2021 S C M R 686

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ
INAYATULLAH KHAN and others---Petitioners
Versus
SHABIR AHMAD KHAN---Respondent
Civil Petition No. 2547 of 2019, decided on 10th March, 2021.
(On appeal against the judgment dated 11.02.2019 passed by Peshawar High Court,
Bannu Bench in C.R. No. 319-B of 2012)
(a) Contract Act (IX of 1872)---
----S. 29---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable
property---Essential ingredients---Uncertainty and vagueness---Scope---Document in
question did not describe the land, its area, the total sale consideration and when the balance
of the sale consideration was payable and the transaction to be completed---Such a document
did not constitute a contract to sell land, therefore, it would be void for uncertainty in terms
of S. 29 of the Contract Act, 1872---Petition for leave to appeal was converted into appeal
and allowed and suit filed by respondent was dismissed.
Rauf Ahmed Ghori v. Managing Director, Cholistan Development Authority 1998
CLC 1464; Akhtar Aziz v. Shabnam Begum 2019 SCMR 522 and Saidino Khan v Zaibunissa
1991 SCMR 972 ref.
(b) Transfer of Property Act (IV of 1882)---
----S. 52---Transfer of property pending suit relating thereto---Scope---Suit filed by plaintiff
seeking specific performance of purported agreement to sell after property already sold by
owner to a third party---In such circumstances the sale to the third party could not be
defeated by placing reliance on S. 52 of the Transfer of Property Act, 1882 since transfer of
property was not done when the suit was pending, but had already taken place---Moreover,
the plaint did not state, nor was it established, that the sale to the third party was fraudulent
or collusive---Petition for leave to appeal was converted into appeal and allowed and suit
filed by respondent was dismissed.
(c) Transfer of Property Act (IV of 1882)---
----S. 41---Transfer by ostensible owner---Scope---Where the transferor was the ostensible
owner, the transfer was made by consent express or implied of the real owner, the transfer
was for consideration, the transferee acted in good faith and took reasonable care to ascertain
that the transferor had power to transfer, he would be entitled to statutory protection under S.
41 of the Transfer of Property Act, 1882---Bona fide purchasers could not be penalized for
any fraud or misrepresentation by their predecessors-in-title unless they were pari delicto
with their vendors.
Officer on Special Duty v. Bashir Ahmad 1977 SCMR 208; Kanwal Nain v. Fateh
Khan PLD 1983 SC 53; Muhammad Jamil v. Lahore Development Authority 1999 SCMR
2015; Muhammad Nawaz Khan v. Muhammad Khan 2002 SCMR 2003; Abdul Ghafoor
Khan v. Ghulam Sadiq PLD 2007 SC 433 and Muhammad Shamim v. Nisar Fatima 2010
SCMR 18 ref.
(d) Specific Relief Act (I of 1877)---
----S. 27(b)---Parties against whom decree for specific performance may not be issued---
Scope---Decree for specific performance may not be issued in respect of transferees for value
who paid the sellers in good faith and without notice of a pre-existing contract as per S. 27(b)
of the Specific Relief Act, 1877---In the present case, the transferee had purchased the land
from the ostensible owners thereof, and did not know that they, or either one of them, had
entered into a contract with the plaintiff for the sale of the subject land to him---Incidentally,
the transferee had purchased other lands too, which was an additional factor showing their
bona fide---Revenue record also did not disclose any interest of the plaintiff in the said land
nor disclosed that the ostensible owners (sellers) had any restriction placed on them to sell
their land---Transferees had purchased the property for valuable consideration, in good faith
and having acted honestly and without knowledge of the purported contract between the
ostensible owners (sellers) and the plaintiff could not be deprived of the said land---Petition
for leave to appeal was converted into appeal and allowed and suit for specific performance
filed by plaintiff was dismissed.
Khair-ul-Nisa v. Muhammad Ishaque PLD 1972 SC 25; Pak United Housing
Enterprise v. Ramzan 1992 CLC 1678; Karachi Raees Amrohvi Foundation v. Muhammad
Moosa 1999 CLC 296; Jamil Akhtar v. Las Baba PLD 2003 SC 494 and Tassaduq Hussain v.
Lal Khatoon PLD 2011 SC 296 ref.
(e) Specific Relief Act (I of 1877)---
----S. 12--- Suit for specific performance of agreement to sell immoveable property--- Pre-
requisites--- Payment of balance consideration in court--- Scope--- Person seeking the
specific performance of a contract must first show that he was ready, able and willing to
perform his obligations under the contract---Although the law did not require that the balance
sale consideration must be tendered or deposited in court, but such tender/deposit helped
establish that the buyer was not at fault---Supreme Court observed that invariably the value
of money depreciated over time and that of land appreciated; that courts adjudicating such
cases should not be unmindful of such reality and should endeavor to secure the interest of
both parties; that in a suit for specific performance of land, if the seller/vendor had refused to
receive the sale consideration, or any part thereof, it should be deposited in court and
invested in some government protected security (such as Defence or National Savings
Certificates); that in case the suit was decreed the seller would receive the value of money
which prevailed at the time of the contract and in case the buyer lost he could similarly
retrieve the deposited amount.
Malik Salahuddin, Advocate Supreme Court and Mehmood Ahmed Sheikh,
Advocate-on-Record for Petitioners.
Tariq Javed Qureshi, Advocate Supreme Court and Mir Aurangzeb, Advocate-on-
Record (Absent) for Respondent.
Date of hearing: 10th March, 2021.
ORDER
Qazi Faez Isa, J. We had issued notice to the respondent, subject to limitation, since the
petition was filed after fifty-four days of the prescribed period. Through CMA No. 6838 of
2019, the delay is sought to be condoned on the ground of illness. In support of the
application, outpatient receipts issued by the District City Hospital Lakki Marwat and slips
showing medicines prescribed by the said hospital have been attached; the documents
attached with the application are not controverted. Therefore, the delay in filing the petition
is condoned.
2. The respondent had filed a suit seeking specific performance of a document titled
'Receipt/Agreement' dated 10 March 2007 (exhibit PW 2/1), hereinafter referred to as 'the
said document'. The said document is written out on a plain piece of paper and purports to
sell-buy land jointly owned by Inayatullah Khan and his sister, Mst. Taj Bibi, but is
purportedly signed by Inayatullah Khan alone. The said document states that an amount of
thirty thousand rupees has been received by Inayatullah Khan, as part sale consideration of
land sold at the rate of nine thousand rupees per kanal, but does not mention the area of the
land nor the total sale consideration. It also does not mention the balance sale consideration
which is required to be paid. Therefore, from the said document, the area of the land which is
to be sold-bought cannot be ascertained. The said document is witnessed by Rasheed Ahmed
Khan (PW-3) and Yousaf Khan (PW-4).
3. Though the said document does not mention the area of land sought to be sold-bought
nor its description, the learned counsel representing the respondent, states that the description
of the land is mentioned in another document (p.142-143 of the paper book, which does not
bear an exhibit number), hereinafter 'the page'. It is not clear whether the page is an
attachment to the said document, or written on its reverse or constitutes a separate document.
Inayatullah Khan and the attesting witnesses have not signed the page. The said document
also does not refer to the page.
4. The suit filed by the respondent sought specific performance of the said document
and alleged that nine kanals and one marla of land ('the said land') was agreed to be sold-
bought and arrayed Inayatullah Khan and his sister, Mst. Taj Bibi (petitioner Nos. 1 and 2
respectively) as defendant Nos. 1 and 2 and Gul Nawaz Khan, Mir Ahmed Khan and Nawroz
Khan, who had been sold the said land, as defendant Nos. 3, 4 and 5 (herein petitioner Nos.
3, 4 and 5, 'the contesting petitioners'). The contesting petitioners bought from petitioner
Nos. 1 and 2 thirty-five kanals and four marlas of land vide sale mutation No. 511, attested
on 11 July 2007, and three kanals and nine marlas of land vide sale mutation No. 512,
attested on 15 June 2007; the said land comprised a part thereof. The respondent also sought
cancellation of these sale mutations.
5. The suit was partially decreed by the learned Judge of the Trial Court, to the extent of
Inayatullah Khan's share in the said land, but dismissed in respect of Mst. Taj Bibi's share in
the said land, because she had not signed the said document. The respondent was directed to
make payment of the balance sale consideration to the extent of Inayatullah Khan's share in
the said land vide judgment and decree dated 29 May 2010. Both sides filed appeals and the
learned Judge of the Appellate Court was pleased to decree the suit in its entirety in favour of
the respondent and his decision was maintained by the learned Judge of the High Court, the
judgment whereof has been impugned herein.
6. The learned counsel, representing the petitioners, states that the said document did not
constitute a contract under the Contract Act, 1872 ('Contract Act') as it was inchoate because
it did not provide the requisite particulars, including, the description of the land, its area, the
total sale consideration, the date for payment of the balance sale consideration and when the
sale had to be completed. He further states that the respondent had stated in the plaint that the
contesting petitioners had purchased the said land from petitioner Nos. 1 and 2, but it was not
alleged that the purchase was fraudulent, collusive or a mere paper entry to deprive the
respondent of the said land. He submits that the equities too were not in favour of the
respondent because the balance sale consideration was neither tendered nor deposited in
Court before the case was decided. He next states that the contesting petitioners are also
protected by section 41 of the Transfer of Property Act, 1882 ('Transfer of Property Act') as
they were bona fide purchasers for value without notice, having purchased the land from the
ostensible owners as per the revenue records. He submits that the principle of lis pendens is
also not applicable because the suit was filed on 3 December 2007, after the contesting
petitioners had already bought the said land. He also states that one of the attesting witnesses
of the said document, namely, Rasheed Ahmed Khan (PW 3), had known of the sale to the
contesting petitioners since he had himself filed a pre-emption suit against them, which he
later withdrew. Concluding his submissions, learned counsel states that the respondent had
stood idly by and let the contesting petitioners buy the said land without any objection.
7. On the other hand, the learned counsel representing the respondent relies on the
impugned judgment and that of the Appellate Court. He submits that the respondent had
established the execution of the said document by Inayatullah Khan, who did so for himself
and also on behalf of his sister. With regard to late submission of balance sale consideration,
he says that it was deposited after the judgment of the Trial Court with regard to Inyatullah
Khan's share and the sale consideration in respect of the share of Mst. Taj Bibi was deposited
after the decision of the Appellate Court. Reliance is placed on the page to contend that the
requisite ingredients of a contract are provided, if it is read together with the said document.
8. We have heard the learned counsel for the parties and with their assistance, examined
the documents on record. The petitioner Nos. 1 and 2 owned the said land which they had
admittedly sold to the contesting petitioners through the aforesaid two sale mutations; the
petitioner Nos. 1 and 2 support the contesting petitioners. Therefore, the main contest is
between the contesting petitioners and the respondent.
9. The said document does not describe the land, its area, the total sale consideration and
when the balance of the sale consideration was payable and the transaction to be completed.
Such a document does not constitute a contract to sell land. Therefore, it would be void for
uncertainty in terms of section 29 of the Contract Act, which provides that, 'Agreements, the
meaning of which is not certain, or capable of being made certain, are void'. In the case of
Rauf Ahmed Ghori 1 it was held, that:
22. This, however, does not conclude the matter. It is settled that an agreement is not
a binding contract if it lacks certainty due to vagueness or because its terms cannot be
ascertained. (See law of Contract by G.H. Trietel at page 47 International Student
Edition 1995 by Sweet and Maxwell). Necessarily, an agreement comes into being
with the consent of the parties. It must be certain, unambiguous or be made certain.
 This rule of common law was embodied in section 29 of the Contract Act (IX of
1872). It clearly postulates that agreement, the meaning of which is not certain or
capable of being made certain, is void. This provision was considered in weekly Law
Reports (Volume I) page 1025 in Harvey v. Pratt. In this case there was uncertainty in
contract with regard to the period of lease, rate of rent and its commencement. It was
held therein that agreement was uncertain and incapable of enforcement. This rule
was followed in Indian cases Volume LXIII page 49. Barkat Ram v. Anant Ram (AIR
1915 Lahore 328) and Bishop & Baxter LD (Law Reports 1944 page 12). Seen on this
touchstonte, it is clear that Shahi Muzara Scheme was enforced to colonize Crown
waste land which was unmeasured and unsettled.
A receipt (similar to the present one) was considered by this Court in the case of Akhtar
Aziz2 and it was held that it may constitute an agreement, provided it contains certain basic
ingredients:
13. … For a receipt to be termed and treated as a contract, if on going through the
receipt four basic components can be spelt out without ambiguity namely:
i) Identity of seller and purchaser
ii) The amount of sale consideration
iii) Identity and accurate description of the property agreed to be sold
iv) Parties to the agreement to sell an immovable property are at consensus ad idem.
It is clear and obvious to us that the first, third and fourth ingredients were missing
from the receipt. As such it was correctly not treated as an agreement. Further, the
receipt envisages execution of a proper agreement to sell. Such agreement was never
executed, there was never an agreement in existence whose specific performance
could be sought. In order to succeed in a suit for specific performance of a contract,
the plaintiff has to assert that a valid and enforceable contract existed between him
and the other side besides specifically and clearly pleading the terms and conditions
on the basis of which the contract was executed which he desired to be specifically
performed. Where the requisites of a contract are found to be deficient, the plaintiff
cannot seek specific performance of a contract. Even otherwise, the decree for
specific performance is a discretionary relief which can be refused in case the Court is
not satisfied either on the merits or on equities of the case.
Reference may also be made to the case of Saindino Khan 3 where vagueness and uncertainty
were held to render a contract unenforceable.
10. The learned counsel representing the respondent has asked us to read the said
document with the page. Even if we assume that the page was written on the reverse of the
said document, this would not make a difference because the said document does not refer to
it and does not state that the particulars of the land/transaction are mentioned on the reverse
of the said document. The page is also not signed. Therefore, the page has no evidentiary
value and cannot be read as part of the said document and/or to overcome the deficiencies in
the said document and to constitute a contract.
11. For arguments sake, if it be presumed that the said document and the page can be read
together and constituted a contract, then too such contract could not be specifically
enforceable because the respondent had filed the suit after the said land had already been
conveyed to the contesting petitioners. Moreover, the plaint did not state, nor was it
established, that the sale to the contesting petitioners was fraudulent or collusive. Therefore,
the sale to the contesting petitioners could not be defeated by placing reliance on section 52
of the Transfer of Property Act since transfer of property was not done when the suit was
pending, but had already taken place.
12. There is another aspect to consider, which is the defence of the contesting petitioners
taken pursuant to section 41 of the Transfer of Property Act, with regard to the transfer by
ostensible owners for consideration. In the case of Officer on Special Duty, 4 it was held that
on no discoverable principle can bona fide purchasers be penalized for any fraud or
misrepresentation by their predecessors-in-title unless they are pari delicto with their
vendors. In Kanwal Nain 5, this Court held that the principle underlying section 41 is that,
'whenever one of the two innocent persons has to suffer by the act of a third person he who
has enabled the third person to occasion the loss must sustain it.' In Muhammad Jamil, 6 it
was held that where the transferor was the ostensible owner, the transfer was made by
consent express or implied of the real owner, the transfer was for consideration, the
transferee acted in good faith and took reasonable care to ascertain that the transferor had
power to transfer, he would be entitled to statutory protection under section 41 of the
Transfer of Property Act. The same principle was affirmed in the cases of Muhammad
Nawaz Khan,7 Abdul Ghafoor Khan 8 and Muhammad Shamim. 9
13. A decree for specific performance may also not be issued in respect of transferees for
value who paid the sellers in good faith and without notice of a pre-existing contract as per
section 27(b) of the Specific Relief Act 1877 ('Specific Relief Act'). In the case of Khair-ul-
Nisa,10 this Court clarified that, 'under section 27 (b) of the Specific Relief Act negative is to
be proved by the subsequent transferee. If he appears in Court and states on oath that he had
no knowledge of the transfer that would be quite sufficient to discharge the burden and the
onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of
the original contract.' This principle was affirmed in the case of Pak United Housing
Enterprise.11 Section 27(b) was ably examined by Sabihuddin Ahmed, J (as he then was) in
the case of Karachi Raees Amrohvi Foundation: 12
17. Having carefully considered the judgments cited at the bar and the relevant
statutory provisions I am of the view that there is a distinction between the
requirement of section 27(b) of the Specific Relief Act and section 41 of the Transfer
of Property Act, it may be pertinent to quote the aforesaid Provisions, which read as
under:
"Section 27(b). Any other person claiming under him by a title against
subsequently to the contract, except a transferee for value who has paid his
money in good faith and without notice of the original contract."
"41. Transfer by ostensible owner. Where, with the consent, express or implied,
of the persons interested in immovable property, a person is the ostensible owner
of such property and transfers the same for consideration, the transfer shall not be
voidable on the ground that the transferor was not authorised to make it; provided
that the transferee, after taking reasonable care to ascertain that the transferor had
power to make the transfer, has acted in good faith."
18. It may be observed that under section 41 of the Transfer of Property Act when a
person ostensibly being the owner of the property transfers the property for
consideration to the transferee and such transfer is questioned on the ground that the
transferor had no legal power to vacate the same, the transferee may be exempted
from its consequences, provided, he establishes that he has taken reasonable care to
ascertain the power of the transferor and has acted in good faith. This is known as the
Caveat - emptor Rule and requires the transferee apart from acting in good faith to
take all reasonable care to apprise himself of any defect. In the transferor's title or
clog on his power to effect the transfer. On the other hand, section 27-B, of the
Specific Relief Act contemplates that equity of Specific Performance may not be
enforced against a person who has subsequently purchased the property and paid his
money in good faith and without notice of the original contract. It may be observed
that the duty to ascertain contemplated by section 41 of the Transfer of Property Act
is not stipulated in the Specific Relief Act. Apparently, there is rationale for this
difference. Under the Transfer of Property Act the purchaser can, with reasonable
diligence, discover a defect in the plaintiffs' title or a legal clog on his power of
disposition by making an inquiry from relevant public authorities. However, it is not
possible to do so in cases here only agreements are sought to be enforced because no
public records of mere agreements to sell properties are available and such agreement
can indeed be oral as well. Therefore, by the mandate of Legislature the burden on the
transferee under the Specific Relief Act is less onerous and Specific Performance
against him can be refused if it is shown that he acted in good faith and was not aware
of a pre-existing equity in favour of some other person. Therefore, respectfully
disagreeing with the view taken by the Lahore High Court and following the
precedents of the Honourable Supreme Court and a Division Bench of this Court I am
inclined to hold that the defendant No.6 was only required to prove that he was not
aware of the agreement between the plaintiffs and the defendant No.3 at the time of
execution of the sale-deed.
With regard to section 27(b), reference may also be made to the cases of Jamil Akhtar v. Las
Baba13 and Tassaduq Hussain v. Lal Khatoon 14 of this Court. In Jamil Akhtar, a three-
member Bench held:
6. First of all, we would take up the question of bona fide purchase claimed by
subsequent vendees. Though specifically the defendants have not mentioned section
41 of the Transfer of Property Act or section 27 of the Specific Relief Act, yet in their
written statement they have taken the plea that the property was purchased by them
considering it to be free of all encumbrances. In the circumstances of the present case,
we have to see as to whether the subsequent vendees are entitled to any benefit under
section 41 of the Transfer of Property Act or under section 27 of the Specific Relief
Act.
7. All the three Courts have concurrently held that agreement to sell dated 2-6-1979
Exh.P.1 and general power of attorney dated 2-6-1979 Exh.P.2 are proved to have
been executed. We have noticed with concern that both the deeds have been executed
on one and the same date still agreement to sell is not registered though on that very
date the general power of attorney Exh.P.2 was duly registered. The subsequent
vendees could, therefore, at the most, in exercise of due diligence make a probe either
into the Revenue Record or the Registration Office. In the Revenue Record the
property was entirely in the name of Lab Baba. In the office of Registrar there was a
registered deed No.736 dated 2-6-1979 in existence. Even if scrutinised, this deed
would not have provided any opportunity for becoming alert because it was a simple
general power of attorney in favour of Rasheed Ali. The appointment of a general
attorney is a matter of routine as well as requirement of the principal and is never
indicative by itself of a sale or absolute sale on behalf of the principal; much less a
sale in favour of the agent himself. Thus the subsequent vendees had no occasion to
become skeptical, more particularly, when the agent had neither initiated to get a
mutation attested in his favour nor had he done any overt act towards furtherance of
any transaction. … The agreement to sell, therefore, was executed in such a manner
that it could never put the subsequent vendees on guard. Rather, because of non-
registration, even the notice thereof could not be taken by a third person. [emphasis
added]
8. … In view of all such circumstances, we are of the view that despite the exercise of
due diligence the subsequent vendees could not have known or supposed to have
known the existence of any agreement to sell between Rasheed Ali and Las Baba.
They are, therefore, bona fide purchasers for consideration and without notice, within
the contemplation of section 27 of the Specific Relief Act, and no decree for specific
performance could have been granted. The conclusion arrived at by the learned Civil
Judge was, therefore, correct and was rightly endorsed by the High Court.
In Tassaduq Hussain, which was also decided by a three-member Bench, it was held that:
4. … In the cases pertaining and relating to the protection under section 27(b) of the
Specific Relief Act, 1877, undoubtedly, it is the subsequent vendee who asserts and
avows in the defence that his case falls within the purview and parameter of the noted
section i.e. he is a transferee for value; the money (consideration) has been paid in
good faith; and that he had no notice of the original (earlier) contract between the
plaintiff and the vendor. In other words that he is a bona fide purchaser without
notice. Obviously the existence of the facts aforementioned and the ascertainment
thereof is an issue between the parties which requires resolution from the Court. It is
therefore in such like cases by applying the rules regarding burden of proof as
emerging from the noted Articles, especially 117 and 118, the initial onus to prove the
same is on the shoulder of the subsequent vendee. It may be pertinent to point out that
in civil disputes the onus to prove a fact however does not remain constant or
stagnant, thus once the initial onus On a proposition of fact has been discharged by
the side upon whom it was originally placed, it would shift over to the other party for
the rebuttal thereof or for the proof otherwise.
5. Be that as it may, the subsequent vendee thus has to discharge the initial onus as
follows:
(1) that he acquired the property for due consideration and thus is a transferee for
value, meaning thereby that his purchase is for the price paid to the vendor and not
otherwise.
 (2) there was no dishonesty of purpose or tainted intention to enter into the
transaction which shall settle that he acted in good faith or with bona fide;
(3) he had no knowledge or the notice of the original sale agreement between the
plaintiff and the vendor at the time of his transaction with the later.
From the above it is depicted that the section merely enacts the English equitable rule
which allows later legal title to prevail over an equitable interest in case of bona fide
purchaser for value without notice (emphases supplied). And this principle has to be
kept in view by the Courts while analyzing and appreciating the evidence on the
record for the discharge of the requisite burden.
14. The contesting petitioners had purchased the land from the ostensible owners thereof,
that is from petitioner Nos. 1 and 2, and did not know that they, or either one of them, had
entered into a contract with the respondent for the sale of the said land to him. Incidentally,
the contesting petitioners had purchased other lands too, as mentioned in the aforesaid sale
mutations, which is an additional factor showing their bona fide. The revenue record also did
not disclose any interest of the respondent in the said land nor disclosed that the sellers
(petitioner Nos. 1 and 2) had any restriction placed on them to sell their land. The contesting
petitioners having purchased the property for valuable consideration, in good faith and
having acted honestly and without knowledge of the purported contract between the sellers
and the respondent could not be deprived of the said land.
15. There is yet another aspect which goes against the issuance of a decree of specific
performance to the respondent which is his failure to perform his own part of the contract,
that is, tender the amount of sale consideration to the sellers (petitioner Nos. 1 and/or 2), and
if they had refused to receive it, to tender it in court. The purported balance sale
consideration was only deposited after the Trial Court had decreed the suit with regard to
petitioner No. 1 and after the Appellate Court had decreed the suit with regard to petitioner
No. 2. A person seeking the specific performance of a contract must first show that he is
ready, able and willing to perform his obligations under the contract, but this the respondent
had failed to do. The law does not require that the balance sale consideration must be
tendered or deposited in court, but such tender/deposit helps establish that the buyer was not
at fault. The respondent's learned counsel's contention that only after the court directs the
deposit of the sale consideration, is it to be deposited, is misplaced. We may also take
judicial notice of the fact that invariably the value of money depreciates over time and that of
land appreciates. Courts adjudicating such cases should not be unmindful of this reality and
should endeavor to secure the interest of both parties. In a suit for specific performance of
land, if the seller/vendor has refused to receive the sale consideration, or any part thereof, it
should be deposited in court and invested in some government protected security (such as
Defence or National Savings Certificates); in case the suit is decreed the seller would receive
the value of money which prevailed at the time of the contract and in case the buyer loses he
can similarly retrieve the deposited amount.
16. We are dismayed that the learned Judges of the Subordinate Courts as well as the
learned Judge of the High Court completely disregarded the aforesaid points, and were
unmindful of the interest of the contesting petitioners, who had demonstrated that they were
bona fide purchasers for value without notice. Therefore, their judgments are not sustainable
in fact or in law, which are set aside by converting this petition into an appeal and allowing
it, consequently, the suit of the respondent filed against petitioner Nos. 2, 3, 4 and 5 is
dismissed. However, the respondent may seek to recover any money which was paid by him
to petitioner No. 1 and also seek the return of any money deposited by him in court. There
shall be no order as to costs since we have set aside all the judgments.
MWA/I-3/SC Petition allowed.