Wednesday, 12 November 2014

Transaction with Pardanesheen Ladies

PLJ 2013 SC 37
[Appellate Jurisdiction]
Present: Ejaz Afzal Khan & Muhammad Ather Saeed, JJ.
Syed SHARIF-UL-HASSAN (decd.) through L.Rs.--Appellants
versus
Hafiz MUHAMMAD AMIN and others--Respondents
C.A. No. 1130 of 2002, decided on 4.6.2012.
(On appeal against the judgment date 12.02.2002 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in RSA.No. 15 of 1986).
Registration Act, 1908 (XVI of 1908)--
----S. 38--Transactions with illiterate pardanasheen ladies--Where identity of ladies into an agreement to sell was not established, such agreement to sell was not established, such agreement had not sanctity in eyes of law--Document could not create any right in favour of any person--Where pardanasheen illiterate ladies were involved, burden to prove bona fide and genuineness of transaction lies on person who alleged it--High Court granted a decree without appraising evidence and without taking into account of law of land--Suit could not be decreed at least without opinion of Finger Prints expert--Validity--Where a pardanasheen lady was a party to transaction affecting her right and interest in an immovable property, it was always on person claiming such right and interest to establish affirmatively that she substantially understood nature of transaction and had benefit of independent advice--Opinion of Court affirming signature on agreement to sell after comparing it with specimen signature would at its best establish his presence at time of its execution--PWs denied their signature and thumb impression respectively on agreement to sell--Not only denied her thumb impression on agreement to sell but also those of her daughter--Statement of witnesses examined by either of parties cannot be held of a class as could conclusively prove its claim--Evidence of other ladies would have clinched the matter but it was withheld.           [P. 42] A, B & C
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 27--Registration Act, 1908, S. 38--Additional evidence--Opinion of Finger Printers Expert--Genuineness or otherwise of thumb impressions of ladies--Validity--When Supreme Court suggested comparison of disputed thumb impressions of ladies with their admitted or specimen thumb impressions by a Finger Prints Expert--Most of ladies were by now dead, therefore, specimen thumb impressions could not be obtained--Supreme Court could not substitute its own view for of for a below even if view projected for appellant on reappraisal of evidence, was equally possible--Finding given by Court of first instance and that of First Court of Appeal which was final Court of fact for reasons recounted had to be given preference if it was free from a taint of misreading or non-reading of evidence--If a lis involving disputed question of fact was decided, it has to be decided on proper appraisal of evidence and that if a lis involving appreciation or interpretation of law was decided it has to be decided in accordance with well recognized principle--Justice at no cost and at no stage be allowed to fall prey to procedural technicalities--They be ignored if they tend to create hurdle in way of justice--Appeal was allowed.  [Pp. 43 & 44] D, E & F
AIR 1939 Allahabad 486, 1995 CLC 75, 1992 SCMR 1488, PLD 1990 SC 642, ref.
Mian Allah Nawaz, ASC for Appellants.
Mr. M. Munir Peracha, ASC for Respondent Nos. 1-2 & 10 to 40.
Mr. Gulzarin Kiyani, Sr. ASC for Respondent Nos. 3 to 9.
Date of hearing: 22.5.2012
Judgment
Ejaz Afzal Khan, J.--This appeal with the leave of the Court has arisen out of the judgment dated 12.02.2002 of a Single Judge of Lahore High Court, Bahawalpur Bench whereby RSA filed by the appellants was dismissed.
2.  Points raised and noted for grant of leave are as follow :--
"It is a case of alleged execution of an agreement of sale dated 14.10.1966 by pardahnashin ladies. The agreement of sale in dispute was a registered document and it was got registered through Abdullah Yousaf Bhatti, local commissioner/PW 1 who in his evidence stated that when he reached the house of the ladies for registration of the document, they (ladies) did not appear before him. To the same effect is the statement of Muhammad Sabir/PW2 and Ghulam Abbas Shah/PW3. The other witness Umar Hayat stated that the ladies were identified by him being his relatives.
2.  The question whether the principles of production of evidence in respect of pardahnashin ladies about execution of a document as laid down by this Court in the case of Janat Bibi. Vs. Sikander Ali and others (PLD 1990 S.C 642) have been fully complied with in this case, require examination and to consider the same, inter-alia, leave is granted".
3.  The facts forming the background of this case as narrated in para 4 of the impugned judgment run as under :--
"Haji Bashir Ahmed the predepessor-in-interest of Respondents No. 1 to 9 brought a suit for specific performance of agreement to sell dated 14.10.1966, registered on 20.01.1967 in respect of land measuring 624 kanals 19 marlas fully described in the plaint against Mst. Zubaida and others. According to the plaintiff, the original Defendants No. 1 to 6 had agreed to sell the suit land for a sale consideration of Rs.30,000/- was also subsequently paid to the vendors against receipt. As per the plaint the sale deed was to be executed after the ban was removed by the District Collector. The ban was removed by the Collector on 4.12.1969, whereafter Mutation No. 329 was entered on 28.12.1969 in favour of the plaintiff. The original Defendants Nos. 7 to 10 despite knowledge of the agreement to sell referred to above purchased land measuring 75 kanals 8 marlas vide registered sale deed dated 31.3.1970, which according to the plaintiff was violative of his rights under prior agreement to sell. Muhammad Yousaf etc. allegedly purchased land from the same vendors and were impleaded as defendants on their application. Similarly, Sharif-ul-Hasan claimed to have purchased land through registered sale deed dated 7.5.1971, 26.5.1971 and 14.9.1971 and joined the array of defendants. Similarly, Bashir Ahmed son of Allah Bux became a party upon the claim of having purchased land through Mutation No. 408 dated 28.2.1971. Besides the decree for specific performance the plaintiff also prayed for a declaration that the subsequent alienation by the same vendors were illegal and inoperative against the rights of the plaintiff".
4.  Learned counsel appearing on behalf of the appellants contended that where identity of the ladies entering into an agreement to sell has not been established on the record, such agreement has no sanctity in the eye of law. The Local Commissioner, the learned counsel submitted, was allegedly appointed in terms of Section 38 of the Registration Act but he failed either to satisfy himself as to the identity of the persons appearing before him and alleging to have executed the document or to inquire whether such document was executed by the persons it was purported to have been executed, therefore, such document could not create any right in favour of any person. The report of the Local Commissioner, the learned counsel submitted, cannot be held to be free from the taint of manipulation when it was admittedly submitted by the said Commissioner after the lapse of three months. The learned counsel proceeded to contend that in all the cases where pardanasheen illiterate ladies are involved, the burden to prove bona fide and genuineness of the transaction lies on the person who alleges it. Not only that, the learned counsel maintained, the burden to prove that the lady thus transacting the business had the benefit of independent advice is also on the person at the receiving end. When looked at from this angle, the learned counsel proclaimed, the respondents have failed to make out a case for grant of the decree asked for. It appears, the learned counsel exclaimed, that all the fora below as well as the High Court granted a decree in favour of respondents without appraising the evidence on the record and without taking into account the law of the land. The learned counsel to support his contentions placed reliance on the cases of "Surajpal Singh and others. Vs. Shri 108 Puja Pad Udit Panch Parmeshwar Panchaiti Akhara Uddasi Nirwani and another" (AIR 1939 Allahabad 486), "Begum Farkhanda Akhtar and others. Vs. Capt. M. Asif Akhtar and others" (1995 CLC 75), "Malik Riaz Ahmed and others. Vs. Mian Inayatullah and others" (1992 SCMR 1488), "Janat Bibi. Vs. Sikandar Ali and others" (PLD 1990 S.C 642) and "Sakinabai w/o Hatimbhai. Vs. Sakinabai w/o Ibrahimbhai Bohra and another" (AIR 1963 Madia Perdesh 286). Even the sale consideration, the learned counsel submitted, cannot be said to have passed hands when the evidence adduced in this behalf is discrepant and even contradictory. With this quality of evidence, the learned counsel by concluding his arguments contended, the suit of the respondents could not be decreed at least without the opinion of the Finger Prints Expert showing that the agreement to sell was in fact thumb impressed by the ladies.
5.  As against that learned counsel appearing on behalf of the respondents contended that report of the Local Commissioner appointed in terms of Section 38 of the Registration Act and his statement recorded in the Court established the identity of the persons appearing before him and alleging to have executed the document, therefore, the bonafide and the genuineness of the document stands proved. Such document, the learned counsel submitted, cannot be looked at with doubt and suspicion when one of the persons identifying the ladies happens to be a son of one and a brother of the rest, while the other happens to be a son-in-law of one and the husband of another. Even the benefit of independent advice, the learned counsel maintained, appears to have been availed by the ladies when the persons identifying them are so closely related to them. The learned counsel next contended where the fora below and the High Court for sufficient reasons believed the evidence of Local Commissioner and identifying witnesses, this Court cannot substitute its own view for that of the fora below simply because on reappraisal of evidence, a view projected by the learned counsel for the appellants is equally possible. The finding of the trial Court, the learned counsel added, and that of First Court of Appeal which is also a final Court of fact have to be given preference. Such finding, the learned counsel submitted, cannot be interfered with unless it suffers from a taint of misreading or non-reading of evidence. The learned counsel to support his contentions placed reliance on the cases of "Bombay Cotton Manufacturing Co. Vs. R. B. Motilal Shivlal" (AIR 1915 Privy Council 1), "Abdul Majid and others. Vs. Khalil Ahmad" (PLD 1955 Federal Court 38), "Ghulam Rasool through LRs. and others. Vs. Muhammad Hussain and others" (PLD 2011 S.C. 119). Another reason, the learned counsel submitted, for giving preference to the verdict of the trial Judge is that he had had the advantage of having seen and heard the witnesses. The learned counsel to support his contention placed reliance on the cases of "Prem Singh Hyanki and another. Vs. Deb Singh Bisht and another" (AIR 1948 Privy Council 20) and "Harry Young Lai Vs. Benjamin Cho Fook Lun and another" (PLD 1957 Privy Council 89). Finding on a question of fact, the learned counsel submitted, arrived at by two Courts below cannot be interfered with even in second appeal what to say of appeal before this Court. Learned counsel to support his assertion also placed reliance on the cases of "Mumtaz and 3 others. Vs. Mian Khan" (PLD 1973 Lahore 47), "Ramzan Ali Ansari. Vs. Ghulam Qadir and others" (PLD 1966 West Pakistan Lahore 455), "Abdul Rashid.Vs. Bashiran and another" (1996 SCMR 808) and "Syed Rafiul Qadre Naqvi Vs. Syeda Safia Sultana and others" (2009 SCMR 254). The learned counsel by concluding his arguments contended that even an erroneous construction placed on the statue by the trial Court doesn't amount to exercising jurisdiction illegally or with material irregularity, therefore, it would not furnish a ground for interference under Section 115 of the, CPC by the High Court and under Article 136 of the Constitution of India by the Supreme Court. The learned counsel to support his contention placed reliance on the case of "Ratilal Balabhai Nazar. Vs. Ranchhodbhai Shankarbhai Patel and another" (AIR 1966 S.C. 439).
6.  We have gone through the entire evidence with the able assistance of the learned counsel for the parties and carefully read the judgments cited at the bar.
7.  Learned counsel for the parties projected this case according to their own mindset and line of attack and defence aforethought. Learned counsel for the appellants tried to capitalize the lapses and lacunas in the evidence adduced by the respondents. Whereas learned counsel for the respondents sought to draw premium from the concurrent finding of fact which according to the High Court was found free from any taint of misreading or non-reading of evidence. Regardless altogether of how the parties or their counsel projected their case, we would maintain a finding only when we are satisfied that it has been rendered in accordance with the well recognized principles of law of evidence.
8.  Transactions with illiterate Pardanasheen ladies have always been examined with much greater care and circumspection. This Court held in a good number of cases that where a Pardanasheen lady is a party to a transaction affecting her right and interest in an immovable property, it is always on the person claiming such a right and interest to establish affirmatively that she substantially understood the nature of transaction and had been benefit of independent advice. Evidence in this regard must be aboveboard and unimpeachable. But where such lady felt chary to state all these things before the Court, would she still be entitled to such rights? Another question which seriously agitates our mind is that the trial Court or for that matter the Court of appeal took all the pains to compare admitted signatures of Mubarak Mian with his disputed ones but they conveniently avoided to send the disputed thumb impressions of the ladies with their specimen thumb impressions to the Finger Prints Expert for comparison. The latter, in our view, was of much greater importance as it would have brought the whole truth to light. Opinion of the Court affirming the signature of Mubarak Mian on the agreement to sell after comparing it with his specimen signatures would at its best establish his presence at the time of its execution. It, by no stretch of imagination, could establish that he rightly identified the ladies appearing before the Commissioner and alleging to have executed the document. It was argued that this aspect was not stressed in the Court of first instance, the first Court of appeal or even in the second Court of appeal but the fact is to the contrary as this aspect has been fully highlighted in all the Courts through an application and the memorandums of appeal respectively.
9.  Neither of the parties, perhaps out of fear or hesitation to face the truth, ran the risk of examining Mubarak Mian or Mst. Zubaida Bibi as its witnesses, that is why both of them were examined as Court witnesses. Both denied their signature and thumb impression respectively on the agreement to sell. Mst. Zubaida Bibi not only denied her thumb impression on the agreement to sell but also those of her daughters. Statements of the witnesses examined by either of the parties cannot be held of a class as could conclusively prove its respective claim. Evidence of the other ladies would have clinched the matter but it was withheld. Evidence of the respondents when juxtaposed with that of the appellants, cannot be held to have the virtue of being superior to the latter except this that it has been believed by the fora below without recording reasons therefor. Evidence of the appellants, when juxtaposed with that of the respondents, cannot be held to have the vice of being inferior to the latter except this that it has not been believed by the fora below without recording reasons therefor. What this Court is to do in this state of affairs? The answer is not too far to seek. It has to look around for an evidence which is of an unimpeachable caliber but tends to supplement either the evidence of the respondents or that of the appellants to enable it to pronounce a balanced judgment. It could be no other but the opinion of the Finger Prints Expert viz-a-viz the genuineness or otherwise of the thumb impressions of the ladies. This is what was essential for just decision of the case. This is what was sought to be brought on the record through an application for additional evidence. This is what is provided by Rule 27 of Order XLI of, CPC which reads as under:--
"27.--Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if --------
(a)        the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b)        the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.
(2)  Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission".
During the course of arguments, when we suggested a comparison of disputed thumb impressions of the ladies with their admitted or specimen thumb impressions by a Finger Prints Expert, we were told that most of the ladies are by now dead, therefore, their specimen thumb impressions cannot be obtained. Well, this explanation may be plausible but there could be many other documents like the record of National Registration Office or any other record where admitted thumb impressions of the ladies could be found.
10.  It is correct, as urged by the learned counsel for the respondents, that this Court cannot substitute its own view for that of the fora below even if the view projected by the learned counsel for the appellant, on reappraisal of evidence, is equally possible. It is also correct that the finding given by the Court of first instance and that of the first Court of appeal which is also a final Court of fact for the reasons recounted in the arguments of the learned counsel for the respondents has to be given preference if it is free from a taint of misreading or non-reading of evidence. But it may not be lost sight of that it is not only misreading  or   non-reading  of  evidence  which  amounts  to exercising jurisdiction illegally or with material irregularity. Failure to record additional evidence which is essential for just decision of the case also amounts to exercising jurisdiction illegally and with material irregularity. Failure to do so shall be failure to exercise jurisdiction vested. The District Judge or for that matter the High Court in the circumstances should have stepped in to correct the illegality by permitting examination of additional evidence. But where they failed, they failed to exercise jurisdiction vested. Judgments rendered in the cases of "Bombay Cotton Manufacturing Co. Vs. R. B. Motilal Shivlal", "Abdul Majid and others. Vs. Khalil Ahmad", "Prem Singh Hyanki and another. Vs. Deb Singh Bisht and another" and "Harry Young Lai Vs. Benjamin Cho Fook Lun and another", "Mumtaz and 3 others. Vs. Mian Khan", "Ramzan Ali Ansari. Vs. Ghulam Qadir and others", (supra) are, therefore, not applicable to the case in hand. Judgments rendered in the cases of "Abdul Rashid. Vs. Bashiran and another" and "Syed Rafiul Qadre Naqvi Vs. Syeda Safia Sultana and others", "Ghulam Rasool through L.Rs. and others. Vs. Muhammad Hussain and others" (supra) having distinguishable facts and features are also of little relevance to the case in hand. Judgment rendered in the case of "Ratilal Balabhai Nazar. Vs. Ranchhodbhai Shankarbhai Patel and another" taking too narrow and pedantic view of the subject and situation has not moved us to the least. The fact is that we are far ahead of the stage, the Supreme Court of India was at, during the time it rendered the judgment cited above. Gone are the days when superior Courts declined to interfere with the finding of the fora below even though it was erroneous.
11.  This Court has consistently held that if a lis involving a disputed question of fact is decided, it has to be decided on proper appraisal of evidence and that if a lis involving appreciation or interpretation of law is decided, it has to be decided in accordance with the well recognized principles laid down by this Court from time to time. Justice at no cost and at no stage be allowed to fall prey to the procedural technicalities. They be ignored if they tend to create hurdle in the way of justice. For law can survive as a living force only when it dynamically assimilates and adapts to the changes around to further the cause of justice. This is how the law grows and this is how the jurisprudence advances.
12.  Having thus considered, we are of the view that remand of the case for its just decision would be but imperative. Therefore, we allow this appeal, set aside the impugned judgments and decrees of the High Court and those of the learned District Judge and send the case back to the latter for decision afresh in the light of the opinion of the Finger Prints Expert, as to the genuineness or otherwise of the thumb impressions or signatures of the ladies. The learned District Judge shall be at liberty to record additional evidence of his own or at the instance of the parties to bring on the record the admitted or specimen thumb impressions or signatures of the ladies for sending them together with the disputed thumb impressions or signatures to the Finger Prints Expert for comparison. As it is an old case, it be decided within two months after the receipt of the file even if it is to be heard on day to day basis.
(R.A.)  Appeal allowed

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