2002 SCMR 1089

Download as pdf or txt
Download as pdf or txt
You are on page 1of 7

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 Appeals
dismissed.

You might also like