2002 S C M R 1089
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmed, CJ. and
Qazi Muhammad Farooq, J Mst. RASHEEDA BEGUM and others---Petitioners versus
MUHAMMAD YOUSAF and others---Respondents
Civil Appeals Nos.327, 328, 1022 of 1995 and 1348 of 1996, decided on l
lth April, 2002.
(On appeal from the judgment/order, dated 17-4-1993, 11-12-1993 and
14-11-1995 of the Lahore High Court, Lahore, passed in Civil Revision No.
186/88, Writ Petition No.3857/93, Civil Revisions Nos.1271/91 and 2274/95, respectively).
(a) Specific Relief Act (I of 1877)--
----S.12---Transfer
of Property Act (IV of 1882), S.54---Registration Act (XVI of
1908), S.17---Agreement to sell---Whether requires
registration---Agreement to sell itself does not create any interest in or
charge on immovable property, rather same only creates a right to obtain
another document conferring title in respect of immovable property mentioned
therein, and for that very reason, the same does not require registration.
(b) Contract Act (IX of 1872)---
----S.10---Specific
Relief Act (I of 1877), S.12---Agreement to sell---Form--No
legal provision existed to the effect that agreement to sell should only
be in writing.
(c) Qanun-e-Shahadat (10 of 1984)---
----Arts.
17,(2)(a) & 79---Agreement to sell---Attestation by witnesses---Proof of
execution---Agreement to sell involving future obligations, if reduced
to writing and executed after coming into force of Qanun-e-Shahadat, 1984, is
required by Art.17(2)(a) of Qanun-e-Shahadat, 1984 to be attested by two male
or one male and two female witnesses, as the case may be---Such agreement has
to be proved in accordance with the provisions of Art.79 of Qanun-e-Shahadat,
1984.
(d) Qanun-e-Shahadat (10 of 1984)---
----Arts. 113 & 117---Specific Relief Act (I of 1877), S.12---Burden of
proof---Suit for specific performance of contract based on agreement to
sell---Onus to prove such contract would lie on plaintiff unless its existence
was admitted by defendant.
(e) Contract---
----
Form of
proof---Must be in line with the format of document executed by parties to the
contract.
(f) Evidence Act (I of 1872)---
----S.68---Qanun-e-Shahadat
(10 of 1984), Arts. 17(2)(a) & 79---Specific Relief
Act (I of 1877), S.12---Agreement to sell---Attested and unattested by
witnesses---Proof of execution---Agreement if executed prior to promulgation of
Qanun-e-Shahadat, 1984 was not required by any law to be attested by
witnesses---Form of proof must be in line with the format of document executed
by parties to the contract---If agreement to sell had been reduced into writing
and attested by witnesses, then its execution must be proved in accordance with
provisions of S.68 of. Evidence Act, 1872, notwithstanding the fact that the
same applied only to document required by law to be attested---Where-agreement
to sell had been reduced to writing but 'not attested by witnesses, its
execution and the contract embodied therein could be proved by other strong
evidence and attending circumstances, which might vary from case to case---Such
evidence could also be produced in first category of cases as supporting
evidence.
(g) Specific Relief Act (I of 1877)---
---S.12---Evidence Act (I of
1872), S 68---Suit for specific performance---
Agreement to sell attested by two witnesses---Execution, proof of ---Non
examination of attesting witnesses---Effect---Execution of agreement had not
been proved within contemplation of S.68 of Evidence Act, 1872---Bald statement
of petition writer, who had allegedly scribed the agreement to sell, was not
enough to prove its execution.
(h) Specific Relief Act (I of 1877)---
----S.12---Evidence Act (I of 1872), S.68---Contract Act (IX of 1872),
S.62--Constitution of Pakistan (1973), Art.185(3)---Suit for specific
performance of agreement to sell---Plaintiff pleaded agreement to sell in
respect of disputed land and payment of its sale price to defendants through
different receipts---Agreement to sell attested by two witnesses was in the
shape of an extract from the register of a petition-writer---Plaintiff did not
examine marginal witnesses of agreement to sell, rather they appeared as
witnesses of defendant and denied its execution by deposing that when they
signed the agreement, neither defendant was present nor any amount was paid in
their presence---Trial Court dismissed the suit---Appeal and revision petition
filed by plaintiff were dismissed---Contention of plaintiff was that agreement
was not required by law to be attested by witnesses, thus, nonexamination of
attesting witnesses was not fatal; and agreement to sell had been proved by
means of secondary evidence of petition-writer ---Validity--None of the
attesting witnesses had been examined by plaintiff---Plaintiff had not placed
on record and proved the document whereby receipt of sale price paid from time
to time was acknowledged by defendant and contract was reiteraed--Plea of
novation of contract was also more imaginary than real for want of positive and
tangible proof---Supreme Court dismissed the appeal in circumstances.
Muhammad
Saeed v. Mst. Sardar Begum 1990 SCMR 1176 ref.
(i) Specific Relief Act (I of 1877)---
----S-12---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Suit
for specific performance of agreement to sell---Plaintiff examined only one
attesting witness---Trial Court dismissed the suit on the ground that agreement
to sell had not been proved in accordance with Art.79 of Qanun-e-Shahadat,
1984---Validity---Agreement to sell having been attested by two witnesses and
executed after promulgation of Qanun-e-Shahadat, 1984 ought to have been
proved in accordance with Art.79 thereof---Evidence on record consisted of only
one attesting witnesses---Payment of earnest money had not been
proved-Evidence produced by plaintiff did not meet the requirement of Art.79 of
Qanun-e-Shahadat, 1984.
Appellants
in person (in CAs Nos.327 & 328 of 1995.
Respondents:
Ex part (in CAs No-327 & 328 of 1995)
Rai Muhammad Nawaz Kharal, A vocate Supreme Court with M.S. Khattak,
Advocate-on- Record for Appellant (in C.A. No. 1022 of 1995)
M.A. Qureshi, Advocate-on-Record (absent) for Respondents (in C.A. No.
1022 of 1995).
Mian Ghulam Hussain, Advocate Supreme Court for Appellant (in C.A. No.
1348 of 1996).
Abdul
Waheed Chaudhry, Advocate Supreme Court for Respondents in C.A. No.
1348 of
1996).
Date of
hearing: 21st February, 2002.
JUDGMENT
QAZI MUHAMMAD FAROOQ, J.---The abovementioned four civil appeals, by leave of the Court, are
being disposed of by this common judgment on account of identity of the leave
granting orders.
2.
Leave was
granted in Civil Appeal No.327 of 1995 to consider whether an agreement to sell
is required to be attested by witnesses and the provisions of Article 79 of the
Qanun-e-Shahadat Order, 1984 were applicable in the case. Simultaneously, leave
was granted in the connected Appeal No.328 of 1995 though it had arisen from an
order of dismissal of an application under section. 12(2), C.P.C. passed in a
writ petition. Leave was granted in Civil Appeal No.1022 of 1995 on the
strength of a similar leave granting order passed in the case reported -as
Muhammad Saeed v. Mst. Sardar Begum (1990 SCMR 1176) and also to consider the
contention that even if the agreement to sell is excluded from consideration,
case of the petitioner was sufficiently proved by documents Exh. P-2 to Exh.
P-4 on which reliance was not placed by the Courts below. Leave was granted in
Civil Appeal No. 1348 of 1996 on the basis of the leave granting order passed
in Civil Appeal No. 327 of 1995.
3.
Before
adverting to the points for determination it is necessary to give brief facts
of each case. Civil Appeals Nos.327 and 328 of 1995 have arisen in the
circumstances that a suit for specific performance of contract embodied in an
agreement to sell dated 22-2-1977 in respect of land measuring 11 acres, 4 Kanals
situated in Tehsil Shorkot was filed by Muhamniad Sharif,
predecessor-in-interest of the appellants. It was alleged that one Muhammad
Yousaf had agreed to sell the suit land to the plaintiff for a sum of Rs.30,000
out of which Rs.13,400 were paid as earnest money and the rest was promised to
be paid at the time of execution of the sale dated. The vendee was put in
possession of the subject-matter of the agreement to sell. The vendor instead
of executing a registered sale-deed in favour of the vendee transferred the
suit land to one Mst. Jamila Begum through a consent decree dated 16-9-1980
passed by Civil Judge, Shorkot. The suit was resisted by the vendor as well as
Mst. Jamila Begum mainly
on the grounds that the agreement to sell pressed into service by the
plaintiff was not executed at all and neither any earnest money was received by
the vendor nor possession of the land in dispute was transferred to Muhammad
Sharif. After a hot contest the suit was dismissed by the learned trial Court
and the appeal filed by Muhammad Sharif also met the same fate on 29-6-1988.
Thereafter, the vendee filed a revision petition which too was dismissed on
17-4-1993 by a learned Judge in Chambers of the Lahore High Court mainly on the
ground that the execution of the agreement to sell had not been proved on
account of failure of the vendee to examine the marginal witnesses. The vendee
had also filed an application under section 12(2), C.P.C. whereby the transfer
of the suit land in favour of Mst. Jamila Begum through a consent decree was
challenged on the ground of fraud. That application was dismissed by the
learned trial Court on 28-11-1987, the civil revision preferred by Muhammad
Sharif was dismissed by the learned Additional District Judge, Jhang, on
16-1-1990 and the writ petition challenging the validity of both the orders was
dismissed by a learned Judge in Chambers of the Lahore High Court on 17-4-1993.
The validity of the judgment rendered by the High Court has been challenged in
Civil Appeal No.328 of 1995.
4.
The suit
culminating in Civil Appeal No. 1022 of 1995 was based on an agreement to sell
dated 10-6-1974 whereby Amir Khan, father of the respondent herein, had
allegedly agreed to sell land measuring 6-1/4 acres to the appellant for a sum
of Rs.37,500 and had received earnest money to the tune of Rs.5,000. The
remaining sale price was to be paid by 30-7-1974 on which date the sale was to
be completed. The sale was not completed by the stipulated date. However, the
vendor allegedly received a further sum of Rs.3,000 from the vendee on 2-8-1974
and another amount of Rs.1,700 on 21-9-1974 on which .date another agreement
extending the date for completion of sale up to 30-10-1974 was executed. In the
second agreement the receipt of the aforesaid amounts of Rs.3,000 and Rs.1,700
were duly acknowledged. The vendor executed yet another document on 16-10-1974
acknowledging receipt of an amount of Rs.1,400 and confirming earlier payments.
It was also alleged in the suit that the vendor instead of completing the sale had
gifted the land in dispute in favour of his sons, vide a registered gift deed
dated 20-12-1976, which was followed by a mutation attested on 28-1-1977. The
appellant was non-suited by the learned trial Court on the ground that the
marginal witnesses of the agreement to sell were not examined by him and both
of them had appeared as witnesses of ; the defendants and denied its execution
by stating in clear words that when they had signed the document neither Amir
Khan was present nor any amount was paid by the. appellant in their presence.
The documents Exh. P-2 and Exh.P-4 were also not relied upon owing to
discrepancies in the statements of the witnesses. The appeal preferred by the
appellant was dismissed by the learned Additional District Judge, Faislabad on
8-4-1991 and the revision petition filed by him was dismissed by a learned
Judge in Chambers of the Lahore High Court.
5.
In Civil
Appeal No. 1348 of 1996 the revision petition filed by the appellant was
dismissed by a learned Judge in Chambers of the Lahore High Court on
14-11-1995. The revision petition was directed against the judgment dated
18-9-1995 of the learned Additional District Judge, Okara whereby the judgment
dated 16-10-1994 of the learned Civil Judge, Depalpur dismissing the appellant's
suit for specific performance of contract was upheld. The suit was dismissed on
the ground that execution of the agreement to sell dated 18-3-1991 had not been
proved in accordance with Article 79 of the Qanun-e-Shahadat Order, 1984 as
only one attesting witness was examined.
6.
When the
appals came up for hearing one of the appellants in Civil Appeals Nos.327 and
328 of 1995, namely, Mst. Rasheeda Begum informed us that Mr. Abdul Shakoor,
Advocate Supreme Court, learned counsel for the appellants in
both the appeals, had died and she was not possessed of means to engage
another counsel. According to the grounds of appeal in Civil Appeal No. 327 of
1995 the execution of the agreement to sell dated 22-2-1977 was proved by the
appellants by producing the original agreement, examining its scribe and other
witnesses, establishing payment of the earnest money and delivery of possession
of the suit land but the evidence was either misread or ignored by the High
Court. It is also mentioned therein that the attesting witnesses were not
examined as both of them were clerks of Mr. Nematullah Hissari, Advocate,
husband of respondent No.2, who had masterminded the whole plan to deprive the
appellants of their legal rights. The grounds of appeal in Civil Appeal No.328 of
1995 spell out that there was enough material on record to show that the
consent decree dated 16-9-1980 obtained by Mst. Jamila Begum was the outcome of
fraud but the same was ignored and the writ petition was dismissed merely on
the ground that in the parallel proceedings arising out of a regular suit
brought by the appellants against their opponents a civil revision had already
been dismissed.
7.
Rai
Muhammad Nawaz Kharal, Advocate Supreme Court learned counsel representing the
appellant in Civil Appeal No. 1022 of 1995, contended that an agreement to sell
was not required by law to be attested by witnesses, therefore, non-examination
of the attesting witnesses was not fatal. He further contended that in any case
execution of the agreement to sell in question had been proved by means of
secondary evidence consisting of the statement of the petition-writer who had
recorded the same in his register and the extract from the relevant register.
It was also contended that execution of the remaining documents marked Exh. P-2
to Exh P-4 had also been duly proved. It was lastly contended that the civil
appeal in the case of Muhammad Saeed (supra) was allowed on 25-8-1991 and the
case was remanded to the High Court for deciding the appeal afresh after
determining as to whether the vendor had agreed to sell the house in dispute.
8.
Mian
Ghulam Hussain, Advocate Supreme Court, learned counsel for the appellant in
Civil Appeal No.1348 of 1996, also contended that an agreement to sell was not
required by law to be attested by two witnesses, therefore, the execution of
the agreement to sell in question (Exh. P-1) stood roved in the light of the
statement of one of the attesting witnesses.
9. Mr. Abdul Wahid Chaudhry,
Advocate Supreme Court, learned counsel for the respondents in C.A. No.1348 of
1996, on the other hand, maintained that an agreement to sell was required to
be attested by two witnesses and the agreement to sell involved in the appeal
was neither proved by examining the marginal witnesses nor through any other
mode.
10.
It will
be pertinent to mention at this stage that in the case of Muhammad Saeed
(supra) leave was granted to consider the question as to whether the agreement
to sell involved in the case was required by law to be attested by witnesses.
The appeal was allowed on 25-8-1991 and the case was remanded to the High Court
for re-decision of the appeal to determine as to whether the vendor had agreed
to sell the house. The appellants herein cannot draw any premium from the
judgment rendered in the case as the question alluded to in the leave granting
order was not determined and the case was remanded on finding force in the
contention that even if the agreement of sale is excluded for the reason that
the attesting witnesses had signed the same before it was signed by the
execution, still there was evidence on the record to show that the executant
had executed the said agreement.
11.
An
agreement to sell immovable property is a contract enforceable I by law.
Section 54 of the Transfer of Property Act expressly provides that a p contract
of sale does not, of itself, create any interest in or charge on the immovable
property
which constitutes its subject-matter. As a matter of fact an agreement
to sell only creates a right to obtain another document conferring title in
respect of the immovable property mentioned therein and for that very reason it
does not require registration. There is also no legal provision to the effect
that an agreement to sell should only be in writing. Be that as it may, while
determining the question whether an agreement to sell is required by law to be
attested by witnesses a line of demarcation must be drawn between the
agreements of sell executed before and after promulgation of Qanun-e-Shahadat
Order, 1984. Unquestionably, an agreement to sell involves future obligations,
therefore, if reduced to writing and executed after coming into force of
Qanun-e-Shahdat Order, 1984, it is required by sub-Article (2)(a) of Article 17
thereof to be attested by two male or one male and two female witnesses, as the
case may be. The said sub-Article is worded thus:--
"(2) Unless otherwise provided in any law relating to the
enforcement of Hudood or any other special law--
(a)
in
matters pertaining to financial or future obligations, if reduced to writing,
the instrument shall be attested by two men, or one man and two women, so that
one may remind the other, if necessary, and evidence shall be led
accordingly;"
The execution of such an agreement to sell is to be proved in accordance
with the provisions of Article 79 of Qanun-e-Shahdat Order, 1984 which read as
under:--
"If a document is required by law to be attested, it shall not be
used as evidence until two attesting witnesses at least have been called for
the purpose of proving its execution, if there be two attesting witnesses
alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in
proof of the executant of any document, not being a will, which has been
registered in accordance with the provisions of the Registration Act, 1908 (XVI
of 1908), unless its execution by the person by whom it purports to have been
executed is specifically denied."
12.
It is
true that before promulgation of Qanun-e-Shahadat Order, 1984 an agreement to
sell was not required by any law to be attested by witnesses. It is, however, a
matter of common knowledge that during that period also the agreements to sell
were by and large reduced to writing and attested by witnesses in spite of
absence of a legislative provision and the mode attained the status of an
established practice by efflux of time. This mode, in all probability, was
adopted by way of abundant caution and to procure documentary evidence inasmuch
as in a suit for specific performance of contract based on an agreement to sell
the onus is on the plaintiff to prove the contract unless its existence is
admitted by the defendant. The interest of justice, therefore, demands that the
form of proof should be in line with the format of the document executed by the
parties to the contract. It would thus follow that where an agreement to sell
executed prior to promulgation of Qanun-e-Shahadat Order, 1984 has been reduced
into writing and attested by witnesses its execution must be proved in accordance
with the provisions of section 68 of the erstwhile Evidence Act notwithstanding
the fact that the ` tame apply only to that document which is required by law
to be attested.
Prop of the aforementioned legal vacuum cannot be taken to offset the
effect of failure to prove the execution of an agreement to sell in accordance
with the said mode. However, where an agreement to sell has been reduced to
writing but not
attested by witnesses its execution and the contract embodied therein
can be proved by other strong evidence and attending circumstances which may
vary from case to case. Needless to mention that such evidence can also be
produced in the first category of cases as supporting evidence.
13.
Having
determined the main questions involved in these appeals we would now turn to
the merits of each appeal. In Civil Appeal No.327 of 1995 the agreement to sell
was executed on 22-2-1977. It was attested by two witnesses Muhammad Tufail and
Muhammad Yar and also bears their signatures. None of them was examined by the
appellants, therefore, it goes without saying that execution of the agreement
to sell. has not been proved within the contemplation of section 68 of the
erstwhile Evidence Act. The explanation for their non-examination lacks
plausibility. The bald statement of the petition-writer Nazar Mohyuddin (P.W.4)
who had allegedly scribed the agreement to sell is not enough to prove
execution of the document in question. The appeal is, therefore, without
substance.
14.
Civil
Appeal No.328 of 1995 is also devoid of substance because the appellants have
not only failed to prove that the consent decree in favour of Mst. Jamila Begum
was the outcome of fraud and misrepresentation but they also have no cause of
action to assail the same having been non-suited in the main case.
15.
In Civil
Appeal No. 1022 of 1995 the agreement to sell pressed into service was in the
shape of an extract from the register of a Petition Writer. According to the
said extract the agreement to sell was executed on 10-6-1974 and was attested by
Mahurram and Muhammad Ali. None of them was examined by the appellants. The
appellants have also not cared to place on record and prove the documents
whereby the receipt of sale consideration paid from time to time was
acknowledged and the contract was reiterated. The plea of novation of contract
is also more imaginary than real for want of positive and tangible proof. This
appeal is also devoid of force.
16.
The
agreement to sell in Civil Appeal No. 1348 of 1996 was executed on 18-3-1991
and attested by Muhammad Rafiq and Muhammad Sarwar. Having been executed after
promulgation of the Qanun-e-Shahadat Order, 1984 its execution ought to have
been proved in accordance with Article 79 (ibid) but the evidence - on record
consists of only one attesting witness. Payment of earnest money has also not
been proved on record. The evidence produced by the appellant does not meet the
requirements of Article 79 of the Qanun-e-Shahadat Order, 1984. The appeal is,
therefore, liable to be dismissed.
For the reasons aforesaid, we find no substance in these appeals which
are accordingly dismissed. No orders as to costs.
S..A.K./R-41/S
dismissed.
Appeals
