Mst. HAFIZA BIBI vs ALI HUSSAIN and others

' ABDUL SHAKURUL SALAM, J.---This appeal by leave is against the judgment of a learned Judge of the Lahore High Court in R.S.A. No,110 of 1970 dated 2-7-1989.

1. Relevant facts are that one Muhammad Amin died sometimes in July, 1963. A mutation of inheritance was sanctioned in favour of his heirs by which the appellant a daughter got 7/88th shares. Her share was alleged to have been alienated by her in favour of respondents No,1 and 2, her stepbrothers through a sale-deed executed on 30th September, 1963 and registered on 1st of October, 1963. The appellant filed a suit on 3-1-1964 for cancellation of the sale-deed on the ground but she had never alienated the land and the sale-deed was a result of fraud, before the Civil Judge, Narowal. During the course of the trial, the appellant stated that she had come at the time of 'Chehlum' of the parties deceased father and stayed in the house of the respondent No,1 for about two months. She was asked to thumb-mark, various papers in connection with some litigation which she did. But she never sold nor alienated her share of the land nor appeared before any authority. After perusal of the evidence on record brought forth by the parties, the learned trial Court decreed the appellant's suit vide judgment and decree dated 6-1-1968. Respondents Nos.1 and 2 filed an appeal which was accepted by the learned Additional District Judge, Sialkot vide judgment and decree dated 20-9-1969. The appellant filed second appeal in the Lahore High Court which was dismissed vide order dated 12-4-1989. The appellant was granted leave to appeal to consider the contention that the petitioner being a Pardanashin lady and independent advice being not available to her when the purported alienation was made in favour of A her brothers, the resultant transaction should not have been accepted as valid, in view of the law laid down by this Court in Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1); Janat Bibi v. Sikandar Ali and others" (PLD 1990 SC 642) and earlier case" vide order dated 4-6-1990.

2. Learned counsel for the appellant has submitted that after the demise of the father of the contesting party, the appellant had come to the house of the respondent No,] where the deceased had died and while she was there, she was asked to thumb-mark various papers in relation to some litigation. The appellant never intended nor in fact sold her share of the land and the sale- deed was fraudulently got registered.

3. Learned counsel for the respondents has contended that the sale is through a registered deed and the matter is concluded by a finding of fact.

4. It has come in evidence that the appellant is a married woman. She had come to the house of her brothers, though step, at the time of 'Chehlum' of their father and stayed there for about two months and was treated very nicely. At the time of alleged alienation, her husband was not there.

The alienate stood in fiduciary relationship. In the absence of independent advice, in view of the long established law from Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmed and another (1925 PC 204), and lastly declared by this Court in Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) the transaction cannot he substained. Therefore, the appeal is allowed, and the judgment and the decree of the learned trial Court restored. In the circumstances the parties are left to bear their own costs.