This judgment shall dispose of civil revision that assails judgment and decree dated 14.2.2019 and 03.7.2019 of the learned courts below whereby suit for specific performance and also the appeal of petitioner were dismissed.
2. Pertinent facts in this case are that the petitioner instituted a suit for specific performance to enforce agreement of sale dated 29.9.2009 claiming that in terms thereof Mst. Rehmat Bibi, deceased predecessor-in-interest of respondents, had agreed to sell suit land in consideration of Rs.2,60,000/-, received Rs.2,10,000/- as earnest money and executed the agreement in the presence of witnesses, namely, Attique-ur-Rehman and Mukhtar Ahmad.
The petitioner reminded for execution of sale deed in her lifetime which was postponed. Mst. Rehmat Bibi subsequently fell ill and ultimately died and that even after her death the petitioner allegedly requested the legal heirs for the completion of deal who initially avoided the matter and thereafter attempted to alienate the land to third party at a higher price which necessitated the filing of the suit. The suit was contested by respondents, inter alia, pleading that their predecessor-in-interest Mst. Rehmat Bibi never made any deal with the petitioner, nor she received any earnest money or executed any sale agreement and that the land was acquired through inheritance by the deceased but the petitioner, who was real nephew of deceased, fabricated a fictitious agreement to deprive the deceased as also her legal heirs of the property and that the suit was maintainable. After completing issue-framing process, recording evidence and giving opportunity of hearing to the parties, the Learned Civil Judge dismissed the suit vide judgment and decree dated 14.2.2019. Petitioner's appeal against the same also ended in dismissal. The two judgments are therefore subject-matter of challenge in this petition.
3. Learned counsel for the petitioner argued that the judgments of courts below are product of misreading and non- reading of evidence; the learned courts did not consider the evidence in proper perspective instead made pick and choose from the evidence to non-suit the petitioner and further that the petitioner had proved beyond doubt the existence of a sale transaction as also the agreement through oral as well as documentary evidence but was unjustifiably non-suited.
4. On consideration of record inclusive of the pleading, oral as well as documentary evidence as also the judgments of the courts below, it is observed that the petitioner's stance in the plaint was that Mst. Rehmat Bibi deceased, predecessor-in-interest of respondent Nos. 2 to 5, was his paternal aunt. There was a relationship of trust between the two. The deceased Mst. Rehmat Bibi allegedly approached the petitioner for the sale of her land which the petitioner agreed to purchase. The price was settled as Rs.2,60,000/-, a sum of Rs.2,10,000/- was allegedly paid as earnest money, and the balance sale consideration of Rs.50,000/- was payable at the time of sale deed or mutation, which the petitioner was permitted to secure anytime at his option. In his statement as P.W.1 the petitioner introduced a different story as in his cross-examination. He deposed that the amount of earnest money was paid in parts at different times and that he had paid approximately between Rs.1,30,000/- and Rs.1,35,000/-. It was further claimed that the payment at different times comprised Rs.20,000/-, Rs.15,000/- and Rs.50,000/-. The two statements, one in the plaint and the other as P.W.1, therefore, did not coincide with each other as the petitioner had not stated in the plaint that the payment of Rs.2,10,000/- was made in parts nor had he claimed that the total payment made by him was between Rs.1,30,000/- and Rs.1,35,000/-. Even statement of petitioner as P.W.1 did not corroborate the contents of the disputed document i.e. agreement of sale, Ex.P.1. The alleged marginal witness P.W.2, Mukhtar Ahmad, admitted in his cross- examination that he was unaware of the area of the land and that in his presence details of transaction were never settled and that at the time the agreement was drafted no discourse as to the terms of sale took place and further that he did not know respondent No.2 (defendant No.2) or the other defendants in the suit.
Attique-ur-Rehman, P.W.3, claimed that except Rs.50,000/- no payment was made in his presence nor any other condition was discussed. In defence, Bashir Ahmad husband of the deceased who appeared as D.W.1, controverted the stance taken by the petitioner and categorically deposed that the alleged agreement was fictitious and fabricated and that the suit was moored in falsity. Likewise, D.W.2 Muhammad Shah son of Mst. Rehmat Bibi, also deposed that no agreement was ever made, the alleged agreement was fictitious and false and that the petitioner had schemed to usurp the property.
5. P.W.2, Mukhtar Ahmad, made another disclosure in his cross-examination that Mst. Rehmat Bibi was aged about 80 to 85 years, her hand was trembling due to Parkinson's disease and that she was shivering at the time of the alleged agreement. From the facts as noted supra, it is obvious that the agreement of sale was claimed to be with an illiterate and rustic octogenarian lady with fragile physical condition and unstable health who subsequently died on 25.3.2010. She was not accompanied by any of her sons or her husband at the time of alleged agreement.
Considering all these facts, the learned courts below recorded findings to the effect that the petitioner was unable to establish the execution of a valid agreement or sale transaction; the alleged payment of Rs.2,10,000/- was not proved; and that Mst. Rehmat Bibi being an old illiterate lady did not have any independent advice nor was claimed to be accompanied by any of her male relatives i.e. husband or son and, in law, the petitioner was under an obligation to prove that the deceased had the independent advice, was enjoying good health and was accompanied by trustworthy male relative with no conflict of interest, which ingredients were missin g. The suit and also the appeal, in consequence, were dismissed.
6. It is always expected that a party entering into an agreement with an illiterate lady ought to have taken extra caution. The protection which is given to pardanashin ladies has always been given to persons who are weak, ignorant, infirm or unable to look after themselves and who cannot take care of their interest properly. An agreement such as the one under consideration should always require availability of independent advice so that the person in disadvantaged condition shall understand the terms to which she was binding herself. Courts have to be very careful in recording findings as to the execution of the agreement by such ladies and it will not be sufficient to show that the document was read over to the lady but also it must be proved that she understood its nature and effects. Where the evidence has not established that the document was executed by the lady voluntarily out of her free will and consent, she had an independent advice of a close relative and that the contents of the documents were read over to her and the nature of transaction was explained, the onus to prove the document by the beneficiary would not stand discharged. In "Jannat Bibiv. Sikandar Ali" (PLD 1990 SC 642 ) the august Supreme Court ruled as follows: - "16. The above rule applicable to pardahnashin ladies has been extended to ignorant and illiterate women.
Reference may be made to Graham, J.'s in 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 may 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 pardanashin 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 plaintif f 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 pardahnashin 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".
In "Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others" (2013 SCMR 868) it was observed by the honourable Supreme Court to the effect that the onus to prove the document and also the transaction and its bona fides, is upon the beneficiary of the document, and that protection is provided to a pardahnashin lady on account of the fact that invariably they are helpless, weak and vulnerable. In "Ghulam Farid and another v. Sher Rehman through L.Rs" (2016 SCMR 862) it was observed by the august Court that: - "14. The inflexible, hard and fast rule is, that when any transaction is made by anyone where "Parda Nasheen" lady's vital interest is involved then, the following conditions are to be invariable and essentially fulfilled:-
(i) to establish through evidence that the transaction was free from any influence, misrepresentation or fraud;
(ii) that, the amount of consideration equal to the value of the property was indeed paid to the ladies;
(iii) in the case of "Parda Nasheen" rustic village ladies, at the time of transac tion such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and;
(iv) that at the time of transaction, the ladies were having access to independent advice of their nearer and dearer , who have no hostile interest to them."
In "Phul Peer Shahid v. Hafeez Fatima" (2016 SCMR 1225) the august Supreme Court observed to the effect that case of a property/transaction with an old, illiterate/rustic village pardahnashin lady the following conditions were mandatory:
(i) the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences, (ii) that she had independent advice from a reliable source/person of trust to fully understand the nature of the transaction, (iii) that witnesses to the transaction were such who were close relatives or fully acquainted with the lady and had no conflict of interest with her, (iv) that the sale consideration was duly paid and received by the lady in the same manner and (v) that the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/receipt as the case may be.
7. Deeper analysis of the evidence and the facts of this case reveals that the petitioner claims the agreement of sale was made with an old, weak, ailing lady, who was not accompanied by any of her close male relatives notwithstanding the admission of the witnesses that her husband and sons were alive. Payment of Rs.2,10,000/- as earnest money was not proved; the evidence and the pleadings are self-contradictory in insofar as the plaint gives an impression that Rs.2,10,000/- were paid at the time of agreement while this is not the case in the evidence. The statement of the petitioner as P.W.1 and the contents of the alleged agreement, Ex.P.1, did not coincide as the document does not give the impression of payment of earnest money in parts. None of the witnesses was related to the deceased lady. The witnesses admitted that they did not know the husband and the son of the lady (defendants in the suit). The settlement of the transaction was never proved through independent evidence as the petitioner's witnesses admitted that the terms of the transaction were not settled in their presence. Neither the son nor the husband of the deceased ever witnessed the document. No receipt of any payment was ever claimed or produced. The alleged agreement was prepared on a plain paper and that the lady was not having any independent advice.
8. In the presence of all these circumstances the petitioner could not be said to have proved the existence of the transaction or the execution of the agreement as also the alleged payment. The revenue record did not reflect entry of any such transaction nor it was ever entered in the Roznamcha Waqiati. Relevant record reflected the respondents as owner of their share and did not reflect any entry of transfer of possession under the sale i.e. "ba-tassawar bae". It cannot be overlooked that the alleged agreement was claimed to be dated 29.9.2009 while Mst. Rehmat Bibi died on 25.3.2010 (i.e. six months thereafter) and the suit was filed on 20.5.2014 (i.e. after a period of five years). Though it was claimed that the deceased in her lifetime and the legal heirs after her demise requested for the transfer of the property yet no notice or written correspondence to support the plea was produced. The verbal plea of the petitioner in this context is not supported by any admissible evidence. In the peculiar circumstances noted supra, it is discernible that the petitioner had miserably failed to prove the existence of any transaction or execution of the agreement with the deceased. The courts below also took note of all these factors. Concurrent findings of fact were recorded, no misreading or non-reading could be highlighted nor the findings suffer from any defect as such or legal infirmity.
9. For the reasons above, there is no merit in this revision petition, which is dismissed.