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Regular First Appeal Cases Nos. 190 and 161 of 1979, decided on 23rd November, 1986.

‑‑S. 2‑A [added by Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)] ‑Inheritance through custom Alienation of inherited land‑‑Legality of alienation of land made by person who had inherited such land under custom before 15th March, 1948, held, could not be disputed for land so inherited would be deemed as having been inherited under Muslim Shariat Law‑‑Such person would be absolute owner enjoining full power over it.

Abdul Ghafoor v. Muhammad Shafi P L D 1985 S C 407 ref.

‑‑S. 16‑‑Transfer of Property Act (IV of 1882), S.54‑. Qanun‑e Shahadat Order (10 of 1984), Arts. 70 & 71‑‑Sale transaction‑‑Undue influence‑‑Proof‑‑Oral depositions of witnesses produced by plaintiff to prove mental incapacity of vendor and undue influence of vendees on such vendor in respect of disputed sale transaction, being not based on personal observations or knowledge of witnesses, held, could not be relied upon‑‑Important facts like exercise of undue influence on vendor by vendees and mental incapacity of vendor which could affect sale transactions, could, hardly be established by such unreliable oral evidence.

Munir A. Shaikh for Appellant.

Muhammad Aslam Chattha for Respondents.

Date of hearing: 23rd November, 1986.

The events and circumstances culminating in the present appeal and connected appeal (R.F.A No. 161 of 1979), which arise out of the judgment and decree of the learned Civil Judge, Faisalabad, dated the 24th April, 1979, may be briefly described. One Chaudhry Jhandey Khan was owner of agricultural land lying in the area of village Mari Bachian, Tehsil Batala, District Gurdaspur, before Independence. In matter of succession and alienations he was governed by agricultural custom. After his death the land was mutated in the names of his sons, Saad Ullah Khan, appellant, Nemat Khan, deceased defendant 1, Karamat Ullah Khan, father of respondents 6 to 9, and Daulat Khan. After Independence the late Nemat Khan, who migrated to Pakistan, was transferred the land in dispute situated in the area of Chak No. 1101J. B. , which constituted evacuee property in lieu of the land to which he had succeeded on the death of 1 father and which he had left behind in village Mari Bachian transferred the land in question to the respondents by separa transactions of sale regarding which Mutations Nos. 425 and 427 we attested on the 22nd April, 1974, and Mutations Nos. 428 and 429 we sanctioned on the 21st May, 1974. On the 2nd September, 1974, t brother, Saad Ullah Khan, appellant, instituted suit against him the respondents challenging the validity of these alienations of sale The appellant maintained that sales had been effected without any leg necessity and consideration under undue influence exercised 1 respondents 6 to 9.

2. Nemat Khan and the respondents contested the suit. Apart fro disputing the ancestral nature of the land and asserting inapplicability of the rule of custom to the transactions, which contentions of theirs were not found to be correct, they averred that the sales had take place for valid necessity and consideration without any exercise undue influence upon Nemat Khan.

3. The learned trial Court formed the view that the alienation were the result of undue influence that respondents 6 to 9 brought bear upon Nemat Khan. It concluded that the sales were without leg necessity though for a consideration of Rs.2,04,000. The learned Coin granted the declaration that the sales in dispute were void and ineffectual on the plaintiff's rights. Since Nemat Khan died during the pendency of the suit it added the caveat that as the sales had taken place of consideration of Rs.2,04,000 the defendants (meaning the appellant a well) would be entitled to possession of the land on payment of the said amount. Whereas respondents 1 to 8 assailed the validity of the judgment and decree in the other appeal (R.F.A. No. 161 of 1979) the appellant confined his challenge to the correctness of the condition of payment of Rs.2,04,000 imposed by the learned trial Court.

4. The law laid down by the Supreme Court of Pakistan in Abdt Ghafoor v. Muhammad Shafi P L D 1985 SC 407, while interpretin section 2‑A of the West Pakistan Muslim Personal Law (Shariat) Act 1962 (V of 1962), added by section 2 of the Punjab Muslim Persona Law (Shariat) Act (Amendment) Ordinance, 1983 (XIII of 1983) disentitles the appellant to dispute the legality of the alienations under custom because Nemat Khan would be deemed to be full owner of the land in dispute. Consequently the appellant's suit in so far as it sough to get declared the sale transactions to be void and ineffectual on hi rights on account of their being violative of the rule of custom would not be maintainable and he could very well be non‑suited on that account. It follows that the appellant's appeal to question the impositioin of condition of payment of Rs.2,04,000 becomes redundant ant infructuous.

5. It remains to be seen as to how far the finding of the learned trial Court that the sale transactions were the outcome of exercise o: undue influence by respondents 6 to 9 upon Nemat Khan deceased is correct.. The evidence brought on the record by the appellant to establish existence of undue influence needs to be perused and appreciated. The appellant's evidence on this point consists of his own statement which he made on the 11th July, 1977, and oral depositions of three of his witnesses, namely, Azam Ali, P.W. 2, Bootey Khan, P.W. 4, and Muhammad Iqbal, P.W. 5, which were recorded on the 4th December, 1975. Azam Ali, P.W.2, said that defendant 1 (Nemat Khan deceased) had been living with respondents 6 to 9 for the last two years and was under their influence. He added that Nemat Khan, due to his old age, was bereft of any sense of wisdom and was not in a position to distinguish between good and bad. However, in cross‑examination he admitted that it was 15/16 years back that he had seen Nemat Khan for the last time. It means that his statement that Nemat Khan had been living with respondents 6 to 9 for about the last two years and had been under their influence was not based on personal observation or knowledge. Therefore, it was not worth placing reliance upon.

6. Bootey Khan, P.W. 4, said that Nemat Khan was living with respondents 6 to 9, that he had no eyesight, was mad for the last two years, was not in full senses and could not discriminate between good and bad. He added in cross‑examination that about three years had past since he had last met Nemat Khan. It shows that the statement he made regarding Nemat Khan's state of health obtaining during the last two years was not based on his personal knowledge.

7. Muhammad Iqbal, P.W. 5, stated that Nemat Khan had been living for the last 1‑3/4 years with respondents 6 to 9, he had a weak health and he had no eyesight for the last 20/25 years. He conceded in cross‑examination that it was 1‑3/4 years before that he had seen Nemat Khan. It is clear that he had no occasion to see him with respondents 6 to 9 when the transactions of sale were effected. His evidence is no better than that of Azam Ali and Bootey Khan.

8. As P.W. 6, Saad Ullah Khan, appellant, simply deposed that Nemat Khan had been under the influence of respondents 6 to 9 and that respondent 9 had procured from him power of attorney saying that he had to take proceedings for eviction of tenants but as admitted by him he was not present when the power of attorney was scribed and executed.

9. This type of oral evidence can hardly establish such an important fact as the exercise of undue influence by respondents 6 to 9 upon Nemat Khan. The respondents, in their oral evidence, denied bringing Nemat Khan under their undue influence. The finding of the learned trial Court is not borne out by the evidence b‑ought on the record by the appellant. Consequently the same has to be reversed. Therefore, B the alienations of sale in dispute cannot be disturbed.

10. In view of what has been said above this appeal is dismissed and the other appeal (R.F.A. No. 161 of 1979) is accepted, the judgment and decree of the learned trial Court are set aside and the appellant's suit is dismissed. The parties are left to bear their own costs.

H.B.T./597/L Appeal dismissed

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