PLJ 2021 SC 161
[Appellate Jurisdiction]
Present:
Qazi Faez Isa and Sardar Tariq Masood, JJ.
Mirza ABID BAIG--Appellant
versus
ZAHID
SABIR (DECEASED) through LRs and others--Respondents
C.A. No.
472 of 2013, decided on 12.2.2020.
(On
appeal against the judgment dated 6.02.2013 passed by the Lahore High Court,
Lahore in C.R. No. 489/2009)
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)
& O.XLI R. 270, O.XXX R. 1--Suit for rendation of
account--Decreed--Appeal--Dismissed--Revision petition--Application for
compromise during pendency of revision petition--Revision petition disposed
of--Application for set aside decree--Recalling of order of revision
petition--Remanded to appellate Court--Recording of evidence--Application u/S.
12(2) was accepted and revision petition was revived--Benami
owner--Deprivation of inheritence--Entitlement to inheritation--Non-execution of compromise agreement--Burden
to prove--Challenge to--Mirza Sultan Baig died when he died his properties came to vest in his
legal heirs and should have been distributed among them in accordance with shariah but this was not done compelling two of his
daughters to file a suit to get what was due to them--Mirza
Abid Baig stooped to
denying that his sisters were legal heirs of Mirza
Sultan Baig--He also, without any proof, claimed that
his father was not legal owner of said house and shop, insinuating but without
stating, let alone establishing, that he was their real owner and that his
father was benami (ostensible) owner--Civil Judge,
Lahore decreed suit in respect of only two of properties, that is said house
and shop, but this too was not acceptable to Mirza Abid Baig who continued to throw
one unnecessary challenge after another to prevent his sisters from getting
their inheritance and regrettably succeeded by such tactics as Zahida Sabir passed away and it
is now forty-five years since she and then her children have remained deprived
of inheritance--Such conduct of appellant contravened law and also dictates of
Almighty Allah; shariah expounds that legal heirs
immediately on death of their predecessor become owners of estate left behind
as per their predetermined shares--It is unbelievable that counsel would have
kept silent and let Judge decide case on merits when Zahida
Sabir had already withdrawn her claim against her
brother--It is thus quite clear to us that Mirza Abid Baig had staged whole thing;
purported compromise application was neither executed nor filed and purported
agreement was not executed--Purported agreement but is brought forward after
fifteen years--Purported agreement left blank place where consideration amount
was to be written--Mirza Abid
Baig testified that he had inserted in his hand an
amount of “700,000/-” which he said was paid in cash but failed to establish
particular fact of payment having been made to Zahida
Sabir--Mirza Abid Baig further destroyed his
credibility by preposterously alleging that his sister was not entitled to
inherit from her father’s estate--He further stated that amount paid by him to
her was not in settlement of her inheritance, which then raised question why
was payment made, but no answer was forthcoming--Purported compromise
application dated 20 October but
Appellate Court decided case on merits it is therefore clear, that it did not
exist on Court record because Judge would not have spent time to decide a case
on merits which had already been compromised--Signature of Zahida
Sabir on both these documents was also different from
her signature on plaint and other admitted documents--Both these documents were
also thumb-impressed by her therefore it was relatively easy to establish if
she had affixed her thumb impression thereon by sending them for forensic
examination but Mirza Abid Baig did not elect to do so and thus an adverse presumption
can be drawn against him.
[Pp.
166, 167 & 168] A, B, C, D & E
Contract Act 1872 (IX of
1872)--
----S.
25--Payment of compensation--Void documents--Purported compromise application
and purported agreement were stated to have been executed on payment of compensation
of seven hundred thousand rupees but Mirza Abid Baig failed to establish
that such payment was made, therefore, these documents were void in terms of
Section 25 of Contract Act, 1872--Appeal was dismissed.
[P.
168] F
Mr. Muhammad Atif Amin, Advocate
Supreme Court and Mr. M.S. Khattak,
AOR for Appellant.
Mr. Mustafa Ramday, Advocate
Supreme Court assisted by Mr. Zaafir Khan, Ms. Zoe Khan and Mr. Akbar Khan,
Advocates and Syed Rifaqat Hussain
Shah, Advocate-on-Record for Respondents Nos. 1(a) to (d).
Respondents Nos. 2 - 5 Ex parte.
Dates of hearing: 10 & 12.2.2020.
Order
Qazi Faez
Isa, J.--Mirza Sultan Baig
died on 22nd March 1975 leaving behind a widow Mst.
Tahira Sultana, two sons, namely Mirza
Abid Baig and Mirza Imran Baig, and four
daughters, namely Abida Azam,
Zahida Sabir,
Naveeda Sultan (Pasha) and Fakhira
Tariq. A suit for the administration of the estate of their father and
rendition of accounts was filed by Abida Azam (Plaintiff No. 1) and Zahida
Sabir (Plaintiff No. 2) on 28th May 1980. They
mentioned the properties in the plaint which were left by their father and
sought their shares therein as per shariah.
2. The suit was decreed on 26th March 1992 with regard to two
properties, that is House No. 69 (its previous number was 118), Garden Block,
situated in the New Garden Town, Lahore, measuring 6 kanals and a shop situated in Ram
Gali No. 2, Lahore (“the said house and shop”). Mirza Abid Baig filed an appeal
challenging the judgment and decree. Another appeal was filed by his mother,
brother and two sisters, namely Naveeda Pasha and Fakhira Tariq. Both the appeals were dismissed vide judgment
dated 3rd January 1995. Thereafter, civil revision petition was filed by Mirza Abid Baig
and during its pendency he entered into a compromise with his sister Abida Azam (Plaintiff No. 1 in
the suit) who upon receipt of one million and four hundred thousand rupees
withdrew her suit and the said petition was disposed of on 22nd November 1995.
3. On 21st October 1997 Naveeda
Pasha, Zahida Sabir
and Fakhira Tariq filed an application under Section
12(2) of the Code of Civil Procedure (“the Code”) in the High Court
followed by a similar application filed the other brother/son, Mirza Imran Baig. The learned
Judge of the High Court recalled the order disposing of the revision petition
and remanded the matter to the Appellate Court to record evidence to verify
whether a statement was made by the counsel on behalf of their clients to bind
them. Evidence was recorded by the Appellate Court which was transmitted to the
High Court for consideration. The learned Judge of the High Court on 9th August
2003 concluded that the person who had effected the
compromise on behalf of the sisters was not legally authorized as a counsel to
do so and, consequently by consent, both applications under Section 12(2) of
the Code were accepted and the revision petition stood revived.
4. Thereafter, when the revision petition was fixed for hearing
it was pointed out to the learned Judge of the High Court by Mirza Abid Baig
that an application under Order XXIII, Rule 1 of the Code was filed by Zahida Siddiqi,
which was stated to be another name of Zahida Sabir, (“the
purported compromise application”) before the Appellate Court on 20th
October 1993 which had escaped the attention of the learned Judge of the
Appellate Court. Therefore, the matter was again remanded to the Appellate
Court to consider the purported compromise application and whether it was filed
under undue influence or coercion. Zahida Sabir/Siddiqi, who allegedly signed the purported compromise
application, had died in the year 2003 before any order was passed on it. Zahida Sabir’s
legal heirs withdrew the purported compromise application on 11th July 2008.
Then on 30th July 2008 Mirza Abid
Baig filed an application under Order XLI, Rule 27 of
the Code to bring on record additional evidence which was a two-page agreement
dated 16th October 1993 (“the purported agreement”) which said that Zahida Sabir
had given up her claim on payment of seven hundred thousand rupees. After
recording of evidence Mirza Abid
Baig’s appeal was accepted to the extent of the claim
of Zahida Sabir.
The legal heirs of Zahida Sabir challenged this decision by filing a civil
revision petition before the High Court and the learned Judge of the High Court
set aside the finding and decision of the Appellate Court vide impugned
judgment dated 6th February 2013.
5. Mr. Muhammad Atif Amin, the
learned counsel representing the appellant Mirza Abid Baig, states that the
Appellate Court after recording evidence had concluded, on the basis of
testimonies of witnesses and documents, that Zahida Sabir
had executed the purported compromise application and the purported agreement.
The learned counsel referred to the testimonies of Muhammad Siddiq
(AW-1) and Anwar Khan (AW-3) and stated that these witnesses had testified to
the execution of the purported agreement and that cash payment of seven hundred
thousand rupees was paid by Mirza Abid
Baig to Zahida Sabir. He further states that in the application
under Section 12(2) of the Code, which was filed by Zahida Sabir
in her lifetime, she had admitted signing the purported compromise application.
6. Mr. Mustafa Ramday, the learned
counsel for the Respondent Nos. 1(a) to 1(d), who are the children and legal
heirs of Zahida Sabir,
states that Mirza Sultan Baig
died on 22nd March 1975 and on his death his legal heirs immediately became
owners of his estate and entitled to receive their shares in accordance with shariah, however, some of the legal heirs were deprived and
were compelled to file a suit for administration and rendition of accounts,
which was decreed by the learned Civil Judge, Lahore in accordance with law. Mirza Abid Baig
however left no stone unturned in keeping the legal heirs deprived of their
inheritance on tenuous grounds. The learned counsel submits that Mirza Abid Baig
took one false plea after another to deprive his sisters of their inheritance;
in his written statement he even denied that the plaintiffs were the legal
heirs of Mirza Sultan Baig;
he also denied that Mirza Sultan Baig
“was the legal real owner” of the said house and shop and that when
these false pleas collapsed the purported compromise application and the
purported agreement emerged. The purported compromise application was stated to
have been filed on 20th October 1993 however the learned Appellate Court Judge
proceeded to decide the case on merits on 3rd January 1995, which, learned
counsel submits, incontrovertibly establishes the absence of the purported
compromise application from the Court record, because the learned Judge would
not needlessly decide a case on merits which had already been compromised. The
only purported record of the filing of the purported compromise application was
a note made in the margin of the order sheet maintained by the Court Reader
which note, according to the learned counsel, was fraudulently inserted, which
was discussed and discarded by the learned Judge of the High Court in the
impugned judgment. He further states that, the purported compromise application
did not refer to the purported agreement; the purported compromise application
simply stated “the applicant has settled her dispute with the appellant
outside the Court” and that “the applicant intends to withdraw her suit
and also has no objection in the acceptance of the appeal as prayed for”
and did not refer to any purported agreement, which if it had been executed
would have been mentioned therein; the purported agreement first surfaced on
30th July 2008 after the matter was remanded the second time, confirming that
it was not executed by the late Zahida Sabir. He also referred to the signatures on the
purported compromise application and the purported agreement which were signed
in Urdu and showed to be signed as Zahida Siddiqi
and not Zahida Sabir
which is how she signed [emphasis added]; the learned counsel referred to the
plaint and other documents which were signed as Zahida Sabir.
7. Making his legal submissions the learned Mr. Mustafa Ramday submits that Order XXIII, Rule 1(4) of the Code
states that the ‘consent’ of the other plaintiffs was needed before withdrawing
a case where there are more than one plaintiff, however, the consent of Abida Azam, the other plaintiff,
was not obtained. Learned counsel refers to a decision in the case of Umar Bakhsh v. Azim Khan[1]
which held that, “Court would consider
the document to be compromise when both parties signing it agree and reiterate
the contents before the Court. If before the Court one party to the document resiles from it, then the document can be called anything
but an agreement or compromise”.[2]
Learned counsel states that the purported compromise application was not
accepted by the Court and it had been withdrawn, therefore it was of no legal
effect and should not have been considered. He alternatively submits that since
the purported compromise application was wholly without consideration it was
void in terms Section 25 of the Contract Act, 1872 and relies on the case of Sadar Din v. Khatoon[3]
where relinquishment of rights in property without consideration was, “found
to be a nullity in the eye of the law on account of Section 25 of the Contract
Act, 1872”. He says, that relinquishment of rights
could not be lightly implied and cogent evidence in this regard had to be
produced; there was no evidence of the payment of seven hundred thousand rupees
and the entire story was false. He submits that this Court has always taken
great exception when ladies are denied their property rights by male members of
the family and in this regard referred to the case of Ghulam
Ali v. Ghulam Sarwar Naqvi (Mst.).[4]
Concluding his submissions, the learned counsel submits that the Appellate
Court had exceeded the directions of the High Court when the case was remanded
to it and unnecessarily widened the controversy of the suit and that the
learned Civil Court Judge and the learned High Court Judge had correctly
decided the matter.
8.
We have heard the learned counsel and with their assistance examined the
documents on record. This case is yet another sad example of a brother denying
and resisting the claim of his sisters to their legal entitlement to
inheritance. Mirza Sultan Baig
died on 22nd March 1975 and when he died his properties came to vest in his
legal heirs and should have been distributed among them in accordance with shariah but this was not done compelling two of his
daughters to file a suit to get what was due to them. Mirza
Abid Baig stooped to
denying that his sisters were the legal heirs of Mirza
Sultan Baig. He also, without any proof, claimed that
his father was not the legal owner of the said house and shop, insinuating but
without stating, let alone establishing, that he was their real owner and that
his father was the benami (ostensible) owner. The
learned Civil Judge, Lahore decreed the suit in respect of only two of the
properties, that is the said house and shop, but this too was not acceptable to
Mirza Abid Baig who continued to throw one unnecessary challenge after
another to prevent his sisters from getting their inheritance and regrettably
succeeded by such tactics as Zahida Sabir passed away and it is now forty-five years
since she and then her children have remained deprived of inheritance. Such
conduct of the appellant contravened the law and also the dictates of Almighty
Allah; shariah expounds that legal heirs immediately
on the death of their predecessor become owners of the estate left behind as
per their predetermined shares.
9.
The rights of Zahida Sabir
to the extent of the said two properties had been determined by the Court
however Mirza Abid Baig then produced the purported compromise application and
long afterwards emerged the purported agreement. No explanation was forthcoming
why these documents remained under wraps. It is unbelievable that counsel would
have kept silent and let the learned Judge decide the case on merits when Zahida Sabir
had already withdrawn her claim against her brother. It is thus quite clear to
us that Mirza Abid Baig had staged the whole thing; the purported compromise
application was neither executed nor filed and the purported agreement was not
executed. The purported agreement is dated 16th October 1993 but is brought
forward after fifteen years, in the year 2008. The purported agreement left
blank the place where the consideration amount was to be written. Mirza Abid Baig
testified that he had inserted in his hand an amount of “700,000/=“ which he said
was paid in cash but failed to establish the particular fact of payment having
been made to Zahida Sabir.[5]
Mirza Abid Baig further destroyed his credibility by preposterously
alleging that his sister was not entitled to inherit from her father’s estate.
He further stated that the amount paid by him to her was not in settlement of
her inheritance, which then raised the question why was payment made, but no
answer was forthcoming.
10.
The purported compromise application is dated 20th October 1993 but the learned
Appellate Court Judge decided the case on merits on 3rd January 1995, it is
therefore clear, that it did not exist on the Court record till 3rd January 1995
because the learned Judge would not have spent time to decide a case on merits
which had already been compromised. And, if, for the sake of argument, it is
assumed that the learned Judge had overlooked the said application it is
unbelievable that neither the learned counsel appearing in the case nor the
parties would draw his attention to it, thereby further confirming that the
purported compromise application did not exist. Mirza
Abid Baig’s counsel has
referred to a note made in the margin of the order sheet maintained by the
Court Reader, however, no credence can be placed on
this note because it is completely incongruous with the facts. We have also
observed that the purported compromise application did not refer to the
purported agreement which is also inexplicable. As if this was not enough the
purported agreement surfaced fifteen years after its alleged execution without
an explanation offered as to why it was not disclosed earlier. The signature of
Zahida Sabir
on both these documents was also different from her signature on the plaint and
other admitted documents. Both these documents were also thumb-impressed by her
therefore it was relatively easy to establish if she had affixed her thumb
impression thereon by sending them for forensic examination but Mirza Abid Baig
did not elect to do so and thus an adverse presumption can be drawn against
him. The burden to prove the two self-serving documents (the purported
compromise application and the purported agreement) lay on Mirza
Abid Baig[6]
but he did not discharge the burden of proof.[7]
The purported compromise application lay unattended and was in turn withdrawn
by the legal heirs of the Zahida Sabir before any order was passed thereon. The
filing of an application under Order XXIII, Rule 1 of the Code, which seeks to
withdraw a suit or claim, is not tantamount to the withdrawal of the suit or
claim. The purported compromise application and the purported agreement were
stated to have been executed on payment of compensation of seven hundred
thousand rupees but Mirza Abid
Baig failed to establish that such payment was made, therefore, these documents were void in terms of
Section 25 of the Contract Act, 1872.
11.
We cannot be unmindful of the fact that often times
male members of a family deprive their female relatives of their legal
entitlement to inheritance and in doing so shariah
and law is violated. Vulnerable women are also sometimes compelled to
relinquish their entitlement to inheritance in favour
of their male relations. This Court in the case of Ghulam
Ali[8]
had observed that ‘relinquishment’ by female members of the family was contrary
to public policy and contrary to shariah. It would be
useful to reproduce the following portion from the decision of this Court:
“Here in the light of
the foregoing discussion on the Islamic point of view, the so-called
“relinquishment” by a female of her inheritance as has taken place in this
case, is undoubtedly opposed to “public policy” as understood in the Islamic
sense with reference to Islamic jurisprudence. In addition it may be mentioned
that Islam visualised many modes of circulation of
wealth of certain types under certain strict conditions. And when commenting on
one of the many methods of achieving this object, almost all commentators on
Islamic System agree with variance of degree only, that the strict enforcement
of