SHAHID BILAL HASSAN-J: This single judgment shall decide the captioned appeal and connected appeal bearing R.S.A.No.92 of 2017, as in both one and the same judgments and decrees, passed by the learned Courts below, have been challenged.
2. Succinctly, Syed Raza Haider (contestant respondent No.1) claiming to be next friend of his mother Mst. Yasmin, instituted a suit on 06.06.1996 alleging that his mother i.e. Mst. Yasmin was of unsound mind, unable to manage her affairs on her own and was dependent upon her sister Mst.
Nasira Begum (defendant No.2) deceased, predecessor in interest of the respondents No.2(i) to 2(iv), in whose custody she was at the time of filing of the suit and she owned the following property:- i. Full owner of Agricultural land measuring 240 kanals 16-marlas in Chak No.37/12-L, Tehsil Chichawatni, District Sahiwal ii. 1/9th share in House No.72, Block-C, New Muslim Town, Lahore with land measuring 03-Kanals 17 Marlas and 67 sq.ft. jointly held by the plaintiff and defendants No.1 to 6.
It was further averred that Faqir Syed Anwar Ud Din, defendant No.1, real brother of the plaintiff in collusion with his four other sisters and a brother i.e. defendant No.2 to 6 had fabricated and forged a general power of attorney dated 14.08.1988 on the basis of which 01-Kanal 07-sq.ft. from property 72-C, Model Town, Lahore was transferred to Ch. Asghar Ali, defendant No.7 through registered sale deed dated 06.02.1989 against a fictitious sale price of Rs.480,000/-; that the plaintiff Mst. Yasmin was not paid a single penny; that the defendant No.7 had further alienated and transferred the said property to Muhammad Azeem Sheikh, defendant No.8, through a registered sale deed, the details whereof were unknown to the plaintiff. It was further contended that plaintiff Mst. Yasmin had never appeared before the revenue officer for executing the General Power of Attorney dated 14.08.1988, which document was null and void; that transfer of plaintiff's land measuring 204- Kanals 16-Marlas firstly in favour of her mother namely Mst. Amina Khatoon and secondly to Syed Faqir Anwar Udf Din, defendant No.1, by Mst. Amina Khatoon through different sale mutations was the result of fraud and collusion between the defendant No.1 and defendants No.2 to 6. A declaratory decree in the following terms was sought for:- i. That deed of GPA dated 14.08.1988 is the result of fraud, null and void and ineffective upon the rights of the plaintiff. ii. That sale deed executed by defendant No.1 as attorney of plaintiff in favour of defendant No.7 and further transfer via sale deed executed by defendant No.7 in favour of defendant No.8 be declared as fraudulent, hence void upon the rights of the plaintiff. iii. That mutations of alienations in favour of Mst. Amina Khatoon (plaintiff s mother) and further mutations by Amin Khatoon in favour of defendant No.1 be declared to be null and void, without consideration, hence, not binding on the plaintiff.
3. The defendant No.1/present deceased appellant and co-defendants No.2, 3,5 and 6 had jointly contested the suit by filing written statement. The defendants No.4 and 7 were proceeded against ex parte. Muhammad Azeem Sheikh, respondent No.8, the subsequent purchaser, submitted separate written statement. During pendency of the suit, Mst. Yasmin died on 08.06.1997 and was succeeded by her son Raza Haider (respondent No.1) being sole survivor. Out of the divergent pleadings of the parties, the learned trial Court framed as many as 14 issues including "Relief". The parties adduced their oral as well as documentary evidence in support of their respective contentions. The learned trial Court, on conclusion of trial, vide impugned judgment and decree dated 20.09.2014 decreed the suit in favour of the respondent No.1 and against the defendants/appellants. The appellant and co-defendants No.2, 3, 5 and 6 as well as respondent No.8 namely Muhammad Azeem (appellant in connected appeal No.92 of 2017) being aggrieved preferred two separate appeals. The learned appellate Court vide impugned consolidated judgment and decree dated 30.01.2017 dismissed both the appeals; hence, the instant appeal as well as connected appeal bearing R.S.A.No.92 of 2017.
3. Heard.
4. Considering the arguments and going through the record, it is observed that Mst. Yasmin Begum instituted the suit through her son Syed Raza Haider, respondent No.1, as her next friend, with the averments that Mst. Yasmin Begum was mentally retarted person and she also remained under treatment in different hospitals. She was also admitted in mental hospital, Lahore. The document Ex.P6 divulges that Syed Raza Haider filed an application under sections 62/63 of the Lunacy Act, 1912 for ascertainment of unsound mind of Mst. Yasmin Begum but during pendency of the said application Mst. Yasmin Begum died. All the P.Ws. deposed that Mst. Yasmin Begum was of unsound mind before contracting marriage and all the transactions regarding the transfer of property were made while she was suffering from mental illness and being of an unsound mind and was unable to manage herself and that all the transactions germane to transfer of her property were outcome of fraud. The beneficiary was under heavy burden to discharge the onus that all the transactions were performed with free will and consent of the principal but in the present case, it has been established by the respondent No.1 that Mst. Yasmin Begum was not in a position to manage her property as Ex.P2 explicitly shows that she was admitted in Government Mental Hospital, Lahore on 25.10.1993 and reasons for admission with the history are mentioned as epileptic for the last 28 years in the history sheet. It has further been mentioned in the history sheet that at the time of childhood, she had been suffering from fits. Mst. Yamin Begum was got admitted by her real sister Mst. Nasira Khatoon in the hospital but later on she obtained permission to accompany the patient with her and the same was granted after discharging her on 04.11.1993.
5. The appellants produced only solitary witness namely Faqir Syed Anwar Ud Din and the said D.W. did not depose a single word regarding the factum that at the time of execution of general power of attorney, Mst. Yasmin Begum was not suffering from mental infirmity and she was of sound mind at that time rather it has been deposed in his examination in chief that share of Mst. Yasmin Beugm in the sale amount of the properties was handed over to her elder sister Mst. Nasira Khatoon who had been looking after her sister; this deposition strengthens the stance of the respondent No.1/plaintiff that Mst. Yasmin Begum was not in a condition to manage her properties and all the transactions of transfer as well as execution of general power of attorney in favour of deceased appellant were executed through fraud and misrepresentation. Section 12 of the Contract Act, 1872 provides that:- "What is a sound mind for the purposes of contracting:--- A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.
A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.
A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
Illustrations (a)A patient in a lunatic asylum, who is at intervals of sound mind, may contract during those intervals.
(b)A sane man, who is delirious from fever or who is so drunk that he cannot understand the terms of a contract or form a rational judgment as to its effect on his interest, cannot contract whilst such delirium or drunkenness lasts."
In the present case, it has been established on record that Mst. Yasmin Begum was suffering from epileptic disease from her childhood and was not in a position to manage her property or form a rational judgment as to effect of any contract on her interest, that is why, the amount of her share was handed over to her elder sister Mst. Nasira Khatoon after disposing of the property of Mst.
Yasmin Begum by defendant No.1/present deceased appellant. The other discrepancies as to sale of properties in the year 1974 and obtaining of receipt of amount on 11.06.1988 also casts aspersion about the authenticity and veracity of the general power of attorney and sale transactions. The deceased predecessor of the appellants being beneficiary was under heavy burden to prove the valid execution of the general power of attorney and other sale transactions but he failed in doing so. Reliance is placed on Abdul Hameed through L.Rs.ad others v. Shamasuddin and others (PLD 2008 Supreme Court 140). In view of the above, the learned courts below have evaluated evidence of the parties in a minute manner on this score and have reached to just conclusion; therefore, the findings on this point are maintained and upheld.
6. So far the claim of the appellant in connected appeal bearing R.S.A.No.92 of 2017 with regards to bona fide purchaser without notice is concerned, it is observed that protection under section 27(b) of the Specific Relief Act, 1877 is not available to him, because simple denial was not sufficient to discharge the onus, rather he should have proved good faith and lack of knowledge after reasonable care. Had the appellant in connected appeal namely Muhammad Azeem Sheikh made an inquiry even in a summary manner, he would have come to know that Mst. Yasim Begum was a person of unsound mind and sale in favour of person by defendant No.1, from whom he derived rights was based on fraud and misrepresentation, but there is nothing on record to show making of any such exertion on his behalf. In the case of Hafiz Tassaduq Hussain v. Lal Khatoon (PLD 2011 SC 296), it has been invariably held by the Hon'ble Supreme Court that the subsequent vendee has to discharge the initial onus: 1). That he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise; 2). There was no dishonesty of purpose or tainted intention to enter into the transaction which shall settle that he acted in good faith or with bona fide; 3). He had no knowledge or notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the latter. Moreover, in a recent judgment handed down on 14.10.2021 in Civil Appeal No.389 of 2015 titled Bahar Shah and others v. Manzoor Ahmad the Apex Court of the country has held:- "7. The presupposition of know-how or prior notice of earlier agreement of the same property stem from calculated abstention from an enquiry by the alleged bona fide purchaser. A conscious and purposive circumvention of an enquiry and due diligence which a buyer ought to have made would always communicate a presumption of definite notice. In a position taken as bona fide purchase, it should be established by a fair preponderance of the evidence and the fact of notice may be inferred from the circumstances as well as proved by direct evidence. An honest buyer should at least make some inquiries with the persons having knowledge of the property and also with the neighbors. An equitable interest can be hammered or resisted by a bona fide purchaser for value without notice of the legal interest in the property but it is also significant that Section 27(b) of the Specific Relief Act shields and safeguards the bona fide purchaser in good faith for value without notice of the original contract which is in fact an exception to the general rule. The doctrine of purchaser without notice embodies the maxim that "where equities are equal the law will prevail". Under Section 3 (Interpretation Clause) of Transfer of Property Act 1882, "a person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search, which he ought to have made, or gross negligence, he would have known it. Explanation II, further expounds that "Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."
It is a settled law that where subsequent vendee conducted no inquiry whatsoever with regards to title of the property in question, he would not be deemed to have purchased property in question for value, in good faith and without notice of original contract.
7. Pursuant to above, both the learned Courts have evaluated evidence in true perspective and have reached to a just conclusion, concurrently; as such the concurrent findings, on facts, cannot be disturbed when the same do not suffer from any misreading and non-reading of evidence, howsoever erroneous, in exercise of jurisdiction under section 100 of the Code of Civil Procedure, 1908. Reliance is placed on Haji Sultan Ahmad v. Naeem Raza (1996 SCMR 1729), wherein it has been held that, "Concurrent findings, upsetting the concurrent findings of fact as a result of reappraisal of evidence on record is not permissible under section 100, C.P.C."
8. For the foregoing reasons, while placing reliance on the judgments supra, the appeal in hand and connected appeal bearing R.S.A.No.92 of 2017, being devoid of any force and substance stand dismissed. No order as to costs.