(1) Fayyaz Ahmad, (2) Riaz Ahmad sons, (3) Mst. Mumtaz Begum widow, (4) Naseem Akhtar, (5)
Mst. Talat Ara, (6) Mst. Asmat Ara, (7) Mst. Nuzhat Mahmood and (8) Mst. Sabahat Rana, daughters of Mahmood Ahmad (respondents Nos.4 to 11 herein) were the owners of the suit-land. Fayyaz Ahmad and Riaz Ahmad respondents Nos.4 and 5 herein, entered into an agreement to sell with the remaining respondents Nos.1 to 3 Muhammad Rafique, Ashiq Ali and Muhammad Khan on 26- 9-1.972 for agricultural land in which, tubewell engine was installed alongwith the standing trees, precisely prescribed in para. 1 of the plaint, in consideration of Rs,50,000. It was undertaken by the aforesaid Fayyaz Ahmad, Riaz Ahmad and executants of the agreement to sell that their mother and sisters respondents Nos.6 to 11 herein would also execute the contract. It was agreed that the sale-deed shall be completed till 26-12-1972. Before the target date i,e, 26-12-1972, the respondents apprehended that said Fayyaz Ahmad etc. Vendors/owners of the land, may transfer the suit-land to some other persons, therefore, filed suit for permanent injunction against all the owners. It was prayed that the owners be restrained from alienating the disputed property to anyone else than the respondents. The counsel for all the owners, i,e, Fayyaz Ahmad, Riaz Ahmad, their mother and sisters, made a statement before the Court that the agreement according to the stipulated conditions would be completed by all of them. In consequence of the statement, made by the counsel, suit was disposed of vide order dated 9-12-1972 (Exh.P.10). It was alleged on behalf of the respondents that the purchaser could not arrange the agreed money till the target date of 26-12- 1972, therefore, the land was purchased by the petitioners, who had purchased the land in good faith without notice of the earlier agreement to sell dated 26-9-1972 between the parties.
Muhammad Rafique, Ashiq Ali and Muhammad Khan respondents Nos.1 to 3 brought a suit for specific performance of the agreement dated 26-9-1972 in the Court of Civil Judge. Suit was resisted by the petitioners. It was contended by the petitioners/owners that the last date for completion of the agreement was 26-12-1972. The respondents Nos.1 to 3 could not arrange the amount, therefore, the agreement did not exist between the parties and the same was rescinded, therefore, the subsequent sale was made on 27-12-1972. The subsequent purchasers, who are the petitioners, contended that they are bona fide purchasers with consideration and without knowledge of the earlier agreement.
2. From the divergent pleadings of the parties, the learned trial Court framed the following issues:-- Issues:
(1) Whether the plaintiffs are estopped to file this suit? OPD
(2) Whether the defendants Nos.1 to 8 agreed to sell the suit-land to the plaintiffs? OPP
(3) If Issue No,2 is proved, whether the plaintiffs fulfilled their part of the contract? OPP
(4) Whether the defendants Nos.3 to 8 are not bound by the agreement in question? If so, its effect?
OPP
(5) Whether the plaintiffs are entitled to get a decree for the enforcement of the agreement of sale dated 26-9-1972 against defendant No, l? If so, on what terms? OPD
(6) Whether the defendants Nos.9 to 27 are the bona fide purchasers for value and without notice?
If so, its effect? OPD
(7) Whether the suit has become infructuous and the plaintiffs failed to fulfil their part of the contract? OPD
(8) Whether the suit is false, frivolous and vexatious and the defendants are entitled to get special costs from the plaintiffs? If so, to what extent? OPD
(9) Relief.
3. The learned Civil Judge recorded the findings on Issue No,2 in favour of the plaintiffs/respondents Nos.1 to 3 and observed that agreement dated 26-9-1972 was admitted as correct by the respondents Nos.1 to 8, therefore, this issue is decided in favour of the plaintiffs. On the question whether defendants Nos.3 to 8 are not bound by the agreement in question? If so, its effect, the issue was answered by observing that the plaintiffs filed a suit for permanent injunction on the basis of this agreement to sell against the defendants Nos.1 to 8 wherein their counsel got recorded the statement on behalf of all the eight defendants that they are bound by the contract till 26-12- 1972, the act of defendants Nos.3 to 8 stands rectified and they are bound by original agreement by principle of rectification. Under Issues Nos.3 and 5, the learned Civil Judge discussed the conduct of the plaintiffs and held that the conduct of the plaintiffs is evident even from the plaint itself and in my opinion the plaintiffs failed to fulfil their part of the contract and they cannot be held entitled for any decree". Under Issue No,6, the learned Civil Judge proceeded to observe that "there existed no agreement to sell in favour of the plaintiffs on 27-12-1972 i,e, date for execution of sale-deed in favour of defendants Nos.9 to 26, therefore, these defendants are held bona fide purchasers with value and with notice. On the basis of findings on Issues Nos.3 and 5, it was held that the plaintiffs are estopped by their words and conduct to bring the suit. Consequently, the learned Civil Judge on the basis of findings on Issue. No,6, proceeded to dismiss the suit of the respondents Nos.1 to 3 vide judgment and decree dated 19-6-1995. Aggrieved from the aforesaid judgment and decree dated 19-6-1995, plaintiffs/petitioners filed an appeal. The learned Additional. District Judge, Gujranwala mentioned different incidents by referring the suit for permanent injunction Exh.P.10, Exh.P.11 and Exh.P.12 and that the plaintiffs have apprehended shortly after execution of the agreement that defendants Nos.1 and 2 were going to resile from the agreement, therefore, filed a suit for permanent injunction and they further sent the notice through their lawyer to contact the plaintiffs in his Chamber on the specified date i,e, 20-12-1972; further that the challan form was never signed and stamp-papers were never purchased by the defendants Nos.1 to 8 to get the sale-deed written and read for presentation before the Sub-Registrar till 26-12-1972 in spite of the fact that meantime another notice was also issued to the defendants to do the needful by contacting them on 23-12-1972 in order to get the sale-deed registered and since next two days i,e, 24th and 25th were holidays, therefore, the plaintiffs remained present in the office of the Sub Registrar on 26-12-1972 and the plaintiffs marked their presence before the Sub-Registrar on 26-12- 1972 for the execution of the sale-deed and from all the above, the conduct of the plaintiffs/respondents was to so that they were ready and willing to perform their part of the contract by getting the sale-deed executed in their favour. The learned Additional District Judge proceeded to reverse the findings on Issue No,3. Learned Additional District Judge also reversed the findings of the Civil Judge on Issue No,6 regarding bona fide purchaser with consideration without notice and decided in favour of the petitioners. It was observed that the onus of proving that the defendants have purchased the property in question with notice of the previous agreement to sell was discharged and when the burden was shifted to the petitioners only P.W.4 Muhammad Sadiq appeared and deposed that he had no knowledge about the sale agreement. The learned Additional District Judge also relied on the statement of one of the defendants Muhammad Khan, who appeared as his own witness as P.W.6, who had admitted that the subsequent purchaser had the knowledge of the earlier agreement to sell. In consequence of the above-stated facts, the learned Additional District Judge set aside the judgment and decree of the Civil Judge dated 19- 61995 by accepting the appeal and decreed the suit of the respondents/plaintiffs.
4. Learned counsel for the petitioners has contended that out of several co-owners, the agreement to sell dated 26-9-1972 (Exh.P.7) was executed only by Fayyaz Ahmad and Riaz Ahmad respondents Nos.4 and 5, who merely had a share of 5/24 in the total land measuring 247 Kanals, 1 Marla. The mother of Fayyaz Ahmad and Riaz Ahmad had a share of 3/24 and the sisters had share of 16/24.
He submits that the female co-owners were not party to the contract and the statement made by their counsel in the suit for permanent injunction Exh.P.10, Exh.P.11 and Exh.P.12, could not be construed a rectification of the agreement to sell on their behalf. He submits that at all, the agreement Exh.P.7 could have specifically been enforced only to the extent of shares of Fayyaz Ahmad and Riaz Ahmad respondents Nos.4 and 5. Reliance has been placed on PLD 1964 SC 807, AIR 1923 Cal. 694, AIR 1937 Mad. 596 and AIR 1925 Lah.
465. Further contends that the petitioners are bona fide purchasers with consideration and without notice and are lawful owners of the disputed land. In this connection, he has relied on PLD 1994 SC 674 and PLD 1973 Note 119 at p.
184.
5. Conversely, learned counsel for the respondents contended that the agreement Exh.P.7 was rectified by other co-owners i,e, mother and sisters and Fayyaz Ahmad and Riaz Ahmad by statement made by their counsel in the suit for permanent injunction and he has relied on section 196 of the Contract Act in this behalf. Further contends that the petitioners were in knowledge of the agreement to sell dated 26-9-1972 Exh.P.7 and the conduct of the petitioners was mala fide in purchasing the suit-land, therefore, they cannot be termed as bona fide purchasers with consideration without notice and no protection can be given to the subsequent vendee. Further contends that agreement dated 26-9-1972 (Exh.P.7) could be enforced against all of the defendants/owners as the same was executed by Fayyaz Ahmad and Riaz Ahmad on behalf of the mother and sisters also. It is also the case of the respondents that if at all Fayyaz Ahmad who was legally appointed agent of the other co-owners, exceeded his authority, rectification in this case has been impliedly given by the other co-owners from their mere silence. According to the learned counsel, till today, co-owners of Fayyaz Ahmad and Riaz Ahmad have not taken the stand that the learned counsel, who made the statement on their behalf in the suit for permanent injunction, was not authorized to make the statement or Fayyaz Ahmad was not their agent for the purpose of execution of the sale-deed in favour of respondents. Further contends that time in the transaction of the immovable property is not the essence of the contract and it cannot be argued that on 26- 12-1972, which was last date for performance of the contract, agreement dated 26-9-1972 between the parties rescinded and the vendees were under no obligation to transfer the land to the respondents Nos.1 to 3.
6. The first and pivotal question for determination in this case is that whether the agreement dated 26-9-1972 was executed only by Fayyaz Ahmad and Riaz Ahmad respondents Nos.4 and 5 and female co-owners, who were party to the contract, statement made by their counsel in the suit for permanent injunction got construed as rectification of agreement to sell on their behalf or not. The agreement dated 26-9-1972 is admitted between the parties. Out of several co-owners, agreement to sell dated 26-9-1972 (Exh.P.7) was executed only by Fayyaz Ahmad and Riaz Ahmad. It was the case of the respondents/plaintiffs that they apprehended shortly after the execution of the agreement that defendants Nos.1 to 3 were going to resile from the agreement, therefore, they filed a suit for injunction (Exh.P.11) against Fayyaz Ahmad, Riaz Ahmad sons of Mehmood Ahmad, Mumtaz Begum, Mst. Naseem Akhtar, Talat Ara, Asmat Ara, Nuzhat Mehmood and Saba Rahana daughters of Mehmood Ahmad. It was specifically mentioned in paragraph No,2 that the agreement to sell dated 26-9-1972 has been entered and agreed between the parties. Plaint is Exh.P.12 on the file. Learned counsel for the defendants made statement on 9-12-1972 (Exh.P.11) that the suit property shall not be alienated by them till 26-12-1972. On the basis of above-stated statement, the order dated 9-12-1972 (Exh.P.10) was passed. It is pertinent to note here that Fayyaz.
Ahmad had been appointed as general attorney on behalf of all the above stated co-owners i,e, mother, brothers and sisters vide general power of attorney registered at Serial No,2387, Behi No,4, Volume No,359, pages 71/75 registered before the Sub-Registrar on 6-12-1972. He was also general attorney on behalf of Talat Ara on the basis of registered power of attorney No,2386, Behi No,4, Volume No,208, registered before the Sub-Register on 6-12-1972 and attorney of Asmat Ara was registered at Serial No,2385, Behi No,4, Volume No,208 dated 6-12-1972 for the land measuring 259 Kanals, 10 Marlas and this fact is clear from the sale-deed executed by Fayyaz Ahmad (Exh.D.5) on 27-12-1972 in favour of the subsequent purchaser. Petitioners have not denied the appointment of Fayyaz Ahmad as their general attorney on the basis of document dated 6-12-1972. In case reported as U.P. Government in Nazul Department, Lucknow v. Church Missionary Trust Association Ltd., London and Allahabad AIR 1948 Oudh 54, while interpreting section 188 of the Contract Act, and construction of power of attorney, it has been observed that if the power of attorney is given for various purposes, governing object being power to sell, all other purposes must be read as ancillary to governing object. Fayyaz Ahmad was general 'attorney of all the co-owners, therefore, he had the power to appoint the counsel, who made the statement before the. Court for execution of the sale-deed. In this view of the matter even for the arguments sake that the agreement to sell dated' 26-9-1972 (Exh.P.7) was executed only by Fayyaz Ahmad and Riaz Ahmad respondents Nos.4 and 5, who merely had a share of 5/24 in the total land measuring 247 Canals, 1 Marla, the mother of Fayyaz Ahmad and Riaz Ahmad had a share of 3/24 and the sisters 16/24, though they were' not party of the contract, but the statement made by their counsel in the above-referred suit for permanent injunction could be construed a rectification of the agreement to sell on their behalf. To understand the controversy, the provision of section 197 of the Contract Act is reproduced as under:-- ' "Ratification may be expressed or implied. Ratification may be expressed. Or may be implied in the conduct of the person on whose behalf the acts are done."
' Sisters and mothers of Fayyaz Ahmad and Riaz Ahmad kept silent despite that Fayyaz Ahmad being agent, appointed the counsel and made the statement before the Court that they will bound by the agreement dated 26-9-1972. Section 197 of the Contract Act, came up for interpretation in case of Ramasamy Chetty v. Karuppan Chetty and others AIR 1916 Mad. 1133 and it was 'held that "in the case of an agent exceeding his authority ratification may be implied from the mere silence or acquiescence of the principal". In case of Bank of Montreal v. Dominion Gresham Guarantee and Casualty Co. AIR 1930 PC 278 it has been ruled that "effective ratification necessarily involves knowledge of all the material facts on the part of him who ratifies". In case of Surendra Nath Roy v., Kedar Nath Bose and others -AIR 1936 Cal. 87 the necessary ingredients of ratification have been discussed and it has been observed that "to constitute a binding adoption of acts of priori unauthorized, these conditions must exist: (1) acts must have been done for and in the name of the supposed principal and (2) there must be a full knowledge of what those acts were, or such an unqualified adoption that the inference may properly be drawn that the principal intended to take upon himself the responsibility for such act, whatever they were.
7. Learned counsel for the petitioners on the basis of case reported as Raza Hussain and others v.
Muhammad Khan and others 1999 CLC 1057 has argued that the petitioners, who were co-owners of the suit-land being female and Pardahnasheen ladies had protection and that the alleged agreement to sell executed on behalf of the ladies was not binding on them because the plaintiffs were unable to discharge burden of satisfying Court that the agreement was executed with full knowledge and consent. There is no cavil with the proposition that when a transaction was made by a Pardanashin lady, onus was always on person claiming advantage of such transaction to show that same was made with free-will of Pardahnashin lady and in case of Ghulam Ali v. Mst.
Ghulam Sarwar Naqvi PLD 1990 SC 1, Fazaj Jan v. Roshan Din PLD 1990 SC 661 and Nasreen v. Fayyaz PLD 1991 SC 412, it has been ruled that "real test invariably would be as to whether in a given case, it could be inferred that agreement was made by lady with full comprehension of its implications and a state of mind free from outside pressures". The above-referred cases are not applicable to the facts and circumstances of the present case, because it is not disputed by the ladies that there was fraud on the part of Fayyaz Ahmad and Riaz Ahmad their brothers in execution of the agreement to sell or appointment of the counsel, who made the statement before the Court that the sale-deed would be executed.
8. This brings me on other issue that there was no agreement on 27-12-1972, when the sale-deed (Exh.D.5) was executed on behalf of Fayyaz Ahmad etc. In favour of subsequent purchasers and the agreement dated 26-9-1972 came to an end. It is well-established principle of law that in the transaction of an immovable property, time is not essence of the contract. In case of Ghulam Nabi and others v. Seth Muhammad Yaqui and others PLD 1983 SC 344, while interpreting section 55 of the Contract Act, the Honorable. Supreme Court has held that in the transaction involving immovable property, time is not always the essence of the contract. Number of events have taken place before the subsequent purchasers to get the land transferred in their favour through the registered sale-deed dated 17-12-1972. Firstly, suit was filed on 4-11-1972 against Fayyaz Ahmad etc. In which the counsel for the owners appeared and made the statement that the registered sale- deed will be executed in favour of the respondents Nos.1 and 2. Thereafter, notice Exh.P.3 was issued to the respondents on 20-12-1972 calling upon the owners to execute the sale-deed. Another notice dated 12-12-1972 Exh.P.3 was issued on behalf of Muhammad Rafique to Fayyaz Ahmad. In pursuance of the notice dated 20-12-1972, one of the owners Fayyaz Ahmad reached in time and the plaintiffs asked him to sign the challan form for deposit of specified amount for purchasing the stamp papers, whereupon the sale-deed was to be written, but the said defendant made the excuse that since he had to collect power of attorney of few of ladies co-owners, therefore, he would do the needful later on. This conduct of, Fayyaz Ahmad was based upon mala fide because he was already general attorney of the female co-owners as is evident from Exh.D.5 sale-deed registered in favour of subsequent vendee and the challan form was never signed and stamp papers were never purchased by defendants Nos.1 to 8. The plaintiffs also issued notice on 23-12- 1972 and meanwhile there were two holidays on 24-12-1972 and 25-12-1972. Thereafter, plaintiffs appeared before the Sub-Registrar on 26-12-1972 and kept awaiting in the office of the Sub- Registrar. The plaintiffs got their presence marked on 26-12-1972 before the Sub-Registrar, who also appeared as P.W.4 to substantiate the fact that the plaintiffs appeared before him with an intent to get the sale-deed registered. Fayyaz Ahmad also appeared before Sub-Registrar on 20-12-1972 as well as on 26-12-1972. Application submitted to the Registrar is also on the file. From whole of the above stated facts, it is manifestly clear that the plaintiffs were ready to perform their part of the contract. In case reported as Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25, the Honourable Supreme Court has observed that the basic onus of purchasing the land with consideration and without notice of the previous agreement in good faith, is always on the subsequent purchaser and if the purchaser appears before the Court and states on oath that he had no knowledge of the agreement to sell, then burden will shift on the plaintiff to show that the subsequent vendee had the knowledge of the previous agreement between the parties. In this background, it was obligatory upon the petitioners to establish firstly that they had no knowledge about the previous agreement to sell between the parties and defendants Nos.1 to 9, secondly they acted in good faith and also with due reasonable care get the Exh.P.5 executed in their favour. There is solitary statement of denial of knowledge by Muhammad Sadiq D.W.4, who has deposed that he had no knowledge about the sale agreement. However, he has admitted in cross-examination that before getting the sale-deed executed and registered, they got the knowledge about the agreement to sell between the parties through the Registrar as an application was presented by the plaintiffs before the Registrar, who objected registration of the sale. From the statement of Sub-Registrar P.W.4, who testified that he made notes upon Exh.P.8 and Exh.P.9 on 27-12-1972 the case of bona fide purchaser with consideration without notice set up by the petitioners was totally destroyed by one of the defendants Muhammad Khan, who appeared as his own witness as P.W.6, who deposed that the subsequent purchasers had the knowledge about the sale agreement prior to execution of the sale-deed in their favour. Under section 27(b) of the Specific Relief Act, the plaintiffs could have enforced the agreement against the subsequent vendee. Only exception was made under section 27 of the Specific Relief Act for protection of the bona fide purchaser, who had no knowledge of the agreement. Here in this case, for all the facts stated above, it is crystal clear that the subsequent vendees i,e, defendants Nos.2 to 8 had the knowledge of the prior agreement to sell dated 26-9-1972 (Exh. P.7) between the owners and respondents Nos.1 and 2. In this view of the matter, the learned Additional District Judge rightly on the basis of evidence, reversed the findings on Issue No,6 and declared that the petitioners being subsequent purchasers were not the bona fide purchasers without notice. The learned Civil Judge on the basis of misreading of the evidence, dismissed the suit of the respondents Nos.1 and 2. The learned Additional District Judge rightly set aside the judgment and decree passed by the learned Civil Judge and accepted the appeal of the respondents and decreed the suit. Resultantly, this revision petition has no force and is dismissed with costs.