' MUHAMMAD NAWAZ ABBASI, J.---This petition has been directed against the consolidated judgment dated 16-3-2007 passed by a learned Judge in chambers of High Court of Sindh, Circuit Bench Hyderabad, in a second appeal arising out of a civil suit for cancellation of the registered sale deeds and a constitution petition against the ejectment of the petitioners from the property in dispute whereby both the second appeal and writ petition have been dismissed.
2. The relevant facts in the background giving rise to this petition are that property in dispute was an evacuee property one portion of which was in possession of Mst. Halima Bai, predecessor in interest of respondents herein, namely Shamasuddin and Mst. Asifa whereas another portion of it as stated, was in possession of Mst. Zohra Begum, maternal grand-mother of the petitioners. Mst.
Halima Bai, applied for transfer of the property and Mst. Zohra Begum entered into an agreement with her for adjustment of her compensation book towards the price of property and ultimately on transfer of the property in the name of Mst. Halima Bai, PTD was issued in her name in 1969. Mst.
Zohra Begum, in consequence to the subsequent refusal of Mst. Halima Bai to acknowledge the agreement in question and on coming to know about the sale of property to Abdul Hameed vide registered sale-deed dated 26-2-1969, filed a suit for specific performance of the contract which was ultimately dismissed for non-prosecution. Later, Abdul Hameed sold the property to Mst.
Feroza Khanum, predecessor in interest of the petitioners, vide sale-deed dated 16-11-1976 and Mst.
Halima Bai denying the genuineness of the transaction of sale in favour of Abdul Hameed, instituted a suit for cancellation of registered sale-deed dated 26-2-1969 and 16-11-1976 on the ground that sale-deed allegedly executed by Mst. Halima Bai in favour of Abdul Hameed was the result of fraud and misrepresentation and thus the subsequent sale-deed executed by Abdul Hameed in favour of Mst. Feroza Khanum would be of no legal consequence. On death of Mst.
Halima Bai, the respondents herein, being her legal heirs, were substituted as plaintiffs in the suit and their assertion was as under:-
(1) The sale-deed dated 26-2-1969 was a fake document as the plaintiff (Mst. Hamila Bai) being an illiterate pardanasheen lady of the age more than 80 years old was defrauded by Abdul Hameed, her maternal grandson, who got the property transferred in his name through a fabricated sale- deed without her knowledge;
(2) Mst. Feroza Khanum was in occupation of the property as tenant and despite having knowledge that Mst. Halima Bai was the real owner of the property, purchased it from Abdul Hameed and had not acquired a valid title.
3. The suit was contested by the Mst. Feroza Khanum, predecessor in interest of the petitioners and Abdul Hameed with the assertion that Mst. Halima Bai was not a pardanasheen lady and she having sold the property for valuable consideration willingly executed the sale-deed.
4. The learned trial Judge in the light of pleading of the parties and the evidence brought by them on record, dismissed the suit vide judgment dated 22-9-1980 whereupon respondents, (successors in interest of Mst. Halima Bai) filed an appeal which succeeded and a learned Additional District Judge, at Hyderabad, reversing the judgment of the trial Court, decreed the suit. The petitioners as well as Abdul Hameed by way of filing separate second appeals, assailed the judgment and decree passed by the appellate Court before the High Court of Sindh, Circuit Bench at Hyderabad and both these appeals were dismissed vide consolidated judgment impugned before us in this petition. The civil revision filed by Mst. Zohra Begum was dismissed for non-prosecution and the constitutional petition filed by the petitioners against the order of their ejectment from the premises, was also dismissed.
5. In support of this petition, learned counsel for the petitioners has contended that learned first appellate Court and the learned judges in the High Court in second appeals were misdirected in coming to the conclusion that the sale-deed executed by Mst. Halima Bai in favour of Abdul Hameed was not a genuine document. The correctness of the concurrent findings of the two Courts on the above question of fact has been challenged before us mainly on the ground that the finding was based on misreading of the record. The learned counsel asserted that Shamasuddin, respondent herein and a star witness in the suit, having admitted the material facts regarding existence of agreement dated 17-11-1967 between Mst. Halima Bai and Mst. Zohra Begum, the relationship inter se Abdul Hameed and Mst. Halima Bai and that she was not a pardanasheen lady, has impliedly acknowledged the genuineness of the sale-deed in favour of Abdul Hamed and in the light of the above facts, the decree passed by learned Additional District Judge in first appeal and affirmed by High Court in second appeals, was contrary to the correct factual position. The learned counsel, however, submitted that since Mst. Feroza Khanum having the knowledge of disputed character of title of Abdul Hameed, purchased the property, therefore, she instead of taking the plea of bona fide purchaser for value preferred to set up the claim of ownership of the property on the basis of title of Abdul Hameed. In nutshell, learned counsel argued firstly that no evidence was brought on record in support of the assertion that Mst. Halima Bai due to the old age, was not in a position to enter into transaction of sale; secondly, the presumption of correctness attached with registered sale-deed in absence of any evidence to the contrary, would remain unrebutted and thirdly, in the light of principle of law that initial burden of proving the genuineness of a document is always on the person who alleges fraud and misrepresentation, sale-deed dated 26-2-1999 could not be proved a forged document. The learned counsel submitted that in the present case, the first appellate Court as well as High Court have failed to appreciate that respondents have not been able to discharge their burden by bringing on record any evidence in support of their assertion regarding the fake character of registered sale-deed and in that the concurrent finding of two Courts on the question of fact being based on misreading and non- reading of evidence, would have no legal consequence.
6. Learned counsel for the respondents, on the other hand has submitted that the fact relating to the old age of Mst. Halima Bai at the time of alleged sale, was not disputed and in the normal circumstances, a person of such an advance age may not transfer the property in the name of a third person depriving his/her real son and daughter from their legitimate right of inheritance in his property. Learned counsel asserted that in view of the special features of this case, the petitioners were under heavy burden to prove that sale-deed in favour of Abdul Hameed was actually executed by Mst. Hamila Bai and was a genuine document and that notwithstanding the legal defect in the title of Abdul Hameed, vendor. Mst. Feroza Khanum having purchased the property in good faith, acquired the valid title.
7. The material facts as narrated hereinabove are admitted and in view thereof, the essential question requiring determination to resolve the dispute of title of property between the parties, would be (a) whether transaction of sale in favour of Abdul Hameed vide registered sale-deed dated 26-2-1969 allegedly executed by Mst. Halima Bai was genuine on the basis of which the vendee could pass on a valid title; (b) whether in case of illiterate or pardanahseen woman the burden of proving the genuineness of registered sale-deed allegedly executed by her, is not on the beneficiary of document or the burden of proving the fake character entirely lies on the executant of the document.
8. This is established law that in case in which the executant of the document is a pardanasheen or illiterate woman, notwithstanding the fact that she is known to the vendee or is a stranger to him, if she denies the execution of document, the party placing reliance on such document must prove its execution and the burden of proving the negative fact is shifted to such a woman, executant, if the initial burden of proving the genuineness of document is discharged. The identification of an illiterate or pardanasheen woman, vendor, must be established beyond doubt and Court must be vigilant in taking extra care to ascertain the genuineness of a registered document which is alleged to have been executed by an illiterate or ignorant woman or a pardanasheen lady. This Court in Khawas Khan v. Shabbir Hussain Shah (2004 SCM R 1259) has held as under:- "In case of Pardanasheen lady, the party placing reliance upon the document would have to prove execution of said document that the Pardanasheen lady understood the terms of the deed and the deed was read over and explained 'to her. In case of illiterate Pardanasheen lady, it must be shown that deed was read over to her and the terms of the same were adequately explained to her and Court has to be cautious to see that the burden is satisfactorily discharged by the party in whose favour the deed was allegedly executed."
It was held in Ghulam Muhammad v. Farooq Ahmed and others (2002 SCM R 1801) as under:-- "It has been held by the superior Courts consistently that in the case of illiterate and Pardahnashin lady, the Court should be very careful in recording findings as to the execution of any agreement by her if she had challenged the same on the ground that it had been obtained from her by fraud".
' In Arshad Khan v. Mst. Reshman Jan and others (2005 SCMR 1589) it was held as under:-- "This is settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it, to prove the good faith and genuineness of the transaction as envisaged in Article 127 of Qanun-e-Shahadat, 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in a position of active confidence. This is settled law regarding the disposition of property of Pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convincing evidence."
9. In the present case, Mst. Halima Bai died before she appeared in the witness box.And none of the two marginal witnesses of the sale-deed namely Qazi Mumtaz Ahmed and Qazi Ijaz Ahmed were produced to prove the execution of sale-deed dated 26-2-1969 and the-genuineness of transaction of sale in favour of Abdul Hamed. The sole statement made by Abdul Hameed, vendee, on oath who was the beneficiary of the transaction, that Mst. Halima Bai, his maternal grandmother having sold the property for valuable consideration, executed the sale-deed of her B free will, could not be considered sufficient in the facts of the present case to prove the willingness of Mst. Halima Bai for transfer of the property and genuineness of the registered sale-deed dated 26-2-1969. The legal character of the document of title must be established through the independent evidence and Courts in such cases of doubtful character, must be extra careful to ascertain the genuineness of transaction. The first appellate Court as well as the High Court in second appeal after detail scrutiny of evidence, have concurrently held that the genuineness of sale allegedly executed by Mst. Halima Bai was not proved and notwithstanding the presumption of correctness attached with the registered sale-deed, the same being of disputed character, Would not be ipso facto considered a valid document of title. Learned counsel for the petitioners without satisfying us that the concurrent findings of two Courts on a pure question of fact were suffering from any legal or factual infirmity, made an attempt to convince us that Mst. Feroza Khanum having purchased the property in good faith, derived title free of any legal defect. We are afraid, Mst. Feroza Khanum having stepped into the shoes of Abdul Hameed, who was not a lawful owner of the property, would not get a better title and we having examined the record with the assistance of learned counsel for the parties, have not been able to take any exception to the legal position and also have not been able to find out any substance in the grounds raised by the learned counsel in support of the present petition for interference. The petitioners have not claimed the benefit of section 41 of the Transfer of Property Act and rightly so because Mst. Feroza Khanum, their predecessor-in-interest having the knowledge of dispute of title of property between Mst. Halima Bai and Abdul Hamed purchased the same and notwithstanding the fact that petitioners were in continuous possession of the property as owner, they by efflux of time would not be able to improve their title.
10. In the light of foregoing reasons and the facts and circumstances of the case, we have not been able to find out any legal or factual infirmity in the judgment of the High Court calling for our interference. Resultantly, this petition is dismissed. Leave is refused.