference to paragraph 5, these defendants have no knowledge of the facts stated in the paragraph and as such do not admit the contents thereof. It is, vehemently, denied that these defendants are a party to the hypothecation agreement or any other document and that they were explained or informed of the contents of any document by any person in respect of the plaintiff's dealings with the defendant No, 1. These defendants, being Pardanashin ladies, at no time appeared before the plaintiff for signing or executing the alleged hypothication deed." ' It would appear from the above that the plea of the ladies-respondents being Pardanashin has been raised by them. They have further stated that none of the documents in question was
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explained to them nor they were informed of the contents of the said documents. Therefore the arguments of the learned counsel in this regard is without force. The authorities referred to above and relied upon in this connection are inapplicable. Moreover the above plea of the ladies- respondents finds support from respondent-Dawood Mithani who has stated that his wife (Mst. Hajrani Bai) is illiterate and cannot read and write even Gujrati. According to Mst. Hajran herself she cannot write her name or signature except that she can copy it when someone writes her name above, she can copy it at the bottom. Another witness Abdul Qadir, who was substituted as one of the legal representatives of Mst. Hanifan in her place and as her son has stated thus : "My mother was not a literate person. (1) AIR 1942 P C 64 (2) PLD 1970 Kar. 125 (3) PLD 1966 Kar. 456 ` ' She could barely sign her name." All this evidence led in support of the ladies-respondents' case stands unrebutted. ' While dealing with the first three issues which more or less cover the points of controversy agitated at the bar, the learned Single Judge in paragraphs 23/25 of the impugned judgment observed : "In this case the precise question is whether in the facts and circumstances of the present case defendants Nos. 2 and 3 who are Muslim ladies not used to appearing in public are entitled to the protection of any special rule of evidence so far as the proof of execution of the document in question is concerned. It is well-settled that in the sub-continent Pardanashin ladies have been given a special protection in view of the Special Conditions of the times : they are presumed to have imperfect knowledge of the world, as by the parda system they are practically excluded from the Social intercourse or communion with the outside world. Thus a rule has been evolved for the protection of Pardanashin ladies whereby a duty has been cast upon a person claiming under an instrument signed by a Pardanashin lady not only to prove the execution of the document but also that the nature of the transaction contained in the document was fully understood by such executing Pardanashin women the law regarding Pardanashin ladies equally applies to illiterate and ignorant women." ' In support of the above views, the learned Single Judge proceeded to examine some case-law. The first case relied upon in this connection is of Privy Council reported as Mst. Farid-un-Nisa v. Mukhtar Ahmed (1). Apart from the passage borrowed from this authority, which finds mention in the impugned judgment, Lord Sumner who wrote the judgment in .The above-reported case went on to observe as follows :- "The case of an illiterate Pardahnashin lady, denuding herself of a large proportion of her property without professional or independent advice is one on which there is much authority. Independent legal advice is not in itself essential [Kali Buksh Singh's case (1914) 36 All. 81=41 I A 23 - 16 0 C 378=18 C W N 282=12A LJ 115=15 MLT130=19CLJ 172=1 0 L J 67=26 M 121=1914)M W N 112=21 I C 985=16 Born. L R 147 (P C). After all, advice, if given, might have been bad advice, or the settlor might have insisted on disregarding it. The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it." ' In the same judgment his Lordship further held :- "Further, the whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, proteSt or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained. If it is in a language which she does not understand, it must, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer
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(1) AIR 1925 P C 204 in the process. The extent and character of the explanation required must depend on the circumstances." ' The other case noticed by the learned Single Judge on the same proposition is of Mst. Hawa v. Muhammad Yousuf and others (1). The two passages from this case as are reproduced in the impugned judgment clearly show that repeated judicial pronouncements have provided a cloak of protection to Pardanashin ladies who on account of their ignorance, inexperience and social conditions are not able to understand the nature of business transaction, and therefore in their case the onus is always on the person who takes advantage of a transaction to show that the transaction was actually conceived and put into practice by the disposer herself. ' In the same judgment following the above-reported case of Mst. Faridun-Nisa, it was further held "The question of fraud is quite separate from the doctrine that governs the transactions entered into by Pardanashin or illiterate women. This rule shall apply even if there is nothing in the nature of coercion, or deception in the transaction." ' The third case that found mention in the impugned judgment is of Taj Din v. Abdur Rehman (2). In this reported case the learned Single. Judge noted that the rule enunciated in the above-cited authorities as applicable to Pardanashin or illiterate women is extended to cover even an illiterate male person. While 'expressing the views for the D. B. Of this Court, Wahiduddin, J. Of (as he then was) observed in the above case as follows : "It is quite true that ordinarily in cases where a document is admitted to have been signed by a party and the payment of consideration is denied, the onus to prove that the consideration was not paid or the document was obtained by misrepresentation or fraud is on the party who alleges these acts. But in law, in those cases where a party admits his signature but contends that his signature was taken upon a blank paper, such statement is taken as a denial and not execution of the document. In Mirza Gorgani v. Bhola Mal Nibal Chand AIR 1934 Lah. 293, a Division Bench of the Lahore High Court accepted this view as correct on the ground that an admission is to be taken as a whole and not piecemeal, and if a party makes a qualified statement, it cannot be used as against him apart from that qualification. In our opinion this principle should be followed more strictly in the cases of Pardanashin and illiterate persons. Judging the present case in this light, admittedly the appellant is an illiterate person and not conversant with the English language. The onus to prove the execution of the document lay heavily on the respondent." ' Reference may also be made to the case reported as Sri Ram v. Nand Kishore and another (3), where in' the grounds upon which the "deed was impugned were that the donor at the time of executing the document was an ignorant and Pardanashin lady, 63 years of age, suffering from weak intellect on account of facial paralysis etc. It was held :- "There is no doubt that when a person relies upon a deed of gift executed by a Pardanashin lady, who is such in the true meaning (1) PLD 1969 Kar. 324 (2) PLD 1963 Kar. 825 (3) AIR' 1925 Luli. 196 of the term, that party must prove not only that the transaction is free from any pressure exercised to procure the making of the gift, but also that the donor thoroughly understood the nature and the effect of her action. The rule has been repeated as recently as 1921 in a judgment of the Privy Council in Kamawati v. Digbijai Singh AIR 1922 P C 14, the following observations of Lord Shaw who delivered the judgment of the Board appear at page 530 : `It is established law of India in these circumstances that the strongest and most satisfactory proof ought to be given by the person who claims under a sale or gift from them that the transaction was real and bona fide one and fully understood by the lady whose property is dealt with'."
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' On the other hand, the learned counsel for the appellant has cited following authorities in support of his viewpoint : (1) R. B. Man Singh v. Nawalakhbati AIR 1923 Pat. 492. (2) Mt. Barkatunnissa v. Debi Bakhsh A 1 R 1927 P C 84. (3) Fayyazuddin v. Kutub-ud-Din AIR 1929 Lah. 309. (4) Mt. Govindi v. Ganga Prasad and others AIR 1933 All. 955. (5) Tanga Bai v. Yeswa nt Jog AIR 1945 P C 8. ' In the first case of R. B. Man Singh, it was observed : - "Starting from the elementary principle that every person taking a document from a Pardanashin lady is bound to show affirmatively that the document was her document, that is to say, that she understood the nature of the transaction and the effect of it. The Courts of law have laid down certain rules for assisting them to determine the point, but it is necessary to remember that the rules so laid down are rules of prudence, rather than rules of law, and that their application will depend on the particular facts of each case. As the Judicial committee once pointed out, there is a grave risk of failure of justice, if these rules are moulded into inelastic formulas or crystallized into inflexible rules and treated as of universal application, regardless of the special facts and surrounding circumstances of the concrete case which requires adjudication." ' In the second case of Mst. Barkatunnissa, the Privy Council expressed its views as under :- "As regards the duty of persons who take transfers from Pardanashin ladies to show that they not merely executed the document, but that they understood what they were doing, the law has been laid down in numerous decisions of this Board, and most recently in the judgment delivered by Lord Sumner in Fairudunnisa v. Mukhtar Ahmed AIR 1925 P C 204=47 All. 703=52 I A 342 P C. ' In their Lordships' opinion the way in which the present case should be approached is indicated in the following passage from that judgment: ' The mere declaration by the settlor, subsequently made, that she had not understood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged…
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