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Petitioner: PERVAIZ SHAUKAT VS Respondent: MAMOON RASHID And Other
Court Name: Lahore High Court Judge(s): Mian Allah Nawaz, Ch. Mushtaq Ahmad Khan, Mansoor Ahmed Title: PERVAIZ SHAUKAT vs MAMOON RASHID And Other Case No.: C.R. No. 1,4.69 of 1 Date of Judgment:2001-11-07 Reported As: K.L.R. 2002 Civil Cases 218 Result: Revisions Accepted
Judgment ORDER C.M. No. 580-C/1995 MANSOOR AHMAD, J. -- An application under Section 152, CPC is filed by Mamoon Rashid for seeking correction of the typing error in consolidated judgment dated 7.8.1995 which was passed by this Court in Civil Revisions Nos. 1469.1470 and 1471 of 1994. iVol.XXI Pervaiz Shaukat V. Mamoon Rashid' C.C. 221 [Mian Allah Nawaz, J.j 2. Perusal of the record shows that the first suit was filed by Mamoon Rashid and not -by Haroon Rashid, it appears that typing error crept in the judgment inasmuch as that instead of Mamoon Rashid the name of Haroon Rashid was mentioned. 3. Similarly another error found is in respect of date of registered family settlement. The family settlement is at page 98 of Civil Revision No. 1469-94. It is a registered document and date of the registration is 16.3.1981. Instead in the judgment the date recorded is 12.4.1981. After going through the judgment and record, I find that there is a typographical errors in the judgment about the name of Mamoon Rashid and the date of settlement. 4. I accordingly allow this application and n%rie of Mamoon Rashid would be read instead of Haroon Rashid fn line 1 and "line 14 of para 3 of the judgment line 10 of para 4, line 14 of para 7, lines 17 and 22 of para 8 and line 4 of contention No. 3 contained in para 9 of the judgment. 5. The date of the family settlement mentioned in line 7 of para 3 of the judgment would be read as 1 6.3.1 981. With this order the application of Mamoon Rashid who was respondent No. 1 in C.R. No. 1469 of 1994 is disposed of.
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JUDGMENT MIAN ALLAH NAWAZ, J. - These three Civil Revisions, bearing No. 1469/94, 1470/94 and 1471/94 portray convoluted nature of human being comprising of sordid and noble instincts. These reflect no credit on the part of litigants who are no less than real brothers/sclons of late Sheikh Abdul Majeed. The dispute, among them, pertains to urban property No. E1 15-R-152 popularly known as House No. 139- G, Sher Shah Road, New Shad Bagh, Lahore, itmeasures 32 kanals and has two portions. One is residential while the other is school portion which was built upon 19 marlas, 63 sq.Ft, by late owner who had been running school therein till his demise. Disputed property shall hereinafter be described as* "House" and its portion shall be treated as "residential unit" and "school portion" respectively. 2. The material facts to be noted are that house was owned by late Abdul Majeed. On his demise, it devolved upon following legal heirs:- (i) Sakina Bibi, widow (ii) Memoona Akhtar, daughter (iii) Masooda Akhtar, daughter (iv) . Mamoon-ur-Rashid, son (v) Haroon-ur-Rashid, son (vi) Pervaiz Shaukat, son (vii) Javed Solat, son. 3. Haroon-ur-Rashid respondent No. 2 in all' petitions, entered the arena of litigation first. He brought a suit No. 534/1 of 1989 for recovery of possession of a room situated in residential unit on the footing that the House devolved upon the aforesaid legal heirs of Sh. Abdul Majeed; that Mst. Sakina Bibi, Memoona Akhtar and Masooda Akhtar, by a family settlement dated 12.4.1981, had relinquished their rights in it in favour of their brothers dated 16.3.1981 who by an agreement dated 12.4.1981 divided it into four portions fully described in the annexing map; that as Pervaiz Shaukat and Javed Solat were not given any share on front side of the house, they were paid Rs. 20,000/- by Mamoon-ur-Rasheed and Haroon-ur-Rasheed respectively; that Pervaiz Shaukat was in possession of one room falling in the share of Haroon-ur-Rasheed and had undertaken to vacate it after a year; that as he declined to abide by his * commitment, he was constrained to file the suit. 4. Pervaiz Shaukat, herein petitioner in all the petitions, too did not lag behind. He filed two suits. One suit was filed under Section 42 of the Specific Relief Act for seeking declaration that the petitioner, alongwith respondents, had become owner of 1 /4th share in the house; that the agreement dated 12.4.1981 was illegal, based upon fraud and was of no lawful consequence; that the "house" was still undivided. The second suit was for the rendition of accounts and mesne profits, itmust be mentioned over here that neither Haroonur Rasheed nor Pervaiz Shaukat impleaded their mother and sisters as parties in the suits filed by them. [Vol.XXI Pervaiz ShaukatV. Mamoon Rashid C.C. 223 (Mian Allah Nawaz, J ) 5. The learned Trial Judge consolidated all the three suits. Necessary issues were framed. Mamoonur Rasheed and Haroonur Rasheed were treated as plaintiffs while Pervaiz Shaukat was designated as defendant. Despite service Javed Solat, did not enter appearance and so was proceeded again ex-parte on 30.1.1 987 by the first Court. 6. Mamoonur Rasheed and Haroonur Rasheed examined these witnesses besides himself namely Mst. Sakina Bibi, PW-1, Faiz-ur-Rehman PW.2, Abdul Majid PW-3. Mamoonur Rasheed entered into witness-box as PW-4. They tendered into evidence document Ex.P1 to Ex.P1/13. Pervaiz Shaukat relied
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upon three witnesses beside himself, namely Abdul Majid DW.1, Mirza Muhammad Ismail DW.2, Muhammad Bashir Ahmad DW.3. He also tendered in' evidence documents Ex.DW.2/1 to 14. On 25.10.1989 Faiz-ur-Rehman PW.2, during cross-examination, stated that he had arranged a settlement package between descendents of Sh. Abdul Majid whereby his daughters and widow had relinquished their rights in favour f their brothers; that house was partitioned by sons f Abdul Majeed into four portions by agreement dated 12.4.1981. It was agreed that the rent pertaining to School would be received by Mst. Sakina Bibi widow of the late owner. He offered t state the above circumstances on special oath. This offer was,conveyed to the parties by the Court. It seems that Mamoonur Rasheed and Haroonur Rasheed who were present in the Court on that date, stated that if PW.2 was prepared to state on Holy Quran what he has stated in his cross- examination and that if the witness did not make such statement then the suit be decided on merits. On the same day Pervaiz Shaukat stated that if PW.2 on oath administered to him on Holy Quran, stated that he had arranged settlement between the parties, then the case be decided against him. The learned Trial Judge recorded the statement of the parties in a script which is not clearly legible. However, their statement as read by me are as follows:- #tbs ! Ajut A ' I c. Ic-L* (-jLlJ JLjfL.y if 25.10.89 #to 20.10.89 7. The learned Trial Judge, however, did not decide the suit on the basis of statement of PW.2 made on special oath and proceeded to asses the material available on record and came to these conclusions (i) that the agreement dated 12.4.1981 did not describe the area of different portions allocated to parties and so was uncertain and illegal being void under Section 29 of Contract Act. On this finding, it was further found that the house was still a joint property in which Pervaiz Shaukat was owner 1/4 share; (ii) that he was entitled to recover Rs. 125/- per month from the rent of School portion from November, 1984 till 6.7.1989 when it had been vacated by the Education Department. On these conclusions the learned Trial Judge decreed the suit filed by Pervaiz Shaukat and dismissed, the suit filed by Haroonur Rasheed in following terms:- "In view of the findings on the above issues, the suit for possession bearing No. 534 filed by the Mamoonur Rashid is dismissed, a suit for declaration with consequential relief bearing No. 535 filed by Pervaiz Shaukat is decreed in favour of the plaintiff and against the defendants as prayed for and a suit for Rendition of Accounts bearing No. 536 is decreed in favour of Pervaiz Shaukat and against the defendant No. 3 to the effect that the plaintiff can recover his share of rent amounting to Rs. 125/- per month since November, 1984 till 6.7.1989. Anyhow, the parties shall bear their on. Costs. Copy of the judgment be placed in other two files also. The file be consigned to the record room -after completion....... " 8. On appeal, the learned Appellate Court did not see eye to eye with the conclusions arrived at by the Court below and held that on 25.10.1981 Faiz-ur-Rehman had made a statement on Holy Quran that the house was divided by Haroonur Rasheed, Mamoonur Rasheed, Pervaiz Shaukat and Javed Shaukat in four portions; that the portions so allocated to the parties were completely described in the memo, of agreement dated 12.4.1981; that Pervaiz Shaukat has received an amount of Rs. 20,000/- from Mamoonur Rasheed and so the house had ceased to be joint property; that the learned Trial Court was enjo.Ned [Vol.XXI Pervaiz Shaukat V. Mamoon Rashid C.C. 225 (Mian Allah Na waz, J.j under the law to decide' the suits in consonance with the statement made by PW.2 on special oath.
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Apart from this finding, it was held that the agreement dated 12.4.1981 was a certain; that the house stood divided amongst the legal heirs in terms of portions described in the map annexed to agreement dated 12.4.1981 and so Haroon-ur-Rasheed was well within his right to file suit for recovery of room which was in possession of Shaukat Pervaiz. On these inferences, the learned Appellate Court set aside the decision of the Court below, dismissed the suits filed by Pervaiz Shaukat and decreed the suit filed by Haroon Rasheed. This happened vide consolidated decision dated 5.3.1994. All these revisions are directed against the afore-stated decision. 9. The contentions, put forth by the learned counsel for the petitioners, can be conveniently summarized as below:- Firstly: that the agreement dated 12.4.1981 was clearly uncertain, vague and did not specify the portions of the parties by meats and bounds. The house according to the learned counsel, comprised of two portions i.e. Residential portion and a school portion. The residential portion had a frontage of 60 ft. While school portion, built upon 19 marlas, fell back of residential unit; that the front portion was evidently ; much more valuable than the back portion. On these circumstances, it was suggested that the agreement did not provide any reasonable, equitable division of house among co-owners. According to the iearned counsel, the agreement, therefore, was vague, uncertain, and inequitable. Reliance was placed on Ahmad Miaji Vs. Eakub AH (12 DLR (1960) p. 708), Durga Nath Vs. Debendra Nath (PLD 1951 Dacca 89) and Ghulam Hussain Vs. Hur (PLD 1959 (W.P.) Karachi 408). Secondly:that the agreement dated 12.4.1981 was neither a partition deed nor a family arrangement. Continuing, the learned counsel added that it was a document which was obtained by Haroonur Rasheed and Mamoonur Rasheed through deceitful manners ind so was not worth the paper on which it was written. Thirdly: that the learned Appellate Court had overlooked that the statement made by PW.2 on Holy Quran was a snappy statement. Elaborating this contention further, he pin-pointed that Haroonur Rasheed had moved an application under Order 1 2, Rule 6, CPC for deciding the cases on the basis of statement made by PW.2 on special oath on 12.9.1990; that this application was contested and that the learned Trial Judge, vide order dated 6.12.1991 rejected that application; that Hardonur Rasheed moved yet application under Order XLVII, Rule 1 read with Section 151, CPC for reviewing of the afore-stated order but in vain. The learned Trial Judge dismissed that petition on 11.5.1991. From the above-stated facts, it was clear, that Pervaiz Shaukat had not accepted the offer of PW.2 as concluded by Appellate Court. Fourthly: that the decision rendered by the Appellate Court was based upon misreading and non- reading of the material on record. Haroonur Rasheed, appearing . On behalf of himself and Mamoonur Rasheed, supported the impugned decision on following grounds:- ... (i) that the decision rendered by the Appellate Court was based upon consent of parties and so it was not open to interference by this Court in Revisional jurisdiction. Reliance was placed on 1991 PSC 148, 1989 M LD 454, 1989 SCMR T857. (ii) That petitioner received an amount of Rs. 20,000/- from Mamoonur Rasheed under impugned agreement dated 12.4.1981 and so he was estopped to challenge the partition of the house embodied in Ex.PW.2/1 (agreement deed). (iii) that petitioner had admitted the execution of agreement deed dated 12.4.1981 and so he was bound under the [Vol.XXI Pervaiz Shaukat V. Mamoon Rashid C.C. 227 IMian Allah Nawaz, J.)
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law to prove that the agreement was got executed from him under a spell of fraud. 9-A. None has entered appearance on behalf of Javed Shaukat as .Usual and so he was proceeded ex-parte. 10. Before I proceed to deal with the rival contentions of the parties, I find ft expedient to examine the law applicable to the relinquishment of rights of inheritance by Muslim females and the powers of the Court while deciding^the /is between the parties on the statements made on special oath. The first question was finally settled by the Supreme Court in Ghulam Ali Vs. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Upon exhaustive illuminating examination of a woman under different societies viz- a-viz a Muslim one, his Lordship Mr. Justice Muhammad Afzal Zullah ?As he then was) said:- "The question of immorality which has also been raised by the learned counsel for the petitioners as if, in the circumstances of this case, it favours ?The petitioners would be dealt with separately. Here in the light of the foregoing discussion on the Islamic point of view, the so- called "relinquishment" by a female of her inheritance as has taken place in this case, is undoubtedly opposed to public policy as understood in the Islamic sense with reference to Islamic jurisprudence, In addition it may. Be mentioned that Islam visualised many modes of circulation of wealth of certain types under certain strict conditions. And when commenting on one f the many methods of achieving this object, almost all commentators on Islamic System agree with variance or degree only, that the strict enforcement of laws of inheritance is an important /accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy, In other words the disputed relinquishment of right ef inheritance, relied upon from the petitioner's side, even if proved against respondent, has t be found against public policy. Accordingly the respondent's action in agreeing to the relinquishment (though denied by her) being aga nst public policy the very act of agreement and contract constituting the relinquishment, was void. Although on the subject of public policy there has been some controversy on two questions--one, technical relating to pleadings; and the other, substantial relating to availability of bar of public policy, in cases other than enumerated in the Contract Act, it has now been set at rest, In the case of Atlas Industrial and Trading Corporation, Karachi and another v. Dr. Jalil Asghar (PLD 1970 Kar. 241) the objection that plea of public policy was not taken at proper time was overruled and a new subject of public policy; namely, contracts relating to corruption in public offices, was recognized as proper subject to be dealt with under Section 23. However, seemingly different view was taken by the same High Court in the case of Sultan Textile Mills (Karachi) Ltd., Karachi v. Muhammad Yousuf Shamsi (PLD 1972 Kar. 226). But, with respect, it .May be mentioned that there was not much justification for taking a view different from what was in Atlas Industrial and Trading Corporation on the above-referred two questions. Be that as it may, the Supreme Court in its two judgments reported in 1964, one in the well-known case of E.A. Evants (PLD 1964 SC 536) and the other similarly well- known case of Syed Sibtain Fazli (PLD 1964 SC 337) took dp and examined a plea relating to public policy, which was not raised at earlier stage in one case and seemed to have been abandoned in the other, it also introduced new subjects of public policy for treatment under Section 23-one of them being the enforcement of agreements relating to rent, viz-a-viz, the application of the newly introduced Rent Restriction Laws much later in time than the enactment of the Contract Act. The theory, that only the rules of common law of England, viz-a-viz public policy, were relevant as they were codified in the provisions following Seddon 23 of the Contract Act; therefore, only they were brought under the umbrella of Section 23, was never accepted consistently and was given up long ago by this Court. A further reason may be added that in Pakistan's Constitutional set up, with the Objectives Resolution being its part, new situations with new principles of
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? Public policy with Islamic Ethos/spirit would have to be defined and applied. Another possible objection that although the relinquishment has been found without consideration, yet this case is covered under Section 25 of the Contract Act, has yet to be disposed of. Section 25 declares all those agreements void which are without consideration except for the exceptions created by the law itself. Amongst the exceptions it is provided that whenever the agreement is expressed in writing and is registered and is made on account of natural love and affection between the parties standing in a near relation to each other or whenever it is promised to compensate wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compelled to do, in such like cases the agreement would be enforcible'contract. Firstly, the contract which has been declared void under Section 23 of the Contract Act cannot be revived and given life, merely because it suffered from another serious infirmity; and which other infirmity Could be overcome by a resort to the afore-mentioned exceptions. Secondly, it might be very rare that a male co-heir would relinquish his right for a female heir. Experience shows that it has always been the reverse. The flow of love cannot be so un-natural. Therefore, the rules devised by the Privy Council for the Parda Nasheen ladies as contracting parties and the one referred to above emanating from the public policy, would lead to another principle: that in cases like the present^one there will be a presumption otherwise; namely, that it was not on * account of natural love but on account of social constraints which would be presently referred to, mat "relinquishment" has taken place. Similarly in the light of the entire discussion the second exception would also be not attracted as the presumption would be that such easy devices are always coined to justify relinquishment by females in favour of males, In the present case it appears to be jugglery that the petitioners claimed that the relinquishment by the-' respondent was in consideration of what they claim to have done in her two marriages as also for her maintenance. And in addition, what again could be only a jest, that they spent some money on a criminal case which they had to fight on account of respondent being divorced by her first husband. All these claims are against the teachings of Islami --lnjunctions in the Holy Quran and the Saying of the Holy Prophet (P.B.U.H.),, wherein emphasis has been laid again and again on the best possible concern for and treatment of female relations. Even on this particular subject of the treatment of a divorce relation one finds enough material to show that if none else the parental home, which would in this case include the brothers, remains responsible for the maintenance of a needy divorce or widow. The Holy Prophet (P.B.U.H.) was eager to explain again and again the rights of daughters and the way their fulfilment takes one to the heights of piety. The Quranic Verse S. IV V. 34 declaring men as "protectors and maintainers" (See A. Yousaf Ali) one of the injunctions in this behalf, has already been referred to. It is unimaginable that a daughter enjoying "protection and maintenance" with the father till she is married, when is married and divorced, would lose this right-this of course is subject to some conditions, itcan clearly be'spelt out from the afore-cited injunctions that it would be her right to be treated by the father in the best possible manner in all these circumstances. And if beyond the bare necessity he does anything concerning the daughter, it has to be treated as gift and not something which would have to be returned by the daughter by compensating the father in the tangible property. The right of a sister, in cases like the jaresent [Vol.XXI Pervaiz Shaukat V. Mamoon Rashid C.C: 231 (Mian Allah Nawaz, J.) case, will have to be equated with that of a daughter, with all the necessary consequences. Even if there is some difference of opinion with regard to these injunctions the subject of the rights of close relations viz- a-viz, maintenance against well-to-do relations has been fully discussed in the case of Haji Nizam; wherein it was held with reference to many other Injunctions of Islam, that a needy
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close relations has a right of maintenance against another relation which in proper circumstances might be enforcible in law Courts. Therefore, all these considerations which have been pleaded in this case cannot at all be made basis of any relief to the petitioners or for that matter for validating the so-called "relinquishment". After examining the effects and inter effects of Sections 23 and 25 of the Contract Act, on the touch stone of Muslim Jurisprudence, the learned Judge went on to say:- "The last argument of the learned counsel related to rights and interests of the subsequent alienness from the petitioners. They have not come before this Court nor they have been impleaded as respondents by the petitioners, it appears only the kith and kin; namely the brothers want to fight against the sister-respondent. Moreover this question having been settled by the lower Court the subsequent alienness did not raise any grievance before the higher Court-Nor as stated above have they come to this Court. On questions of public policy, morality (Section 23), lack of consideration (Section 25) and undue influence (Section 16) viz-a-viz Parda Nasheen ladies it has to be reiterated and recapitulated that:- Firstly the relinquishment by the respondent if any, is against public policy and morality, which concepts are to be decided on the basis of Islamic teachings and principles. The respondent could not opt or contract out of this protection. Hence the act of relinquishment was void and ineffective. Her inheritance, having accrued in her favour on her father's death remained intact at all the relevant times. Secondly the question of lack of consideration loses much of its relevance on account of the firstly above. But had it been not so, the so-called exceptions in Section 25 not being applicable in the context of Islamic rules and teachings, would not have saved the disputed relinquishment. Thirdly the relinquishment as such having been annulled, the same could not in this case operate as an ordinary alienation under the existing law for two, amongst others, reasons:- One, the so-called relinquishment of accrued inheritance, is neither recognised in Islamic Law of Transfers nor is it treated as a "transfer" under the Transfer of Property Act. If at all the nearest form being of "gift", none of its essential conditions are satisfied in a "relinquishment", so-called. If it is intended to be a gift, the latter's essentials would have to be gone through on principle and also as legal necessity, it cannot be by way of "relinquishment" simpliciter. Another form of alienation in this context would be by way of family settlement/arrangement; which it might be argued is permissible in Islam, it is a very important aspect of the controversy, but a very vital condition regarding existence of a bona fide family dispute to be resolved, or bona fide difficulty to be surmounted through such means, is lacking in this c.Se. Moreover the case-law on this point might require re-examination on the touchstone of. What has been discussed above. Two, even if all the conditions for a valid transfer under the existing set and system of laws, after the due accrual of inheritance are satisfied, the protection afforded by Section 16 of the Contract Act against undue influence, to Parda Nashin ladies and others similarly placed parties and entrenched in the case-!Aw as also available . Under the Islamic law already discussed, would require so many conditions to be satisfied. Admittedly in such…
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