Imam Muhammad through LRs Vs Mst. Aqal Bibi etc

.^t rt ,A/ (r

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

CR No.190-B/2017

Imam Muhammad through LRs Vs Mst. Aqal Bibi etc.

JUDGMENT

Date of hearing: 0?.10.2023

For petitioner(s) Mr. Sardar Naeem Khan Advocate.

For respondent(s): Mr. Inam UIIah Khan Lawane Khel Advocate.

:f**{<*rl<*

Dr. Khurshid lqbal, J.-

1.Imam Muhammad (plaintiff/predecessor of petitioners) son of Din Muhammad and Mst. Aqal Bibi (defendant/respondent) daughter of Sultan Muhammad were first paternal cousins. Sultan Muhammad, father of % the respondent was survived by female children only. It is in this aspect of their relationship in which the genesis of the present litigation lies, which they have been pursuing since the year 2007. Though, the plaintiff is not formally proclaiming, but it appears that he agitates his share in the legacy of father of the respondent. As against that, the respondent claims a gift of the property from her father and had filed a suit as well. Somehow or the other, a Jirga was convened. The so called Jirga resolved the dispute in light of certain terms and conditions regarding which a deed was drawn on 18/08/2007. Later on, in the year 2010, the respondent also transferred some land in

the name of her husband Ghulam Hussain by a mutation # 3606 dated 2911112010. The plaintiff was also not happy with the transfer of the land. He filed the present suit against the respondent and Ghulam Hussain in the year 2011 for specific performance on the basis of the deed and cancellation of the aforesaid mutation. It is worth noting that the plaintiff passed away during the pendency of the suit. His legal heirs were arrayed as the plaintiffs. One Khushtab Ali, his son, pursued the case as special attorney of his legal heirs. For ease of communication, Imam Muhammad will be referred to as the plaintiff though his legal heirs are petitioners in the instant civil revision petition.

2.The respondent and her husband contested the suit. In their respective written statements, they categorically denied from the deed, contending that their thumb impressions and signatures were obtained on a blank paper. Though they stated in their written statements that arbitrators/mediators were appointed for resolution of the dispute, but they didn't specifically admit that those were the same persons whose names and signafures/thumb impressions are appearing on the deed. They further contended that father of the respondent had gifted his property to the respondent through various deeds; that the factum of sale by her as written in the deed is wrong and illegal; and funher that there was a civil suit titled Mst. Aqal Bibi v. Mst. Gul Maira, etc, over the gift, which was decided in her favour on l9l0ll20l0. After recording evidence of the parties, the trial Court passed a decree vide judgment dated 3110712012. The Additional District

v Judge allowed the appeal of the respondent and dismissed the suit by the judgment and decree rendered on2810912017, which have been challenged in the instant revision petition.

3.Arguments heard. The record perused.

4.It will be helpful to begin with the contents of the deed, comprising of two paragraphs, which may be considered, for the sake of convenience, as 'A' and 'B'. It is captioned as "faisala salesan" .Its opening line states that Wahid Ahmad Jan and Ahmad Jan were appointed as 'salesan', referring to the two paragraphs as their decision. It simply means that the deed reduced into writing the decision of the 'salesan' . This is followed by part 'A', which states that the respondent will sell to the plaintiff her Shari share in non-irrigated land at Rs. 10,000/- and in irrigated land at the rate of Rs. 20,0001-, per Kanal, respectively (total as Rs. 235,0001-), which the plaintiff will pay in cash and the respondent will be bound to attest its mutation in favour of the plaintiff. Part 'B' states that the share of the respondent in the residential house in village Kalan is given to the plaintiff as consideration for protection of her honour and living expenses, with which she would have no concern. Next, it states that Ghulam Hussain will be bound, as per the Pashto's custom, while begging the plaintiff for protection of his wife in the face of an imminent threat to or attack on her honour and dignity (Pashto: nanawatey, an element of Pukhtunwali, the code of Pukhtuns social life), and providing certain amounts of ghee, flour and a

sheep, and lastly the parties will be bound to withdraw their suits from the courts.

5.After recording evidence of the parties, the learned trial Court while granting a decree, considered the deed as a contract, ruling that it fuIfils all the ingredients of a contract. The learned appellate Court, while dismissing the suit being not maintainable in its present form, held that the deed is an arbitration agreement of which no specific performance could be sought. Let's examine both the views in their legal perspectives. As regards its being a contact, section 10 of the Contract Act, 7872, requires that in order thal an agreement becomes a contract, it must be with (1) free consent of the parties (2) competent to contract, for a (3) lawful consideration and with a (4) lawful object, and is not (5) expressly declared by law to be void. It follows that all contracts are agreements, but all agreements are not contract. Only that agreement is a contract which is enforceable in law (see €.9., Messrs Zaidi's Enterprises and others v. Civil Aviation Authority, PLD 199 Karachi 181). It is settled law that an agreement by itself doesn't create any right, title, interest or any charge on the property (Bakhtiar v. Nasrullah and 12 others, 2015 CLC 385). There must be a proposal by one party and acceptance by the other. Intention of both the parties must be clear and common. While an agreement to sell immovable property is a contract, it must be signed or thumb impressed by both the parties so as to demonstrably reflect and establish what is known as consensus ad idem, connoting their mutual assent (Farzand Ali and another v. Khuda

Bakhsh and others, PLD 2015 SC f8A. Let us now apply the above principles to the deed. One the one side, the deed mentions the parties by names and reflect their signatures and thumb impression as well. On the other hand, its contents state that it is in fact a so called decision of some mediators. In other words, the parties directly, particularly, the respondent herself has not made any promise/offer to sell her immovable property. More significantly, the respondent, in her written statement as well as her evidence, has categorically denied from it as an agreement to sell her immovable property. The deed badly suffers with lack of the basic element of meeting of minds which is called as consensus ad idem. The deed as a whole reflects absence of her free consent, in addition thereto, most notably, its part 'B', divulge absence of a free lawful consideration and lawful object. How is it that she has waived her Shari share in the residential house of her late father in lieu of protection of her dignity according to customary practice, and her husband has to seek help from the plaintiff, and supply certain food items as a further consideration for it! Hence, this court holds that the deed is not a contract.

6.Next, it is worth consideration whether the parties had entered an arbitration agreement. Under section 2 (e) of the Arbitration Act, 1940, there must be a written agreement, though not necessarily signed by the parties, to submit present or future differences to arbitration, whether an arbitrator is named therein or not (Ch. Fazal Muhommad v. Pakistan through Secretary, Ministry of Defence, and 5 others,20ll MLD 502). The learned

appellate court didn't find any written arbitration agreement, rather it read the deed as such an agreement. It is jurisprudentially settled that reference of a dispute to arbitration in presence of clear agreement is a rule and deviation therefrom an exception (Sunshine Corporation (PVT.) LTD. and others v. Messrs E.D. DU PONT DE NEMOURS & CO. and others, 1999 YLR 2162). Although it is not necessary that an arbitration agreement should be necessarily incorporated in a formal document but there must be a written contract in which it should be incorporated as a clause. Such evidence may not be positive in nature; it may be in the form of, for example, letters exchanged between the parties or even their counsels. (Sh. Saleem Ali v. Sh. Akhtar Ali and 7 others, PLD 2004 Lahore 404). Then, arbitrator(s) is/are to record evidence by administering oath to the parties and their witnesses and to act impartially and neutrally. Arbitrator(s) is/are not to give his/their own subjective opinion in passing an award. Yet another aspect is that in case of formal arbitration proceedings, the arbitrator has to file the award in the court (section 14 of the Arbitration Act, 1940). Arbitration proceedings are quasi-judicial in nature, as such, aim at doing justice according to law, and shall not culminate into an award that is opposed to public policy or violate law, for example, a woman either deprived of or coerced to waive her Shari share in the legacy of her parents, the point in the case in hand. To conclude, the deed doesn't qualif,i to be an award-the result of-some arbitration agreement.

7.Here reference may be made to the plaintiffs contention that the appellate court couldn't dismiss the suit for the reason that it suffers with a formal defect. His learned counsel stated that the court may allow amendment in pleadings within the meaning of Order VI, R. 17 CPC. He relied on Sheikh Abdul Rahim v. Noor Muhammad and 08 otherr 1993 CLC 1059. There could be no cavil with the proposition that mere formal defect in a suit should not be considered as a ground. On this score, the impugned judgment and decree is, no doubt, not sustainable. However, as discussed above, there was no arbitrable dispute between the parties.

8.Perhaps the deed may be termed as Jirga decision based on mediation. The principle difference between an arbitrator and a mediator is that the former gives an award regardless of the fact whether the parties accept it k or not; the latter brings the parties to a certain agreed settlement. However, it doesn't qualiff to be mediation as well. The reasons are: firstly, the deed doesn't describe that it is between the parties. Secondly, the respondent has manifestly denied it.

9.It is crystal clear from the contents of the deed that the respondent herself or anyone duly authorized by her for the pulpose, has not made any promise, as such, no agreement to sell, or contract exists between the parties.

The deed also doesn't state that the parties, most particularly, the respondent, had granted them permission to reach to the so called decision. In short, the deed doesn't spell out who on earth appointed the mediators for resolution of the dispute. If at all, it is considered

v mediation, it must be said that the mediators can't assume the role of a party. In the f,rrst instance, there must be positive evidence that the mediators were duly and properly authorized for resolution of the dispute. Next, there must be a mutually agreed resolution, which, if has been arrived at in the form of an agreement, then the parties themselves should have entered into it. And, thereafter, followed by an agreement by the respondent and the respondent alone (or say, again, her authorized agent).

10.In light of the above discussion, it is crystal clear that there exists no legal dispute between the parties. The respondent is one of the daughters of a propositus who was, unfortunately, not survived by a male legal heir. Though the respondent alleges gift of his property in her favour, but that has nothing to do with the plaintiff. But the deed, in whatever form it may be, say for the sake of arguments, doesn't make a reference to it. In this view of the matter, they have no rights and duties against each other. In a nutshell, the deed doesn't describe what was the dispute between the parties. This prompts a question whether the plaintiff has, in the first instance, a cause of action at all to bring the suit.

11.No statutory definition of cause of action is available. Jurists have been facing a challenge to offer a proper definition of cause of action. Attempts, however, are continuing since long. For example, in an 7873 case, it was defined as all material facts a plaintiff has to prove in order to succeed in a law suit (Cook v. Gill (1873) LR 8 CP 107). Nearly in the same w&y, our Supreme Court

V

has opined that it is the totality of all material facts which plaintiff must allege and prove to emerge successful (Said and other v. Fazal Hussain and others, PLD 1959 Supreme Court (Pak.) 356). A learned Single Judge of this Court has also explained it in similar manner with reference to a good number of cases from Indian and English case law, which also includes the above cited English case of Cook (Zahid Jamil v. Mst Saeeda Bano and another, 20ll MLD 630 [Peshawar]. His lordship has added that "it refers entirely to the grounds set forth in the plaint as cause of action, i.e. the media upon which the plaintiff asks the Court to arrive at a conclusion in his faovour." Perhaps, a more invigorating definition has been offered by the Supreme Court of the Philippines, stating that the elements of a cause of action are: (1) u right in favour of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages. (Centeno v. Centeno,343 SCRA 153, 160 [2000D.

12.Coming back to the contents of the deed, it portrays no right whatsoever created by any means arisen under any law, with any obligation on the part of the respondent to respect it or violate it; and any act or omission on her part in violation of such right or constitutive of breach of the obligation providing a

Page - l0 - of 18

v pretext to maintain an action for recovery of damages. Indeed, one feels no pains to say that the very text of part 'A' of the deed is a demonstrable attempt to coerce the respondent through a Jirga by means of what it calls salesee to relinquish her part of her ancestral propefty at a perceived price. Part 6B'-worse than part 'A'-is a horrendous example of male chauvinism that is the relic of a tribal society in which a woman, particularly, one having no brothers of her own, is compelled to trade off not only her valuable property, but even food items with her male relatives for what they call protection of her honour and dignity. It directly tends to defeat the Shari'ah law of inheritance as ordained in the Holy Qur'an. Any decision, such as, the one stated to have been given by a Jirga being forbidden, unlawful and opposed to public policy in terms section 23 of the Contract Act, 1872, can neither be mdde the basis of a suit nor relied upon as it has no legal effect (Gul Nawaz and others v. Roshid Ahmed and others, 2021 SCMR sze).

13.It is thus established that the plaintiff has no cause of action, let alone to prove it by producing evidence. This being So, while there is no need to examine evidence, it still seems pertinent to do so for the reason that whatever the nature of the deed may be, it has not been proved in evidence. The plaintiff examined Fazal Maabood, Wahid Ahmad Jan, Haji Muhammad Jan, Bahadar Zaman, Khuzhah Mir, Khushtab AIi and Amir Badshah (PWs 3 to 9) in support of the deed (Ex.PW- 3/l). PW 3 deposed that he had attested the deed as

V

Notary Public. PWs 4 and 5 stated they stood its marginal witnesses. PW6 testified that he resolved the dispute between the parties through a Jirga (Salsi). They all confirmed their respective signatures on the deed. PW7 deposed that he had intervened for the purpose of resolution of the dispute. He alleged that both the parties had permitted him to appoint Jirga members, so he appointed PWs 4 and 5 as Jirga members. He further state that after hearing the parties, PWs 4 and 5 resolved the dispute as per the terms and conditions mentioned in the deed. Khustab Ali (PWS) is son and Amir Badshah (PW9) is the step brother of the plaintiff.

14.Depositions of PWs 4, 5 and 6 show that the respondent never approached them for resolution of the dispute; that she was never truly consulted; and that the respondent didn't thumb impress the deed in their presence. PW7 could not state who wrote the deed and on which date. He deposed that a statement of the respondent was recorded by one Zakori sahib and the PWs 4 and 5. The aforesaid Zakori sahib was not examined as a witness and the remaining two remained silent in this respect. PW8 Khushtab Ali son of the plaintiff deposed that he had purchased the stamp paper from Fazal Ma'abud, advocate (PWl). Interestingly, PW8 stated that the respondent had contracted marriage with her own sweet will at which he and other family members were not huppy. PW8, in addition to his admission that the respondent was not present at the time of the Jirga proceedings, further disclosed that one

v Abdur Razak was the scribe of the deed, who, as stated above, was not examined as a PW.

15.Ghulam Hussain (DWl0), husband and attorney of the respondent deposed that the plaintiff was bent upon depriving the respondent of her Shari share in the legacy of her late father, mainly for the reason that Sultan Muhammad was having no male child. He added that the respondent was not willing at any cost to give up her share. He totally denied from the Jirga proceedings, stating that the respondent never consented for such a resolution and never thumb impressed the deed. The respondent examined one Abdur Rahim, first cousin of her husband Ghulam Muhammad, who supported her claim.

16.Admittedly, the respondent is a woman, having no brother; her father not survived by a male issue. The k plaintiff not only tried to exploit her such situation, but also to use her love marriage as a pretext to deprive her of her property in the legacy of her late father. The higher courts have ruled in numerous cases that the right to property of a woman, like the one in case in hand, must be protected in civil litigation, particularly in the perspective of her being a member of a disadvantaged group and the social and cultural condition of our society. In a recent case of Muhammad Naeem Khon snd another v. Muqadas Khan (decd) through I.Rs. and another, PLD 2022 SC 99, the Supreme Court observed:

9.The obvious underlying principle is to protect and save a weak and helpless woman from danger and risk of an unfair deal,

thenceforth, it is to be ensured by the court in tandem, whether the alleged deal or transaction was effected by her free will or through coercion/duress or emotional blackmailing or whether it was simply aimed to deprive her right or interest in the property or divest her due share in the inheritance by male members of her family. The survey and analysis of some judicial precedents rendered by our courts and pronouncement of courts from Indian jurisdiction have in fact woven a cloak of protection for pardanashin ladies, who because of their ignorance, inexperience of business matters and social conditions are not able to understand the nature of business transactions. The Privy Council defined a Pardanashin lady as a woman of rank living in seclusion but the law regarding pardanashin ladies equally applies to illiterate and ignorant women. The question is whether a lady is pardanashin or not is always a question of fact which should be specifically pleaded and proved by some cogent evidence and is not to be used as weapon or shield to defend the lawsuit under the garb of this plea at original or appellate stage. The status and eminence of Pardanashin lady have been discussed in detail in the following dictums:- l. Ghulom Ali and others v. Mst.

Ghulam Sarwar Naqvi (PLD 1990 SC f . This court held that no doubt in our urban society woman is not only asserting her rights but also is believed in some quarters as able to protect herself and her rights. In other social sectors she still is highly dependent upon the good-will of men around her and in the rural areas due to the reasons, which would be presently noted, the conditions under which she is living in this 20th Century, can in the present context, be compared with

v those prevailing before the advent of Islam. It was further held that the position of woman and her disabilities regarding protection of her own rights was recognized consistently, without reference to Islamic injunctions, purely as interpretation of the provisions of Contract Act (Section 16 and others), even by the Privy Council when dealing with the contracts by and acts of Parda Nasheen ladies.

2.Janat Bibi v. Sikondar Ali and others (PLD 1990 Supreme Court 642). It was held 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. If she is illiterate. it must have been read over to her. This court also quoted the observation of Sir George Lowndes rendered in the case of (Valluri) Ramanamma v. Marina Virana AIR 1931 Privy Council 100 that "the law as to disposition of property by pardanashin ladies has been discussed by the Board on many occaslons It is for the p tofan such affirmativel that substantially understood by the lady and was really her free and intellieent act. If she is illi it must have been read over to her: if the terms are intricate they must havc lceq adequately explained. and her deeree of

intellisence will be a material factor but independent legal advice is not in itself essential.

3.Syed Mansoor Ahmad v. Mst. Maqhool Begum and others (1990 SCMR 1259). The court held that a document adversely affecting the interest of a woman in favour of a person standing in relationship of active confidence requires strict proof of execution and availability of independent advice to such executant.

4.Muhammad Yaqoob v. Mst.

Sardaran Bibi and others (PLD 2020 Supreme Court 338). It was held that illiterate village women are to be treated at par with Pardanasheen ladies and where a transaction involves anything against their apparent interest, it must be established that independent, impartial and objective advice was available to them and the nature, scope, implication and ramifications of the transaction they were entering into was fully explained to them and they understood the same.

5.Rangbi Bewa v. Md. Abed Ali and others (Supreme Court of Bangladesh) (1987 7 BLD 319).It was held that the court when called upon to deal with a deed executed by a pardanashin lady must satisfy itself upon the evidence first, that the deed was actually executed by her or by some person duly authorized by her with a full understanding of what she was about to do; secondly that she had full knowledge of the nature and effect of the transaction into which she is said to have entered; and thirdly that she had

independent disinterested advice in the matter

6.Phul Peer Shah v. Hafeeza Fatima (2016 SCMR 1225).It was held that in a case of such transaction with old, illiterate/ rustic village 'Parda Nasheen' lady onus to prove the transaction being legitimate and free from all suspicions and doubts surrounding it, can only be dispelled if the lady divesting herself of a valuable property, the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree. Amongst this condition, the pre-dominantly followed are:- (i) that the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; (ii) that she was having independent advice from a reliable source/person of trust to fully understand the nature of the transaction; (iii) that witnesses to the transaction ate such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her; (iv) that the sale consideration was duly paid and received by the lady in the same manner and (v) that the very nature of transaction is explained to her in the language she understands fully and she was apprised of the contents of the deed/receipt, as the case may be.

7.Irshad Hussain v. Ijaz Hussain and 9 others (PLD 1994 SC 326). This court held that whether a ladY is a Pardanashin is a question of fact. The burden of proof that any document purported to have been executed bY aPardanashin lady affecting her right in an immovable property was

v substantially understood by the lady and was her voluntary, intelligent, free and conscious act, is upon the person claiming any right under such deed. This rule has been extended to illiterate ignorant lady whether she is Pardanashin or not. This rule of wisdom and caution thrown round the Pardanashin, illiterate and ignorant women is to protect them from exploitation, duress, fraud and misrepresentation.

8.Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another (AIR 1925 Privy Council 204). The court held that the case of an illiterate pardanashin lady, denuding herself of a large proportion of her property without professional or independent advice, is one on which there is much authority. 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. 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 under circumstances which establish adoption of it with full knowledge and comprehension.

9.Mst. Kharbuja Kuer v. Jangbahadur Roi and others (AIR 1963 SC 1203). The court held that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardanashin ladies or not. In the first

Page-18-oflS

V

place, the lady was a pardanashin lady, and the law throws round her a special cloak of protection. It 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 so 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.

10.The aforesaid verdicts laid down the glorious rules of wisdom, thoughtfulness and attentiveness for protecting the pardanashin or illiterate lady from exploitation, duress, fraud, emotional blackmailing and misrepresentation in the male dominant society which has a conceptual label to characterize the unequal power relations between men as a group and women as a group.

17.The conclusion of the above discussion is that the plaintiff has no cause of action. The deed on which the plaintiff based his case, on its face, demonstrates that the plaintiff attempted to deprive the respondent of her Shari share in the inheritance of her late father. He maneuvered the Jirga verdict by some elders who had the audacity to give a verdict against the Shari'ah, Constitution, and the law. The deed was not proved at all. Thus, while maintaining the dismissal of the suit by the appellate Court for the above reasons, other than the formal defect, this court dismisses the instant revision petition with cost. qF !u Announced

0 N

t/ 02.t0.2023 (Ghafoor Zaman)

,W

(S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal