1. ' MRS. QAISER IQBAL, J.---Plaintiff has resorted to file suit for specific performance and permanent injunction in respect of plot No,9-F, bifurcated as (9-F/1, and 9-F/2), each admeasuring 1000 sq.
2. Yards, situated in Gizri Street, Phase-IV, Defence Housing Society, Karachi (hereafter referred to as disputed plots for the sake of brevity) allotted to defendant No,1 on 5-2-1996, gifted and transferred in the name of defendant Nos. 2 and 3, wife and daughter respectively on 30-11-1972. It is averred that defendant No,4 is a family friend and relative of defendant Nos. 1 to 3; was engaged in sale of plots as defendant Nos.1 and 2 were stationed at Islamabad. On account of the negotiations between the plaintiff and defendant No,4 disputed plots were agreed to be sold in - consideration of Rs.78,00,000 each, token money of Rs.2,00,000 for each plot was paid through cheques to defendant No,4, who immediately handed over both cheques to defendant No,5 son, and brother of vendors deposited in Habib Bank PAF Base Masroor Branch in account No,6279-0 on 26-12-2003.
3. It was agreed between the plaintiff and defendant No,5 with coordination of defendants Nos.1 to 3 sale-deed would be executed within two months from the date for the payment of earnest money, plaintiff requested defendants Nos. 2 and 3 for execution of the sale-deed and for payment of balance sale consideration amount, which was avoided to for obvious reason. The plaintiff approached to defendant No,4, defendants Nos. 2 and 3 were served with legal notice. The defendants in reply to the legal notice denied that defendants Nos. 1 and 4 had no legal right for entering into transaction for the sale of disputed property. It is pleaded by the plaintiff that defendant No,4 on the authorization of defendants Nos. 1 to 3 had taken over earnest money of Rs.2,00,000 for each plot which was paid to defendant No,1 with clear understanding that the transaction was in the knowledge of defendants Nos. 2 and 3. It is averred that defendant No,5 on instructions of defendants Nos. 2 and 3 had received cheques of the earnest money from defendant No,4 deposited in his account and assured that the sale deeds would be executed by the defendants Nos.2 and 3 upon payment of balance sale consideration amount within one week.
4. The defendant No,4 did not fulfil his commitment with the plaintiffserved a notice. The defendants became dishonest therefore plaintiff had resorted to file the suit.
5. ' Defendants Nos. 2 and 3 in the written statement raised preliminary objections to the maintainability of the suit denied the fact that defendants No,4 was dealing in the sale and purchase of the property of defendant Nos. 1 to 3. It is denied that defendant No,1 had any concern with the disputed plots. The defendant No,4 in collusion and conspiracy with the plaintiff had set- up a false and fictitious story; dragged all family members into malicious litigation. The answering defendants did not convey any power to defendant No,4, expressly or impliedly, to negotiate the sale with the plaintiff. Defendants Nos. 2 and 3 did not receive any amount nor authorized the defendant No,5 to deposit any amount in his account towards earnest money his act is not binding upon them. From the exchange of correspondence between the parties the defendant No,4 has set-up a false story that the defendant No,1 had authorized him to finalize the deed. Defendant No,3 had acquired Mater's degree in international relations and is an Ex-Civil Servant and is in a position to take independent decision including personal property. It is pleaded that defendant No,2 holds Master degree in Economics from Karachi University and had also studied from Oxford University U.K., capable of taking all decisions independently did not extend consent or assured defendant No,4 or the plaintiff in the alleged deal. Defendant No,1 had expired during the pendency of the suit, his legal heirs were brought on record. Defendants Nos. 1, 5 and 6 did not file written statement and were debarred from filing the same as per order of Additional Registrar (O.S.), dated 2-11-2004.
6. ' Defendant No4 in his written statement pleaded that on account of authority vested in defendant No,1, permanently stationed at Islamabad, requested the answering defendant in the month of October, 2003 to fetch reasonable price of the disputed plots, upon which he called upon the defendant No,1 to send original documents, which were received from Rawalpindi. Plaintiff was interested in purchase of the disputed plots. Original documents were shown to him on demand, photocopies were supplied for verification upon assessment of the market value, the defendant No,5 was contacted and advised to make his own assessment and discuss with defendant No,4 that agreed price be disclosed to defendant No,1 for decision after 2 to 3 weeks. Upon the concurrence of defendant No,1 demand was quoted to the plaintiff deal was negotiated at Rs.78,00,000 for each plot. Defendant No,1 was contacted on phone to convey his acceptance. The deal was finally negotiated communicated on telephone by defendant No,1 entire family conveyed satisfaction. The plaintiff delivered two cheques towards advance in a sum of Rs.2,00,000 each for onward delivery to defendants Nos. 2 and 3 drawn on UBL, defendant No,2 on telephoneinstructed that money should be kept at Karachi for purchase of plots in Phase-VIII of D.H.A. For her children.
7. She advised that the cheques be delivered to defendant No,5, who was then posted at Mauripur Air Base at Karachi. Cheques were delivered to defendant No,5 and the proceeds of cheques were enchased after few days. For the purpose of execution of agreement the plaintiff was called upon to furnish a draft of sale agreement. The plaintiff requested for NICs of the sellers:During this span, defendant No,4 obtained NIC's directly from defendant No,2. Defendant No,3 directly sent copy of NIC through defendant No,5. The plaintiff had produced draft sale agreement through post to defendants Nos. 2 to 3 directly not honoured. The plaintiff has sent legal notice on his own initiative to defendants Nos. 2 and 3 and also to the answering defendant. The original documents were returned to defendant No,
1. Answering defendant received a letter, dated 10-2-2004 acknowledging receipt of original documents presumed that deal was finally called of.
8. ' Upon the pleadings of the parties following issues were framed:--
(1) Whether the suit is not maintainable in law?
(2) Whether there is a valid and subsisting contract of sale between the plaintiff and Defendants Nos. 2 and 3 relating to the property in dispute? If so, its effect?
(3) Whether the Defendant No,4 was authorized by the Defendants Nos. 2 and 3 to sell the suit property? If so, its effect?
(4) Whether the Defendant No,5 was privy to the contract between the plaintiff and Defendants Nos. 2 and 3 pursuant thereto cheques were deposited in his account? If so, its effect?
(5) What should the judgment and Decree be?
9. ' Adverting to the issues raised Mr. Samiuddin Sami learned counsel for plaintiff has contended that Jamiluddin Frooqui had gifted disputed plots to his wife and daughter transferred in the name of donees on 30-11-1972. They conferred authority as ostensible owner deceased defendant No,1 offered the sale, after negotiations transaction was finalized, plaintiff had delivered cheques of Rs.200,000 each to the defendant No,4, a family friend of defendants Nos. 1 to 3 and 5, on instructions of the owners the cheques, were passed on to for encashment in the account of defendant No,5 the son of the defendant No,2 and brother of defendant No,3 which were credited in his account. Instead of execution of sale agreement on account of the escalation and high rise in the properties at Karachi they changed their mind, returned back cheques of earnest money from the account of defendant No,5 through defendant No,4, latter deposited in Court. Plaintiff had also deposited allegedbalance sale consideration of Rs.76,00,000 in respect of each plot as a consequence of injunctive order, dated 31-5-2005 which was assailed in High Court Appeal No,161 of 2005, not pressed before a Division Bench still holds field. It is urged that on approval of the sale earnest money through cheques were received on the instruction of the defendants Nos. 1, 2 and 3 on telephone cheques were passed on to defendant No,5 stationed at Karachi deceased defendant No,1 being ostensible owner of the disputed properties for consideration and upon holding authority on behalf of his wife and daughter has kept the plaintiff in good faith handed over original title documents to defendant No,4 to procure a buyer as spelled out from the letter exhibit D/4/3 addressed by defendant No,1 to his family friend and relative defendant No,4.
10. Relevant paras reads as follows:-- "With the return of the original documents received by me today vide your letter, dated 9th February, 2004, it indicates that the deal has finally been called off. I had initially returned the cheques for Rs.2, lakhs each (total sum of 4 lakhs) to you for returning them to the party you were negotiating with. Since the payment was made through you I considered it appropriate that it should be returned in the same manner. I insist that the same procedure should be followed for its return also.
11. ' Looking forward to meeting you and Tahira on our next visit to Karachi. Inshallah! Since I take all the decisions I would appreciate that Faiza is not burdened with any matters relating the terminated deal. I hope Tahira is enjoying good health, I believed her knee operation has been' successful by the Grace of God."
12. ' It is urged that deceased defendant No,1 was authorized to take all decisions in the matter he had negotiated the transaction and original documents were shown to the plaintiff consequently, cheques of the earnest money were delivered to the defendant No,4 negotiated and credited in the account of the defendant No,5. It is urged that there is sufficient evidence available on record to suggest that deceased defendant No,1 being the husband and father of defendant No,2 and 3 had negotiated and finalized the deal as ostensible owner having binding authority entered into deal through defendant No,4 with the plaintiff and on account of reasonable care had proceeded to enter into a deal through the defendant. No,4, negotiated in good faith deceased defendant No,1 had ostensible authority on behalf of the owners entered into the deal, of the disputed properties in favor of the plaintiff.
13. ' Much of the emphasis has been laid on the testimony of DW Asghar Ali due to the relationship with the defendant No,1 had supportedthe plaintiff's version as deceased defendant No,1 had apprehended cancellation of the plot of Defence Housing Authority. On the request of deceased defendant No, 1 being elder in the family associated his son defendant No,5 on the request of the defendant No,4, original documents of the properties were received from Rawalpindi along with photocopies of NICs of defendants Nos. 2 and 3 and upon confirmation of the market value of the disputed plot by defendant No,5 defendant No,2 took decision on behalf of his wife and daughter and after three weeks of negotiations deal was finalized. Defendant No,4 spoke to the defendant No,3 inquired whether she knew about the sale of the plot in her name she affirmed to have contacted to her mother and delivered NIC number on phone and copy through her brother to the defendant No,4. It is urged that defendant No,2 knew the entire transaction with defendants Nos. 2 and 3 knew about delivery of the cheques by the plaintiff towards the earnest money to the defendant No,4. Deceased defendant No,1 acknowledged receipt of the original documents assumed that deal was finally called off, plaintiff addressed a letter to defendant No,4 which was replied.
14. ' In view of the evidence available on record learned counsel for plaintiff has contended that no particular format is laid down for entering into sale transaction.
15. ' Mr. Arshad Tayyab Ali learned counsel for defendants Nos.2 and 3 has contended that suit for specific performance does not lie in the absence of written agreement on behalf of the defendants Nos.2 and 3, they did not agree to contract the sale of the disputed plots with the plaintiff even if deceased defendant No,1 agreed to sell the disputed plots to the plaintiff, he had no express or implied authority to act as ostensible owner through defendant No,4 before entering into negotiations, defendant No,4 never represented himself as attorney of the owners of the disputed plots. Cheques towards the earnest money was delivered to defendant No,4 in the payees account credited in the account of defendant No,5. It is urged that defendants Nos. 2 and 3 neither assured the plaintiff nor delivered any express authority to defendant No,4 to negotiate the sale of the disputed plot. The plaintiff never contacted defendants Nos. 2 and 3, never met the defendants Nos.l and 3. The cheques of earnest money were not deposited in the account of defendants Nos. 2 and 3. The correspondence exchanged through notices exhibits P/6, P/7, P/8 and legal notice on the side of the contesting defendant exhibit P/9 suggest no nexus between the plaintiff and defendants Nos. 2 and 3. It, is emphatically denied that defendant No,4 told the plaintiff that disputed properties were ostensibly owned by defendant No,1 who was authorized to sale on behalf of the owners.
16. ' Mr. Umar Soomro learned counsel appearing for defendantsNos.1 and 5 has contended that defendant No,5 has no nexus, with the sale transaction the plaintiff ought to have taken reasonable care to ascertain the ownership in terms of section 41 of the Transfer of Property Act as laid down in PLD 1971 Lahore 173 and PLD 1997 Quetta 60. On account of delivery of the cheques to the defendant No, 5 by defendant No,4 in absence of any express authority in presence of the fact that without writing the name of the payee cheques were credited to the account of defendant No,5. In the absence of consent of defendants Nos. 2 and 3 claim of the plaintiff is not sustainable in law. On the insistence of defendant No,4 cheques bearing signatures of the drawer, blank, not addressed to anyone were delivered and deposited in his account in the year, 2003.
17. ' Mr. Anwar Aziz learned counsel for defendant No,4 has contended that there was no collusion between defendants Nos. 4 and 5. Defendant No,1 vide his letter exhibit D/4/3 had admitted the factum of return of the original documents to defendant No,4 with the endorsement that the deal stands called off.
18. ' I have considered the arguments advanced at bar, section 41 of the Transfer of Property Act upon which much of the emphasis has been laid by the learned counsel for plaintiff and defendant No,4 reads as follows:-- "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 transfer shall not be voidable on the ground that the transferor was not authorized 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."
19. ' Deceased defendant No,1 had allegedly addressed a letter exhibit D/4/3 produced by defendant No,4 in respect of plots owned by defendants Nos. 2 and 3 manifestly suggests that the plaintiff was required to take reasonable care to ascertain that deceased defendant No,1 had power to transfer and had acted in good faith. As rightly pointed out Mr. Arshad Tayyab Ali that, in the scenario, depicted by the plaintiff defendant No,4 should be termed as ostensible owner. Plaintiff was required to take reasonable care for ascertaining the title of the defendants Nos. 2 and 3 and when no express or implied consent was advanced by both of them in favor of defendants No,1 and
4. It is an old maxim that "buyer beware." In the absence of express or implied consent on behalf of the principle, enshrined, under sections 187 and 226 of the Contract Act deceased defendant No,1 had no authority to act on behalf of principal. It is admitted by the plaintiff in cross-examination that defendant No,1 did not have any written authority nor had contacted to defendants Nos.2 and 3 to obtain consent of the real owners. In this context reliance is placed on 1994 MLD 1059 and 1996 MLD 1123.
20. ' In any view of the matter there appears to be express collusion between plaintiff and defendant No, 4 as they had supported version relating to transaction on account of the death of defendant No,1 during the pendency of the suit veracity of the letter allegedly written by him exhibit D/4/3 which is a typed letter could not be proved solitary evidence, in presence of collusion between plaintiff and defendant No,4 against defendants Nos.2 and 3 could not be termed as admissible. In this context reliance is placed on PLD 2005 Kar. 280, PLD 2003 Quetta 142. It is proved from the evidence led, by the plaintiff and defendant No,4 express collusion on account of high escalation of the properties in the city of Karachi had proceeded to support the case of the plaintiff with mala fides and ulterior motives. It is well settled law that relief of specific performance is a discretionary relief, in the presence of evidence which connotes no relationship between the plaintiff and defendants Nos. 2 and 3, in the absence of the proof of exhibit D/4/3 the basis of the plaintiff's claim the discretion cannot be exercised in favor of the plaintiff.
21. ' The contents of parties manifestly suggest no nexus, amongst, alleged buyer and sellers defendants Nos. 2 and 3 are highly qualified, women are capable of adjudging all affairs, in life including property.
22. ' It is established from record that the defendant No,1 had no lawful authority to sale disputed plot from the owners without their express consent, the deal could not be finalized, there is no evidence on record on the basis whereof it could be said that defendants Nos. 2 and 3 were not available at that time, there is no material evidence to the effect that the defendant No,1 was authorized to sale the disputed plots nor any evidence to the effect that at the time of entering into the deal independent advice was' available to the plaintiff from the defendants Nos. 2 and 3. There has been no delegation of valid authority to alienate the disputed plots in favor of the defendant No,1 admittedly owned and possessed by defendants No,2 and 3.
23. ' It is now a well established legal proposition that if a person transacts with the lady or his beneficiary of such transaction it is he who is required to prove by positive evidence that at the time of entering into c transaction in question independent advice was available to the lady and that she had entered into the transaction with her free consent and full knowledge. Reliance is placed in case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar PLD 1990 SC 1, Barai v. Abdul Hameed referred (supra). In the present case in order to succeed plaintiff had to prove free D.
24. Consent and knowledge of 'the defendants Nos. 2 and 3 at the time ofentering into deal and prove that defendant No,1 being ostensible owner had valid authority to sale the properties of the defendants Nos. 2 and 3, the factum about valid authorization to alienate the property in favor of defendant No,1 by defendants Nos. 2 and 3 is not established as the principal was available at the time of alleged entering into deal by the plaintiff. It is not established from the evidence that the transaction cannot be held valid as it was entered without consent of the principal. Much of the emphasis has been laid on the letter allegedly written by the defendant No,1 which is a typed one, in the absence of its proof it could be conveniently held that at the time of sale by defendant No,1, defendants Nos. 2 and 3 were not contacted either by the plaintiff or defendant No,4 it can be said that the sale in question is not valid in law.
25. ' For what has been discussed above, I am of the view that the plaintiff's suit is not sustainable in law, hereby stands dismissed with no orders as to costs. Consequently, Nazir is directed to return a sum of Rs.78,00,000 in respect of each plot and Rs.400,000 deposited by the defendant No,5 in Court with accrued mark-up to the plaintiff. Orders, accordingly.