PLJ 2017 Lahore 349
Sale-deed--
----Transaction of property--Fraud was committed--Pardanashin old lady--Marginal witness of sale-deed--In admissible piece of evidence--Failed to produce original sale-deeds and never sought permission for secondary evidence--Appreciation of evidence--Question of--Whether she is parda observing or not--Determination--Burden of proof--Exceptional character--Protection has been extended on consideration that parda observing, old and illiterate women can easily swallow bait and cautious approach is required when parties happen to be close relatives--Old and illiterate ladies would be entitled to same protection, which is available to parda observing ladies--Burden of proof lies heavily on person relying upon a document to prove that executant of her own free will, full understanding of implications entered into transaction in his favour especially when such person being close relative of lady was in a position to attain her confidence. [P. 355] A
Sale-deed--
----Beneficiary of sale under law--Transaction of sale was genuine and plaintiff has categorically alleged against defendant that he committed fraud with her, as he made her to attest document i.e. disputed sale-deeds and subsequently mutated property in his favour and in such like situation when there is statement on oath by plaintiff that sale-deed was based on fraud and misrepresentation, onus would shift to defendants to prove that sale-deed had been executed by vendor in accordance with law.
[P. 355] B
Contract--
----Scope of--Essential elements of sale--Relationship--Under law, a contract for sale of immovable property is a contract that sale of such property is taken place on terms settled between parties and sale of ownership in exchange for a price paid or promised part paid or part promised while essential elements of sale are: (i) parties (ii) subject-matter, (iii) transfer of all conveyance (iv) price and consideration--Where transaction is inter se parties having very close relationship beneficiary is always burdened to establish sale.
[P. 355] C
Registered Sale-deed--
----Document of sale--Witness of transaction--Adverse presumption--Nature of transaction--Defendant being beneficiary when his real mother who was an illiterate parda observing lady was a party to transaction which would affect her right and interest in immovable property was obliged to establish affirmatively that plaintiff substantially understood nature of transaction and had benefit of independent advice in that regard which could have been above board and unimpeachable--Neither scribe of sale nor any person before whom plaintiff received consideration price was produced in witness box despite of fact that defendant/vendee being beneficiary was bound to prove execution of agreement to sell in accordance with law and adverse presumption may be drawn that had such witnesses been examined, they would have not supported defendants’ case. [P. 356] D & E
2007 SCMR 1884, for.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 78--Document--Sale deed--Inadmissible in evidence--Nature of transaction--Handwriting or signature or thumb mark of alleged executant--Execution of document--Burden to prove--Execution of document would not only mean mere signing or putting thumb impression but something more than mere signing or putting thumb impression by executant--It must be proved that thumb-mark was made in presence of witness in whose presence document was written and read over and it was understood by vendor and would not only be limited to merely signing a name or placing thumb-impression upon a blank sheet of paper so as to prove document to have been executed whose identification would also be proved by reliable and authentic evidence that a person who had affixed thumb- mark or signature was same person who owned land and sold same to vendee--Execution would mean series of acts, which would complete execution--Mere signing or putting thumb-mark would not amount to execution in terms of Art. 78 of Q.S.O.--A document which is not proved is inadmissible in evidence, unless strict proof of it is waived--Sale deeds were executed by plaintiff out of her freewill and that contents of same were read over to her and nature of transaction was explained to her and that at time of execution of documents she had an independent advice of her close relatives but despite burden to prove this fact, defendant has failed to discharge his onus by not explaining nature of transaction to plaintiff. [Pp. 356 & 357] F & G
Transfer of Property Act, 1882 (IV of 1882)--
-----S. 54--Sale deed--Registered document--Marginal witness of sale-deeds--Possession of property was handed over was not proved--Ingredients of--A sale mutation confirming fulfillment of these ingredients is a sale but defendants have not produced any evidence establishing that sale price was received by plaintiff from defendant and that possession of property was also handed over at time of registration of sale-deed. [P. 357] H
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 76--Sale deed--Certified copies of sale-deeds and registered documents in evidence--Question of--Whether secondary evidence could be produced depends upon satisfaction of conditions--Presumption of correctness--Certified copy of a registered document may prove contents of original document, but merely showing as to what were contents of original document, is not sufficient in absence of proof of execution of original document--Defendants had failed to produce scribe, sub-registrar and stamp vendor before trial Court to prove contents and execution of sale-deeds and witnesses were available to defendants but they withheld said witnesses that if witnesses were produced they would not support their version--Defendants did not produce original sale-deeds and have tendered attested copies of same without seeking permission of Court and evidentiary value of a certified copy of sale-deed would lose its importance and copy would not be sufficient to prove execution of original documents--Onus was on defendants to prove that valid sale-deeds had been executed and defendants have failed to prove execution of sale-deeds and finding of Courts below that plaintiff could not produce scribe, marginal witnesses and presumption was drawn against plaintiff--Allegation of fraud was made by plaintiff and onus was on defendants to prove genuineness of sale transaction as it was duty of defendants to produce marginal witnesses before trial Court. [Pp. 357 & 358] I, J & K
Limitation Act, 1908 (IX of 1908)--
----Art. 120--Limitation--Sale deed--Fraud--Date of discovery of fraud--Knowledge about fraudulent entries in revenue record--Under law, time begins to run from date when right to sue accrues and suit to declare sale void and ineffective on ground of fraud, right to sue accrues from date of discovery of fraud--Period of limitation would be computed from time, when right to sue accrues to a party and suit filed within 2/3 days from date of gaining knowledge about fraudulent entries in revenue record would be well within time, where such entries were found to be without jurisdiction, void and nullity in eye of law, then question of limitation would not come in way of plaintiff in challenging such fraudulent action of defendants--Fraud was unearthed three days before institution of suit when plaintiff was expelled out of house and when fraud had been alleged against, time computes from date when fraud comes into knowledge of aggrieved party--Suit is barred by limitation is against law--Disputed sale could not be proved by any stretch of imagination and onus to prove valid execution of sale-deeds was upon beneficiary/ defendants who failed to discharge said burden.
[Pp. 358 & 359] L, M, N & O
Makhdoomzada Syed Najam-us-Saqib, Advocate for Petitioner.
Ch. Abdul Ghani, Advocate for Respondents.
Date of hearing: 7.2.2017.
PLJ 2017 Lahore 349
[Multan Bench Multan]
Present: Habib Ullah Amir, J.
versus
FAIZ MUHAMMAD etc.--Respondents
C.R. No. 731-D of 2011, heard on 7.2.2017.
Judgment
Through this revision petition, petitioner has assailed judgments and decrees dated 20.4.2010 passed by learned Civil Judge, Muzaffargarh and dated 04.5.2011 passed by learned Additional District Judge, Muzaffargarh, whereby suit of petitioner for declaration with consequential relief has been dismissed.
2. The facts, in brief, of this case are that petitioner instituted a suit for declaration and perpetual injunction against respondents qua the property fully described in plaint contending therein that she being widow of Ghulam Qadir was a pensioner of railway department. The department used to demand ‘No Marriage Certificate’ occasionally from widow pensioners and her son Faiz Muhammad (Respondent No. 1 herein) used to render help in this regard and it was averred that Faiz Muhammad used to get the petitioner’s pension papers verified and in a fraudulent manner procured her thumb impressions on sale-deeds Nos. 1065 and 1066 dated 24.7.1984 and in collusion with revenue staff, further implemented sale in Mutations Nos. 6863 and 6864 dated 17.12.1984, whereafter he executed general power of attorney in favour of his wife for alienation of suit property. Petitioner’s suit was resisted by respondents/defendants and after recording evidence and hearing the parties, learned Civil Judge, Muzaffargarh dismissed the suit vide judgment and decree dated 20.4.2010. Feeling aggrieved, petitioner filed an appeal which remained pending in the Court of learned Additional District Judge, Muzaffargarh which met the same fate of dismissal, hence this revision petition.
3. Learned counsel for petitioner contends that impugned judgments and decrees are against law, facts of case and suffer from illegality and material irregularity of jurisdiction; the same are based on surmises and conjectures and findings of learned Courts below on the issues are legally and factually erroneous and unsupported by any legal evidence. It has failed to be appreciated that petitioner was Pardanashin old lady and respondents were obliged to prove the factum of sale; that respondents were obliged to produce marginal witnesses of the sale-deeds, scribe and stamp vendor but they failed to do so; that respondents could not produce original sale-deeds and never sought permission for secondary evidence, thus inadmissible piece of evidence was taken into account; that learned Courts below have given undue credence to the evidence of respondents and it has failed to be appreciated that suit was not barred by limitation.
5. On the other hand, revision petition in hand has been controverted by learned counsel for respondents.
6. I have heard learned counsel for parties and perused the file.
7. Iqbal Begum, plaintiff/petitioner through her suit has averred that on the demand of ‘No Marriage Certificate’ by railway department from her being widow, Respondent No. 1/defendant Faiz Muhammad used to get pension documents attested and by finding opportunity got the thumb impressions of plaintiff on sale-deeds Nos. 1065 & 1066 and with the collusion of the officials of registry branch got mutated land in his favour vide Mutations Nos. 6863 and 6864 and in order to further transfer the property got prepared forged power of attorney on 01.9.2001. On the other hand, defendants/respondents controverted the suit on different grounds including that Defendant No. 1 was residing in Libya and he had never got attested pension papers of plaintiff but actually plaintiff sold away the disputed property to him for consideration of Rs. 20,000/- whereafter Mutation Nos. 6863 and 6864 were attested. They also added that Defendant No. 1 was in Libya, therefore, he appointed his wife Mst. Rehmat Bibi, Defendant/Respondent No. 2 as his attorney and after purchasing the disputed property, by spending Rs. 200,000/- got constructed house and rented the same to Niaz Ahmad whereas by spending
Rs. 3,50,000/- got constructed another house. It is also on record that Faiz Muhammad etc. submitted amended written statement wherein it was averred that Defendant No. 1 had transferred 11010 American Dollars through Account No. 2325 of United Bank Limited, Multan Road Branch Muzaffargarh which amount was received by plaintiff. In addition, he had also given money to plaintiff and that he asked Niaz Ahmad to vacate the house but he refused and at his instigation, plaintiff instituted the suit.
8. Plaintiff has challenged Sale-Deeds Nos. 1065 and 1066 registered on 24.7.1984 and subsequent Mutation Nos. 6863 and 6864 which were attested in favour of Defendant No. 1 and she averred in suit that on the pretext of attestation of pension papers and by committing fraud, Defendant No. 1 Faiz Muhammad got attested disputed sale-deeds despite that she never sold her property to him and that she had not received consideration price. Petitioner is the real mother of Defendant No. 1 Faiz Muhammad and she has deposed in evidence that she is an old lady and under the law every illiterate woman, whether she is parda observing or not, is protected unless circumstances suggest that she was of an exceptional character and able to manage her affairs independently. The protection has been extended on the consideration that parda observing, old and illiterate women can easily swallow the bait and cautious approach is required when the parties happen to be close relatives. Old and illiterate ladies would be entitled to the same protection, which is available to the parda observing ladies. Burden of proof lies heavily on person relying upon a document to prove that the executant of her own free will, full understanding of the implications entered into the transaction in his favour especially when such person being close relative of the lady was in a position to attain her confidence. To strengthen this point, reliance can be placed on the case reported as “Muhammad Afzal v. Muhammad Zaman and others” (PLD 2012 Lahore 125). Defendant No. 1 being real son of plaintiff and beneficiary of sale is under the law obliged to prove that transaction of sale was genuine and in this case plaintiff has categorically alleged against Defendant No. 1 that he committed fraud with her, as he made her to attest document i.e. disputed sale-deeds and subsequently mutated property in his favour and in such like situation when there is statement on oath by plaintiff that sale-deed was based on fraud and misrepresentation, onus would shift to defendants to prove that sale-deed had been executed by vendor in accordance with law. In this connection, reliance can be made to the case reported as “Mirza Allah Ditta alias Mirza Javed Akhtar v. Mst. Amna Bibi and another” (2004 Y L R 239). Plaintiff has categorically deposed as P.W.1 that on the pretext of attestation of pension documents, she was taken to Kachehry where she was made to put thumb impressions on documents and she was not produced before any officer while she had neither sold her property nor received consideration price.
9. Under the law, a contract for sale of immovable property is a contract that sale of such property is taken place on terms settled between the parties and sale of ownership in exchange for a price paid or promised part paid or part promised while the essential elements of sale are: (i) parties (ii) subject-matter, (iii) transfer of all conveyance (iv) price and consideration. In case where transaction is inter se the parties having very close relationship the beneficiary is always burdened to establish the sale. Defendant No. 1 in order to prove genuineness of sale transaction, has appeared in the witness box and deposed that plaintiff had come to Kachehry alongwith her son Riaz and stamp papers were purchased by her mother (plaintiff) and before Sub-Registrar she recorded her statement and he paid Rs. 20,000/- to plaintiff. In his support, he produced Saeed Ahmad as D.W.2. However, he has conceded that he did not join the proceedings when sale-deed was registered and at that time he was residing separately. He also admitted that his mother had to furnish ‘No Marriage Certificate’ after every four/six months to receive pension. Defendant No. 1 being beneficiary in the circumstances when his real mother who was an illiterate Parda observing lady was a party to transaction which would affect her right and interest in the immovable property was obliged to establish affirmatively that plaintiff substantially understood the nature of transaction and had the benefit of independent advice in this regard which could have been above board and unimpeachable. However, no evidence in this regard has been produced by defendants and it has not been brought on record as to whether plaintiff had an independent advice in respect to transaction before the registration of sale-deeds. Moreover, the documents of sale, i.e. Exh.D.1 and Exh.D.2 have unveiled that Riaz Ahmad, Malik Ahmad Bakhsh along with Syed Jalal Abbas Kazmi are witnesses of transaction of sale but it is surprising to note that none from the marginal witnesses had been produced in witness box. Similarly neither the scribe of the sale nor any person before whom plaintiff received consideration price was produced in the witness box despite of the fact that Defendant No. 1/vendee being beneficiary was bound to prove execution of agreement to sell in accordance with law and adverse presumption may be drawn that had such witnesses been examined, they would have not supported defendants’ case. In this connection, I am fortified by the view laid down in the case reported as “Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others” (2007 SCMR 1884). It has also been laid down in the above case-law that execution of a document is to be proved to be in the handwriting or signature or thumb-mark of the alleged executant, which would mean signing or putting thumb-mark over a document as consenting party thereto. Execution of document would not only mean mere signing or putting thumb impression but something more than mere signing or putting thumb impression by the executant. It must be proved that thumb-mark was made in the presence of witness in whose presence the document was written and read over and it was understood by the vendor and would not only be limited to merely signing a name or placing thumb- impression upon a blank sheet of paper so as to prove the document to have been executed whose identification should also be proved by reliable and authentic evidence that a person who had affixed thumb- mark or signature was the same person who owned the land and sold the same to the vendee. Execution would mean series of acts, which would complete the execution. Mere signing or putting thumb-mark would not amount to execution in terms of Article 78 of Qanun-e- Shahadat Order, 1984. A document which is not proved is inadmissible in evidence, unless strict proof of it is waived. Defendant No. 1 was also obliged to prove that sale-deeds were executed by plaintiff out of her freewill and that contents of same were read over to her and nature of transaction was explained to her and that at the time of execution of the documents she had an independent advice of her close relatives but despite burden to prove this fact, Defendant No. 1 has failed to discharge his onus by not explaining the nature of transaction to plaintiff. To strengthen this point, reliance can be placed on the judgment reported as “Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai” (PLD 2005 S.C. 658). Admittedly defendantNo. 1 neither produced any marginal witness of the sale-deeds nor proved that consideration price was paid to plaintiff. Similarly it has also not been proved that possession of disputed property was handed over by plaintiff to Defendant No. 1. Essential elements of sale envisaged in Section 54 of the Transfer of Property Act, 1882 have also not been proved by defendants as the sale means payment of money and delivery of possession. A sale mutation confirming fulfillment of these ingredients is a sale but defendants have not produced any evidence establishing that the sale price was received by plaintiff from Defendant No. 1 and that possession of property was also handed over to defendants at the time of registration of sale-deed.
10. Another aspect of this case is that defendants have produced certified copies of the sale-deeds and registered documents in evidence. The certified copy of a registered document may prove the contents of the original document, but merely showing as to what were the contents of the original document, is not sufficient in absence of the proof of execution of the original document. Therefore, at best it is secondary evidence of the contents of the original. Still the question whether such secondary evidence could be produced depends upon the satisfaction of the conditions laid down in Article 76 of the Qanun-e- Shahadat Order, 1984. Defendants have failed to produce the scribe, Sub Registrar and stamp vendor before the trial Court to prove the contents and execution of sale-deeds and said witnesses were available to defendants but they withheld said witnesses that if witnesses were produced they would not support their version. Defendants did not produce the original sale-deeds and have tendered attested copies of the same without seeking permission of the Court and evidentiary value of a certified copy of sale-deed would lose its importance and said copy would not be sufficient to prove execution of original documents. To support this version, reliance can be placed on case reported as “Syed Mansoor Ahmad v. Mst. Maqbool Begum and others” (1990 SCMR 1259). It has been held in the case reported as “Imam Din and 4 others v. Bashir Ahmed and 10 others” (PLD 2005 S.C. 418) that in absence of original document, its certified copy is not admissible in evidence and notwithstanding the presumption of correctness being attached with certified copy of a document pertaining to the official record, if the availability or existence of document is disputed and original is not produced, its certified copy would not be admissible in evidence without proving the non-availability of the original. Onus was on the defendants to prove that valid sale-deeds had been executed and defendants in this case have failed to prove the execution of sale-deeds and the finding of learned Courts below that plaintiff could not produce the scribe Riaz Ahmad, Marginal witnesses and presumption was drawn against plaintiff. However, it has been ignored that allegation of fraud was made by plaintiff and onus was on defendants to prove genuineness of the sale transaction as it was the duty of defendants to produce the marginal witnesses before trial Court.
11. Sale-deeds having been challenged by plaintiff were registered on 24.7.1984 while mutations were attested on 17.12.1984 and general power of attorney was executed by Faiz Muhammad in favour of Mst. Rehmat Bibi, Defendant No. 2 on 01.9.2001 while the suit was filed on 12.10.2001 and plaintiff through her suit has specifically averred that three days before she was expelled from the house by defendants by proclaiming that she had no concern whatsoever with the disputed property and on coming into knowledge of sale transactions and disputed mutations she filed suit. Under the law, time begins to run from date when right to sue accrues and suit to declare the sale void and ineffective on ground of fraud, right to sue accrues from date of discovery of fraud. In this connection, reliance can be made to the judgment passed in the case of “Fatahuddin v. Zarshad and another” (1973 SCMR 248). Under Article 120 of the Limitation Act, 1908 period of limitation would be computed from the time, when right to sue accrues to a party and suit filed within 2/3 days from date of gaining knowledge about fraudulent entries in revenue record would be well within time, where such entries were found to be without jurisdiction, void and nullity in the eye of law, then question of limitation would not come in the way of plaintiff in challenging such fraudulent action of defendants.
12. In this case, petitioner/plaintiff has alleged that fraud was committed and the material on record in this regard has not been considered and it has failed to be appreciated that fraud of defendants was unearthed three days before the institution of suit when plaintiff was expelled out of house and when fraud has been alleged against, the time computes from the date when fraud comes into the knowledge of aggrieved party. The findings of learned Courts below that suit is barred by limitation is against law. Both learned Courts below committed irregularity and illegality while passing the impugned
judgments and decrees which are also reflective of misreading and non-reading of evidence. Disputed sale could not be proved by any stretch of imagination and onus to prove valid execution of sale-deeds was upon beneficiary/defendants who failed to discharge the said burden.
13. For what has been discussed above, this revision petition is accepted, impugned judgments and decrees passed by both learned Courts below are set aside and suit filed by petitioner/plaintiff for declaration with consequential relief is decreed by leaving the parties to bear their own costs.
(R.A.) Petition accepted
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