Mst. MUMTAZ vs AFSAR KHAN And Another
This matter concerns a petition for leave to appeal against a High Court judgment that reversed an appellate decree in a declaratory suit. The petitioner, a woman, sought a declaration that mutations of land alienation in favour of her former husband were void, alleging fraud, collusion, and lack of protection as a Pardanashin lady. The trial court dismissed the suit, but the appellate court decreed it in her favour. The High Court subsequently restored the trial court's dismissal in its revisional jurisdiction. The Supreme Court examined whether the petitioner was a victim of fraud or suffered from any disability as a Pardanashin lady. The Court held that the petitioner actively participated in the transactions, thumb-marked entries, and failed to explain her conduct. Furthermore, she sought to retain the benefits of an exchange transaction while challenging the corresponding alienation, which the Court deemed impermissible. Finding no evidence of fraud or disability, the Court refused leave to appeal, affirming that the principles regarding Pardanashin ladies were inapplicable where the party actively participated and benefited from the transactions.
- Can a party challenge an exchange transaction while simultaneously retaining the benefits received from it?
- Does the doctrine of protection for a Pardanashin lady apply when the party actively participates in the transaction and suffers no practical disability?
- Is a party entitled to claim fraud in a land alienation transaction if they have thumb-marked the relevant entries and participated in the proceedings?
ORDER
1. MUHAMMAD AFZAL ZULLAH, CJ.---Leave to appeal has been sought by plaintiff in a declaratory suit; against the acceptance by the High Court, of respondents' Civil Revision.
2. The petitioner had sought declaration to the effect that she continues to be the owner in possession of the suit land notwithstanding the attestation of mutations of alienation from her side in favour of respondent No.1 as according to her, the same were based on fraud, collusion and thus were ineffective. The suit was dismissed by the trial Court. It was, however, decreed on petitioner's appeal but the appellate judgment was reversed by the High Court in its revisional jurisdiction; and the trial Court judgment and decree of dismissal of petitioner's suit was restored. In reality the question of alleged fraud and collusion etc. Has been linked by the petitioner with respondent No.2, who is her erstwhile husband---the marriage between the two allegedly having 'been dissolved.
3. The circumstances which have gone against the petitioner's plea of fraud or even the plea regarding protection to a Pardanashin lady are; firstly, that she actively participated in the transactions and had not suffered any handicap. She had also thumb-marked certain entries and there is no explanation. Not only this, the husband of the petitioner i.e. Respondent No.2, had appeared with her during the mutation proceedings and she appeared several times and her interests were then fully protected even if the questions relating to her being a pardanashin lady are brought under scrutiny. Not only this, one of the transactions was an exchange. The petitioner while alleging fraud regarding the entire exchange, accepted the property received in exchange and was not willing to give it away. She strangely enough wanted to avoid that part of the exchange transaction in which she had to part with her property given in exchange of the property retained by her. She could not have been allowed both the benefits. It is doubtful whether she was the victim. Of fraud. As to what really happened on account of which she felt aggrieved and then subsequently the marriage also was ultimately dissolved, remained shrouded in mystery.
4. Be that as it may, neither the allegations regarding fraud and collusion having been accepted by the learned Court below nor it seems that the petitioner suffered from any practical disability as a Pardanashin lady. And as distinguished from the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 the present case is not such in which any of the principles laid down therein would be helpful to the petitioner. Leave to appeal, accordingly, is refused.