' The appellant in this case is aggrieved by the judgment and decree dated 16th June, 1975 passed by the learned Addl. District Judge, Sargodha, whereby the judgment and decree passed by the Civil Judge, Sargodha, has been reversed.
2. The brief facts of the case are that the appellant is the widow of Khushi Muhammad son of Fattu who appears to have died some 5/6 years before the institution of the present suit on 21st May, 1970. By this suit the appellant sough to challenge the gift of agricultural land measuring 118 kanals effected through mutation No, 2274 dated 20th March, 1968 situated at village Khan Muhammad Wala, Tehsil, Bhalwal District Sargodha and another mutation relating to gift of 81 kanals of agricultural land situated at village HathiVtand, Tehsil Bhalwal, District Sargodha, in favour of Mst.
Bashir Bibi, respondent No, 1, Mst. Amir Bibi, respondent No, 2 (both daughters from appellant's marriage with Khushi Muhammad) and Fattu, respondent No, 3, father of Khushi Muhammad, late husband of the appellant. By the suit she claimed that the mutations in favour of respondents Nos.
1, 2 and 3 were void and procured by undue influence. She claimed that notwithstanding the mutations she continued to be in possession of the suit land being holder of joint Khata with respondent No,
3. At the time of gift the appellant was living with respondent No, 3 who appears to be married to her mother. The appellant's case is that some 3 months before the alleged gift she was detained by Fattu against her wishes and was eventually dragged to the tehsil with the intention that she may make a statement but claimed that she did not make any statement before the Tehsilder affirming that she had gifted the suit land in favour of respondents Nos. 1, 2 and 3.
3. On the pleadings of the parties, the following issues were framed :-
(1) Whether the plaintiff made any valid gift in favour of defendants ? 0. P. D.
(2) Whether plaintiff is a pardanashin lady. If it is so then what is its effect upon the impugned gift ?
0. P. P.
(3) Whether the gift in dispute was procured by defendant No 3 by undue influence ? If so what is its effect upon the case ? 0. P. P.
(4) Whether the suit is maintainable in the present form ? 0. P. P.
'(5) Whether the description of suit property as given in the plaint is correct ? 0. P. P.
(6) Whether the plaintiff is estopped by her conduct to institute the present suit ? 0. P. D.
(7) Whether the plaintiff's suit is collusive and is brought at the instance of Muhammad Yusuf, her husband ? 0. P. D.
(8) Relief.
' After recording the evidence on behalf of the parties the learned Civil Judge decreed the suit with costs by his order dated 8th May 1972.
4. The learned counsel for the appellant vehemently argued that the decision of the learned Addl.
District Judge on Issue No, 3 is based upon complete misconception as to the law relating to pardanashin. He stated that the learned trial Court had rightly taken up Issues Nos. 1, 2 and 3 together holding the appellant a pardanashin and the gift made by her is invalid and inoperative.
He drew my attention to paragraph 8 of the judgment of the learned Addl.. District Judge where he had observed that "Mst. Wallan appellant was a widow and mother of two orphan daughters and that she had married Muhammad Yusuf who used to teach her Holy Quran according to her own wishes". He observed that it was never expected of a pardanashin lady to indulge to such activities". Apart 'from criticising the conduct of the appellant in contracting a second marriage no reasons whatsoever were given by the learned Addl. District Judge for coming to the conclusion that Mst. Wallan appellant was not a pardanashin lady. The learned counsel asserted that the learned trial Court had decided Issue No, 2 after taking into consideration several facts which the law recognised as relevant for purposes of determining whether a woman is or is not pardanashin.
In his judgment the learned trial Court observed that :- "All these circumstances show that valid gift was not made by plaintiff in favour: of defendants. It is an admitted fact that plaintiff is an illiterate woman. So she comes under the protection of pardanashin lady. Now it is a settled rule of law that every illiterate woman, whether she is pardanashin or not, can have this protection unless circumstances are brought on the record to show that she was of exceptional character, well able to manage her affairs. The defendants have failed to establish that plaintiff was able enough to manage her affairs. There is no scintilla of evidence to this effect on the record...
5. The learned counsel for the appellant asserted that the trial Court had correctly taken into account the illiteracy and inability of the appellant to manage his own affairs to come to the conclusion that the appellant was pardanashin. The learned counsel drew my attention to the following observations from the case reported as Suleman Khan v. Makhmal Jan (1):- "Literally, the term 'pardanashin' would mean a woman who sits behind pardah ; historically it perhaps personifies the high-born ladies of the late centuries who remained confined to mahalsaras and moved outside their female quarters in palkis but legally the term has been applied to women of all classes and faith in the sub-continent whether observing pardah or not, on the ground that they have practically little contact with the world outside their homes either due to religious commands or social demands, which understandably leave them ignorant in several important ways of the world. The term, as shown above, has received a wide interpretation so as to include even Hindu ladies though they did not observe pardah. That is why it was held in PLD 1961 Dacca 140, PLD 1965 Dacca 831 and PLD 1969 Dacca 324 that the rule was equally applicable to all illiterate and ignorant women, even though they were not literally pardanasbin. A vast majority of them are not even aware of their own rights and continue to live under the shadows of female- serfdom of the late centuries, following the whims of man not merely as their destined lot but also as tAe noble attainment of ideal womanhood. Therefore, what inherent sanctity can contracts entered into between man and such women command ? The parties are unequal in the matter of intellect and experience, capacity and ingenuity, appearances and aptitudes. It is, therefore, natural that they should have evoked the sympathy and consideration of the Courts, hold as they do the scales of justice. That is why the Privy Council held in AIR 1925 P C 204 as quoted by Lord Sumner that even when there is no duress, protest or obvious signs of misunderstanding or want of comprehension,, it is no real proof of a true understanding mind in the executant and, the burden of proving that the mind accompanies the hand lies squarely on the shoulders of the party relying upon the deed."
' The learned counsel relied upon Nur Muhammad v. Karim Bibi (2) to contend the every illiterate woman not managing her affairs by herself whether shat observes pardah or not who is shown to 'be illiterate and not capable of managing her affairs by herself would be entitled to the protection given by law to pardanashin and a document executed by her would not be enforced as a binding contract if it is shown that she was liable to be influenced by the person who derives benefit under the contract. He asserted that in such a case it is for the person who derives the benefit to satisfy the Court that the act of gift is the result of free exercise of will by the donor and that the gift was made after full appreciation of facts. It was argued that in a case like the present it is for the donee to show that the donor acted with a full understanding of the implication of her act and that the gift was not the result of influence used. The Courts would set aside the gifts made by pardanashin in order to prevent the abuse of the position of influence. In Nur Muhammad's case it was further held that it is not necessary to prove a wrongful act on the part of the donee and that it is sufficient that the gift may have been the result of influence. The learned counsel also drew my attention to the point which the Court might take into consideration in striking down the deed executed by a pardanashin lady. He relied on Suleman Khan v. Makhmal Jan where the following observations appear :- "It would thus appear that the decision of cases involving deeds executed by pardanashin ladies depends upon answers to one or more of the following questions :-
(1) What was the origin of her intention to act in the manner the document sets out ?
(2) Whether the transaction was a natural disposition or an unnatural disposition ?
(3 ) Whether the disposition took place in a natural, normal manner ?
(4) Whether she kept any part of the property for herself or transferred the whole ?
(5) Whether the transaction was righteous in character ?
(6) Whether she had any friendly advice before executing the deed and by a person whom the Court considers as being genuinely interested in her welfare ?
(7) Whether she had benefited from the money raised by the transaction ?
(8) Whether the document was explained to her and whether she really had the capacity to understand its consequences ?
(9) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it ?
(10) Whether the contract or deed was just in itself ?
(11) Whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed.
"If the answer to anyone of these crucial questions turns out to be in the negative, the safer and surer course open to the Court is to strike down the deed and restore the parties to the pre-deed status quo. That would not only be just but also in the larger public interest. It must be very rare that an ignorant and illiterate woman does not suffer in such matter in some form or another. It was, therefore, not without reason that Justice Mahmood enlarged the scope of disqualification of such deeds by laying down that they can be set aside if evidence of entire good faith was missing or if the contract or deed was not just or if the woman had not benefited from it, while Justice Tyrrel held absence of independent advice in respect of the execution of deed, by itself sufficient to set it aside."
6. Now applying the various tests laid down in the two judgment to the facts of this case I find that Mst. Wallan appellant was admittedly illiterate woman and that after the death of her husband some 6 years before the institution of the suit she and her children lived with her father-in-law respondent No,
3. It is common ground that at them of the gift she was living with respondent No, 3 and that she continued to live with respondent No, 3 for quite some time after her marriage with Hatiz Muhammad Yusuf. According to D. W. 3 the gift was made in the presence of Fattu, respondent No,,3, her wife Mst. Sattan and Sardar, a first cousin of Gulla the son-in-law of respondent No,
3. None of these persons can be stated to be genuinely interested in the welfare of the appellant so that she had no opportunity for seeking friendly advice A before the gift of the land in dispute in favour of the respondents. The transaction was in the nature of a gift from which the appellant did not derive any benefit while it may he said that she could possibly have been motivated by natural love and affection to transfer her land in favour of her daughters respondents Nos. 1 and 2, this could hardly be so in regard to respondent No,
3. Under the circumstances it is difficult to agree that the gift was 'just in itself'. The truncation was undoubtedly not free from circumstances throwing doubt and suspicion on the factum of gift and the conveyance of land by way of gift. The mutations were entered on 19th March 1968 and were confirmed by the revenue authorities on 20th March 1968 when entries have been made in the jamabandi.
' Respondent No, 3 is shown to be the natural guardian of respondents No, 1 and 2 who are minors and as a result entitled to the custody of the person and property of the minors.
7. There is considerable force in the arguments of the learned counsel that Fattu, respondent No, 3, is the real beneficiary of this gift and that he being in a position to influence the appellant has failed to discharge the onus which heavily lay on him to show that the gift is not the result of undue influence exercised by him. The learned counsel asserted that ironically enough the learned Addl : District Judge relied upon the entries in the revenue records including the jamabandi to come to the conclusion that the land in question had been validly gifted. In this behalf he drew my attention to the following observations made by Mr, Justice Faizullah Khan in the case reported as Bibi Mukhtiar v. Amrezan (1) :- "It is indeed gravely disquieting to note larger number of cases (1) PLD 1968 Pesh, 169 coming before the Courts in which mutations have been attested by the Revenue Officers on the strength of admissions of the alienors when in fact the alienors had no knowledge of the transactions at all, or of cases where some other persons have personated the real alienors, or of cases where the vendors had agreed to sell a small area of land, but as a result of collusion of the vendees with the Revenue Officers much larger area than the one agreed to be sold is entered and the Mutation Officers without disclosing the true facts have attested the mutations. I am aware of the presumption which is attached to the official acts under section 35 of the Evidence Act to the mutation proceedings, but would venture to say that the evidence of the Mutation Officers should be accepted with very great caution in view of large number of cases coming before the Courts in which the Revenue Officers have colluded with the parties and falsely come forward to depose about the transactions. This being the situation, the Courts must insist on some evidence other than the mutation proceedings in support of the sale and any person who relies solely on the mutation proceedings without obtaining anything in black and white evidencing the transaction would do so at his risk."
8. The learned counsel contended that the entries in the mutation could, at the best, be equated with the executed document but cannot be taken to deprive the appellant of her rights without respondent No, 3, having discharged the obligation cast by law in regard to the establishment of the fact that the gift was without any undue influence. The learned counsel asserted that the appellant having questioned the mutations as being unauthorised and inoperative cannot be confronted with the consequential entries in the jamabandi on the footing that since presumption of truth is attached to such entries, the gift was valid. In the second place the declaration of gift even if it is assumed to have been made by the appellant suffers from the infirmity that the appellant who was pardanashin has no opportunity to consult her husband or any other person related or friendly to her who could make her understand the real consequences flowing from such a declaration.
9. Having given the matter my anxious consideration I have come to the conclusion that the respondents have failed to discharge the onus B of showing that a lawful gift was made by the appellant in their favor which satisfied the well recognised test laid down by the superior Court and was for that reason inoperative against the appellant. The consequential entries in the jamabandi are no more than the attestation of a deed of gift by the Registrar acting under the Registration Act and eve if the attestation is established qua a pardanshin the entries would no operate to confer sanctity to the gift which is not shown to have been made in accordance with the requirements of law governing the gift by pardanshin. The learned Addl. District Judge placed strong relian on the fact that the appellant delivered the possession of the suit land to the respondents which in his opinion had the effect of completing the transaction of gift. The fact overlooks the evidence produced by the respondents themselves which go to show that ever before the alleged gift was made, respondent No, 3 was in the possession of the suit land on behalf of the appellant. (See the statement of lnayat D. W. 3). In the result the finding of the learned Addl. District Judge on Issues Nos. 1 to 3 is reversed.
10. The learned counsel next proceeded to address arguments on issue No,
4. He contended that the decision of the learned Addl. District Judge in dismissing the suit was unwarranted. He contended that the trial Court had rightly observed that the appellant and the respondents were co-sharers in the land held by the respondents and the possession of the respondents being the possession of the appellant, no question of adverse possession could arise. He thus contended that the decision of the trial Court on the form of the suit was correct and that it was not open to the trial Court to have dismissed the suit by placing reliance on the proviso to section 42 of the Specific Relief Act. He contended that he had by way of abundant caution filed an application under Order VI, rule 17, C. P. C. For permission to amend the plaint. In this behalf he placed reliance on Keramat Ali v. Muhammad Yunus (1) to contend that the amendment of the plaint may be allowed by the appellate Court and the only thing which the Court would take into consideration is whether the proposed 'amendment' would have the effect of totally altering the nature of the suit or taking away the valuable right accrued by lapse of time. Where, however, it would be inequitable to refuse such a relief the Court would not hesitate to allow amendment of the plaint. The learned counsel explained that the claim for possession would not have the effect of altering the nature of the suit.
He relied on Ahmad Din v. Muhammad Shqfi (2) to contend that it is open to the Court to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem fee and then to grant him the relief even though he had specifically not asked for it. Similarly in Syed Akhlaque Hussain v. WAPDA, Lahore (3) it was observed that amendment should be allowed liberally except when it causes injury to the opposite side. The learned counsel also relied on Bahadur Shah v. Sharaf (4), Muhammad Akram v. Kaka (5) and Inayat v. Ali Bakhsh (6) in support of his contention. In the last mentioned case much like the case before me an application for amendment was for the first time, filed before the High Court, which the Court allowed. The learned counsel in the end relied on 150 I C 1973 and 171 I C 31 to maintain that amendment when allowed dates back to the institution of the suit.
11. The learned counsel for the respondents relied on Atma Ram V. Godhu Ram (7) Muhammad Saeed v. Munawar Shah (8) and Niaz Hussain v. Imdad Hussain (9) to contend that under section 42 of the Specific Relief Act the suit for a declaration where the plaintiff being able to seek further relief than mere declaration omits to do so the Court shall refuse to make such declaration. He is unable to controvert the fact that the trend of the recent authorities is for the proposition that
(1) PLD 1963 SC 191 (2) PLD 1971 SC 762
(3) 1977 SCMR 284 (4) PLD 1973 Lah. 513
(5) PLD 1977 Lah. 1347 (6) PLD 1969 Lah. 241
(7) AIR 1933 Lah. 712 (8) PLD 1973 Note 78 at p. 110 ' rather than dismissing the suit on technical ground the appellate Court ought to allow amendment of the plaint.
12. Having given the matter my anxious consideration I am of the view that this is a fit case in which the appellant should be allowed to amend the plaint. I, therefore, allow C. M. No, 4225/C of 1975, authorise the appellant to amend the plaint and to pay the Court fee accordingly within a period of two weeks.
13. The respondents appear to have conceded Issues No, 5 and 6 before the learned Addl : District Judge. (See para. 8 of the order). This brings me to the last issue in this case, namely, whether the plaintiff's suit is collusive and is brought at the instance of Muhammad Yusuf, her husband, Admittedly, Muhammad Yusuf was not a party to the suit or any previous proceedings which could be described as being collusive. There is nothing on record to show that any collusive proceedings had taken place. Even if it were assumed that the suit was brought under the advice of somebody, it would not have the effect of converting the present suit into collusive proceedings between the parties. It is the right of every citizen to seek the advice of his well-wisher and such an advice would not have the effect of converting the suit into collusive proceedings. To my mind the expression "the plaintiff's suit is collusive" is wholly misconceived and incapable of application to the present case. In fact, the learned counsel for the respondents was unable to address any argument in support of this issue.
14. In the result the judgment of the learned Addl. District Judge is set aside and that of the trial Court is restored. The appeal succeeds and is allowed but under the circumstances there shall be no orders as to costs.