1. ' KHILJI ARIF HUSSAIN, J.---Plaintiff, namely, Haji Shaukat Ali, filed Suit No, 982 of 1998 for specific performance with a prayer to direct defendant No,1, Mst. Fatima Bai, defendant No,2, Mst. Noor Bano, and defendant No,3, Mst. Yasmin to perform their part of contract in respect of the plot No,LY- 45, Survey No,31 (old Survey No,K.II/18- B Excise Survey No,K-II 10. S-34) Near Tauheedi Chowk, Chakiwara Lyari Quarters, Karachi (hereinafter referred to as the property in question).
2. ' Suit No,499 of 2000 was filed by defendants and predecessor-in interest of late Usman son of Karim Muhammad to declare that they are the joint owners of the property in question and that sale agreement (on the basis of which Suit No,982 of 1998 has been filed) is forged document and is void and not enforceable in law against the plaintiffs.
3. ' Suit No,982 of 1998 and Suit No,499 of 2000 were consolidated.
4. ' Brief facts for the purpose of deciding the listed suits as per memo. Of plaint are that by an Agreement of Sale, dated 11-2-1993 plaintiff in Suit No,982 of 1998 agreed to purchase from defendants Nos.1 to 3 property in question in total sale consideration of Rs,8,00,000 out of which a sum of Rs,2,65,000 was paid to defendant No,1 towards her share in the property in question and balance amount of Rs,5,40,000 was to be paid to defendants Nos. 2 and 3 towards their shares within a months after final disposal of the suit No,82 of 1993 pending in the Court of Senior Civil Judge IV Karachi South filed by Muhammad Yousuf son of Usman real brother of the defendants. It was alleged that the property in question was inherited by defendants Nos. 1 to 3 under a Family Agreement. The defendants Nos. 1, 2 and 3 also executed General Power of Attorney in favour of the plaintiff. It was alleged that plaintiff filed written statement on behalf of the defendants Nos.1, 2 and 3 in Suit No,82 of 1993 in which they stated that they had gifted their half share to Muhammad Yousuf defendant No,5. The defendant Nos. 1 and 5 also filed another suit bearing No,69 of 1994 against the plaintiff and defendants Nos. 1, 2 and 3 for declaration, cancellation of power of attorney executed by defendants Nos. 1 to 3, Suit No,428 of 1999 was disposed of by filing a compromise application by the defendants Nos. 4 and 5 and defendant No,2. The plaintiff aggrieved by the compromise decree filed an application under Order I Rule 10 and another application under section 12(2), C.P.C. It was also stated in the memo. Of plaint that defendant Nos.
5. 4 and 5 filed Criminal Case No,24/94 against the plaintiff under sections 448, 504 and 427 and 34, P.P.C. Which is pending in the Court of VII Judicial Magistrate Karachi South.
6. ' The Defendants Nos. 2, 4 and 5 jointly filed their written statement and defendants Nos.1 and 3 filed their separate written statement and denied the execution of agreement of sale. It was alleged that Mst. Fatima Bibi died on 10-9-1990 before the institution of the suit leaving behind Mst. Nasreen as her only daughter and as such Muhammad Yousuf, defendant No,5 becomes the co-sharer along with Mst. Nasreen in respect of the property in question. Mst. Yasmin also survived as single successor on the death of Mst. Hanifa Bai on 30-12-1986 and in this way defendant No,5 and her sister of Mst. Hanifa Bai again inherited share from Mst. Hanifa Bai in the property in question.
7. ' On the basis of pleadings, on 16-8-2001, following issues were framed:--
(1) Whether this Suit is not maintainable in law?
(2) Whether the agreement of sale, Annexure "A" to the plaint, has a forged document and the plaintiff had obtained the signatures of household ladies on this agreement fraudulently?
(3) Whether the plaintiff is entitled for any specific performance of the agreement of the sale, dated 23-2-1993?
(4) Whether the plaintiff under the terms of agreement to sale, Annexure "A" to the plaint, paid a sum of Rs,2,65,000 to Mst. Fatima Bai, if so, its effect?
(5) To what relief the plaintiff is entitled?
(6) What should the decree be?
8. ' After framing of the issues parties led evidence and matter was listed for arguments on 19-1-2006.
9. With the consent of the learned advocates for the parties following consolidated issues were framed:--
(1) Whether the Suit No,982 of 1988 is not maintainable as alleged by the defendants and similarly Suit No, 499 of 2000 is also not maintainable?
(2) Whether agreement of sale Annexure-A to the plaintiff in Suit No,982 of 1998 is forged document and the plaintiff had obtained the signature of the ladies (Vendors) on the agreement fraudulently and deceitfully?
(3) Whether the plaintiff in Suit No, 982/1998 under the terms of the sale agreement Annexure-A to the plaint paid a sum of Rs,2,65,000 to Mst. Fatima Bai? If so its effect?
(4) Whether the alleged agreement, dated 2-6-1991 entered into between the defendants Nos. 4, 5 and late Mst. Fatima Bai is forged document prepared to create evidence and to deprive the defendant (in Suit No,499 of 2000) of his valuable rights to get the property in suit as a Vendee?
(5) Whether the defendant in Suit No, 499 of 2000 prevailed upon the plaintiffs Nos. 4 and 5 and late Fatima Bai to execute the power of attorney, dated 23-2-1993 to defend Suit No,82 of 1993 filed by the plaintiff No,3?
(6) Whether the plaintiff No,3 acquired the share in the property on the death of Mst. Hanifa Bai and late Mst. Fatima Bai?
(7) Which of the parties are entitled to decree?
10. Learned advocates for the parties stated that there is no need to record any, ,further evidence on the basis of re-carted consolidated issues relied upon the evidence on record.
11. ' Heard Mr. Zafar Hadi Shah, learned advocate for the plaintiff, in Suit No,982 of 1998 and Mr. Ikram Ahmed Siddiqui, learned advocate for defendants Nos.1 to 5, in Suit No,982 of 1998 and my findings of the issues are as under:-- ISSUE NO.1:.
12. ' The maintainability of Suit No,982 of 1998 was questioned on the ground that in the plaint plaintiff has alleged date of Sale Agreement-as 11-2-1993 but he produced the Agreement of Sale, dated 23-2-1993, which appears to be a typographical error, as defendant No,1 in his written statement while in reply to Para-I of the memo. Of plaint in which plaintiff alleged date of sale agreement as 11-2-1993 stated that defendant denied that late Mst. Fatima Bai, Mst. Yasmin entered into an agreement, dated 11/23-2-1993 to sell their shares in the suit property which is by itself clearly demonstrates that agreement of sale for the enforcement of which plaintiff had filed the suit is of dated 23-2-1993 and not 11-2-1993 and further plaintiff produced the agreement of sale along with the memo. Of plaint is of dated 23-2-1993. On this ground that in the memo. Of plaint, plaintiff alleged date of agreement as 11/23-2-1993 whereas during the evidence agreement of sale which he produced is of 23-2-1993, suit cannot be dismissed, as same on,the face of it is a typographical error.
13. ' For the foregoing reasons, issue is answered in negative.
14. ISSUES NOS. 2, 3 AND 5: ' The plaintiff filed his affidavit-in-evidence (Exh.21/1) and produced Family Agreement, dated 27-7- 1970 and statements of Mst. Yasmin Bano daughter of Zalaia Siddiq, Mst. Hanifa Bai daughter of Usman Karim Muhammad, and Mst. Noor Bano daughter of Usman. Karim Muhammad (Exhs.21/2, 21/3 and 21/4). It was stated by the plaintiff that defendants Nos. 1 to 3 negotiated for the sale of property in question with the plaintiff and by a sale agreement, dated 23-2-1993 defendants Nos.1 to 3 agreed to sell the property in total sale consideration of Rs,8,00,000 and since prior to sale agreement, Muhammad Yousuf defendant No,5 brother of defendants Nos.1 to 3 had filed Suit No,82 of 1993 against defendants Nos.1 to 3. Fateh Muhammad and Aboo in respect of the property in question, it was decided and agreed between the parties that a sum of Rs,2,65,000 should be paid and balance amount of Rs,5,35,000 will be paid after the decision of Suit No,82/93 and accordingly a sum of Rs,2,65,000 was paid to defendant No,1 which amount she had distributed amongst her sisters. It was further stated in the affidavit in evidence that after some deliberation defendants Nos. 1 to 3 executed power of attorney in favour of the plaintiff so that plaintiff can represent them and contents suit No,82/93 filed against the defendants Nos.1 to 3. The defendants in their written statement denied that they ever agreed for the sale of the property to the plaintiff.
15. After filing of the suit by defendant No,5 and the plaintiff being in contact with the defendants through Mst. Noor Bano pursued them with ulterior motives that they should give him power of attorney so as to contest the suit and he will try to get the suit dismissed. The defendants who are illiterate ladies could not understand him and the plaintiff while obtaining signatures on the power of attorney from them on 23-2-1993 also obtained deceitful signatures on the agreement of sale without making them conscious that they were signing the agreement of sale of the property in question.
16. ' What appears from the plea taken in the written statement by defendants Nos. 2, 4 and 5 that the agreement of sale though contained their signatures thumb-impression but they never agreed to sell the property and their signatures were obtained on the agreement in a deceitful manner.
17. ' It is always desirable that a party entering into an agreement with an illiterate lady ought to have taken extra care. The protection which is given to Pardahnashin ladies has always been given to persons who are weak, ignorant and infirm and unable to look-after themselves, and who cannot look-after their interest properly. Such agreement should require independent advise to the illiterate lady executing agreement and after understanding about the terms of the agreement and its consequences on the basis of independent advise/legal advice an agreement entered into by an illiterate lady is binding upon her.
18. ' The plaintiff in his affidavit-in-evidence stated that Mst. Noor Bano defendant No,3 is a shrewd woman and is capable to understand things. From this statement of the plaintiff it appears that so far as other two ladies i,e, defendants Nos. 1 and 2 are concerned they are illiterate ladies not capable to understand and to look after their' interest in the absence of any male member from their family and without independent advice. Unless it is established that contract in question was in the interest and for the benefit of illiterate ladies who executed the agreement such agreement can be avoided by them. However, while it is important to maintain the principle laid down for the protection of Pardahnashin ladies it is also important to transmute such legal protection into a legal disability as they can enter into agreement.
19. ' Keeping in view of the above principle of law now I have to scrutinize evidence on record whether on the basis of alleged agreement of sale plaintiff can claim relief asked for.
20. ' P.W. Abdul Rasheed (Exh.1) in evidence stated that on 23-2-1993 he went with the plaintiff with one Adam to City Court before the Oath Commissioner and Notary Public and the defendants Nos.1 to 3 were present there and Oath Commissioner and Notary Public explained the contents of the agreement and power of attorney to defendants then defendant No,1 put her thumb impression and defendants Nos. 2 and 3 signed power of attorney in favour of the plaintiff. Abdul Rasheed and Adam also signed Agreement and Power of Attorney as witnesses. Abdul Rasheed produced agreement of sale as Exh.3.
21. ' The plaintiff's witness also produced General Power of Attorney executed by the defendants in favour of the plaintiff on 23-24993 (Exh.4), it was alleged that General Power of Attorney (Exh.1) it bears the thumb impression of Mst. Fatima Bibi but on the copy of same Power of Attorney Exh.22/1 there is no thumb impression by Mst. Fatima Bibi and the explanation, as given, is that before putting thumb impression of Mst. Fatima Bibi and after getting signatures of other two ladies photocopies were made which explanation apparently not sound to logic. Why the applicant got photocopy of the power of attorney after signing of the same by the two ladies and without the thumb impression of Mst. Fatima Bibi and further how that Exh.12/1 has been notarized without the thumb impression of Mst. Fatima Bibi. The only inference can be drawn is that at the time when the document was notarized thumb impression of Mst. Fatima Bibi was not there. In other word she was not present at the time when the documents were executed and that means at least contents as alleged was not explained to her.
22. ' Admittedly, no male members of the family of the defendants ladies were present at the time of execution of the Sales Agreement and Power of Attorney, nor they have any independent advice.
23. ' There is also contradiction between the evidence of the plaintiff's witness. Adam son of Bachoo stated that Abdul Rasheed son of Faquir Muhammad and plaintiff accompanied up to the City Court and Mst. Fatima Bai was brought before the Oath Commissioner by her sister in a car whereas other witness has not said so.
24. ' In the absence of independent advice, and male members of the defendants family, it is not possible to hold that defendant had executed the document agreement of sale Exh.3.
25. ' As regards the payment of Rs,2,65,000 to Mst. Fatima Bai and Nasreen none of the witnesses stated that the said amount was paid to Mst. Fatima Bibi in their presence nor they stated anything about the said payment. So far as the two co-sharers ladies admittedly no amount was paid to them as consideration of the alleged agreement of sale. From the power of attorney, it appears that said power of attorney was attested on 23-2-1993 it has not been referred that the power of attorney has been executed in favour of the plaintiff pursuant to agreement of sale allegedly executed by the defendant Nos. 1 to 3 in favour of the plaintiff. By power of attorney plaintiff has been authorized only to defend the suit on behalf of the executors and look-after their rights in respect of the building on the plot in question. The power of attorney neither authorized the plaintiff to sell the property in question nor to collect the rent of property. If plaintiff has paid entire sale consideration towards the share of defendant No,1 then why power to collect rent has not been given to the plaintiff at least to the extent of the share of defendant No,
1. It was not alleged that the power of attorney was executed in favour of the plaintiff against consideration.
26. ' For the foregoing reasons issue No,2 is answered in affirmative, issue No,3 is answered in negative, and issue No,5 decided in the above terms.
27. ISSUE NO.4: ' In view of my findings on issues Nos. 2, 3 and 5 hereinabove and since defendants have not denied execution of the agreement of sale dated 2-6-1991 the issue No,4 is answered in affirmative. .ISSUE NO.6 ' Mst. Hanifa Bai died on 30-12-1986 leaving behind one daughter namely Mst. Yasmin, defendant No,3, Fatima Bai died on 10-9-1995 leaving behind no male members as legal heirs. Muhammad Yousuf being brother of deceased-ladies become entitled for inheritance in the Estate left by the said two ladies. The parties are governed by Hanfi Lbw of inheritance and as such since deceased left behind her only one daughter then deceased daughter get 1/2 share in the estate left by the deceased, 1/4 share was inherited by the brother of the deceased and 1/8 will go to two surviving sisters. As regards the distribution of share from the estate left by Fatima Bai she had left only one sister at the time of her death and her estate will be divided in six parts and 1/2 will go to daughter namely Mst. Nasreen out of the remaining her sisters and brother namely Muhammad Yousuf will get equal share.
28. ' Issue No,6 is answered in the affirmative.
29. ISSUE NO.7: ' In view of my findings on the above issues, Suit No,982 of 1998 is dismissed and Suit No,199 of 2000 is decreed however with no order as to costs.