2024 CLS 22
Other citations: Original Judgment = 2024 CLC 181
[Peshawar High Court]
Before Muhammad Fahim Wali, J
Syed Iqbal Hussain Shah—Petitioner
versus
Mst. Kalsoom Bibi through Legal Heirs and others—Respondents
Civil Revision No. 54-D of 2020 and C.M. No. 59-D of 2020, decided on 23rd February, 2023.
HEADNOTES
(a) Specific Relief Act (I of 1877) —
— S. 39 — Contract Act (IX of 1872), Ss. 3 & 4 — Suit for cancellation of sale mutation — Failure to prove offer and acceptance — Effect — Respondent (Plaintiff) challenged the authenticity of sale mutation to the extent of transfer of her share in property i.e. 18 Kanals — 02 Marlas on the ground that she neither sold the same to petitioner (defendant) nor did she appear before any revenue official or impressed her thumb in this regard — Trial Court decreed the suit — Appellate Court, ultimately, dismissed the appeal — Validity — In the beginning the petitioner was required to plead and prove that an understanding was developed between parties about the sale and price of suit land prior to entry and attestation of the suit mutation; and without such understanding, it could not be believed that parties all of the sudden entered into bargain and recorded their statements — There was nothing on the entire case record that how, when, where and in whose presence the respondent expressed her intention to sale the land to petitioner and on what price which motivated the petitioner to get the suit mutation entered and to get a local commission appointed for recording statements of purported vendors — Hence the very foundation for a valid sale, which is offer by vendor and acceptance by the vendee, was missing in the instant case — Revision petition was dismissed. [Para. No. 5 & 6]
(b) Specific Relief Act (I of 1877) —
— S. 39 — Qanun-e-Shahadat (10 of 1984), Art. 79 — Suit for cancellation of sale mutation — Proof of execution of document — Scope — Respondent (Plaintiff) challenged the authenticity of sale mutation to the extent of transfer of her share in property i.e. 18 Kanals — 02 Marlas on the ground that she neither sold the same to petitioner (defendant) nor did she appear before any revenue official or impressed her thumb in this regard — Trial Court decreed the suit — Appellate Court, ultimately, dismissed the appeal — Validity — Being beneficiary, the petitioner was required to prove the execution of impugned mutation and in this background Ahle-Commission was examined and he in his cross-examination admitted that at the time of recording statement he had not mentioned that how much land was being sold by whom of the vendor — One of the vendors of suit mutation, appeared as defense witness and did not specifically refer the presence of respondent or receiving of amount by her — Similarly, marginal witnesses of the impugned mutation were examined as defense witnesses, and they neither verified their signature/thumb impression nor claimed to have signed/thumb impressed thereon — Hence, the proof of execution of impugned mutation, as required by the provisions of Article 79 of the Qanun-e-Shahadat, 1984, was missing in the instant case — Revision petition was dismissed. [Para. No. 5, 7 & 8]
(c) Pardanashin Lady —
— When in a transaction made by anyone, where Pardanashin lady’s vital interest became involved then, the following conditions are to be invariably and essentially established through evidence:
i) that transaction was free from any influence, misrepresentation or fraud;
ii) that amount of consideration equal to the value of the property was indeed paid to the ladies;
iii) that in the case of Pardanashin rustic village ladies, at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and;
iv) that at the time of transaction, the ladies had access to independent advice of their near and dear ones, who had no hostile interest. [Para. No. 9]
Ghulam Farid and another v. Sher Rehman through LRs (2016 SCMR 862) relied.
(d) Pardanashin Lady —
— In this male dominated society where the female legal heirs are consistently deprived even of their Sharai shares in inheritance matters like sisters, the principle of caution in protecting the legitimate rights of the illiterate parda observing lady, must be applied vigorously and rigidly. [Para. No. 11]
Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) relied.
(e) Pardanashin Lady —
— The beneficiary of any transaction involving Pardanashin and illiterate woman has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing — She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her. [Para. No. 12]
Ghulam Muhammad v. Zohran Bibi and others (2021 SCMR 19) referred.
Rustam Khan Kundi, Advocate for petitioner.
Ahmad Ali and Miss Shumaila Awan, Advocates for respondents.
Date of hearing: 23rd February, 2023.
JUDGMENT
Muhammad Faheem Wali, J:—The petitioner, through instant petition, has called in question the vires of Judgment & Decree dated 29.02.2020 of the leaned Additional District Judge-V/MCAC D.I.Khan, whereby his appeal against Judgment & Decree dated 31.03.2011 rendered by learned Civil Judge-X, D.I.Khan was, dismissed.
2. Facts of the case in brief are that the respondent No.1 instituted a suit for cancellation of the mutation No.1011 attested on 19.09.1998 in favour of the petitioner, on the ground that the same is based on fraud, without consideration and is ineffective upon her rights. She further contended in the plaint that she neither appeared before the Revenue Officer or Ahle-Commission nor recorded her statement and also not affixed her thumb impression to sell her property. Petitioner and proforma respondents denied the contents of plaint and claimed that the mutation in question was legally and validly entered and attested. After framing issues and recording evidence of parties, the learned trial Court (Civil Judge-X, D.I.Khan) decreed the suit of respondent No.1 vide Judgment dated 31.03.2011. The appeal of petitioner thereagainst was dismissed vide Judgment/decree dated 28.01.2013; however, in civil revision No.19-D/2013 this Court vide Judgment dated 09.09.2013 set aside the findings of lower fora, resultantly the suit of respondent No.1 stood dismissed. She preferred Civil Appeal before the worthy Supreme Court which was allowed vide Judgment dated 07.02.2018 and the case was remanded back to the appellate Court for fresh decision on the appeal.
3. After receiving the case file on remand, the fingerprint of the respondent No.1 was compared through Fingerprint Expert and petitioner filed his objections on the report of expert. After recording statement of Fingerprint Expert and hearing arguments on the appeal as well as objections, so filed by petitioner, his objections as well as appeal were dismissed by the learned Additional District Judge-V/MCAC D.I.Khan vide Judgment & Decree dated 29.09.2020, which has been assailed by the petitioner before this Court through the instant Civil Revision.
4. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
5. Record transpires that the respondent No.1 had challenged the authenticity of mutation No.1011 attested on 19.09.1998 to the extent of transfer of her share in property i.e. 18Kanals —02Marlas on the ground that she neither sold the same to respondent No.1 nor did she appear before any revenue official or impressed her thumb in this regard. It is worthy to mention that through the ibid mutation, besides respondent No.1/plaintiff, her other three sisters too transferred their shares in favour of the petitioner but they, in their joint written statement have seconded the impugned mutation.
6. In the beginning the petitioner was required to plead and prove that an understanding was developed between parties about the sale and price of suit land prior to entry & attestation of the suit mutation; and without such understanding, it cannot be believed that parties all of the sudden entered into bargain and recorded their statements. There is nothing on the entire case record that how, when, where and in whose presence the respondent No. 1 expressed her intention to sale the land to petitioner and on what price which motivated the petitioner to get the suit mutation entered and to get a local commission appointed for recording statements of purported vendors. Hence the very foundation for a valid sale, which is offer by vendor and acceptance by the vendee, is missing in the instant case.
7. Apart from the above, being beneficiary, the petitioner was also required to prove the execution of impugned mutation and in this background Abdul Haleem retired Girdawar, who was appointed as Ahle-Commission to record statements of vendors, was examined as DW-3 and he in his cross examination admitted that at the time of recording statement he has not mentioned that how much land is being sold by whom of the vendor. The relevant excerpt from his cross examination is reproduced hereunder:
—” یہ درست ہے کہ بوقت بیان قلمبندی بذریعہ اہل کمیشن میں نے یہ تحریر نہیں کیا کہ بائعان میں سے کون کتنار قبہ فروخت کر رہا ہے۔ “
8. Mst. Nusrat Bibi, one of the vendors of suit mutation, appeared as DW-3 and did not specifically referred the presence of Mst. Kalsoom Bibi or receiving of amount by her. Similarly, marginal witnesses of the impugned mutation were examined as DW-6 and DW-7, and they neither verified their signature/thumb impression nor claimed to have signed/thumb impressed thereon. Hence, the proof of execution of impugned mutation, as required by the provisions of Article 79 of the Qanoon-e-Shahadat Order, 1984, is missing in the instant case.
9. Moreover, there can be no denial of the fact that the respondent No.1/plaintiff was a parda observing lady, and at the time of execution of impugned mutation she was married. It is by now well settled principle that when in a transaction made by anyone, where ‘Pardanasheen’ lady’s vital interest became involved then, the following conditions are to be invariably and essentially established through evidence:
i. that transaction was free from any influence, misrepresentation or fraud;
ii. that amount of consideration equal to the value of the property was indeed paid to the ladies;
iii. that in the case of ‘Pardanasheen’ rustic village ladies, at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and;
iv. that at the time of transaction, the ladies had access to independent advice of their near and dear ones, who had no hostile interest.
10. The entire evidence is silent with regard to knowledge of respondent No.1 about nature of transaction and consequences thereof, or that she was having any independent advice particularly when she was a married woman; rather it is an admitted fact that her husband was not present at the time of execution of the mutation. Moreover, payment of sale consideration has not been proved particularly when the petitioner, in his statement as DW-4, stated that he had handed over the amount to one Sultan Shah DW-6. Whereas DW-6 did not utter the name of respondent No.1 to be present at the scene or that she received the sale consideration; he just referred the presence of four sisters of petitioner out of total five sisters. Hence, the presence and actual representation of respondent No.1 could not be established through evidence. Abdul Haleem, retired Kanungo, was appointed as Ahle-commission by the Tehsildar to record statements of pardanasheen ladies; and he during his cross examination as DW-3 stated that during commission proceedings Patwari Halqa was also present with him. The statement of the then Patwari Halqa was recorded as DW-1 and he in his cross examination categorically admitted that no payment was made in his presence. DW-6 and DW-7, during their cross examination, have unanimously admitted that petitioner used to pay share of crops to Mst. Kalsoom Bibi regularly till institution of the suit. These deficits cast doubt on the transactions attributed to respondent No.1. Worthy Apex Court in the case titled, “Ghulam Farid and another Vs. Sher Rehman through LRs” (2016 SCMR 862) was pleased to observe:
17. In the case of “Parda Nasheen” ladies, under the rules it is a consistent practice that before the attestation of mutation by the Revenue Officer, a Local Commission appointed, is invariably accompanied by two attesting witnesses, preferably the close relatives of the ladies, to identify them before the Local Commission and also to become attesting witnesses to the statements, given to the Commission to dispel any apprehension of fraud or misrepresentation because “Parda Nasheen” ladies, keeping in view the traditions and culture of the society, do not appear in the common assembly. The Local Commission and the two witnesses must establish that the ladies gave statements with their free will, full understanding about the nature of the transaction and also admitting of having received the sale consideration for the land sold and that, at the relevant time, they were having free and full advice of the close relatives. The departure, made by the Revenue Officer in this case, from the well prescribed procedure, strongly suggests that foul play was committed and everything was arranged in a concerted manner. It was for this reason that, the two attesting witnesses to the mutation were also not produced as they were not supporting the transaction. The fact that the mutation was attested in the absence of all the three vendors, as none of them have thumb impressed the same, is a blatant violation of the mandatory provision of subsection (7) of section 42 of the Land Revenue Act.
11. In this male dominated society where the female legal heirs are consistently deprived even of their ‘Sharai’ shares in inheritance matters like sisters, the principle of caution in protecting the legitimate rights of the illiterate parda observing lady, must be applied vigorously and rigidly. In this context the worthy Supreme Court, in the case of “Phul Peer Shah Vs. Hafeez Fatima” (2016 SCMR 1225) was pleased to hold:
In a case of such transaction with old, illiterate/rustic village ‘Parda Nasheen’ lady onus to prove the transaction being legitimate and free from all suspicions and doubts surrounding it, can only be dispelled if the lady divesting herself of a valuable property, the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree. Amongst this condition, the pre-dominantly followed are as follows:
(i) That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences;
(ii) that she was having independent advice from a reliable source/person of trust to fully understand the nature of the transaction;
(iii) that witnesses to the transaction are such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her;
(iv) that the sale consideration was duly paid and received by the lady in the same manner; and
(v) that the very nature of transaction is explained to her in the language she understands fully and she was apprized of the contents of the deed/receipt, as the case may be.
12. It is also settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her. While rendering this view, I am fortified by the dictum laid down by the worthy Apex Court in the case titled “Ghulam Muhammad vs. Zohran Bibi and others” (2021 SCMR 19).
13. As discussed above, there is no evidence to prove that the lady who signed the mutation posing herself to be Mst. Kalsoom Bibi, was actually Kalsoom Bibi herself. Moreover, after remand of the case by the august Supreme Court of Pakistan to the appellate Court, the thumb impressions of Mst. Kalsoom Bibi, affixed on the impugned mutation, was sent to the forensic science laboratory for comparison with his thumb impression on other admitted documents through the fingerprint expert. The fingerprint expert submitted his report wherein he affirmed that the thumb impression on the mutation in question does not match with admitted thumb impression of Mst. Kalsoom Bibi. The statement of said expert was also recorded but nothing beneficial to the petitioner could be pinpointed. This fact throws out all the episode of sale of suit land, attributed to the respondent No.1 and there can be no other conclusion except that the petitioner failed to prove the execution of impugned mutation through evidence and also there is no iota of evidence to show as to when, how and where the transaction had taken place and in whose presence and on what consideration.
14. As far the argument of learned counsel for petitioner that the suit was filed by the husband of respondent No.1 by faking the thumb impression of lady, because of the fact that she spent her last days with petitioner as she was suffering from cancer. If it was so, then question arises that why petitioner had not produced the lady, if she was residing with him, before the Court to deny the filing of suit and to withdraw the same. Besides, no unimpeachable evidence in this regard could be brought on the record.
15. Considering the above facts, circumstances and legal position, petitioner has failed to point out any illegality or infirmity committed by the learned Trial Court as well as learned Appellate Court while passing impugned judgments, which do not call for any interference by this Court. Consequently, concurrent finding passed by both the Courts below are maintained and instant Civil Revision stand dismissed with no order as to cost. Listed CMA for having become infructuous, stands disposed of accordingly.
Petition dismissed