The
case law on the subject, under consideration, suggests that the
burden of proof in respect of genuineness of a transaction with an
illiterate person and a document allegedly executed by such a person
lies on the beneficiary of the document, who is legally obliged to
prove and satisfy the Court: firstly, that the document was executed
by an illiterate person; secondly, that illiterate person had complete
knowledge and full understanding about the contents of the
document; thirdly, the document was read over to him/her and terms
of the same were adequately explained to him/her; and, fourthly, that
he/she had independent and disinterested advice in the matter before
coming into the transaction and executing the document. The
essence of the above stated principle is to prevent any overreaching
out or fraud being perpetrated on illiterates by reason of their inability to read and write. In furtherance of this object it is,
therefore, incumbent upon a person who writes any document at the
request, or on behalf, or in the name of any illiterate person also to
write on such document, his own name as the writer thereof and his
address as well as the endorsement to the effect that document was
written in presence of the seller’s consultant (that is, who
(i) can read and write the language of the document;
(ii) understands the contractual transaction; and
(iii) having no conflict of interest has advised the illiterate person about the contractual transaction). Such Verification Note/Statement shall be equivalent to a statement:
(a) that he was instructed to write such document by the person it purports to have been written and the document fully and correctly represents his/her instructions; and
(b) if the document purports to be signed with the signature or mark of the illiterate person, that prior to being so signed or marked, it was read over and explained to the illiterate person, and that the signature or mark was made by such person.
(i) can read and write the language of the document;
(ii) understands the contractual transaction; and
(iii) having no conflict of interest has advised the illiterate person about the contractual transaction). Such Verification Note/Statement shall be equivalent to a statement:
(a) that he was instructed to write such document by the person it purports to have been written and the document fully and correctly represents his/her instructions; and
(b) if the document purports to be signed with the signature or mark of the illiterate person, that prior to being so signed or marked, it was read over and explained to the illiterate person, and that the signature or mark was made by such person.
Used in judgement of
Lahore High court
Civil Revision
2302034.3204-15
| 2019 LHC 190 |
Mt. Farid-ud-Nisa v. Munshi Mukhtar Ahmad and another (AIR 1925 PC 204), Chainta Dasya v. Bhalkur Das (AIR 1930 Calcutta 591), Parasnath v. Tileshra Kuav (1965) All LJ 1080), Daya Shankar v. Smt. Bachi and others (AIR 1982 All 376), Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642), Amirzada Khan and another v. Itbar Khan and others (2001 SCMR 609), Khawas Khan through legal heirs v. Sabir Hussain Shah and others (2004 SCMR 1259), Muhammad Ashraf Khan v. Khan Siddique and others (2010 SCMR 1116), Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others (2013 SCMR 868) & Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225)
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