' HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against the judgment and decree dated 10-6-2002 in Civil Revision No,1 of 1995 (Syed Sabir Hussain and 5 others v. Khawas Khan and 15 others) passed by learned Judge in Chambers of the Peshawar High Court, Circuit Bench Abbotabad, whereby the said civil revision was allowed, thereby judgment and decree, dated 27-9-1994 passed by learned District Judge, Abbotabad were set aside and the judgment and decree dated 25-4-1993 passed by learned Civil Judge, Abbotabad were restored.
2. 'Brief Facts of the case are that the respondent Syed Sabir Hussain and five others filed Suit No,299/1 of 1975 against Zardad and three others for seeking declaration that they were owners of suit property and as such Mutation Entry No,7186, dated 15-11-1944, Mutation No,2906 dated 23-1- 1974, registered deed No,338, dated 23-7-1974, Mutation No,7048, dated 31-7-1975 in respect of land in suit were secured by fraud and collusion, therefore, same were illegal, void and ineffective upon the rights of the respondents/plaintiffs and sought relief of possession of suit property after demolition. The said suit was contested by filing written statement by the petitioners/defendants.
The trial Court, after framing issues and recording evidence of the parties decreed the suit of the respondents/plaintiffs on 25-4-1993. Against the said judgment and decree, Appeal No,55/13 of 1993 (Khawas and others v. Sabir Hussain) was preferred, which was accepted as per judgment and decree dated 27-9-1994 passed by District Judge, Abbotabad, whereby suit of the respondents/plaintiffs was dismissed. The respondents/plaintiffs preferred Civil Revision No,1 of 1995 which was allowed as per impugned judgment, dated 10-6-2002 whereby the judgment and decree of the Civil Judge, Abbotabad, dated 25-4-1993 were restored decreeing the suit of respondents/plaintiffs and those of District Judge, Abbotabad were set aside.
3. We have heard the learned counsel for the petitioners and perused the record minutely.
4. Contention of learned counsel for the petitioners is that the learned Judge in Chambers and the Civil Judge, Abbotabad have misread the evidence and also misconstrued the provisions of Qanun-e-Shahadat with regard to the onus having been wrongly placed upon the petitioners to prove execution of deed and further that the suit being barred by time was erroneously held to be not barred by limitation. Learned counsel for the petitioners has placed reliance upon Kalyan Mal v.
Ahmad Uddin Khan and another AIR 1934 PC 208.
5. We do not find any substance and merit in the said contention.
6. The case of the respondents/plaintiffs is that suit-land initially belonged to their predecessor-in- interest Mubarak Shah and on his death, inheritance Mutation No,1721 was attested on 12-7-1921 in the names of Mst. Piari Jan mother of the respondents/plaintiffs and Sumandar Jan, maternal- aunt of the respondents/plaintiffs, but the entire property was in possession of Mst. Piari Jan mother of the respondents/plaintiffs when one Samundar Khan the defendant No,7 (now dead) represented through his L.Rs, respondent No,20(i) to (ix) a distant relative of the respondents/plaintiffs, collusively produced a fictitious woman alleging her to be Piari Jan and got executed a Registered Deed No,108, dated 5-4-1938 in favour of Abdullah the predecessor-in- interest of defendants Nos.2 to 6. Later on he again produced a fictitious woman in place of Mst.
Piari Jan and got attested Mutation No,7186 on 15-11-1944 in favour of Zardad and Allah Dad the predecessor-in-interest of respondents/defendants Nos.2 to 6 when in fact Piari Jan, the mother of the respondents/plaintiffs had never appeared for the registration and execution of deed before the Sub-Registrar and Revenue Officer in connection with the registration and attestation of mutation respectively and during those days Piari Jan the mother of plaintiffs was wife of Haider Shah, whereas she was shown in the mutation entry and the registered deed as wife of Sumandar Shah, therefore, such mutation entry based on void registered deed was invalid and ineffective upon the rights of the respondents/plaintiffs.
7. The learned Civil Judge as per his judgment and decree held that suit was within time and that land in suit belonged to the predecessor-ininterest of the respondents/plaintiffs while the petitioners/defendants were only tenants-at-will but later on one Samundar Shah defendant No,7 produced a fictitious woman alleging her to be Mst. Piari Jan wife of Sumandar Shah, when in fact Mst. Piari Jan was the wife of Haider Shah, before the Sub-Registrar and Revenue Officer for registration and execution of deed and thereafter mutation entry in the Revenue Record respectively in favour of the petitioner's predecessor Abdullah and petitioners/defendants Nos.1 to 6 was made, therefore, said deed andmutation entry did not confer any right and title upon the petitioners/ defendants Nos.1 to 6. The First Appellate Court reversed the judgment and decree of the learned Civil Judge holding that Mst. Piari Jan had got executed the deed and registered in favour of Abdullah predecessor-ininterest of defendants Nos.1 to 6 when Zardad and Allandad the sons of Abdullah got ownership rights from Piari Jan on the basis of Mutation Entry No,7186 attested on 15-11-1944. It was further held by the First Appellate Court that registered deed Exh.P.W.3/2 was a notice to the public-at-large and Mst. Piari Jan was identified before the Sub-Registrar by Abdul Jabar Khan Lumbardar and further that the document being more than thirty years old could not be discarded. It also held that suit filed was not within time and that Mst. Piari Jan validly transferred her rights in the suit-land through registered deed in favour of Abdullah predecessor- in-interest of the petitioners. Learned Judge in Chambers in the impugned judgment reversed the decision of First Appellate Court holding that Mst. Piari Jan being Pardanasheen lady onus to prove the execution of deed was upon the petitioners/defendants which they failed to discharge and further that a portion of property was thereafter sold to Khawas Khan and Barkhurdar but since both documents Exh.P.W.3/2 and Exh.P.W.3/1 were based on misrepresentation and fraud, therefore, the transfer in favour of Khawas Khan, Burkhurdar and the petitioners were also invalid. So far the question of limitation, the learned Judge in Chambers by placing reliance upon decision of this Court reported in case Samar Parvaiz v. B.I.S.C.E. PLD 1971 SC 838 held that suit was within time. The learned Judge in Chambers also concurred with the findings of trial Court to the effect that execution of deed Exh.P.W.3/2 and Mutation Exh.P.W.3/1 were based on misrepresentation and fraud, therefore, transfer in favour of the pctitioners/respondents was invalid and no title had passed on to them.
8. We have found after minute scrutiny of evidence on record that the learned Judge in Chambers has properly and correctly appreciated evidence and has rightly affirmed the findings of the learned Civil Judge after taking due care and caution that in case of Pardanasheen lady, the party placing reliance upon the document would have to prove execution of said document that the Pardanasheen lady understood the terms of the deed and the deed was read over and explained to her. This Court has also time and again held that in case of illiterate Pardanasheen lady, it must be shown that deed was read over to her and the terms of the same A were adequately explained to her and Court has to be cautious to see that the burden is satisfactorily discharged by the party in whose favour the deed was allegedly executed. It was necessary for the petitioners/ defendants to bring on record that Pardanasheen lady/executant was free and intelligent to execute the deed and Court has to come to definite conclusion that transaction through the deed was understood by her notonly from the evidence in the case but also from the facts and circumstances of the case. In the instant case it may be observed that defendant No,7 who was distantly related to the Pardanasheen lady, Piari Jan, therefore she had trust and confidence in him who had taken undue advantage of the said illiterate Pardanasheen lady and betrayed her confidence by practising fraud upon her so much so that she was neither produced before Sub-Registrar nor before Revenue authorities and instead a fictitious lady was introduced to pose as Piari Jan. No presumption of knowledge of the contents of allegedly executed deed by Pardanasheen lady Mst.
Piari Jan could he drawn in favour of the defendants in the circumstances of case. Mere fact that deed is registered would not establish that it was in fact executed by the stated executant viz. Mst.
Piari Jan unless reliable and satisfactory evidence is led to prove the said fact and that contents of said deed were duly explained and understood by her and that an independent person had identified the lady to be the same lady who owned the suit-land. Reference may be made to (i)
Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 wherein this Court at pages 646 to 649 observed as follows:-- "As all the Courts held that the petitioner was an illiterate Pardahnashin lady, Mr. Shaukat submitted that the burden of proving the genuineness of the sale was on the respondents. This is correct and as observed by the Privy Council in Kali Bakhsh Singh v. Ram Gopal Singh 41 Indian Appeals 23, the law about transactions with Pardahnashin ladies:-- "demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. In such cases it must of course be established that the deed was not signed under duress. But arose from the free and independent will of the grantor. The law as just stated in too well-settled to be doubted or upset..."
' But as we observed in dismissing the petitioner's appeal, the High Court had observed that the petitioner could have obtained the advice of the male members of her family and therefore, Mr. Shaukat submitted that this view is based on a misreading of evidence, because it was not in dispute that the petitioner was not living with her husband because of differences with him. In this background the submission was that the view taken by the First Appellate Court and the High Court was contrary to the principles laid down by the Privy Council in the observations quoted."
13. We have heard Mr. A.R. Shaukat for the appellant and Ch. Khalilur Rehman and Maulvi Sirajul Haq for the respondents.
14. It is well-settled that the question whether a lady is a Pardahnashin lady is a question of fact (See Bank of Khulna Ltd. V. Jyoti Prokash Mitra and others AIR 1940 Privy Council 147). It is also well- settled that the burden of proof in respect of a document purported to have been executed by a Pardahnashin woman affecting her right or interest in the immovable property is on the person claiming the right or interest under the document. It is for him 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. Here we may quote the observation of Sir George Lowndes in (Valluri) Ramanamma v. Marina Virania AIR 1931 Privy Council 100:-- "The law as to disposition of the property by Pardahnashin ladies has been discussed by the Board on many occasions. It is for the person claiming the benefit of any such disposition to establish affirmatively that it was substantially understood by the lady and was really her free and intelligent act. If she is illiterate, it must have been read over to her; if the terms are intricate they must have been adequately explained, and her degree of intelligence will be a material factor; but independent legal advice is not in itself essential; se per Lord Sumner in Faridunnisa v. Mukhtar Ahmad AIR 1925 PC 204."
15. Reference may also be made to some more cases on the above question:--
(i) In Shambati Koeri and others v. Jago Bibi 29 Indian Appeals 127, though the mortgage bond was read out to the respondent, there was no evidence that it had been explained and that she had understood it. It was observed at page 131 of the report as follows:-- "It is well-known rule of this Committee that in the case of deeds and powers executed by Pardahnashin ladies, it is requisite that those who rely upon them should satisfy the Court that they had been explained to and understood by those who executed them: Sudish Lal v. Mussummat Sheobarat Kunwar LR 8 Ind. Ap. 39,
43. From the preceding observations it is, in their Lordships' opinion, clear that there is a want of satisfactory evidence of that kind in the present case."
(ii) In Mati Lal Das v. Eastern Mortgage and Agency Co. Ltd. And others AIR 1921 PC 118, it was held by the Privy Council at page122 of the report as follows:-- ' As has been said, Priya Moyi was a Pardahnashin lady. The Board has always held that the circumstances, under which a Pardahnashin woman agrees to sell or mortgage property in which she is interested, must be carefully examined in order to ascertain that she had independent advice and that the lady had sufficient intelligence to understand the relevant and important matters, that she did understand them as they were explained to her, that nothing was concealed, and that there was no undue influence or misrepresentation. Se Sunitabala Debi v. Dhara Sundari Debi Chowdhurani (1919) 47 Cal.
175.
(iii) In Shrimati Saratkumari Dasi v. Amullyadhan Kundu and others 1923 PC 13, Lord Atkinson rules:-- "According to the principles which have always guided the Courts in dealing with sales or gifts made by Pardalmashin ladies the strongest and most satisfactory proof ought to be given by the person who claims under a sale or gift from them, that the transaction was a real and bona fide one and was fully understood by the lady whose property is dealt with In Shampati Keori v. Jago Bibi (supra), Sir Andrew Scoble said; "It is a well-known rule of this Committee that in the case of deeds and powers executed by Pardahnashin ladies it is requisite that those who rely upon them should satisfy the Court that they have been explained to and understood by those who executed them."
(iv) In Mst. Fairdunnisa v. Munshi Mukhtar Ahmad and another 1925 PC 204, Lord Sumner at page 209 of the report observed as follows:- "The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it. Wajid Khan's case (1891) 18 Cal. 545, Sunitabala Debi's case (1919) 46 Ind. App.
272.
' Proceeding further the learned Lord observed:- "Again the question arises how the state of the settlor's mind is to be proved. That the parties to prove it are the parties who set up and rely on the deed is clear. They must satisfy the Court that the deed has been explained to and understood by the party thus, under disability, either before execution, or after it, undercircumstances which establish adoption of it with full knowledge and comprehension. Sundisht Lal's case (1881) 7 Cal. 245: Sham Koer's case (1902) 29 Cal. 664; Sajjid Hussain's case (1912) 34 All.
455. Further the whole doctrine involves the view that execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind of the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained. If it is in a language which she does not understand, it must, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend on the circumstances. Length, intricacy, the number and complexity of the dispositions, or the unfamiliarity of the subject-matter, are all reasons for requiring an increased amount and efficiency of explanation. Thus, a matter not likely to attract the attention of the executant in itself ought not be relied on as binding, unless her attention has been directly drawn to it (Sham Koer's case (1902-03) 29 LA. 137):"
16. The above rule applicable to Pardahnashin ladies has been extended to ignorant and illiterate women. Reference may be made to Graham, J.'s dictum in Chainta Dasya v. Bhalku Das AIR 1930 Cal. 591, which is as follows:--- "The rule of law so far as Pardahnashin women is concerned is well-known and has been clearly laid down in many decisions of the Privy Council. It is true that most of those decisions relate to the case of Pardahnashin ladies. We have not been referred to any case in which the principle has been extended to the case of other women who do not come within that class; but that does not seem to be any reason why a rule which is applicable to Pardahnashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not apply to, the case of a poor woman who is equally ignorant and illiterate and is not Pardahnashin simply because she does not belong to the class. If this view of the matter were adopted the effect clearly would be to confer an unfair advantage upon rich women as compared with poor women. The object of the rule of law is to protect the weak and helpless, and it should not, in my judgment, be restricted to a particular class of the community."
17. It would be of advantage if the observations of Mitter, J. In thesame case are also quoted here:-- "It appears and it is not disputed that the plaintiff is an illiterate village woman. She is not in the strict sense of the term Pardahnashin woman and the question arises whether the same protection which is thrown round a transaction entered into with a Pardahnashin woman should be extended to the plaintiff in the present case. It is true that outside the class of regular Pardahnashin women it must depend in each case on the character and position of the individual woman, whether those who deal with her are or are not bound to take special precautious that her action should be intelligent and voluntary and to prove that it was so in case of dispute. That was laid down by the Judicial Committee of the Privy Council in the case of Hodges v. The Delhi and London Bank Ltd.
(1901) 23 All.
137. So even in the case of woman who is outside the regular Pardahnashin class it is for those who lived with her to establish that she had the capacity of understanding the transaction that was entered into and that she entered into the transaction voluntarily and with full knowledge and import of what the transaction meant".
18. As to the question whether the appellant is an illiterate Pardahnashin lady there are concurrent findings of the Courts below that she is so which have been confirmed by the High Court and, therefore, evidence on this point need not be discussed."
(ii) Parikh Atmaram Maneklala v. Bai Hira PLD 1948 PC 40 at page 42-43 as follows:-- "The finding of the High Court is that there is no reliable evidence produced by the appellant to show that the respondent came to know the true nature of the deed before March, 1930, when she met her solicitor in Bombay. It cannot be said that the Subordinate Judge made a similar finding, but there is no finding by him inconsistent with this finding of the High Court. The Subordinate Judge considered that the respondent had the means of knowing the true nature and import of the deed as soon as she received a copy of it in August, 1926, and that if she had read the document then she would have understood it. It is true that an intelligent and attentive reader of the document might have appreciated its true meaning and effect but the law has accorded to persons in the position of the respondent a high degree of protection in their dealings with persons with whom they contract. In Hem Chandra Roy Chaudhury v. Suradhani DebyaChaudhurani (1) it was held by the Board that a Pardahnashin woman of considerable business capacity was not bound by a mortgage agreement which was read but not explained to her before she signed it, because she did not understand that she was making herself personally bound to repay the borrowed money. In that case the transaction was between strangers, whereas in the present case the appellant owed a duty of explanation not merely as a stranger transacting with a Pardahnashin woman in a manner prejudicial to her interests but also as a father-in-law transacting with a daughter-in-law resident in his house and under his protection. It is for him to prove the date at which she in fact came to understand the true nature of the transaction which ought to have been explained to her by him and it is not enough for him to show merely that she had an opportunity of reading the document and that its terms were not complex or obscure.
' Their Lordships are, therefore, of opinion, agreeing with the High Court, that the Subordinate Judge was in error in holding that the limitation began to run in August, 1926, or at any date earlier than March, 1930."
(iii) Hawa v. Muhammad Yousaf and others PLD 1969 Kar. 324 at page 333-34(c) para.20,
(iv) Mst. Bashah Begum v. Ghulam Rasul and 4 others PLD 1991 SC 1140,
(v) Mst. Hafiza Bibi v. Ali Hussain and others 1994 SCM R 1194,
(vi) Muhammad v. Mst. Rehmon 1998 SCM R 1354,
(vii) Amirzada Khan and others v. Itbar Khan and others 2001 SCM R 609,
(viii) Ghulam Muhammad v. Farooq Ahmed and others 2002 SCM R 1801.
9. There is no cavil about law laid down in Kalyan Mal v. Ahmad Uddin Khan and others AIR 1934 PC 208 relied upon by the learned counsel for the appellants. The stated case also supports the case of respondents and is of no assistance to the appellants's case, considering that it has been held in the said' case as well that in the case of a document executed by a Pardanashin woman, it would not be sufficient to show that the document was read B out to her but it must further be proved that she understood its nature and effect.
10. So far the bar of limitation in respect of the suit, learned Judge in Chambers has placed reliance upon the decision of this Court (i) Samar Pervaiz v. B.I.C.S. PLD 1971 SC 838, wherein this Court at page C 845 held that lapse of time would not sanctify the action based on fraud and misrepresentation. Reference may also be made. To (ii) Fatahuddin v. Zarshad and others 1973 SCM R 248, wherein this Court in the cited case of fraud held that time would run from the date when the right to sue would accrue to the plaintiff. This view was followed in the case of (iii)
Bakhsha and others v. Ghugatta 2002 SCM R 1353. In the instant case the cause of action accrued to the respondents when they came to know of fraud and misrepresentation was practised and committed upon their predecessor's viz. Mst. Piari Jan right and interest in respect of land in suit, and the deed Exh.P.W.3/2 thereby secured by fraud and misrepresentation, was void, document and also Mutation Exh.P.W.3/1, consequently no right/title/interest passed on in favour of the petitioners/defendants' predecessor-in-interest, therefore, the learned Judge in Chambers was right in holding that the suit was within time.
11. We do not find merit in the contentions of learned counsel for the petitioners considering that the learned Judge in Chambers has correctly and rightly affirmed the findings of learned trial Court. It may be observed that there was neither misreading nor any misconstruction of law to the finding/conclusion arrived at by the learned Judge in Chambers in the impugned judgment, hence same cannot be interfered with by this Court. Accordingly leave to appeal is declined and the petition is. Dismissed.