IHSAN-UL-HAQ CHAUDHARY, J.- The relevant factors for the decision of this Regular First Appeal are that the respondent filed a suit for specific performance of agreement dated 2-3-1986, Ex.PI on the file, it was pleaded that defendant No.1 was the owner of property commonly known as House No. 56, Plot No.3, Sher Khan Road, Lahore. He appointed his wife Mst. Nasreen-defendant No. 2 as her attorney. The said defendant agreed to sell the house to the plaintiff for a total consideration of Rs.4,50,000/- out of which a sum of Rs.3,00,000/- was received as earnest money, it was added that the defendants have failed to perform their part of the agreement, therefore, he was constrained to file the suit. The suit was contested by the defendants, inter alia, on the ground that the signatures of defendant No.2 on agreement Ex.PI were forged. The Trial Court framed following issues:-
1. Whether the agreement was not signed by defendant No.2 and is forged one" OPD.
2. Whether the suit is not maintainable in its present form?OPD.
3. Whether the plaintiff is entitled to possession through specific performance of the agreement dated 2-3-198670PP.
4. Relief.
2. The plaintiff examined Syed Aftab Ahmad as PW1,' Mohsin Zafar as PW2, Sabir Ali Shah as PW4, Syed Haroon Iftikhar as PW5 and himself appeared as PW3 while the defendants appeared as DW1 and DW2 respectively. The Trial Court after hearing the arguments decreed the suit vide judgment dated 23-5-1991, therefore, this appeal which was admitted to hearing and notice was issued to the respondent, who has appeared through Kh. Haris Ahmad, Advocate and contested the appeal.
3. The learned counsel for the appellants argued that the onus of issue No. 1 was wrongly and illegally placed on the defendants and this prejudiced their defence, it was added that specimen signatures of defendant No.2 were referred to the Handwriting Expert, who opined that the signatures have been purposely so disguised that it is not possible to give any opinion. Thereafter she was directed to submit her Identity Card, it was explained that this order could not be complied because she was in Kawait at the relevant time. It was added that the scribe was not produced and this gave rise to an adverse presumption. It was argued that although it was pleaded that part possession of the property except one small room was handed-over at the time of the execution of the agreement yet afterwards position was taken up that the possession was delivered thereafter.
It was added that the plaintiff failed to prove payment of the earnest money. It was argued that in fact Sohail son of defendants had some financial dealing with Haroon Ahmad PW5 and the plaintiff forged this agreement to secure amount allegedly due from Sohail Ahmad to PW5.
4. It was argued that PW2 was the son-in-law PW5 was the son of the plaintiff besides that their statements Avere contradictory . It was added that the statement of plaintiff after the evidence has been closed by the defendants was of no consequence. In this behalf, reference was made to Jhanda through Legal Heir v. Muhammad Younas (PLD 1994,-Lahore I0O). It was argued that the delivery of possession of the house was not proved by the plaintiff. The statements of the PWs were contradictory. Above all, in para 4 of the plaint it was admitted that the possession was delivered after the agreement. This admission was binding. In this behalf, reference is made to Naseer Ahmad and another v. Asghar Alt (1992 SCMR 2300). It was argued that the execution of the document specially when executant was a woman is to be proved strictly and it should be shown that she had the opportunity and proper advice. In this behalf,, reference is made to Muhammad Sharif v. Mst. Parveen Akhtar (1993, CLC 95) and Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778). It was argued that PW4 was the chance witness, therefore, could not be relied. In this behalf, reliance was placed on Ismail Ahmad Peepadi v. Nomin Bibi (AIR 1941 PC 11).
5. On the other hand, Kh. Haris Ahmad, Advocate for the respondent argued that the execution of power of attorney by the husband in favour of his wife was admitted. Moreover, defendant No.2 was an educated woman, therefore, the argument that execution of document by her has to be looked with suspicion, In this behalf, reliance was made to The Southern Gas Company Ltd. v.
Messrs Karim Silk Mills Ltd. (1988 MLD 1640). It was argued that the agreement Ex.Pl was proved by direct evidence of the marginal witnesses, therefore, there was no need to examine the scribe of the documents, In this behalf, reliance was placed on Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others (PLD 1981, SC 56), D.I Murad and others v. Akbar Shah (1986 SCMR 306) and Muhammad Anwar v. Haji Muhammad Ismail and others (1992 MLD 860). It was added that for the same reason there was no need to refer the matter to the Handwriting Expert. In this behalf, the learned counsel relied on Khurshid AH v. Sadal Khan and 3 others (1987 MLD 2065), Shafaat Ahmed and others v.
Government of Punjab and 2 others (1986 SCMR 30) and Ch. Abdul Hamid v. Deputy Commissioner and others (1985 SCMR 359).
6. It was argued that the plaintiff applied for comparison of the signature of appellant No.2. The same were obtained through the Pakistan Consulate, Doha but as defendant No.2 appeared on 27- 2-1989, therefore, her specimen signatures were obtained by the Trial Court. However, the Handwriting Expert opined that these were not the routine signatures, therefore, not possible to give any opinion. He asked for a document containing routine signatures. The Court accordingly directed the appellants to produce the routine signatures but their counsel ultimately on 4-7-1989, reported that such signatures were not available. In the circumstances, Court had no choice but to decide the matter without the report of the Handwriting Expert. It was argued that PW1 was independent and truthful witness. He in reply to question by learned counsel for the respondent offered that he was prepared to make the statement on Holy Quran, it was added that the statement of the plaintiff was recorded only in affirmative on 13-6-1990, therefore, principle in the case of Muhammad Younas (Supra) is not attracted. It was argued that the PWs were not cross- examined on material points and it would amount to acceptance of their statements, In this behalf, reliance was placed on Qalandarv. Muhammad Zarin and another (1980, CLC 1417) and Mst. Zar Jan v. Mst. Najmun Nisa and others (PLD 1969, Peshawar 118). It was argued that dealing between the son of the plaintiff and that of the defendant was not pleaded, therefore, no evidence could be led on this point, In this behalf, reliance was placed on Inayat Ali Shah v. Anwar Hussain (1995, CLC 1906), Government of West Pakistan v. Haji Muhammad (PLD 1976 SC 469), Mst. Bismillah Jan v. Ria Mahmood (1987 MLD 438), Baqa Muhammad v. Muhammad Nawaz and others (PLD 1985 Lahore 476) and Fazal Hussain v. Mst. Husna Bano (1995 M.L.D. 170). It was argued that defendant No.2 was not a woman of the category who cannot decide the matters without their being proper advice.
Those days are gone and now the women are not entitled to any special treatment. In this behalf, reliance was placed on Irshad Hussain v. Ijaz Hussain and 9 others (PLD 1994 SC 326). It was argued that objection to the onus of issue is immaterial because both the parties have led whatever evidence they wanted to produce. It was added that the appellants have failed to point out any prejudice caused to them by alleged wrong placing of issue No.1, it was argued that such objection is of no legal consequence when the onus was not objected to at the relevant time. It was added that the onus becomes immaterial. In this behalf, reliance was placed on Mehr Din v. Dr. Bashir Ahmad Khan and 2 others (1985 SCMR 1), Malik Hareem Bakhsh Awan v. Ejaz Mahmood and another (PLD 1990 Lahore 37), Fouzia Begum v. Karachi Transport Corporation and another (1997 CLC 1297) and Zakaullah Khan v. Muhammad Aslant and another (1991 SCMR 2126). It was argued that the learned Trial Court has decided the suit in accordance with the evidence on record. Then appellants have failed to make out a case for interference, therefore, their appeal may be dismissed.
7. We have given our anxious consideration to the arguments of both the parties, gone through the record and judgments relied on behalf of the parties. The learned counsel for the appellants argued that the onus of issue No.1 was wrongly placed on the defendants and this prejudiced the defence of appellants. The factum of onus is immaterial when the parties were fully aware of the controversy and had led all the evidence they wanted to produce. Then the question of onus looks all significance. Moreover, no prejudice had been caused to the defendants. The learned counsel for the respondent rightly referred to the cases of Zakaullah Khan, Malik Hareem Bakhsh and Mehr Din (Supra).
8. The learned counsel for the appellants argued that there was no independent evidence led by the respondent to prove the execution of agreement Ex.PL It is true that PW2 and PW5 were son-in- law of the plaintiff PW3. PW1 and PW4 were quite independent and natural witnesses. PW1 is a neighbourer and notified that he is prepared to make statement on oath. The appellants have failed to shake their credit in spite of some what lengthy cross-examination.
9. ' 0n the other hand, appellant No.2 simply had denied the signatures on agreement Ex.PL She gave specimen signatures in the Court for report of the Handwriting Expert, who opined that the signatures of defendant No.2 were purposely disguised. Therefore, he required some document containing the routine signatures of defendant No.2. Thereafter suit was adjourned to 14.6.1989, and then to 4.7.1989 when the counsel for the defendants stated that such signatures were not available. But strangely now the defendants were producing National Identity Card for comparison, it was explained that defendant No.2 was in Kawait, therefore. I.D. Card could not be produced when required by the Court. The request was not that the learned counsel required time to produce the document containing the routine signatures but as already noted, the Court was informed that such signatures were not available. The present plea is, therefore, an after thought. This way the evidence of the plaintiff remained unrebutted.
10. It was next argued that defendant No.2 being woman was entitled to special treatment and as she did not have independent advice, therefore, the agreement to sell has to be proved strictly. It is true that earlier the rule as to Pardanashin woman was 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 made it, should be extended to ignorant and illiterate women as well. This rule now with the high rate of education in the females and when they are competing with the men shoulder to shoulder in politics,, service, business and in short all walks of life they cannot be safely observed. It is required to be applied cautiously. This rule is not attracted, when the executant is an educated woman , who managed the affairs on behalf of her husband as is the case in hand. The learned counsel for the respondent rightly referred to the judgment in the case of Irshad Hussain (Supra). The relevant portion of the judgment reads as under:- "5..... 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 voverning Pardanashin, ignorant and illiterate women will hardly be attracted....................................... "
In the present case, appellant No.2 is an educated woman as is clear from her signatures on the agreement and capable of handling affairs as is evident from the fact that her husband had appointed her General Attorney. Therefore, the cases relied by the learned counsel for the appellants were not relevant,
11. It was argued on behalf of the appellants that there were some business dealings between the sons of the parties and in order to cover the amount due from the son of the appellants this agreement was introduced. The appellants have not proved this fact through independent evidence even the alleged cheques issued by their son and the bank record had not been produced. The appellants did not realise that while raising this plea they are falsifying their on claim that this agreement was bad for failure of consideration. The consideration has been proved by PW4 whose statement was supported by documentary evidence specially as to the advancing of the amount to appellant No.2. The learned counsel for the appellants seriously objected to the procedure adopted by the Trial Court in recording the statement of PWS, the plaintiff. The objection was that the statement of the plaintiff in affirmative could not be reserved till the conclusion of the evidence of the appellants. This is factually incorrect. The statement of the plaintiff was recorded on 13-6-1990, and it was thereafter that the right of rebuttal was reserved and in rebuttal Special Attorney has appeared.
12. It was argued that the plaintiff did not produce the Petition Writer, therefore, Ex.Pl was not properly proved. The document has been proved by calling its witnesses, in other words by direct evidence, therefore, non-production of the Petition Writer was of no legal consequence. The learned counsel for the appellants laid much emphasis on the application and affidavit of Muhammad Zahoor. He also referred to the proceedings before the Collector. This was all irrelevant material because the respondent was not a party to the proceedings. This part of the evidence is clearly covered by the class called cooked up evidence as is evident from the dates of the complaint by the special attorney of appellant No.1. The statement of-Ex Stamp Vendor does not inspire any confidence because it was not difficult to procure such statements in order to cover up the weak points in the case, therefore, the same merited no serious consideration. The appellants have failed to make out a case for interference in appeal.
13. The upshot of the above discussion is that this appeal is dismissed with costs.