ISLAMABAD: The Supreme Court has held that depriving an illiterate ‘parda-nashin’ (covered) woman of a large proportion of her property without professional or independent advice, or without making her understand the deed, was not sustainable in law.
“The real point is that the disposition of property must be substantially understood,” the Supreme Court held in a judgement authored by Justice Muhammad Ali Mazhar.
Justice Mazhar was a member of a two-judge bench headed by Justice Sardar Tariq Masood, which had taken up an appeal against an April 15, 2019 rejection by the Lahore High Court Rawalpindi bench of the concurrent findings of a Rawalpindi civil judge and the additional district and sessions judge.
The case involves a gift deed of properties inherited by Ms Zaibunnisa and Ms Hameeda Bibi, both illiterate and parda-nashin, prepared fraudulently by their brother on a blank paper through misrepresentation.
The all-encompassing evidence recorded in the trial court, the judgement said, exemplifies that the women were not aware of the type of document they were going to sign so, taking advantage of their illiteracy, the brother managed the execution of the gift in his favour.
Nothing was brought on record to prove that any disinterested, neutral or nonaligned person read over the indenture of the gift to the illiterate and parda-nashin women, the verdict noted. Such documents severely and gravely jeopardise the interest of illiterate and parda-nashin women in favour of any person having a relationship of profuse confidence and faith with them; they require stringent testimony and authentication of execution with the assurance of independent and unprejudiced advice to such women with further confirmation and reassurance without any doubt that the description, repercussions and aftermath/end result of the transaction was fully explained and understood.
The burden of proof, the judgement said, will always rest upon the person who entreats to uphold the transaction entered into with the parda-nashin or illiterate woman to establish that the document was executed by her after mindfulness of the transaction, the judgement said. It added that it was imperative for the courts as an assiduous duty and obligation that while dealing with instances of any document executed by parda-nashin or illiterate woman, it ought to be satisfied with clear evidence that the document was, in fact, executed by her or by a duly constituted attorney appointed by her with full understanding and intelligence regarding the nature of the document.
“The parda-nashin women have been given protection in view of social conditions that include an imperfect knowledge of the world being virtually excluded from communion with the outside world,” it said, adding the rationale of this rule of wisdom and concentration was obviously to shield them from deception, duress and misrepresentation.
The verdict also cited a number of precedents from different jurisdictions to establish that it was for the person claiming the benefit of any such disposition to establish affirmatively that it was substantially understood by the woman and was really her free and intelligent act. It further said if she was illiterate, it must have been read over to her and if the terms were intricate they must have been adequately explained.
The onus to prove the transaction being legitimate and free from all suspicions and doubts surrounding it can only be proved if it was established that the woman was fully cognizant and aware of the nature of the transaction and probable consequences; that she had independent advice from a reliable source/person of trust to fully understand the nature of the transaction; that witnesses to the transaction were close relatives or fully acquainted with the woman and had no conflict of interest with her and that the sale consideration was duly paid and received by the woman in the same manner, besides the nature of transaction was explained to her in the language she understands fully and she was apprised of the contents of the deed/receipt.
Published in Dawn, May 21st, 2022