' SHAFIUR RAHMAN, J.---Leave to appeal was granted to the plaintiff to examine whether in view of the law laid down by this Court in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 she was not entitled to be granted relief in respect, of that part of the suit property which was denied to her on grounds which did not appear to be consistent when considered with the relief granted in respect of the other property.
2. Sardar Hassan Khan Tumandar of Chief Family Haiderani Lund Tribe died on the 10th of August, 1940. He left behind an extensive agricultural land in District Muzaffar Garh and District Dera Ghazi Khan. He left behind a widow -- Mst. Jan Bibi, three daughters -- the plaintiff/appellant (Mst. Amir Bibi) being the youngest, and a son Ata Muhammad Khan -- respondent No,1/the contesting defendant in the case. Not in all the villages in which Sardar Hassan Khan owned property the inheritance mutations were attested in favour of the daughters. In some, it was attested in their name to the extent of their share. It must be mentioned here that in this agricultural land, Sardar Hassan Khan was a co-sharer himself. Subsequently, on the 13th of December, 1954 and 10th of March, 1958, mutations were attested whereby the three daughters of Sardar Hassan Khan purportedly sold their entire share to defendant No,1 -- Ata Muhammad Khan.In this background of facts, Mst. Amir Bibi, the appellant alone instituted a civil suit on 24th of April, 1974 seeking a declaration in respect of these two attested mutations. Her case was that she was a minor when these transactions were said to have taken place, that the sales were fraudulent, fictitious, not binding on her, and that she continued to be the owner of the property being in joint possession of it. This suit was resisted mainly by the defendant No,1 who contested the suit. The following issues were framed on the pleadings of the parties:- "(1) Whether the form of suit is improper? OPD
(2) Whether the plaintiff is in possession of suit land? OPP (3)Whether the plaintiff has not instituted the suit?
(4)OPD Whether the suit is within period of limitation? OPP (5)Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? OPD (6)Whether the plaintiff is entitled to inherit land? If so, to what extent? OPP.
(7)Whether mutation bearing No,852 is lawful, with consideration and valid? OPD.
(7-A) Whether mutation bearing No,2877 is lawful, with consideration and valid? OPD.
(3) What is the effect of subsequent transfer of suit land by defendant No,1 in favour of defendants No,3 to 12 on rights of plaintiff? OPD.
(4) Whether the suit is not maintainable? OPD.
(5) Whether the defendants had been in adverse possession of suit land for more than 12 years? If so, its effect? OPD.
(6) Whether the pedigree-table given in para. No,1 of plaint is correct? OPP.
(7) Relief."
3. The trial Court after recording the evidence recorded the finding that on the basis of oral evidence it was found that on the land covered by mutation No,2877 attested on 10th of March, 1958 she was in possession of the property and hence the form of the suit as well as its maintainability could not be questioned with respect to that part of the property. In respect of the property covered by the other Mutation No,852 attested on 13th December, 1954, it was found that she was not shown to be in possession after the impugned sale but as she was contesting the very validity of the sale which showed her ouster from the property, the suit was maintainable and she had to establish that it was fraudulent and not binding on her. It was mainly on the finding that the Mutation No,2877 was found to be not attested in accordance with law that her suit was decreed in respect of the property covered by this mutation. Her suit with regard to the other mutation was found to be barred by time and not assailable and not sound on merits and hence with regard to that mutation her claim was rejected.
4. An appeal was preferred by the appellant before the District Judge with regard to the relief denied to her in respect of Mutation No,852 attested on 13-12-1954. The respondent No,1 filed cross- objections challenging the decree in so far as her claim was decreed in respect of Mutation No,2877 attested on 10th of March, 1958. The appellate Court affirmed the findings of the trial Court could holding further that the suit with respect to Mutation No,852 notwithstanding the challenge to the validity of that mutation was barred by time and hence not maintainable. The cross-objection was also dismissed.
5. A second appeal was filed in the High Court which was dismissed in limine mainly on the ground that the mother who was the most competent witness in the case to resolve a dispute with regard to the minority of the appellant had not supported the case of the appellant in the written statement and had not appeared as a witness. The failure of the appellant to produce her mother in support of her claim was taken to be destructive of the case set up by her on the ground of minority, undue influence etc.
6. Mr. A.R. Shaikh, Advocate, the learned counsel for the appellant has contended that the very fact that the mutation of inheritance was not got attested by respondent No,1 in favour of his sisters in some of the villages showed his mental inclination to deprive them of their share. It was also contended that after the death of their father the appellant alongwith her mother and the sisters had been living and were wholly dependent on their brother. The property being joint in the hands of Sardar Hassan Khan continued to be joint with his heirs. In respect of Mutation No,2877 the first appellate Court and the trial Court both held that it was a forgery and a fraud at the hand of the brother against the sisters. If that were so, the same transaction which was reflected in Mutation No,852, the property alone being different could not be sanctified. The helplessness, the ignorance, the illiteracy of the plaintiff as against her brother is evident from a perusal of her own statement made in Court. All these facts, according to the learned counsel, coupled with the diametrically opposite fmdings recorded by the two Courts with regard to the two mutations and the law as laid down by this Court in the case of Ghulam All and two others PLD 1990 SC 1 clearly and unmistakably made out a case against the respondent No,1 and the plaintiff was entitled to succeed to the fullest extent and not only partly as has been allowed by the Courts.
7. Mr. Asif Saeed Khan Khosa, Advocate, the learned counsel for the respondent on the other hand contended that the questions whether the plaintiff was minor at the relevant time, whether undue influence was exercised on her, whether an unfair advantage has been taken by the brother were all questions of fact and have been resolved by the Courts on evidence on record. The evidence brought on record was mostly or predominently of the family members who were related inter se and for that reason, with regard to the age, with regard to the undue influence and with regard to other controversies, inspired confidence and faith. Besides, the plaintiff got married in 1959 and had the independent advice of her husband and his family and in such a situation her coming to Court in 1974 contesting the transactions which were fairly old could not be considered to be as within limitation and properly made.
8. A very conspicuous feature of the case as disclosed at the trial was that there was unity of transaction in the sale reflected by the two mutations under challenge in the suit. Mutation No,852 was a sale mutation for a sum of Rs,10,000 by the three sisters in favour of Sardar Ata Muhammad Khan. It was reported by Sardar Ata Muhammad Khan himself on 29-7-1954. The other Mutation No,2877 was also a sale entered into between the same parties for a sum of Rs,800. This sale was also entered on the report of Sardar Ata Muhammad Khan made on 5-12-1954.
9. The two Courts have recorded apparently very inconsistent and irreconcilable findings in respect of the two mutations. For example, while dealing with Mutation No,2877 in respect of which the plaintiff was granted the decree, the Court held as hereunder:- "In view of the above discussion, it is disproved that the statement dated 25-11-1955 was recorded on deposition of Mst. Amir Bibi plaintiff. The perusal of statement shows that it does not carry the words "read over and admitted as correct". This means that the statement was not read over to the plaintiff. In addition the physical possession of said land rests with the plaintiff. In this view of the matter, the statement dated 25-11-1955, is forged one and is not proved to have been made by Mst.
Amir Bibi at her own free will. Consequently the mutation attested on basis of this statement to the extent of plaintiff is illegal, without consideration and void. The issue is found against the defendant."
' The first appellate Court, on the same subject, recorded the finding as hereunder, after reappraising the evidence:- "The respondent No,1 had not examined Muhammad Khan Girdawar Local Commissioner as a witness to prove that he recorded statement of the appellant with her free will. He had failed to examine Sardar Imam Bux Khan, Dur Muhammad as witnesses to prove that the appellant made the statement before the local commissioner. Respondent No,1 had not bothered to seek opinion of the expert with regard to the thumb-impression affixed on mutation with the original thumb impressions of the appellant affixed on plaint. Respondent No,1 when appeared as D.W.6 did not state that the appellant did make the statement in regard to the sale of the land in dispute mentioned in Ex.P.4 before Muhammad Khan Girdawar Local Commissioner. He had not stated that she received sale price from him. The land mentioned in Ex.P.4 is admittedly in the physical possession of the appellant. The appellant stated as P.W.8 that she did not appear before Muhammad Khan Girdawar Local Commissioner. Her statement was corroborated by her husband Khalilur Rahman Khan P.W.9. If the land mentioned in Ex.P.4. Had been sold to respondent No,1, the possession of the land in dispute would have been delivered to him. As the possession had not been delivered, therefore, the mutation Ex.P.4 is the product of fraud."
10. With regard to other Mutation No,852, the trial Court recorded the finding as hereunder:- "In negotiation of family members which included the plaintiff, her two sisters, brother defendant No,1, uncle Sardar Imam Bux Khan, Sarbarah Tummondar and cousin brother of Sardar Fazal Ali Khan, they transferred their land in consideration of Rs,10,000 to defendant No,1. All the more the two sisters of plaintiff namely Bashir Bibi and Nazir Bibi defendants No, 13 and 14 have not objected to the transaction nor have they alleged that the nature of transaction was not comprehensible to them; secondly as admitted by Sardar Nazir Hussain Khan P.W.2 the mother of plaintiff was also living in the house of his son namely Ata Muhammad D.W.1 alongwith her daughter Mst. Amir Bibi plaintiff. Had the mother been not present in the house, the independent advice to plaintiff would not have been available; thirdly the statements of plaintiff and her two sisters namely Bashir Bibi and Nazir Bibe defendants No,13 and 14 were recorded in the house by elder of their family Sardar Fazal Ali Khan. In view of these extenuating circumstances, I can well-understand that the plaintiff knew the nature of transaction, and that she had full knowledge of the act which she was performing and that she had independent and disinterested advice available at the time of attesting of mutation."
' The appellate Court on the same subject, after reappraising the evidence, recorded the finding as hereunder:..
"The appellant and her two sisters had transferred their land to their brother respondent No,1. They were living with their brother respondent No,1 at that time. The appellant was unmarried and was considerate, therefore, she alongwith her two sisters transferred the land mentioned in Ex.P.3 by way of sale and by the intervention and negotiation of their uncle Sardar Imam Bux Khan Sarbrah Tummondar and cousin brother of Sardar Fazal Ali Khan, they had transferred their land for a consideration of Rs,10,000 to respondent No,1. The two sisters and the appellant had not objected to the transaction nor had they alleged that the nature of the transaction was not comprehensible to them; secondly the mother of the appellant was also living in the house of his son respondent No,1 Ata Muhammad alongwith her daughter Mst. Amir Bibi appellant. As her mother was living with the appellant, therefore, an independent advice was available to her; thirdly the statements of the appellant and her two sisters were recorded in the house of the elder of their family Sardar Fazal Ali Khan. At the time of the attestation of mutation in dispute Sardar Imam Bux Khan father-in-law of the appellant was also present. Under these circumstances, the appellant knew the nature of transaction and that she had full knowledge of the act which she was performing and that she had independent and disinterested advice, available at the time of the attestation of mutation Exh.P.3."
11. There was an argument advanced at the trial that one of the mutations put forward in defence by the respondent No,1 showed before the Local Commissioner the age of the plaintiff as sixteen years and on that statement alone no transaction, not even the one protected, could be protected.
This was disposed of by the trial Court as hereunder:- "The reference to mutation Exh.P.5 embodies statement recorded on 25-11-1955, which shows that Mst. Amir Bibi was 16 years of age on said date. I am shocked to say that the plaintiff has not admitted the veracity of the statement in the plaint and in her own statement. She has stated in clear words that she did not make any statement before the Local Commissioner on 25-11-1955. As held infra, the statement is not proved to have been recorded on depositin of Mst. Amir Bibi and that mutation (copy Exh.P.4) was illegally attested and was product of fraud. In this view of the matter, when the referred statement is not proved to be a statement of plaintiff and is declared to have been forged by defendant No,1 to seek transfer of land of mauza Shadan Lund Chak Laman, the Court cannot rely on it. This being so, the referred statement carries no evidentiary value."
' The appellate Court dealt with the same subject-matter as hereunder:- "A reference to mutation Exh.P.4 embodies statement recorded on 25-11-1955 which shows that Mst.
Amir Bibi appellant was 16 years old at that time. The appellant had not admitted the veracity of the statement nor admitted the correctness of the mutation Exh.P.4, in her statement as well as in her plaint. She had stated in clear words that she did not, make any statement before the Local Commissioner on 25-11-1955. As held infra, the statement was not proved to have been recorded on deposition of Mst. Amir Bibi and that the mutation Exh.P.4 was illegally attested. In view of this matter when the referred statement is not proved to have been a statement of the appellant and is declared to have been forged by respondent No,1 to seek transfer of land of mauza Shadan Lund Chak Laman, therefore, the Court cannot rely upon the forged mutation Exh.P.4. In view of this matter, the referred statement mentioned in mutation Exh.P.4 carries no evidentiary value."
12. An analysis of the findings of the first two Courts clearly indicates that in case where primary evidence with regard to the sale transaction was forthcoming, the transaction stood disproved while the other transaction in which primary evidence was not forthcoming but only secondary evidence was available which was mostly oral, the transaction was held proved.
13. Another feature is that the statement of the plaintiff with regard to her own age was discarded as hearsay, inadmissible, but her age recorded by the Local Commissioner in the other mutation as sixteen years was discarded for the simple reason that it was not proved to be her statement. The evidence of age recorded would neither be on the statement of the plaintiff nor independently by the lcoal Commissioner, but certainly at the behest of those present and participating in the transaction. That transaction ex facie shows that she was then sixteen years of age.
14. All the three Courts have taken the failure of the mother to appear and contest as a. Weakness of the plaintiffs case. This conclusion has been further strengthened by the failure of the two other sisters, maturer and elder to the plaintiff to contest the sale and the mutations. If such was to be the basis of the decision, then the other Mutation No,852 should also have been protected for that very reason; but it was not so protected in spite of their conduct remaining the same.
15. The position of the mother and the other sisters-in Tumandari society where they live and were entirely dependent on the only son/brother for their sustenance and protection has not been correctly appreciated by all the three Courts. They could not take a positive stand opposed to him.
They could not join in controversies one against the other. They could not enforce their rights always to the fullest extent. They lacked the awareness, the capacity and the attitude to be pitched against the males of the family, particularly those who have a bond as close as maternal or filial.
16. The statement of the plaintiff in the witness-box cannot but convince anyone reading it of her ignorance, of her illiteracy, of her being a Pardanashin lady, dependent in all respects on the elder brother, looking after her and providing her the necessary protection. In this position of fiduciary relationship, the brother had to prove not merely the transaction but the entire basis of it to the satisfaction of the Courts, that, there was need for sale of her property, that she was so advised independently, that the sale in his favour had been brought about as a sound and in free exercise of the will of such a person. On the findings recorded by all the three Courts that the brother misused his trust, derived undue advantage from the other mutation and forged it, this other transaction cannot be protected on the ground that it proceeded out of the free will of the plaintiff and on her full understanding. The advice of mother and elder sisters would not be free or independent. The family members who are so closely related and otherwise, would have commitment to more than one party could not be termed as independent.
17. Once we come to conclusion that the two transactions suffered from the same vice, the bar of limitation, or the defect in the form of the suit will not intervene or be obstructive for the claim nor would be the alienation made by respondent No,1 in favour of his four sons. The jointness of the interest held by the plaintiff would even now continue to exist.
18. The law on the subject initially laid down in Mst. Faridun Nisa v. Mukhtar Ahmad (Lord Summer)
AIR 1925 PC 203, in terms hereunder held the field:- "The law of India contains well-known principles for the protection of persons, who transfer their property to their own disadvantage when they have not the usual means of fully understanding the nature and effect of What they are doing. In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind If the settlor really understands and means to make the transfer, it is not required that someone should have tried to persuade her to the contrary. Again, the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it f with full knowledge and comprehension. It must be a question whether having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. Of course fraud, duress and actual undue influence are separate matters."
' The law was restated for this country in Ghulam Ali's case PLD 1990 SC 1 as hereunder:-.
"The pleas of estoppel, waiver and adverse possession can also be now easily repelled in the light of the foregoing discussion of the Islamic principles. The petitioners being the brothers of the respondent were required by the Islamic law to protect the property rights of their sister if ever they came into possession of the land in any capacity. Here admittedly they alleged voluntary relinquishment, therefore, even otherwise the well-known rules for establishing adverse possession, particularly the one relating to hostility, would not be established. But as stated earlier, one who is enjoined with the protection of the other's property cannot lay claim adverse to the interests and rights of that other one who owns it. The Saying of the Holy Prophet (P.B.U.H.) has been quoted which enjoins upon the menfolk to protect property rights of their womenfolks."
17. All the three Courts failed to take note of the fact that if part of the joint property was proved to remain in possession of the plaintiff, such possession could extend to the other property also which was joint but on account of the different transaction was said to be not joint.
18. We find that an error of law has been committed in drawing conclusion from admitted facts and in applying law to those facts. Hence, we accept the appeal, set aside the judgments of the three Courts below in so far the relief was denied to the appellant/plaintiff. The plaintiffs suit in its entirety is decreed, with no order as to costs throughout.