Parda nasheen lady case law.
مقدمے کا پس منظر
لاہور ہائیکورٹ، ملتان بینچ نے ایک اہم کیس میں فیصلہ سنایا جس میں پردہ نشین اور ناخواندہ گاؤں کی خاتون کے وراثتی حقوق کی بحالی کی گئی۔ یہ کیس ہمیں یہ یاد دلاتا ہے کہ معاشرتی اور قانونی انصاف میں خواتین کے حقوق کو خاص اہمیت حاصل ہے، خصوصاً جب وہ تعلیم سے محروم اور معاشرتی دباؤ کا شکار ہوں۔
مقدمہ دائر کرنے کی وجہ
مقدمہ مرحومہ مسٹ خاتون بیگم نے دائر کیا تھا۔ ان کا مؤقف تھا کہ ان کے بھائی مرحوم حیات علی نے ایک زبانی فروخت کی منوٹیشن کے ذریعے ان کی زمین پر ناجائز قبضہ کیا۔ خاتون بیگم نے یہ دعویٰ کیا کہ وہ کسی بھی ریونیو افسر کے سامنے پیش نہیں ہوئیں اور نہ ہی انہیں لین دین کی صحیح معلومات فراہم کی گئیں، اس لیے یہ منوٹیشن فراڈ پر مبنی ہے۔
ابتدائی عدالت کا فیصلہ
ابتدائی عدالت نے مقدمہ مسترد کر دیا۔ عدالت نے کہا کہ مقدمہ ضابطہ سول کے آرڈر کے مطابق دائر نہیں ہوا اور منوٹیشن قانونی طور پر رجسٹر اور منظور شدہ تھی۔ تاہم، خاتون بیگم نے اس فیصلے کے خلاف اپیل دائر کی۔ اپیل عدالت نے خاتون بیگم کے حق میں فیصلہ سنایا اور ابتدائی عدالت کے فیصلے کو رد کیا۔
عدالتی دلائل اور شواہد
عدالت نے مقدمے کا بغور جائزہ لیا۔ عدالت نے کہا کہ ابتدائی بوجھِ ثبوت خاتون بیگم پر تھا تاکہ یہ ثابت کیا جا سکے کہ لین دین فراڈ پر مبنی ہے۔ خاتون بیگم نے اپنی گواہی کے ذریعے یہ بوجھ پورا کیا اور معاملے کی تحقیق شروع ہوئی۔
عدالت نے نوٹ کیا کہ منوٹیشن کے حاشیہ گواہ، جو مرحوم حیات علی اور خاتون بیگم کے حقیقی بھائی تھے، عدالت میں پیش نہیں ہوئے۔ مزید یہ کہ کوئی دوسرا قابل اعتماد گواہ یا دستاویز فراہم نہیں کی گئی۔ لین دین کی رقم بھی خاتون بیگم کو ادا نہیں کی گئی۔
فراڈ اور مدت دعویٰ
عدالت نے واضح کیا کہ اگر معاملہ فراڈ اور دھوکہ دہی پر مبنی ہو تو مدتِ دعویٰ کا اطلاق نہیں ہوتا، خصوصاً جب مدعیہ ایک پردہ نشین اور ناخواندہ خاتون ہو۔ اس طرح کی خواتین کو اپنی زمین اور جائیداد کے حقوق پر خصوصی تحفظ حاصل ہے۔
قانونی اصول اور سبق
اس فیصلے سے کئی اہم قانونی اصول واضح ہوئے:
ناخواندہ اور پردہ نشین خواتین کے جائیدادی حقوق میں فراڈ کی صورت میں ان کے حقوق کو خصوصی تحفظ حاصل ہے۔
کسی بھی دستاویز پر دستخط یا انگوٹھے کے بغیر ان کے حقوق متاثر نہیں کیے جا سکتے۔
فائدہ اٹھانے والے پر بھاری بوجھِ ثبوت ہوتا ہے کہ وہ ثابت کریں کہ لین دین واقعی قانونی اور باخبر تھا۔
عدالتیں سماجی اور قانونی انصاف کے تقاضوں کو مدنظر رکھتے ہوئے فیصلے کرتی ہیں تاکہ خواتین کے بنیادی حقوق محفوظ رہیں۔
مقدمے کا اہم سبق
یہ فیصلہ معاشرتی انصاف اور خواتین کے حقوق کے تحفظ کے حوالے سے ایک اہم مثال ہے۔ اس سے واضح ہوتا ہے کہ قانونی نظام میں ہر فرد، خاص طور پر ناخواندہ اور معاشرتی طور پر کمزور خواتین، اپنے حقوق کے لیے عدالت میں رجوع کر سکتی ہیں اور انہیں انصاف مل سکتا ہے۔
اختتامی تبصرہ
مرحومہ خاتون بیگم کے کیس نے یہ بھی دکھایا کہ عدالتی نظام صرف قانون کی تشریح نہیں کرتا بلکہ سماجی انصاف اور انسانی حقوق کو بھی مقدم رکھتا ہے۔ ایسے فیصلے معاشرے میں خواتین کے حقوق کی حفاظت اور قانونی شعور بڑھانے میں اہم کردار ادا کرتے ہیں۔
Must read Judgement
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
Civil Revision No.419-D of 2018
Hayat Ali (deceased) through his legal heirs.
Versus
Mst. Khatoon Begum (deceased) through her legal heirs, etc.
J U D G M E N T
Date of Hearing:
25.10.2022.
Petitioners by:
M/s. Kanwar Intizar Muhammad
Khan and Rao Riyasat Ali Khan,
Advocates.
Respondent by:
Mr. Muhammad Khalid Mahmood
Ayaz, Advocate.
Anwaar Hussain, J.
Petitioner No.(i) is son, petitioners
No.(ii) to (v) are daughters and petitioner No.(vi) is widow of one Hayat
Ali who was also survived by proforma respondents No.1 and 2 as son
and daughter, respectively. Late Hayat Ali was the beneficiary of
impugned oral sale mutation bearing No.82 dated 29.04.1990
(hereinafter referred to as “the impugned mutation”) which was
challenged by predecessor-in-interest of the present respondents,
namely, Mst. Khatoon Begum (since deceased) who happens to be the
real sister of late Hayat Ali.
2.
The suit was instituted on 13.10.2015 by late Mst. Khatoon
Begum with the assertion that she is a simple, illiterate villager lady and
the impugned mutation is fraudulent as she never appeared before the
revenue officials for its registration and subsequent sanctioning. The
contesting written statement was filed by late Hayat Ali with the
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contentions, inter alia, that suit is not instituted in accordance with
Order VI, Rule 4 of the Code of Civil Procedure, 1908 (hereinafter
referred to as “CPC”); that the same is time-barred; and that the
impugned mutation was properly registered and sanctioned in
accordance with law and hence, the suit was liable to be dismissed. Out
of the divergent pleadings of the case, issues were framed. Evidence was
adduced by the parties and duly recorded where after the learned Trial
Court, vide judgment and decree dated 21.03.2016, dismissed the suit of
the respondent, inter alia, on the ground that Order VI, Rule 4, CPC has
not been complied with and that the possession of late Hayat Ali is duly
reflected through Khasra Girdawaries, brought on record as Ex-D.5 to
Ex-D.10. Appeal was preferred by late Mst. Khatoon Begum in which
proforma respondents No.1 and 2 who are children of late Hayat Ali got
recorded their conceding statement that they have no objection if the
appeal of late Mst. Khatoon Begum is accepted. The appeal preferred by
late Mst. Khatoon Begum was accepted, vide judgment and decree dated
17.02.2018, by the learned Additional District Judge, Kehror Pacca and
the findings of learned Trial Court were reversed. Hence, this civil
revision has been filed.
3.
Learned counsel for the petitioners submits that well-reasoned
judgment of the learned Trial Court has been upset without any cogent
reason inasmuch as the claim of late Mst. Khatoon Begum was timebarred in terms of Article 114 of the Limitation Act, 1908; that the issue
is not of inheritance but of an oral sale; that details of fraud in terms of
Order VI Rule 4, CPC has not been given; that revenue officials have
not been arrayed as party; that possession as a consequential relief has
not been claimed and hence, the suit was not competent; and that no one
except late Mst. Khatoon Begum appeared as PW-1 in support of her
claim and, while appearing as PW-1 she also contradicted her stance
inasmuch as in the plaint of her suit she stated that she went to the late
Hayat Ali claiming the share in crops whereas while recording her
testimony she stated that she went with the demand of return of her land,
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3
therefore, she has failed to discharge the burden that the impugned
mutation was based on fraud. Further asserts that on the other hand, one
of the marginal witness of the impugned mutation was the real brother
of late Hayat Ali and late Mst. Khatoon Begum who expired before
recording of evidence, which was the precise reason for his nonproduction that has been wrongly construed by the learned Appellate
Court below while passing the impugned judgment. Concludes that
conceding statement of proforma respondents No.1 and 2 were of no
value inasmuch as proforma respondent No.1 was himself attorney of
late Hayat Ali and in that capacity was forcefully contesting the suit,
instituted by late Mst. Khatoon Begum, and is estopped to take a
contradictory stance at the appellate stage. Learned counsel for the
petitioners place reliance upon “Muhammad Yaqoob v. Hameeda Begum
and 4 others” (2005 CLC 870), “Mst. Phaphan through L.Rs. v.
Muhammad Bakhsh and others” (2005 SCMR 1278), “Muhammad
Amir and others v. Mst. Beevi and others” (2007 SCMR 614), “Jamila
Khatoon and others v. Aish Muhammad and others” (2011 SCMR 222),
“Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal
Heirs” (PLD 2011 Supreme Court 657) and “Shah Muhammad v. Mst.
Khurshid Begum and others” (2016 MLD 135) in support of his
contentions.
4.
Conversely, learned counsel for the respondents submits that late
Mst. Khatoon Begum was an illiterate, villager and a pardanasheen
lady, who strived hard to get her lawful share of inheritance, which was
grabbed by late Hayat Ali in a clandestine manner through the impugned
sale mutation in his favour inasmuch as late Mst. Khatoon Begum never
appeared before any revenue officials for registration and attestation of
the impugned mutation and since late Hayat Ali was regularly paying
the share in crops, hence, the cause of action accrued only when there
was a categorical denial on part of late Hayat Ali to give the share and/or
return the land, whereafter the suit was immediately instituted, therefore,
the suit was not time barred. Adds that even otherwise, for the sake of
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arguments, if it is assumed that late Mst. Khtaoon Begum appeared
before the revenue officers for any purpose, being a pardanasheen lady,
she was entitled to an independent advice which was not available. This
fact alone renders the entire transaction dubious and the burden of proof
was on the petitioners being beneficiary of the same to prove that late
Mst. Khatoon Begum appeared and affixed her thumb impression on the
impugned mutation. Adds that no efforts were made on part of the
petitioners to get the thumb impression of the Mst. Khatoon Begum
compared through an expert. Places reliance upon “Muhammad Bakhsh
through Legal Heirs v. Muhammad Shafi and 8 others” (1997 SCMR
1218), “Muhammad Iqbal and another v. Mukhtar Ahmad through
L.Rs.” (2008 SCMR 855), “Chaudhry Manzoor Ahmed through Legal
Representatives and another v. Faisal Manzoor and 5 others” (2016
YLR 671), “Ghulam Farid and another v. Sher Rehman through LRs.”
(2016 SCMR 862), “Muhammad Yaqoob v. Mst. Sardaran Bibi and
others” (PLD 2020 Supreme Court 338) and “Faqir Ali and others v.
Sakina Bibi and others” (PLD 2022 Supreme Court 85) in support of
his contentions.
5.
Arguments heard. Record perused.
6.
Record reveals that specific allegations of fraud were leveled by
late Mst. Khatoon Begum/plaintiff as per contents of the plaint on the
score that she is a simple, illiterate and village lady falling under the
definition of pardanasheen lady. In civil matters, initial onus to prove
such alleged fraud and misrepresentation is on a person who alleges
such facts. In order to substantiate her version, late Mst. Khatoon
Begum appeared before the learned Trial Court as PW-1 and reiterated
her stance as contained in the plaint and hence, successfully discharged
the initial onus which shifted the burden of proof to late Hayat Ali
(predecessor of the present petitioners as well as proforma respondents
No.1 and 2). In case reported as Muhammad Yaqoob supra, the Hon’ble
Supreme Court held that an illiterate village woman is to be treated at
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5
par with pardanasheen lady and where a transaction involves anything
against her interest, it is imperative that impartial and objective advice
was available to her and that the nature, scope, implication and
ramifications of the transaction she was entering into, was fully
explained to her and she understood the same. In case reported as “Janat
Bibi vs. Sikandar Ali and others” (PLD 1990 SC 642) it has been held
that burden of proof in respect of a document purported to have been
executed by a pardanasheen lady affecting her right or interest in an
immovable property is on the person claiming the right or interest under
the document and it is for him to establish affirmatively that it was
substantially understood by the lady and it was really her free and
intelligent act. Moreover, it is settled law that an extra care and caution
has to be observed while executing an instrument from pardanasheen
lady. In the instant case, admittedly, the suit property was share of the
late Mst. Khatoon Begum in the ancestral property and late Hayat Ali
was her real brother and the beneficiary of the impugned mutation, who
was alive during the proceedings before the learned Trial Court but
never appeared in person, and executed a special power of attorney in
favour of his real son Muhammad Arif who appeared before the learned
Trial Court as DW-4. While there is no cavil to the proposition that a
party in a suit can always contest the same either directly or through an
attorney, however, in the instant case, matter is of legal as well as social
justice where a brother claims to have purchased the property from a
sister who is pardanasheen lady and therefore, it was significant that the
defendant himself should have appeared to face the cross-examination,
failure thereof could impel the Court to draw adverse interference. It is
pertinent to observe regarding explanation that late Hayat Ali was
suffering from any disability in terms of health has been offered by the
petitioner side but any evidence in support thereof has not been brought
on record. Simultaneously, this Court is mindful of the legal position
that non-appearance of a party in the witness box in itself may not
invariably lead to adverse inference as in certain cases, the facts and
C.R. No.
419-D/2018
6
evidence otherwise available on record may be sufficient to propel the
Court to reach a just conclusion. Therefore, this Court would also take
into consideration the non-appearance of the defendant himself and draw
adverse inference but would also consider and measure up the evidence
available on the record and apply its mind accordingly. Perusal of
available record depicts that neither any sale amount was received by
late Mst. Khatoon Begum as per entry of rapt roznamacha waqiati
(Exh-D.2) nor same was paid before the revenue officer concerned as
per endorsement of the impugned sale mutation. In case titled Ghulam
Farid supra, the Hon’ble Apex Court also held that inflexible rule in
case of transaction involving an illiterate village lady, inter alia,
includes the burden on part of the beneficiary to prove that the amount
of consideration equal to the value of the property was indeed paid to the
said lady and therefore, in the instant case said requirement has not been
met by the petitioners/defendants. It is imperative to note that only one
marginal witness, namely, Abbas Ali has been mentioned in the
impugned mutation, who is real brother of late Hayat Ali and late Mst.
Khatoon Begum. No other marginal witness has been mentioned in the
impugned mutation except one Ghulam Sarwar Lumberdar, who
identified late Mst. Khatoon Begum. Both marginal witnesses neither
appeared before the learned Trial Court to substantiate version of the
late Hayat Ali nor any application was filed for production of secondary
evidence if they were not available. Therefore, late Hayat Ali,
predecessor-in-interest of the petitioners, being the beneficiary of the
impugned mutation failed to produce cogent, reliable and confidence
inspiring evidence as per mandate of Article 17 read with Articles 70, 79
& 80 of the Qanun-e-Shahadat Order, 1984. Similarly, being beneficiary
of the impugned mutation, no attempt was made by the petitioners to get
comparison of the thumb impression of late Mst. Khatoon Begum either
before the learned Trial Court or the Appellate Court below, which fact
also goes against the petitioners and argument that late Mst. Khatoon
Begum should have filed an application for the comparison of her thumb
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419-D/2018
7
impression is also misconceived as the burden to prove the transaction
was on the petitioners being beneficiary and not on late Mst. Khatoon
Begum.
7.
As regards argument of learned counsel for the petitioners that the
revenue officials were not arrayed as party in the case as fraud is alleged
and such discrepancy is fatal to the suit of a plaintiff, it is imperative to
note that the same is also misconceived in the light of dicta laid down in
a most recent judgment of the Hon’ble Supreme Court, reported as
“Ghulam Muhammad v. Zohran Bibi and others” (2021 SCMR 19).
The Hon’ble Supreme Court of Pakistan while dealing with a similar
case clearly held that impleading revenue officials in every case was not
a rule of thumb and in case they are not impleaded by the parties, the
revenue officials can always be summoned by either side or if
considered necessary even as Court witnesses. Needless to mention that
purpose of arraying the officials as parties in such like cases is to
provide them an opportunity to participate and put forth their defence
against the allegations of fraud, which in the instant case has been
admittedly done insofar as the Patwari who was present at the time of
registration of the impugned mutation and its subsequent sanctioning
was in attendance as DW-3 and explained his point of view and
supported the petitioners/defendants whereas the Tehsildar who
purportedly sanctioned the mutation was admittedly not alive and hence,
secondary evidence was recorded qua his signatures on the impugned
mutation.
8.
Much emphasis has been laid down by learned counsel for the
petitioners that the impugned mutation was never brought on record in
the statement of late Mst. Khatoon Begum herself while appearing as
PW-1 and therefore, she cannot lay challenge to the same, rather the said
document was exhibited on the statement of her learned counsel. In this
regard, needless to mention that the petitioners are the beneficiaries of
the said mutation and said document is admitted on their part and in
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419-D/2018
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these circumstances it is not of any significance if the same is brought
on the record through the statement of counsel as admitted facts need
not be proved.
9.
Another dimension of the case is the status of the impugned
mutation in favour of late Hayat Ali. Needless to mention that in case of
“Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729),
Hon’ble Supreme Court held that it is settled law that entries in the
mutation registers are by themselves not conclusive evidence of the facts
which they purport to record. It is also settled law that any person who
claims title through a mutation and the said mutation is challenged, the
burden of proof of proving transaction embodied in the mutation is upon
him as the mutation by itself does not confer any title and the
beneficiary thereof is bound to revert to original transaction and prove
the same as held in case reported as “Muhammad Akram and another v.
Altaf Ahmad” (PLD 2003 SC 688). Perusal of evidentiary resume of the
case reveals that late Hayat Ali failed to prove the transaction underlying
the impugned mutation.
10.
Similarly, it has been vehemently argued before this Court as also
reflected in the impugned judgment passed by the learned Appellate
Court below that late Mst. Khatoon Begum/plaintiff had not prayed for
possession as a consequential relief, which admittedly is lying with the
respondents. In this regard, the learned Appellate Court has aptly held as
under:
“14. ….To such extent admittedly parties inter-se are
real brother and sister and suit property is an ancestral
property. Parties inter-se are co-sharers in the same
and possession of one or more co-sharers is presumed
to be possession of all. Reliance is placed on 1990
PLD SC 1. So, objection raised by learned counsel for
respondents/defendants is of no avail, whereas
regarding objection of limitation, suffice to conclude
that there is no limitation in case of fraud and misrepresentation as well as fraud would vitiate most
solemn proceedings.”
(Emphasis supplied)
C.R. No.
419-D/2018
9
Therefore, the contention that the possession of the suit property was
with the petitioners and the suit instituted in the year 2015 challenging
the impugned mutation stated to have been sanctioned in the year 1990
was beyond the limitation period, will not by itself make the suit timebarred. The cases relied upon by learned counsel for the petitioners, no
doubt, are based on well settled elucidations of law but the case in hand
is distinguishable mainly for the reason that an illiterate village lady who
happens to be married at the time of execution of impugned mutation
has been deprived from her share in ancestral property on the basis of
the impugned mutation when she was admittedly not accompanied by
her husband. Learned counsel for petitioners laid much emphasis that
the judgment of the Hon’ble Apex Court in case of Mst. Phaphan supra
is applicable to their case on all fours as long-standing revenue entries
carry presumption of correctness. However, the said judgment and
underlying facts are distinguishable and not supportive of the case of
petitioner inasmuch as the female in said case was duly represented by
her husband in the consolidation proceedings and her husband had put
his thumb impression during said proceedings in which the suit property
in said case was allotted to the defendants therein whereas in the instant
case situation is different altogether. Suit property in instant case is
share of late Mst. Khatoon Begum in her ancestral property unlike
property in dispute in case of Mst. Phaphan supra. At this juncture, it
would be apt to point out that the arguments of the petitioners’ side that
the learned Appellate Court had assumed on its own that late Mst.
Khatoon Begum was married at the time of recording/sanctioning of
impugned oral sale mutation is also shallow and without substance.
Even if it is assumed that she was unmarried at that time and no advice
of husband could be made available, this fact in itself places even higher
and heavier burden of proof on the beneficiary of the impugned
mutation to prove the genuineness of transaction given the fact that late
Mst. Khatoon Begum was unmarried sister of the beneficiary, whose
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419-D/2018
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father had passed away and she was dependent on her brothers regarding
her worldly affairs being an illiterate village woman. As already
observed, the legal status of the transaction involving property of the
pardanasheen lady in general and that regarding the ancestral property
in particular has been subject of deliberation by the Superior Courts
including Hon’ble Supreme Court and jurisprudence is well settled. The
Hon’ble Supreme Court of Pakistan in case titled “Khair Din v Mst
Salaman and others” (PLD 2002 SC 677) held that no benefit could be
derived by those claiming rights against female heirs based on
fraudulent transactions. Thus, a heavy burden was on the petitioners
being beneficiary of the transaction/mutation involving illiterate village
lady and the petitioners fail to discharge the same. Ironically enough, the
petitioner counsel instead of arguing that how and to what extent, the
burden has been discharged being beneficiary, have been arguing in a
misdirected manner that the respondent lady failed to discharge burden
by claiming the fraud which was indeed erroneous on the part of the
petitioners. At this juncture, it is also imperative to note that in an
overwhelmingly patriarchal society like ours, there is a wide spread
social practice to deprive the females from their legal and shari share in
inheritance, which the Hon’ble Apex Court has always deprecated. Such
deprivation is generally affected through instrument such as gift/tamleek
and mutations sanctioned by practicing fraud or exercising undue
influence on the females and are generally result of exploitation,
emotional or otherwise of females, which takes away element of free
consent from such contracts as required under the Contract Act, 1872.
The Hon’ble Supreme Court of Pakistan in a recent judgment reported
as “Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021
SCMR 179) held such agreements to be against the public policy, which
precisely is the position in the instant case. Late Mst. Khatoon Begum
admittedly, was villager and an illiterate lady and there is nothing on
record to dislodge that she was not married before sanctioning of the
impugned mutation and independent advice was available to her as no
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male member of her in-law’s family or her husband verified her, which
further strengthen the version of the respondents and is one of the cogent
reasons that persuaded the learned Appellate Court below to overturn
the findings of the learned Trial Court.
11. Perusal of the record also reveals that the learned Appellate Court
has properly appreciated the entire evidence available on the record as
well as the law on the subject while upsetting the findings of the learned
Trial Court. The Hon’ble Supreme Court of Pakistan has repeatedly held
that in the event of a conflict between the judgments of the learned
Courts below, preference should be given to the views of the Appellate
Court. Cases reported as “Enayat Sons (Pvt.) Ltd. v. Government of
Pakistan through Secretary, Finance and others” (2007 SCMR 969)
and “Muhammad Hafeez and another v. District Judge, Karachi East
and another” (2008 SCMR 398) are referred in this regard.
12. In view of the above discussion, this Court is of considered view
that the judgment of the learned Appellate Court is in accordance with
trite law and not irregular or erroneous as pleaded on behalf of the
petitioners and is thus to be preferred over the judgment of the learned
Trial Court. As a natural corollary, no interference is required and this
Civil Revision is therefore, dismissed with no order as to cost.
(ANWAAR HUSSAIN)
Judge
Approved for reporting.
Judge