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Petitioner: JANAT BIBI VS Respondent: SIKANDAR ALI and others
Court Name: Supreme Court of Pakistan Judge(s): Naimuddin, Ghulam Mujaddid Mirza, Nasim Hasan Shah Title: JANAT BIBI vs SIKANDAR ALI and others Case No.: Civil Appeal No, 263 of 1978 Date of Judgment:1990-03-31 Reported As: PLD 1990 Supreme Court 642 Result: Appeal accepted
JUDGMENT
JUDGMENT ' NAIMUDDIN, J.---This appeal, by leave, is from the judgment of the Lahore High Court dated 4-10- 1976 whereby it dismissed the regular second appeal of the appellant. 2. The facts leading to this appeal are that House No, 173-P, Block B, Mandi Tandlianwala, Tehsil Samundri, District Lyallpur (Faisalabad) was transferred to the father of the appellant and a provisional transfer order was issued in his favour by the Settlement Department on ?-5-1960, He died on 15-6-1961 leaving the appellant and her mother Mst. Hashmat Bibi as legal representatives. 3. According to the appellant, respondent No, 3, who was an Assistant Sub-Inspector in the Police Department and father of respondents Nos. 1 and 2, was residing in the neighbourhood of appellant. He sympathized with the appellant and her mother offered to help them by securing for them permanent transfer deed in their names and getting entered their names in the provisional transfer order and asked them to execute a power of attorney in his favour. Relying on his representation, the appellant and her mother affixed their thumb-impressions on certain paper as they were illiterate. This paper was later on used partly as a mortgage deed and partly as an agreement to sell the house for a consideration of Rs,6,650 which was acknowledged to have been received at the time of execution of this document. 4. This led the appellant to file a suit for declaration and injunction in the Court of Civil Judge II Class, Lyallpur. 5. According to the averments made in the plaint the appellant's mother died in November, 1961 when respondent No, 3 came to condole her death and informed the appellant that all the documents of transfer of the house had been prepared by the Settlement Department and only the final order remained to be passed. He represented that a receipt had to be filed on a stamp
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paper in the Settlement Department which was to be got attested from the Tehsildar, Samundri. Believing this representation, the appellant put certain thumb-impression on the stamp paper and some other paper and also made a statement before the Tehsildar that she had executed the receipt. Later on she discovered that respondent No, 3 had got sale-deed registered in favour of respondents Nos.1 and 2, who are his minor sons on the said stamp paper for a consideration of Rs,6,500 although the value of the house was at least Rs, 15,000 and she was not paid any part of the consideration. She further averred that she was in possession of the house and in major portion of the house her tenants were residing. 6. The Court on the pleadings of the parties, inter alia, framed the following issues:- "(1) Is Mst. Janat Bibi, plaintiff, in occupation of the disputed house and thus entitled to seek mere declaration, without prayer for possession? 0. P. (1-A) Is Mst. Janat Bibi an illiterate pardahnashin lady? O.P. (3) Is the impugned sale-deed dated 10-10-1963 without consideration? 0. P. (4) Has the sale-deed been obtained by fraud and misrepresentation? 0. P. (4-A) Is the disputed sale-deed genuine? Is it not tainted with fraud or undue influence? 0..P, 7. The trial Court decided all the issues in favour of the appellant and decreed the suit as prayed by the judgment and decree dated 29-3-1968. 8. The respondents filed an appeal with the Additional District Judge, Lyallpur, who accepted the same by reversing the findings on issues Nos. 3, 4 and 4-A and consequently dismissed the suit by the judgment dated 2-10-1970. He however, confirmed the findings of the trial Court on issues Nos. 1, 1-A and 2. 9. Aggrieved by the judgment and decree of the Additional District Judge, the appellant filed a Second Appeal in the Lahore High Court. Before the High Court, it was urged that the Additional District Judge had set aside the findings of the trial Court without examining or adverting to most of the reasons which prevailed with the trial Court amongst them being: (1) The proceedings were not started against the tenants under the mortgage deed. (2) The respondents should have obtained receipt separately for payment of the consideration of Rs, 6,650. (3) The document Ex. D/2 although a document of mortgage was not proved to have been attested in accordance with the provisions of the Transfer of Property Act. (4) Even Ex. D/1 has not been proved to have been executed by the appellant and there is an unexplained discrepancy of the consideration amount in Exs. D/2 and D/1. While in the former the amount of consideration is said to be Rs, 6,650 in the latter it is Rs, 6,500 only. 10. The High Court, however, by the judgment dated 4-10-1976 dismissed the Second Appeal with costs. 11. Leave to appeal was granted by this Court from the said judgment. 12. While granting leave, it was observed by this Court: "Whether the view of the trial Court be correct or not, it is clear that the first appellate Court did not examine with sufficient care the reasons given by the trial Court for decreeing the petitioner's claim. However, like the first appellate Court, the High Court was not impressed by the evidence of the petitioner, and as far as we can see, in coming to this conclusion, the learned Judge who heard the second appeal relied on the fact: ' that the appellant has a husband and an adult son and other members of the family of her husband, e.g., P.W. 9. This is not a case where anyone could make a misrepresentation to her with impunity. She could obtain the advice of male members. The appellant has not been able to rebut the evidence produced by the respondents. I find no force in this appeal and dismiss it with costs." ' The petitioner has therefore filed this petition for leave.
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' As all the Courts held that the petitioner was an illiterate pardahnashin lady, Mr. Shaukat submitted that the burden of proving the genuineness of the sale was on the respondents. This is correct and as observed by the Privy Council in Kali Bakhsh Singh v. Ram Gopal Singh 41 Indian Appeals 23, the law about transactions with pardahnashin ladies: "demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained- to, and was really understood by the grantor. In such cases it must of course be established that the deed was not signed under duress, but arose from the free and independent will of the grantor. The law as just stated is too well settled to be doubted or upset...." ' But as we observed in dismissing the petitioner's appeal, the High Court had observed that the petitioner could have obtained the advice of the male members of her family and therefore Mr. Shaukat submitted that this view is based on a misreading of evidence, because it was not in dispute that the petitioner was not living with her husband because of differences with him. In this background the submission was that the view taken by the first appellate Court and the High Court was contrary to the principles laid down by the Privy Council in the observations quoted." 13. We have heard Mr. A.R. Shaukat for the appellant and Ch. Khalilur Rchman and Maulvi Sirajul Haq for the respondents. 14. It is well settled that the question whether a lady is a pardahnashin lady is a question of fact (See Bank of Khulna Ltd. v. Jyoti Prokash Mitra and others AIR 1940 Privy Council 147). It is also well settled that the burden of proof in respect of a document purported to have been executed by a nardahnashin worn an affecting her right or interest in the immovable property is on the person claiming the right or interest under the document. It is for him to establish affirmatively that it was substantiality understood by the lady and it was really her free and intelligent act. If she is illiterate, it must have been read over to her. Here we may quote the observation of Sir George Lowndes in (Valluri) Ramanamma v. Marina Virana AIR 1931 Privy Council 100:- "The law as to disposition of property by pardahnashin ladies has been discussed by the Board on many occasions. It is for the person claiming the benefit of any such disposition to establish affirmatively that it was substantially understood by. The lady and was really her free and intelligent act. If she is illiterate, it must have been read over to her; if the terms are intricate they must have been adequately explained, and her degree of intelligence will be a material factor; but independent legal advice is not in itself essential: See per Lord Sumner in Faridunnisa v. Mukhtar Ahmad AIR 1925 PC 204." 15. Reference may also be made to some more cases on the above question: (i) In Shambati Koeri and others v. Jago Bibi 29 Indian Appeals 127, though the mortgage bond was read out to the respondent, there was no evidence that it had been explained and that she had understood it. It was observed at page 131 of the report as follows:- "It is well-known rule of this Committee that `in the case of deeds and powers executed by Purdahnashin ladies, it is requisite that those who rely upon them should satisfy the Court that they had been explained to and understood by those who executed them': Sudisht Lal v. Mussummat Sheobarat Kunwar LR 8 Ind. Ap. 39, 43. From the preceding observations it is, in their Lordships' opinion, clear that there is a want of satisfactory evidence of that kind in the present case." (ii) In Mati Lal Das v. Eastern Mortgage and Agency Co. Ltd. And others AIR 1921 PC 118, it was held by the Privy Council at page 122 of the report as follows:-- "As has been said, Priya Moyi was .a purdahnashin lady. The Board has always held that the circumstances, under which a purdah nashin woman agrees to sell or mortgage property in which she is interested, must be carefully examined in order to ascertain that she had independent advice and 'that the lady had sufficient intelligence to understand the relevant and important
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matters, that she did understand them as they were explained to her, that nothing was concealed, and that there was no undue influence or misrepresentation'." See Sunitabala Debi v. Dhara Sundari Debi Chowdhurani (1919) 47 Cal. 175. (iii) In Shrimati Saratkumari Dasi v. Amullyadhan Kundu and others 1923 PC 13, Lord Atkinson rules:- "According to the principles which have always guided the Courts in dealing with sales or gifts made by purdahnashin ladies 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 a real and bona fide one and was fully understood by the lady whose property is dealt with. In Shampati Keori v. Jago Bibi (supra), Sir Andrew Scoble said: "It is a well-known rule of this Committee that in the case of deeds and powers executed by purdahnashin ladies it is requisite that those who rely upon them should satisfy the Court that they have been explained to and understood by those who executed them." (iv) In Mst. Faridunnisa v, Munshi Mukhtar Ahmad and another 1925 PC 204, Lord Sumner at page 209 of the report observed as follows:-- "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. Wajid Khan's case (1891) 18 Cal. 545, Sunitabala Debi's case (1919) 46 Ind. App. 272. ' Proceeding further the learned Lord observed:- "Again, the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it, under circumstances which establish adoption of it with full knowledge and comprehension. Sundisht Lal's case (1881) 7 Cal. 245; Sham Koer's case (1902) 29 Cal. 664; Sajjid Hussain's case (1912) 34 All. 455. Further the whole doctrine involves the view that execution by such a"person, although unaccompanied by duress, protest or obvious signs of misunderstanding of want of comprehension, is in itself no real proof of a true understanding mind of 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 in the process. The extent and character of the explanation required must depend on the circumstances. Length, intricacy, the number and complexity of the dispositions, or the unfamiliarjty of the subject-matter, are all reasons for requiring an increased amount and efficiency of explanation. Thus a matter not likely to attract the attention of the executant in itself ought not to be relied on as binding, unless her attention has been directly drawn to it (Sham Koer's case (1902-03) 29 I. A. 137)." 16. The above rule applicable to pardahnashin ladies has been extended to ignorant and illiterate women. Reference may be made to Graham, J.'s dictum in Chainta Dasya v. Bhalku Das AIR 1930 Cal. 591, which is as follows:-- "The rule of law so far as pardahnashin women is concerned is well-known and has been clearly laid down in many decisions of the Privy Council. It is true that most of those decisions relate to the case of pardahnashin ladies. We have not been referred to any case in which the principle has been extended to the case of other women who do not come within that class; but that does. Not seem to be any reason why a rule which is applicable to pardahnashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not apply to the case of a poor woman who is equally ignorant and illiterate and is not pardahnashin simply
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because she does not belong to that class. If this view of the matter were adopted the effect clearly would be to confer an unfair advantage upon rich women as compared with poor women. The object of the rule of law is to protect the weak and helpless, and it should not, in my judgment, be restricted to a particular class of the community." 17. It would be of advantage if the observations of Miner, J. In the same case are also quoted here:- - "It appears and it is not disputed that the plaintiff is an illiterate village woman. She is not in the strict sense of the term pardahnashin woman and the question arises whether the same protection which is thrown round a transaction entered into with a pardahnashin woman should be extended to the plaintiff in the present case. It is true that outside the class of regular pardahnashin women it must depend in each case on the character and position of the individual woman, whether those who deal with her are or are not bound to take special precautions that her action should be intelligent and voluntary and to prove that it was so in case of dispute. That was laid down by the Judicial Committee of the Privy Council in the case of Hodges v. The Delhi and London Bank Ltd. (1901) 23 All. 137. So even in the case of woman who is outside the regular pardahnashin class it is for those who lived with her to establish that she had the capacity of understanding the transaction that was entered into and that she entered into the transaction voluntarily and with full knowledge and import of what the transaction meant." 18. As to the question whether the appellant is an illiterate pardahnashin lady there are concurrent findings of the Courts below that she is so which have been confirmed by the High Court and therefore, evidence on this point need not be discussed. 19. In the light of the principles discussed in the above-cited cases we would now examine whether the contents of the sale-deed (Ex. D/1) thumb-impressed by the appellant were explained to and understood by her and whether the respondent was able to discharge the burden of proof of the execution of the sale-deed by her. 20. The appellant in her examination-in-chief has stated that she had put her thumb-impression on power of attorney, but the same was not read over to her. She denied to have thumb-impressed any such document as the sale-deed (Ex.D/1) as according to her she had not sold her house nor had she received the consideration of Rs, 6,500 as stated therein. She stated that she had thumb- impressed the document on the representation that she was signing a receipt. ' She further stated that the Tehsildar, Muzaffar Khan, D.W. 1, had not read over or explained the contents of Ex. D/1 to her nor did he inquire from her whether she had thumb-impressed the deed after understanding the same. She further stated that she was taken to the Tehsildar on the pretext that she had to sign a receipt before the Tehsildar. She was not at all cross-examined on her statement that the Tehsildar had not read over or explained the contents of the sale-deed to her. 21. In this case two documents are involved, one is the so-called mortgage deed-cum-agreement to sell (Ex. D/2) which is said to have been thumb-impressed by the appellant and her mother, who later died. This document also contains acknowledgement of receipt of Rs, 6,650. The second is the sale-deed (Ex. D/1) which was got registered before the Tehsildar, which was said to have been executed by the appellant but it is a common ground that no consideration was paid at the time of registration of the sale-deed as the case of the respondents is that it was paid when the mortgage deed was executed. 22. It was contended before the Trial Court that when the execution of these documents was not denied then their execution need not be proved. On this contention the Trial Court observed that "what the plaintiff admits is not the execution but barely her thumb-mark, which she according to her own belief once put on an attorney and in the second round on the receipt for procuring the documents." Accordingly the Trial Court held "in these circumstances, it is not possible to hold that
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the execution of Ex. D/1 or D/2 has been admitted by the, plaintiff. The two documents therefore, necessarily have to be formally proved." 23. Dealing with the proof and referring to the evidence of two marginal witnesses of Ex. D/2, namely, D.W.5 and D.W. 9, the Trial Court said that none of the two witnesses claimed that the appellant or her mother thumb-marked Ex. D/2 in their presence or that they had acknowledged the execution in their presence. 24. As regards Ex. D/1, there are three attesting witnesses, two of them were not at all produced to prove the execution. The Trial Court did not believe the evidence of respondent No, 3 as being interested. The Trial Court then referred to the evidence of scribe of Ex. D/1, who appeared as D,W. 3 and admitted that none of the witnesses including respondent No, 3 had signed the sale-deed in his presence. He also could not identify the appellant and say whether the appellant was the same lady who had thumb-marked the sale-deed. 25. Referring to the evidence of the Tehsildar (D.W. 1) who has stated that he obtained the appellant's thumb-impression in his presence after narrating the contents of Ex. D/1, the Trial Court observed that he could not even recognise the appellant on the date of his evidence. He did not even know the identifier personally who identified the appellant. He accepted the representation of the identifier that he was Lumbardar. The Tehsildar, however, conceded that he had not read over entire sale-deed to the appellant which supports the statement of the appellant as mentioned before. Dealing with the evidence of the Tehsildar further, the Trial Court observed that "The fact that he has registered it (sale-deed) also indicates, that even if he had not completed the formalities he must own to have completed all the legal formalities determined from relying on his statement, in view of the evidence on the record. It is also so, because of the manner in which the document had to be explained to the plaintiff (appellant). And as has been laid down in PLD 1961 Dacca 140." ' Dealing with the evidence of the Stamp Vendor (D.W. 2), the Trial Court observed that he could not identify the appellant and could not say whether it was the appellant who thumb-marked his register. 26. The learned Additional District Judge referring to the evidence of the appellant regarding Ex. D/1 observed that:- "She states that the contents of Ex. D/1 were not read over to her by the Tehsildar. D.W. 1 has also stated that he did not read out the document itself to the respondent but enquired from her about the transaction and she admitted the same as correct and then he attested the document. It is not necessary and even proper to read out such document to an illiterate lady because she may not understand the language of the same. It is as such better and proper that she should be told that the document purports to make such and such transaction and to enquire whether such transaction has been effected by her or not." 27. Dealing with Ex. D/2 and referring to the evidence of D.W. 5 and D.W. 9, the learned Additional District Judge observed that their evidence proved it beyond doubt that the appellant and her mother had executed the agreement deed (Ex. D/2) with their free will and consent after understanding their contents thereof. In this regard the learned Additional District Judge has failed to notice the observations of the learned Civil Judge that "none of these two witnesses claim that the appellant or her mother thumb-marked Ex. D/2 in their presence or that they acknowledge the execution in their presence. Therefore, it is Clear that the requirement of the law that the contents of the documents must be read over and explained to a pardahnashin and/or illiterate lady were not fulfilled in respect of Ex. D/2. 28. In the above circumstances it could not be said that these documents were read over or explained to the appellant or in the case of Ex. D/2, to her mother. Therefore the respondents failed
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to discharge the burden of proof of the due execution of Ex. D/1 and Ex. D/2 by the appellant and her mother. 29. Dealing with the objection that originally on the sale-deed (Ex. D/1), names of Lal Khan (D.W. 10) and Farzand Ali (D.W. 11) did not appear as marginal witnesses, as admitted by the scribe (D.W. 2) and the same have been written afterwards, the learned Additional District Judge tried to explain that originally, Ahmed Hussain and Sher Muhammad were shown as witnesses of the said document. Therefore, the document was also witnessed by D.W. 10 and D.W. 11. But this does not mean that the said two persons witnessed the document somewhere after the execution or after the registration. Had the same been witnessed afterwards that fact could be proved by the production of an attested copy of the sale-deed. But the question does arise why D.W. 10 and D.W. 11 signed the document when it was already witnessed by Ahmad Hussain and Sher Muhammad? This again makes genuineness of the document doubtful. 30. Another objection to the authenticity of the sale-deed discussed by the Trial Court was that according to the respondents, the entire consideration was paid to the appellant and her mother at the time of execution of the so-called mortgage deed (Ex. D/2) but the mortgage deed (Ex. D/2) recites the receipt of Rs, 6,650 whereas the sale consideration mentioned in the sale-deed (Ex. D/1) is Rs, 6,500. 31. Dealing with this question the Trial Court observed as follows:-- "The defendants do not contend having paid anything at the time of the execution of sale-deed (Ex. D/1). According to the defendants the entire consideration was paid to plaintiff at the time of the execution (Ex. D/2). Ex. D/2 indicates the receipt of Rs, 6,650 whereby according to Ex. D/1, the consideration of the house is fixed at Rs, 6,500. Defendant No, 3 as his own witness explains and their evidence also tends to show that Rs, 6,500 were paid as consideration of the house, whereas the additional sum was paid to the plaintiff for undergoing the expenses of the sale-deed. It precisely comes to this that the expenses of sale-deed were to be borne by the defendants which were paid to the plaintiff and her mother in advance. Why should the defendants have done it, finds no reasonable explanation; why should they not have retained the amount of Rs, 150 with themselves and would have at the proper time instead incurred the expenditure remains a…
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