PLD 2023 Supreme Court 628
Sale transaction with illiterate housewives / Pardanashin ladies --- Proof --- Appellant ( alleged vendee ) claimed that he purchased the suit property from the respondent , who was the General Power of Attorney ( GPA ) of the plaintiffs ( two illiterate suit for declaration with housewives ) --- Plaintiffs filed a permanent injunction against the appellant stating there in that they were the owners in possession of the suit property and that they never sold the suit property to the appellant --- [ Per Ayesha A. Malik [ Majority view ] : Appellant admitted that plaintiffs were illiterate housewives and resided in the same vicinity ; he also admitted that respondent was a property agent and that he had purchased other properties from him in the past --- Appellant did not produce any evidence of the sale in his favour as there were no witnesses to the sale or payment of the sale consideration nor does the revenue record detiail the sale and payment of sale consideration in the presence of revenue officer --- Furthermore , the appellant relied on mutation being a copy of the Register Dakhal Kharaj Mahaal to show that the suit property was sold to him by respondent --- Said mutation providesd that there was an oral sale through the GPA but gave no details of the oral sale and simply mentioned the sale consideration of Rs . 148,000 / ---- Register Dakhal Kharaj Mahaal was an incomplete document as the report mentioned in Column No.14 was not relied upon by the appellant to establish the oral sale in his favour --- There was also no report by the revenue officer to verify the oral sale in favour of the appellant --- Furthermore , the mere fact that the GPA was executed did not establish the sale in favour of the appellant , as he was required to provide independent evidence of the oral sale in his favour --- Importantly the GPA did not appear in Court , nor did any witness to establish the oral sale --- Since the appellant and respondent were known to each other and had been doing business together , therefore , the element of the fraud with the plaintiffs could not be ruled out --- In this case , there was no independent advice given to Pardanashin women --- Moreover , respondent being the GPA holder did not inform plaintiffs of the sale in favour of the in appellant Furthermore , even though the appellant resided the same village , he made no effort to ascertain whether plaintiffs intended to sell their property through the GPA to him --- Such fact became relevant when seen in the context of the plaintiffs evidence with reference to the sale consideration as entered into an agreement to sell the suit property for Rs.1,600,000 / - whereas the appellant purchased the property from the GPA for Rs . 148,000 / ---- Given that respondent executed the agreement to sell with plaintiffs and agreed to pay them Rs . 1,600,000 / - for the sale of the property , he betrayed their trust , did not complete the sale as agreed under the agreement to sell and instead sold the suit property to the appellant through an oral sale --- High Court had rightly decreed the suit of the plaintiffs ] --- [ Per Jamal Khan Mandokhail , ] [ Minority view ] : Agreement between the plaintiffs and the respondent was evidence of the fact that they sold the disputed property to the respondent , followed by which a registered power of attorney was executed in his favour --- Respondent exercised his authority by alienating the disputed property in the name of the appellant through the disputed mutation Factum of this sale and the number of the disputed mutation was already in the knowledge of plaintiffs , who subsequently incorporated the same into their agreement with the respondent , with their free will and consent --- Plaintiffs ' had a grievance against the respondent only as far as the outstanding amount was concerned --- Appellant in his written statement and in his statement recorded before the Trial Court contended that he had paid an amount of Rs.1,600,000 / - as consideration for the disputed property to respondent , whereafter the property was transferred to him through the disputed mutation --- It was the case of plaintiffs that respondent paid them an amount of Rs.100,000 / - each and delivered the cheque for the remainder amount which was subsequently dishonoured --- Such fact further supported the contention of the appellant that he had already paid the entirety of the consideration amount to respondent --- Besides , the stance of the appellant was neither challenged by plaintiffs nor was it contested by respondent --- Moreover , the appellant was not party to the agreements between the plaintiffs and the respondent , as such , was not bound by their terms and conditions --- In such circumstances , the present suit based on the agreements was not maintainable against the appellant . Respondent was proceeded against ex parte by the Trial Court 51 and also did not appear before the High Court as well as the Supreme Court - Such non - appearance on behalf of respondent suggested mala fide on his part and his collusion with the plaintiffs , as he was not only their authorized attorney , but also their nephew --- Plaintiffs had failed to make out a case against the appellant who was a bona fide purchaser --- Suit of plaintiffs was rightly dismissed by the Trial and Appellate Courts- .. Appeal was dismissed .
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