' This revision application has been filed against the judgment of First Additional District Judge, Nawabshah, dated Ist November, 1981 in Civil Appeal No, 48 of 1976, whereby he had upheld the judgment of Civil Judge Kandiaro in Suit No, 138 of 1973, dated 17th August, 1976.
2. Suit No, 138 of 1973 was filed by Nizamuddin respondent against the legal heirs of deceased Sharafuddin namely, (1) Mst. Jevini (widow), (2) Mangta, (3) Siddiq, and (4) Rasheed (sons of Sharafuddin). During the against the three sons only who are applicants Nos. 1, 2 and 3 in this revision application.
3. The facts of the case are that Survey No, 264 situated in Deh. Bahlani was resumed under M.L.R.
64 (West Pakistan Land Reforms Regulations, 1959). Sharafuddin deceased was Hari of this land.
Therefore, it was allotted to him on instalments. He paid some instalments and is alleged to have died after about one year of the grant.
4. The respondent, who is brother of Mst. Jevini the wife of Sharafuddin, claimed that during the lifetime of Sharafuddin, the latter had promised to sell half of the disputed survey number to him.
He, therefore, got an agreement executed from Mst. Jevini on 19th January, 1970 agreeing to transfer half share in the survey number in dispute to her brother Nizamuddin. The total area of this survey number is 7 Acres 25 Ghuntas. It may be stated that the three sons of Sharafuddin were minor at the time when this agreement was executed. Respondent Nizamuddin also claimed that he had paid the remaining instalments, therefore, he had become owner of half of the survey number in dispute. He also claims that he has been Hari of this land since long and had been paying Zamindari share to the respondents. It is alleged that as Mst. Jevini and her sons refused to execute sale-deed in his favour, hence he filed this suit for declaration that he (respondent Nizamuddin) is owner of half share of survey number in dispute. The appellants contested the suit by filing written statement in which it was denied that Sharafuddin had ever agreed to give half share of the land to the respondent. It was also denied that any sale-agreement was executed by Mst. Jevini in favour of the respondent. Some legal pleas were also raised before the learned Civil Judge, whereupon following issues were framed:-- "(1) Whether provisions of D.A.R Act are applicable to this suit ?
(2) Whether there was agreement between plaintiff and deceased Sharfuddin about partnership of suit land at the time of allotment ?
(3) Whether defendant No,1 executed an agreement in favour of plaintiff in respect of suit land, if so, what is its effect ?
(4) Who paid the instalment and land revenue of the suit land?
(5) Whether suit is undervalued?
(6) Whether suit is not within time?
(7) Whether this Court has jurisdiction?
(8) Relief?"
5. In support of his case respondent Nizamuddin had examined himself and produced two witnesses Shafi Muhammad and Khan Chand to prove the execution of sale-agreement (Exh. 30).
He also produced instalment receipts (Exhs. 24 to 29 and Exhs.. 23-A to 23-C) and notice of Mukhtiarkar Kandiaro as Exh. 23/D. All receipts of payment of instalments, excepting one, show that the instalments had been paid in the name of deceased Sharafuddin.
6. In rebuttal Mst. Jevini has examined herself and denied the execution of sale-agreement and also denied having given half share of the land to Nizamuddin. On' the basis of the above evidence the learned trial Judge came to the conclusion that the respondent Nizamuddin had proved his claim and, therefore, was entitled to a decree for declaration as owner of survey number in dispute to the extent of 8 Annas. Appeal filed by the respondent was dismissed by the learned Additional District Judge, Nawabshah by the impugned judgment as stated above.
7. Both the Courts below have failed to take notice of the statutory provisions whereby sale of part of a holding, which was less than a subsistence holding, was prohibited. Paragraph 25(4) of M.L.R.
64 of 1959 which is relevant, reads as under:-- "(4) No person owning an area equal to or less than a subsis- tence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: ' Provided that such a person may alienate his entire holding, or, in the case of a holding which is less than a subsistence holding, sell any part of his holding to other owners of the same village, Deh or Mauza."
8. It will be clear from the above that the respondent had claimed half share in the holding, the area of which was 7 Acres and 22 Ghuntas, which is less than subsistence holding. According to paragraph 2(11), subsistence holding means an area of 16 acres of land in Hyderabad and Khairpur Divisions. The land is situated in Kandiaro, which is within Khairpur Division. Hence the area of subsistence holding, according to the above definition, shall be 16 Acres. The admitted fact, according to the respondent, is that he had purchased half share in the survey number in dispute from Sharafuddin and his heirs. This sale, even if the sale-agreement (Exh. 30) is taken to be a proved document, will be in violation of paragraph 25(4) of M.L.R.
64. Hence the transaction shall be ab initio void. It is unfortunate that none of the Courts below has applied his mind to the statutory provisions of M.L.R. 64 which completely bars sale of part of a holding which is less than subsistence holding.
9. Although the revision application should be allowed on this simple ground, but there are other grounds also upon which the suit of the respondent should have been dismissed by the trial Court.
The respondent had based his claim upon the sale-agreement (Exh. 30). Mst. Jevini has denied having executed this deed. She had died after she had given evidence before the trial Court. P.W.
Khanchand is said to be the scribe of this document, but he did not know Mst. Jevini personally. He has deposed that she was identified by P.W. Shafi Muhammad, but P.W. Shafi Muhammad himself stated in his deposition that he did not know Mst. Jevini personally. It is well established rule of evidence that when the executant of a document is illiterate Pardahnashin lady, as Mst. Jevini was, then the burden of proving the due execution of such deed lies upon the person who relies upon such document. The trial Court had also come to the conclusion that the sale-agreement (Exh. 30) has not been proved to have been duly executed by Mst. Jevini. In spite of this finding, the claim of the respondent was decreed by the trial Court for reasons which are not understandable. It would be interesting to quote here the passage from the judgment of the trial Court relating to execution of the Kabulyat Exh.
30. It runs as under:-- "The genuineness of this Kabulyat have been attacked on manifold' grounds. First is that the attestation by Shafi Muhammad is 'suspicious'. The space reserved for the attestation by this witness has been used by the scribe for his endorsement and the attestation by this witness comes after the endorsement and is in different ink and pen. It was argued that it shows that this witness was not present at the time of execution and had endorsed it afterwards. This is a very strong point and I agree with this contention. The Courts are required to be very cautious while dealing with documents executed by Pardahnashin ladies and very exhaustive principles are laid down in PLD 1974 Azad J & K of 106 on this point. The scribe has deposed that the document was read over and explained to the lady executant but the recital in the document does not support this evidence.
There is no endorsement in the document itself that it was read over and explained to the executant lady. Due to these inherit defects in the document, I exclude it from the 'exhibition'. This document has not been 'soured' upon for specific performance but has been introduced in support of the fact of Benami transaction and connotes a relevant fact and its execution form consideration does not effect the prof-of fact introduced by The first appellate Court has on the contrary held that Exh. 30 stands proved. This finding of the two Courts is based on wrong application of well-established principles of evidence, according to which a document executed by an illiterate lady is to be proved by a person who relies upon such document. Whereas both the Courts below have placed the burden upon Mst. Jevini to disprove the due execution of this document. Both the Courts have misread the evidence and have grievously erred in holding that the Exh. 30 stood duly proved due to the fact that Mst. Jevini has been unable to disprove it. They have overlooked the fact that respondent Nizamuddin himself was an interested witness. He was brother of Mst. Jevini and was in a position to exert undue influence over her under section 16 of the Contract Act. So far as P.Ws. Shafi Muhammad and Khanchand are concerned, it is doubtful if Shafi Muhammad was at all present at the time of execution of the document Exh.
30. His endorsement about identifying Mst. Jevini has been made at the end of the document by different ink and below the attestation made by the Oath Commissioner. It appears that this endorsement was made after the attestation of the document was made. Otherwise the endorsement of Shafi Muhammad must have been made immediately below the attestation of the first witness Suleman who has not been examined. The manner in which Shafi Muhammad has attested this document makes the attestation doubtful at the very face of it. Both the learned Courts below have failed to properly scrutinise the genuiness of this document.
10. The most important circumstance which militates against the claim of the plaintiff/respondent is that he did not obtain any such agreement or acknowledgment from Sharafuddin during the latter's lifetime. This Sharafuddin was alive for about one year after the allotment of land in dispute.
If he had agreed to transfer half share to Nizamuddin, then there was no difficulty for Nizamuddin, to have obtained an agreement in writing from him similar to the one he is alleged to have obtained from Mst. Jevini.
11. It may also be stated that after the death of Sharafuddin, Mst. Jevini, the widow and her minor sons were his only surviving heirs. Nizamuddin being the brother of Mst. Jevini, was the only elder male member of 'the appellants' family to look after her lands. Under these circumstances, she had simply entrusted Nizamuddin the management of the land. It was quite natural for her to have made payment of instalments through Nizamuddin.
12. In any case the alleged transfer of half share of survey number in question to Nizamuddin respondent, being in violation of the statutory provisions of M.L.R 64 must be declared to be ab initio null and void.
' The revision application is, therefore, allowed and the judgments of the trial Court and the first appellant Court are set aside with cost throughout.
' During the pendency of the appeal an application had been made by the appellant that the respondent is in possession of the entire survey number and has stopped giving Zamindari share to them, therefore, Receiver should be appointed upon the land, under Order XL rule 1, C.P.C. This application was ordered to be heard alongwith the main appeal. As the suit of Nizamuddin has been dismissed by this judgment, the applicant shall be at liberty to move the trial Court under section 144 C.P.C. Or to apply to Revenue Authorities under the relevant law for possession or for their Zamindari share. The application stands disposed of accordingly.