GHULAM AKBAR Versus MUHAMMAD ILYAS

Ghulam Akbar had filed Suit No.105 of 1972 against his father the late Seth Muhammad Ilyas (hereinafter referred to as `the deceased') claiming, inter alia, that the properties mentioned in paras 10 and 11 of the plaint had been gifted by the deceased to him, i.e. Ghulam Akbar, and his brothers Ali Akbar, Saeed Akbar, and Abdul Latif and Abdul Hamid in equal shares and had handed over the possession thereof to them; but that, subsequently, the' deceased had forcibly retaken the possession of the aforesaid properties. Ghulam Akbar had, therefore, sued, inter alia, for possession of his .share of those properties.

2. On the 12th December, 1982, a request was made to the Court to appoint a. Commissioner to go to the house of the deceased and there obtain signatures of the parties on the compromise application which had been agreed to by the parties. The reason for the request was that the deceased was lying ill in bed and was unable to attend the Court. Accordingly, Mr. Abul Inam, Advocate of this Court, was on the suggestion of the parties, appointed Commissioner for the purpose. Mr. Abul Inam then obtained the signatures of, the parties on the compromise application and submitted his report dated the 16th December, 1982, which is reproduced below:‑‑

"The contents of Application under Order 23, Rule 3, C.P.C. were read over and explained to the defendants in Sindhi by Mr. Mal Baloch, Advocate, in my presence. Thereafter, Seth Ilyas, the defendant in the above suit, who appeared to me very sick put his signature on the application while lying down in the bed as he was not able to get up. Defendants Syed Akbar and Hafizullah also signed the application and Mst. Lai Bibi, one of the defendants in the above suit put her right thumb impression on the said application."

3.On the 21st December, 1982, the Commissioner's report was accepted and taken on record as there was no objection to it by any of the parties and an application (C.M.A. No.5489/82) under Order 23, Rule 3, C.P.C. was accepted and the suit was disposed of in terms thereof. The terms of the compromise are as under:‑‑

"(1) That the defendant having orally gifted the agricultural land bearing Survey numbers. as described in Paras (10) and (11) of the plaint and known as Jalbani Bagh in Deh Landhi and Shahdad Bagh in Deh Sanrow Karachi to his son Ghulam Akbar the plaintiff herein and who pursuant to the past oral gift had accepted it and the defendant divested. himself of the said Survey Nos. of Jalbani and Shahdad Baghs. The plaintiff Ghulam Akbar had taken possession thereof.

(2) That the defendant has further gifted orally his full or part share Kalri Bagh consisting of following Survey numbers situated in Jam Kando Deh Landhi Karachi alongwith urban Plot No. LR34/2, Sheet No.LR 10, Nishtar Road, Karachi jointly to his sons Ghulam Akbar plaintiff and Saeed Akbar and his grandson Hafeezullah to the extent of 90 paisas share between them and has further gifted the residue share of 10 paisa in the said .immovable properties, i.e. Kalri Bagh and Plot No.1R34/2 Survey Sheet No.1R‑10, Nishtar Road, Karachi to his wife Lal Bibi thus completing the total share in both the said properties. That the donee accepted the gift and took joint possession of the two said immovable properties.

The Survey Nos. of Kalri Bagh are 16(0.18), 47(2.26), 49(4.38), 50(4.2), 51(4.20), 52(1.35), 53(6.6); 54(1.10), 55(2.15), 56(3.5), 57(8.8), 58(6.14), 59(1.29), 60(1.21), 61(2.38), 72(1.34), 259(1.17), 290(1.14), 365(3.21), 366(5.1), 367(2.9), 384(1.19),. 385(1.31), 426(3.11), 427(11.18), 428(7.0), 41(6.33), 357(11.27).

(3) That the parties withdraw all claims accounts and reckoning from each other including all allegations and counter‑allegations.

(4) That Ghulam Akbar's name as mutated in the Jalbani and Shahdad Bagh will continue and in respect of Kalri Bagh and Nishter Road Plot the donees i.e. the plaintiff and added defendants 2, 3 and 4 will be entitled to have their names duly mutated in the record of rights.

(5) That S. No.156/72 will be withdrawn with no order as to costs. The above suit thus accordingly be decreed. The parties will bear their own costs."

4. The deceased died on 19th July, 1983, and, on the 29th December; 1984, one of his sons, Muhammad Iqbal, moved the present application under section. 12, subsection (2), C.P.C. impleading therein all the heirs of the deceased as respondents. The application was subsequently amended. The order and decree dated the 21st December, 1982, pass6d in Suit No.105 of 1972, have been impugned on the following grounds:‑‑

"(4) That the appellant submits that at the time of compromise Muhammad Ilyas was sick and could not move out. This fact is confirmed from the report of Mr. Abul Inam whom this Honourable Court (Appointed as Commissioner) who in the company of Mr. Mazhar Jamil, Advocate and Mr. ‑ Jalal Baloch, Advocate for defendant Nos.2, 3 and 4 went to the house of Muhammad Ilyas and obtained his signature. The Commissioner states that according to him late Muhammad Ilyas appeared very sick and put his signature on the application while lying on the bed and was not able to get up.

(5) That before the compromise was implemented neither the advocate for late Muhammad Ilyas was taken to the deceased nor in his presence the. contents of the compromise application have been read over and explained to him in Urdu as the deceased Muhammad Ilyas did not understand or speak Sindhi language but he could understand and speak Balochi as well as Urdu languages during his lifetime nor as other legal heirs were brought on the record, it was done behind their back so as to deprive the legal heirs and the applicant from inheriting the property, it was obtained by fraud and misrepresentation of the facts and is nullity in the eyes of law and not binding upon the applicant. The applicant has already filed a plaint in this Honourable Court challenging the validity of the gifts alleged to have been made by late Seth Muhammad Ilyas.

(6) that the applicant further submits that the decree passed by this Honourable Court based upon the compromise is nullity in the eyes of law and has been fraudulently obtained and by concealing the material facts from this Honourable Court. It is further submitted that the material facts were suppressed from this Honourable Court and the compromise alleged to have been signed by Seth Muhammad Ilyas is illegal and void and therefore, nullity in the eyes of law."

5. Saeed Akbar (respondent No.2) for himself and as attorney of Mst. Khatija (respondent No.vii) and Mst. Zaibunnisa (respondent No.xiii) filed a counter‑affidavit opposing the application under section 12(2), C.P.C. while Abdul Latif (respondent No.ii) and Mst. Naz Bibi (respondent No.xii) filed counter‑affidavits supporting the application. The evidence of the parties was then recorded. The applicant, Muhammad Iqbal, examined himself and Muhammad Umer; Abdul Latif and Ghulam Hyder were examined on behalf of respondents Nosdi, iv, ix and xii; the respondents Nos.iv, xiii, 2 and 4 examined Mr. Abul Inam, Mr. Jalaluddin Baloch and Mst. Lal Bibi (the respondent No.4); and the respondent Ghulam Akbar examined himself and Dr. Fazal Ahmed.

6. The allegation in para 4 of the application is that on the day on which the deceased signed the compromise application, he was `sick and could not move out and that, according to the Commissioner (Mr. Abul Inam), he appeared very sick and put his signature on the application while lying on the bed and was not able to get up. It is not easy to see how the signing of the compromise application by the deceased while he was sick and lying in bed amounts to fraud or misrepresentation. The allegation, therefore, does not appear to be one of fraud or misrepresentation, particularly as there is no allegation that the deceased was in such condition of mind that he was unable to understand the nature of the application he was signing and was prevailed upon, or was .taken advantage of, by the defendants in Suit No.105 of 1972 in order to obtain his signature on the compromise application. However, attempt has been made in the evidence led on behalf of the applicant to show that the deceased was in such state of health that he could not comprehend what he was doing. It is, therefore, necessary to examine the evidence with a view to ascertain the nature of the illness the deceased was suffering from and the state of his mind at the relevant time.

7. Muhammad Iqbal, the applicant, was unable to specify the illness from which the deceased suffered beyond saying that it was `some heart and abdominal problems'; according to Muhammad Umer, it was `'some kidney trouble'; while Abdul Latif and Ghulam Hyder deposed that the deceased suffered from `disease of kidney, urine and stomach'. On the other hand, Mr. Abul Inam and Mr. Jalaluddin Baloch have testified that the deceased appeared to be very sick and had a tube for passing urine attached to his body. Mst. Lai Bibi has deposed that the deceased had urine problem and Ghulam Akbar says that he, the deceased had urinary tube attached to him. Dr. Fazal Ahmed, the physician who attended to the deceased, has deposed that the latter suffered from enlarged prostate gland and that it was a minor illness. His evidence was not challenged or controverted in any manner. Muhammad Iqbal's version that the deceased had some heart or abdominal problem has not been supported by any of the other witnesses and, in fact, belied in the face of cogent evidence on the record. It is clear from the evidence that the deceased at the relevant time, was suffering from enlarged prostate gland causing urinary problem; and that it was not a major illness. There is, thus, nothing in the evidence of any of the witnesses to suggest that the deceased was suffering from such illness as would have made him incapable of understanding the nature of consequences of his actions or of understanding what was said to him or as would induce in him such mental condition that others could prevail upon him or take undue advantage of him.

8. The evidence with regard to the condition of the deceased on the 14th December, 1982, may now be examined. According to Muhammad Iqbal, the deceased had practically lost his senses and had become invalid; and that he could not even recognise friends and relatives. Muhammad Umer deposed that the deceased remained ill for about one year, that his condition before his death was serious and he could not recognise his own children. In cross examination, he stated that for six months before his death the deceased was not able to speak with him. Abdul Latif has said that for more than one year before his death, the deceased was unable to recognise anybody, and Ghulam Hyder has deposed to similar effect. Muhammad Iqbal's evidence that the deceased had practically lost his senses is not supported by any of the other witnesses or by anything on the record, and is obviously exaggerated. Apart from that, the only evidence which all the above witnesses have given is that the deceased was unable to recognise anybody during the period of one to two years before his illness. All these witnesses have made a mere general and, apparently, orchestrated statement as to the mental condition of the deceased without furnishing any details or particulars and the nature of illness from which the deceased suffered, namely, enlarged prostate gland, was not such as would have made him incapable of recognising anybody or losing his senses. Further none of the above witnesses was present when the compromise application was signed and, therefore, were not able to depose to the condition of the deceased at that time. Then evidence is also belied by the more specific and un controverted evidence of the other witnesses. Mr. Abul Inam who was appointed Commissioner for obtaining signatures on the compromise application, made a report which has been reproduced hereinabove and, in his evidence, deposed that the deceased was mentally alert and understood the compromise. Similarly Mr. Jalaluddin Baloch deposed that the deceased was in mentally normal condition, though sick, and understood the compromise. Mst. Lai Bibi has said that the deceased was mentally fit. She has further deposed that he was admitted to hospital on 8th February, 1983,_for operation and was discharged on the 26th February, 1983, whereafter he became perfectly afright.

She also stated that on the 19th May, 1982, the deceased appeared in a Court in connection with some litigation. Ghulam Akbar deposed to similar effect. Dr. Fazal Ahmad deposed that he was treating the deceased since December, 1982, and that he was mentally fit and his reactions and responses were normal. The evidence of those ‑witnesses has not been shaken in any manner and I see no reason to disbelieve them, and in particular, Mr. Abul Inam and Mr. Jalaluddin Baloch who are senior advocates of this Court. Mr. Abul Inam had no concern with the case beyond acting as a Commissioner to obtain signatures on the compromise application. In the event, I am satisfied that on the 14th December, 1982, the deceased was not in such mental state as not to be able to understand what was said to him or what he was signing, or that he could be prevailed upon or taken advantage of by others. Some doubt was sought to be cast on the evidence of Mr. Jalaluddin Baloch by reason of the fact that he was appearing for some of the parties in Suit No.105 of 1972. In my opinion, however, that fact by itself is not sufficient to impeach the evidence of Mr. Baloch. Dr. Fazal Ahmed has been castigated by Mr. Ahsan Shaikh as a hired witness but nothing has been brought on record to substantiate the allegation and no question was put to him or any answer elicited from him to cast doubt on his veracity.

9. The next ground on which the impugned order and the decree have been challenged is that the ' terms of the compromise application were explained to Muhammad Ilyas ,in Sindhi whereas he was ignorant of that language and spoke only Balochi or Makrani and Urdu. Muhammad Iqbal, the applicant, stated that Muhammad Ilyas spoke only Blochi, Makrani and Urdu but his own witness Muhammad Umer, in cross‑examination, admitted that Muhammad Ilyas knew Sindhi. Abdul Latif and Ghulam Hyder testified that Muhammad Ilyas did not know Sindhi but, as against that, Mst. Lai Bibi and Ghulam Akbar stated that Muhammad Ilyas knew Sindhi. Mst. Lai Bibi is the widow of the deceased Muhammad Ilyas and would surely be in a position to know whether .or not her husband spoke Sindhi. Apart from the above evidence, there is the evidence of Mr. Jalaluddin Baloch who stated that he explained the terms of the compromise to Seth Ilyas in Sindhi and that he replied in Sindhi. Mr. Jalaluddin Baloch is supported by Mr. Abul Inam who stated that Seth Ilyas talked in Sindhi. Mr. Abul Inam was cross‑examined as to his own knowledge of Sindhi .and he stated that although he cannot speak Sindhi, he can understand it. I see no reason to disbelieve the evidence given by two senior advocates of this Court and the fact that Mr. Abul Inam does not speak Sindhi does not detract from his assertion that he can nevertheless understand Sindhi. In view of this evidence, I am of the view that the deceased Seth Ilyas spoke and understood Sindhi.

10. The remaining ground, taken in the application; for challenging the impugned order and decree is that they were obtained by misrepresentation of material facts. The application does not contain any particulars of the alleged material facts said to have been suppressed. from the Court for the purposes of obtaining the impugned order and the decree. However, it was urged by mr. Muhammad Ahsan Sheikh the learned counsel for the applicant, that in consequence of the gift contained in the compromise application, the other children of the deceased were deprived of their inheritance and that Ghulam Akbar obtained properties to which in terms of the allegations in paras. 10 and 11 of the plaint in Suit No.105 of 1972, he was not entitled and to which the other sons of the deceased, named in those paras, were entitled. With regard to the question of inheritance, it is sufficient to observe that question arises only after the death of a person and that deceased was within his right to dispose of any property by way of gift during his lifetime. As for the contention that Ghulam Akbar obtained, by the compromise, properties to which the other sons named in the plaint in Suit No.105 of 1972 were entitled, it may be noted that the applicant Muhammad Iqbal was not one of those sons. He was, therefore, not in any manner deprived of any property by the compromise application; and the sons of the deceased who were mentioned m paras 10 and 11 of the plaint as donees have not made any application to have the impugned decree set aside; and, in fact, only one of those sons, namely, Abdul Latif supported the applieation.

11. It was argued by Mr. Muhammad Ahsan Sheikh as well as by Mr. Mustafa Lakhani that a person who is very sick is in the same position as, a Pardanashin lady and, therefore, should have independent advice before signing any document or entering into any transaction and they relied on Shrimati Sabitri Thakurain v. Mrs. FA. Savi and others AIR 1933 Pat. 306. I have already held that the deceased was not sick as not to understand the compromise. In any case, the compromise application was, admittedly, drafted by Mr. Nasim A. Farooqui who was the counsel of the deceased. As for the decision cited by the learned counsel, it does not help them. In that case, it was observed, obiter, as follows:‑‑

"The protection which is given to Pardanashin ladies of this country is not peculiar to them. Such protection has always been given by the Courts to persons who are weak, ignorant and infirm, and unable to look after themselves. In such cases generally the person claiming protection has to prove that as a matter of fact he was on account of the weakness of his power of understanding and intellect liable to be imposed upon by those who would take advantage of his position, and therefore, needs protection. In the case of pardanashin ladies, however, the law presumes them, from the very fact that they live in seclusion, ,to be incapbale of protecting themselves and therefore, entitled to protection:"

12. Mr. Mustafa Lakham further contended that there was no material before the learned Judge to satisfy him that the compromise had been lawfully arrived at. The contention has not been raised in the application and, in any case, is without merit. A compromise application, signed by the parties and their counsel, was presented before the learned Judge and there was nothing unlawful in the contents thereof. There was, further, nothing before him to suggest that the compromise was anything but lawful. In these circumstances, the only course available to him was to accept the compromise and to dispose of the suit in terms thereof. See in this connection Muhammad Vakil v. Muhammad Yasin 1986 CLC 1530, and Abdul Hakim v. Shamim Mushtaq Siddiqui 1986 CLC 2611.

13. Mr. Abdul Rauf contended that Muhammad Iqbal being a stranger to the suit, had no locus standi to file the application under section 12(2), C.P.C. He relied on the decision in Mst. Marium and others v. Haji Ali and others PLD 1985 Kar. 705. It was held in that case that the decree in question there was mainly a declaratory decree which did not operate as judgment in. rem and, therefore, was not binding on the applicants who were neither parties to the suit nor legal representatives of the defendants; and that the word `decree' has been defined as formal expression of an adjudication which conclusively determines the rights of the parties and the word `parties' can only mean parties to the suit or their legal representatives but would not include strangers. It was, accordingly, held that since the applicants were not parties to the suit and the decree was not binding upon them, it could not be said that any decree was obtained against them by fraud and that, therefore, they were not entitled to make the application under section 12(2), C.P.C. The decision cannot apply to the facts of the present case as the applicant is the son of the deceased and has made the application on the ground that the impugned decree was obtained by fraud practised on the deceased by obtaining his signature on the compromise application when he owing to illness and ignorance of Sindhi language, was unable to understand the compromise application. In any case, it has been held in Ch. Jalal Din v. Mst. Asghari Begum. 1984 SCMR 586 that the word `person' in section 12(2), C.P.C. included third persons who are not parties to the suit and is not restricted to the judgment‑debtor or his successor‑in‑interest.

14. The next contention of Mr. Abdul Rauf was that the scope of section 12, subsection (2) was limited and that the present application did not fall within it. He sought support for the proposition from Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam and Imam Ltd. 1989 CLC 2117; Abdul Hakim v. Shamim Mushtaq Siddiqui 1986 CLC 2611, Syed Usman Haider v. Abdul Karim 1987 CLC 769, Syed Usman Haider v. Abdul Karim Qureshi 1987 MLD 2415, Muhammad Vakil v. Muhammad Yasin 1986 CLC 1530 and Mst. Hamida Begum v. Muhammad Saleem 1988 CLC 2456. In the case reported in 1989 CLC 27 i'7 the facts on which the decree was assailed under section 12(2), C.P.C. were already on the record of the suit and had been duly adjudicated upon. The provisions of section 12(2) were, therefore, held not to be attracted. That case is, thus. not relevant to the facts of this case. In Abdul Hamid v. Shamim Mushtaq Siddiqui, decree passed on the basis of a compromise agreement filed by the parties was challenged by the judgment debtor under section 12(2), C.P.C. as having been passed without jurisdiction and it was held that in such circumstances the question of jurisdiction does not arise. That case is also not relevant in the context of the specific pleas taken in the present application which does not contain any ground challenging the impugned order and decree as having been passed without jurisdiction. In Syed Usman Haider v. Abdul Karim, a decree passed ex parte was sought to be set aside under section 12(2), C.P.C. on the ground that the defendant had not received notice of the date of regular hearing. The application was dismissed as misconceived and not maintainable in law; and appeal from decision in that case was dismissed vide judgment reported in 1987 MLD 2415. The facts of that case are obviously entirely different from those of the present case. In Muhammad Vakil v. Muhammad Yasin, it was held that no question of jurisdiction would be involved where duly empowered counsel presented a compromise in Court and the Court accepted the same. In Mst. Hamida Begum v. Muhammad Salim 1988 CLC 2456 a suit by a purchaser for specific performance of an agreement to sell was decreed ex parte and the vendor's suit for cancellation of the agreement was dismissed ex parte; and appeals were filed against orders in both the suits. The parties subsequently compromised their disputes and withdrew their respective appeals. The seller then applied under section 12(2), C.P.C. to have orders allowing withdrawal of the appeals set aside on the ground that she had not entered into any compromise and that the order was obtained by fraud. It was held, on facts, that no fraud had been proved and the seller having been consenting party there was no question of the judgment and decree having been vitiated by fraud. It was observed, `It is only fraud relatable to the proceedings of the suit in which judgment and decree were passed affecting its validity adversely which can be the basis of challenging it'. The same orders were challenged by a third person, claiming to be bona fide purchaser of the property, on the ground that the appeals were withdrawn collusively to defeat his rights. It was held that such facts cannot be the basis for maintaining an application under section 12(2), C.P.C. In the facts and circumstances of this case, which have been set out above, none of the above cases have any application.

15. Mr. Arif Hussain contended that a decree can only be challenged on the grounds available to the judgment‑debtor and relied on State Life Insurance Corporation of Pakistan v. Muhammad Idris 1988 MLD 2750 where it was held that the legal representatives of the deceased judgment‑debtor could attack the decree only on such grounds as were available to the deceased. Had the deceased in this case sought, in his lifetime, to attack the impugned decree on the ground that his signature on the compromise application been obtained by fraud, he would have been entitled to apply under section 12(2). The applicant, being a legal representative of the deceased is, therefore, similarly entitled to challenge the impugned decree. However, in so far as the challenge is based on the ground (which has not been taken in the application but was sought to be urged during arguments) that by the compromise the heirs of the deceased have been deprived of their inheritance, it must fail as that ground was not available to the deceased.

16. The result of the above discussion is that application fails and is hereby dismissed.

F.R./G‑296/K Application dismissed: