' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This High Court Appeal is directed against the judgment and decree by learned Single Judge of this Court, in Suit No,848 of 1985 whereby the suit filed by the Respondent No,2/plaintiff for specific performance of the contract, possession, declaration and permanent injunction was decreed.
2. The relevant facts giving rise to this appeal are that, the Respondent No,2/plaintiff filed suit for specific performance of contract, possession declaration and permanent injunction with the following prayer:-
(a) direct the defendants to execute Sale Deed of the said property in the name of the plaintiff by appearing before the Registrar for such execution against receipt of sale price before the Registrar and by giving valid receipt of such sum to the plaintiff;
(b) direct the defendants to obtain no objection certificate from the Provincial Gain Tax Authorities against the sale of .The said property to the plaintiffs;
(c) direct the defendants to hand over vacant and peaceful possession of the said property to the plaintiff before the date on which the said Sale Deed for registration of the said property in favour of the plaintiff will be executed;
(d) permanent injunction in favour of the plaintiff above named restraining the defendants No,1 to 5 from selling the said property to any person or firm or company or corporation, from entering into negotiations for such sale or from letting out the said property to anybody on rent and from parting with the possession of' the said property in any manner or entering into any transaction with anybody with a view to creating any mortgage, encumbrance or lien or any disability on the said property with a view to keep the title of the said property clear, until final disposal of this suit;
(e) temporary injunction in this respect;
(f) direct the defendants to hand over all the documents of title of the said property to the plaintiff including original receipts, showing payment of ground rent, water, electricity and gas charges by the defendants until the date of registration of the said property;
(g) any other relief deemed fit by this Honourable Court under the facts and circumstances of this case;
(h) costs of the suit.
3. It was averred in the plaint that the plaintiff is a Charitable Trust and the defendants/appellants and respondents No,1 and 3 were owners of Plot No, 193, Block-A, Sindhi Muslim Co-operative Housing Society, along with the construction thereon, which they inherited from their mother Mst.
Mustafai Begum and the defendant No, 1/Respondent No,1, is duly constituted Attorney of Defendants Nos.2 to 5 /Appellants and Respondent No,3, having authority to sell the suit property for consideration. A General Power of Attorney dated 27th of December, 1983 in favour of Respondent No,1 was also produced along with the plaint. The plaintiff further pleaded that the Respondent No,1 on his behalf and on behalf of other defendants, driving authority from the General Power of Attorney entered into the verbal agreement of sale with the plaintiff for sale of the suit property for a total sale consideration of Rs,24,00,000. Pursuant to the said agreement the plaintiff gave Rs,15,000 as earnest money, to Defendant No,1 through cheque dated 12th November, 1984. The receipt of earnest money was acknowledged and admitted by defendant No,1. It was 'further averred that, as a consequence of such receipt, which contains details of sale of the suit property and consideration of sale, the defendants entered into a binding agreement for sale of the property to the plaintiff. The copy of the said receipt dated 4-2-1985 was annexed with the plaint. Consequent to the said agreement, the plaintiff advertised in English Daily Dawn of 14th February, 1985, inviting objections, if any, to the sale of the suit property. It was averred that the Defendant No,1 approved the advertisement and gave his no objection. After publication of the said advertisement the Sindhi Muslim Co-operative Housing Society Limited, served a notice on the plaintiff raising objection to the effect that sub-lease of the suit property still stood in the name of deceased mother of the defendants and that sale of the said property could not be effected without prior written consent of the Society and called upon the parties to obtain such permission before effecting the transfer of the said property. On receipt of the above notice from the society the plaintiff called upon the Defendant No,1 and through him all other defendants to comply with the requirements of the said Society so that the property may be transferred in favour of plaintiff and the sale-deed may be registered. The defendants were further called upon to obtain clearance from Capital Gain Tax Authority. The defendants were intimated that in case of their failure, the plaintiff shall file the suit for specific performance of contract. In response to the plaintiff's notice, the Defendant No,1 through his advocate's letter dated 8th June, 1985 refused to transfer the suit property in the name of the plaintiff on the ground of breach of condition of the sale alleged to have been committed by plaintiff. The plaintiff showed his willingness to pay the sale price of Rs,24,00,000 to the defendants after deducting earnest money and other necessary expenses.
4. The defendant No,1 failed to file written statement and therefore, he was debarred from filing the same. The defendants Nos.2 to 5 filed their joint written statement. They admitted that the Power of Attorney was executed in favour of Defendant No,1 and was registered on 26-1-1985 but it was cancelled/revoked by another registered deed dated 29-3-1986. They contended that they were not aware of any transaction and received information of the filing of suit on 30-7-1986 received from Mr. Nadeem Azhar Siddiqui, Advocate stating that he was engaged by Defendant No,1 but he failed to give any instructions. They alleged that prior to 26-1-1985. The Defendant No,1 had no lawful authority from the Defendants Nos.2 to 5 to enter into any transaction. They specifically pleaded that on 12-11-1984, when the earnest money is alleged to have been paid to Defendant No,1 he had no lawful authority to enter into any transaction on their behalf. They further pleaded that Cheque No,05702329 alleged to have been issued by the plaintiff drawn on Habib Bank Ltd, LI, Chundrigar Road Branch is fictitious cheque number and that neither any cheque book containing such number was issued to the plaintiff, nor any such cheque was ever produced for encashment by the Habib Bank. They further alleged that the Defendant No,1 is in collusion with the plaintiff and a fictitious receipt dated 4-2-1984, is prepared for the alleged Cheque No,05702329 dated 12-11- 1984 as the Power of Attorney in favour of the Defendant No,1 which has been subsequently cancelled was registered on 26-1-1985. They further denied that, they ever approved any publication about the transaction of suit property. They pleaded that they are residing in the suit premises and had no intention to dispose of the same. They prayed that the suit was liable to be dismissed.
5. On the pleadings of the parties the learned Single Judge framed the following issues:-
1. Whether defendants Nos.2 to 5 executed General Power of Attorney dated 27-12-1983, in favour of defendant No,1?
2. Whether the defendant No,1 entered into the agreement for sale of the property as attorney of defendants Nos.2 to 5? If so, is it binding upon the defendants Nos.2 to 5?
3. What should the decree be?
6. On behalf of plaintiff evidence of P.Ws. Imtiaz Samad and Jaffar Ali were recorded. While evidence of Mst. Bano Rizvi the Defendant No,5 was recorded on behalf of defendants.
7. P.W.1 Imtiaz Samad, stated that P.W.2 Jaffer Ali, an Estate Agent was requested to search a suitable property for the plaintiff. Sometime in November, 1984 the said Estate Agent, approached the plaintiff and informed that owners of suit property were interested in selling their property. He requested that a cheque for the sum of Rs,15,000 be issued in favour of defendant No,1, so that the bona fide of purchaser could be established and deal could be finalised. The plaintiff thereafter issued a cheque dated 12-11-1984, drawn on Habib Bank Limited I.1 Chundrigar Road Branch, Karachi, in favour of defendant No,1 and it was delivered to the Estate Agent. The witness further affirmed in his affidavit in evidence, that after several meetings between the defendant No,1 and Estate Agent, it was informed to the plaintiff that the sale consideration was settled at Rs,24,00,000.
He has further deposed that the advance amount of Rs, 15,000 was paid to the defendant No,1 who issued receipt Exh.A/2 dated 4-21985. According to this witness the defendant No,1 had assured the plaintiff that he was duly constituted Attorney of defendants 2 to 5 and was fully authorised to sell the suit property. He has produced photocopy of the General Power of Attorney, Exh.A/3. He has further stated that the defendant No,1, through his counsel's letter dated 8-6-1985, Exh.A/14 refused to execute the sale-deed, alleging that the plaintiff has committed serious breach of the conditions of sale. In this letter he stated that he was prepared to refund sum of Rs,15,000 advanced by the plaintiff. In cross- examination, he has stated that although at the time of transaction, he was not one of the trustees of the plaintiff Trust but he is aware of the transaction from the year 1984. He has stated that the transaction was finalised by Mr. Samad father of the witness and Managing Trustee of the plaintiff but Mr. Samad was not involved at any stage of transaction and yet again stated that "it is incorrect that, Mr. Samad was not involved at any stage of the transaction. He changed his version several times. First he stated that the transaction was negotiated by Mr. Samad with defendant No,1, thereafter he said that, the transaction was finalised by Mr. Samad and again stated that, Mr. Samad was not involved at any .Stage of transaction and yet again stated that "it is incorrect that, Mr. Samad was not involved at any stage of the negotiation personally. In the very next sentence he stated that in Paras 1 to 4 of his affidavit in evidence, he stated that the entire transaction was negotiated by the Estate Agent, Jaffer Ali. He further conceded that he has not seen the cheque issued on 12-11-1984. He has conceded that the cheque was issued on settlement of the transaction. According to him the valvation was settled and the cheque was issued towards advance payment of the price . He has next stated that, after the issuance of cheque the price was again settled. He has admitted in cross-examination that the cheque was given on 12-11-1984 to P.W. Jaffar An but he gave the receipt on 5-2-1985. He has further conceded that the Power of Attorney in favour of Shabahat Ali, defendant No,1 was registered on 26-1-1985. According to him the brothers P.W. Jaffar Ali and Mehdi had assured, Mr. S.A Samad that defendant No,1 was attorney of the defendants Nos.2 to 5 and was entitled to negotiate the transaction. He has further conceded in cross -examination that on evidence has been produced about the encashment of cheque in the sum of Rs,15,000 He has further stated in his cross-examination that, since middle of 1984 the negotiation for purchase of the suit property was going on between defendant No,1 and S.A. Samad ,through P.W. Jaffer Ali, Estate Broker. He admitted that the deal between Mr. Samad and defendant No,4 finalised in November, 1984 and on realising that the defendant No,1 was not ,attorney of remaining defendants, the defendant No,1 and Mr. Samad colluded in November, 1984, thereby forging receipts of payment dated 5-2-1985.
8. P.W.2 Jaffer Ali, Estate Agent, has stated that the transaction was not settled on 12-11-1984 the day cheque of Rs,15,000 was issued. He has further stated that he had not seen any Power of Attorney in favour of defendant No,1 on 12-11-1984. He denied to have started negotiation with defendant No,1, in respect of suit property before 12-11-1984. He stated that he met defendant No,2 for the first time, in January, 1985. He has further stated that the defendant No,1 had assured him that he was fully authorised to act on behalf of all the other co-owners. In cross-examination he has stated that the cheque was issued on 12-11-1984. According to him he never met the defendant, No,1 before January 1985. He has conceded that he wrongly/falsely stated in Para 5 of his affidavit-in-evidence that, he obtained cheque in the sum of Rs,15,000 from Mr. S.A.Samad, as per request of the defendant No,l. He was conceded that he and Mr.S.A. Samad knew that, there were co-owners also of the suit property. He has further stated that except Mr. Saddat he never met any other co-owner and that, he was informed by Mr.Saddat that the suit property was available for sale. According to him Mr. Saddad is the Attorney of the remaining co-owners and was living in the suit property in the year 1984. In the next sentence he has stated that Mr.Saddat is not Attorney of the co-owners.
9. D.W.1 Mst. Bano Rizvi, stated on oath that, the Power of Attorney registered in favour of defendant No,1 was cancelled/revoked vide registered Cancellation Deed dated 23-3-1986. She has explained that, she and the defendants No,2 and 3 never executed Power of Attorney dated 29-2-1983 in favour of defendant No,l. According to her, she and the defendants 2 and 3 were old ladies and defendant No,4 Syed Saddat Ali was ailing brother, the defendant No,1 suggested that he will look after, the matters relating to the house in various offices, if he was made General Attorney but he was not to have any power of selling the house. However, when Power of Attorney was got signed from them before the. Registrar on 27-12-1983, the Registrar did not register it and adjourned the same. They came to know that the defendant No,1, inserted the power to sell also in the Power of Attorney on which serious dispute took place between them, with the result that the defendant No,1, had strained relations with the brothers and sisters and stated that, he will not act.As. Attorney. She has further stated that, they were never informed of any negotiation for sale of the suit property with plaintiff or anybody else. They were under the impression that the Power of Attorney had not been registered and does not exist. They came to know in March, .1986, that, defendant No,1 had managed the registration of Power of Attorney on 26-1-1995, behind their back and without their knowledge. They apprehended the misuse of the said power of Attorney, as the defendant had become inimical to brothers and sisters therefore, they executed a Deed of Revocation/Cancellation of the Power of Attorney on 27-3-1986 and got the same registered. She produced copy of. Revocation Deed Exh.D/2. She stated that defendant No,2 Mst. Sikandar Begum was 74 years old. Defendant No,3 Mst. Ghousia Begum was 72 years old and she was 82 years old and all of them were residing in the suit property. She has further stated that the Defendant No,1 was living outside Pakistan. She has further stated that the Defendant No,.4 S. Saddat Ali is an Asthma patient and cannot move about since 1960.
10. On the basis of above evidence on record, it was contended on behalf of defendant that , Exh.A/2 is only a receipt and not an agreement. It was argued that the said document at the most indicates a proposal and nothing was finally decided as the Receipt Exh. A/2 bears signature of defendant No,1 only and is not signed by the plaintiff. It was asserted on behalf of plaintiff that, no doubt the cheque in the sum of Rs,15,000 was dated 12-11-1984, but the material document was Exh.
A/2, which was written on 4-2-1985 and signed by defendant No,1 on 5-2-1985. It was further contended on behalf of plaintiff that, the Power of Attorney Exh. A/3 was actually executed and is alleged to have been revoked on 27-3-1986 vide Exh. D/2 and therefore on the date of transaction the defendant No,1 was duly constituted Attorney of life Defendants Nos.2 to 5. On behalf of defendants it was adjourned and subsequently it was registered. It was argued that the Power of Attorney registered on 26-1-1985 is not valid document. It was presented on 27-12-1983, when it was adjourned and subsequently it was registered. It was further contended on behalf of plaintiff that the Power of Attorney was not compulsorily register able document and therefore, notwithstanding the registration of the document on 26-1-1985 the defendant No,1, shall be deemed to be attorney of defendants Nos.2 to 5 with effect from 27-12-1983, when they signed the document. It was contended that the receipt Exh.A/2. Was dated 4-2-1985, 5-2-1985 when the defendant No,1 was '
July constituted Attorney of defendants Nos.2 to 5.
11. On the basis of above contentions, the learned Single Judge observed that, it is not denied that there is a document in the shape of receipt Exh.A/2 and the only allegation is that it is a fraudulent document. The defendant No,1 neither file written statement nor entered into the witness box. He further observed that -it is admitted position that the Power of Attorney was executed on 27-12- 1983 and registered on 26-1-1985. The learned Judge further observed that in the year 1983 and 1985 the Power of Attorney was not compulsorily register able. He further observed that under section 47 of the Registration Act, a registered document shall operate from the tithe, from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration: Ultimately, he held that the defendants Nos.2 to 5 executed General Power of Attorney dated 27-12-1983 and notwithstanding its registration on 26-1-1985. It shall have effect from the date of execution. The issue No,1 was decided accordingly.
12. Dealing with Issue No,2 the learned Single Judge observed that , receipt Exh.A/2 is an admitted document and the Power of Attorney in favour of defendant No,1 is operative from 27-2-1983 therefore, the- defendant No,1 entered into an agreement as an Attorney of defendants Nos.2 to 5.
He -further held that the defendants Nos.2 to 5 were bound by the act of Defendant No,1 as Attorney. He observed that, if brother has acted otherwise than what may have been agreed between sisters and brothers, they may sue the defendant No,1 for damages but it will not affect the right of the plaintiff.
13. Consequent to the above-findings, the suit was decreed as prayed.
14. Being aggrieved with the above findings, the appellants have preferred this High Court Appeal.
15. We have heard Mr. A Aziz Khan, Advocate for the appellants, Mr. Zaki Muhammad , Advocate for respondent No,1 and Mr. Noorullah A. Manji, Advocate for respondent No,2. The respondent No,3 was reported to have died during the pendency of appeal. The learned advocated for the parties agreed that the respondent No,3, died issueless and his legal heirs, the appellants and the- respondent No,1, are already party to the proceedings and therefore, no further proceedings are required for joining of L.Rs of the -respondent No,3.
16. Mr.A. Aziz Khan, learned counsel for the appellants had argued that, admittedly there is no agreement to sell even between the plaintiff/respondent No,2 and defendant No,1/respondent No,1, Syed Shabahgat Ali. There is one receipt only Exh. A/2. It cannot be termed as sale agreement/contract to sell, as it is allegedly signed by Syed Shabahat Ali only and does not bear the signature of the plaintiff is typed. It is allegedly signed by a witness J.K. Rematullah, stated to be brother of P.W. Jaffar Ali. He has contended that Syed Shabahat Ali never intimated the appellants and deceased Respondent No,3 Syed Saadat Ali, about any such-transaction and admittedly the plaintiffs and their Estate Borker Jaffer Ali, in spite of knowing that the suit property was not in exclusive ownership of Syed Shabahat Ali and there were other co-owners, never contacted or intimated the other co-owners about any such transaction, Managing Trustee of the plaintiff Mr. S.A.Samad who is alleged to have been negotiating the deal through Estate broker Jaffar Ali has not entered the witness box to support the alleged contract of sale arid J.K Rehatullah is alleged to have expired, with the result that his evidence also could not - be recorded. He has further submitted that although the receipt Exh. A/2 has not been proved to have been executed by defendant No,1 on behalf of appellants, but even otherwise it cannot be relied upon at all. In support of his contention, he has argued that a specific plea was taken by the appellants in their written statement that the Cheque No, 05702329 dated 12th November, 1984 is a figment of imagination and no such cheque was en cashed but plaintiffs have not produced any evidence to establish the en cashement of this cheque by the respondent No,1 Syed Shabahat Ali, to whom it is alleged to have been delivered. He has further contended that a perusal of the receipt Exh. A/2 shows that the cheque is alleged to have been issued on 12-11-1984 and the receipt has been typed on 4-2-1985 while it has been signed on 5.2.1985. There is no explanation furnished by the plaintiff/respondent No,2, as to why the receipt was not executed by the respondent No,1 at the time of receiving the cheque if the plaintiff's version is correct and Signing of receipt after about three months of receiving of the cheque should have been -explained by the plaintiff but the plaintiff has avoided to enter the witness box. He has contended that the entire alleged transaction is sham and fraudulent and the result of collusion between the plaintiff and defendant No,1 Syed Shabahat Ali, who was bent upon causing loss to the appellants and the respondent. No,3. He has referred to the admission P.W.1, Imtiaz Samad in his cross-examination to the effect that, it is correct to suggest that the deal between Samad and defendant No,1 had been finalised in November, 1984 and - so on realising that the defendant No,1 was not attorney of remaining defendants, in November, 1984, Mr. S.A. Samad and defendant No,1 colluded in forging receipt of payment dated 5-2-1985. He has further submitted that P.W.2 Jaffar Ali was also instrumental in fabricating the receipt Exh.A/2 which is evident from the evidence of P.W.1 Imtiaz Samad and P.W.2 Jaffar Ali, P.W.1 Imtiaz Samad has admitted the suggestion that, Mr. Samad met Mr. Shabathat Ali, defendant No,1, after getting receipt of advance dated 5-2-1985, He further stated that prior to November 1984 the negotiations were going on between S.A.Samad and Defendant No,1 through Jaffer Ali, Estate Agent. He has further submitted that when the contents of receipt Exh.A/2. Are read with evidence 4 P.W. Jaffar Ali, it becomes abundantly clear that the entire story is false and fabricated and in fact, is a cock and bull story. It is stated in receipt Exh.A/2 that the cheque of Rs,15,000 dated 12th November, 1984 was received by Syed Shabahat Ali defendant No,1 towards the advance money in respect of proposal of the sale for Rs,24,00,000. When the -evidence of P.W.2 Jaffer Ali, is read in juxtaposition, the cat comes out of the bag. He has stated that the transaction was not completed on 12-11-1984 and that on the said date Mr. Samad, had given the cheque to him. He has further stated that the transaction was not settled on 12-11-1984. According to him before 12-11-1984, he had not seen any Power of Attorney in favour of defendant No,1 and had not started any negotiation in respect of suit property before 12-11-1984. He has further stated that he met Shabahat Ali, defendant No,1 for the first time in January, 1985: The question arises as to how, and in what circumstances, the cheque dated 12-11-1984 was issued by the plaintiff in favour of defendant No,1, when neither Mr. S.A.Samad, Managing Trustee of the plaintiff nor Mr. Jaffer Ali, the Estate Broker, met the defendant No,1, at any time before 12-11-1984 and how the sale consideration of Rs,24,00,000/- could be settled, Mr. A.Aziz Khan has further submitted that, the entire facts are to be considered keeping in view that the issuance and encashment of cheque has not been proved and no evidence whatsoever, has been brought on record by the plaintiff in spite of specific denial of the encashment of cheque; He has further argued that the perusal of receipt Exh.A/2 further shows that, at the most, it can be termed as a proposal and not a concluded contract. The reason being that, when the cheque dated 12-11-1984 was issued even the negotiation had not started and the question of any concluded contract does not arise. On 5-2-1985, it is recited in the receipt that the cheque of Rs, 15,000 was towards the advance money in respect of the proposed sale transaction Property No,193,' Bloc-A, S.M,C.H. Society, Karachi (i,e, double storey building including open plot of land therewith measuring 1044 square yards) for Rs,24,00,000 (Rupees Twenty Four Lacs) ,in total provided that the Vendors shall produce all marketable documents of title free from all encumbrances thereon along with "No Objection Certificate" of capital gain tax from Excise & Taxation Department within the period of three months thereafter. Thus, first, it is a mere proposal which has nowhere been accepted by the purchaser, as no such document has been produced and Mr. S.A. Samad has not chosen to enter the witness box. Secondly, it was a contingent proposal which required fulfillment of certain acts, which were never performed. Mr, A.Aziz Khan has submitted that ,the entire plaintiff's case hinges on the documents Exh.A/2 and the said document is not worth the peace of paper on which it is written.
17. He has further submitted that Power of Attorney, in favour of defendant No,1 executed by the defendants No,2 to 5 is a fraudulent document, so far the authority to sell the property is concerned. He has submitted that D.W. Mst. Bano Rizvi has specifically stated that in the Power of Attorney they had never intended to give the power of selling the property to defendant No,1 and after coming to know about this fact the relations between the defendant No,1 and other sisters and brothers were seriously strained. He has submitted that the plaintiff and defendant No,1, managed to get the Power of Attorney Exh.A/3 registered on 26-1-1985 without information of defendants Nos.2 to 5 and at, their back. He has further submitted that admittedly the document was " presented for registration on 27-12-1983 and on the said date the registration was adjourned.
Thereafter, on 26-1-1985 the Power of Attorney was registered without issuance of any notice to the defendants No,2 to 5, although a period of about one year and one month had elapsed in between.
Mr A.Aziz. Khan, submitted that this circumstance alone is sufficient to rule out the authority of defendant No,,1 to sell the property on behalf of appellants as all of them are Pardanashin ladies and law has provided protection to Pardanashin ladies. He has further submitted that in spite of overwhelming circumstance on the record, leading to the conclusion that the sole document in favour of plaintiff Exh.A/2, is a totally sham, false and fabricated document and the genuineness thereof has not been established, it .Does not bind tha appellants and the Respondent No,3 at al for the reason that , it does not say that Syed Shaabahat Ali, the Defendant No,1/Respondent No,1 executed this receipt on behalf of appellants and Respondent No,3 as well or in pursuance of the authority vested in him under any power of Attorney executed by the appellants and the Respondent No,4. He has submitted that, the learned Single Judge has totally ignored. All these facts and has seriously fell in error in coming to the conclusion that the defendants Nos.2 to 5 executed Power of Attorney in favour of defendant No,1 and that the defendant Not to 5 had given the authority to defendant No,1 to sell the property and that with the execution of receipt Exh.A/2 the defendants No,2 to 5 were bound by the act of defendant No,1 who acted as their Attorney.
18. Mr.Zaki Muhammad , learned counsel for the respondent No,1, has adopted the arguments of Mr. A.Aziz Khan, Advocate.
19. On the other hand, Mr. Noorullah A. Manji, learned counsel for the respondent No,2 has supported the impugned findings given by the learned Single Judge. He has submitted that the Power of Attorney, executed by defendants No,2 to 5 in favour of defendant No,1, Exh.A/3 stands proved land in view of sale agreement and sale consideration the impugned judgment of the learned Single Judge be upheld.
20. We have given very anxious consideration to the material place on record, the impugned findings of the learned Single Judge and the contentions raised by learned advocates for the parties before us.
21. We are persuaded to agree with the contentions of Mr.A.Aziz Khan learned counsel for the appellants that the learned Single Judge has ignored very material points. Has failed to take notice of protection given to the Pardanashin ladies and has misdirected in appreciating the evidence on record. We have reached to this conclusion with all due deference and respect to the learned Judges of this Court. The material documents on which the fate of this case hinges are the receipt Exh.A/2 and the Power of Attorney Exh.A/3. After careful examination of the receipt Exh.A/2 were found sufficient force in the contention of Mr.Aziz Khan, Advocate for the appellant and fully subscribe to his arguments.
22. The second material document is the General Power of Attorney Exh.A/3 which was executed on 27-12-1983, was presented before the District Registrar Karachi, for registration on the same day and was adjourned, while it was admitted to registration on 26-1-1985 in the absence of the appellants and respondent No,3, which was subsequently cancelled by registered Cancellation/Revocation Deed dated 27-3-1986 Exh.D/2, D.W. Mst.Bano Rizvi the appellant No,3, specifically stated that the respondent No,1 had not informed the appellants and respondent No,4 that, the power to sell the property has been inserted in the Power of Attorney. All the three appellants are old house-hold ladies and the learned Single Judge failed to consider that rule of protection has been evolved by superior Courts in respect of illiterate and Pardanashi ladies. Thus, the learned Single Judge did not consider at the entire rule laid down by the superior Courts in respect of Pardanashin ladies. A cloak of protection has been woven around the interest of illiterate and Pardanashin ladies, therefore, even if execution of some documents is not denied by the illiterate and Pardanashin ladies and has been admitted, the burden is on the person who wants to rely on the document executed by such ladies to establish that the contents of the documents were read over to such lady executants and they signed the documents after being conversant of the contents of documents or that the documents were signed without any coercion, fraud or misrepresentation and with the consent and free-will of the executants .
23. If any, authority is required on the above proposition it is available in the following judgments:
(1) National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Karachi 431 (D.B)
(2) Fida Mohammad v. Pir Mohammad PLD 1985 SC 341
(3) Jannat Bibi v. Sikandar Ali PLD 1990 SC 642
24. In the case of National Bank of Pakistan v. Mst. Hajra Bai (supra) the suits were filed by National Bank of Pakistan against two ladies on the basis of documents executed by them in favour of bank.
The suits were resisted by the ladies contending that, they had not executed the hypothecation deed in favour of the bank. They had also denied the execution of promissory note in favour of husband of one of the ladies who had obtained loan from the bank. The ladies expressed their complete ignorance about the alleged transaction between the bank and the loanee. They raised a plea that they are illiterate Pardranashi ladies and denied the execution or signing of any document for guarantee or hypothecation. They stated that the lonee obtained their signatures on several blank papers and had also fraudulently took away the title deeds of their properties. They further stated that when they were produced before the District Registrar Karachi they refused to admit the contents of the documents intended to be registered and accordingly the said document was returned unregistered.
25. The said ladies had also brought a suit against the bank and the loanee for declaration that the detention of title deeds of their properties were illegal, void and inoperative. They had further prayed to restrain the bank from using the said deed in any manner. They had pleaded that the lonee who was husband and son of the ladies took' away titles deeds of the properties owned by the ladies and obtained the signatures of the ladies on some blank papers. When questioned by Registrar if they had given their consent for registration of mortgage document in respect of their properties in favour of bank they refused to sign the documents. They showed their complete ignorance about the alleged transaction between the bank and the loanee. The ladies had taken plea that there was no privity of contract between the parties and they had not executed any guarantee for repayment of the due which their husband and son owned from the bank. The case of the bank was that the ladies had not only executed the documents but had also executed agreement to mortgage their properties and their title deeds were handed over to the band as security for bank guarantees that were given by the loanee. It was averred by the bank that subsequently the ladies in collusion with the lonee tried to wriggle out from their commitment and therefore refused to sign the mortgage deed at the time of registration.
26. In view of the above pleading a learned Single Judge of this Court observed as follows:- ' In this case the precise question whether in the facts and circumstances of the present case defendants No,2 and 3 who are Muslim ladies not used to appearing in public are entitled to the protection of any special rule of evidence so far as the proof of execution of the document in question is concerned. It is well settled that in the Sub-Continent Pardanashi ladies have been given a special protection in view of the special conditions of times: they are presumed to be imperfect knowledge of the world, as by the Parda system they are practically excluded from the social intercourse and communion with the outside world. Thus a rule has been evolved for the protection of Pardanashin ladies whereby a duty has been cast upon a person claiming under an instrument signed by a Pardanashin lady not only to prove the execution of the document but also that the nature of the transaction contained in the document was fully understood by such executing Pardanashin women. The law regarding Pardanashin ladies equally applies to illiterate and ignorant women.
27. The bank, being aggrieved with the above observation preferred High Court appeal before a Division Bench of this Court and after examining the chain of authorities on the point under consideration, a Division Bench of this Court held as follows: ' From the above authorities the legal position that crystallizes is that in the case of a document allegedly executed by an illiterate person or Pardanashin lady, the party taking advantage under it must establish by strongest and most satisfactory proof that not only the document was executed by such illiterate person or Pardanashin lady but also that the said illiterate person or Pardanashin 'lady had fully understood what was contained in the document. Mere fact that the execution was unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension is in itself no real proof of true understanding mind in the expectant. The evidence must show that the document was read over and if necessary explained to the executant and in the case it was in the language which the executant did not understand, it was translated for the executant's comprehension. However, if subsequently the executant makes a declaration that he or she had not understood what he or she was doing, that by itself is not conclusive. It must be a question whether, having regard to the proved personality of the executant, the nature of the transaction, the circumstances under which it was executed and the whole history of the parties, it was reasonably proved that the document was the free and intelligent act of the executant or not.
If the answer was in the affirmative, the person relying on the document had discharged the onus resting upon him. Thus the Courts have no doubt evolved certain rules for their guidance in such cases, but the rules so laid down are only rule of prudence rather than rule of law and therefore their application depends upon facts of each individual case. If these rules are moulded into inelastic formulas or crystallized into inflexible rules and treated as of universal application, there will be grave risk of failure of justice.
28. However, while propounding the above principle of law the learned Member of the Division Bench proceeded to examine as to how the exposition of the above principles covered the cited case. They found that the stand of ladies was that, they were completely in the dark as to the transaction that had taken place between the bank and the loanee. According to them the loanee had obtained their signatures on blank papers and had taken away their property title deeds on the excuses which turned out to be false. It was further observed that when the ladies were taken to Registrar and were informed by them that they were to sign the mortgage deed whereby their properties were to be mortgaged as a security for the guarantees given lily them on behalf of loanee they refused to sign the deed with the result that the mortgage deed was returned unregistered. The learned Judge further observed that, had the ladies entered into mortgage agreement they would not have backed out at the time of registration of mortgage deed.
29. After examining the facts of the case in the light of pleas taken by the ladies it was observed that the fraud was played on the ladies and the entire deal of the loanee was shady. It was ultimately held, that the learned Judges came to the irresistible conclusion that the ladies were not party to the documents in question and in case they had signed the documents they were totally in dark as to the contents of the same. It was further held that it was more probable that their signatures were obtained on blank papers because after all the loanee who obtained their signature was their own and therefore they could not think even for moment that they would betray their confidence but when they came to know the real purpose behind the moves of the loanee they frustrated his intention. With these findings the judgment of the Single Judge. In favour of the ladies was upheld and the appeal was dismissed.
30. In the case of Jannat Bibi v. Sikandar (Supra) the relevant facts were that respondent No,3 in the cited case was an Assistant Sub-Inspector, in the police department and father of respondent No,1 and 2 who were residing in the neighbourhood of the appellants in the cited case. He' sympathised with the appellant and her mother, offered to help them for securing permanent transfer deed in their names and getting entered their names in the Provisional Transfer Order and asked them to execute a Power of Attorney in his favour. Relying on the representation, the appellant and her mother affixed their thumb impressions on certain paper as they were illiterate. This paper was later on used partly as a mortgage deed and partly as an agreement to sell the house for consideration of Rs 6,650 which was acknowledged to have been received at the time of execution of the document.
31. In the above perspective the question pertaining to the protection of illiterate Parsanashin lady came for consideration before the Hon'ble Supreme Court.
32. The Hon'ble Supreme Court observed that it is well-settled that the question whether the lady is Pardanashin or not is a question of fact and that it is also well-settled that the burden of proof in respect of a document purported to have been executed by a Pardanashin woman affecting her right or interest in the Immovable property is on the person claiming the right or interest under the document. It was further observed that it is for the person claiming the benefit under the document to establish affirmatively that it was substantially understood by the lady and it was really her free and intelligent act. If she is illiterate, it must have been read-over to her. The Hon'ble Supreme Court while considering the above issue undertook resume of the case law and proceeded on to examine if the sale-deed in the cited case bearing thumb-impression by the appellant ladies was explained to and understood by them and whether the respondent was able to discharge the burden of proof to the execution of sale deed by them. While examining the facts of the case, it was observed that the executant lady stated that she had put her thumb impression on the Power of Attorney but the same was not read over to her. She further denied to have affixed thumb impression on document and the sale deed and had taken specific plea that she had not sold the house. She further stated that the document which was signed before Tehsildar was executed under the misrepresentation that she had to sign the receipt before Tehsildar. After examining the entire facts in the light of the plea taken by the illiterate Pardanashin lady the Honourable Supreme Court held that it could not be said that the documents were read over or explained to the appellant and therefore the respondents who were the beneficiaries of the documents failed to discharge the burden of proof of the execution of the documents.
33. In the case of Fida Mohammad v. Pir Mohammad (supra) the Honourable Supreme Court had laid down certain principles in respect of General Power of Attorney which are as below: ' Attorney is not absolved from his two essential obligation mentioned others: ' Firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about its interpretation) to use reasonable diligence in communicating with the principal and seeking to obtain his instructions, and ' Secondly, if the agent deals on his own account with the property under agency, e.g, if he purchases it himself or for his benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction.
34. We are of the considered opinion that, the ratio of the above judgments are fully attracted to the facts of the present case. It appears that the above judgments were not brought to the notice of learned Single Judge. The beneficiaries of the authority to sell the property are the plaintiff/respondent No,2 and Syed Shabhat Ali respondent No, 1 . As already observed none of them entered into the witness box to discharge burden that the Pardranasheen ladies authorised the respondent No,1, with their free,-will and consent and without any misrepresentation and fraud and that the entire contents of the Power of Attorney Exh.A/3 were read over, translated and explained to the appellants before its execution. P.W.1 Imtiaz Samad son of Mr.S.A Samad, Managing Trustee of the plaintiff and P.W.2 Jaffar Ali, the broker, who is alleged to be the negotiator on behalf of Mr.S/A. Samad have conceded that the Power of Attorney was not seen by them before striking the deal and the Respondent No,1 had merely assured that, he had lawful authority to sell the property. They have further conceded that, in spite of knowing that the appellants and the Respondent No,4 were the co-owners of the property, they never established any contact with them in respect of the alleged transaction.
35. Respectfully following the ratio propounded in the cases referred to above, it is held that, the burden laid on the beneficiaries of the Power of Attorney has not been discharged and consequently, the appellants were never private to any contract with the plaintiff/respondent no.2 and the defendant No,1/respondent No,1. This finding is notwithstanding that, no binding contract ever came into existence on the basis of material produced On record and no right for specific performance of the contract flows in favour of Plaintiff/Respondent No,2, in pursuance of receipt Exh . P. 1A/2.
36. For the foregoing reasons, it is held that the impugned judgment of learned Single Judge is not sustainable in fact and law, and is hereby set aside. The suit for Specific performance of Contract filed by the plaintiff/respondent No,2, is hereby dismissed. However the parties are left to bear their own costs.
' The appeal is allowed as above.