' This second appeal has been filed by late Mst. Siddiqan and Mst. Jamila/plaintiffs under section 100, C.P.C. in order to call in question the judgment and decree passed by the learned first appellate Court dated 4-3-1968 reversing the decision of the learned first Court, dated 31-1-1966 and dismissing the suit lodged by the appellants.
2. The facts, briefly stated, leading to this appeal are: that late Mst. Siddiqan and Mst. Jamila were mother and daughter inter se. They inherited agricultural land measuring 216 Kanals 15 Marlas, situated in the area of Chak No,140/Janubi, Tehsil and District Sargodha. Feeling aggrieved from the mutation of inheritance in favour of the appellants, some persons filed appeals before the learned Additional Settlement Commissioner. Being illiterate and Parda-observing ladies, they constituted Muhammad Ibrahim, herein respondent No,1 as attorney in order to pursue the appeals on their behalf. The learned Additional Settlement Commissioner vide decision dated 10-2-1964 dismissed the appeals. The spirit of confidence, however, started dwindling between the appellants on one side and Muhammad Ibrahim on the other hand. In this background the appellants cancelled power of attorney in favour of Muhammad Ibrahim. This, however, did not foreclose the matter. The appellants, thereafter, found that Muhammad Ibrahim had fabricated a special power of attorney on the basis of which he had transferred agricultural land measuring 92-1/4 Kanals owned by the appellants in favour of Noor Muhammad respondent No,2 for a sum of Rs,14,600 and had executed registered sale-deed dated 15-9-1962. On coming to know about the above facts, the appellants instituted a suit against the respondents for seeking declaration to the effect that the registered sale-deed dated 15-9-1962 was a fake and fraudulent instrument, that the appellants had neither executed special power of attorney Exh.D-4 dated 21-6-1962 in favour of Muhammad Ibrahim nor had executed the sale-deed in favour of Noor Muhammad nor had received the consideration from the aforesaid vendee. Alongwith the declaratory relief, a consequential relief was prayed for in form of perpetual injunction restraining the respondents from claiming any right in the suit land and from interfering in the possession of the appellants over it.
3. The suit was contested by the respondents. Muhammad Ibrahim, in his written statement pleaded that he was attorney of the appellants and had been managing the land, prosecuting the cases filed against the appellants and had incurred heavy expenses in pursuit of these duties; that the appellants executed Exh.D-4 dated 21-6-1962 (Special power of attorney) empowering him to execute the sale-deed of the suit land in order to meet the expenses which he had incurred in performance of duties as attorney. On merits Muhammad Ibrahim maintained that he made the sale of the suit land in favour of Noor Muhammad, had received Rs,8,500 in cash and adjusted Rs,6,000 which was received by the appellants as mortgage money. Noor Muhammad respondent No,2 filed a separate written statement and took up the plea that he had negotiated the sale directly with the appellants; that respondent No,1 had executed the sale-deed in his favour, had received Rs,8,500 in cash from him as price of the sold land while remaining sale price was adjusted in lieu of mortgage money received by the appellants.
4. On the divergent pleadings of the parties, the learned trial Court framed as many as seven issues which are as follows:
(1) Whether the suit can proceed in the present form?
(2) Whether the plaint has been correctly valued for the purpose of court-fee and jurisdiction and if not, what is the correct value?
(3) Whether the power of attorney in favour of defendant No,1, dated 22-6-1962 was acquired by him by fraud, misrepresentation, coercion and undue influence?
(4) Whether the sale of the land in dispute is illegal and is liable to be set aside?
(5) Whether defendant No,2 is a bona fide purchaser of the suit land for consideration and what is its effect?
(6) Whether the plaintiffs are estopped to bring this suit by their conduct?
(7) Relief.
' The parties led oral as well as documentary evidence in support of their respective pleas. The learned trial Judge, on examiring the evidence of the parties held that the appellants were illiterate ladies, had affixed their thumb-impressions upon Exh.D-4 dated 21-6-1962 without understanding it; that respondents Nos.1 and 2 have failed to establish that Exh.D-4 was correctly/validly executed instrument. On the basis of the aforesaid conclusion Issues No,1, 2 and 3 were decided in favour of the appellants and against the respondents. On Issue No,5, the learned trial Judge decided that if Muhammad Ibrahim had received the sale price from Noor Muhammad, he was entitled to refund of it from respondent No,1. On this conclusion the learned first Court decreed the suit vide decision dated 31-1-1966.
5. Feeling aggrieved, respondents Nos.1 and 2 preferred appeal which was accepted by the learned first appellate Court on 4-3-1968. It held that the evidence led by Muhammad Ibrahim and Noor Muhammad was sufficient in quality and quantity to establish that late Mst. Siddiqan and Mst.
Jamila had executed power of attorney Exh.D-4 dated 21-6-1962 with full knowledge of facts in favour of Muhammad Ibrahim who was competent to execute registered sale-deed in favour of Noor Muhammad. On this finding the learned appellate Court reversed the findings of first Court on Issues Nos.1, 2, 3 and 4 and dismissed the suit.
6. The learned counsel for the appellants, in support of this appeal, raised the following points:
(i) that the appellants were admittedly Parda-observing ladies and were illiterate too. According to the learned counsel, the appellants were entitled to protection under section 16 of the Contract Act.
(ii) That the learned appellate Court had misread and and misconstrued the testimony of Ghulam Farid D.W.3, Taj Muhammad D.W.7, Noor Muhammad D.W. 8 and Muhammad Ibrahim D.W.
9. According to the learned counsel the evidence of the above witnesses was wholly discrepant, mutually destructive and contradictory on each point of transaction of sale from inception to finish.
' 6-A. On the other hand the learned counsel appearing on behalf of the respondents, supported the impugned decision.
7. From the foregoing narration of facts, circumstances of the case and the arguments put forth by the parties it is clear to me that the fate of this second appeal rests upon the decision of this Court on Issues Nos.3 and 4. The appeal is against the judgment of variance. In such a case the jurisdiction of the second appellate Court was fully examined in Madan Gopal v. Maran Bepari PLD 1969 SC 617. It was held therein: "If the finding of fact reached by the First Appellat Court is at variance with that of the trial Court, the former will ordinarily prevail although it would not possess the same value or sanctity as a concurrent finding. Such finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning duly taking note of the reasons adduced by the first Court which have been disfavoured in the finding. The finding being at variance with that of the trial Judge the two will naturally come in for comparison for their comparative merit in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first Appellate Court cannot be supported on the evidence on record or if it has failed to 'take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
' The rule laid down in Madan Gopal's case (supra) was reiterated in Hafiz Muhammad Hussain and another v. Abbas Khan and another 1981 SCMR 1233, Islam v. Mukhtar Ahmad PLD 1978 Lah. 994, Munawar v. Razia Begum PLD 1979 Lah. 300, Allah Din v. Habib PLD 1982 SC 465, Alloo v. Sher Khan PLD 1985 SC 382 and Commissioner of Income Tax, Karachi v. Haji Gulzar and Sons 1986 SCMR 1315.
8. Guided by the above rule I find it necessary to re-assess the evidence of the parties. Before I undertake this exercise, I deem it expedient to re-state another well settled proposition of law having decisive bearing on this case. The rule is that where a document is allegedly executed by illiterate person/Parda-observing lady, the beneficiaries of that document are bound to establish by highly satisfactory and strong evidence that not only the document was executed by such illiterate person/Parda-observing lady but also that such illiterate person/Parda-observing lady had fully understood the contents of the document. This rule was laid down as back as in 1925 by the Privy Council in Mst. Farid-un-Nisa v. Mukhtar Ahmad AIR 1925 PC 204. Lord Summer, J. speaking for the Bench said: "The case of an illiterate Paradanashin lady, denuding herself of a large portion of her property without professional or independent advice is one on which there is much authority. Independent legal advice is not in itself essential (Kali Baksh Singh's case (1914) 36 All. 81 = 41 IA 23 = 16 OC 378 = 18 CWN 282 = 12 AU 115 = 15 MLT 130 = 19 CU 172 = 1 OLJ 67 = 26 MU 121 = 1914 MWN 112 = 21 IC 985 = 16 Bom. LR 147 (PC). After all, advice, if given, might have been bad advice, or the settler might have insisted on disregarding it. The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it."
' In the same judgment his Lordship further held: "Further, the whole doctrine involves the view that here execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained. If it is in a language which she does not understand, it must, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend on the circumstance."
' The above rule was following in Mst. Hawa v. Muhammad Yousaf and others PLD 1969 Kar. 324, Taj Din v. Abdul Rehman PLD 1963 Kar. 825, National Bank of Pakistan v. Hajra Bai PLD 1985 Kar. 431 and Suleman Khan v. Makhmal Jan PLD 1974 Azad J&K 106.
9. Guided by the above principle, I herein proceed to determine the contentions of the parties.
There is no dispute that late Mst. Siddiqan and Mst. Jamila were Pardha-observing and illiterate ladies; that they were locked into disputes with regard to their rights of inheritance; that they were incapable to conduct their defence in Court and so appointed their attorney to defend them against legal assaults on their rights; that it is also not in dispute that Muhammad Ibrahim did act as their attorney and executed the questioned registered sale-deed Exh.D/1 dated 21-6-1962 in favour of Noor Muhammad in exercise of his authority under special power of attorney dated 21-6- 1962, Exh.D-4. The question for decision is, whether Muhammad Ibrahim did lead any evidence to show that he explained to Mst. Siddiqan and Mst. Jamila about the contents and nature of special power of attorney Exh.D-4 at the time of its execution or had they understood the contents of the document before putting their thumb-impression upon it. From the perusal of the evidence brought on record, the answer is 'big no'. It was the duty of Muhammad Ibrahim and Noor Muhammad under law to have proved by cogent and unimpeachable testimony that Mst.
Siddiqan and Mst. Jamila had executed Exh.D-4 after fully understanding it and had empowered Muhammad Ibrahim to make the sale of the suit land. Instead of doing so, Muhammad Ibrahim and Noor Muhammad had contended themselves by proving the execution of Exh. D-4 and registered sale-deed Exh.D-1, dated 21-6-1962. No effort whatsoever, was made to prove that Exh.
D-4 was executed by Mst. Siddiqan and Mst. Jamila after understanding its contents and effects.
This not being done, the deed of special power of attorney clearly offended the provisions of section 16 of the Contract Act and the rule laid down in the precedents quoted above. I have, therefore, no hesitation in coming to the conclusion that the learned appellate Court was clearly wrong in holding that respondents Nos. 1 and 2 had fully proved the execution of Exh. D-4. The findings rendered by the learned appellate Court, in my estimation, is clearly violative of the principle of protection available to illiterate and Pardanashin ladies. The findings, therefore, in my view is not sustainable.
10. There is yet another aspect of the case which the learned appellate Court had not attended to.
The testimony of Ghulam Farid, D.W.3, Taj Muhammad, D.W.7, Noor Muhammad D.W.8 and Muhammad Ibrahim D.W. 9, is discrepant, inconsistent, mutually destructive on every material aspect of the case. D.W. 3 Ghulam Farid who was an attesting witness of sale-deed, stated that Taj Muhammad was close relative of Noor Muhammad; that niece of Taj Muhammad was married to Noor Muhammad. This witness was, thus, plainly interested and partisan witness. D.W.7 had stated that he was tenant of Mst. Siddiqan and Mst. Jamila, was in cultivating possession of the suit land; that the appellant had executed power of attorney in favour of Muhammad Ibrahim; that the deed was written by Muhammad Munir, petition-writer; that at the time of the execution, the husband of Mst. Jamila, namely Hafeezullah was also present; that Muhammad Ibrahim had had executed sale-deed in favour of Noor Muhammad for a sum of Rs,16,000. He in cross-examination admitted that he was the tenant of the appellants and had thereafter secured the suit land from Ibrahim alongwith Noor Muhammad and had been paying the price of the land to the appellants and Muhammad Ibrahim; that he had been paying the price of the land to the appellants in Chak on different occasions and had been getting receipts; that they had paid the price of the land to Mst.
Siddqan as Rs,6,000 and had obtained a receipt from her. Noor Muhammad respondent No,2, went to witness-box as D.W.9 and stated that the suit land had been sold for a sum of Rs,14,500 out of which Rs,6,000 were adjusted as mortgage-money; that he had paid Rs,6,000 to Mst. Siddiqan and Muhammad Ibrahim and had not received any receipt from them. He further stated that these amounts were not paid before Tehsildar. He admitted that Taj Muhammad was the uncle of his wife; that he had paid Rs,8,500 to Muhammad Ibrahim in the Chak on 26-6-1962. Muhammad Ibrahim when went to witness-box, supported the version given in his plaint. He stated that he had received the amount in lieu of the expenses which he had incurred while performing his duties as attorney of the appellants to manage the land and defending the cases filed against the appellants.
11. From the above review of the evidence, it is quite clear that the version of Muhammad Ibrahim is totally incompatible with the version of Noor Muhammad. Muhammad Ibrahim claimed that he had made the sale of suit land and had received the price of land in order to satisfy the expenses incurred by him as an attorney while managing the land owned by the appellants and while defending the cases lodged against the appellants. On the other hand, Noor Muhammad, respondent No,2, stated that he had paid the price of land to Mst. Siddiqan and Mst. Jamila through Muhammad Ibrahim in Chak on different occasions. The evidence adduced by Muhammad Ibrahim and Noor Muhammad is thus found to be inconsistent, contradictory and mutually destructive to each other. The learned trial Judge, while assessing the evidence of respondents had correctly come to the conclusion that respondents Nos.1 and 2 had failed to establish the execution of the deed of attorney Exh. D-4 and resultant registered sale-deed according to law.
The conclusions arrived at by the learned trial Court, in my estimation, are based upon objective appraisal of the evidence and correct application of law. The learned appellate Court had rendered the judgment of reversal in violation of section 16 of the Contract Act and rule laid down by the superior judiciary regarding the transactions made by Parda-observing and illiterate ladies.
12. As a result of the above discussion, this second appeal is bound to succeed and I hereby accept the same, set aside the findings of the learned first appellate Court on all issues and restore the findings of the trial Court on all the issues. The suit filed by the appellants is hereby decreed in accordance with the prayer made in the plaint. The respondents shall bear the costs of the proceedings throughout.