SABIHUDDIN AHMED, J.--- This appeal arises from the Judgment of the learned Single Judge of this Court dated 19-12-1973 dismissing a suit for Specific Performance of a contract of sale of land filed by the predecessor-in-interest of the appellants late Mr. Raza Hussain, Advocate (hereinafter mentioned as the deceased plaintiff) and decreeing the suit for Rs,4,000 alongwith 6% interest.
According to the appellant one Mst. Sherbano, the predecessor-in-interest of respondents Nos. 1 to 7 owned about 900 acres of land in Manghopir Taluka. Through several agreement executed by her and on her behalf between 2-6-1959 and 18-1-1964 she agreed to sell about 287 acres and 5 Ghuntas of such land for a total consideration of Rs,54,500 in favour, of the deceased plaintiff, who also happened to be her advocate in different litigations relating to her lands. An amount of Rs,49,200 was said to have been paid by the deceased plaintiff and Rs,5,300 remained to be paid.
In the last agreement dated 18-1-1964 the execution of earlier agreements and receipt of amount by way of part payment was acknowledged. Mst. Sherbano died on 7-5-1964 and thereafter, the deceased plaintiff served notices upon her heirs requiring them to perform the agreement of sale, who denied the execution of such agreements. Thereafter, he filed Suit No,327 of 1966 on the original side of this Court which was disposed of vide the impugned judgment. The respondents Nos.1 to 7 who are grand children of Mst. Sherbano (being sons and daughters) of her pre- deceased son Ibrahim alongwith widow and children of pre-deceased grand son Rais Haji Gut Hassan were arrayed as defendants. It appears that an interim order was also passed by the Court restraining the defendants from alienating or encumbering the land though no lis in terms of section 52 of the Transfer of Property Act was registered before the competent Authority. Despite the said order, however, the respondents Nos.3 and 6 claiming ownership of the land in question transferred the same in favour of respondents Nos.8 and 9 through a registered sale-deed dated 28-5-1968. Accordingly they were also arrayed as defendants Nos. 12 and 13 in the suit. Meanwhile upon noticing that the widow and children of Rais Haji Gul Hassan were not legal heirs of Mst.
Sherbano they, being defendants Nos. 7 to 10, were dropped.
2. In the plaint, the deceased plaintiff referred to 14 agreements relating to purchase of the disputed land, the first five were purported to have been executed by Rais Haji Gul Hassan a grand son of Mst. Sherbano, two were stated to be untraceable while the eight one was shown to be executed by one Deedar Hassan Shah, a son of Rais Haji Gul Hassan and a great grand son of Mst.
Sherbano. The last six agreements, however, were purported to be executed by Mst. Sherbano herself, wherein Mst. Sherbano is stated to have acknowledged that the agreements executed by Rias Gul Hassan and Deedar Hassan are binding on her. It was alleged that the sale in favour of respondents Nos. 8 and 9 was collusive and fraudulent, as the aforesaid respondents had full knowledge of the interim injunction of the Court and no consideration had been paid. Accordingly it was prayed that defendants be directed to perform the agreement dated 18-1-1964 and put the plaintiff in possession of the disputed property. Alternatively it was prayed that in case the Court come to the conclusion that the contract could not be specifically enforced a money decree in the amount of Rs,57,830 may be awarded. It may also be pertinent to mention that in para. 7 of the plaint it was alleged that in part performance of the agreements of sale possession of the property was handed over to the plaintiff, but in para. 12 it was stated that in case the Court came to the conclusion that no possession was delivered possession may also be granted as consequential relief.
3. In a joint written statement filed on behalf of the respondents Nos. 1 to 4,5 and 7 it was alleged that Mst. Sherbano at the time of execution of the alleged agreements was over 100 years old and incapable of exercising her free consent. It was further contended that she was absolutely illiterate and the deceased plaintiff in his capacity as her standing counsel might have got several documents signed by her without apprising her of their implication. The receipt of amounts by way of sale consideration or the delivery of possession to the deceased plaintiff was vehemently denied. It was further contended that while Mst. Sherbano had three grown up grand sons apart from Haji Gul Hassan, the deceased plaintiff got a power of attorney executed in favour of her great grand son Deedar Hassan a minor, only with the object of giving effect to his mala fide motives.
With respect to the transaction in favour of respondents Nos.8 and 9 it was alleged that the same was unlawfully made by the respondents Nos.3 and 6 without permission of the remaining heirs and was subject-matter of litigation. The respondent No,3 also substantially took the same stand viz-a-viz the capacity of Mst. Sherbano and the averments as to possession. He nevertheless asserted that by virtue of a partition through revenue Courts amongst the heirs of Mst. Sherbano the property in question fell to the share of respondents Nos.3 and 6 who lawfully sold it to the respondents Nos.8 and 9. The respondents Nos.8 and 9 asserted that they were bona fide purchasers of the property in question which was in their possession since the time of purchase. As such they were entitled to the protection of section 41 of the Transfer of Property Act.
4. On the pleadings of the parties several issues were framed which were amended from time to time and finally the following issues were settled.
(1) Whether Mst. Sherbano had entered into an agreement of sale of land in suit with the plaintiff? If so whether the said agreements were obtained by fraud or misrepresentation?
(2) Whether the defendants 12 and 13 are bona fide purchasers for value without notice? If so its effect.
(3) Whether the relief of specific performance can be granted?
(4) Whether the plaintiff is entitled to damages? If so how much?
(5) To what relief if any is the plaintiff entitled to?
(6) The parties examined a number of witnesses and produced several documents in support of their contentions, most of them focussed on issue No,1 mentioned above. After considering the oral as well as documentary evidence as well as the legal questions involved in the suit learned Single Judge arrived at the following conclusions in respect of this issue.
(i) There was ample evidence to support execution of the agreements by Mst. Sherbano.
(ii) It was not disputed that Mst. Sherbano was an illiterate and old lady and had only affixed her thumb-impression on the agreements relied upon by the plaintiff. A plea that she was Pardanashin and illiterate had been taken in a written statement in another suit drafted by the deceased plaintiff himself. Therefore, the plaintiff was required to show that the agreements to which she had affixed her thumb-impression had been explained to her and she understood their implication.
(iii) There was no evidence, direct or circumstantial to indicate that implications of the agreements particularly to the extent that they purported to ratify and acknowledge agreements executed by her grand sons and great grand son agreeing to transfer 230 acres and 19 Ghuntas of her land and that she was acknowledging payments received by these two persons, as having been received by her was ever explained to her.
(iv) The burden to prove consideration to support agreements of sale fell on the plaintiff. The thumb-impression of Mst. Sherbano on receipts purporting to show that Rs,16,720 were actually paid to her, in the absence of any corroborative evidence and in the face of her statement on Oath recorded on commission in High Court Suit No,83 of 1960 denying having received any money from any buyer of her land in the previous 3 or 4 years was not adequate to establish that such payment had been actually received by her.
(v) That there was no evidence to show that the amounts allegedly paid to the grandsons and great grandson of Mst. Sherbano executing the agreements with the deceased plaintiff was ever paid to her.
(vi) That the burden to prove that the agreements were obtained by fraud or misrepresentation fell on the defendants. There was no evidence of fraud or misrepresentation and it was not established that the sale price was inadequate. The defendants had failed to discharge the burden of proving fraud or misrepresentation.
6. After recording the aforesaid findings the learned Single Judge proceeded to conclude that though the physical execution of the agreements by Mst. Sherbano by affixing her thumb- impression may be accepted the deceased plaintiff was unable to discharge the burden of satisfying the Court that she had executed them with full knowledge and consent. Therefore, it was concluded that the agreements in question were not binding on the defendants.
7. In view of the aforesaid findings coupled with the fact that permission of the Deputy Commissioner had not been obtained for transfer of the land in favour of the plaintiff it was held that the relief of specific performance could not be granted. The question whether the respondents Nos.8 and 9 were bona fide purchasers was found to be irrelevant. As to the question of damages it was held that interest by way of damages could not be awarded in terms of illustration (n) to section 73 of the Contract Act merely because money due was withheld unless it was payable under the contract or some provision of law. With respect to the claim of refund, however, it was found that the plaintiff had only been able to prove an amount of Rs,4,000 deposited by him through cheque by way of Taqavi Loan liability of Mst. Sherbano and such amount together with 6% interest w,e,f, the date of payment i,e, 13-3-1962 was liable to be paid out of the estate of Mst.
Sherbano with proportionate costs.
8. Mr. Iqbal Kazi learned counsel for the appellants primarily assailed the aforesaid Judgment upon the following grounds
(i) That the impugned judgment was self-contradictory inasmuch as once it was found that no fraud or misrepresentation had been proved and the price was not unreasonable, there was no basis to hold that the agreement executed by Mst. Sherbano was involuntary or unexecutable.
(ii) That there was no specific finding recorded by the learned Single Judge with respect to the question whether Mst. Sherbano was a Pardanashin lady nor any specific issue on this question had been framed. The learned Single Judge, therefore, was not justified in holding that the plaintiff was required to prove that the implications of the transaction were explained to the aforesaid lady.
(iii) That in any event the mere fact that the lady was illiterate or observed Parda was not sufficient to entitle her to the protection accorded to Pardanashin ladies, through judicial pronouncements.
In the face of -uncontroverted evidence to the effect that she had been involved in several transactions relating to property the learned Single Judge was not justified in extending such special protection to her.
(iv) That the evidence on record clearly established that the respondents Nos. 8 and 9 were aware of the agreements between the plaintiff and Mst. Sherbano as well as the interim injunction granted by the Court and therefore, they could not claim any protection under section 41 of the Transfer of Property Act.
9. Though prima facie the first contention of Mr. Iqbal Kazi appears quite plausible, a consideration of the principles of law according special protections to Pardahnashin women, candidly cited by Mr. Kazi himself would clearly show that it is untenable in the present context. These principles have been lucidly summed up by a Division Bench of this Court in Mst. Hawa v. Muhammad Yousuf PLD 1969 Kar. 325 in the following four paragraphs.
"27. The judicial pronouncements have woven a cloak of protection for Pardanashin ladies, who because of their ignorance, inexperience of business matters and social conditions are not able to understand the nature of business transactions. The Privy Council defined a Pardanashin lady as a woman of rank living in seclusion but the law regarding Pardanashin ladies equally applies to illiterate and ignorant women. It was so held in Chainta Dasya v. Bhalku Das AIR 1930 Cal. 591 and Ayana Dasi v. Arena Bala Dasi and others PLD 1961 Dacca 140.
28. The trial Court reached the conclusion that no fraud had been played on Mst. Hawa by the defendants. We have found above that Mst. Hawa was surrounded by persons who did not permit the access of any independent advice to her. The question of fraud is quite separate from the doctrine that governs the transactions entered into by Pardanashin or illiterate women. This rule shall apply even if there is nothing in the nature of coercion or deception in the transaction. In Farid-un-Nisa v. Mukhtar Ahmed 52 IA 342 the Privy Council restated the rule and observed that the whole doctrine involved the view that mere 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.
29. The onus is always on the person who takes advantage of a transaction to whom that the transaction was actually conceived and put into practice by the disposer herself. The party taking advantage must show to the Court that the deed was explained and understood by the executant and she adopted it with full knowledge and comprehension. We have, in this connection, already referred to Mst. Farid-un-Nisa v. Mukhatiar Ahmed. The case of Ayana Dasi referred to above also lays down the same proposition. In addition, reference may be made to Mst. Izhar Fatima Bibi and others v. Mst. Ansar Fatima Bibi and others AIR 1939 All. 348 and Sayed Zawar Hussain Shah and another v. Mian Saleh Muhammad Shah AIR 1940 Lah. 515.
30. The fact whether independent advice was available to a Pardahnashin lady at the time when she entered into a transaction can be taken into consideration in order to determine whether she thoroughly comprehended and had deliberately of her own free will, carried out the transaction. If it is found that the document was conceived and executed by her free will, it shall be upheld notwithstanding the fact that the executant is a Pardanashin lady. The legal protection given to a Pardanashin or an illiterate woman, cannot be transmuted into a legal disability. See Kali Bakhsh Singh and others v. Ram Gopal Singh and others 41 IA 23."
10. It is indeed quite clear from the above that the protections which the law affords to such ladies are different from one of fraud or misrepresentation vitiating a contract. The allegation of fraud must be proved by a person alleging it, whereas when a transaction is made by a Pardanashin lady, the onus is always on the person claiming advantage of such transaction to show that it was made with her free-will. Therefore, no fault can be found with the impugned judgment on the ground that the learned Single Judge examined this question irrespective of the fact that fraud was not proved.
11. Coming to the second contention Mr. Kazi may be technically correct in asserting that no specific issue was framed as to whether Mst. Sher Bano was a Pardanashin lady and there is no finding recorded in so many words. A careful reading of the pleadings, the evidence and the impugned Judgment, however, clearly demonstrates that such defence was taken up in the written statement, evidence was tendered by both parties and the impugned findings could be based on no other hypothesis than the fact that the lady in question was entitled to the protection which the law affords to illiterates and Pardanashin women. Perhaps it might have been desirable if a specific issue to the above effect were framed, but we are unable to agree that such omission would vitiate the Judgment. In Fazal Muhammad Bhatti v. Mst. Sadia Akhtar 1993 SCM R 2018 the Honourable Supreme Court held that where pleadings and issues originally framed show that parties were fully aware of the subject matter of controversy and evidence was led upon the same merely non- framing of specific issue was inconsequential. Similar view was expressed by the Honourable Supreme Court in the earlier cases of Province of East Pakistan v. Major Nawab Khuhwaja Hassan Askary PLD 1971 SC 82 and Zuhra Bibi v. Asghar Khan (1988 SCM R 4). In view of the above we do not find much force in Mr. Kazi's contention.
12. Mr Iqbal Kazi then took us through the evidence on record to demonstrate that Mst. Sher Bano was, despite her illiteracy, was not entitled to the protection which the law confers upon Pardanashin and illiterate women. In this context he referred to the testimony of the aforesaid lady recorded on commission in Suit No,83 of 1960 (Exh.24/37) where she appeared as defendant No,1 in a suit filed by the Begum of Bahawalpur' and was incidentally represented by the deceased plaintiff himself. In her examination-in-chief she has stated that she did not receive any cheque from the plaintiff and in her cross-examination she talked about having executed Mukhtiarnamas (powers of attorneys) in favour of her son and great grand son, a statement recorded by her before Mukhtiarkar, very little income that she had in 1954, the lands of a General at some distance from her lands, the arrears of Government revenues which she had to pay and the rate offered to her for purchase of part of her land etc. In the note at the foot of the deposition the Commissioner has recorded that she appears to be intelligent and in her senses. Some question were put to her in Urdu which she understood and she also understands Sindhi.
13. Mr. Kazi, in support of his contention relied upon Judgments of the Honourable Supreme Court in the cases of Chiragh Bibi v. Rashida Begum PLD 1958 SC 209 and Mehmooda Begum and another v.
Major Malik Muhammad Ishaque and others 1984 SCMR 890. In the first case the Honourable Supreme Court rejected a challenge to a will executed by one Mst. Fazl-un-Nisa with the following observations:-- "Even if it be assumed for arguments sake that she was Pardanashin there is, as indicated above sufficient evidence to show that when she executed the will she knew and understood that was stated therein."
14. In the second case condonation of delay in presenting an appeal before the proper forum was sought on the ground that the appellant was a Pardanashin lady and repelling such plea the Honourable Supreme Court observed as follows:-- "A Pardahnashin lady is one who remains behind the curtain and has no communication except from behind the Pardah with any male person save a few privileged relations or dependants. As such she has no access to independent advice other than from these persons. Nonetheless, it cannot be said as a rule that Pardahnashin ladies are ignorant, weak-minded and have no capacity to understand their affairs because of living in seclusion. Can it be said that Mahmooda Begum was a Pardahnashin lady as understood in this terminology so as to be led away by a wrong advice the answer must be in the negative. Ought it be said that the appeal fails primarily for the reason that it was not a case of ill-advice but extreme negligence on the part of the counsel who had filed the appeal before the District Judge'."
15. Mr. G.M. Qureshi learned counsel for respondents Nos.1 to 5 on the other hand argued that the deceased plaintiff himself had drafted a written statement in Suit No,200 of 1962 on behalf of Mst.
Sherbano describing her as old, Pardanashin and illiterate. In this context he drew our attention to the following statements made by deceased plaintiff in his cross-examination before the leaned Single Judge.
"It is not correct that Mst. Sherbano was a Pardanashin lady or she was infirm. She was quite healthy and active. I am shown the written statement of Mst. Sherbano in Suit No,200 of 1962, it was drafted by me and it is correct that paragraph No,14 states that Mst. Sherbano is an old person, Pardanashin and illiterate, but I say that she was not using any Burkha."
16. Mr. Qureshi further argued that apart from not apprising lady of the implications of the agreements over which her thumb-impressions were obtained, a definite fraud was played upon her and undue influence exercised to obtain her thumb-impression on account of the special position of influence the deceased plaintiff exercised over her as her counsel. In this context learned counsel drew our attention to some of the earlier agreements executed by the grandson of the lady with deceased plaintiff, which she purported to ratify and acknowledge through subsequent agreements. In the first agreement, dated 2-6-1959 (Exh.24/1 page 283 of the paper book) the vendor Rais Gul Hasan has been described as owner of 300 Acres of land received from her grandmother Mst. Sherbano which he holds in his individual capacity as sole and absolute owner. The second agreement (EXh.24/2) is purported to have been made by the aforesaid Rais Gul Hassan not with the deceased appellant, but his brother Ali Hyder. The agreement, dated 15-2- 1961 purported to have been made in continuation of the earlier agreement but signed by another grandson Rai Muhammad Khan refers to Rais Gul Hassan as attorney of Mst. Sherbano and the same position has been stated in those executed by the lady herself.
17. we may observe that contents of a document drafted by a counsel and the basis of instructions from a client may not bind him, though he is expected to avoid a conflict of interest. Moreover, not having filed a cross-appeal against the findings of the learned Single Judge as to the question of fraud, Mr. Qureshi cannot be allowed to urge this question now. Nevertheless for the purpose of determining whether the lady in question now. Nevertheless for the purpose of determining whether the lady in question acted independently out of her own free will while executing the agreement sought to be enforced all the facts and circumstances have to be kept in view and this evidence cannot be overlooked.
18.Mr. Iqbal Kazi appears to be right in contending that every illiterate woman cannot be presumed to be so weak minded as being in capable of making an independent transaction relating to her property and entitled to special protection. We also agree with him that there is evidence on record to show that Mst. Sher Bano was intelligent enough and capable of understanding ordinary matters relating to her property. What needs to be considered, however, is that the expression "Pardanashin lady" has not been defined in any statute nor does any written law treat such ladies as a particular class of people entitled to special protection or privileges. As is evident from the above-mentioned judgments cited at the Bar by Mr. Kazi himself certain judicial norms have been evolved by Courts themselves in the exercise of judicial power to dispense even handed justice and to enforce equal protection of laws, laying down norms for the protection of more vulnerable sections of the Society and to ensure that only those contracts are enforced which have been entered into with free consent of all the parties and without undue influence.
There can be no hard and fast or static definition of the attributes of Pardanasheen lady based solely on the personal attributes of the lady in question, but this expression will have to be construed against the totality of circumstances involved in the transaction as well as norms developed by superior Courts to protect the interests of women children and other disadvantage sections of the people. The real test invariably be as to whether, in a given case, it could be inferred that the agreement was made by the lady with full compensation of its implication and a state of mind free from outside pressures.
19. It may not be inappropriate, therefore, to mention the continuing awareness on the part of the superior Courts that women-folk in our society, particularly in rural settings, is an oppressed section of the people and in need of special protection which the Courts as a matter of Constitutional duty are required to extend to them. In Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 the Honourable Supreme Court, after taking into consideration Injunctions of Islam went to the extent of holding that relinquishment of a right in inherited property on the part of a woman, even if proved, would be void as being a contract opposed to public policy. In Fazal Jan v. Roshan Din PLD 1990 SC 661 and Nasreen v. Fayaz PLD 1991 SC 412 the need for taking special measures to protect property rights of illiterate rural women, was emphasised as a Constitutional obligation of Courts. We are, therefore, entirely unable to subscribe to Mr. Kazi's view that merely because Mst.
Sherbano was in a position to understand ordinary matters regarding her property the transaction in question must be presumed to have been entered by her voluntarily and with full realization of its implications.
20.In view of the above we are of the opinion that the nature of the transaction in question and the position of the parties involved must be considered for determining whether free consent and full understanding of its implications on the part of the lady in question ought to be assumed or is required to be proved. In this context it needs to be kept in view that the transactions were not simple straightforward agreements for sale of immovable property. According to the evidence adduced by the deceased plaintiff himself a number of agreements to sell were executed by Mst.
Sherbano's grandson Raees Gul Hassan, who was described as the sole and absolute owner of the property and not as an agent of his grandmother. Substantial payments have also been alleged to have been made to aforesaid Gul Hassan, who executed receipts therefor. There is no independent evidence on record to show that such amounts were passed on to the lady by the aforesaid Gul Hassan. The deceased plaintiff being an Advocate fully knew that he could not enforce these agreements against the lady. The natural inference would be that upon realising the defect in the title of Rais Gul Hassan, he pursuaded the lady to acknowledge and ratify those agreements and she being illiterate and having full confidence in her own lawyer agreed to oblige without understanding that she was undertaking an obligation, without consideration, which was not hers.
21.The fact that the deceased plaintiff was also representing Mst. Sher Bano in litigation relating to her property is equally important. The relationship between a counsel and client is one of a very high degree of confidence. Even astute business men and highly educated executives almost blindly rely upon the opinion of their Advocates in matters entailing legal implications. Speaking for a Full Bench judgment of the Punjab High Court in Amrit Lal v. Ram Kumar AIR 1962 Pub. 325, Tek Chand, J. observed:-- "The relationship of lawyer and client is unequal and the personal ascendancy of lawyer over client is a factor which cannot be lost sight of. A client is more suspectible to undue influence from his lawyer and to the latter's dominance than any two persons who do not bear to each other a fiduciary relationship."
22. It is admitted in evidence that the deceased plaintiff was in fact representing Mst. Sherbano in litigation relating to property including a suit in this Court around the time when the agreement in question was executed. In the circumstances we are clearly of the view that absence of free consent and property understanding of the implications of the agreement ought to be inferred and a very heavy onus lay on the deceased plaintiff to prove the contrary which he failed to discharge.
The findings of the learned Single Judge are, therefore, 6 entirely unexceptionable.
23. There is another aspect of the matter. The obligation of a counsel with respect to his client is in no manner less onerous than that of a trustee towards the beneficiaries of a trust or a guardian towards a minor ward. In the above-quoted case of Amrit Lal AIR 1962 Pb. 325 it was further observed:-- "In view of the extremely delicate nature of this relationship high standards of adherence to his obligations are expected of a lawyer and a transaction involving the use of a client's money for his personal advantage is sustained only where it is accompanied with fairness and honesty without any suspicion of the exercise of any undue influence. It is a rule of public policy, and also one of equity, that the burden is cast upon a lawyer to dispel the suspicion which attaches on a transaction of this nature and he has to establish that the confidence reposed in him has not been abused and he has not taken any improper advantage of his hold over his client."
24. Keeping in view the delicate nature of a counsel-client relationship, law and the conventions and etiquettes of professional ethics require Advocates to be extremely careful in upholding the confidence reposed in them. Such cannons of conduct are based on high principles of public policy and have also been adopted by the Pakistan Bar Council in the form of statutory rules framed under its rule making power. Rule 145 requires that an Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case. Rule 150 stipulates that an Advocate shall not commingle the property of a client with his own. Therefore, though we have not heard arguments on this aspect of the matter and would not like to express a definite opinion, we are inclined to observe that irrespective of Mst. Sherbano's status in life the agreement in question might well be liable to be declared void as being opposed to public policy.
25. Before parting with this judgment we are constrained to observe, with a great deal of anguish, that the conduct of the deceased plaintiff was not keeping in view with the high standard of professional ethics and code of conduct that members of the Bar are expected to observe, and must be disapproved. Such dealings might erode public confidence in the legal profession itself, irrespective of other factors. A Court may well be justified in refusing specific performance of such in the exercise of its equitable discretion. In view of the above we find no substance in this appeal and dismiss the same with costs.