1. ' Plaintiff has filed this suit for recovery of Rs,34,994,065.19 against its customer/principal borrower (defendant No,1) and several other defendants including defendant No,2., the wife of defendant No,1, who had provided securities or mortgaged their properties to secure the finance provided to defendant No, 1 . After service of summons defendant No,1 failed to raise a serious and bona fide dispute in his defence and by order, dated 4-5-1998 his application for leave to defend the suit was dismissed and the suit was decreed in the sum of Rs,34,994,065.19 with Mark-up @ 20 .Per cent. Per annum from the date of institution of the suit till its payment. On 12-1-1999, plaintiff withdrew its claim against several defendants leaving only defendant No,2 in the field. After withdrawal of the suit against other defendants only two issues relating to defendant No,2 required to be decided.
2. They are as follows:-- "(1) Whether the defendant No,2 has not created equitable mortgage in favour of the plaintiff by way of deposit of original title documents of her property in question?
(2) What should the decree be?"
3. ' The plaintiff examined Syed Shah-e-Mehdi Kazmi while defendant No,2 appeared in person to record her evidence in defence of her plea.
4. ' I have heard the arguments of the learned counsel, read the written notes submitted by them, perused the evidence and on consideration of the same my findings are as follows:-- Issue No,1 ' Plaintiff's witness deposed that defendant No,1 had applied for a loan as a proprietor of Abasien International to the plaintiff and to secure payment of the loan, among others, Mst. Yasmeen Sharfuddin (defendant No,2 and wife of defendant No,1) had deposited title deeds of her property bearing No,A-593, Block L, North Nazimabad, Karachi, admeasuring 253 square yards which included the following documents:--
(1) Sale-deed, dated 30-11-1978 in favour of Mst. Yasmeen Sharfuddin (Exh.17/1);
(2) Mutation Letter, dated 25-2-1981 issued by KDA communicating the transfer of the property in favour of defendant No,2 (Exh.17/2):
(3) Search Certificate from Registrar of Conveyance, dated 30-6-1981 (Exh 17/3); and
(4) KDA's letter, dated 9-6-1981 granting permission to mortgage the property in favour of United Bank Limited (Exh.17/4).
5. ' In the cross-examination of the plaintiff's witness it was suggested to him that the plaintiff had not attached any document with the plaint to show that defendant No,2 had executed any document relating to the mortgage of her property. In reply, the witness stated that the Bank had attached documents and had produced Original Documents referred to above which included KDA permission to mortgage (Exh.17/4). Defendant No,2 in her cross-examination admitted that she knew her husband had taken the loan in question from the plaintiff-Bank in connection with his business. She also deposed that she had not given any document to the plaintiff in respect of any loan taken by her husband Muhammad Sharfuddin and that she had not mortgaged her property with the Bank to secure payment of the loan taken by her husband. However, in her cross- examination she stated that she had given the title deeds/documents to Shahabuddin, the brother of her husband, to help him secure a loan for his business. She further stated that she did not remember if any permission to mortgage the property was obtained by her from KDA. When she was confronted with the KDA Permission Letter (Exh.17/4) she replied that "I do not know English and therefore, cannot say whether Exh.17/4 is for obtaining a loan". It is interesting to note that the affidavits and the verification in the written statement signed by her are in the English language and do not contain the notation of the Commissioner for taking affidavits that the deponent not being conversant with the English language the contents of the same were explained to her in Urdu before the affidavit and the written statement were attested by the Commissioner, This act was admitted by defendant No,2 in her cross-examination. In her evidence defendant No,2 took the plea that she had given the documents of title to her brother-in-law to secure payment of the loan taken by him from United Bank Limited for his business. Defendant No,2 did not take such a plea in her written statement. It is an afterthought and she cannot be allowed to take this plea is her evidence. Even otherwise the plea is not sustainable. Firstly, because it is difficult to believe that a wife in an eastern society would not give security for her husband but would willingly do so for her husband's brother. Secondly, if this were true she should have rroduced her brother-in-law as a witness who would have deposed in her favour and produced other documents in support of her plea. She did not do so; obviously for the reason that the plea taken by her was not bona fide.
6. ' Mr. Saleem, learned counsel for defendant No,2 argued that his client was a Pardanasheen lady who was not conversant with the English language and that her affidavit and written statement were drafted by her previous Advocate who acted negligently and because of his wrong advice she could not produce documents to prove that the Title Deeds of her property were given to secure the loan of her brother-in-law. According to reported judgments a female who comes within the meaning of Pardanasheen lady has been provided certain protection in relation to contracts entered into by her. Mr..Saleem has not elaborated as to what are the requirements to qualify as a Pardanasheen lady, what, protection such a lady is entitled to and how does defendant No,2 qualify to get the benefit of a Pardanasheen lady.
7. The terms Pardanasheen lady has not been defined in any statute. However, a Pardanasheen lady has been defined by the Supreme Court of Pakistan in the case of Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others, 1984 SCMR 890, as follows:-- "A Pardanasheen 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 and dependents. As such she has no accesss 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 becuase of living in seclusion."
8. ' Similarly a learned Division Bench of this Court in the case of National Bank of Pakistan v. Mst. Hajra Bai and 2 others, PLD 1985 Karachi 431, observed as follows:-- "In fact the protective cloak is available to Pardanasheen more because of lack of understanding and appreciation on her part than for merely observing Parda. It is quite possible that a woman belonging to a Pardanasheen class may possess sufficient intelligence to understand the contents of the document to which she is party despite the restraints of Parda."
9. ' The observations by the learned High Court were made when an argument was advanced on the basis of section 16 of the Contract Act that if a contract is prima facie unconscionable or is proved to be unconscionable the burden of proving, that such a contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. To take benefit of the observations of the High Court Judgment defendant No,2 had to show that the mortgage or the creation of equitable mortgage was prima facie unconscionable and to take advantage of the observations of the Hon'ble Supreme Court's Judgment she had to prove that she was ignorant, weak-minded and did not have the capacity to understand her affairs becuase of living in seclusion. Defendant No,2 did not take the plea in her written statement that the plaintiff had taken undue advantage of a Pardanasheen lady and therefore, she cannot be permitted to advance such an argument on presumptive basis without any evidence on record on this point. Assuming this to be so, it is pertinent to mention that during her cross-examination she answered the questions confidently and did not give any indication that she was ignorant, weak-minded or did not have the capacity, to understand worldly affairs because of the social conditions she lived in or that she was unable to understand business transactions. Though she wore a Burqa, she conducted herself like a well-informed person and in her cross-examination confidently asserted like an educated person that she had given the Title Documents of her property to her brother-in- law for use by him as security for repayment of the loan taken by him for his business. A Pardanasheen lady as described in the judicial pronouncements referred above would not have spoken and conducted herself so confidently as she did. The act of depositing the Title Deeds as security by defendant No,2 with the Bank to secure repayment does not appear to me to be an unconscionable act in any way. The defendant's counsel also did not attempt to show that the act of depositing of Title Deed was unconscionable for any reason. I am afraid the argument of Paradanasheen lady advanced cannot be accepted in view of the facts stated above. However, if the assertion is correct, she has a cause of action against her Advocate whom she can sue for professional misconduct both in contract and in tort for breach of duty and negligence resulting in inconvenience, harassm ent and mental and financial injury to her.
10. ' Mr. Muhammad Saleem Samo, learned counsel for defendant No,2, further contended that the plaintiff had obtained Memoranda of Deposit of Title Deeds from every other defendant to secure payment of the loan as well as General Power of Attorney which have been produced alongwith the plaint as annexures. He urged that the documents annexed with the plaint indicate that they were executed in 1992 while no such Memorandum of Deposit of Title Deeds or any other document showing such deposit by defendant No,2 around that time had been produced by the Bank which proved that the Title Deeds were not given to the Bank to secure the loan in question. The argument cannot be sustained because there is no provision in law which provides that for creation of an equitable mortgage by way of Deposit of Title Deeds, it is essential that the said deposit should be accompanied by some document evidencing the creation of an equitable mortgage (1994 CLC 2150). The burden was upon defendant to prove that the Title Deeds of her property were given to the Bank by her in respect of the loan in question which she failed to discharge. Her deposition does not inspire confidence and therefore, her denial cannot be accepted. The judgments cited by Mr. Saleem, learned counsel for defendant No,2 (AIR 1923 PC 87 and AIR 1965 SC 430) are distinguishable and not applicable to the circumstances of the present case. The judgment reported in AIR 1977 Calcutta 343 also cannot be applied to the circumstances of this case especially in view of the conduct of the contesting defendant. The fact that the Bank is in possession of the Title Deeds is sufficient to prove that they were given to it to secure payment of the loan/finance facility provided by the Bank to her husband. The plaintiff has produced sufficient evidence to show that defendant No,2 created an equitable mortgage in favour of plaintiff by deposit of original title documents of her property. The issue is, accordingly, decided in favour of plaintiff-Bank.
11. Issue No,2 ' In view of the above discussion, plaintiff's claim is decreed against defendant No,2, in the sum of Rs,34,994,065.19 with mark-up at 20 per cent. Per annum from the date of suit till payment together with costs and final Mortgage Decree for sale of the mortgaged property of defendant No,2 for satisfaction of the plaintiff's decree. It is, however, clarified that recovery from defendant No,2 shall be limited to the sale proceeds of the mortgaged property. Plaintiff shall also be entitled to additional costs of Rs,5,000 against defendant No,2 under section 35-A, C.P.C. As her plea was mala fide and patently vexatious to her knowledge.