Agreement with deaf and dumb and Old age and a loud listener |
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| Boorhe or kan sunnai dene wale se property kharidna |
Latest case law Supreme court ka latest faisla ha ju ke Topic per ha ke agar ooncha sunne wala or bolne main doshwari mahsoos karne wale se property kese kharidi ja sakti ha.
Fathe Muhammad parental uncle tha parties ka.
Respondents ne property 20 lakh main kharidi uncle se ju ooncha sunta tha or bol bhi sahi se nahi sakta tha
Uncle ki death ke baad dosre warso ne case kar dia or sale ko or intiqal ko challenge kar dia.
Or dawa kia ke yeh sale fraud ki banyad per hoi hai or qabal e mansookhi ha.
Dawa civil court ne decree kar dia.
Magar Appellate court ne dicree ko setaside kar dia or High court ne faisla Appellate court ka barqar rakha.
Jiss ke baad appellant ne leave to appeal file ki ju allowed hu gai or Trial court ka faisla bahal kar dia gia
Supreme court ne qarar dia ke appellate court ne or High court ne faisla iss banyad per dia tha ke property taqseem hu chuki thi or taqseem ka appellant ko ilam tha.
Magar Appellant ne apne bian main kaha ke us ko notice serve nahi hoe the or partition ke baare main koi ilam na tha.
Record main koi aisi evidence mojod na thi jiss se pata chalta ke appellant ko notice mile the ya pata tha lihaza appellate court or High court ka faisla record ke bar akas hai. Appeal Allowed.
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Judgement
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Bench:
Mr. Justice Jamal Khan Mandokhail
Mr. Justice Syed Hasan Azhar Rizvi
Civil Appeal No. 415 of 2018
(On appeal from the order of the Lahore High Court, Multan Bench, Multan
dated 22.03.2017 passed in Civil Revision No. 737-D of 2013)
Zaffar Afzal & others
...….Appellant(s)
Versus
Ashiq Hussain
….Respondent(s)
For the Appellant(s):
Mr. Zulfiqar Khalid Maluka, ASC
For the Respondent:
Mr. Javed Akhtar Wains, ASC
Date of hearing:
12.04.2023
JUDGMENT
Jamal Khan Mandokhail, J.- Brief facts of the case are that one
Fateh Muhammad was a paternal uncle of the parties. He was
hard of hearing, non-verbal and uneducated. He was living with
the respondent and died issueless. Fateh Muhammad owned a
property (“property in question”) which was transferred in the
name of the respondent vide sale mutation No. 588 dated 30 June
2003 (“the disputed mutation”). The appellants, being Fateh
Muhammad’s niece and nephews and also the brothers of the
respondent, filed a suit for declaration and cancellation of the
disputed mutation on the pretext that it was a result of fraud. The
respondent contested the suit alleging therein that he had lawfully
purchased the property in question from Fateh Muhammad
through an oral sale agreement in consideration of Rs.2,000,000/-
(Rupees Twenty Lac) paid in cash. The Civil Judge, Lodhran (“Trial
Court”) vide judgment and decree dated 16.07.2013, decreed the
suit in favour of the appellants. The respondent filed an appeal
before the Additional District Judge, Lodhran (“Appellate Court”),
C.A. No. 415 of 2018
which was allowed vide judgment and decree dated 05.10.2013,
and the suit filed by the appellants was dismissed. The appellants
filed a Civil Revision before the Lahore High Court, Multan Bench,
Multan, which was dismissed through the impugned order,
maintaining the judgment and decree of the Appellate Court.
Feeling aggrieved, the appellants filed a petition which was
converted into an appeal through an order dated 13.03.2018 and
is reproduced below:
“In the instant case the matter in issue is an oral sale by a
deaf and dumb person. It is contended by the learned
counsel for the petitioners that the petitioners/plaintiffs
challenged the sale claiming that it was a result of fraud and
that there isn’t sufficient evidence on record to establish the
consent of the deceased seller for the transaction. It is added
that the consideration was rupees two million and the
availability of the said amount and its payment and
subsequent safe keeping is also not established on record
through cogent and reliable evidence. The learned counsel for
the respondent controverts the contentions raised on behalf
of the petitioners and states that all these questions have
been answered in favour of the respondent by the appellate
Court as well as the revisional Court.
2.
Leave to appeal is granted, inter alia, to consider the
contentions of the learned counsel for the parties. Let the
appeal be listed down for hearing in the year 2018. Both
parties shall be at liberty to file additional documents if
necessary.”
2.
The learned counsel for the appellants states that Fateh
Muhammad was hard of hearing and non-verbal, therefore, was
not capable of entering into any agreement or transaction by
himself. He adds that even otherwise, the respondent is claiming
an oral sale transaction, but has not been able to prove the same,
therefore, the disputed mutation was a result of fraud. He states
C.A. No. 415 of 2018
that the disputed property is the leftover property of Fateh
Muhammad which devolves upon the parties being his legal heirs.
3.
The learned counsel for the respondent, though opposed the
contentions of the learned counsel for the appellants, admitted
that Fateh Muhammad was a person with disabilities and was
uneducated, however, stated that he was capable enough to
understand the terms and conditions of the agreement, therefore,
the transaction in respect of the property was with his free will and
consent. He stated that before attestation of the mutation, the
revenue authorities in order to satisfy themselves called an expert
to translate the expressions and signs of communication of Fateh
Muhammad. The said expert also appeared before the Trial Court
and confirmed his statement given before the revenue authorities.
He added that the Appellate Court as well as the High Court after
proper appreciation of evidence and the material available on the
record have come to a correct conclusion.
4.
Arguments heard and have perused the record. One of the
points for consideration is whether Fateh Muhammad was capable
to protect his rights and interests while entering into a sale
agreement in respect of the property in question. Each person hard
of hearing and non-verbal is unique in their own way. Most of
them are healthy and are not considered as intellectually disabled.
However, disabilities of some of them may have a debilitating effect
on their mental status which may impair their skills of perception,
comprehension, judgment, thought, response, behaviour, capacity
to recognize reality, etc. to cope with the ordinary demands of life
and the capacity to protect their rights and interests. Any person
adjudged or if not so adjudged, appear to be of unsound mind,
mentally infirm, or intellectually disabled,
is
incapable of
protecting and safeguarding their rights and interests themselves.
Under such circumstances, transaction in respect of rights and
interests of such persons must be through next friend or guardian
as the case may be, as provided by Order XXXII, Rule 15 of the
Code of Civil Procedure (“CPC”). Similarly, any transaction in
respect of rights and interests of a person(s) who is hard of hearing
C.A. No. 415 of 2018
and non-verbal, communicates through signs and expressions and
is not intellectually disabled, must be in the presence of witnesses
who can understand, interpret, and express their views. The
witnesses to the transaction should preferably be close relatives or
anyone who is fully acquainted with such persons. The witnesses
to the transaction should be apprised of the consideration of such
transaction. It must be ensured that the persons who deal, assist
and witness the transaction have no conflict of interest in the
matter. Thus, the authorities before alienating the rights and
interests of persons with disabilities must satisfy themselves with
regard to the fulfilment of the requirements for a transaction
explained herein
so that it
is free from any influence,
misrepresentation or fraud, the amount of consideration is equal to
the value of the property and was indeed paid. The reason for such
an exercise is to take maximum measures in order to protect and
safeguard the rights and interests of such persons.
5.
There is no proof on the record to show that Fateh
Muhammad was capable to understand the terms and conditions
of the agreement, in order to protect his rights. It has not been
explained as to whether Fateh Muhammad was actually desirous
to sell the property in question. Even otherwise, it has not been
established whether he being a person hard of hearing and nonverbal, properly understood the offer made to him, whether he
accepted the offer and if so, on what terms and conditions. There is
no evidence to prove how and when the transaction took place and
who witnessed it. The petitioners were the best persons to interpret
Fateh Muhammad’s views and communicate the offer made to him,
but no effort was made by the respondent to associate them or
even any other close relative of his at the time of negotiation,
execution and completion of the alleged transaction. Moreover, the
respondent alleged that an amount of Rs.2,000,000/- was fixed as
sale price of the property in question, but it has not been proved
that the price was in accordance with the market rate at that time.
It is alleged that the amount has been paid in cash, but there is no
witness in whose presence the alleged amount was paid, nor has it
C.A. No. 415 of 2018
been mentioned as to when and where it was paid. The respondent
has also failed to prove whether the possession of the property in
question was delivered to him as a result of the alleged sale. Under
such circumstances, the alleged sale transaction stands disproved.
6.
Without prejudice to the above, the respondent is mainly
relying upon the mutation in question. It is a well-settled principle
of law that mutation does not confer title, however, it may be
considered as a piece of evidence if it is affected in accordance with
law. It is stated that before entering the mutation in question, the
revenue authorities called Ch. Faqir Muhammad, a teacher at a
high school for children with hearing and speaking disabilities, to
interpret his signs and expressions to them. Though he interpreted
Fateh Muhammad’s signs and expressions, he did not mention
anything with regard to the alleged oral sale agreement. The only
other witnesses to the mutation in question were Muhammad Iqbal
and Shaukat Hayat, out of them only Muhammad Iqbal appeared
(as DW2). In his statement he stated that the payment of the
amount was made before the execution of the mutation, but in his
cross-examination admitted the fact that he was not present at the
time of the alleged sale transaction. As far as the second witness of
the mutation is concerned, it has come on the record that he had
died, but no effort was made to prove his signatures through some
other source or from a person who was acquainted with them. The
record suggests that before alienating the property rights of Fateh
Muhammad in the revenue record, the revenue authorities did not
satisfy themselves to the extent whether the transaction was free
from any influence, misrepresentation or fraud; whether the
amount of consideration was equal to the prevailing market value;
and if it was indeed paid. They also failed to ascertain whether the
witnesses to the mutation in question had a conflicting interest in
the property. Under such circumstances, the mutation in question,
on the basis of such oral sale agreement, is contrary to law.
7.
The Appellate Court has held that the suit was barred by
time for the reason that the property in question was already
partitioned by the revenue authorities by means of an ex parte
C.A. No. 415 of 2018
order dated 02 April 2007, which was within the knowledge of the
appellants. The appellants have denied their knowledge with
regard to the partitioning proceedings. The record reflects that
there is no evidence to show that the respondents (present
appellants) were served or even any step was taken for the service
of notice by the revenue authorities for the purpose of partitioning
their joint properties, including the property in question. The
appellants recorded their statements before the Trial Court, but no
question regarding the factum of partitioning of the property and
their knowledge in respect of the order dated 02 April 2007 was
put to them by the respondent. Under such circumstances, the
respondent has failed to prove the knowledge of the appellant in
respect of the partitioning proceedings and the ex parte order dated
02 April 2007. The findings of the Appellate Court and the High
Court with regard to the knowledge of the appellants about the
partitioning proceedings is contrary to the record, therefore, both
the courts have reached a wrong conclusion. Consequently, the
judgments and decrees of the High Court dated 22.03.2017 and
that of the Appellate Court dated 05.10.2013, respectively, are set
aside. The judgment and decree of the Trial Court dated
16.07.2013 are upheld.
Foregoing are the reasons for our short order dated
12.04.2023, which is reproduced herein below:
“For the reasons to be recorded later, this appeal is
allowed.”
Judge
Judge
Islamabad,
12th April 2023
K.Anees/Ammar, LC
APPROVED FOR REPORTING
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