Pakistani law on Pardanashin Lady (Daily Legal Advice Series 7)

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Determination of  who is a Pardanashin (Pardahnashin) lady?

Every Muslim woman is presumed to be a pardanashin lady unless otherwise proved–Merely because petitioner has adopted modern way of life does not mean that petitioner is not a pardanashin lady but at any rate the fact remains that petitioner is a lady and balance of inconvenience was to be seen vis-a-vis respondent who is a male. PLJ 1996 Lahore 1472. In matter of agreement or transaction of sale with illiterate pardanashin ladies, much care and caution has to be taken by Courts as they deserve special protection. PLJ 1999 Lahore 1624

Transaction of sale by pardanashin ladies–Ladies did appear before Sub-Registrar at the time of execution of sale deed, as also before Notary Public at the time of execution of power of attorney but they did not appear before Trial Court for recording of their statements–Plaintiff ladies had admittedly signed sale-deed before sub-Registrar and they were not proved to be illiterate and simpletion–To prove allegation of fraud, plaintiff ladies had to appear to make statement on oath and offer themselves for cross-examination–Ladies having not appeared before Court and having failed to make statement in proof of allegation of fraud, evidence produced by them in support of fraud was of no value. PLJ 1999 Lahore 1553

Legal issues whether the factum of being Pardanashin/Pardahnashin plays a role

1.Mutation, attestation of  (Property Matters) – Lambardar who was supposed to identify the transferors qua the land had to be to the village concerned and not at all form the Patwar circle which includes numerous villages and the people of which were not at all acquainted with the people of other villages—Identification by a Lambardar of unconcerned village was a factum that indicated doubtful nature of the transaction. PLD 2003 SC 688 Total land of illiterate Pardahnashin ladies was got mutated at their back – Ladies emphatically ‘denied the sale and their appearance before the Revenue Officer or the receipt of any sale consideration – Lambardar of the concerned village was available to witness the mutations but Lambardar of another village was presented for the purpose who had not explained as to how he knew the Pardahnashin ladies-Neither the register of mutations nor the mutation bore the thumb-impressions of the two ladies who were allegedly identified/by the Lambardar of another village – Revenue Officer while attesting the mutations had not insisted for the presence of the male relatives of the ladies who could identify them and the presence of respectables of the locality preferably the Lambardar of the area as required by S.42(7) of the West Pakistan Land Revenue Act, 1967 – Beneficiary party, in circumstances, had to establish by a strong and reliable evidence that the documents i.e. disputed mutations were genuine and bona fide and had been voluntarily and freely entered and attested at the free-will of the executants – Where the evidence of the beneficiaries in the record was not only unsatisfactory but was incredible, such evidence could not be attached any credence – Pardahnashin ladies, in circumstances, were not a party to the mutations and they were totally kept in dark about the transactions and fictitious mutations were got attested with the connivance of the Revenue Staff – Mutation proceedings wherein the two ladies-had denied their participation were not only in gross violation of S.42(7) of the West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as such, the mutations being illegal, the entire structure built on them would fall to the ground – Fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation, the matter could be considered on merits so as not to allow fraud to perpetuate, 2001 SCMR 1591 Whenever an exchange was entered into it was always for certain material considerations weighing with the parties—Appellants, in the present case, neither owned any property in the relevant village with which the land could have been consolidated nor they had any relationship at that village for whose sake they could have migrated—Comparative valuation of both the properties had no comparison whatsoever, one being sixteen times higher in value than the other – Validity—Reasonableness of an exchange transaction could be gone into by the Court like it did in a case of gift— Reasonableness of a transaction of exchange thus was a very strong as well as relevant consideration. PLD 2003 SC 688 Acquisition of proprietary right of inheritance, was not dependant on the attestation of mutation in Revenue Record—Mutation itself would not create any right, so its authenticity could not be doubted simply because it was not given effect in Revenue Record. 2003 Lawvision 128 = 2003 MLD 702 Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies m alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such documents were fully conceived and understood by the executant independently and freely, Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.  2001 SCMR 1591 Total land of illiterate Pardahnashin ladies was got mutated at their back—Validity—Ladies emphatically ‘denied the sale and their appearance before the Revenue Officer or the receipt of any sale consideration—Lambardar of the concerned village was available to witness the mutations but Lambardar of another village was presented for the purpose who had not explained as to how he knew the Pardahnashin ladies-Neither the register of mutations nor the mutation bore the thumb-impressions of the two ladies who were allegedly identified/by the Lambardar of another village—Revenue Officer while attesting the mutations had not insisted for the presence of the male relatives of the ladies who could identify them and the presence of respectables of the locality preferably the Lambardar of the area as required by S.42(7) of the West Pakistan Land Revenue Act, 1967—Beneficiary party, in circumstances, had to establish by a strong and reliable evidence that the documents i.e. disputed mutations were genuine and bona fide and had been voluntarily and freely entered and attested at the free-will of the executants—Where the evidence of the beneficiaries in the record was not only unsatisfactory but was incredible, such evidence could not be attached any credence—Pardahnashin ladies, in circumstances, were not a party to the mutations and they were totally kept in dark about the transactions and fictitious mutations were got attested with the connivance of the Revenue Staff—Mutation proceedings wherein the two ladies-had denied their participation were not only in gross violation of S.42(7) of the West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as such, the mutations being illegal, the entire structure built on them would fall to the ground—Fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation, the matter could be considered on merits so as not to allow fraud to perpetuate, 2001 SCMR 1591 Mutation—Onus to prove—Transfer by Pardanashin lady—Burden of proof lies on every vendee who claims title under mutation much less a Pardanashin (Pardahnashin) lady in whose case such burden is much aggravated.  2002 CLC 300

2.Burden of proof—Held, in order to prove the existence of a transaction of exchange through mutation, the party that relies on such mutation was bound to prove the both—Failure of party relying on the mutation to discharge its burden was a blow to the existence of any exchange transaction between the parties. PLD 2003 SC 688 Leave was granted by S.C to examine contentions that two illiterate sisters had been deprived of their land in collusion with Patwari and Courts below had ignored some basic features of case while upholding legality of impugned mutation that at time of attestation of mutation none of male relatives of women was present, that they were alleged to have been identified by a person who was Lambardar of a different village who did not state as to how he was acquainted with two sisters residing in a different village; that according to one of vendees who appeared on behalf of other vendees at trial consideration for sale was paid before Tehsildar while attesting officer denied that it was so paid and that neither mutation register nor relevant page of Patwari’s Roznamcha Waqiati bore thumb-impressions of two sister. L.J. 2002 SC 427 Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies in alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such documents were fully conceived and understood by the executant independently and freely, Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.  2001 SCMR 1591 Where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardahnashin ladies m alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such documents were fully conceived and understood by the executant independently and freely, 2001 SCMR 1591 Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.

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