CAI.BFM AKHTAR, J: --By this direct appeal the appellant challenges the judgment of the learned Judge in Chambers setting aside the judgment of the Additional District Judge who had confirmed the judgment of the learned Civil Judge and decreed the suit for specific performance of agreement fled by the appellant against the predecessor-in-interest of the respondents.
2. The appellant filed a suit for specific performance of agreement dated 23-i1-1983 entered into between him and one Mst. Bakhtawar Begun in respect of property bearing No.268/269, Street No.23, RA. Bazar, Lahore Cantonment. During the pendency of the suit which was filed on 16-4-1984, Mst. Bakhtawar Begun died in the year 1987 and her legal heirs were brought on record. The appellant had averred in the plaint that Mst. Bakhtawar Begun had agreed to sell the said property to him for Rs.2,00,000 and he had paid Rs.50,000 as earnest money and in part performance of the agreement possession of the upper stoiey of the property was handed over to him. However, the agreement does not speak of delivery of possession. The seller wo,s required to execute the registered sale-deed in favour of the appellant within a period of 10 months. The appellant served a notice dated 5-2-1984 calling upon Mst. Bakhtawar Begun to execute the sale-deed and he was ready and willing to perform his part of the agreement. A reply to this notice was sent through an Advocate in which it was alleged that she had taken Rs.40,000 from the appellant as Qarz-i-Hasna and had executed a document which was in respect of the loan and not the agreement to sell the house. It was also stated that she was not the sole owner of the house and was not competent to enter into any agreement to sell the same. While denying the agreement it was alleged that document has been obtained bar fraud, undue influence and misrepresentation in collusion with the petition-writer. The appellant then filed a suit for specific performance of the agreement in which the following issues were framed:--- (1)Whether the plaintiff has no cause of action? OPD (2)Whether the plaintiff has not come to the Court with clean hands? OPD (3)Whether the suit is bad for non joinder of necessary parties? OPD (4)Whether the defendant duly executed the agreement to sell dated 23-11-1983 and received earnest money of Rs.5U,000? OPP (5)If Issue No.4 is proved in affirmative, then whether the plaintiff is entitled to decree for the performance of agreement and on what terms? OPP (6)Whether the defendant is entitled to special costs? OPD
(7) Relief?
The learned trial Court decreed the suit which was upheld in the first appeal filed by the respondents. The respondents challenged the appellate judgment in second appeal before the High Court which was allowed by the impugned judgment.
3. The learned counsel for the appellant contended that the concurrent finding of fact could not be disturbed in second appeal as there was no illegality, omission or irregularity in judgments of the Courts below. We have examined the judgments passed by the Courts below and find that the trial Court as well as the first appellate Court have exhaustively dealt with the evidence and the documents produced during trial and concluded that Mst. Bakhtawar Begun had taken contradictory stand in reply to the notice and the written statement and further that the signature 'on the document was admitted, but it was denied only on ground of misrepresentation and fraud.
The salient features of the case are that Mst. Bakhtawar Begun denied the ownership, but it turned out to be incorrect and all the Courts including the High Court have upheld that she was the sole owner of the property at the time she entered into agreement. As regards consideration it was disputed on the plea that she had received Rs.40,000 as a loan. Mere statement that it was only a loan is not sufficient to disprove a written. Document. However, in para. 1 of the written statement it was alleged that the appellant persuaded Mst. Bakhtawar Begun to write a power oaf attorney in order to enable him to pursue the cases in different Courts and in this way she was taken to Waseeqa Navees and her thumb-impression was obtained on certain papers. Similar statement of affixing thumb-impression was made by D.W.2 also, who is the son of Mst. Bakhtawar Begun, but he also improved by saying that signature had also been obtained on the false plea that the document related to pursuing the Court cases. These contradictions were noted by the trial Court as well as the first appellate Court and examining them in juxtaposition with the statement of the defence witnesses in which no contradiction or infirmity was found, the verdict was given in favour of the appellant. In the face of such B concurrent findings of fact, the same could not have been set aside merely because there was misreading of evidence or some other conclusion could also be drawn from the testimony of the witnesses.
4. The anchor-sheet of the respondents' case seems to be that the value of. The property was in no case less than Rs.4,00,000 and the same had been sold. For Rs.2,00,000 and that under section 22 the Court has the discretion to refuse a decree for specific performance even if the agreement has been proved. The learned counsel for the respondents while raising these contentions further argued that the agreement was not witnessed by any of the male members of the family of Mst.
Bakhtawar Begun and therefore it could not have been relied upon. So far the value of the property is concerned, reliance was placed on the fact that its area was 9 Marlas and land in the locality was being sold at the rate of Rs.35,000 per marla. In the impugned judgment reliance was placed on the testimony of Hafiz Muhammad Sharif D.W.1 and it was observed that there was no evidence it the contrary and therefore the High Court came to the conclusion that the value of he property was Rs.3,15,000. A perusal of the statement of D.W.1 will show hat be had stated that the market value of the property was Rs.12,00,000 or 13,00,000 and in the year 1984-85 it would have been Rs.10,00,000. There had been effective cross-examination on the point and this statement has not remained unchallenged. He had purchased a property of one Maria with house for Rs.80,000 in 1989, but he could not state any instance or any transaction of the property in the year 1984.
Similarly the statement of D.W.2 in . The same manner cannot be relied upon. The basis of calculation therefore in second appeal by appraising the evidence and coming to a different conclusion cannot be justified. Even otherwise as held in Ali Muhammad Khan v. Riazuddin C Khera PLD 1981 Kar. 170 inadequacy of price can hardly be a ground for refusing specific performance.
This view has been upheld by this Court in Ali Muhammad Khan v. Riazuddin Khera (C.P.L.A. No.4-K of 1981).
5. The learned counsel vehemently argued that in the absence of any male witness of the executant's family the agreement should not have been accepted. In this -regard he has referred to Mst. Janat Bibi v. Sikander Ali PLD 1990 SC 642 where after referring to several judgments and taking into consideration that the executant was an illiterate Pardanashin lady and had thumb- impressed and also referring to the evidence on the point, that the sale--deed was not read over and explained to the appellant, it was confirmed that the deed was not consciously executed.
While referring to Mst. Faridun Nisa v: Munshi' Khan AIR 1925 PC 204 it was observed that the rule that the disposition made must be substantially understood and must really be the mental act as distinguished from execution which is a physical act of the person who makes it, should be extended to ignorant and illiterate women as well. Reference was also made to Muhammad Nazir v. Muhammad Sarwar 1989 M LD 293 where agreement of sale was discarded as scribe could not himself identify illiterate pardanashin lady who executed the document nor was he satisfied about her identification from independent source and that her sons were not joined in the bargain.
Whether a lady is a Pardanashin is a question of fact. The burden of proof that any document purported to have been executed by a Pardanashin lady affecting her right in an immovable property was substantially understood by the lady and was her voluntary, intelligent, free and conscious act, is upon the person chiming any right under such deed. This rule has been extended to illiterate ignorant lady whether she is Pardanashin or not. This rule of wisdom and caution thrown round the Pardanashin, illiterate and ignorant women is to protect them from exploitation, duress, fraud and misrepresentation. From all the judgments cited and discussed in the referred judgments it is clear that the cases involved Pardanashin or illiterate and ignorant ladies. But where the lady involved is an educated lady not observing Parda capable of understanding transactions and has executed the deed on full and proper understanding of its implications, the principle governing Pardanashin, ignorant and illiterate women will hardly be attracted. In the present case both the Courts below have found that Mst. Bakhtawar Begum was an educated lady and after reading the agreement she had signed the document in English. It was not thumb- marked as stated by her sons and therefore on the basis of the evidence of the witnesses they came to the conclusion that it was not a case of illiterate ignorant and old woman. Such finding cannot be disturbed merely on certain presumption that Mst. Bakhtawar Begum was an old lady.
Another aspect which lends support to respondents' plea is that Rs.50,000 were received by Mst.
Bakhtawar Begum. Although she admitted to have received Rs.40,000, the explanation offered is most unconvincing. She admits in the reply to the notice that Rs.40,000 was received as Qarz-e- Hasna. There seemed to be no occasion for such a loan. A further plea that the respondent was appointed attorney by the deed executed by her does not seem to be true as no attorney will pay any amount on execution of such a deed. The fact that signature of Mst. Bakhtawar Begum was obtained on blank paper is also not proved.
6. The learned counsel for the respondents pressed into service section 22 of the Specific Relief Act stating that in the circumstances decree for specific performance should not have been granted.
All the circumstances, which are relied upon by him are such which, as discussed above, cannot stand on the strength of reliable evidence. The discretion so conferred on Courts has to be exercised judicially on recognized principles and not arbitrarily or on presumptions and assumptions. We therefore allow the appeal and restore the judgment of the learned trial Court on the condition that the appellant shall pay the balance amount of Rs.1,50,000 with mark-up at the rate of 12 per cent per annum from the date, of suit till payment. While exercising discretion the Court must take into account all facts and circumstances. The respondent is in possession of part of the disputed house and except Rs.50,000 has so far not paid any amount nor did deposit the balance amount in Court. The appellant should not be deprived of the benefits which would have accrued if the balance amount would have been deposited in Court at the time of filing the suit.
The payment should be made by the appellant within a period of two months. There will be no order as to costs.
A.A./I-192/S