Raza Ali Khan, J. The captioned appeal by leave of the Court arises out of the judgment dated 26.6.2019, passed by the learned High Court of Azad Jammu & Kashmir in Civil Appeal No. 80 of 2016.
2. The brief facts forming the background of the captioned appeal are that appellant, herein, filed a suit for declaration and cancellation of gift-deed, dated 19.5.2010, against the respondents, herein, to the extent of her share measuring 31 kanal, 18 marla, and two sarsai, in the Court of Senior Civil Judge Bhimber on 15.7.2011.. The suit was contested by the respondents by filing the written statement, whereby they refuted the claim of the plaintiff. The learned trial Court framed issues in light of the pleadings of the parties and, directed them to lead evidence pro and contra. At the conclusion of the proceedings, vide judgment and decree dated, 15.7.2014, the learned trial Court dismissed the suit for want of cause of action. Feeling aggrieved from the said judgment and decree, the appellant, herein, filed an appeal before the District Judge, Bhimber, on 11.10.2014. The learned District Judge Bhimber, vide judgment and decree, dated 30.1.2016 dismissed the appeal.
The judgment and decree dated 30.1.2016, was further assailed by the appellant, herein, before the High Court of Azad Jammu & Kashmir on 29.4.2016, which also met the same fate through the impugned judgment dated 26.6.2019.
3. Mr. Kamran Tariq, the learned Advocate appearing for the appellant argued that Naseem Akhtar, appellant, herein, filed a suit against the respondents, herein, for cancelation of gift deed, dated 19.5.2010, on the ground that the same has been procured through fraud and deception. The learned Advocate further argued that in fact the gift-deed was prepared by the respondents by practicing fraud and the burden of proof was on the respondents to prove the gift-deed as genuine and was rightly obtained by them. Further, it was enjoined upon the respondents to produce the marginal witnesses but, they failed to do so. He argued that this aspect of the case has not been considered by the Courts below including the learned High Court. The learned Advocate argued that the judgments of the Courts below are suffering from gross misreading and non-reading of the evidence and the record, hence, the same are liable to be set aside. The learned Advocate maintained that the learned trial Court framed issues contrary to the pleadings of the parties and the learned District Judge as well as the learned High Court also ignored this aspect of the case. The learned Advocate in support of his contention has placed reliance on the following cases:--
1. PLJ 2007 Lah. 71;
2. "PLJ 2005 Lah. 756;
3. 2002 SCM R 1938;
4. 1981 SCMR 1390; and
5. 2017 SCR 464.
4. On the other hand, Miss Nosheen Iqbal, the learned Advocate appearing for the respondents forcefully, defended the impugned judgment and argued that there are concurrent findings of facts, which cannot be reopened. She further contended that the judgments and decrees passed by the Courts below are in accordance with law, which need no indulgence by this Court. She urged that the appellant willfully made the gift-deed dated 19.5.2010, and cannot turn round after the execution of the same. She added that an appeal against concurrent findings of the facts is not competent, until and unless any misreading or non-reading of evidence or any violation of law is pointed out. She lastly requested that the appeal filed by the appellant merits dismissal, hence, the same may be dismissed.
5. We have given due consideration to the arguments of the learned counsel for the parties and also perused the record made available along with the impugned judgment. The plaintiff- appellant, herein, in her suit challenged the validity of the gift-deed, dated 19.5.2010, on, the ground that she is a noble and simple lady and the defendant-respondents while enticing her obtained the said gift-deed by practicing fraud and deception with the collusion of one Shamim Akhtar (sister of the appellant). The suit was contested by the defendant-respondents by filing the written statement, whereby they refuted the claim of the plaintiff-appellant. The learned trial Court after necessary proceedings, dismissed the suit for want of evidence and cause of action. The first & second appellate Courts also upheld the findings recorded by the trial Court and dismissed the appeals filed by the appellant, herein. The plaintiff-appellant, herein, categorically took a ground in her suit that she is a noble and simple lady and the gift-deed dated 19.5.2010, has been obtained by the defendant-respondents by practicing fraud and deception, which is ineffective, and inoperative on the rights of the plaintiff, hence, is liable to be cancelled. It may be observed here that the women in our society, largely, do not mingle with the society at large and depend upon and rely on the male members of the family to interact with and deal with the world beyond the domestic affairs. Such women are, in legal terms, regarded as parda nasheen women. These women do not have the privilege to develop their world view as compared to males of their family or other women who are not regarded as parda nasheen women. They remain un-experienced due to lack of interaction with folks outside the house or they are illiterate. When the matter of alienation of any property, interest and right by parda nasheen women comes before the Courts of law, special care and caution is expected from the Courts to assure the validity of such alienation or transaction to protect the rights of such women. The legal jurisprudence, in sub-continent on protection of rights of parda nasheen women is well developed since spanning over a century. It has been held in case titled "Tara Kumari v Chandra Mauleshwar Prasad Singh", (AIR 1931, PC 303), that the principle on which the protection by law is accorded to a parda nasheen woman is based on equity and good conscience. Moreover, it is well settled now that rules regarding Pardanasheen women are equally applicable to an illiterate and ignorant woman, it is not by reason of observance of "Parda" itself that the law throws to protection around a Pardanasheen woman but reason of those disabilities which a life of seclusion lived by pardanasheen woman give rise to and which are consequently presumed to exist in case of such lady. Disabilities which make the protection necessary may rise from other causes as well, e.g. old age, infirmity, illiteracy, mental deficiency, ignorance, inexperience and dependance upon others may be themselves create disabilities to understand better interest, hence, render the protection equally necessary.
Even if it is proved that a woman, although, is not pardanasheen lady in strict sense, the validity and binding matter of a deed executed by her have to be judged in the light of those principles with certain exceptions, which are applied to deed by pardanasheen lady. Even otherwise; according to rule of law laid down in the case reported as Shehnaz Bibi vs. Muhammad Ikhlaq Khan (PLJ 1996 Lahore 1472), every Muslim lady is presumed to be a Pardanasheen lady unless otherwise is proved and a woman cannot be excluded from the meanings of Pardanasheen lady merely because of the reason that she has adopted modern way of life. -The relevant portion of the cited case is reproduced as under: "... Every Muslim woman is presumed to be a Pardanasheen lady unless otherwise proved. Merely because the petitioner has adopted modern ways of life does not mean that the petitioner is not a pardanasheen lady but at any rate the fact remains that the petitioner is a lady and balance of inconvenience has to be seen vis-a-vis the respondent who is a male."
This rule dealing with the Pardanasheen ladies does not merely applies to women living in seclusion but also applies to illiterate and ignorant women as has been held in the case reported as Mst. Hawa vs. Muhammad Yousaf and others (PLD 1969 Kar. 324). For proper appreciation, paragraph No. 27 of the cited case is reproduced as under:- "27. The judicial pronouncements have woven a cloak of protection of pardanashin ladies, who because of their ignorance, inexperience of business matters and social conditions are not able to understand the nature of business transactions. The Privy Council defined-a pardanashin lady as a woman of rank living in seclusion but the law regarding pardanashin ladies equally applies to illiterate and ignorant women ..."
As transaction or agreement with Pardanasheen lady demands much care and caution as compare to lay man or woman, therefore, we deemed it expedient to define it in the preceding paragraph before proceedings further
6. It may be observed here that where the executant of a document is an illiterate Pardanasheen lady, burden of proving due execution of such document is upon person,' who is beneficiary of such document. In other words, where a transaction is challenged by an illiterate Pardanasheen lady, the onus to prove the authenticity and genuineness of that document that the same has been executed voluntarily, with free consent, without any undue influence, and fraud is squarely upon the beneficiary of that document. In addition to that the beneficiary of a document, challenged by Pardanasheen lady, has also to prove that the same was entered into by her after clearly understanding the nature of transaction and it should be established that it was not only her physical act but also her mental act. Reference may be made to the case reported as Noor Muhammad vs. Hakim Bibi (1989 CLC 1584), wherein, in at page 1587 of the referred judgment, it has been held as under: "... Admittedly, the plaintiff/respondent, in the present case is an old and illiterate lady. She is the step sister of the petitioner. She had specifically denied having entered into any transaction of sale or having appeared before the Revenue Officer. She being an old and illiterate woman is entitled to the same protection which is available to Pardanasheen ladies. In Nur Muhammad v. Mst. Karim Bibi PLD 1959 Lah. 932 it was observed by this Court that every illiterate woman whether she is Pardanasheen or not is protected unless circumstances are brought on the record to show that she was of an exceptional character, well able to manage her affairs. The protection is afforded on the assumption that Pardanasheen, old and illiterate women are easily influenced. The presumption applies with greater force in a case where the transaction is between an illiterate lady and a person closely related to her as in the present case where the Respondent No. 1, herein, is her step brother. In Mumtaz alias Man& and 2 others v. Nizam Din 1984 CLC 2826 it was held that where the executant of a document is an illiterate lady the burden of proving the execution of such a document lies upon a person who relies upon it. To the same effect are the observations in Abdul Karim v. Mst. Kohi Noor Begum and another 1981 CLC 1055 and Mst. Hawa v. Muhammad Yousaf and others PLD 1969 Kar. 324. In srre Sree Gopal Jeo Gigraha and others v. Mst. Mamuda Begum and others PLD 1986 Dacca 265 rule of law aiming at protection of a Pardanasheen lady was held to be equally applicable to ignorant, illiterate and old women even though not strictly Pardanasheen.
In view of this discussion, it is evident that the burden of proof lay heavily upon the petitioner to have proved that the respondent had of her own fully understanding the implications entered into the transaction of sale in his favour especially when he being the brother was in a position of active confidence. Reference in this connection may be made to Article 127 of the Qanun-e-Shahadat, 1984."
Similarly, in the case reported as Muhammad Yaqoob v. Sardaran Bibi (PLD 2020 SC 338), it was observed that illiterate village women are to be treated at par with Pardanasheen ladies and where a transaction involves anything against their apparent interest, it must be established that transaction they were entering into was fully explained to them and they understood the same. The relevant portion of the cited case is reproduced as under: ".:. This is specifically so considering that there is nothing on record to show that the ladies had any independent advice available to them at any stage. Illiterate village women are be treated at par with Parda Nasheen ladies and where a transaction involves anything against their apparent interest, it must be established that independent, impartial and objective advice was available to them and the nature, scope, implication and ramifications of the transaction they were entering into was fully explained to them and they understood ,the same."
7. According to Article 127 of the Qanoon-e-Shahadat Order, 1984, if genuineness of a document purported to be executed by a Pardanasheen lady is disputed by her, in such state of affairs, the person relies on the document has to prove the good faith and genuineness of the same. We are fortified in our view by case law reported as Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 18E9), wherein, it has been observed as below: "... This is settle 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 settle 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 a reliable, cogent and convincing evidence ..."
The Supreme Court of Pakistan in the case reported as Ghulam Muhammad vs. Zohran Bibi and others (2021 SCMR 19) has held that beneficiary of any transaction involving pardanasheen and illiterate women had to prove that it was executed with free consent and will of the lady. In this context, the observation made by the Supreme Court of Pakistan are reproduced as under: "... It is settled law that the beneficiary of any transaction involving pardanasheen and illiterate woman has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her. None of the said parameters had been met in the case in hand ..."
Thus, in light of the dictum laid down in the above referred cases, it becomes crystal clear that requirement or law is that burden of proof in respect of genuineness of a transaction with a Pardanasheen lady and a document purported to be executed by such lady lies on the person who derives benefit from the document. Such a person is legally obliged to prove and satisfy the Court; firstly, that the document was executed by the same Pardanasheen lady, who is alleged as executant; secondly that she had complete knowledge and full understanding about the contents of the document and thirdly; that she had independent and disinterested advice in the matter before executing the document.
8. In the case in hand the plaintiff-appellant categorically averred in her plaint that the defendant- respondents have obtained the disputed gift-deed by playing fraud upon her with connivance of other sister and she did not at all want to execute such a gift in favour of the defendant- respondents. In our considered view, this assertion of the plaintiff, being a pardanasheen lady, was sufficient enough to shift the onus on the defendant-respondents to prove the authenticity of the disputed gift-deed. But neither the learned trial Court nor the learned District Judge as well as the learned High Court has taken into consideration this legal point and delivered the judgments in a slipshod manner without following the law enunciated by the Courts in the cited cases. The Courts below including the learned High Court have failed to apply the correct law on the subject and reached at wrong conclusion. Although, all the Courts below have concurrently recorded the findings, but these findings are suffering from misreading and non-reading of record and evidence as well as incorrect application of law on the subject, therefore, the same are liable to be set aside.
9. There is another aspect of the case, which the Courts below have also not taken into account while delivering the judgments. During the course of 'examination of the record, we have come across the gift-deed attested on 19.5.2010 relied upon by the defendant-respondents. We do not find any reason assigned in the said gift-deed as to why the gift-deed is being executed in favour of the defendants respondents. Whether the donee had rendered any service to the donor. It was the basic responsibility of the donee to prove that the donor had the intention to gift the property to them for so specific reasons. The proposition came under consideration in the case reported as Khursheed Ahmed and 7 others vs. Zeenat Begum and another (PLD-2003 AJ&K 25), wherein it was observed as under; "In the instant case, it has been clearly laid down that it was the first and foremost responsibility of donees to prove that the donor had any reason to execute the gift-deed. Likewise, it was also the responsibility of the donees to prove that donor had the knowledge at to what he was doing and his intention was to make the gift and it was not the result of their influence. It would also not be out of place to mention here that in the aforesaid report, the gift was executed by a sister in favour of her brother. Her husband and children were deprived. It was held by the Court that there seems no justification and reason for the gift in favour of brother in the presence of husband and children.
While in the instant case, the donees have no such close relation with the donor for which, the preference could be given to them over the wife and son. In the instant case, it was the responsibility of the donees to prove that why this land was gifted to them. What was the reason behind it? It was the basis responsibility of the donees to prove that the gift was outcome of donor free will and not of their influence."
For the reasons stated hereinabove, the appeal is accepted. The judgments of the Courts below are set aside and the gift-deed dated 19.5.2010 is declared void, however, the same shall remain intact to the extent of 8 kanal piece of land admitted to be gifted to Majeed.
10. Before parting with the judgment, it is desired that necessary amendment/addition may be made in Section 34 of 'The Registration Act, 1908, in the interest of general public to the following effect: In case a document is presented for registration by a woman either literate or illiterate irrespective of any age, shall be deemed to be a parda nasheen woman for the purpose of the Act. The Registrar shall be extra vigilant in registering any document produced by any such woman and record a separate certificate upon the document specifying the modes & methods adopted by the Registrar for registration of such, document, in particular: -
(i) That the Registrar has explained himself and read over each content of the documents produced by the woman for registration to the executant woman and that the executant woman has testified before him each and every content of the document;
(ii) The Registrar shall satisfy himself that while in compliance of Condition No. (i) the executant woman was neither under the influence of any person nor any person was present while the contents of the documents were being explained and read over to her;
(iii) That the Registrar shall satisfy himself that the executant woman is not under direct or indirect pressure, threat or influence of any kind and that she has testified the contents of the document on her own free will; and
(iv) The Registrar shall also satisfy that the executant woman at the time of execution of document does not suffering from illness of a nature that she was not in a state of mind to understand the contents of the document.
A copy of this judgment be transmitted to the Secretary Law of the Azad Jammu and Kashmir for consideration of the recommendations made in Para 10, listed above.
No order as to costs.