' This revision petition under section 115, C.P.C. Is directed against the judgment and decree dated 7-5-1995 of Additional District Judge, Lahore whereby the petitioner's appeal against the judgment and decree dated 7-12-1993 of Civil Judge 1st Class, Lahore dismissing the petitioner's suit for declaration, cancellation of sale-deed and for permanent injunction, has been dismissed, leaving the parties to bear their own costs.
2. House No,314-N, Samanabad, Lahore has two portions known as eastern and western portion and the dispute relates to the eastern portion measuring 7 Marlas, 152 square feet. Respondent No,1 is daughter of petitioner/plaintiff and respondent No,2 is husband of respondent No,1.
3. The facts, in brief, are that the petitioner-plaintiff instituted the present suit on 22-12-1998 in Civil Court at Lahore for a declaration that she was owner in possession of House No,N-314, Samanabad, Lahore and that registered sale-deed dated 20-12-1982 (Exh.P1) allegedly executed by the petitioner/ plaintiff in favour of respondent/defendant No,1 was outcome of fraud and forgery. The suit is also for the cancellation of abovesaid sale-deed and the plaintiff has also prayed for permanent injunction restraining the respondents from claiming any right or interest in the property in dispute. The present suit was filed by the petitioner by averring that respondent No,1 got registered sale-deed in her favour on 20-12-1982 with Sub-Registrar by impersonating the petitioner/plaintiff and as such the same was void and inoperative against the rights of the plaintiff and liable to be cancelled. It was narrated in the plaint that the litigation for ejectment of Mirza Muhammad Ayub (another son-in-law of the petitioner) remained pending between the plaintiff and Mirza Muhammad Ayub in respect of House No . S-16-N314 , Samanabad, Lahore, and ended in the High Court in the shape of a compromise and when Mirza Muhammad Ayub filed execution petition for the execution of sale-deed according to the compromise then respondent/defendant No,1 disclosed that she had purchased the said property, eastern portion of the House No,314-N, Samanabad which was subject-matter of compromise between the plaintiff and the abovesaid Mirza Muhammad Ayub. The plaintiff went to the office of Sub-Registrar and discovered that forged document had been prepared on her behalf, that neither she had put her thumb-impression upon the sale-deed nor she had made any execution of the sale-deed or received the amount of Rs,75,000, alleged to be the sale consideration, that it is all forgery and fraud, that the document was kept secret during the pendency of the litigation between the plaintiff and Mirza Muhammad Ayub and for the first time she came to know about its existence only in November, 1988, that defendant No,1 who is daughter of plaintiff has prepared these documents through fraud and forgery in connivance with defendant No,2, the husband of defendant No,1.
4. The respondent resisted the suit by filing joint written statement in which they have contended that the litigation between the plaintiff and Mirza Muhammad Ayub was in regard to the western portion of the house which has no concern with the eastern portion of the property which is the property in dispute which had been sold by the plaintiff to defendant No, 1 vide sale-deed dated 20-12-1982, which was duly executed by the plaintiff in consideration of Rs,75,000 duly received by the plaintiff and the attestation of the document took place before Sub-Registrar, Lahore, that even Mirza Muhammad Ayub fully knew about the sale-deed in dispute because on 23-5-1988 he moved an application in the Court that Mst. Mehraj Bibi, the petitioner/plaintiff be directed to disclose the sale transaction but she refused to reply the query on legal grounds and she did not explicitly deny the sale transaction. The defendants have also denied the other averments and have prayed for the dismissal of the suit.
5. On the pleadings of the parties, learned trial Court framed the following issues: "(1) Whether the suit is within time? OPP.
(2) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction? If so, what is its correct valuation and to what effect? O.P. Parties.
(3) Whether the disputed sale-deed dated 20-12-1982 is forged and fraudulent and, has not been executed by the plaintiff, nor she has received Rs,75,000 as consideration of the sale-deed? OPP.
(4) Whether the suit is bad for misjoinder of the defendant No,2? OPD.
(5) Whether the eastern portion of house alienated by the plaintiff vide disputed sale-deed is different and distinct from the western portion of the house regarding which plaintiff was in litigation with Mirza Muhammad Ayub? OPD.
(6) Whether the plaintiff is entitled to the declaration as prayed in the plaint? OPP.
(7) Relief."
6. The petitioner in support of her suit produced three witnesses including herself. The statement of P.W.1 Mirza Muhammad Ayub was recorded on 15-12-1990. He stated that he knows the parties, the plaintiff is about 80 years old and lives in House No,314-N, she is illiterate, she puts thumb- impression (meaning thereby that she cannot sign any document), she cannot understand anything easily, the property in dispute is in possession of the plaintiff. The witness further stated that she does not know as to whether the plaintiff has put her thumb-impression on any registered sale-deed or whether she has received any money in consideration of my such execution and the petitioner did not consult him because of the litigation between him and the plaintiff. The witness also deposed that the disputed sale-deed was executed/registered without the knowledge of the plaintiff and it was got executed by the defendants and the sale-deed is forged and fictitious documents and that the suit property is owned by the plaintiff. In the cross-examination, he admitted that the plaintiff had filed an ejectment suit against him in respect of the western portion of the abovementioned house, which was accepted on 16-7-1976, his appeal was dismissed by the Additional District Judge, Lahore on 12-11-1977, however, the matter was remanded back by the High Court and on remand the Rent Controller again passed the order of his ejectment and on his appeal, the Additional District Judge also remanded the case bac' to the Rent Controller and the Rent Controller again vide his order, dated 24-6-1987 ordered his ejectment, against which he filed an appeal and during the pendency of the appeal he alleges to have entered into a compromise with the plaintiff and according to him at that time the plaintiff did not suffer from any mental ailment. He further admitted that in the compromise the plaintiff had promised to sell him the portion of the house in regard to which she had filed the ejectment suit against him. He admitted Exh.D.1 to be the copy of the ejectment petition filed by the plaintiff against him, Exh.D.2 to be the copy of application, dated 23-5-1988 filed by him against the plaintiff in the Court of Mr. Fayyaz Hameed, Additional District Judge Lahore, Exh.D.3 to be the reply of the above application and Exh.D.3/1 to be the copy of an affidavit. In regard to the copy of the site plan Exh.D.1/1, he answered that it may have been attached with the ejectment petition but he could not be sure. In further cross-examination, he admitted that he filed a suit for specific performance which was dismissed on 27-10-1986, his appeal was dismissed on 12-10-1987, against which he filed a revision petition in the High Court which was disposed of on 30-10-1988 on the basis of a compromise between the parties. He also conceded that the property in dispute is the eastern portion of the house in dispute.
He denied the suggestions that sale-deed (Exh.P1) was executed by the plaintiff of her own free-will in favour of defendant No,1, that the plaintiff received Rs,75,000 from defendant No,1, he pleaded ignorance as to whether the thumb-impressions on Exh.P1 were of the plaintiff. He also denied the suggestion that the property in dispute was in possession of defendant No 1 through a tenant and that the suit had been instituted on his instructions.
7. P.W.2 Ehtesham Ahmad stated that the plaintiff was his mother-in-law who is 80 years' old enjoying good health and that at one time he used to live in the house in dispute. He further stated that the plaintiff is illiterate and puts her thumb-impressions as she cannot sign and the house in dispute is in possession of the plaintiff and that the plaintiff has not sold the house in dispute to the respondents and has not received any money from them and the plaintiff has been subjected to a fraud. In his cross-examination, he has stated that the plaintiff has one son and four daughters and that the portion in dispute is the eastern portion of the house and Mirza Ayub used to live in the western portion of the house whereas the plaintiff lives in the eastern portion of the house. It has also been brought in the cross-examination that the son of this witness is married to the daughter of Mirza Ayub. He denied the suggestions that due to his relationship with Ayub and because of his interest in the property, he was giving false evidence, that the plaintiff had of her own free-will executed the sale-deed in favour of defendant No,1 after receiving the sale consideration, that eastern portion was in occupation of defendant No,1 and that defendant No,1 had not played any fraud with the plaintiff.
8. The plaintiff herself appeared as P.W.3. Her statement was recorded on 12-1-1991. She stated that she was 80 years old and was totally illiterate, the house in dispute was in her possession and she was living in the same, defendant No,1 was her daughter and defendant No,2 was her son-in-law, the house in dispute was never sold by her to defendant No,1 and she never received any money from defendant No,1. She further stated that the thumb-impressions on Exh.P.1 were not hers but in the next breath she has stated that defendant No,1 got her thumb-impressions on Exh.P.1 through fraud and on coming to know of the defendant's fraud, she instituted the present suit about two years ago. She has categorically stated that in regard to Exh.P.1 she never appeared in any Court. In cross-examination, she has admitted that`' the house in dispute has two portions, eastern and western portions. She has also stated that she does not know as to what is written in the present suit which admittedly has been instituted by her. She has also stated that at the time of the institution of the suit, Mirza Ayub was with her. She was not able to remember as to whether she was operated upon five years ago or 10 years ago. She admitted that notice Exh.P.2 was sent by her through her lawyer. She denied the suggestion that she appeared before the Sub-Registrar at the time of registration of Exh.P.1, She further denied the suggestions that she had received earnest money of Rs,65,000 from defendant No,1 prior to the registration of Exh.P.I and that she received Rs,10,000 at the time of the registration of the sale-deed before the Registrar and denied having put any thumb-impressions before the Sub-Registrar or that the thumb-impression Marks A, D, E, F, G and H were put by her voluntarily on Exh.P.1. She further denied the suggestion that she affixed her thumb-impression on Exh.P.1 voluntarily in the presence of her real brother Abdul Majeed. She also denied the suggestions that from 1982, the property tax of the disputed portion was being paid by defendant No,1, that in Excise and Taxation record the disputed portion is shown to be in the name of defendant No,1, that she knows of Exh.P.1 from 1982 and that she had instituted the present suit because of the pressure of Mirza Ayub.
9. On 22-1-1991, the plaintiff's evidence was closed on the statement of her counsel.
10. The defendants produced five witnesses. D.W.1 Shahab-ul-Raza is Inspector, Finger Print Bureau who produced his report Exh.D.2 (renumbered by the trial Court as Exh.D.2(A)). According to the report of the Finger Print Expert, as recorded by the trial Court in the impugned judgment, the thumb-impressions marked as I and J on the sale-deed (Exh.P.1) are identical with the right thumb-impressions of the plaintiff Mst. Mehraj Bibi on her sample paper P-A whereas the impressions marked as 'C' on the sale-deed (Exh.P.1) are identical with the right thumb-impressions of the plaintiff Mst. Mehraj Bibi on her sample paper P-A whereas the impressions marked as 'C' on the sale-deed is not clear enough and the impressions marked as A, D, E, F, G, and H on the sale- deed are blurred and indicipherable. The lengthy cross-examination of this witness is not relevant because the plaint' ff in her statement as P.W.3 has admitted her thumb-impressions on Exh.P.1 although she states that the same were obtained by defendant No,1 through fraud.
11. D.W.2 Talaat Bashir, Registry Moharrir from the office of Sub-Registrar, District Courts, Lahore brought the original record of the registered sale-deed (Exh.P.1) and stated that the original record was in accordance with Exh.P.1. In cross-examination, he stated that in Exh.P.1 under the thumb- impressions, the name of Mst. Mehraj Begum/the plaintiff is printed but in the original record brought and produced by him on the first page, the name of Mst. Mehraj Begum is not written under the thumb-impressions. He also stated that on page 2 of Exh.P.1, three thumb-impressions are available whereas in the original record brought by him only one thumb-impression is available. He also stated that all the thumb.-impressions are not put' before the Sub-Registrar and only the thumb-impressions for the purposes of identification are affixed before the Sub-Registrar.
He further clarified that the thumb-impressions of vendor and the identifier are put before the Sub- Registrar. He has also pointed out in the cross-examination that in Exh.P.1, the name of the witness Abdul Majeed is typed whereas in the original record the same is handwritten and he has clarified that the original record lying in the office of the Sub-Registrar is carbon copy of Exh.P.1 and the address of the witness Abdul Majeed available on Exh.P.1. Has been typed afterwards. Similarly on page 4 the name of Mst. Mehraj Begum is typed under thumb-impressions whereas according to his record the name is handwritten. He has also pointed out that according to original record on page 4 the number of National Identity Card is not given under the thumb-impressions whereas on Exh.P1 is to so given. He has also elaborated that on the back page of the sale-deed the proceedings conducted by the Sub-Registrar are entered and in the original record page number 128/132 is entered on the said back page but this entry is missing from Exh.P1.
12. D.W.3 Ch. Bashir Ahmad, Advocate has stated that he is marginal witness of sale-deed (Exh.P1) which was got registered by the plaintiff before the Sub-Registrar in his presence and the balance amount of sale consideration of Rs,10,000 was received by her in his presence. He has, however, admitted in cross-examination that Exh.P1 was not written in his presence and he did not identify the plaintiff before the Sub-Registrar and he does not know as to who identified the plaintiff before the Sub-Registrar and he has denied the suggestion that the plaintiff did not appear before the Sub-Registrar and some other female impersonated her.
13, D.W.11 Rizwan Majeed son of Abdul Majeed identified the signatures of the marginal witness Abdul Majeed on Exh.P1, Abdul Majeed was his father and at the time when the statement of this witness was recorded, he was in a coma and was not in a position to appear in Court. The trial Court has also recorded that Malik Waqar Saleem, Advocate was appointed as a Local Commissioner for visiting Abdul Majeed/the marginal witness and vide his report dated 16-3-1992 he reported that the marginal witness is in a state of coma and is not in a position to get his statement recorded in Court.
14. D.W.4 Muhammad Aslam/defendant No,2 stated that he is attorney of defendant No,1 and that defendant No,1 did not play any fraud with the plaintiff and the plaintiff affixed her thumb- impression voluntarily on Exh.P1. He has also stated that the whole of the amount of sale consideration of Rs,75,000 was paid to the plaintiff and he was also present at the time of the registration of the sale-deed through which defendant No,1 has purchased the eastern portion of the house. He further deposed that defendant No,1 was in possession of the portion purchased by her through a tenant and after the registration of the sale-deed, the name of defendant No,1 was entered as owner in the tax record. He produced copies of the tax record as Exh.P4/2 and the receipts of payments of the property tax as Exh.P4/3. In the cross-examination, this witness states that he is an Inspector in the Income-tax Department and the defendant No,1/his wife is not in any employment and has no independent source of income but defendant No,1 purchased the property in dispute by selling her golden ornaments and by obtaining some money from him. He further admits that after having purchased this property he and his wife did not shift to the property in dispute because the same was occupied by a tenant and even at the time of recording his statement, one Nasir Chughtai was occupying the same as a tenant and the rent was being received by the defendants. In answer to another question he further stated that he would not agree to the appointment of a Local Commission to visit the spot and to verify in regard to the occupancy of the tenant being under the defendants and has conceded that because of the present litigation, the tenant has refused to recognize the defendants as his landlords and he is not paying any rent to them. He further answered that his monthly salary (at the time of recording of the evidence) was Rs,4,750 and he has five children, he joined the Income-tax Department in 1968 as a Clerk and besides his job he has no other independent source of income. In the later part of the cross-examination he has elaborated that the whole of the consideration amount was paid by him to the plaintiff and again said that the defendant No,1/ his wife obtained the sale consideration from him and paid it to the plaintiff and at the time of payment of sale consideration to the plaintiff by defendant No,1, nobody except him was present. He has again stated that Rs,65,000 were paid to the plaintiff as earnest money without any receipt and the balance amount of sale consideration of Rs,10,000 was paid in front of the Sub-Registrar. He also admits that the sale-deed was not written in his presence and that the stamp paper of the sale-deed was purchased by him on the asking of the plaintiff but it was got prepared by the plaintiff herself. He has also admitted that the plaintiff is an illiterate person. It is also admitted by him that the plaintiff was not identified by anybody at the time of registration of the sale-deed and it is also admitted that at the time of the registration, defendant No,1 was not present and that the Sub-Registrar did not record the fact of receipt of the balance of the sale consideration in his presence. In the later part of his cross- examination, he has again admitted that the plaintiff was not identified by anyone at the time of registration of the sale-deed.
15. I have heard the learned counsel for the parties and have also seen the record, copy of which is attached with this petition.
16. It is contended by the learned counsel for the petitioner that the sale-deed (Exh.P1) is in English language and the same has been thumb-marked by the petitioner-plaintiff and it has also been proved through evidence that the petitioner is an illiterate lady and these facts establish that the plaintiff did not know of the contents of the sale-deed; that the plaintiff was not identified by anybody at the time of the registration of the sale-deed which makes her presence before the Sub-Registrar at the time of the execution of the sale-deed highly improbable and doubtful, that according to D.W.4 Muhammad Aslam/defendant No,2 himself, out of total sale consideration of Rs,75,000, an amount of Rs,65,000 was paid to the petitioner-plaintiff previously without any receipt and only in the presence of the defendants and in the absence of any bther witness and the balance of sale consideration of Rs,10,000 was paid to the plaintiff before the Sub-Registrar but the endorsement of the Sub-Registrar does not contain any such certificate of payment of, the balance of sale consideration in his presence and these facts establish that no sale consideration was ever paid to the plaintiff-petitioner by the defendants; that the petitioner is an illiterate, old and ignorant lady and the moment she denied the execution of the sale-deed, the onus shifted on respondent No,1/defendant No,1, the beneficiary, to prove through unimpeachable evidence that the safe-deed was executed by the petitioner and was entirely of her own free-will for the sale consideration duly paid to her and she transferred the property to defendant No,1 knowing all the facts and the contents of the sale-deed but the defendants have failed to discharge the onus and the Courts below have acted illegally in ignoring the law on the subject; that mere signing or thumb-marking of the sale-deed by an illiterate, old and ignorant female cannot be equated with the execution of a sale-deed by such a person; that mere registration of the deed does not amount to conveyance of the property especially by an illiterate, old and ignorant female unless it is established by the beneficiary that the sale consideration was duly paid to the vendor and the possession was delivered by the vendor to the beneficiary; that the above legal pleas were specifically urged and argued by the petitioner's counsel before the Appellate Court and these pleas were also taken in writing in the memo. Of appeal (Ground "d' of memo. Of appeal is referred) but the Appellate Court has not adverted to the legal issue and has not referred the case-law cited by the petitioner's counsel; that the vendee/ beneficiary did not put herself in the witness-box and, therefore, she has miserably failed to prove that she is a bona fide purchaser for a valuable consideration duly paid to the plaintiff who is an illiterate, ignorant, old female; that the statement of Rizwan Majeed D.W.11 is inconsequential because he merely identified the signatures of his father as marginal witness on Exh.P1 and this witness is not in a position to say that the contents of the sale-deed were ever read over and explained to the petitioner; that similarly the statement of Ch. Bashir Ahmad, Advocate, a marginal witness of the sale-deed is inconsequential because he has admitted that the deed was not written in front of him and that he did not identify the plaintiff before the Sub-Registrar and there is nothing on the record to show that the contents of the deed were ever read over and explained to the plaintiff, thus, the defendants have failed to discharge the onus of Issue No,3 because during the pendency of the suit when the execution of the sale-deed and the conveyance of property to defendant No,1 through the said sale-deed was denied by the petitioner, the onus, in law, shifted to defendant No,1 who is the beneficiary of the sale-deed and having failed to discharge the same, the Courts below were left with no other choice except to decree the petitioner's suit as prayed for; that the petitioner has one son and four daughters and there is nothing on the record to show as to why she should want to deprive her other children by transferring this property to defendant No,1 and in fact through this fraud and forgery defendant No,1 has tried to deprive other heirs of the petitioner of their due share of inheritance when it will open on the death of the petitioner; that D.W.3 Ch. Bashir Ahmad, Advocate is not a witness of payment of major amount of sale consideration of Rs,65,000 and has merely stated that the balance amount of Rs,10,000 was paid to the petitioner in his presence before the Sub-Registrar but this is negated by the sale-deed, itself, because no corresponding endorsement by the Sub- Registrar, recording this fact is available on the sale-deed; that the discrepancies between the original record available in the office ut Sub-Registrar and the sale-deed Exh.P1, as pointed out by D.W.2 Talaat Bashir, Registry Moharrir from the office of Sub-Registrar, Lahore show and establish that the plaintiff/petitioner never appeared before the Sub-Registrar and nobody identified her and the argument of the other side pressed by them before the lower Courts that she was duly identified through the photo copy of her Identity Card has no legal value because the identification means, to be identified by some other person. Learned counsel has referred to section 58(1)(c) of the Registration Act which gives the particulars to be endorsed by the Registrar at the time of the registration of any document and it is argued that the Sub-Registrar is under a legal duty to make an endorsement of any payment made in front of him, to any of the parties at the time of the registration of document and the absence of such an endorsement shows that no payment was made before him which establishes that the defendants have incorrectly stated that an amount of Rs,10,000 as balance of sale consideration was paid by them to the plaintiff before the Sub- Registrar. It has also been argued that the plaintiff gave reasons of institution of suit in 1988 on the ground that she came to know about the existence of sale-deed in question only in November, 1988 and the period of limitation is to start from the date of knowledge and since there is no rebuttal from the defendant's side and there is nothing on the record to establish that the plaintiff was vested with the knowledge of existence of sale-deed executed by her in favour of defendant No,1 prior to the year 1988, therefore, the suit is within time. Learned counsel has again argued that the burden in the case of old, sick, illiterate and ignorant lady is on the beneficiary but in the present case the beneficiary did not appear in the witness-box and, therefore, she failed to discharge the onus by proving affirmatively that the lady/executant understood the contents of the deed and since the deed is in English language which is admittedly not understood by her because the defendants also admit that she is an illiterate person, therefore, it was the duty of the defendants to also prove that the deed in question was translated into a language which was understood by the plaintiff and was read over to her in the said language and in the absence of any such affirmative proof coming from the beneficiary, the only conclusion to be drawn in law is that the executant/the plaintiff did not know as to what was written in the sale-deed and no conveyance of property took place through such a deed and such a sale-deed is the result of fraud played upon the executant. Reliance in this regard is placed on Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642).
17. It is submitted next that defendant No, 1/the vendee had no independent source of income and was entirely dependent on her husband who also had no other income besides the salary being paid to him as Inspector in the Income-tax Department and at the time of the recording of his evidence in April, 1993, the salary of defendant No,2/the husband was Rs,3,750 as stated by him and his income in 1982 when the suit property was allegedly purchased by defendant No,1 was muchless because defendant No,2 admits that, he was originally employed as Clerk in the Income- tax Department and between themselves the respondents/defendants have five children to look after and, therefore, the defendants have failed to prove that they had any means to purchase the property in dispute which further proves that the alleged sale consideration was never paid by the defendants to the petitioner. It is argued that the possession of the suit property is admittedly not with the defendants which shows that the possession was never delivered to the defendants and the abovementioned shows that no sale consideration was paid to the petitioner and these facts conclusively prove that the transaction in hand is an invalid transaction and parole evidence can be led to prove the invalidity of a document and the Court can inquire into the real nature of the transaction between the parties even if there was no proviso to section 92 of the Evidence Act, 1872.
Reliance in this regard is placed on Muhammad Shafi and others v, Allah Dad Khan (PLD 1986 SC 519).
18. In the end, it is submitted that the Courts below committed illegalities by drawing wrong conclusions from the facts established on the record and by not extending the rule of Pardahnashin lady in the present case because the rule is also applicable to ignorant and illiterate women.
19. On the other hand, learned counsel for the respondents while vehemently opposing the petition has submitted that the suit is barred by time; that the litigation between the petitioner and Mirza Muhammad Ayub was in regard to the western portion of the house in question and not in regard to the property in dispute which is the eastern portion of the said house; that the sale-deed in favour of defendant No,1 was duly executed and the sale consideration was duly paid; that the Excise record indicates that the property tax is being paid by the defendant No,1; that the onus under the circumstances was correctly placed on the plaintiff because the document in question is a registered document and the presumption of correctness is attached to it; that once the thumb- impressions on the questioned document (Exh.P1) are admitted then it is for the plaintiff to prove fraud; that contradictory stands taken by the plaintiff reveal that she is a liar because on the one hand she has throughout been agitating that she never put her thumb-impressions on the sale- deed but on the other hand in her statement as P.W.3 she has stated that he thumb-impressions on the document were obtained by the defendants through fraud; that the real mischief was played by Mirza Muhammad Ayub who issued a notice to the tenant of the property in dispute by posing himself to be landlord of the said portion and because of this notice, the tenant stopped paying the rent to defendant No,1; that the possession, in law, shall be deemed to be with defendant No,1 because para.6 of the sale-deed (Exh.P1) records the delivery of possession to the vendee; that Abdul Majeed, the marginal witness of the sale-deed is real brother of the petitioner and no motive is attributed against him by the petitioner or any enmity etc.; that the defendants discharged their onus in this regard by citing Abdul Majeed as their witness but he could not be produced as he was in the state of coma; that the receipt of earnest money was not obtained because of the close relationship between the parties; that the balance of sale consideration of Rs,10,000 was paid to the plaintiff-petitioner before the Sub-Registrar; that the thumb-impressions were affixed by the petitioner before the Sub-Registrar and she was not identified by, anybody else because the copy of her Identity Card was attached with the Deed; that the minor discrepancy between the sale-deed (Exh.P1) and that of the copy available in the office of Registrar is due to the fact that at the relevant time, the facility of photostat copies was not available and the photostat copies were not retained in the office of Sub-Registrar and only handwritten or typed copies were retained which could not be the exact copies of the document registered; that the, procedural defects, if any, at the time of the registration Of the document will not render the document invalid; that defendant No,1 gave special power of attorney to her husband/the defendant No,2 and authorised him to appear, pursue and produce evidence etc. In Court and, therefore, there was no need for defendant No,1 to appear personally and give evidence; that defendant No,1 during the pendency of the suit gave oath on Holy Qur'an; that the petitioner has failed to give details of the alleged, fraud and thus the fraud is not proved or established; learned counsel for the respondents has also placed his reliance on Irshad Hussain v. Ijaz Hussain and 9 others (PLD 1994 SC 326) to contend that it has been proved from record that the petitioner is capable of understanding transaction and had executed the sale-deed on full and proper understanding of its implications and, therefore, the principle governing Pardahnashin, ignorant and illiterate women would hardly be attracted.
20. It may also be mentioned here that the record of the trial Court was completely burnt down and I have been assisted by the learned counsel for the parties on the basis of record produced by both of them in this Court.
21. The statement of the petitioner-plaintiff herself as P.W.3 has established that the thumb- impressions on the sale-deed were affixed by her because she has stated in the examination-in- chief that defendant No,1 obtained thumb-impressions from the petitioner on Exh.P1, though with fraud, thus, her previous denial in the plaint in this regard is not believable.
22. The evidence brought on the record, discussed above, has established that the petitioner is admittedly an illiterate lady (reference in this regard can be made to the statements of the P.Ws.
And also to the statement of respondent No,2/defendant No,2 himself as D.W.4). In this regard, it may be mentioned here that the petitioner cannot even sign her name and merely puts her thumb-impression on a document which makes her to be a totally illiterate person. It is also an admitted position that at the time of the recording of her statement in January, 1991 the petitioner was 80 years of age which makes her to be 72 years old at the time of the execution of the disputed sale-deed in December, 1982, thus, at the relevant time, she is established to be an illiterate old female. It is also established that the sale-deed in question is written in a foreign language i,e, English language, not understood by the petitioner. It is also a fact that the sale-deed was never read over or explained to her in the language understood by her. The entire evidence produced by the respondents is silent in this regard. None of the witnesses including the defendant No,2 (D.W.4) and D.W.3 Ch. Bashir Ahmad, Advocate have even alleged that the petitioner was made to understand the contents of the sale-deed. The Sub-Registrar who registered the document has also not recorded that the contents of the sale-deed being registered by him were read over or explained to the petitioner. It is also an established fact that she was not identified by anyone before the Sub-Registrar at the time of the execution of the disputed sale-deed, therefore, the possibility cannot be ruled out that the petitioner had been impersonated by someone else before the Sub-Registrar. The statement of D.W.3 Ch. Bashir Ahmad in this regard, does not inspire confidence. It is not understandable as to why he did not identify her before the Sub-Registrar, although according to him he went to the office of Sub-Registrar on the asking of the petitioner. He is merely a marginal witness of the sale-deed which admittedly was not written in his presence so, therefore, he is not a witness of the contents of the sale-deed. The major portion of the sale consideration i,e, Rs,65,000 was also not paid in his presence, therefore, he is not even witness of the payment of the major portion of the sale consideration. The findings of the Courts below in this regard are contrary to the evidence brought on the record and suffer from misreading of evidence.
The Sub-Registrar has not recorded the payment of any part of the sale consideration in front of him to the petitioner by the defendants. The absence of any such corresponding endorsement by the Sub-Registrar on the sale-deed has established that the amount of Rs,10,000 as alleged by the defendants was not paid to the petitioner at the time of the execution of the sale-deed by the Sub- Registrar because had any such payment been made before the Sub-Registrar, the same fact would have been recorded and endorsed by him on the sale-deed itself. As it is obligatory upon him under the law to do so under section 58(1)(c) of the Registration Act, 1908. The statement of D.W.3 Ch. Bashir Ahmad, Advocate in this regard is not believable and the findings of fact recorded by the Court below in this regard also suffer from non-reading of evidence. The payment of major portion of the sale consideration i,e, Rs,65,000 out of total amount of sale consideration of Rs,75,000 to the petitioner by the defendants has also been established. In this respect the defendants have tried to prove this assertion only through the statement of D.W.4 who being husband of the beneficiary and her special attorney is not an impartial witness and he has also stated that the said payment was made to the petitioner only in the presence of the defendants and not in the presence of anybody else and the defendants also failed to obtain any receipt from the petitioner.
In the absence of any independent evidence, the defendants have failed to prove the payment of major part of the sale consideration as well. This establishes that no sale consideration whatever was paid to the petitioner by the defendants. The delivery of possession of the property in dispute alleged to have been sold by the petitioner to defendant No,1 under the sale has also not been established. The defendant No,1 admittedly never entered into physical possession of the suit property. The respondent-defendant No,2 in his statement as D.W.4 has tried to establish that defendant No,1 was in constructive possession of the portion in dispute through the tenant but this assertion also stands negated in the cross-examination where he has admitted that the alleged tenant who was alleged to be in physical possession of the portion in dispute was not paying any rent to defendant No,
1. It is thus established that the possession was never delivered under the sale to the defendants. The defendants have also failed to establish that defendant No,1 ever had the means to purchase the property in dispute. Defendant No,2 as D.W.4 on the one hand has stated that defendant No,1 had sold her gold ornaments to purchase the property but in the later part of his statement he has stated that he handed over the amount of sale consideration to defendant No,1 who, in turn paid the same to the petitioner in his presence, in the absence of any other witness. This witness has admitted that his wife has no independent, source of income and is totally dependent upon him and has also admitted that he had no other source of income except the salary being paid to him by the Income tax Department and both the defendants have five children to look after and the meagre salary obviously could not enable the defendants to purchase the property in dispute.
23. Respondent No,1/the beneficiary also failed to appear as a witness in Court to assert that the petitioner consciously executed the sale in question for valid consideration.
24. To summarize the above discussions and above findings, it is held that the petitioner is an old, ignorant and illiterate female and the sale-deed in question which is alleged to have been executed by her is in English language, not understood by the petitioner and she never knew the contents of the alleged sale-deed because the same were never read over and explained to her. In view of the law laid down by the Honourable Supreme Court, discussed below, burden of proof in respect of a document purporting tohave been executed by an ignorant old and totally illiterate female/lady affecting her right or interest in the immovable property is on the person claiming the right or interest under the document and it is for him/her to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act, and if she is illiterate, it must have been read over to her. The above rule of burden of proof on the beneficiary is generally applicable, where the lady is a 'Pardahnashin' and the Honourable Supreme Court of Pakistan has extended the benefit of this rule to ignorant and illiterate women as well. Respondent No,1/the beneficiary has failed to discharge the burden of proof, mentioned above. It is, therefore, held that the petitioner never consciously executed the disputed sale-deed and as discussed above, respondent No,1/the beneficiary has failed to establish through affirmative evidence that the sale consideration was ever paid to the petitioner. The circumstance of non-delivery of possession under the sale to the beneficiary also goes against the beneficiary. In the present case, the beneficiary has also failed to establish that she or her husband ever had the means to purchase the property in dispute. In view of the above findings and in view of the law laid down by the Honourable Supreme Court, discussed below, the judgments and decrees of the Courts below are liable to be set aside and the sale-deed in question is liable to be cancelled and the petitioner's suit merits to be decreed as prayed for.
25. In Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 462), the Honourable Supreme Court while extending the benefit of rule of burden of proof in case of a 'Pardahnashin' lady to illiterate and ignorant women, has held that burden of proof in such cases is on the person claiming the right or interest under the document purported to have been executed by such a female and it is for the claimant/beneficiary to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act and in case of an illiterate female, the beneficiary has to further prove that the document was read over to such a lady. In this case, the Honourable Supreme Court, after going through the judgments of the Courts below and record of appeal, found that the contents of alleged sale-deed were not read over or explained to the appellant/Pardahnashin lady and it was not consciously executed by her as such, nor any sale consideration was received by her and thus the property was not conveyed to the respondents and by accepting the appeal, the judgment and decree passed by the trial Court was restored. The petitioner's case is similar. It is, therefore, also held that even if the respondents were able to prove that the petitioner appeared before the Sub-Registrar at the time of the execution of the sale- deed, her mere appearance before the Sub-Registrar would not lead to a conclusion that she consciously executed the sale-deed for the purposes of conveyance of her property to respondent No,1 because the contents of the sale-deed were never read over or explained to her. Similarly, in Irshad Hussain v. Ijaz Hussain and 9 others (PLD 1994 SC 326), it has been held that burden of proof that any document purported to have been executed by a Pardahnashin lady affecting her right in immovable property was substantially understood by such lady and execution of such document was her voluntary, intelligent, free and conscious act, was upon the person claiming any right under such document. It has further been held that such rule has been extended to illiterate ignorant lady, as in the present case, whether she is Pardahnashin or not. The apex Court has observed that the object of such rule of wisdom and caution was to protect Pardahnashin, illiterate and ignorant women from exploitation, duress, fraud and misrepresentation. In the instant case, the respondent/the beneficiary is daughter of the petitioner and it seems that she, in collusion with her husband, has merely tried to deprive the petitioner, who is her mother, of her valuable property through fraud and misrepresentation because the petitioner is an old, ignorant and a totally illiterate lady, without realizing at the time of the commission of such a fraud that the burden was upon the beneficiary throughout to prove and establish through unimpeachable convincing evidence that the sale transaction was genuine and was for valid consideration. In Muhammad v.
Mst. Rehmon through Mst. Sharifan Bibi (1998 SCM R 1354), it has been reiterated that where any sale has been executed by an illiterate lady, it is for the purchaser to establish that she had executed the same of her own free-will under independent advice from her relations and after fully knowing the nature of the transaction and the lack of such an evidence made the entire transaction shady and suspicious. In the instant case, learned counsel for the respondents has not been able to point out how the ingredients necessary for proving the bona fide transaction with an illiterate lady of advanced age, as laid down in the above judgments. Have been satisfied. In Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519) while interpreting section 92 of the Evidence Act, 1872, the Honourable Supreme Court held that where the validity of sale-deed is in question either because of misrepresentation, fraud, mistake or failure of consideration, the oral evidence cannot alter term of document but can prove its invalidity. It has also been held that proviso (1) to section 92 of the Evidence Act opens the door for the Court to inquire into the real nature of the transaction between the parties. It has further been held that admission as to the receipt of the sale consideration before the Registrar is not conclusive and the parol evidence could not be led to contradict the recital in the deed acknowledging the receipt of consideration to show that it was, in fact, not paid and section 92 of Evidence Act, 1872 was not a bar to the admissibility of this evidence. The apex Court has also held that the presumption of correctness attaches to the certificate endorsed on the sale-deed by the Registration Officer only for the purpose of proving that the document had been duly registered but as regards the receipt of consideration by the vendor, only a presumption arises out of the admission made by the vendor which could be contradicted by independent evidence as that relates to want of consideration and exercise of undue influence. In the present case, no such certificate has been issued by the Registration Officer, therefore, there is no such presumption in favour of respondent No,1 which was to be contradicted by the petitioner through some other evidence. Learned counsel for the respondents while opposing this petition has laid much stress on the fact that the document sought to be cancelled by the petitioner through her suit is a registered document. The honourable Supreme Court, in the above judgment, has held that mere registration of the sale-deed does not operate to pass the title to the vendee or to pass any interest in the property purported to have been sold to him/her where there was no proof of the transfer of possession of the property, nor of the delivery of the sale-deed, nor of the payment of consideration. It was further held that in such a case, the provision of section 54 of the Transfer of Property Act, 1872 is of no avail. In the instant case, there is no proof of payment of sale consideration or of transfer of possession.
26. The contention of the counsel for respondents that the suit was barred by time has also no force. Fraud vitiates everything. Even otherwise, there is nothing on the record to show that the petitioner was vested with the knowledge of the sale-deed and its contents prior to the year 1988.
Respondents have miserably failed to prove this issue because it has already been held that the sale-deed was never read over and explained to the petitioner.
27. In view of the above mentioned, the impugned judgments and decrees of the Courts below are set aside and the petitioner's suit is decreed as prayed for, with costs throughout.