Mst. SULTAN And Others vs Mst. WALLAN And Other
This civil petition for leave to appeal before the Supreme Court of Pakistan arises from a suit instituted by Mst. Wallan challenging the validity of a gift of 200 Kanals of landed property made in favour of her late husband's father and her minor daughters, along with the corresponding mutations attested in 1968. The plaintiff sought cancellation of the gift on grounds of undue influence, intimidation, and coercion. The trial court decreed the suit, but the first appellate court set aside the decree. On second appeal, the High Court allowed the plaintiff to amend her plaint to include a prayer for possession and restored the trial court's decree. The petitioners, heirs of the deceased donee, contended before the Supreme Court that the High Court erred in permitting amendment of the plaint at the second appeal stage when the suit's maintainability had been initially challenged, and that the finding on undue influence was a question of fact not subject to interference in second appeal. The Supreme Court granted leave to appeal to consider these legal contentions.
- Whether a High Court in second appeal can allow an amendment of the plaint to add a relief for possession when maintainability was questioned at trial?
- Whether a finding by the first appellate court regarding undue influence constitutes a finding of fact that is immune from interference in second appeal?
ORDER
M.S.H. QURAISHI, J.--Mst. Wallan was married to Khushi Muhammad from which marriage she had two daughters, namely, Mst. Bashir Bibi and Mst. Amir Bibi (respondents 2 and 3). Khushi Muhammad died sometime in 1964/1965, where after she made a gift of her landed property measuring 200 Kanals in favour of Fattu (father of Khushi Muhammad) and her aforesaid daughters Mst. Bashir Bibi and Mst. Amir Bib! Then minors. The relevant mutations of the gift were attested on 20-3-1968. At this stage, the exact time of which is not being furnished, Mst. Wallan married one Yousaf. On 20-5-1970, she brought a suit to challenge the said mutations and also the validity of the gift, on the ground that the same had been the result of undue influence, intimidation and coercion. The suit was contested and a number of issues were framed but her contentions prevailed and the suit was decreed on 8-5-1972. The decree was, however, set aside, on 16-6-1975, in appeal preferred by the donees, whereupon Mst. Wallan brought a second appeal before the High Court which was accepted, her application made before the High Court for amending the plaint in order to include the relief of possession was allowed and the decree passed by the trial Court was restored. Fattu having died during the pendency of the second appeal, his heirs have moved this petition for leave to appeal.
2. It is submitted that Mst. Wallan had admittedly been out of possession of the disputed property and although the maintainability of the suit in the form originally presented had been contested and issue No. 4 had been struck in that regard, yet she had not cared to amend the plaint until the stage of the second appeal. It is, therefore, urged that the High Court ought not to have allowed her to amend the plaint. It is also urged that the question whether the transaction had been the result of undue influence being one of fact, the finding thereon by the first Appellate Court was not open to interference in second appeal.
3. The contentions require consideration. Leave to appeal is accordingly granted. Security Rs.1,000.
The order of status quo already passed on 26-5-1980 shall continue.