' TASSADUQ HUSSAIN JILLANI, J.---Facts giving rise to the instant petition briefly stated are that predecessor-in-interest of the respondents Nos,(i) to (ix) Mst. Sakeena Bibi filed a suit for declaration with consequential relief impugning the general power of attorney dated 10-2-1991 and the agreement to sell qua the house purported to have been executed on 19-5-1991 by her in favour of Dr. Muhammad Naeem respondent (who was her son in law). It was averred that both the documents were result of fraud and misrepresentation and that she had neither executed the power of attorney nor the agreement in question. The suit was resisted, written statement was filed and in terms of the divergent pleas of the parties, following issues were framed:-
(1) Whether general power of attorney bearing No, 879, Book No,4, Volume No, 369, registered on 10-2-1991, is a forged, fictitious document and as such is inoperative qua the plaintiff's rights? OPP
(ii) If the above issue is not proved in favour of the plaintiff whether all the documents prepared on the basis of impugned power of attorney are also void, and inoperative against plaintiffs rights? OPP
(iii) Whether the suit is not maintainable in its present form? OPD
(iv) Whether the plaintiff has no cause of action to file this suit? OPD
(v) Whether the plaintiff has no locus standi to file the instant suit? OPD
(vi) Whether proper court fee has not been paid on this plaint, if so, its effect? OPD
(vii) Relief.
2. The learned trial Court in terms of its judgment and decree dated 28-3-1995 dismissed the suit mainly on the basis of its findings on issues Nos,1 and 2. The said judgment and decree, however, was reversed in appeal and the suit was dismissed by the learned Additional District Judge vide judgment dated 10-5-2005. The learned High Court has affirmed the said judgment and decree of the learned Appellate Court vide the impugned judgment whereby petitioners' civil revision was dismissed.
3. Learned counsel for the petitioner submits that the learned two courts below have not appreciated that having admitted to have thumb-marked the power of attorney and agreement to sell, the onus was on the respondent-plaintiff to prove that the signatures were obtained through misrepresentation which she miserably failed; that the evidence led by the respondent was beyond the pleadings because it was never her case in the plaint that her thumb impressions were obtained while she was unconscious. He added that the general power of attorney is a registered document and a presumption of truth is attached to it. The said presumption could not be rebutted by the quality of evidence led by the respondent-plaintiff. Learned counsel maintained that the general power of attorney which respondent-plaintiff executed was not in favour of any stranger but her own son-in-law i,e, respondent No,2 and it is repellent to commonsense that he could have committed the fraud. In support of the submissions made, learned counsel relied on Mirza Muhammad Sharif v. Mst. Nawab Bibi (1993 SCMR 462), Mst. Hawa v. Muhammad Yousuf (PLD 1969 Karachi 324), Janat Bibi v. Sikandar Ali (PLD 1990 SC 642).
4. We have considered the submissions made, the case-law cited and have gone through the impugned judgment as also the evidence on record.
5. Both the documents which have been impugned in the suit i,e, power of attorney and agreement to sell whereby respondent-plaintiff purportedly agreed to sell the house were executed the same day i,e, 22-1-1991. In terms of recital of the agreement to sell (Exh.D.W1/2), the respondent-plaintiff purportedly sold the house at a consideration of Rs,10,00,000 out of which she had already received Rs,600,000 in cash prior to the execution of the agreement to sell and the remaining Rs,400,000 were paid when she signed and thumb-marked the said agreement.
6.
7. #TBS
8. A
9. 13
10. #TBE
11. Plaintiff Sakina Bibi appeared as P.W.2 and she candidly stated that she is illiterate; that her husband taught her how to sign; that all her children were living abroad; that respondent/defendant No, 1 though her son-in-law but the relation between the husband and wife (her daughter) were strained and the latter had to file suit for maintenance; that her daughter was not living with the husband for the last 6/7 years and that the plaintiff had neither given him power of attorney nor had executed any agreement to sell the house. P.W.1 Malik Muhammad Aslam is a neighbor of respondent/plaintiff and he candidly stated that the relations between plaintiff's daughter and respondent/defendant No,1 were strained; that in 1991 she had gone to America to visit her son and in her absence defendant No,1 broke open the locks of the house and took away valuable articles; that he even forcibly took over the house; that he called her in America on which she came to Pakistan with her son and that she had to go to police station whereafter after negotiations respondent/defendant restored her possession. Both these witnesses were subjected to lengthy cross-examination but they remained consistent on all material points and their credibility could not be shaken. The evidence led by the plaintiff indicated: first, that she was not a literate lady; second, that relations between her and her son-in-law defendant No,1 Dr. Muhammad Naeem were strained on account of tension and litigation between him and his wife; third, that none of the impugned documents were signed by any of plaintiff's close relatives; fourth, that she did not have independent legal advice at the time of the said alleged transaction whereby her valuable proprietary rights were being transferred; fifth, that the so called witnesses were neither related to her nor were they her neighbors; sixth the payment of consideration is shown to be in cash which in the afore-referred circumstances is suspect. The credibility of those documents is further shaken when we note that the general power of attorney through which defendant No, 1 (her son-in-law) was made her general attorney was registered through a Local Commission, who was an Advocate and he never appeared in the witness box. In the afore-referred circumstances, the onus shifted on the beneficiary i,e, defendant No, 1 to prove that the documents were based on bona fide transactions. The said onus, the defendants miserably failed to discharge. The contention that the general power of attorney was given by the respondent/plaintiff not to a stranger but to her own son-in-law and that she was not a 'Pardanasheen Lady' for which the courts of law have provided protection is not tenable in the facts and circumstances of the instant case, first, because it is in evidence that the relations between the two were too strained on account of the discord between him and her daughter and in the normal course of events she could not have reposed that kind of trust; second, the protection provided to them in law is on account of the fact that they invariably are helpless, weak and vulnerable. The said consideration would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation. In Jannat Bibi v. Sikandar Ali (PLD 1990 SC 642), this Court quoted with approval the judgment of Indian Supreme Court in AIR 1930 Calcutta 591 as under:-- "16. The above rule applicable to pardhanashin ladies has been extended to ignorant and illiterate women. Reference may be made to Graham, is dictum in Chainta Dasya v. Bhalku Das AIR 1930 Cal. 591, which is as follows:-- "The rule of law so far as pardahnashin women is concerned is well known and has been clearly laid down in many decisions of the Privy Council. It is true that most of these decisions relate to the case of pardahnashin ladies. We have not been referred to any case in which the principle has been extended to the case of other women who do not come within that class; but that does not seem to be any reason why a rule which is applicable to pardahnashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not apply to the case of a poor woman who is equally ignorant and illiterate and is not pardahnashin simply because she does not belong to that class. If this view of the matter were adopted the effect clearly would be to confer an unfair advantage upon rich women as compared with poor women.
The object of the rule of law is to protect the weak and helpless, and it should not, in my judgment, be restricted to a particular class of the community."
17. It would be of advantage if the observations of Mitter, J. In the same case are also quoted here:-- "It appears and it is not disputed that the plaintiff is an illiterate village woman. She is not in the strict sense of the term pardahnashin woman and the question arises whether the same protection which is thrown round a transaction entered into with a pardahnashin woman should be extended to the plaintiff in the present case. It is true that outside the class of regular pardahashin women it must depend in each case on the character and position of the individual woman, whether those who deal with her are or are not bound to take special precautions that her action should be intelligent and voluntary and to prove that it was so in case of dispute. That was laid down by the Judicial Committee of the Privy Council in the case of Hodges v. The Delhi and London Bank Ltd. (1901) 23 All.
137. So even in the case of woman who is outside the regular pardahnashin class it is for those who lived with her to establish that she had the capacity of understanding the transaction that was entered into and that she entered into the transaction voluntarily and with full knowledge and import of what the transaction meant."
12. For what has been discussed above, the concurrent judgments and decrees dismissing the suit neither reflect any misreading or non-reading nor the view taken is against the law declared. We do not find any merit in this petition, which is dismissed and leave refused.