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R. S. A. No. 122 of 1968, decided on 15th November 1976.
-- Allegation of fraud and its refutation depends upon evidence on record.
--- S. 114 (g)---Evidence-Production of-Withholding of best evidence in case-Held, It effects on case of party withholding such evidence.
Sardar Gordial Singh v. Sardar Gor Bakhsh Singh A I R 1927 P C 230 rel.
Ayani Dasi v. Arena Bala P L D 1961 Dacca 140 not relevant.
----Protection to pardanashin illiterate ladies while entering into trans actions-Object of rule must remain within due limits.-[Pardanashin lady].
The importance of protection to pardanashin illiterate ladies cannot be over-emphasized The object of the rule, however, must remain within due limits, so that in the event of genuine need of the ladies the other party may not be wary of dealing with them, the criterion for which is always available in the circumstances attending the transaction.
Fida.Muhammad Khan for Appellant.
Sardar Khan assisted by Abdul Aziz Khan Kundi for Respondents.
Date of hearing: 5th November 1976.
This further appeal by Mst. Kashmira Jan through her attorney Yaqub of Jalalia, District Hazara is directed against the appellate judgment of 5-2-1968 passed by the Additional District Judge, Hazara whereby the judg ment and decree in favour of the appellant was set aside and her suit was dismissed.
2. The dispute relates to exchange mutation No. 1663 attested on 17-3-1966, in favour of Mehtab Shah etc.. respondents in consideration of the corresponding exchange mutation No. 1662 in favour of Mst. Kashmira Jan attested on the same date. The grievance of the plaintiff appellant is that she being a pardanashin lady, the mutation in question (No. 1663) was attested without her consent as the transaction of exchange was not explained to her before its attestation.
3. At the trial following were the issues :-
(1) Whether the plaintiff has got a cause of action O. P. P.
(2) Whether the plaintiff is estopped from suing O. P. P.
(3) Whether the suit is competent in its present form O. P. P.
(4) Whether mutations Nos. 1662 and 1663 were rightly attested on 17-6-x963 O.P.D.
(5) On proof of issue No. 4, whether the plaintiff is entitled to the cancellation of these mutations on the following grounds: -
(a) That the plaintiff is illiterate and pardanashin lady and mutations were attested without explaining the true position to her;
(b) that the land given in lieu of the suit property is in possession of a third person and the plaintiff is incapable of getting its possession;
(c) that the mutations were attested without the consent of the plaintiff O. P. P.
(6) Relief.
4. Arguments were mainly addressed on issue No. 5 (c) which is the principal point for determination. On 14- 1-1966 the R. O. detailed Girdawar Circle as Commissioner to record the statement of Mst. Kashmira Jan on mutation No. 1663 (disputed) and mutation No. 1669, the later one being a gift by the same lady in favour of her son Sajawal Khan donee. On 14-1-1966 the statement of Mst. Kashmira Jan on the identification of Mawaz Khan (D. W) was recorded and the mutation of gift Exh. DW I/2 was attested the same day. However, the mutation in question Exh. PW 1/5 and its corresponding mutation Exh. DW 1/1 were attested on 17-3-66.
5. The case of the appellant is that she has been defrauded and the exchange is not acceptable to her, for, the land given to her in exchange is in possession of some other person and the respondents are unable to put her in possession thereof.
6. The allegation of fraud and its refutation depends upon the evidence on file. Whether or not there was in fact false representation made to the appellant by the opposite-party or dishonest artifice was used in bringing about the attestation of mutation in question is resolved by the following discussion.
7. Besides the corresponding mutations of exchange there was another mutation relating to gift by the appellant on which Fazalur Rehman Circle Kanungo has recorded her statement on one and the same date. In this context the statement of Fazalur Rehman reveals that the son of the appellant in whose favour the mutation of gift had beet entered, and on which her statement was recorded, was present who obtained her thumb-impression on both the documents. This fact supports the refutation of the alleged fraud. It cannot be suggested that the son of the appellant was unaware of the purpose for which her statement was recorded, needless to say that he cannot be assumed as being in collusion with the respondents. Moreover, there is nothing to suggest that the Commissioner was in league with the respondent for obtaining the statement of the appellant. Similarly Mawaz Khan who identified the appellant is vocal about the purpose of the statement of the appellant having been explained to her. This takes me to the crux of the matter as to why the transaction of exchange is sought to be cancelled. The reason thereof is not far to seek and is available in the statement of Yaqub P. W. 2 stating: -
I, Ayub and Sajawal had transferred our shares out of Khasra No. 148 in dispute in favour of the defendants. I alongwith Sajawal and Ayub went to take back our share in the suit land from the defendants, and that is (sic) why the plaintiff has brought this suit I have summoned Ibrahim witness who is present outside the Court but I will not produce him as a witness.
What emerges from this statement is that Yaqub was apprehensive of the statement of fact by Ibrahim that the appellant was in possession of land given to her in exchange by the respondent, and that he had relinquished possession of the land given in exchange to the appellant. This fact is borne out by Khasra Girdawari Exh. P. W. 1/3 and Exh. P. W. 1/4 the correctness of which is testified by Syed Anwar Shah Fatwari. Under the circumstances, the learned lower appellate Court was justified in presuming against the alleged fraud observing that the best evidence having been withheld, shall naturally reflect on the case of the party withholding it. The case of B Sardar Gurdial Singh v. Sardar Gor fakhsh Singh (A I R 1927 P C 230) is authority on the subject: -
The practice of not calling the party as witness with a view to force the other party to call him, and so suffer the discomfiture of having him treated as his, (the other party's) own witness is a bad and degrad ing practice, 32 All. 104 (P C) ref. The true object to be achieved by Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination.
The case of Ayani Dasl v. Arena Bala (P L D 1961 Dacca 140) is of no help to the elaborate arguments of Fida Muhammad Khan learned counsel for the appellant, for the simile reason that full understanding of the transaction by the appellant and her independent discretion having been exercised is characterised by the presence of her son at the material time when her statements were taken down by the Commissioner. The importance of pro tection to pardanashin illiterate ladies cannot be over-emphasized. The object of the rule however, must remain within due limits, so that in the event of L genuine need of the ladies the other party may not be wary of dealing with them, the criterion for which is always available in the circumstances attending the transaction.
The outcome of the foregoing narration of facts and short discussion is that the appeal is dismissed; however, the appellant shall not be burdened with costs for the reason that her concern in the matter is not free from genuine doubt.
S.Q. Appeal dismissed.
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