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Civil Appeal No.65 of 1976, decided on 3rd December, 1980.

(On appeal from the judgment and order dated 22‑3‑1971 in R.S.A. No. 249 of 1971 of the Lahore High Court, Lahore).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 100‑‑Second appeal‑‑Leave to appeal granted to consider contentions that summary disposal of appeal by High Court was not in consonance with correct legal principles governing admission of second appeals in cases where there was no concurrent finding of fact; and that question of undue influence allegedly exercised by vendee over vendor had not been considered in its proper perspective as views of both Courts below, namely, Trial Court and District Court had not been duly examined, and no reasons were given for preferring one view to other.

(b) Civil Procedure Code (V of 1808)‑‑

‑‑O. XXI, R. 101‑‑Supreme Court Rule, 1980, O. XIX, R.5‑‑Suit for possession without asking for cancellation of registered sale‑deed‑‑Plea neither urged before lower Courts nor in petition or concise statement before Supreme Court‑‑Effect‑‑Maintainability‑‑Objection of appellant/ defendant, that suit for possession filed by respondent/ plaintiff was not maintainable without asking for cancellation of registered sale‑deed, though raised in written statement yet matter was not elaborated any further before trial Judge who declared issue against appellant and when matter was taken up by him in first appeal to District Court and then in Second appeal before High Court, no attempt was made on his behalf to agitate point‑‑In petition for leave to appeal and even in concise statement submitted by appellant, this point was riot mentioned‑ Objection in circumstances, held, could be stated to have been given up by appellant and same could not be allowed to be raised in arguments in appeal before Supreme Court‑‑Defect, could have been easily remedied if appellant had seriously pressed objection.

Ramchandra v : Laxman A I R 1945 P C 54; Abdullah Khan v . Nisar Muhammad Khan P L D 1965 S C 690 and Hamido Begum v. Murad Begum P L D 1975 S C 624 ref.

Civil Procedure Code (V of 1908)‑‑

‑‑‑S. 9‑‑Suit for possession‑‑Defect as to maintainability‑‑Question of law raised at proper time‑‑Effect‑‑A pure question of law which could be raised at any stage and Court duty bound to apply law which has to be given effect to, whether it has been relied on by a party or not‑‑Where objection as to defect even if based on a question of law not raised at proper time when it could have been easily rectified, same, held, could not be allowed to be raised at a belated stage.

(d) Civil Procedure Code (V of 1908)‑‑

‑‑‑S. 9‑‑Suit for possession‑‑Want of consideration and exercise of undue influence over vendor by vendee‑‑Appellant/defendant contending that no specific averment was made in plaint by respondent regarding his challenge to transaction of sale on grounds of want of consideration and exercise of undue influence‑‑Contents of plaints showing that a clear assertion was made there that sale was fictitious and without consideration and that it was effected under undue influence‑‑An issue was framed by Trial Court to give effect to these pleadings and evidence was also led in this very context‑‑Contention repelled.

Registration Act (XIV of 1908)‑‑

‑‑‑S . 60‑‑Suit for possession‑‑Want of consideration and exercise of undue influence‑‑ Vendee son of vendor‑‑Sale‑deed reciting that vendor had received sale price at home and that nothing was to be paid to vendor at time of registration‑‑Registrar's endorsement relating to admission apparently made before him by vendor to the effect that he had received sale price and only presumption of correctness arising out of said admission‑‑One of marginal witnesses produced as a defence witness not stating anything as to payment of consideration in his presence‑‑Vendor stated to be an old, sick and blind person living with vendee in same house‑‑Vendor who could take advantage of this situation, held, ought to have produced sufficient evidence to show that consideration had been actually paid which he failed to do‑ Conclusion arrived at by Courts below that sale was without consideration and brought about as a result of undue influence upheld in circumstances.

Risal Singh v. Monohar A I R 1927 Lah, 748, Raghavendra v. Venkatasaml A I R 1930 Mad. 251; Muhammad Hayat v. Muhammad Nawaz P L D 1971 S C 366 and Pirla v. Noora P L D 1978 Lah. 6 ref.

Riaz Ahmad Pirzada instructed by Ch. Akhtar Ali, Advocate‑on- Record for Appellants.

Karim Bakhsh with Yaqub Hussain Zaidi, Advocate‑on‑Record for Respondent.

Date of hearing: 2nd December, 1980.

This appeal, by the leave of the Court, is directed against the judgment of the Lahore High Court dated the 22nd of March, 1971, by which the second appeal filed by the appellants against the judgment and decree of the learned District Judge, Campbellpur, was dismissed. The appellant Qazi Altaf Hussain was the defendant in the suit, and appellant No.2 Mst. Haji Begum has since purchased the disputed property from him.

The dispute concerns one‑half share in a residential house situate in the town of Campbellpur. The respondent Ishfaq Hussain, who is a brother of the appellant Qazi Altaf Hussain, instituted a suit in civil Court at Cambellpur on the 27th of April, 1967, for possession of his one‑half share on the ground that the house was jointly owned by both the brothers, but the defendant Altaf Hussain was interfering with his enjoyment of the property. The respondent further alleged that the house had been in actual occupation of their father Qazi Muhammad Ghous, but the def6ndant had been claiming that he had purchased the disputed share from their father, but such a claim was contrary to facts; and that in any case, their father was not competent to sell the property to the defendant on account of his physical inability and dependence upon the defendant.

The defendant resisted the suit on the ground that the house was originally owned by their father, who sold one‑half share to the defendant by means of a registered sale‑deed, dated the 10th of May, 1983, and as such the plaintiff had no right or interest in the same. He also contended that the suit was not maintainable, and that it was barred by time.

By his judgment, dated the 10th of May, 1969, the learned trial Judge found that although the suit for possession was maintainable in its present form, yet the plaintiff was not entitled to a decree for the reason that the house had been constructed by the father of the parties, and that one‑half share therein had been sold by the father in favour of the defendant by means of a registered sale‑deed, dated the 10th of May, 1963; and there was no evidence in support of the assertion that the sale had been made under undue influence. The question of limitation was not pressed before the trial Court.

The plaintiff‑respondent filed an appeal in the District Court, which was accepted by the learned District Judge by his judgment, dated the 11th of February, 1971. He held that it was established 'that the vacant site had been purchased by the father of the parties by means of the registered sale‑deed, dated the 1st of September, 1932, in the names of the plaintiff and the defendant, that the house was constructed by him in 1936 with his own funds, and, therefore, it must be treated as being the property of the father. He further found that the sale of the disputed portion in favour of the defendant stood vitiated for the reason that it was without consideration, and had been effected by an ailing old man of about 78 years of age, at a time when he was completely depending upon the vendee, who was looking after him during his prolonged illness; and further, that the sale‑deed was executed at a time when the vendor had lost the eye‑sight, and there was no reason why he should have sold the house in favour of one of his sons only. The question regarding the maintainability of the suit in the present form was not pressed before the learned District Judge on behalf of the defendant. On the findings recorded by him, the learned District Judge reversed the judgment and decree of the trial Court and decreed the suit in favour of the plaintiff.

It was now the turn of the defendant to go up in second appeal to the High Court, but the same was summarily dismissed by a learned Judge by his judgment, dated the 22nd of March, 1971, mainly on the ground that the matter was concluded by a finding of fact namely, that the sale in favour of the appellant was without consideration. The learned Judge observed that all the attendant circumstances of the case had been properly considered by the lower appellate Court, and its judgment could not be said to suffer from any infirmity, to which exception could be taken in second appeal.

Leave to appeal. was granted to consider the contentions that the summary dismissal of the appeal by the High Court was not in consonance with the correct legal principles governing the admission of second appeals in cases where there was no concurrent finding of fact; and that the question of undue influence had not been considered in its proper perspective, as views of both the Courts below, namely, that trial Court and the District Court had not been duly examined, and no reasons were given for preferring one view to the other.

Mr. Riaz Ahmad Pirzada, learned counsel appearing for the appellants has raised the following points for our consideration:‑

(a) that the suit filed by the respondent was not maintainable in its present form, as he had not asked for cancellation of the registered sale‑deed, and without such cancellation he could not obtain a decree for possession;

(b) that there was no, specific averment regarding want of consideration and exercise of undue influence in the plaint, nor was any issue framed on these points, with the result that the plaintiff was not entitled to lead evidence in this behalf and to obtain a decree on this basis;

(c) that, in any case, both the Courts below had misread the entire evidence in holding that no consideration was paid and undue influence was exerted on the vendor; and

(d) that they have completely ignored the implications of a registered sale‑deed, as a presumption of correctness attaches to the endorsements made thereon by the Sub‑Registrar, and one of these endorsements clearly recited that the vendor had admitted receipt of consideration.

In support of the first contention Mr. Pirzada has referred us to Ramchandra v. Laxman A I R 1945 P C 54; Abdullah Khan v. Nisar Muhammad Khan P L D 1965 S C 690 and Hamido Begum v. Murad Begum P L D 1975 S C 624. He submits that no relief could be given to the plaintiff without the cancellation of the registered sale‑deed, which was admittedly with the knowledge of the plaintiff. The learned counsel further contends that as the sale‑deed was registered on the 10th of May, 1963, the suit filed by the plaintiff on the 27th of April, 1967, would, in any case, be barred by time in so far as relief of cancellation of the registered sale‑deed was concerned.

"We may first observe that the argument as to limitation is not correct, even if the plaintiff was under an obligation to ask for the cancellation of the registered document. In the case of Mst. Hamida Begum, on which Mr. Pirzade has himself relied. It was held that the phrase when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to plaintiff in Article 91 must be construed to mean when having knowledge of such facts a cause of action has accrued to the plaintiff and he is in a position to maintain his suit, and, accordingly, limitation under Article 91 commences not when the plaintiff acquires knowledge of facts which render the instrument void able, but of facts entitling the plaintiff to have the instrument cancelled or set aside. It was further added that Muhammadan Law does not recognize spes succession is, and such suit brought by a Muslim during the lifetime of his father to challenge gift made by the latter on the ground of undue influence was not maintainable, and limitation under Article 91 in such a case would start running from date of death of the father. On this view of the matter it would appear that the suit filed by the plaintiff /respondent on 27‑4‑1967, was well within time even if he had asked for the relief of cancellation of the registered sale‑deed, as the plaintiffs father had died only three months before the institution of the suit.

We notice that although in the written statement it was contended that the suit was not maintainable in its present form, but apparently the matter was not elaborated any further, and it was for this reason that the learned trial Judge declared this issue against the defendant. When the matter was taken up in appeal to the District Court by the plaintiff, no attempt was made on behalf of the defendant‑appellant to agitate the point that the suit filed by the plaintiff was not maintainable for the reason that he had not asked for the cancellation of the registered sale‑deed. When the defendant came up in second appeal to the High Court, this plea was again not agitated; nor was it raised in the petition for leave to appeal submitted in this Court. We further find that even in the concise statement submitted by the appellants, this point is not mentioned. From these facts it appears that the objection as to the maintainability of the suit for possession, without asking for cancellation of the registered sale-deed, had been given up by the defendant. We are not inclined to permit this question to be raised at this late stag, for the reason that the suit was filed as long ago as 1967, and the defect could have easily been remedied, if the defendant had seriously pressed the objection as to the maintainability of the suit in its present form.

Mr. Pirzada nevertheless contends, on the authority of observations appearing in the case of Abdullah Khan referred to above, that a pure question of law can be raised at any stage, and it is the duty of the Court itself to apply the law, which has to be given effect to whether it has been relied upon by a party or not. As an abstract proposition there can hardly be any cavil with these observations, but we have already seen that in the present case the defect as to the maintainability of the suit could easily have been rectified if the objection had been pressed at the proper time, as the suit had been filed well within the period of three years allowed by Article 91 of the Schedule to the Limitation Act, from the date of the death of the plaintiffs father. It would, therefore, be highly unfair to permit this objection to prevail after the lapse of 13 years since the suit was filed.

The next contention that there was no specific averment regarding want of consideration and exercise of undue influence in the plaint, nor was any issue framed on these points, is not factually correct. We find that in paragraph 3 of the plaint it is clearly asserted that the sale was fictitious and without consideration, and that it was effected under undue influence. The words used in Urdu are " BILLA BADAL " in respect of consideration, and " TEHAT DAAB NAJAAIZ " in respect of undue influence. The learned counsel wants us to interpret the words DAAB NAJAAIZ as coercion and not as undue influence. We find, however, that all the Courts below, as well as the learned counsel appearing for the parties, have interpreted these words as indicating undue influence and it was in this sense that the learned trial Judge translated the averments of the plaint in paragraph 2 of his judgment, dated the 10th of May, 1969; and Issue No. 7‑A was framed to give effect to these pleadings. Evidence was also led in this very context, and, accordingly, it is now too late in the day to submit that objections as to consideration and undue influence were not raised in the pleadings nor were reflected in the issues framed at the trial.

The last contention as to the presumption of the correctness attaching to the endorsements made on the sale‑deed by the Sub Registrar may be taken up first, before we consider the question whether both the Courts below have misread the entire evidence in this case for the purpose of arriving at adverse findings against the appellant.

In Risal Singh v. Monohar A I R 1927 Lah. 748, Raghavendra v. Venkatasaml A I R 1930 Mad. 251, Muhammad Hayat v. Muhammad Nawaz P L D 1971 S C 366 and Pirla v. Noora P L D 1976 Lah. 6, it has been observed that under section 60 of the Registration Act a presumption of correctness attaches to the certificate endorsed on the sale‑deed by the registering officer, and such certificate is admissible for the purpose of proving that the document has been duly registered in the manner provided by law and that the facts mentioned in the endorsement have occurred as therein mentioned. Now, in the present case, the sale‑deed recites that the vendor had received the sale price of Rs.3,000 at home and nothing was to be paid to him at the time of registration. The Registrar's endorsement relates, therefore, only to an admission apparently made before him by the vendor to the effect that he had received the sale price. This is, however, only a presumption of correctness, and the question still remains whether, in the facts and circumstances of this case, the presumption arising out of this admission of the vendor stands rebutted. This question cannot be answered independently of the evidence led by the parties on both the) points, namely, want of consideration and exercise of undue influence.

It is significant that although one of the marginal witnesses of the sale‑deed, namely, Qureshi Sultan Jan was produced as a defence witness, yet he did not state anything as to the payment of consideration in his presence. Both the Courts below have rightly taken note of this omission as showing that, in fact, nothing was paid to the vendor. The learned District Judge has reviewed the entire evidence, and it is not correct to say that the learned Judge in the High Court has not considered the same. The Courts below have observed that there was nothing to show that the vendor needed the money for his treatment as the vendor was living with his son who was ostensibly looking after him, and it is not asserted that the vendee wanted to be reimbursed for the expenses incurred by him on maintaining his father.

It is further intriguing that during his old age the father of the parties took a third wife, even though, according to the appellant, he was getting only a meagre pension of Rs.22 per mensem, if, indeed, the monthly pension of Rs.22 was the only means of subsistence available to the vendor, then it is difficult to understand how he was able to enter into a third marriage in his old age, so that his sons would have to support a stepmother. It seems to us, therefore, that these admissions made during the trial by the appellant Qazi Altaf Hussain are sufficient to negative his assertion that the vendor was in dire need of money, which compelled him to sell the disputed house to one of his sons to the exclusion of the other.

The question as to want of consideration cannot be viewed in isolation from the connected question of exercise of undue influence. It was admitted by the appellant himself that his father's eyesight had become very weak, although he could recognise persons, who met him. He has further stated that his father could write but he could not read on account of weak eyesight; but on the sale‑deed the vendor, has not appended his signatures, but has put his thumb‑mark only, thus furnishing a plausible ground for the finding recorded by they Courts below that the vendor was an old, ailing and blind man of whose presence in his house the appellant took advantage and induced him to thumb‑mark the sale‑deed in his favour. We are of the view that the learned District Judge has rightly remarked that: "Although the sale‑deed contains an admission of the executants about the receipt of consideration, but in view of the fact that the respondent was dealing with an old and sick person, he should have produced sufficient evidence to show that the consideration had been actually passed".

Taking an overall view of all the attendant circumstances of the transaction of sale relied upon by the appellants, we find ourselves in agreement with the conclusions recorded by the learned District Judge and upheld by the High Court, to the effect that the sale was without consideration, and was brought about as a result of undue influence.

On this view of the matter, the present appeal fails and is hereby dismissed with costs.

M . Y . H . Appeal dismissed.

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