This second appeal is from the decision dated 17-9-1971 of District Judge, Jhang, which reversed the judgment and decree dated 14-t-1971 of Civil Judge, and dismissed the suit of the appellant with costs throughout.
2. In 1946 the respondent obtained a grant of 800 kanals of land in village Kassowana, also known as Chak No. 6/3-L, of Tehsil Shorkot on Bara conditions. The grant was to extend over a period of eight years during which the respondent was to develop the land and make it fit for cultivation. If he succeeded in doing so then at the end of the said period be was to receive proprietary rights in one half of the land without any payment whatsoever.
3. On 15-12-1946 the respondent entered into a written agreement with the appellant. Under the agreement the respondent transferred all his rights in the land to the appellant for a sum of Rs.
2,000. At the time of executing the agreement deed (Exh. P. 7) the respondent received Rs. 1,500.
This left a sum of Rs. 500 unpaid. Before the execution of the deed certain Government dues were owing from the respondent. The appellant undertook to clear off these dues out of the remaining amount of consideration and then to pay the balance to the respondent before Rabi, 1947. One of the terms of the agreement provided that on receipt of the proprietary rights the respondent Would transfer the same to the appellant. On 13-6-1955 the respondent obtained proprietary rights in the land in dispute. He, however, refused to transfer them to the appellant in pursuance of the agreement. Upon this, on 31-3-1967, the appellant brought the present suit for the specific performance of the agreement.
4. The suit was resisted by the respondent. He inter alia alleged that immediately after Partition in 1947 the agreement was terminate) by the parties with mutual consent when on account of straitened circumstances the appellant expressed his inability to develop the land. Consequently the appellant did not pay the remaining Rs 500 of the agreed consideration. He also claimed that after the termination of the agreement he himself made arrangements for the development and cultivation of the land.
5. On the pleadings of the parties the learned trial Judge framed four issues of which now only the following two are relevant :
(1) Had the plaintiff failed to fulfill the conditions of the agreement dated 15-12-46 and the same was validly cancelled?
(2) if not, whether the plaintiff has performed his part of the contract?
Both parties led evidence and on considering the same the trial Court dismissed the suit after holding inter alts that though the entire stipulated amount had been paid by the appellant to the respondent the agreement had been brought to an end as the appellant was not in .a position to bring it under plough. The appellant preferred an appeal. The learned District Judge who heard the appeal set aside the decision of the trial Court, formulated a few questions and remanded the suit for a fresh decision after recording additional evidence. On remand the learned trial Court recorded the additional evidence as directed and then by its judgment dated 14-1-1971 decreed the suit. To challenge this decision the respondent preferred an appeal before the District Judge. The learned District Judge accepted the appeal and dismissed the suit on 17-9-1971. The appellant has now come in second appeal to this Court.
6. On facts two questions arise for consideration in this second appeal: First, whether the appellant had failed to account for the unpaid consideration of Rs. 500, and, second, whether the parties had mutually agreed to put an end to the agreement. On both these questions the findings of the learned District Judge were adverse to the appellant. Ordinarily, on questions of fact the findings of the first Appellate Court are to be treated as conclusive. It is, however, contended on behalf of the appellant that the learned District Judge had misread the record. To examine this contention I have gone through the entire evidence with the help of the learned counsel for the parties.
7. It is common ground between the parties that out of the total consideration of Rs. 2,000, g sum of Rs. 15,00 was paid by the appellant to the respondent at the time of executing the agreement deed (Exh. P. 7). A recital to that effect occurs in the deed itself. There is also no dispute that a sum of Rs.
500 was retained by the appellant which was to be paid at the end of Rabi, 1947 after clearing off certain Government dues etc. Although the respondent alleged in his written statement that the appellant did not pay any part of the remaining consideration, the appellant produced a receipt (Exh. P. 8) dated 6-7-1947 for Rs. 200 which was in the handwriting of the respondent himself. The genuineness of this receipt was not impugned by the respondent. This left a sum of Its. 300 only to be accounted for.
8. As regards the remaining amount the case of the appellant was that he had spent it in discharging the Government dues which were owing from the respondent. In support of his contention he produced five receipts. One of these receipts (Exh. P. 4) is for a sum of Rs. 100 and bears the date 14-1-1974. The learned District Judge did not take this receipt into consideration for the reasons that it was not possible to say that it was in respect of the dues owing from the respondent and that there was nothing on the record to show that the amount mentioned therein was paid by the appellant and or that it related to the land in dispute. I think the view taken by the learned District Judge is based on misreading of the receipt and the agreement deed (Exh. P. 7).
The receipt in question contained an entry to the effect that the amount had been paid on account of lot No. 1 of village No. 6/3-L. This description tallies with the description of the land in dispute as will appear from the copy of the order of the Collector (Exh. D-1) produced by the respondent himself. Under the deed (Exh. P. 7) the appellant was responsible for paying off the Government dues and the receipt (Exh. P. 4) has been produced by him. It was not the case of the respondent that the receipt (Exh. P. 4) had been stolen from his possession. It is, therefore, not right to say that there was nothing to indicate that the amount of the receipt was in fact paid by the appellant. It was also not the position of the respondent that the amount was not owing from him at the time of the entering into the agreement. In the circumstances the learned .District Judge should have given credit to the appellant for this amount.
9. Another receipt (Exh. P. 3) produced by the appellant relates to the payment of land revenue to the lambardar. It is in the amount of Rs. 106-8-9. I t bears the date 16-2-1947 and is signed by the lambardar of the village. The learned District Judge had rejected this receipt on the ground that it had not been properly proved. I think his finding here again is based on misreading of the record.
This receipt was produced during the course of tha trial by Bashir Ahmad (P. W. I). He stated that the lambardar who bad received the amount and executed the receipt was familiar with the signatures of the lambardar. Both these assertions were not disputed by the respondent. He also did not take the position that no land revenue on account of preceding Kharif to which the receipt related was owing from him. It is true that Bashir Abroad (P. W. 1) is connected with the appellant but in view of the circumstances just detailed there is no reason that the genuineness of the receipt (Exh. P. 3) should be disputed. The appellant, therefore, ought to have been allowed to adjust this sum against the unpaid amount of consideration.
10. The receipts (Exhs. P. 1 and P. 2) have been issued by the Government treasury and cover a sum of Rs. 67.15. These bear the dates 23-3-1947 and 21-0-1947. They have been made out in the name of the respondent and relate to the arrears of the price of rice seed supplied to him. The learned District Judge rejected these receipts on the ground that it was not possible to say that the amounts shown in them were payable to the Government prior to the execution of the agreement deed (Exh. P. 7) It is to be noticed that Bashir Ahmad (P. W. 1) who produced these receipts stated that the amounts of the receipts were paid him on account of the respondent and when the respondent appeared in Court he did not take up a contrary position. I should, therefore, think that in the absence .Of any express denial on the part of the respondent the learned District Judge was not justified in taking the view that he did. The genuineness of these receipts is not in doubt and I am of the opinion that the appellant was entitled to deduct the amounts mentioned therein from remaining amount of the consideration.
11. Another receipt (Exh. P. 5) produced by the appellant bears the date 8-7-1947. It relates to the land revenue due in Kharif, 1946 and is in the sum Rs. 12-8-0. It is signed by the Chowkidar of the village. The chowkidar who executed this receipt has not been produced. The appellant also led no evidence to prove that the Chowkidar was either untraceable or dead. It is on a plain piece of paper and could be fabricated at ,any time. The learned District Judge was, therefore, justified in excluding it from consideration.
12. The fifth receipt (Exh. P. 9) produced by the appellant is in the sum of Rs. 400 and bears the date 22-2-1951. However, as the very text of the receipt shows it did not relate to the agreement in question. The learned District Judge, therefore, rightly did not take it into account.
13. It will thus be seen that out of the total consideration of Rs. 2,000 only a sum of Rs. 25-7-9 remains unaccounted for. I should therefore, think that the appellant had substantially paid off the amount due from him under the agreement of 15-12-1946.
14. In his statement during the trial the respondent alleged that in 1947, after Partition, the appellant approached him and said that he was not in a position to bring the land covered by the grant under plough and that the agreement should be determined. He agreed to this and as a result the agreement came to an end. After that he arranged for the cultivation of the land himself. It is to be noticed that when the appellant appeared in the witness-box the respondent did not examine him on this part of the case. He also did not lead any direct evidence to substantiate it. On the face of it his story appears unlikely for the reason that the appellant had already paid a substantial part of the consideration to him under the agreement. It may be mentioned that soon after the execution of the agreement deed (Exh. P. 7) the respondent had executed a power of attorney in favour of the appellant in order to enable the latter to effectively manage the land included in the grant. This power of attorney has not so far been cancelled by him. It also does not appear from the evidence that he ever called upon the appellant to surrender this document.
15. The respondent alleged that after the agreement came to an end he appointed Akbar Ali (P. W.
2) as his attorney for the purpose of cultivating the land in dispute, and, later, when Akbar Ali (P. W.
2) started cheating him on batai he cancelled the said power of attorney. On the other hand the case of the appellant was that since the agreement was in violation of the relevant Colony Law which prohibited the transfer of tenancy rights without permission of the Collector, the respondent had at his instance executed a powers of attorney in favour of himself and Akbar Ali and that Akbar Ali was in possession of the land in dispute on his behalf and not on behalf of the respondent. When Akbar Ali (P. W. 2) appeared in the witness-box he deposed that he had always paid the batal to Fateh Muhammad (C. W. 1) and Bashir Ahmad (P. W. 1) and that he had never given any share to the respondent. Fateh Muhammad (C. W. 1) and Bashir Ahmad (P. W. 1) were admittedly the attorneys of the appellant. It also appears that before the colony authorities Akbar Ali (P. W. 2) had claimed the proprietary rights for himself. But considering that he was not examined by the parties with regard to the foundation of his claim I had not taken notice of the proceedings that ensued therefrom.
16. The circumstances to which I have just referred were entirely ignored by the learned District Judge. On the other hand he was more intrigued by the power of attorney which the respondent had executed in favour of Akbar Ali (P. W. 2) to which Fateh Muhammad (C. W. 1) the attorney of the appellant, was an attesting witness. I think there was no mystery about it. The parties knew that the agreement with regard to the transfer of the tenancy rights without the permission of the colony authorities was not enforceable and for that reason no effect could be given to it in the revenue papers. It was to get over this difficulty that they provided in the deed (Exh. P. 7) that the respondent would exec4te all documents necessary -to enable the appellant to manage the land.
This being so, the execution of a power of attorney by the respondent in favour of Akbari Ali (P. W.
2), who was actually tilling the land, in the presence of Fateh Muhammad (C. W. 1) was not a circumstance which supported the case of the respondent that the agreement had been brought to an end.
17. For the reasons stated above I am unable to hold that the agreement of 15-12-1946 was voluntarily determined by the parties or that the respondent had thereafter, himself made arrangements for the development of the land in dispute.
18. There is, however, a more basic question which arises in this appeal. Although it was not raised in the Courts below I have permitted it to be taken up for the first time in this Court for it goes to the very root of the case. q Admittedly, the land was granted to the respondent under the provisions of the Colonization of Government Lands Act, 1912. Now, section 19 of the Act reads as follows : "Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall without the consent in writing of the Commissioner or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract other than a sub- lease for not more than one year in the case of tenant who has not acquired a right of occupancy, and seven years in the case a tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has obtained possession, he shall be rejected under the orders of the Collector: Provided that the right of subletting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated."
It is not disputed that the parties did not obtain the consent in writing of Commissioner, Collector or for that matter any officer to the agreement! Of 15-12-1946. Prima facie, therefore, the said agreement fell within the mischief of section 19 and was on that account void.
19. The learned counsel for the appellant has contended that the agreement was divisible in two parts. The first part related to the transfer . Of the tenancy rights and the second part referred to the transfer of the proprietary rights after they bad been acquired by the respondent. He conceded that the first part which dealt with the transfer of the tenancy rights was hit by the provision of section 19 and was for that reason void, but, he argued, that the second part which required the respondent to transfer the proprietary rights after acquisition to the appellant was perfectly legal as it did not offend against any provision of the law. He also submitted that both these parts were severable from each other and constituted independent obligations of the respondent. Thus, even though the first part was void, the second part of the agreement could be enforced. In the course of his address he referred to Ghulam Muhammad v. Lakha Singh (AIR 1935 Lah. 181), wherein it was held that section 19 had no application to agreements to sell which were to take effect only after the acquisition of the proprietary rights. .
20. The law with regard to the enforceability of agreements which are partly void is well established although its application not infrequently presents some difficulty. Section 23 of the Contract Act lays down that every agreement of which the object or consideration is unlawful is void. However, an agreement may contain several covenants all of which may not be unlawful. In respect of such agreements, as observed by Willes, J., in Pickering v. Llfracombe Railway Company (1868 L R 3 C P 235), the general rule is that, when you cannot sever the illegal from the legal part of a covenant, the contract is altogether void, but when you can sever them, whether the illegality be created by statute or common law, you may reject the bad part and retain the good'. Sections 57 and 58 of the Contract Act furnish instances of the application of this general rule. It may, however, be mentioned that there are some limitations on the application of this rule and the most important of these is that in severing the bad part from the good the Court should not alter the basic nature of the agreement. For example where in reality there is only one covenant the Court will not rewrite it to make it into two covenants. Thus. In Attwood v. Lamant ((1920)3 KB 571), Younger L. J. Observed "The doctrine of severance has not, I think, gone farther than to make it permissible in case when the covenant is not really a single covenant but is in effect a combination of several distinct covenants. 1n that case and when the severance can be carried out without the addition or alteration of a word, it is permissible. But in that case only."
21. On reading, the deed (Exh. P. 7) as a whole I do not think that the agreement can be split up in the manner suggested by the learned counsel for the appellant, for, in my view there was only one agreement between the patties whereunder the respondent transferred in praesenti to the appellant by way of sale all rights which the respondent had obtained or was likely to obtain under the grant. A perusal of the deed shows that the main covenant between the parties is incorporated in clause 3 which reads as follows This clause may be read with clause 5 which is in the following terms : It will thus appear that under the agreement the intention of the respondent was to divest himself forthwith of all interests in the land in dispute. The clause upon which the appellant based his case for the specific performance is expressed as follows : It will be noticed that this clause does not contain any independent or distinct covenant but that it is merely incidental to the main agreement as recorded in clause 3. As already mentioned the agreement in question was in contravention of the provisions of section 19 of the Colonization of Government Lands Act. Consequently, it could not be recognized by. The colony authorities on whose records, despite the transfer of his rights to favour of the appellant, the respondent continued to be the grantee of the land in dispute. In the circumstances on the fulfillment of the conditions of the grant the respondent was the only person entitled to obtain proprietary rights. If this position is kept in view, then clause 8 would appear to be merely subsidiary to clause 3 and not an independent covenant. It is to be observed that the construction which I have placed on the deed finds support from the fact that for the whole agreement the appellant paid only a single sum, that is Rs. 2,000. From the deed it is not possible to apportion the said consideration between the two so-called separate covenants. I am, therefore, unable to agree with the learned counsel for the appellant that the stipulation with regard to the transfer of proprietary rights after acquisition can be separately enforced. On the contrary I am of the opinion that the whole agreement is bad being in violation of the provisions of section 19, ibid.
22. As a last resort the learned counsel for the appellant relied o section 43 of the Transfer of Property Act which incorporates the doctrine known as the feeding of estoppel. I am afraid this doctrine cannot be invoked to legalize agreements which the law expressly declares to b void.
23. For the reasons stated above I find no merit in this appeal and dismiss it with costs. s. Q.