High Court Verdict on Pardanasheen Women & Property Protection in Pakistan.
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| Parda nashin lady case law |
لاہور ہائی کورٹ فیصلہ: Pardanasheen خواتین اور جائیداد کے تحفظ کے اصول
دادی نے کہا کے نواسے نے والد کے ساتھ مل کر دھوکے سے انتقال کروایا۔پوتا دادی سے کیس ھار گیا۔
اگر ثبوت موجود نہ ہو تو لین دین کالعدم قرار پائے گا
🔹 خلاصہ
دادی (Irshaad Bibi) جائیداد کی اصلی مالک ہیں
Mutation دھوکہ دہی پر مبنی تھا
Petitioner کے دعوے کی بنیاد کمزور تھی
عدالت نے عمر رسیدہ اور غیر تعلیم یافتہ خواتین کے تحفظ کے اصول کو سامنے رکھتے ہوئے فیصلہ دیا
جی ہاں، ارشاد بی بی نے الزام لگایا کہ محمد عمر فاروق اور ان کے والد نے دھوکہ دہی کے ذریعے ان کے نام پر پلاٹ کا انتقال کروا لیا تھا۔ ان کا دعویٰ تھا کہ وہ نہ تو پلاٹ بیچنے پر راضی تھیں اور نہ ہی انہوں نے کوئی ادائیگی وصول کی تھی۔
یہ کہانی محمد عمر فاروق اور ارشاد بی بی کے درمیان ایک متنازعہ معاملے کی ہے۔
ارشاد بی بی، ایک بزرگ اور ان پڑھ خاتون، نے اپنے نواسے محمد عمر فاروق اور ان کے والد پر الزام لگایا کہ انہوں نے دھوکہ دہی کے ذریعے اس کے نام پر ایک رہائشی پلاٹ کا انتقال کروایا۔ ارشاد بی بی کا کہنا تھا کہ نہ تو اس نے پلاٹ بیچا تھا اور نہ ہی کسی قسم کی ادائیگی وصول کی تھی، اور اس معاملے میں اس کی کوئی معلومات نہیں تھی۔
سول جج نے اس مقدمے کی سماعت کے بعد ارشاد بی بی کے حق میں فیصلہ دیا اور انتقال کو منسوخ کر دیا، کیونکہ یہ ثابت ہوا کہ پلاٹ کا انتقال دھوکہ دہی اور غلط بیانی پر مبنی تھا۔ محمد عمر فاروق نے اس فیصلے کے خلاف اپیل کی، لیکن اضافی ضلعی جج نے بھی اس اپیل کو مسترد کر دیا۔
نواسے محمد عمر فاروق نے لاہور ہائی کورٹ میں نظرثانی کی درخواست دائر کی،
لیکن عدالت نے اس درخواست کو مسترد کرتے ہوئے نیچے کی عدالتوں کے فیصلوں کو برقرار رکھا، اور یہ فیصلہ دیا کہ درخواست گزار نے فروخت کے تمام دعوے ثابت کرنے میں ناکامی دکھائی۔ اس طرح، ارشاد بی بی کے حق میں فیصلہ برقرار رہا، اور محمد عمر فاروق کی درخواست مسترد کر دی گئی۔
لاہور ہائی کورٹ نے 2 ستمبر 2024 کو محمد عمر فاروق کی نظرثانی کی درخواست مسترد کر دی،
جو کہ نیچے کی عدالتوں کے فیصلوں کو چیلنج کر رہے تھے۔ اصل مقدمہ، جسے ارشاد بی بی نے دائر کیا تھا، میں ایک رہائشی پلاٹ کے انتقال کو منسوخ کرنے کی درخواست کی گئی تھی، جس پر الزام تھا کہ محمد عمر فاروق اور ان کے والد نے دھوکہ دہی کے ذریعے اس انتقال کو درج کروایا تھا۔ سول جج کا فیصلہ اور اس کے بعد اضافی ضلعی جج کا اپیل مسترد کرنا برقرار رکھا گیا۔
عدالت نے کہا کہ درخواست گزار نواساثابت کرنے میں ناکام رہے کہ فروخت کی لین دین صحیح تھی یا قیمت ادا کی گئی تھی،
خاص طور پر چونکہ مدعی ایک ان پڑھ اور بزرگ خاتون تھیں جو محمد عمر فاروق پر منحصر تھیں۔ عدالت نے اس بات پر زور دیا کہ پردہ نشین یا ان پڑھ خواتین کے معاملات میں دھوکہ دہی یا گمراہ کرنے کے الزامات کو چیلنج کرنے کے لیے مضبوط ثبوت کی ضرورت ہوتی ہے۔ درخواست گزار کے اس ثبوت کی کمی نے درخواست کو مسترد کروا دیا۔
نتیجہ
عدالت نے نیچے کی عدالتوں کے فیصلوں میں کوئی غلطی نہیں پائی اور ان کے فیصلوں کی تصدیق کی۔نواسے کی درخواست خارج کر دی۔
Must read Judgement
M No. HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
C.R. No.13867of 2024
Muhammad Umar Farooq Versus Irshaad Bibi
Sr.No. of order/
Proceeding
Date of order/
Proceeding
Order with signature of Judge, and that of parties of counsel, where
necessary
02.9.2024
Mian Tariq Hussain, Advocate for
petitioner.
This revision petition is directed
against judgment and decree dated
03.10.2023 and 31.1.2024 by which the
suit of the respondent was decreed and
petitioner’s appeal thereagainst was
dismissed.
2. Respondent instituted a suit for
declaration and cancellation of sale
mutation No.672 dated 07.11.2018 with
regard to a residential plot in ihata No.74/1
at chak No.334 GB, Pir Mahal District
Toba Tek Singh. It was alleged in the
plaint that the respondent plaintiff was an
octogenarian widow who did not have any
male heir and that her maternal grandson,
the present petitioner Muhammad Umar
Farooq, in collaboration with his father
Majid Ali had,
by fraud and
misrepresentation, got the mutation of sale
C.R. No.13867 of 2024
-2-
entered qua her property in his favour
showing alleged
consideration of
Rs.3,50,000/- which sale was neither ever
entered into by the respondent/plaintiff nor
was any such payment made or received
whatsoever and that in the circumstances
the mutation was liable to be cancelled
being a product of fraud
and
misrepresentation. The petitioner filed a
contesting written statement in which the
contents of the plaint were denied and it
was asserted that the respondent had in
fact alienated the property to him by way
of sale for Rs.3,50,000/- which amount
was paid and received as consideration and
that the petitioner as a result had become
absolute owner and that the suit was
brought without cause and with mala fide.
Out of divergent pleadings the following
issues were formulated:
“1. Whether the plaintiff is owner in possession
over the suit property and impugned mutation
No.672 dated 07.11.2018 is illegal, against law
and facts, fraud, contusive and in-effective
upon the rights of the plaintiff and are liable to
be concealed? OPP
2. If above issue is answered in affirmative, then
whether the plaintiff is entitled for decree of
declaration, cancellation of mutation and
permanent injunction as prayed for? OPP
3. Whether plaintiff has no cause of action and
locus standi to file instant suit? OPD
C.R. No.13867 of 2024
-3-
4. Whether the suit is not maintainable in its
present form? OPD
5. Whether the plaintiff is estopped by her words
and conduct to file this suit? OPD
6. Whether the suit of the plaintiff has not come to
the court with clean hand? OPD
7. Whether the suit is false and frivolous, hence
the defendant is entitled to special costs u/s
35-A CPC? OPD
8. Relief.”
To substantiate her stance the respondent
produced four witnesses including herself
in the witness-box as PW-1 and one
Shahida Parveen adduced evidence as
PW-2 while Maqbool Hussain appeared as
PW-3 and Muhammad Basheer as PW-4.
The petitioner Muhammad Umar Farooq
himself appeared as DW-1 and produced
one Israr Hussain as DW-2, Muhammad
Shahid as DW-3 and one Khaliq Dar
(previous Naib Tehsildar, Pir Mahal) as
DW-4. He also produced attested copy of
pert-sarkar mutation No.672 as Exh.D-2
and attested copy of mutation No.672 pertpatwar as Exh.D-3. After considering the
evidence pro and contra the learned Civil
Judge, Pir Mahal vide judgment dated
03.10.2023 decreed the suit of the
respondent. Petitioner preferred an appeal
thereagainst which too was dismissed by
C.R. No.13867 of 2024
-4-
the learned Addl. District Judge, Pir Mahal
vide judgment dated 31.1.2024. Both these
decisions of the courts below are now
challenged in revisional jurisdiction.
3. Scrutiny of the appended documents
and particularly the plaint shows that
existence of the sale transaction is denied
in absolute terms and it is specifically
asserted that she neither entered into any
such transaction nor received any
consideration for it which were adequate
averments to fulfill the legal requirement
qua specificity with regard to allegation of
fraud in the peculiar circumstances that the
widow was illiterate pardanasheen who
was above eighty years of age. The setting
in which the alleged transaction is placed
is germane to consideration the case. The
appended documents show that the
respondent is over 80 years of age. She did
not have any male progeny. Petitioner
Muhammad Umar Farooq is the son of her
only daughter who used to reside with her.
His father divorced his mother who had
subsequently apparently remarried and was
settled at Layyah. The father of the
C.R. No.13867 of 2024
-5-
petitioner defendant is also co-owner of
ihata No.74/1 which comprises total of 11-
M and 7-S and also appears to live in the
neighborhood of the house of the
respondent lady and that she was
dependent emotionally and practically on
the able-bodied petitioner grandson who
was living with her and in such context the
transaction alleged to be made in favour of
the petitioner by the respondent widow
statedly occurred.
4.
The witnesses produced by the
respondent plaintiff duly elaborated the
circumstances qua such residence of the
petitioner with the respondent widow as
well as the dependence of the old illiterate
lady on her grandson, the petitioner
beneficiary of the alleged transaction. The
nearness of the relationship of the
petitioner with the respondent elderly
widow as her grandson, the factum of him
residing in the same house with her to the
exclusion of anybody else coupled with
absence of any independent advice being
established on record placed heavy
responsibility upon the shoulders of the
C.R. No.13867 of 2024
-6-
petitioner to establish the existence of the
sale transaction by
independent
unimpeachable, creditworthy and coherent
evidence.
5.
The witnesses produced by the
petitioner failed to provide any probative
tenability qua assertion of the alleged oral
sale nor could any evidence be brought on
record to prove that any payment as
alleged was ever made to her. So much so
that at the time of the transaction which
was alleged to have been made in 2018,
the petitioner was 20 years of age and was
not employed anywhere nor did he have
any source of income to come up with
such amount of payment for purchasing
the property as asserted. As such he
miserably failed on this score to prove that
any consideration was ever paid.
Furthermore the cloud of undue influence
and colorability of the transaction could
also not be effectively rebutted by
establishing any plausible factual context
of the alleged transaction such as proof of
any negotiations with regard to sale, how
the price was agreed and how the payment
C.R. No.13867 of 2024
-7-
was to be made or was made to the
respondent widow and in whose presence.
In Ghulam Farid and another v. Sher
Rehman through LRs (2016 SCMR 862)
it was observed to the effect that the
inflexible, hard and fast rule is that when
any transaction is made by any one where
vital interest of a pardanasheen lady is
involved then the following conditions are
to be invariably and essentially fulfilled:
“14…
(i).
to establish through evidence that the
transaction was free from any influence,
misrepresentation or fraud;
(ii).
that, the amount of consideration equal
to the value of the property was indeed paid to
the ladies;
(iii).
in the case of “Parda Nasheen” rustic
village ladies, at the time of transaction such
ladies were fully made to understand the nature
of the transaction and the consequences,
emanating therefrom and;
(iv).
that at the time of transaction, the ladies
were having access to independent advice of
their nearer and dearer, who have no hostile
interest to them.”
In the case of Pervaiz Akhtar v. Mst.
Farida Bibi and others (PLD 2023 SC
628) it was observed as under:
“8.
In the case of a transaction with
Pardanashin woman, a principle of caution is
attached to the transaction to protect her rights. It
is necessary that a Pardanashin woman is fully
cognizant and aware of the transaction and that
she has independent advice from a reliable
source to understand the nature of the
transaction; there must be witnesses to the
transaction and to the fact that a Pardanashin
woman has received the sale consideration. Most
importantly, a Pardanashin woman must know to
whom she is selling her property and the
C.R. No.13867 of 2024
-8-
transaction must be explained to her in the
language she fully understands as is held in the
cases reported as Ghulam Farid and another v.
Sher Rehman through LRs (2016 SCMR 862)
and Ghulam Muhammad v. Zohran Bibi and
others (2021 SCMR 19). In a case where a
Pardanashin woman has trusted a relative and
executed a general power of attorney for her to
sell the property, it is still incumbent upon the
power of attorney holder to fulfil the
aforementioned conditions of making the
Pardanashin woman aware of the sale that is
about to be executed under the power of
attorney. This is because the underlying principle
here is to ensure that at all times where a woman
executes a transaction with reference to her
property, it is done freely and deliberately … In
Muhammad Naeem Khan and another v.
Muqadas Khan (deceased) through L.Rs. and
another (PLD 2022 SC 99) that the objective of
this court has been to protect Pardanashin
women from the risk of an unfair deal and to
ensure that any transaction related to the sale of
their property is effected by free will and with
consent. We have also held that wherever there
is a transaction with Pardanashin women, it must
be established that they were given independent,
impartial and objective advice understanding all
implications and ramifications of the transaction
to ensure that they give their consent to the
transaction, because valuable rights are involved
and the Pardanashin women should be able to
make an informed decision with reference to their
property with the help of proper advice and
consultation. This Court has also held in the
case reported as Mian Allah Ditta through L.Rs v.
Mst. Sakina Bibi and others (2013 SCMR 868)
that the burden of proof lies on the person
exercising the power of attorney to prove that the
transaction was carried out in good faith and with
full knowledge and consent and grantor. Hence,
the mere fact that Pardanashin women execute a
general power of attorney will not absolve the
attorney nor the buyer of the obligation to ensure
that the Pardanashin women have full knowledge
of the sale and have given their consent to the
sale…
9.
The concept of protecting the rights of
Pardanashin women finds its root in the cultural
practice of women staying within the protection of
their home, having limited access to affairs
outside their home. Consequently, such women
have limited interaction with society and do not
participate in matters outside their home. This
suggests that their knowledge and information
about matters outside their home is limited and
insufficient to take informed decisions.
Accordingly, the courts have protected the rights
of such women in order to protect them from
betrayal, exploitation and fraud especially where
valuable property rights are concerned. The
concept of an illiterate woman is similar to that of
C.R. No.13867 of 2024
-9-
a Pardanashin woman as both lack education
and basic knowledge of worldly affairs and both
interact essentially at a limited level with society.
This limited participation hampers her ability to
take informed decisions. Such women are
perceived as being unskilled, uneducated and
incompetent so far as the business matters are
concerned. They lack experience and are easily
susceptible to deceit even by their relatives. The
courts endeavour to protect Pardanashin or
illiterate women due to their social standing and
vulnerability not only from society at large but
also from relatives. Women are often the targets
of fraud and deceit when it comes to property
matters, which is why the courts have invoked
the principle of caution in protecting the rights of
such women so that they are not wrongfully
deprived of their property. The limitations of
Pardanashin or illiterate women have been duly
considered by the courts against which the courts
have held that such women must be given
independent advice from a reliable and
trustworthy source so as to ensure that they fully
understand the transaction and the
consequences of that transaction. In Muhammad
Naeem Khan’s case (supra) we have
categorically stated that whenever the
authenticity or genuineness of a transaction
entered into by a Pardanashin woman is disputed
or claimed to have been secured on the basis of
fraud or misrepresentation, the burden will lie on
the beneficiary of that transaction to prove good
faith and more importantly, the Court will
consider whether the transaction was entered
into with free will or under duress. It goes without
saying that the effort to protect rights of
Pardanashin and illiterate women is necessary
so as to give such women the ability to make
independent decisions with reference to their
property or belongings so as to ensure that they
are not deprived of the ability to take a good
decision based on their social standing in society.
This is a step towards ensuring that there is an
element of financial and
economical
independence given to women, who have been
deprived of education and have limited
interaction within the home and the family. While
this may be the customary or traditional role of
women as seen by society in general, the
endeavour of the Court has always been to
protect the vulnerability and susceptibility of
women”.
6.
Learned counsel for the petitioner on
being confronted with this has relied on the
objection that where connivance of revenue
officials in attestation of any mutation i
C.R. No.13867 of 2024
-10-
asserted, their impleadment as party is
necessary, and not having done so shall be
fatal to the case of the respondent. In this
regard reliance is placed on Sikandar Hayat
and another v. Sughran Bibi and 6 others
(2020 SCMR 214) and Sakhi Jan and others
v. Shah Nawaz and another (2020 SCMR
832). It is noteworthy that the sale
transaction alleged to have been made in the
instant case in favour of the petitioner is by a
pardanasheen lady who was not only
illiterate
and dependent upon him
emotionally and practically as her maternal
grandson living with her but was also an
octogenarian which made it pivotal for the
transaction to be independently established
by the petitioner in which he miserably failed
after shifting of onus as its beneficiary. In
Ghulam Muhammad v. Zohran Bibi and
others (2021 SCMR 19) it was held to the
effect that impleading revenue officials in
every case was not a rule of the thumb and
that this depends upon the peculiar facts and
circumstances of each case and that in the
event that the concerned court comes to the
conclusion that revenue functionaries needed
R. No.13867 of 2024
-11-
to be impleaded to enable it to arrive at a just
conclusion an appropriate order may be
passed and that where sufficient evidence
was available to establish fraud and dislodge
mutation which had clearly been maneuvered
on the basis of fraud, impersonation and
misrepresentation involving an illiterate an
elderly and illiterate pardanasheen lady who
had no independent advice the onus had to be
discharged by the beneficiaries for the legal
survival of such transaction. In the instant
case it is evident that the oral sale transaction
which is basis of the mutation was nonexistent as no evidence to establish the same
beyond the shadow of doubt could be
adduced by the petitioner. The precedents
cited by the learned counsel for the petitioner
in the circumstances of the case, evidence on
record and peculiarity of circumstances are
distinguishable. Both courts below duly
scrutinized the evidence carefully and
concluded that the petitioner had failed in
establishing the sale transaction to put up a
valid defence against the respondent to her
plea of having been victim of fraud and
misrepresentation. No instance of misreading
C.R. No.13867 of 2024
-12-
or non-reading of evidence or any illegality
in the process of arriving at their judgments
by the courts below could be shown to exist
and on careful consideration the conclusions
drawn are found to be fair, reasonable and
legally tenable and no case for interference in
concurrently recorded findings of the courts
below could be made out in revisional
jurisdiction. Resultantly, the revision petition
is meritless which is, accordingly, dismissed.
(RASAAL HASAN SYED)
JUDGE
APPROVED FOR REPORTING
JUDGE