An Independent Advice Must be Given to Pardanashin or Illiterate Woman Before A Transection: SC

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How a transection can be made with an Illiterate or Pardanashin woman and what are the necessary steps to be taken before entering into contract with Pardanashin woman or her attorney?

The Supreme Court in its recently judgment by 2/1 has addressed these questions and has ruled that there are certain conditions which must be fulfilled before execution of a contract with Pardanashin woman. 1) There shall be free and independentย  advice which explains the pros and cons and the complications and implications of the contract to such woman; 2) the contract must be explained to her in easy language ; 3) she must be aware of to whom she is selling the property; 4) andย  the transection must be explained to her in the language she fully understands. The Court has further held that these conditions are also applicable to the attorney of Pardanashin woman, if she appoints an attorney to execute the contract on her behalf. The attorney has to fulfill the above mentioned conditions before the making a transection on her behalf, otherwise any transection made in contravention of these conditions shall be deemed to be invalid and of no legal effect.

The brief facts are that two Pardanashin women executed power of attorney in the name of their nephew to sell their joint property. The attorney sold the property to a third person who is appellant in the case in hand before the Supreme Court. The two women filed a suit before the civil court and alleged fraud, cheating and collusiveness on behalf of the attorney. The civil court as well as the appellate court dismissed the plea of the two women but the High Court accepted civil revision. Being aggrieved by the order of the HC, the appellant approached the SC. The SC maintained the order of the HC and made the appellant liable for not not consulting and brining the transection into the knowledge of the two women who reside in the same village where the appellant resides. The noteworthy fact of the case is that the alleged attorney is missing throughout the litigation. He never appeared before any court at any stage of the litigation.

The Court has said that it is the duty of the courts to safeguard and secure the rights of illiterate women who are susceptible and vulnerable to deceit even at the hands of their relatives. Such women have very limited access to outside the world and thus hardly involve in worldly affairs with the society outside the house. This indicates their incompetence and illiteracy as far as the business matters are concerned. In essence, they lack the experience and thus are at the mercy of the male members or the society to execute contracts. The courts of the land, in such eventualities, are duty bound to protect the rights of Pardanashin or illiterate women.

However, Justice Jamal Khan Mandokhail has written his dissenting note and has held that none appearance of the attorney, who is also relative of the two women, gives rise to fraud, cheating and collusiveness on the part of the respondents, the two women, not on the part of the appellant and the attorney. Further, he wrote that the transection was well within the knowledge on the women and they even before executing the attorney have entered the contract with the said attorney. They then executed a power of attorney and the attorney exercised the power to sell the same. The whole series of the transection was well within their knowledge and nothing is seen to be concealed from them. Thus, he suspended the order the HC and allowed the appeal.

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c.a._408_2022

 

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