Ismail Khan and 08 others Vs Mst. Shahnaz Begum and 08 others

V

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT, BANNU BENCH

(Judicial Department)

W.P No. 159-Bl20l9

Ismail Khan and 08 others

Versus

Mst. Shahnaz Begum and 07 others

For petitioners Mr. Farman Ali Khan, Advocate For respondents Hafrz Muhammad Hanif, Advocate Farooq Khan Surani, Advocate

Date of hearing 30.4.2020

JUDGMENT

Sahibzada Asadullah, I.- Through this writ petition petitioners have challenged the judgment dated 20.11.2018 passed by the learned Additional District Judge-V, Bannu, whereby Civil Appeal f,rled by the petitioners was dismissed and the judgment and order dated 11.01.2018 passed by learned Senior Civil Judge, Bannu was upheld whereby application under section l2(2) of the CPC filed by the respondent No. 1 was accepted.

2.Brief facts of the case are that the plaintiffs/petitioners filed a suit for declaration titled Rastabaz Khan and others vs Mst. Shamshad Begum and others bearing No. 43911 of 1993 with regard to declaration in respect of properties, detail whereof was fully given in the headnote of the

plaint. The decree was passed in favour of the plaintiffs/petitioners vide judgmenVdecree dated 20.4.1995, where the respondent No.l to 4 & 6 conceded to the claim of the petitioners by recording their conceding statements. Feeling disgruntled from the said judgment and decree passed by Senior Civil Judge, Bannu, Mst. Shahnaz Begum filed an application under section l2(2) Code of Civil Procedure, 1908 (Petition No.

7ll2) challenging the judgment and decree ibid rendered by the Court of Senior Civil Judge, Bannu, to be the result of fraud and misrepresentation on part of the petitioners. The matter was dealt with comprehensively and after conclusion of trial, the trial Court was pleased to accept the application of the respondent No. I (Shahnaz BibD by upsetting the judgmenVdecree dated 20.4.1995 which led the petitioners to dissatisfaction, so that was challenged through Civil Appeal No. 10 of 2018 which was placed before the Court of learned Additional District Judge-V, Bannu, who after hearing the parties vide judgment dated 20.11.2018 dismissed the appeal of the petitioners and maintained the judgment of the trial Court. The petitioners felt dissatisfied, so approached this Court through this petition.

3 I have heard learned counsel for the parties at length and gone through the record with their able assistance.

4.It need not to be reiterated that it is the party who alleged fraud, misrepresentation and lack ofjurisdiction through

an application under section I2(2) of Code of Civil Procedure, 1908, is under a heavy obligation to prove all or any of the ground which to it has led to the impugned judgment/decree.

The respondent No. I approached the learned trial court under section l2(2) of the Code of Civil Procedure, 1908, where she alleged fraud and misrepresentation and her main grievances were that being parda nasheen lady, she was not represented the way it ought to be and that the learned trial court was kept in dark regarding her willingness or otherwise to the decree passed in favour of the petitioners then plaintiffs. It will be advantageous to reproduce the events and the subsequent events which led to the controversy in hand, the history is traced as that it was in the year 1993, that the plaintiffs/petitioners filed a suit for declaration in respect of the property mentioned in the plaint in response the defendants No. 1 to 4 and 6 appeared before the trial court and it was during the proceedings that both the plaintiffs now petitioners and the defendants now respondents reached an understanding where the defendants recorded their statements in favour of the petitioners and ultimately the trial court was pleased to decree the suit in favour of the petitioners vide judgment dated 20.4.1995. It is pertinent to mention that the respondent No. 1 did not put her appearance before the trial court but even then the trial court benefited the petitioners with the decree without caring for the attendance of the respondent No.l. The respondent No. 1 feeling dissatisfied asked for the redressal of her grievances through an application under section

12(2) of the Code of Civil Procedure, 1908, where she voiced that neither she was associated with the process being a necessary party nor she conceded the claim of the petitioners then plaintiffs. The application of the respondent No. I was honoured vide judgment dated 11.01.2018 by setting aside the decree dated 20.4.1995 and such was the appeal filed before the court of Additional District Judge-V, Bannu.

5.The learned counsel for the petitioners was heard at length where he submitted that both the trial as well as the appellate court went in error by upsetting the decree which was passed in their favour, that too, when all the respondents/defendants were duly served appeared before the trial court, recorded statements in favour of the plaintiffs, so much so the triat judge asked their signatures to the margins of the statements recorded and that there was no legal justification with the trial court to allow the application of the respondent No.l and to upset the decree, that was passed with full application of judicial mind to the facts and circumstances of the case. The learned counsel raised fingers on the judgment of the appellate court and concluded that the last judgment is the outcome of haste and without application of independent judicial mind to the facts and circumstances of the case'

6.Conversely, the learned counsel for the respondents submitted that the judgments of both the trial as well as appellate court are not only well reasoned but are based on proper appreciation of evidence with taking into consideration

the status of respondent No. I as a parda nasheen lady. He lastly submitted that had the respondent No. I being the consenting party to the gift deed then what for sale consideration was atlegedty paid to all concerned including the respondent No.1.

7.On record, it is abundantly proved by the respondent No. 1 that she had not appeared before the Court nor recorded any statement in favour of petitioners that too when the trial court had specifically directed the petitioners to produce all concerned especially, the defendants therein. The petitioners throughout contended that the respondent No. 1 was served and she executed special power of attorney in favour of Shahbaz and that it was her attorney who constantly appeared before the trial court and his attendance was marked throughout. Though an attempt was made on part of the petitioners to establish the relationship of so called attorney Shahbaz with respondent No. I as maternal uncle but while reading the record, it surfaced that no such relation was existed belween the two and when so how this Court acceded to the stance of the petitioners, that too, in circumstances when husband of the respondent No. 1 was alive.

It is on record that power of attorney so presented by Shahbaz bears the National Identity Cards Nos. of rest of the respondents but that of the respondent No. 1 figure nowhere.

g. The petitionefs have not stated that who identified the respondent No.l at the time of execution of power of attorney. All the PWs did not utter a single word about

identification of respondent No. I rather the evidence produced by the petitioners is beyond the pleadings which cannot be considered and no weight can be attached to it against the valid evidence produced by the respondent No. 1. So much so, no witness was produced in whose presence the power of attorney was executed in favour of ShahbazKhan as such the petitioners failed to establish their claim that it was ShahbazKhan a validly appointed attorney to have represented the respondent No. 1. It was the petitioners to prove that not only the respondent No.l was duly represented but also while scribing the power of attorney, her identity was disclosed to the scribe and that independent witness who could establish the identity of the lady were put to the power of attorney and later on produced before the trial court at the time when the lady refused to accept her authorization but here in case the petitioners did not take the pains to rebut the claim of the respondent No. 1 by producing witnesses who could speak otherwise. The petitioners miserably failed to rebut what the respondent No. 1 alleged and when so no other opinion could be formed but to hold that the respondent No. 1 was left unrepresented and the petitioners had not come to the court with clean hands and the decree they got in their favour deserves no respect

9.The petitioners when instituted a suit for declaration requested for a decree in their favour on the strength of a gift deed having been executed between the parties. It fuither

surfaced on record through the petitioners that even sale consideration to the extent of respective shares of the defendants/respondents were paid to them, which puts this Court on guard that when the petitioners claims the property to be the outcome of a gift deed then what was the need to pay sale consideration for the respective shares of brothers and sisters who now happens to be the respondents. We are yet to see that what amount was paid to the respondent No. 1 and what evidence in that respect was tendered, rather this Court has no other option but to hold that these are the petitioners who could not remain consistent with the claims they brought forward and that the conduct of the petitioners speaks nothing but mala fide that too with a conscious attempt to deprive the respondent No.

I of her due share in the property being the unfortunate sister. Though the decree dated 20.4.1995 was passed solely on the basis of consenting statements of the respondents/defendants but the respondent No.l neither appeared during the trial nor her statement was recorded and it was then when she came to know regarding the fraud having been committed, she rushed to the court there and then and submitted an application under section l2(2) of the CPC. The women folk in this part of the country are often neglected and deprived of their valuable rights especially when it comes to inheritance and efforts are made to deprive them of what they owe in the landed property of their parents.

The apex Court has time and again taid down parameters for the courts of law while dilating upon the matters where ladies

especially parda naslteen ladies are involved. The Hon'ble Supreme Court of Pakistan has cited those points with approval in case titled Mst. Rasheeda Bibi und others v. Mukhtat Ahmad and others (2008 SCMR 13M, which are as under:

"i. Whether the plointiff hod ony friendly odvice before executing the deed ond by o person whom the court considers os being genuinely interested in her welfore?

ii. Whether the document wos exploined to her qnd whether she reolly hqd the copocity to understond its consequences?

iii. Whether it wos o mentol oct, thot is, whether the mind occomponied the hond thot executed it?

iv. Whether the entire tronsoction wos f ree f rom circumstonces throwing ony shodow of doubt or susPicion on the inception, execution ond opplicotion of the deed?"

In the present case, the petitioners have not pfoduced any independent evidence to this effect that respondent No. t had actually transferred the pfoperty in favour of petitioners through gift deed. Therefore, the transaction of gift deed is doubtful in all respects and cannot be upheld under any circumstance.

10.This Court may observe that this case is yet another sad example of brothers depriving her sister of her inheritance by contrived means. Keeping in view the precarious condition of women folk in this particular part of the country the Courts are under heavy obligation to be vigilant and be careful especially when the matters are brought by parda nasheen ladies in respect of their inheritance in the

properties of their parents. The superior Courts have held time and again, that gifts are generally made to deprive female in the family from the course of inheritance, is prevalent in the present days, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful owners and no course of inheritance is frustrated. The petitioners had completely failed to establish the gift in their favour. So much so they could not establish the needed requirements for a valid gift i.e offer, acceptance and delivery of possession. The matter has beautifully been dealt with by the apex court in case titled Mirzs Abid Baig vs Sahid Sabir (deceased) W

6011, wltere it is held',

"Appellont-brother continued to throw one unnecessory chollenge ofter onother to prevent his sisters from getting their inheritonce. One of the sisters who entered into the purported compromise ogreement with the oppellont hod since possed owoy. Legol heirs of soid sister/respondents remoined deprived of their mother's shore of inheritonce for over forty-five yeors. Such conduct of the oppellont controvened the low ond qlso the dictotes of Almighty Alloh, Shorioh expounded thot legol heirs immediotely on the deoth of their predecessor become owners of the estote left behind os per their predetermined shqres."

11.The submissions of the parties were seriously considered and it was then that this Court is of the view that necessary ingredients have been proved for invoking the jurisdiction under section l2(2) of the CPC. I am conscious of the fact that while exercising jurisdiction under Article 199 of

the Constitution of Islamic Republic of Pakistan, this Court cannot afford to go into the factual controversy between the parties but to abide by the principles laid down by the superior courts. This Court is to see all that is brought before it but strictly within the allotted spheres. The learned appeal Court had considered the evidence available on the file and noted that the predecessor of the petitioners through fraud, deception and misrepresentation did succeed in getting the impugned decree in their favour by depriving the respondent No.l Mst. Shahnaz Begum from her due share in the legacy of her predecessor. So far as the contention of the learned counsel for the petitioners that application under section l2(2) of the Code ought to have been dismissed for the simple reason that the respondent No.l owing to private partition has been bestowed with her share in the property but this Court does not accept his this submission as the petitioners could not succeed to bring anything substantial on record which could prove that in fact, the respondent No.l was given her due share in the property and even the respondent No. 1 would have accepted the same instead of wasting her energy and time in frivolous litigation.

12.In addition to above, the record reveals that the respondent No.l is an illiterate and Parda Nasheen woman and this fact has not been rebutted in evidence. It is settled by now that heavy onus to prove lies on a transferee/beneficiary of transaction with a 'Parda Nasheen' lady. Reliance is placed on

Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) wherein it has been held that where transaction has been denied by an old, illiterate village 'Parda Nasheen' lady, burden to prove its genuineness would shift to the beneficiary of the transaction.

Having said that it was none else but the petitioners to prove the genuineness of their stance which they could not

13.Moreso, the tendency of depriving of female legal heirs is especially the illiterate and Parda Nasheen ladies is deep rooted in our society since long and the male legal heirs use different fraudulent tactics in order to deprive the female legal heirs from their shari shares. In this view of the matter, reliance is placed on Mian Allah Ditta throagh I.Rs. v. Mst. Sakina Bibi (2013 SCML t!!), wherein the Hon'ble Supreme Court of Pakistan has ruled, that the legal protection provided to the Parda Nasheen lady is also available to an illiterate lady and has summarized thus:-

". ....The contention thot the generol Power of ottorney wos given by the respondent/ plointiff not to o stronger but to her own son-in-low ond thot she wos not o 'Pordonosheen Lody' for which the courts of low hqve provided protection is not tenoble in the focts qnd circumstonces of the instont cose, first, becouse it is in evidence thot the relotions between the two were too stroined on occount of the discord between him ond her doughter ond in the normol course of events she could not hove reposed thot kind of trust; second, the protection provided to them in lqw is on occount of the foct thot they invoriobly ore helpless, weok ond vulneroble. The soid considerotion would equolly be ottrocted to on illiterote lody porticulorly when she wos ploced in

V

circumstonces which mqde her vulneroble to deceit misrepresentotion."

14.Law protects the right of women to inherit ancestral property and more particularly of 'Pardah Nasheen' illiterate women who are generally unaware of their rights under the law and deprived of their shares in our male dominated society.

Reliance is placed on Mst.Hussain Bibi and others v. Barkat Ali and others (2004 SCMR 1391) and Ghulam Ali and 2 others v. Mst.Ghulam Sarwar Naqvi (PLD 1990 SC 1)' Likewise, The Muslim Personal Law (Shariat) Application Act, lg37 and successively the Muslim Personal Law (shariat) Apptication Act, 1961 of the former west Pakistan provided for inheritance rights for Muslim women (contrary to the customs that instead would disinherit women).

15.Having analyzed thus, we do not see any weight in the submissions made by the learned counsel for the petitioners that too when both the oral and documentary evidence speak against him. Having said this, the petitioners have miserably failed to prove the case through trust worthy and confidence inspiring evidence and to persuade this Court to interfere and upset the well-reasoned judgments which the respondent No. 1 has in her favour.

t6 In this view of the matter, the findings recorded by the learned Courts below are the outcome a proper application

of judicial mind to the facts and circumstances of the case and so this Court is hesitant to interfere. Resultantly, the instant petition is bereft of merit stands dismissed.

Announced Dt.30.4.2020 Hasnain/*

JUDGE

(s.B) Hon'ble Mr. Iustice Sahibzada Asadullah