Unsound mind can sale property at the when he is normal conditions
 |
| Unsound mind can sale property at the when he is normal conditions. |
- Bht sare log agar koi walid ya bara property bech jai tu jab us ki wafat hu jai tu kehte hain ke wo tu pagal hu gia tha ya paralyzed tha or un ke sath dhoka hoa hai un ke walid ne property nahi bechi. Or property wapis lene ke liye case file kar dete hain
- Zair nazar case bhi same issi tarah ka case hai jiss main Noora ne 1996 main zameen bechi or kuch zameen ka tabadla kia
- Or 1998 main bechne wala or tabadla zameen Karne wala foat hu jata hai.
- Or us ke qanooni warsaan case file kar dete hain.
- Case dono nichli courts se dismissed hu jata hai. Jabke High court decree kar deti hai case .
- Jiss ke khalaf Supreme Court main appeal hoti hai
- Supreme Court main High Court ka faisla setaside hu jata hai or Trial Court ka faisla bahal kar dia jata hai.
- Supreme Court ne qarar dia ke. Ju plea li gai wo yeh thi ke bechne wala unsound mind ( pagal) hu gia tha.
- Jiss ke baad Contract act ka reference quote kia gia ke unsound banda ju ke kabhi unsound hota hai or kabhi sahi hota hai wo mahda kar sakta hai jab wo apne hawas main hu
- Jiss ke baad zikar hota hai ke kisi bhi gwah ne gwahi nahi di ke wo unsound mind hu gia tha
- Gwaho ne gwahi main yeh kaha ke wo paralyzed tha.
- Jiss ke baad khareedne wale ne court main Lambardar ko pesh kia jiss ne kaha ke us ne sale ki jaga or us ko kisi aisi baat ka pata nahi tha.
- Jiss ke baad subregistrar ne gwahi di jiss ke samne bechne wale ne gwahi di thi
- Inn sab evidence ko madenazar rakhte hoe honorable Supreme Court ne Trial Court ka faisla bahal kar dia or High court ka faisla dismiss kar dia.
Judgement of Supreme Court of Pakistan
SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Ijaz ul Ahsan
Mr. Justice Shahid Waheed
Civil Appeal Nos.1731 & 1732 of 2021
&
C.M.A.Nos.13433 & 13475 of 2021
[On appeal against the judgment
dated 22.10.2021 passed by the
Lahore High Court, Lahore in Civil
Revision Nos.3332 & 3333 of 2010]
Muhammad Munir & others (C.A.No.1731/21)
Nazira (decd.) thr. LRs (C.A.No.1732/21)
…Appellant(s)
VERSUS
Umar Hayat & others (in both cases)
…Respondent(s)
For the Appellant(s)
(in both cases)
: Agha Muhammad Ali Khan, ASC
Syed Rifaqat Hussain Shah, AOR
For Respondents No.1-3
(in both cases)
: Malik Matee Ullah, ASC
(via video link from Lahore)
For Respondent No.4
(in both cases)
: Ex-parte
Date of Hearing
: 24.05.2023
JUDGMENT
SHAHID WAHEED, J.— These two appeals are by the defendants
and arise out of two declaratory suits and the relief claimed therein
was first dismissed by the trial Court, and then on appeal by the
first appellate Court, but on revision, this was accepted and the
High Court issued decrees in favour of the plaintiffs, and we wish
to consider them together in this judgment for not only the matter
in issue in both of them are directly and substantially the same,
but it is also between the same parties, who are litigating under
the same titl
Civil Appeal Nos. 1731 & 1732 of 2021
2.
The cause for brining both the suits is related to two
parcels of land situated in Mouza Ramdiana, Tehsil Bhalwal,
District Sargodha. The subject matter of Civil Appeal No.1731 of
2021 is 162 ½ kanals of land whereas Civil Appeal No.1732 of
2021 covers 98 kanals and 4 marlas. These two parcels of land
were owned by Noora. He was lambardar of the village and had a
brother Nazira. On 12th of September 1996, Noora sold his 162 ½
kanals of land to Nazir’s four sons vide registered sale-deed
No.206, while the other land was exchanged with Nazir’s 49 kanals
and 3 marlas vide registered exchange-deed No.207 dated 15th of
September 1996. Both these transactions were brought to the
notice of the Revenue Officer who entered them in the record on
13th of October 1996 under mutation Nos.379 and 383
respectively.
3.
Noora died on 15th of December 1998 and thereafter
his legal heirs (respondents No.1 to 3 herein) instituted two suits
for declaration of rights, title and for cancellation of the abovementioned two registered deeds as illegal. The suit challenging the
sale-deed was against Nazira’s four sons, while the suit
questioning the exchange-deed was against Nazira. In both the
suits, the Province of Punjab through the Collector was also made
a defendant (herein respondent No.4). It is a matter of record that
Nazira also passed away while the litigation was going on and as
such his legal heirs joined the proceedings. They are now the
appellants before us. Hereinafter, for the sake of convenience, both
the aforesaid documents will be referred to as the disputed
documents, the present appellants as defendants, and the present
respondents No.1 to 3 as plaintiffs.
4.
Before proceedings further in the matter we would like
to pause here to state that in the given circumstances the plaintiffs
were faced with two presumptions. The first was that while
executing the disputed documents, the executant i.e. their father
Noora was in sound disposing mind. And the second was that the
Registrar had registered the disputed documents by completing the
procedure according to the law. Both these presumptions were
Civil Appeal Nos. 1731 & 1732 of 2021
rebuttable and to do so the plaintiffs had to discharge a threefold
burden. One, the pleading burden whereby plaintiffs had to set
forth all material facts and particulars of illegality in their
pleadings in order for them to be in issue. Two, the burden of
producing evidence and, three, the burden of persuasion. Let us
now see how each of the above two types of presumptions is
rebutted by the plaintiffs.
5.
First of all, we look at what the plaintiffs have stated in
their plaint about their father’s sanity, what evidence they have
presented about it and how they have been able to persuade that
their plea is accepted. The plaintiffs pleaded that their father,
Noora, had been suffering from paralysis for a long time, his hands
and other limbs were affected with tremors and trembles, he could
not relieve himself of his natural urges, even to talk, he also used
to express himself in gestures, and because of his illness he was
very weak and could not walk around. These assertions indicate
that the plaintiffs had purportedly taken the plea of insanity or
unsoundness of mind to rebut the first presumption. Be it noted
that plea of insanity or unsoundness of mind is an exception and
the standard of proof for such a plea is somewhat higher than that
of normal proof in civil cases. In the light of this legal position, it is
to be seen whether the aforesaid assertions, even if admitted to be
true, meet the requirements of law, and are sufficient to hold that
the plaintiffs have successfully discharged their burden of
pleadings. So for as the legal provisions taking care of such a
situation is concerned, Section 12 of the Contract Act, 1872 may
be referred to, which is extracted herein below: -
“What is a sound mind for the purposes of
contracting: A person is said to be of sound mind for the purpose
of making a contract if, at the time when he makes it , he is
capable of understanding it and of forming a rational judgment as
to its effect upon his interests.
A person who is usually of unsound mind, but occasionally
of sound mind, may make a contract when he is of sound mind.
A person who is usually of sound mind, but occasionally of
unsound mind, may not make a contract when he is of unsound
mind.
Illustrations
(a) A patient in a lunatic asylum, who is at intervals of
sound mind, may contract during those intervals
Civil Appeal Nos. 1731 & 1732 of 2021
(b) A sane man, who is delirious form fever or who is so
drunk that he cannot understand the terms of a contract
or form a rational judgment as to its effect on his
interest, cannot contract whilst such delirium or
drunkenness lasts.”
6.
A bare perusal of the said provision of law would bring
us to a conclusion that the crucial point of determination in case a
plea of insanity or unsoundness of mind is taken is the time of
execution of the contract. In the present case, the disputed
documents were registered in 1996 while Noora (executant) died in
1998 and thus the plaintiffs were to clearly state when their father
(Noora) had an attack of paralysis. Did this occur before the
documents were executed or after it? This was a material fact that
ought to have been disclosed in the plaint, but was conspicuously
omitted, and since the plaintiffs could not go beyond the scope of
their pleadings, they could not even be allowed to put in any
statement or material to rectify the omission during the course of
evidence1, and as such, it would be fair to hold that the plaintiffs
had failed to discharge their burden of pleadings, and tumbled at
the first stage of the trial of their claim.
7.
Notwithstanding the foregoing, to meet the ends of
justice, we proceed to consider what evidence the plaintiffs had
adduced in support of their position and to what extent they had
been able to prove it. Before going into this, it seems appropriate to
point out that the best evidence of Noora’s mental disorder could
have been the medical attendant who treated him at the relevant
time. Evidence of layman especially relatives like son, daughter,
wife etc, may be relevant, but being biased and exaggerated it
cannot be conclusive2. In the present case, it was stated by the
plaintiffs in their plaint and Umar Hayat (PW1), son of Noora, also
admitted that Noora was under the treatment of Hakeem, but he
was not examined, nor was any explanation furnished why he was
not presented? We consider this to be a serious flaw in the
plaintiffs’ case.
1 Muhammad Yaqoob v. Mst. Sardaran Bibi and others (PLD 2020 SC 338)
2 Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others (PLD 1977 SC 28)
Civil Appeal Nos. 1731 & 1732 of 2021
8.
That apart, we find that three witnesses were produced
on behalf of the plaintiffs. The first witness is Umer Hayat (PW.1),
Noora’s son, who is also one of the plaintiffs. He only said in his
examination-in-chief that his father was ill and suffering from
paralysis. He did not say that his father was mentally challenged.
However, during cross-examinations he said that his father had
tremor in his body before his death, and that in the year 1995-
1996, Noora had sold his other one-and-a half acre land to a
person named Mohabbat Khan. This statement proves that Noora,
though ill, was of sound mind and able to look after his own affairs
at the time of registration of the disputed documents. In the light
of this statement of the plaintiffs, the additional information of
their other witnesses about Noora’s physical and mental health
was of no value and could not be taken into account3, and
accordingly the District Courts rightly did, and reached a correct
conclusion.
9.
It is pertinent to mention here at this stage that
Muhammad Khan was lambardar and he had verified Noora’s
thumb impression on the disputed documents. He was produced
by the defendants as DW-3 before the trial Court. During crossexamination, he said that he did not know that Noora had suffered
paralysis second time and that Noora was taking medication to
treat tremors. On the basis of this statement, it could not be
concluded that Noora was not of sound mind, for, the burden of
proving Noora’s unsoundness in the first place was on the
plaintiffs and when they failed to do so, the Court could not cure
that infirmity by reading the statement of the defendants’ witness,
secondly, that the denial of a particular fact for want of its
knowledge by a witness cannot be said to be an admission of fact,
and thirdly, that in the ordinary course of life, the said witness was
not supposed to have any information about Noora’s health and
the details of his medication. We have, therefore, no hesitation in
holding that the High Court has misdirected itself in taking a view
different from that which we have expressed above.
3 Haji Muhammad Usman thr. His Legal Heirs v. Muhammad Paryal (1987 CLC 552)
Civil Appeal Nos. 1731 & 1732 of 2021
10.
Looking at the matter from another angle, it is worth
noting that a contract of sale, like any other contract, would be
vitiated if the consent of either party is given by a person of
unsound mind as provided in Section 11 of the Contract Act, 1872.
Under Section 12 of that Act, a person is said to be of sound mind
for the purpose of making the contract, if at the time when he
makes it, he is capable of understanding it and of forming a
rational judgment as to its effect upon his interest. A person of
unsound mind is thus not necessarily a lunatic or insane. It is
sufficient if the person is incapable of judging the consequences of
his acts. Taking into account this position of law, the question for
us to consider is whether the deceased Noora was capable of
appreciating that he was transferring his property to the
defendants. The contents of the disputed documents and of the
statement of the witnesses, particularly of the Sub-Registrar do not
support the inference, drawn by the High Court, that Noora did not
understand the value of the property he was selling or of which he
was exchanging. We have noted above that Umar Hayat, son of the
deceased Noora, has only stated in his testimony that Noora had
paralysis and was suffering from tremors. He had not said that the
paralysis had also affected his father’s mental strength. It is now
well recognized that a permanent paralytic affection, though it
somewhat saps the physical energy of the sufferer, does not
necessarily impairs his mental power to such an extent to render
him incapable of transacting business4. Suffice it to say in this
scenario that even if it is accepted that Noora had paralysis and
tremors, it cannot be said that Noora did not comprehend the
nature and effect of the disputed documents at the time of their
writing and registration. We would, therefore, hold that the
deceased Noora did possess a sound disposing mind for the
making of the disputed documents.
11.
We now turn our attention to the second aspect of the
case which relates to the execution, correctness, and truthfulness
4
Sajid Ali v. Ibad Ali (23 Cal.1)
Muhammad Akbar Shah v. Muhammad Yousaf Shah and others (PLD 1964 SC 329)
Civil Appeal Nos. 1731 & 1732 of 2021
of the disputed documents. One of these documents is a sale-deed
while the other is an exchange-deed, and in respect of both, the
Sub-Registrar has issued a certificate under the Registration Act,
1908 that they have been registered by completing all the
prescribed procedure. It is important to stress here that
registration of a document is a solemn act to be performed in the
presence of a competent officer appointed to act as Registrar,
whose duty it is to attend to the parties during the registration and
see that the proper persons are present, are competent to act, and
are identified to his satisfaction; and all things done before him in
his official capacity and verified by his signature will be presumed
to be done duly and in order. Therefore, the certificate endorsed on
the conveyance deed by the Registering Officer under Section 60 of
the Registration Act, 1908 is a relevant piece of evidence to
presume that the deed is valid in law5. In view thereof, in the
present case, the initial onus to rebut the said presumption was on
the plaintiffs, who had challenged the documents.
12.
The stand of the plaintiffs was that their father was
unable to walk due to illness, so the defendants produced another
person before the Sub-Registrar and got the disputed documents
registered. Based on this allegation, they argued that the
registration of the disputed documents was a fraud. In support of
it, they say that if Noora had appeared in person, the SubRegistrar would have written his identity card number on the
disputed documents, which was not done. We do not agree with
this. It may first be noted that neither the plaintiffs in their plaint
nor any of their witnesses have alleged that the Sub-Registrar was
in cahoots with the defendants. In this context the statement of the
Sub-Registrar, who is a public servant, becomes very important.
The disputed documents were registered by Rana Ghulam
Mustafa, Sub-Registrar /Naib Tehsildar, and he was produced as a
witness by the defendants. He clearly stated in his examination-inchief that the disputed documents were presented before him by
Noora himself, and he was identified by Muhammad Khan,
5 Piara v. Fattu (AIR 1929 Lah. 711)
Civil Appeal Nos. 1731 & 1732 of 2021
Lambardar, the statements of witnesses were recorded, and Noora
admitted that consideration amount had been received, and also
acknowledged the exchange of land. During cross-examination, he
admitted that Noora’s identity card number was not mentioned on
the disputed documents. In response to a question, he said that if
there is no identity card number, the document is registered on the
identification of a proper person, which includes lambardar,
councillors etc. It must be noted here that it is not the case of the
plaintiffs that this statement was wrong in law. Responding to
another question, he said that it is incorrect that Noora did not
appear before him. In the light of this statement, when we examine
the disputed documents, it is revealed that Noora was identified by
Muhammad Khan, lambardar, who appeared in the Court and
confirmed it. Even without so, we think, Noora’s identification
would not have been difficult to ascertain as he was a lambardar
himself, and generally the Sub-Registrar/Naib Tehsildar knows the
lambardar of his area. Thus, in the given circumstances, merely on
the basis of non-recording of Noora’s identity card number, it
cannot be said that any other person had appeared instead of
Noora at the time of registration of the disputed documents, and
any fraud was committed. Since the plaintiffs, had failed to
discharge their initial burden, it did not shift to the defendants to
prove the transactions6. Nevertheless, we find that the defendants
not only produced all the witnesses to the disputed documents, the
identifier, and the Sub-Registrar, but also produced all their
records from the custody of the Record-Keeper before the trial
Court and from the statements of all of them, the transactions
recorded in the disputed documents are proved.
13.
It is settled that the standard of proof required in a
civil dispute is preponderance of probabilities and not beyond
reasonable doubt. In absence of any tangible evidence produced by
the plaintiffs to support the plea of fraud, it does not take the
matter further. Rather, in this case the testimony of the attesting
6 Khalil Ahmad v. Abdul Jabbar Khan and others (2005 SCMR 911)
Messrs SAZCO (Pvt.) Ltd. Vs. Askari Commercial Bank Limited (2021 SCMR 558)
Haji Muhammad Yunis (deceased) thr. Legal heirs and another v. Mst. Farukh Sultan and
others (2022 SCMR 1282)
Civil Appeal Nos. 1731 & 1732 of 2021
witness, identifier and other independent witnesses, such as, the
Sub-Registrar and the Record-Keeper (Reader to the Sub-Registrar)
plainly support the case of the defendants. That evidence dispels
the doubt if any; and tilt the balance in favour of the defendants.
14.
Suffice it to observe that since the plaintiffs could not
establish the existence of fraud, it must follow that their suits have
ex-facie no merit.
15.
In view of the foregoing discussion, we hold that the
trial Court and the first appellate Court had appreciated the
evidence properly and that view being a possible view, the High
Court ought not to have disputed the same in revision and that too
on surmises and conjectures.
16.
In the result, the present appeals are allowed and the
impugned judgments and decrees passed by the High Court are set
aside. The judgments and decrees passed by the first appellate
Court are hereby restored. No order as to costs. Pending
applications, if any, are disposed of.
JUDGE
Islamabad
24.05.2023
“Approved for reporting”
JUDGE
Sarfraz Ahmad/-
Announced in open Court on _________________2023.
JUDGE
Comments
Post a Comment