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Petitioner: Hafiz MUHAMMAD SAEED VS Respondent: Mst. GULZAR BEGUM and another
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Hafiz MUHAMMAD SAEED vs Mst. GULZAR BEGUM and another Case No.: C.R. No. 455-D of 2010 Date of Judgment:2019-05-13 Reported As: PLJ 2020 Islamabad 68 Result: Petition partly Allowed
JUDGMENT
JUDGMENT Through this judgment, I propose to decide civil revision petitions No. 455-D/2010 and 456- D/2010, since they entail common questions of law and fact. 2. During the pendency of the said petitions, Mst. Gulzar Begum, who was Respondent No. 1 in the said petitions, passed away. An application for impleadment of her legal heirs as respondents was filed on 27.10.2014. Notices were issued to her legal heirs through publication in the newspapers "Daily Dawn" and "Daily Jang" of 05.05.2016 whereafter, vide order dated 17.05.2016, her legal heirs other than her son, Mansif Majeed, were proceeded against ex-parte. In this judgment, Mst. Gulzar Begum (deceased) shall be referred to as "Respondent No. 1". 3. Hafiz Muhammad Saeed, the petitioner in the said petitions, impugns the consolidated judgment and decree dated 11.03.2010, passed by the Court of the learned Additional District Judge, Islamabad, whereby (i) Civil Appeal No. 139/2009 filed by Respondent. No. 1 (Mst. Gulzar Begum) and Respondent No. 2 (Munsif Majeed) against the consolidated judgment and decree dated 05.07.2001, passed by the Court of the learned Civil Judge, Islamabad, was allowed and the suit for declaration and permanent injunction filed by Respondent No. 1, was decreed, and the suit for possession and mesne profits filed by the petitioner against Respondents No. 1 and 2, was dismissed, and (ii) cross Objections No. 138/2009 filed by the petitioner against the said consolidated judgment and decree passed by the learned Civil Court, were dismissed. 4. Vide the said consolidated judgment and decree dated 05.07.2001, the learned Civil Court had dismissed Respondent No. 1's suit for declaration and permanent injunction, and decreed the petitioner's suit for possession and recovery of mesne profits. The petitioner and Respondent No. 1 were married. 5. The facts essential for the disposal of these petitions are that on 07.09.1995, Respondent No. 1 filed a suit against the petitioner praying for a declaration to the effect that she is the owner-in - possession of House No. 1049,
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Street No. 109, Sector G-9/4, Islamabad ("the suit house"), having purchased the same for valuable consideration from one Shaukat Iqbal through his attorney , Muhammad Imtiaz. Respondent No. 1 had asserted that the suit house had been transferred in her favour in the records of the Capital Development Authority ("C.D.A.") vide transfer Letter No. CDA/EM/G-9/4/1049/71 dated May, 1985, and that its subsequent transfer to the petitioner was illegal, void ab-initio and ineffective upon her proprietary and possessory rights over the suit house. Furthermore, Respondent No. 1 had also sought the relief of permanent injunction restraining the petitioner from interfering in Respondent No. l's possession over the suit house. 6. Respondent No. 1's case, in her civil suit, was that she was the owner-in-possession of the suit house; that in the year 1986, the petitioner advised Respondent No. 1 to submit an application for exemption from payment of property tax with respect to the suit house on the ground that the same was in self-occupation; that for the said purpose, the petitioner made Respondent No. 1 sign a few papers; that Respondent No. 1 being a pardanashin illiterate lady and having blind faith in the petitioner, signed the papers; that disputes and differences arose between the petitioner and Respondent No. 1, because the former wanted to contract a second marriage and for this purpose, he wanted Respondent No. l's permission; that on Respondent No. l's refusal to grant the petitioner permission for a second marriage, he threatened to divorce her and oust her from the suit house; that the petitioner had also disclosed that the suit house had been transferred in his name; and that since the petitioner refused to transfer the suit house back in Respondent No. l's name, she filed the said suit against him. 7. On 22.12.1996, the petitioner filed a. suit for possession and recovery of mesne profits against Respondents No. 1 and 2. In the said suit, the position taken by the petitioner was that the suit house had been purchased by the petitioner with his own funds; that Respondent No. 1 was merely an ostensible owner of the suit house; that in recognition of the fact that the petitioner .was the real owner of the suit house, Respondent No. 1, on 07.09.1986, transferred the suit house to the petitioner; that since Respondent No. 1 was the mother of the petitioner's children, she was allowed to live in the suit house; that Respondents No. 1 and 2 were merely in permissive occupation of the suit house; that after Respondent No.1 instituted a suit against the petitioner, he revoked the permission given to Respondents No. 1 and 2 to live in the suit house; that Respondents No. 1 and 2 were liable to vacate the suit house and handover its vacant possession to the petitioner; and that the petitioner was also entitled to be compensated for being denied possession of the suit house. 8. The above-mentioned suits were consolidated. The learned Civil Court, on 03.06.1997, framed the following issues:-- "1. Whether the plaintiff Mst. Gulzar Begum is owner in possession of suit house? OPP 2. Whether the transfer in favour of defendant is without consideration, forged, illegal and ineffective? OPP 3. Whether the suit is not maintainable in its present form? OPD 4. Whether the plaintiff has not come to the Court with clean hands? OPD 5. Whether the suit is time barred? OPD 6. Whether the plaintiff is estopped by her words and conduct to file the present suit? OPD 7. Whether the suit is false, frivolous and vexatious, if so, its effect? OPD 8. Whether the plaintiff Mst. Gulzar Begum was benami owner of the suit property? OPD 9. Whether Hafiz Muhammad Saeed is entitled to recover mesne profit at the rate of Rs.5,000/- p.m., if so, for what period? OPD 9-A Whether the plaintiff Hafiz Muhammad Saeed is entitled to the possession of the suit property? 9-B Whether suit titled Muhammad Saeed has been correctly valued for the purpose of Court fee and jurisdiction? 9-C Whether the suit titled Saeed versus Gulzar . Begum is false, frivolous and vexatious and the defendant, is entitled to special costs under Section 35-A CPC? OPD 10. Relief." 9. Respondent No. 1 gave evidence as PW-1 whereas Abdul Majeed gave evidence as PW-2. The petitioner gave evidence as DW-4; the Assistant Management Officer of C.D.A. as DW-1; Haji Abdul Rauf as DW-2; and Muhammad Imtiaz as DW-3. After the recording of evidence, the learned Civil Court, vide consolidated judgment
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and, decree dated 05.07.2001 decreed the suit instituted by the petitioner and dismissed the one instituted by Respondent No. 1. However , the petitioner's prayer for the recovery of mesne profits was turned down. 10. Against the said judgment and decree, Respondent No. 1 preferred an appeal, whereas the petitioner filed cross objections. Vide consolidated judgment and decree dated 11.03.2010, the learned Appellate Court allowed Respondent No. l's appeal and consequently decreed her suit for declaration and permanent injunction. Furthermore, the petitioner's suit was dismissed. The said judgment and decree has been assailed by the petitioner in the civil revision petitions under disposal. 11. Syed Asghar Hussain Sabzwari and Sheikh Khizar-ur Rasheed, Advocates, learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petitions, made submissions in reiteration of the pleadings in the petitioner's civil suit. Furthermore, it was submitted that the suit house was purchased by the petitioner but since the petitioner had to proceed abroad, it was transferred in Respondent No. l's name on 13.05.1985; that subsequently, on 07.09.1986, the suit house was transferred on Respondent No. l's insistence in favour of the petitioner; that after the relations between the petitioner and Respondent No. 1 turned sour, the former divorced the latter on 08.12.1994; that the version put forth by Respondent No. 1 that she was not divorced by the petitioner or that the petitioner wanted to marry again was not correct; that the petitioner was the real owner of the suit house, whereas Respondent No. 1 was simply a benamidar prior to the transfer of the suit house to the petitioner; that Respondent No. 1 did not have the means to purchase the suit house; that on 07.09.1986, the suit house was transferred by Respondent No. 1 on her own accord in the petitioner's name; and that the learned Appellate Court violated the requirements of Order LXI, Rule 31 of the Code of Civil Procedure, 1908 ("C.P .C.") by not setting out points of determination in giving a decision thereon. 12. Learned counsel for the petitioner further submitted that payment for the suit house was made from the joint account held by the petitioner and Respondent No. 1; that the learned Appellate Court erred by not appreciating that Respondent No. 1 had deposed, in her cross-examination, that she had not deposited any amount in the said joint account; that Respondent No. 1 did not bring any evidence on the record to show that she had an independent source of income; that the petitioner had been working abroad and had sufficient resources for the purchase of the suit house; that the mere fact that Respondent No. 1 had a joint bank account with the petitioner does not mean that Respondent No. 1 had contributed in the payment of sale consideration for the suit house; that the petitioner had not been cross-examined about the cash payment of Rs.1,30,000/- and Rs.20,000/- made by him for the purchase of the suit house; that Respondent No. 1 was unable to establish that the transfer of the suit house by Respondent No. 1 in favour of the petitioner on 07.09.1986 was fraudulent; and that the judgment and decree passed by the learned Civil Court is well reasoned and therefore liable to be restored whereas the judgment and decree passed by the learned Appellate Court is liable to be set-aside. Learned counsel for the petitioner prayed for the civil revision petitions to be allowed and for the impugned judgment and decree passed by the learned Appellate Court to be set-aside. In making their submissions, learned counsel for the petitioner placed reliance on the judgments in the cases of Muhammad Zaman vs. Sheikh Abdul Hamid (2002 CLC 1209), Muhammad Bakhsh and 4 others vs. Province of Punjab through District Collector, Multan (now Lodhran) and 2 others (1994 SCMR 1836), Brig. (R) Sher Afghan vs. Mst. Sheeren Tahira and 6 others (2010 SCMR 786) and Mst. Naziran Begum through Legal Heirs vs. Mst. Khurshid Begum through Legal Heirs (1999 SCMR 1171). 13. On the other hand, Ch. Imran Hassan, Advocate, learned counsel for Respondent No. 2, also made submissions in reiteration of the pleadings in Respondent No. l's civil suit. He further submitted that the petitioner had not been able to satisfy the essential ingredients for showing that the. transaction for the purchase of the suit house in Respondent No. l's name was a benami transaction; that at all material times, Respondent No. 1 has remained in possession of the suit house; that had Respondent No. 1 not been in possession of the suit house, the petitioner would not have filed a suit for possession against Respondent No. 1; that the petitioner did not discharge the onus that the entire sale consideration for the suit house was paid by him; that Respondent No. 1 had deposed that the suit' house was purchased with the remittances sent by her son, Asif Hameed; that in the sale agreement dated 13.05.1985 (Exh.P/2), it is clearly mentioned that the sale consideration was paid by Respondent No. 1; that Articles 102 and 103 of the Qanun-e- Shahadat Order , 1984
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provide that no oral evidence is admissible to contradict a disposition of property reduced to the form of writing; and that the original transfer letter issued by the C.D.A. is in possession of Respondent No. 1. 14. Furthermore, learned counsel submitted that Respondent No. 1 was a pardanashin illiterate lady; that the application (Exh.D/1) for the transfer of the suit house in the petitioner's favour was in English; that the petitioner , being the beneficiary of the transaction, had not discharged the onus of proving that Respondent No. 1 had understood the nature of the transaction; that there were discrepancies as to dates on the transfer application; that the certificate of identification does not show the name of any witness who had identified Respondent No. 1; that although the transfer application shows that Respondent No. 1 had received the entire amount from the petitioner , it is not the petitioner's case that he had purchased the suit house from Resp ondent No. 1; that the alleged transaction between the petitioner and Respondent No. 1 was not a sale since no sale consideration was paid by the petitioner to Respondent No. 1; that the alleged transaction was not even a gift since there was no declaration of a gift and transfer of possession in the petitioner's favour; that possession of the suit house remained with Respondent No. 1 until her death and after her death with her son Munsif Majeed ; that even if it is assumed that Respondent No. 1 got knowledge of the suit house having been transferred in the petitioner's favour four to five years earlier , the suit filed by Respondent No. - 1 on 07.09.1995 was within the limitation period provided by law; that Respondent No. l's deposition, which she was trapped into giving, cannot be used against her; that the mere fact that the learned Appellate Court used flowery language in the judgment does not mean that it is not in accordance with the law and facts of the case. Learned counsel for Respondent No. 2 prayed for the revision petitions to be dismissed. In making his submissions, learned counsel placed reliance on the cases of Yaqoob etc vs. Nazir Ahmed Khan etc (PLD 2008 Lahore 233), Sarbaland etc vs. Ghulam Fatima etc (1996 MLD 948), Mst. Izzat vs. Allah Ditta (1981 PLD 165 SC), Khushi Muhammad vs. Mst. Zainab Bibi (1981 SCMR 814), Mst. Fazal Begum vs. Municipal Corporation Lahore (1983 CLC 1643 ), Umar Din vs. Muhammad Anwar (2003 YLR 67), Ghulam Murtaza vs. Mst. Asia Bibi (PLD 2010 SC 569), Muhammad Nawaz Minhas vs. Mst. Surri ya Sabir Minhas (2009 SCMR 124), Ch. Ghulam Rasool vs. Mst. Nusrat Rasool (PLD 2008 SC 146), Muhammad Arif vs. Haji Waheed ul Haq (2017 YLR 224), Muhammad Afzal vs. Muhammad Zaman (PLD 2012 Lahore 125), Shehnaz Bibi vs. Muhammad Ikhlaq Khan (PLJ 1996 Lahore 1472), Abdur Rehman vs. Mst. Majeedan Bibi (2017 SCMR 1110), Phul Peer Shah vs. Hafeez Fatima (2016 SCMR 1225), Ghulam Farid vs. Sher Rehman (2016 SCMR 862), Muhammad Nazir vs. Khurshid Begum (2005 SCMR 941) and Khanas Khan vs. Sabir Hussain Shah (2004 SCMR 1259). 15. I have heard the contentions of the learned counsel for the contesting partie s, and have perused the record with their able assistance. 16. The facts leading to the filing of the instant petitions have been set out in sufficient detail in Paragraphs No. 5 to 10 above, and need not be recapitulated. 17. The suit house was originally owned by one Shaukat Iqbal. On 13.05.1985, an agreement to sell/iqrarnama (Exh.P/2) was executed between Shaukat Iqbal's attorney , Muhammad Imtiaz (DW-3) and Respondent No. 1, whereby the former agreed to sell the suit house to the latter for a total sale consideration of Rs.4,58,000/. In the said agreement, the receipt of the entire sale consideration from Respondent No. 1 has been acknowledged. 18. On 21.08.1986, an application for the transfer of the suit house in favour of the petitioner is said to have been submitted by Respondent No. 1 to the C.D.A. Although the transfer letter is not on the record, it is an admitted position that the suit house was transferred in the petitioner's favour in the C.D.A.'s records on 07.09.1986. There is a deposition to this effect in DW-3's examination in-chief. It is also an admitted position that ever since the purchase of the suit house on 13.05.1985, it has remained in Respondent No. l's possession. After Respondent No. l's demise, her son, Munsif Majeed/Respondent No. 2, has been in possession of the suit house. 19. The question whether the transaction for the purchase of the suit house by Respondent No. 1 from Shaukat Iqbal, through his attorney Muhammad Imtiaz, was a benami transaction, in my view, would gain significance only in the event this Court holds that the transfer of the suit house in favour of the petitioner was unlawful. 20. The foundation set up by Respondent No. 1, in her suit for declaration etc., for challenging the transfer of the suit house in the petitioner's favour , was as follows:--
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"2. That the defendant in the year 1986 very cleverly advised plaintiff to submit an application for exemption from payment of property tax being self-occupation and in continuation of that pretext required to sign few papers from the plaintiff which the plaintiff being an un-educated and illiterate Asian woman having blind faith on her husband innocently signed the same because such an artifice deception based on foolish mischief and forgery had never been expected on the part of the defendant at that time, which had occasioned with the plaintiff as such the alleged transfer of the suit house in the name of the defendant which remained concealed till disclosed recently, is illegal and based on artifice deception and forgery, hence void, ab-initio, and ineffective on the rights and interests of the plaintiff and is liable to be annulled under, the prevailing circumstances." 21. Respondent No. 1 appeared as PW-1, and in her examination- in-chief, she deposed inter-alia that she had neither appeared before any department nor had she affixed her thumb impression or put her signature on any document and that the suit house had been fraudulently transferred from Respond ent No. l's name in favour of the petitioner . 22. Sarfraz Ali, the Assistant Management Officer, C.D.A., appeared as DW-1 and admitted that the application form (Exh.D/1) had been submitted for the transfer of the suit house in favour of the petitioner . The said application form bears Respondent No. l's signatures at two places. DW-1 also admitted that Exh.D/2 bears six specimen signatures of Respondent No. 1, which was a part of C.D.A.'s record. These signatu res were attested by one Javed Qadeer Qureshi, Assistant Director , National Training Bureau, Manpower Division, Government of Pakistan. No objection was taken on behalf of Respondent No. 1 when the said documents were exhibited. Respondent No. l's plea that she had not appeared before any department and had not signed any document is not plausible in view of the fact that at no material stage, did she file an application for her signatures on Exh.D/1 and Exh.D/2, to be forensically examined by a handwriting expert. 23. Respondent No 1 had challenged the transfer of the suit house in the petitione r's favour primarily by taking the plea in her suit that she was a pardanashin illiterate lady and did not appreciate the nature of the transaction which she had been made to execute through fraud and deception at the hands of her husband, i.e., the petitioner . Although Respondent No. 1, in her suit for declaration etc., pleaded that she was an "uneducated and illiterate Asian woman" but while giving evidence as DW-1, she did not depose that she was a pardanashin illiterate lady. Respondent No. l's bare pleading to the said effect unsupported by any ocular testimony cannot form the basis for shifting the burden on the petitioner to prove the transaction as to the transfer of the suit house in his favour was not fraudulent. Since Respondent No. 1 had not deposed that she was a pardanashin illiterate lady, the petitioner did not feel the need to put her any question regarding this matter in the cross-examination. 24. The learned Appellate Court in paragraph 14 of the impugned judgment has erred by holding that "being a Muslim, [Respondent No. 1] is supposed to be a pardanashin lady and the onus would be on [the petitioner] to give strongest and most satisfactory proof that she understood the transaction". This finding is a clear consequence of misreading and non-reading of evidence. Had the learned Appellate Court gone through Respondent No.l's testimony, it would have been noticed that she had not even deposed that she was an illiterate pardanashin lady. Even if every Muslim lady is presumed to be a pardanashin lady, in the absence of evidence to the effect that Respondent No. 1 was an illiterate lady not capable of understanding the transaction that she had entered into for the transfer of the suit property in the petitioner's favour, the principles governing the transactions entered into by pardanashin illiterate ladies will hardly be attracted in the instant case. In the case of Mst. Sadia Andaleeb vs. Mst. Farzana Zia etc (PLJ 2019 Islamabad 22), I had the occasion to hold as follows:-- "27. ... In Pakistan, pardanashin illiterate ladies are given special protection due to the social conditions. They are presumed to have an imperfect knowledge of the world, as on account of their panda they are practically excluded from social intercourse and communion with the outside world. Where a transaction is entered into with an illiterate pardanashin lady, the burden of proof always rests upon the person who seeks to sustain the transaction to establish that the document in question was executed by her after clearly understanding the nature of the transaction. This burden can be discharged not only by proving that the document was read over
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and explained to her and that she understood it but also by proving that she was given independent advice as to the nature of the transaction. 28. It is also well settled that the protection given by the rule relating to pardanashin ladies cannot be the exclusive privilege of the class commonly known as pardanashin. The real reason behind the rule is lack of understanding and appreciation that an illiterate woman without independent advice has when entering into a transaction. Where ignorance, capability and illiteracy of a woman are not proved, protection under the rule will not be available, whether or not the lady is pardanashin." (Emphasis added) In holding so, reliance was placed on the following case law:-- (i) In the case of Irshad Hussain vs. Ijaz Hussain (PLD 1994 SC 326), it has been held as follows:- "Whether a lady is a pardanashin is a question of fact. The burden of proof that any document purported to have been executed by a pardanashin lady affecting her right in an immovable property was substantially understood by the lady and was her voluntary, intelligent, free and conscious act, is upon the person chiming any right under such deed. This rule has been extended to illiterate ignorant lady whether she is pardanashin or not. This rule of wisdom and caution thrown round the pardanashin, illiterate and ignorant women is to protect them from exploitation, duress, fraud and misrepresentation. From all the judgments cited and discussed in the referred judgments it is clear that the cases involved pardanashin or illiterate and ignorant ladies. But where the lady involved is an educated lady, not observing parda capable of understanding transactions and has executed the deed on full and proper understanding of its implications, the principle governing pardanashin ignorant and illiterate women will hardly be attracted." (Emphasis added) (ii) In the case of Muhammad Tufail vs. Muhammad Aslam. Khan (1999 YLR 934), the petitioners/plaintiffs had challenged a part of a sale transaction on the ground that they were pardanashin ladies to whom the contents of the registered sale deed had not been read over and explained. Furthermore, it was asserted that additional land had been included in the sale deed on the basis of fraud. In the said case, the petitioners/plaintiffs had admitted the execution of the sale deed. The Hon'ble Lahore High Court upheld the concurrent judgments of the Courts below, whereby the petitioners/plaintiffs had been non-suited. It was held that "fraud is not only to be alleged specifically in the pleadings but also to be proved by convincing evidence beyond any shadow of doubt." Furthermore, it was held that "the mere allegation that the petitioners/plaintiffs did not read the contents of the documents before signing does not mean that fraud had been practiced upon'them." Additionally, it was held that since it was not proved on the record that the petitioners/plaintiffs were, illiterate and simpletons, the…
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