MIAN ALLAH NAWAZ, J. - These three Civil Revisions, bearing No. 1469/94, 1470/94 and 1471/94 portray convoluted nature of human being comprising of sordid and noble instincts. These reflect no credit on the part of litigants who are no less than real brothers/sclons of late Sheikh Abdul Majeed. The dispute, among them, pertains to urban property No. E1 15-R-152 popularly known as House No. 139- G, Sher Shah Road, New Shad Bagh, Lahore, itmeasures 32 kanals and has two portions. One is residential while the other is school portion which was built upon 19 marlas, 63 sq.Ft, by late owner who had been running school therein till his demise. Disputed property shall hereinafter be described as* "House" and its portion shall be treated as "residential unit" and "school portion" respectively.
2. The material facts to be noted are that house was owned by late Abdul Majeed. On his demise, it devolved upon following legal heirs:-
(i) Sakina Bibi, widow
(ii) Memoona Akhtar, daughter
(iii) Masooda Akhtar, daughter
(iv) . Mamoon-ur-Rashid, son
(v) Haroon-ur-Rashid, son
(vi) Pervaiz Shaukat, son
(vii) Javed Solat, son.
3. Haroon-ur-Rashid respondent No. 2 in all' petitions, entered the arena of litigation first. He brought a suit No. 534/1 of 1989 for recovery of possession of a room situated in residential unit on the footing that the House devolved upon the aforesaid legal heirs of Sh. Abdul Majeed; that Mst.
Sakina Bibi, Memoona Akhtar and Masooda Akhtar, by a family settlement dated 12.4.1981, had relinquished their rights in it in favour of their brothers dated 16.3.1981 who by an agreement dated 12.4.1981 divided it into four portions fully described in the annexing map; that as Pervaiz Shaukat and Javed Solat were not given any share on front side of the house, they were paid Rs. 20,000/- by Mamoon-ur-Rasheed and Haroon-ur-Rasheed respectively; that Pervaiz Shaukat was in possession of one room falling in the share of Haroon-ur-Rasheed and had undertaken to vacate it after a year; that as he declined to abide by his * commitment, he was constrained to file the suit.
4. Pervaiz Shaukat, herein petitioner in all the petitions, too did not lag behind. He filed two suits. One suit was filed under Section 42 of the Specific Relief Act for seeking declaration that the petitioner, alongwith respondents, had become owner of 1 /4th share in the house; that the agreement dated 12.4.1981 was illegal, based upon fraud and was of no lawful consequence; that the "house" was still undivided. The second suit was for the rendition of accounts and mesne profits, itmust be mentioned over here that neither Haroonur Rasheed nor Pervaiz Shaukat impleaded their mother and sisters as parties in the suits filed by them.
[Vol.XXI Pervaiz ShaukatV. Mamoon Rashid C.C. 223 (Mian Allah Nawaz, J )
5. The learned Trial Judge consolidated all the three suits. Necessary issues were framed.
Mamoonur Rasheed and Haroonur Rasheed were treated as plaintiffs while Pervaiz Shaukat was designated as defendant. Despite service Javed Solat, did not enter appearance and so was proceeded again ex-parte on 30.1.1 987 by the first Court.
6. Mamoonur Rasheed and Haroonur Rasheed examined these witnesses besides himself namely Mst. Sakina Bibi, PW-1, Faiz-ur-Rehman PW.2, Abdul Majid PW-3. Mamoonur Rasheed entered into witness-box as PW-4. They tendered into evidence document Ex.P1 to Ex.P1/13. Pervaiz Shaukat relied upon three witnesses beside himself, namely Abdul Majid DW.1, Mirza Muhammad Ismail DW.2, Muhammad Bashir Ahmad DW.3. He also tendered in' evidence documents Ex.DW.2/1 to 14. On 25.10.1989 Faiz-ur-Rehman PW.2, during cross-examination, stated that he had arranged a settlement package between descendents of Sh. Abdul Majid whereby his daughters and widow had relinquished their rights in favour f their brothers; that house was partitioned by sons f Abdul Majeed into four portions by agreement dated 12.4.1981. It was agreed that the rent pertaining to School would be received by Mst. Sakina Bibi widow of the late owner. He offered t state the above circumstances on special oath. This offer was,conveyed to the parties by the Court. It seems that Mamoonur Rasheed and Haroonur Rasheed who were present in the Court on that date, stated that if PW.2 was prepared to state on Holy Quran what he has stated in his cross- examination and that if the witness did not make such statement then the suit be decided on merits. On the same day Pervaiz Shaukat stated that if PW.2 on oath administered to him on Holy Quran, stated that he had arranged settlement between the parties, then the case be decided against him. The learned Trial Judge recorded the statement of the parties in a script which is not clearly legible. However, their statement as read by me are as follows:- #tbs ! Ajut A ' I c. Ic-L* (-jLlJ JLjfL.y if 25.10.89 #to 20.10.89
7. The learned Trial Judge, however, did not decide the suit on the basis of statement of PW.2 made on special oath and proceeded to asses the material available on record and came to these conclusions (i) that the agreement dated 12.4.1981 did not describe the area of different portions allocated to parties and so was uncertain and illegal being void under Section 29 of Contract Act.
On this finding, it was further found that the house was still a joint property in which Pervaiz Shaukat was owner 1/4 share; (ii) that he was entitled to recover Rs. 125/- per month from the rent of School portion from November, 1984 till 6.7.1989 when it had been vacated by the Education Department.
On these conclusions the learned Trial Judge decreed the suit filed by Pervaiz Shaukat and dismissed, the suit filed by Haroonur Rasheed in following terms:- "In view of the findings on the above issues, the suit for possession bearing No. 534 filed by the Mamoonur Rashid is dismissed, a suit for declaration with consequential relief bearing No. 535 filed by Pervaiz Shaukat is decreed in favour of the plaintiff and against the defendants as prayed for and a suit for Rendition of Accounts bearing No. 536 is decreed in favour of Pervaiz Shaukat and against the defendant No. 3 to the effect that the plaintiff can recover his share of rent amounting to Rs. 125/- per month since November, 1984 till 6.7.1989. Anyhow, the parties shall bear their on.
Costs. Copy of the judgment be placed in other two files also. The file be consigned to the record room -after completion....... "
8. On appeal, the learned Appellate Court did not see eye to eye with the conclusions arrived at by the Court below and held that on 25.10.1981 Faiz-ur-Rehman had made a statement on Holy Quran that the house was divided by Haroonur Rasheed, Mamoonur Rasheed, Pervaiz Shaukat and Javed Shaukat in four portions; that the portions so allocated to the parties were completely described in the memo, of agreement dated 12.4.1981; that Pervaiz Shaukat has received an amount of Rs.
20,000/- from Mamoonur Rasheed and so the house had ceased to be joint property; that the learned Trial Court was enjo.Ned [Vol.XXI Pervaiz Shaukat V. Mamoon Rashid C.C. 225 (Mian Allah Na waz, J.j under the law to decide' the suits in consonance with the statement made by PW.2 on special oath.
Apart from this finding, it was held that the agreement dated 12.4.1981 was a certain; that the house stood divided amongst the legal heirs in terms of portions described in the map annexed to agreement dated 12.4.1981 and so Haroon-ur-Rasheed was well within his right to file suit for recovery of room which was in possession of Shaukat Pervaiz. On these inferences, the learned Appellate Court set aside the decision of the Court below, dismissed the suits filed by Pervaiz Shaukat and decreed the suit filed by Haroon Rasheed. This happened vide consolidated decision dated 5.3.1994. All these revisions are directed against the afore-stated decision.
9. The contentions, put forth by the learned counsel for the petitioners, can be conveniently summarized as below:- Firstly: that the agreement dated 12.4.1981 was clearly uncertain, vague and did not specify the portions of the parties by meats and bounds. The house according to the learned counsel, comprised of two portions i.e. Residential portion and a school portion. The residential portion had a frontage of 60 ft. While school portion, built upon 19 marlas, fell back of residential unit; that the front portion was evidently ; much more valuable than the back portion. On these circumstances, it was suggested that the agreement did not provide any reasonable, equitable division of house among co-owners. According to the iearned counsel, the agreement, therefore, was vague, uncertain, and inequitable. Reliance was placed on Ahmad Miaji Vs. Eakub AH (12 DLR (1960) p. 708), Durga Nath Vs. Debendra Nath (PLD 1951 Dacca 89) and Ghulam Hussain Vs. Hur (PLD 1959 (W.P.) Karachi 408).
Secondly:that the agreement dated 12.4.1981 was neither a partition deed nor a family arrangement. Continuing, the learned counsel added that it was a document which was obtained by Haroonur Rasheed and Mamoonur Rasheed through deceitful manners ind so was not worth the paper on which it was written.
Thirdly: that the learned Appellate Court had overlooked that the statement made by PW.2 on Holy Quran was a snappy statement. Elaborating this contention further, he pin-pointed that Haroonur Rasheed had moved an application under Order 1 2, Rule 6, CPC for deciding the cases on the basis of statement made by PW.2 on special oath on 12.9.1990; that this application was contested and that the learned Trial Judge, vide order dated 6.12.1991 rejected that application; that Hardonur Rasheed moved yet application under Order XLVII, Rule 1 read with Section 151, CPC for reviewing of the afore-stated order but in vain. The learned Trial Judge dismissed that petition on 11.5.1991. From the above-stated facts, it was clear, that Pervaiz Shaukat had not accepted the offer of PW.2 as concluded by Appellate Court.
Fourthly: that the decision rendered by the Appellate Court was based upon misreading and non- reading of the material on record.
Haroonur Rasheed, appearing . On behalf of himself and Mamoonur Rasheed, supported the impugned decision on following grounds:- ...
(i) that the decision rendered by the Appellate Court was based upon consent of parties and so it was not open to interference by this Court in Revisional jurisdiction. Reliance was placed on 1991 PSC 148, 1989 M LD 454, 1989 SCMR T857.
(ii) That petitioner received an amount of Rs. 20,000/- from Mamoonur Rasheed under impugned agreement dated 12.4.1981 and so he was estopped to challenge the partition of the house embodied in Ex.PW.2/1 (agreement deed).
(iii) that petitioner had admitted the execution of agreement deed dated 12.4.1981 and so he was bound under the [Vol.XXI Pervaiz Shaukat V. Mamoon Rashid C.C. 227 IMian Allah Nawaz, J.) law to prove that the agreement was got executed from him under a spell of fraud.
9-A. None has entered appearance on behalf of Javed Shaukat as .Usual and so he was proceeded ex-parte.
10. Before I proceed to deal with the rival contentions of the parties, I find ft expedient to examine the law applicable to the relinquishment of rights of inheritance by Muslim females and the powers of the Court while deciding^the /is between the parties on the statements made on special oath.
The first question was finally settled by the Supreme Court in Ghulam Ali Vs. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Upon exhaustive illuminating examination of a woman under different societies viz- a-viz a Muslim one, his Lordship Mr. Justice Muhammad Afzal Zullah ?As he then was) said:- "The question of immorality which has also been raised by the learned counsel for the petitioners as if, in the circumstances of this case, it favours ?The petitioners would be dealt with separately.
Here in the light of the foregoing discussion on the Islamic point of view, the so- called "relinquishment" by a female of her inheritance as has taken place in this case, is undoubtedly opposed to public policy as understood in the Islamic sense with reference to Islamic jurisprudence, In addition it may. Be mentioned that Islam visualised many modes of circulation of wealth of certain types under certain strict conditions. And when commenting on one f the many methods of achieving this object, almost all commentators on Islamic System agree with variance or degree only, that the strict enforcement of laws of inheritance is an important /accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy, In other words the disputed relinquishment of right ef inheritance, relied upon from the petitioner's side, even if proved against respondent, has t be found against public policy.
Accordingly the respondent's action in agreeing to the relinquishment (though denied by her) being aga nst public policy the very act of agreement and contract constituting the relinquishment, was void.
Although on the subject of public policy there has been some controversy on two questions--one, technical relating to pleadings; and the other, substantial relating to availability of bar of public policy, in cases other than enumerated in the Contract Act, it has now been set at rest, In the case of Atlas Industrial and Trading Corporation, Karachi and another v. Dr. Jalil Asghar (PLD 1970 Kar.
241) the objection that plea of public policy was not taken at proper time was overruled and a new subject of public policy; namely, contracts relating to corruption in public offices, was recognized as proper subject to be dealt with under Section 23. However, seemingly different view was taken by the same High Court in the case of Sultan Textile Mills (Karachi) Ltd., Karachi v. Muhammad Yousuf Shamsi (PLD 1972 Kar. 226). But, with respect, it .May be mentioned that there was not much justification for taking a view different from what was in Atlas Industrial and Trading Corporation on the above-referred two questions. Be that as it may, the Supreme Court in its two judgments reported in 1964, one in the well-known case of E.A. Evants (PLD 1964 SC 536) and the other similarly well- known case of Syed Sibtain Fazli (PLD 1964 SC 337) took dp and examined a plea relating to public policy, which was not raised at earlier stage in one case and seemed to have been abandoned in the other, it also introduced new subjects of public policy for treatment under Section 23-one of them being the enforcement of agreements relating to rent, viz-a-viz, the application of the newly introduced Rent Restriction Laws much later in time than the enactment of the Contract Act. The theory, that only the rules of common law of England, viz-a-viz public policy, were relevant as they were codified in the provisions following Seddon 23 of the Contract Act; therefore, only they were brought under the umbrella of Section 23, was never accepted consistently and was given up long ago by this Court. A further reason may be added that in Pakistan's Constitutional set up, with the Objectives Resolution being its part, new situations with new principles of ?
Public policy with Islamic Ethos/spirit would have to be defined and applied.
Another possible objection that although the relinquishment has been found without consideration, yet this case is covered under Section 25 of the Contract Act, has yet to be disposed of. Section 25 declares all those agreements void which are without consideration except for the exceptions created by the law itself. Amongst the exceptions it is provided that whenever the agreement is expressed in writing and is registered and is made on account of natural love and affection between the parties standing in a near relation to each other or whenever it is promised to compensate wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compelled to do, in such like cases the agreement would be enforcible'contract.
Firstly, the contract which has been declared void under Section 23 of the Contract Act cannot be revived and given life, merely because it suffered from another serious infirmity; and which other infirmity Could be overcome by a resort to the afore-mentioned exceptions. Secondly, it might be very rare that a male co-heir would relinquish his right for a female heir. Experience shows that it has always been the reverse. The flow of love cannot be so un-natural. Therefore, the rules devised by the Privy Council for the Parda Nasheen ladies as contracting parties and the one referred to above emanating from the public policy, would lead to another principle: that in cases like the present^one there will be a presumption otherwise; namely, that it was not on * account of natural love but on account of social constraints which would be presently referred to, mat "relinquishment" has taken place. Similarly in the light of the entire discussion the second exception would also be not attracted as the presumption would be that such easy devices are always coined to justify relinquishment by females in favour of males, In the present case it appears to be jugglery that the petitioners claimed that the relinquishment by the-' respondent was in consideration of what they claim to have done in her two marriages as also for her maintenance.
And in addition, what again could be only a jest, that they spent some money on a criminal case which they had to fight on account of respondent being divorced by her first husband. All these claims are against the teachings of Islami --lnjunctions in the Holy Quran and the Saying of the Holy Prophet (P.B.U.H.),, wherein emphasis has been laid again and again on the best possible concern for and treatment of female relations. Even on this particular subject of the treatment of a divorce relation one finds enough material to show that if none else the parental home, which would in this case include the brothers, remains responsible for the maintenance of a needy divorce or widow. The Holy Prophet (P.B.U.H.) was eager to explain again and again the rights of daughters and the way their fulfilment takes one to the heights of piety. The Quranic Verse S. IV V.
34 declaring men as "protectors and maintainers" (See A. Yousaf Ali) one of the injunctions in this behalf, has already been referred to. It is unimaginable that a daughter enjoying "protection and maintenance" with the father till she is married, when is married and divorced, would lose this right-this of course is subject to some conditions, itcan clearly be'spelt out from the afore-cited injunctions that it would be her right to be treated by the father in the best possible manner in all these circumstances. And if beyond the bare necessity he does anything concerning the daughter, it has to be treated as gift and not something which would have to be returned by the daughter by compensating the father in the tangible property. The right of a sister, in cases like the jaresent [Vol.XXI Pervaiz Shaukat V. Mamoon Rashid C.C: 231 (Mian Allah Nawaz, J.) case, will have to be equated with that of a daughter, with all the necessary consequences. Even if there is some difference of opinion with regard to these injunctions the subject of the rights of close relations viz- a-viz, maintenance against well-to-do relations has been fully discussed in the case of Haji Nizam; wherein it was held with reference to many other Injunctions of Islam, that a needy close relations has a right of maintenance against another relation which in proper circumstances might be enforcible in law Courts. Therefore, all these considerations which have been pleaded in this case cannot at all be made basis of any relief to the petitioners or for that matter for validating the so-called "relinquishment".
After examining the effects and inter effects of Sections 23 and 25 of the Contract Act, on the touch stone of Muslim Jurisprudence, the learned Judge went on to say:- "The last argument of the learned counsel related to rights and interests of the subsequent alienness from the petitioners. They have not come before this Court nor they have been impleaded as respondents by the petitioners, it appears only the kith and kin; namely the brothers want to fight against the sister-respondent. Moreover this question having been settled by the lower Court the subsequent alienness did not raise any grievance before the higher Court-Nor as stated above have they come to this Court.
On questions of public policy, morality (Section 23), lack of consideration (Section 25) and undue influence (Section 16) viz-a-viz Parda Nasheen ladies it has to be reiterated and recapitulated that:- Firstly the relinquishment by the respondent if any, is against public policy and morality, which concepts are to be decided on the basis of Islamic teachings and principles. The respondent could not opt or contract out of this protection. Hence the act of relinquishment was void and ineffective.
Her inheritance, having accrued in her favour on her father's death remained intact at all the relevant times.
Secondly the question of lack of consideration loses much of its relevance on account of the firstly above. But had it been not so, the so-called exceptions in Section 25 not being applicable in the context of Islamic rules and teachings, would not have saved the disputed relinquishment.
Thirdly the relinquishment as such having been annulled, the same could not in this case operate as an ordinary alienation under the existing law for two, amongst others, reasons:- One, the so-called relinquishment of accrued inheritance, is neither recognised in Islamic Law of Transfers nor is it treated as a "transfer" under the Transfer of Property Act. If at all the nearest form being of "gift", none of its essential conditions are satisfied in a "relinquishment", so-called. If it is intended to be a gift, the latter's essentials would have to be gone through on principle and also as legal necessity, it cannot be by way of "relinquishment" simpliciter. Another form of alienation in this context would be by way of family settlement/arrangement; which it might be argued is permissible in Islam, it is a very important aspect of the controversy, but a very vital condition regarding existence of a bona fide family dispute to be resolved, or bona fide difficulty to be surmounted through such means, is lacking in this c.Se. Moreover the case-law on this point might require re-examination on the touchstone of. What has been discussed above.
Two, even if all the conditions for a valid transfer under the existing set and system of laws, after the due accrual of inheritance are satisfied, the protection afforded by Section 16 of the Contract Act against undue influence, to Parda Nashin ladies and others similarly placed parties and entrenched in the case-!Aw as also available . Under the Islamic law already discussed, would require so many conditions to be satisfied. Admittedly in such like cases the burden of proof is upon the alienee. The presumption exists regarding undue influence on prima facie satisfaction regarding inter se position of the parties and the state and status of the alienor.
The discussion in this behalf in Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) is instructive besides being valuable and useful. Had it been a case to be examined on that touchstone, the petitioners even then would have failed on account of undue influence, the presumptions regarding which in respondent's favour, have not been rebutted. This and other issues discussed and answered in this summarization will, it is clarified, in no way detract from the findings on the touchstone of Islamic principles, including those of public policy and morality, which would remain the main ration in the case."
2. As regards the second subject, it was masterly death with by a Division Bench of the Allahabad High Court in Mohan LaI Vs. Roop Kishore (AIR (35) 1948 All. 125). After examining Sections 8 to 11 of the Oath Act, his Lordship Yorke, J. (as he then was) observed:- "We notice that the matter rests entirely in the discretion of the Court. Even, if an offer is made by one party to abide by the statement made by his opponent on a special oath proposed by him such as is referred to in S. 8, the Court is not bound to proceed to inquire from the party to whom the offer is made whether that party is prepared to make the proposed oath or not. The Court may, if it thinks fit, refuse to proceed to make any such inquiry under S. 9 and the matter must and there.
The party making the offer has no right in law to ask the Court to communicate that offer to the opposite party. One the other hand, if the Court thinks fit, it may decide the proceed under S. 9 to ask the party to whom the offer is made whether or not he will make the proposed oath. If the Court exercises its discretion in favou; of making an inquiry as contemplated by S. 9, the procedure which it has to follow thereafter is governed by S. 10 which runs as follows:- "If such party or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court, may issue a commission to any person to administer it, and authorize him to take the evidence of the person to be sworn or affirmed and return it to the Court."
We notice again that even after the Court has made an inquiry under S. 9 it is not bound under the law to proceed to administer the proposed oath. The matter still lies in the discretion of the Court and it may refuse to administer the oath. If the Court proceeds in its discretion to administer the oath and to record the evidence of the person to whom the oath is administered, certain results follows which are provided for by S. 11 in the following terms:- "The evidence so given shall, as against the person who offered to be bound as afore-said, be conclusive proof of the matter stated."
The learned Judge went on to say:- "Now the question which arises for consideration is: What is the legal position of the parties when an offer made by one to the other is accepted by the latter upon an inquiry made by the Court under S. 9, Oaths Act? One view is that a building agreement comes into existence and the party making the offer has no right in law to resile from it. This view is fully supported by the case in 55 ALL. 298. We find ourselves in general agreement with this view but with this modification that though the party making the offer may not have any right in law to resile from the agreement, yet the matter being entirely in the discretion of the Court it is open to him to appeal to that discretion and to ask the Court not IVol.XXI Pervaiz Shaukat V. Mamoon Rashid C.C. 235 IMian Allah Nawaz, J.) to proceed to administer the oath proposed by him under S. 10 and if he can satisfy the Court that there are good grounds for refusing to exercise the discretion given by S. 1 0 to proceed to administer the oath, the Court may accept his prayer with the result-that the agreement though binding in its nature, may not be enforced against him. We find that there is overwhelming authority in support of the view which we have taken, In 18 ALL. 46 it was held that:- "When one party to a suit offers to be bound by the oath of the other party, and such other party accepts the proposal the party so offering to be bound should not be allowed to revoke his proposal except upon the strongest possible grounds proved to the satisfaction of the Court to be genuine grounds for revoking the proposal." In 29 ALL. 49 it was held that:- "Where a party to a suit has made either a reference to arbitration or a reference to the oath of a witness such as is provided for by S. 9, Oaths Act, 1873, he should not be allowed arbitrarily to withdraw from the reference."
In 22 Mad. 237 the Madras High Court made the following observations:- "There is nothing in Ss. 9 to 11 of the Act (the Oaths Act) which allows a party to retract after the opponent has accepted the proposal. The Act gives the Court a discretion to administer the oath or not, and if a party after agreeing to an oath satisfies the Court that there is good ground for retracting, the Court would probably exercise a wise discretion in refusing to administer the oath, but when a party puts forward frivolous reasons for retracting we think the Court is justified in administering the oath notwithstanding the retraction."
Similar observations were made by the Bombay High Court in 22 Bom. 281. The view expressed by the Madras High Court was accepted in its entirety by this Court in 49 ALL. 388. The Nagpur High Court arrived at the same conclusion in AIR 1937 Nag. 212.
In that case it was held that:- "A party which has offered to be bound by an oath is not entitled as of right, to withdraw that offer, but the Court may allow him to do so if it considers that there is ground for so doing; otherwise the Court should administer the oath."
The earlier view of the Madras High Court in 22 Mad. 234 was affirmed in the later case in A.I.R. 1938 Mad. 385, where it was held that:- "A challenger should not be permitted to resile after his offer had been accepted by the other party unless good ground is shown to the satisfaction of the Court by the challenger."
In AIR 9141 Lah. 173, Bhide J. Agreed entirely with the view taken by Niamat Ullah J. In 55 ALL. 298. The position which emerges from a consideration of all these cases is that an offer made by a party to a suit to abide by the statement of his opponent upon a special oath proposed by him become a binding agreement from which the party making the offer has no right in law to resile, but the carrying out of that agreement lies entirely in the discretion of the Court which may or may not proceed to administer the proposed oath as it thinks fit in the circumstances of the case before it.
The party making the offer has no right in law to force the Court to carry out the agreement by administering the proposal oath or to abstain from doing so, but, if he wants that the Court should not proceed to carry out the agreement, he can appeal to the Court's discretion under S. 10, Oaths Act, and it is open to the Court to grant his prayer if it is satisfied that there are good grounds for refusing to proceed with IVol.XXI Pervaiz Shaukat V. Mamoon Rashid C.C. 237 (Mian Allah Nawaz, J.) the agreement,
12. The view taken in Mohan Lai's case {supra) was approved by the Supreme Court in Atiqullah v.
Kafayatullah (1981 SCM R 162). The survey of the case-law on this subject will not be complete, without reference to Muhammad AH v. Muhammad Aslam (PLD 1990 SC 841). In this authority his Lordship Mr. Justice Rustam S. Sidhwa (as he then was) examined the question with a fresh, scholarly and invoguratively orientation. He said:- "In cases such as the present, where it is not possible to lay down guiding principles as to what facts or circumstances in a given case would induce a Judge to permit a party to resile from either the offer or the acceptance, it is necessary for the Court to guard itself and the parties against snap decisions taken by the parties in this connection. More often that not during examination of a party or a witness, or during heated discussion or argument, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept such a one, which otherwise in a state of cool deliberation he would not do.
The Court should be careful to see that such offer and acceptances are not recorded with the same snap speed with which they are made, for such offer and acceptances would not be founded in piety and grave and would not be made at the highest level of truth. For no sooner a person makes an offer to another to make a statement on the Holy Quran or his Holy Book whichever it may be with regard to any matter or fact, the effect of which will be to bind him in a particular manner for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and whilst making the statement'' on the Holy Book shall place himself figuratively before his Maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should, therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreement which otherwise do not appear to have been made by them in some reasonable frame of mind, or which appear to be the result of indecent*haste or which otherwise, from the apparent conduct of any of the parties, appear to be such as would make a mockery of the oath. The need for recording separate statement of the parties in respect of the offer and acceptance made in such cases deserves to be over emphasised for such a procedure would give parties some short time to think over the matter and extricate themselves from hasty decision, before appending their signatures to their statements. We do not wish to go down on the record as suggesting that this procedure must invariably be observed for there is no such legal compulsion, nor do we want to suggest that certain safeguards suggested here should be treated as rules of prudence to be observed in such cases because Sections' 9 to 1 1 of the Oaths Act do not admit of such intrusions, but we would say that all this may be treated as a note of caution, for a Court is as such bound to ensure the solemnity of these proceedings, as the parties are bound to respect them."
13. The ratio deducible from the foregoing examination is:-
(a) That ordinarily, the acts of relinquishment of rights of inheritance made by Muslim Females are violative of the rules of Muslim inheritance and are so opposed to public policy. These acts, theretore, void under Section 23 of the Contract Act;
(b) No doubt that the Muslim females have a right to dispose of their property like males. They are competent to dispose of their properties (both moveable and immovables) through gift, will or any other mode sanctioned by Muslim law of Transfers disposition/alienation of properties by Muslim females in favour of male heirs, are to be construed strictly within the parameters of Muslim law of Gift, Will and any other mode permitted by Muslim Jurisprudence. Such transfers must be strictly proved by the transferees within the ambit of Muslim law and Section 25 of the Contract Act; IVol.XXI Pervaiz Shaukat V. Mamoqn Rashid C.C. 239 (Mian Allah Nawaz, J.j
(c) That when a party accepts an offer made by its opponent or a witness to get a /is settled on the statement of that party/wrtness, made on special oath, this acceptance results into a binding contract between the parties. There is no provision in the Oath Act dealing with the right of such party to resile from the contract or evade its effect. No hard and fast rules are laid down by Courts to deal with that attempt. The Court had to decide each case on the peculiar facts and circumstances of case and had to see whether the contract is a result of fraud, coercion or some illegality on the face of the record;
(d) Frequently the party or the witness, while examination in cross-examination, may make such offers in the heat of passions and without deliberation, and the other party may accept that offer in such a vein, it should be remembered that a person who makes an offer to make a statement on special oath, figuratively puts himself before God Almighty and invites the divine wrath if he makes a false statement on special oath. Keeping in view the above position, the Courts must be slow and circumpect and should not hasten the parties to enter into such an agreement. The learned Judge should always give time to the parties to consider the matter and then record their statements.
This course should be followed by Court as a path of prudence and wisdom and any deviation from it, cannot be treated as of circumstance of vitiating nature.
14. Applying these rules to the facts and circumstances of this case, it is crystal clear that the house in dispute was owned by Sheikh Abdul Majeed and on his demise devolved upon one widow, two daughters and four sons. The case of both the contesting parties i.e. Pervaiz Shaukat on one hand Mamoon-ur- Rasheed and Haroon-ur-Rasheed on the other hand, was grounded upon the family settlement dated 12.4.1981 and then agreement deed dated 12.4.1981. It is the case of both the parties that the widow and daughters and relinquished their right of inheritance in the house in dispute. Inspite ot this claim neither the widow nor the daughters were impleaded as parties. Evidently the claim of relinquishment is contrary to rule laid down in Ghulam AH Vs. Ghulam Sarwar Naqvi's case {supra). The parties were then required to prove that the instrument of relinquishment dated 12.4.1981 fell within the ambit of Section 25 of the Contract Act. No such attempt was made by both the warring parties. Even the Courts below had not taken care of this aspect of the matter, it is a settled proposition of law that a person who ought to have been joined as parties and in whose absence no decree could be passed, are necessary parties and a suit without them is illegally constituted and cannot proceed. Reference be made to Hussain Bakhsh Vs. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1), East and West Steamship Co., Vs. Queensland Insurance Co. (PLD 1963 SC 663), Muhammad Sadiq Vs. Muhammad Rafiq (PLD 1985 SC 147), Muhammad Ashraf Vs. Azad Govt, of the State of Jammu & Kashmir (PLD 1985 SC (AJ&K)
102) and Mst. Maqbool Begum Vs. Gullam (PLD 1982 SC 46).
14. From the above resume of the facts it becomes thus clear that the widow and two daughters had a right in the property in dispute and suit pertaining to such property was not competent without impleading them. 0n this finding I have no hesitation in coming to conclusion that the suits filed by Pervaiz Shaukat and the suit filed by Haroon-ur-Rasheed were not competent. On this conclusion I have two options: first, to dismiss both the suits being incompetent; Or, secondly to remand the cases to the Trial Court with the direction to get the widow and the daughters impleaded and then to decide the matter afresh after hearing all the parties, in accordance with law. I am inclined to follow the last option.
15. There is yet another aspect of the matter. The statement of PW.2 Faiz-ur-Rehman made on special oath was contrary to express provisions of law. On the demise of Sheikh Abdul Majeed all the legal heirs had become the owners of their respective shares. Had the version of relinquishment been backed by some reality it is incomprehensible as to how Mst. Sakina (widow) could be invested with a right to receive the rent of the School premises which vested in four brothers The settlement package, so arranged by Faiz-ur-Rehman (PW.2) on special oath was clearly incomprehensible and suffers from mutual contradictions. This [Vol.XXI Abdul Hafeez V. Govt, of Puniab through Secy. C.C. 241 Local Govt, arid Rural Development, Lahore (Ch. Ljaz Ahmad, J.l being the position, the learned Appellate Court was not right in saying that the learned Trial Court was bound under the law to decide the suits in terms of statement made by Faiz-ur-Rehman (PW.2) on Holy Quran. Furthermore, it is not discernible from the record as to in what circumstances Faiz-ur-Rehman (PW.2) had made the offer and whether any opportunity wa.s given to the parties to reflect over this offer.
16. As a result of above discussion, I accept these three.Civil revisions, set aside.The decision of both the forums below. These cases are, accordingly, remanded to the learned Trial Court with the direction to implead Mst. Sakina Bibi (widow), Mst. Memoona Akhtar (daughter) and Mst. Masooda Akhtar (daughter) and then decide the case afresh after affording opportunity of hearing to all parties including the widows and daughters and in accordance with'law. The learned Trial Court, while deciding the cases afresh shall not be influenced by any factual observation made in this' decision. This decision has been rendered purely on a statement of law noted above. The parties shall be entitled to reiterate all the points urged before me before the Trial Court who shail determine the same in accordance with law. There shall be. No order as to costs. - 3 .