' ABDUL HAYEE KURESHI, J.--The present first appeal has been filed by Ilyas Hussain, the defendant in a Suit (No, 16/1970) filed in the Court of the Civil Judge. First Class, Hyderabad by Haji Shahabuddin and his two sons, Ghulam Mohiuddin and Nisar Ahmed seeking specific performance of a contract relating to sale of immovable property by appellant Ilyas Hussain in favour of the respondents Shahabuddin and the two others. The suit was decreed by the trial Court in favour of the 3 respondents who, for the sake of brevity, are referred to in this judgment as "purchasers". The appellant Syed Ilyas Hussain would be referred to in this judgment as the ''seller".
2. The brief facts of the case are that the seller agreed to sell the suit property consisting of a plot with' buildings bearing No, C. S. A.-96/1724 measuring 2.331 sft. At Hirabad, Hyderabad, for a sum of Rs, 82,000. A document was drawn up which stipulated the terms and conditions of the sale and is signed by the seller and two witnesses. The pertinent clause of the document recites the boundaries of the plot agreed to be sold and the document further states that the seller had received a sum of Rs, 8,000 as earnest money and also adjusted a sum of Rs, 5,100 which was the deposit amount obtained by the seller from his tenants and the effect of such adjustment would be the attainment of tenancy in favour of the sitting tenants to the title of the purchasers. The agreement .Provided that the seller shall have the record-of-rights mutated in his own favour before 15th Decem ber, 1968 by which date the property was to be conveyed. The balance of the purchase amount was stipulated to be payable to the seller by the purchasers at the time of registration of the sale deed. The seller was also to obtain income-tax certificate permitting him to sell the property. On 4th December, 1968, the purchasers gave a notice to the seller calling for the true copy of the entry in the record of rights as well as the income-tax certificate so that the drafting of the sale deed and other necessary requirements may be undertaken by purchasers. In the meantime, a sitting tenant by name Hussain Karim had got published in a daily newspaper of Hyderabad, a notice stating that the water pipe and electric fittings installed in the premises in his occupation belonged to him excursively. Presumably he had got them fitted and installed. Nothing more need be said on this aspect of the case as it is not germane to the decision of this appeal A week after notice was given the seller approached the purchasers for an advance of 1,700 rupees out of the balance of purchase price as he had to pay such amount to clear the property tax payable in connection with the property agreed to be sold. Such amount was paid under receipt which was duly executed by the seller. Curiously the seller replied to the notice of the purchasers, dated 4th December, 1968, stating that for the purpose of obtaining income-tax certificate authorising the seller to convey the property to the purchasers he required a certified copy of the agreement of sale as also an affidavit of the purchasers to show from which source they had obtained the sum 'of Rs, 82,000, and accord to the seller, the documents were required by the Income-tax Office.. In this letter, the seller also asked the purchasers to desist from contacting with his tenants because the latter had no right to have such contact. By this letter the seller also asked the purchasers to supply him with a stamp paper on which he would attorn the tenancy in favour of the purchasers. This letter from the seller was replied to by the purchasers in which it was stated that the seller had not been able to obtain income-tax clearance certificate and had thereby been avoiding the transaction. It was further stated that the purchasers had paid all. The income-tax due from them and in case the income-tax authorities required any further information on that score the purchasers may be summoned by Income-tax Office, In regard to attornment of tenancy the purchasers in this letter stated that they would enter into agreement only after the property was conveyed and in the end they called upon the seller to convey the property within the stipulated period. This letter was replied to by the seller on 11th January, 1969, and it was stated that the purchasers had failed to swear the necessary affidavits to enable the seller to obtain certificate from the Income-tax Department. For the first time, the seller came out with a statement that he had got a draft sale deed prepared and sent the same to the purchasers for approval but the purchasers had not agreed to sign the draft sale deed as the said deed contained some safeguards in regard to the tenants of the building. According to the seller, the purchasers had been guilty, of a breach of contract and he reserved his right to sue for damages. A reply was sent by the purchasers to the seller calling upon him to complete the sale in accordance with the agreement. Another letter was also written by the purchasers to the seller informing him that they bad even purchased the stamp paper for preparation or sale deed and since the seller had failed' to honour his commitment the stamp paper was being returned for obtaining refund. This letter which is, dated 24th February, 1969' also threatened legal action in a Court of law. The seller again replied to this letter .On 4th March, 1969, in which he stated the "the document could not 'be executed prior to the date appointed in the agreement on account of breach of certain terms of agreement on the part of the purchasers. Such terms of the agreement were however, not detailed, in the letter. In the earlier correspondence the purchasers had expressed a suspicion that the seller had cheated them to the extent of the amount which he had obtained and to that the purchaser replied that the transaction between the parties was purely of a civil nature, and if, jurisdiction of the criminal Court was invoked it would be construed as harassment of the seller. It was further stated that the title of the seller was perfect although the seller did not say that he was prepared to convey the property. By a letter, dated 20th March, 1969, the purchasers again threatened to take legal action and also stated that they would be entitled to the rent of the property recovered by the seller after 15th December, 1968, the date on which the transaction was to be completed. It seems, that a sum of Rs, 1,700 obtained by the seller from the purchasers on 11th December, 1968, for payment of property tax had not been credited by the seller to the relevant statutory authorities so that the purchasers expressed that a fraud had been played. On them and by a notice, dated 17th June, 1969, the purchasers threatened to take legal action within a week. A suit was filed in the Court of the Ist Class Civil Judgeton 12th January, 1970, seeking specific performance of the agreement and in this suit a power was reserved by the purchasers to claim rents collected by the seller in respect of the perioe after the initial date on which the property was to be conveyed.
3. The defendant/seller filed a written statement in which it was stated that the agreement was not a valid contract of sale though he admitted'having received a sum of Rs, 9,700 as earnest money as part of purchase price. He denied that he had taken Rs, 5,100 towards the adjustment of the deposit of tenants. He stated that the purchasers had failed to perform their part of the contract.
He proceeded to state that income-tax certificate could not be obtained earlier because the purchasers did not furnish a Copy of the agreement to him. It was also averred that the fittings in the property belonged to the seller and no tenant had any right or interest in the same and that reference had been made in the correspondence to the notice of some tenants only for the purpose of creating obligations in the transaction. It was further stated that the purchasers were not willing to pay such portion of the property tax as was payable for the period following 15th December, 1968, viz. The date on, which the property was to be conveyed and that the purchasers were trying to delay the matter as they were short of money and had sought extension of time to complete the sale. In short, the seller set up a case of breach on the part of the purchasers.
Additionally, it was pleased by the seller that the suit was not maintainable in law, was bad for misjoinder of causes of action, that the suit had become infructuous, that the suit had been improperly filed as purchasers Ghulam Mohiyuddin and Nisar Ahmed were not competent to file the suit through purchaser Shahabuddin. It was also averred that the document on which the ,suit was based was .Not a contract' contract 'Within the meaning of law as the same 'was not signed by the purchasers and it was further urged that mutuality lacked in the transaction and therefore, the agreement was void.
4. On the pleadings of the parties the Court settled the issue :
(1) Whether the suit is not maintainable in law ?
(2) Whether the suit is bad for misjoinder of causes of action
(3) Whether the relief claimed has become infructuous in the present fortr of suit ?
(4) Whether the suit is not in a proper form ?
(5) Whether the document on which suit is based is not contract within the meaning of law ?
(6) Whether the defendant is not entitled to damages ?
(7) Whether the plaintiff has paid Rs, 13,100 as earnest money in respect of the contract ?
(8) Whether the defendant has committed any breach of contract ?
(9) Whether the plaintiff is not responsible for breach of contract and earnest money not liable to be forfeited ?
(10) Is time not of the essence of the contract ?
(11) Whether plaintiff has incurred expenses in pursuance of contract, if yes, is he'entitled for refund along with profits ?
(12) What should the decree be ?
5. On 'a perusal of the issues reproduced above and regard being had to the pleadings crf the parties the all-important issue is whether the document executed by the seller in favour of the purchasers on 8th October, 1968, created a contract between the parties within the meaning of law. Mr. Iqbal Kazi, the learned Advocate for the seller has urged before us that there was no valid contract as there was no mutuality underlying the transaction. He has however, stated that Shahabuddin, the father of the two other purchasers was party to the contract. In fact, Mr. Iqbal Kazi has only urged 3 points before us, namely, that the contract was not valid, the power of attorney executed by purchasers Ghulam Mohiuddin and Nisar Ahmed in favour of purchaser Shahabuddin was not valid and that it was the purchasers who were guilty of breach of contract.
6. We propose to examine the first contention of Mr. Iqbal Kazi in regard to the validity of the contract before proceeding to examine his other contentions.
7. Mr. Iqbal Kazi has set up a case that the contract lacked mutuality and for such reason it could not have been enforced. The inference as to lack of mutuality is sought to be drawn from the circumstances that the contract bore the signature of the seller only and it did not bear the signature of any of the purchasers. We have examined the document (Exh. 17/2) and we find that the seller had agreed to convey the property in favour of all the three purchasers.. We must record that Mr. Iqbal Kazi had stated that as fat' as purchaser Shahabuddin was concerned he could enforce the contract despite the absence of his signature on the contract. It would, therefore, be clear that the argument of Mr. Iqbal Kazi is not based on the mere circumstances of absence of signature of the purchasers for if that was so he should have pressed that even Shahabuddin was a stranger to the transaction. As it is, a lot of correspondence had taken place between the parties before the filing of the suit. In the reply of the seller to the letter, dated 4th December, 1968 from the purchasers the address had clearly been shown as follows :--d "Mr. Shahabuddin son of Seth Murid All and his sons, Memon Mohalla, Hyderabad."
' Again in another letter on behalf of the purchasers through his Advocate, Mr. Niamtullah, dated 11th January, 1969, each one of the three purchasers is shown as the addressee. This letter is Exh.
17/8 on the record. Still in another letter. Dated 4th March, 1969, which is Exh. 17/13 on record all the three purchasers are shown as addressees. Such is the position again in another letter, dated 1st July, 1969, written by Mr. Akhund, the Advocate for the seller vide, Exh, 17/18. Not merely that but the seller in his own evidence had stated as follows :- "Plaintiffs Nos. 2 and 3 had to pay me balance of purchase price amounting to Rs, 72,300 at the time of registration of the sale deed. The sale deed was to be executed and registered by 15th December, 1968."
' The seller had also stated in his evidence that the negotiations in regard to the purchase had been carried on by him with purchaser Shahabuddin and the result of such negotiation was reduced into writing which is the contract in this case. Such contract clearly shows the names of Ghulam Mohiuddin and Nisar Ahmed as joint purchasers. No doubt, at the belated stage of recording evidence the seller attempted to set up a case of absence of mutuality in the contract and he has even gone on to say that he had protested in regard to the absence of purchasers Ghulam Mohiuddin and Nisar Ahmed at the time of execution of the deed, but the fact still stands that the deed was executed and the same shows the names of these two purchasers jointly with purchaser Shahabuddin. In pursuance of this deed, the seller accepted earnest money as also a further sum] of Rs, 1,700 on the pretext of payment of property tax and therefore, it does not lie in his mouth to say that the contract lacked mutuality.
8. Mr. Iqabl Kazi has cited some cases at the bar to substantiate his argument in regard to lack of mutuality. The first case is from Privy Council namely, Mir Sarwar. Jan v. Fakhruddin Mohammad (1).
M In that case, the concept of mutuality was examined by the judicial Committee with reference to the fact that the purchaser at the time of contract was a minor and for such reason mutuality was lacking. This case does not help the appellant. Mr. Iqbal Kazi has next relied on the case of Abdul Plaque v. Mohammad Yahya Khan (2). In that base also the learned Judges came to the conclusion that a contract to be specifically enforced by the Court must as a general rule, be mutual, and such mutuality according to the learned Judges is the existence of the ability of either of the parties to enforce the contract against the other. With such proposition there can be no quarrel but the question is whether purchasers Ghulam Mohiuddin and Nisar Ahmed were parties to the contract I spite of-their not having signed the contract. We are clear in or mind that the mere absence of their signature on the contract does not rende the contract void. In the case of Chetoomal Moolchand v. Shankardas Girdharilal (3), a learned Judge of the erstwhile Chief Court of Sind {{FOOT NOTE}}
(1) I L R 39 Cal. 232 (2) AIR 1924 Pat. 81
(3) A 1 It 1929 Sind 83 {{FOOT NOTE}} ' on an examination of section 19 of the Specific Relief Act came to the conclusion that the doctrine of mutuality is not applicable in India. We will lastly state that Mr. Iqbal Kazi relied on a judgment of Mohammad Bux, J., in Amin Agencies Limited v. Haji Moosa Haji Umar (1). The learned Advocate had referred to this case for the purpose of explaining the doctrine of mutuality in contracts apart from the said doctrine being to the limited extent recognized in section .19 of the Contract Act. This judgment was referred to and dissented from in the case of Province of West Pakistan v. Messrs Mistri & Patel Company (2). The facts in this latter case were that the original contract, was not signed by one of the defendants, but the contents of the letter of guarantee sufficiently proved that he knew and had gone through its terms. In that context, the doctrine of mutuality in its application in Indo Pakistan Sub-Continent was considered by Wahiduddin, J., with reference to the case law on the subject. The learned Judge recorded his conclusions in the following words :'-- "The learned counsel then, referred me to a decision of Muhammad Bakhsh, J. In Amin Agencies Ltd. v. Haji Moosa Haji Oomar ,(PLD 1953 Sind 57), to show that the doctrine of mutuality is recognised in or Courts independent of the provisions of , the Contract Act. This decision is not only opposed to the view taken in 5 S L R 61 and AIR 1929 Sind 83 but is also based on the erroneous view that their Lordships of the Privy Council in I L R 39 Cal. 232 had recognised the doctrine of mutuality in Indian cases. That decision related to a case where a contract was entered into on behalf of 'a minor, which are void contracts. It will be observed that their Lordships of Privy Council did not diScuss and extend this doctrine to other cases. As observed in 58 Born. 660 I am not prepared to extend this doctrine outside the provisions of the Contract Act or other relevant enactments. Even under the English law there are limitations upon the doctrine of mutuality and unilateral contracts in certain circumstances are included in it."
' We are, therefore, clearly of the view that the mere fact of defendants Ghulam Mohiuddin and Nisar Ahmed not having signed the contract does not make the contract void.
9. Mr. Iqbal Kazi, the learned Advocate for the appellant has however drawn or attention to the judgment of the trial Court while dealing with the same issue in regard to validity of the contract.
The learned trial Judge on an assumption and relying on the' judgment of Mohammad Siddik v.
Juriu (3) came to the conclusion that a contract does not need to be in a particular form. He also recorded that the contract in this case was not more than a mere admission and created mutuality of rights and obligations. Still, the learned trial Judge in a latter part of the discussion on the same issue recorded as follows "These facts give an idea that the plaintiff No. 1 wanted to purchase suit property not only in his name but in names of plaintiffs Nos.'2 and 3, under colour of benami transaction.. In other words real {{FOOT NOTE}} PLD 1953 Sind 57 (2) P L 1) 1959 Kar. 782
(3) PLD 1959 Kar. 400 {{FOOT NOTE}} ' purchaser was plaintiff No. 1 but he inciuded the names of his sons as vendees for some other reason. I, therefore, hold that in essence there . Was contract between defendant and the plaintiff No,.
1. Plaintiffs Nos. 2 and 3 were dummies and it is immaterial if they did not sign Deed Exh. 17/2 or if they did not execute power of attorney in favour of the plaintiff No. 1. Consequently there is no question of performance of the contract in part."
' We have indeed been surprised as to how the learned Judge could consider the nature of transaction being a benami transaction. None of the parties had set up a case that this transaction was become nor had any issue been cast on that score. Both the seller and purchaser Shahabuddin had categorically stated that the purchasers Ghulam Mohiuddin and Nisar Ahmed were principal parties to the contract. We do not see how the learned Civil Judge came to be called upon to discuss this case from such angle when the pleadings conspicuously omitted mention of any facts and circumsances as might create, an inference of the transaction being benami. What surprises us ~more is that purchasers Ghulam Mohiuddin and Nisar Ahmad have been termed "dummies" when their names appear not only in the correspondence but the seller in his own evidence stated that he had to receive the balance of the purchase price from these two purchasers Additionally, these two purchasers had signed a power of attorney in favour of purchaser Shahabuddin. Be that as it may, we have to decide the appeal on its own merits and on the evidence that is available. We are clearly of the view that the transaction in the contract does not even have a semblance of what is termed a benami transaction.
' The last argument of Mr. Iqbal Kazi on this score was that in case of breach of contract the seller could not have filed a suit against purchasers Ghulam Mohiuddin and Nisar Ahmed. To a pointed question from us Mr. Kazi stated that the seller could sue purchaser Shahabuddin but could not sue the remaining two purchasers. First of all this argument is hypothetical, but even if we are to advert to this argument we have no hesitation in repelling the same. There was abundant evidence on record that the purhasers Ghulam Mohiuddin and Nisar Ahmed were party to the contract and therefore, in the supposed circumstances of a suit at the instance of the seller the two purchasers Ghulam Mohiuddin and Nisar Ahmed could not have avoided the liability for the mere reason that they were not, signatories to the contract.
10. For all the above reasons we are of the view that there was privity of contract between the seller and purchasers Ghulam Mohiuddin and Nisar Ahmed.
11. The next issue Which is material in this case is Issue No, 9 viz. Whether le plainfiffs are responsibe for breach -of contract? Mr. Iqbal Kazi has assailed the finding in negative on that issue on the ground that the plaintiffs had created such circumstances that the contract could not be fulfilled.
In that respect he has urged before us that the copy of the contract was supplied by the purchasers to the seller at a belated stage, that the purchasers had not filed an affidavit to facilitate obtaining of income tax clearance certificate for the purpose of the registration and further that the purchasers had before the completion of sale meddled with the tenants. He has also relied on a sentence appearing in the evidence of the seller to the effect that the purchasers did not have the amount of consideration and had asked for extension of time to complete the contract.
12. We have carefully considered all the evidence in the case and are of the firm view that the factual averments on this issue are incorrect. It is difficult of believe that the seller who is the sole signatory of the contract would not have retained a copy with him. But, even if we believe such an assertion we find that as soon as the seller demanded these documents vide his notice Exh. 17/5, the purchaser supplied the same to him. Indeed, the income-tax certificate was available on 17th December 1968. Such certificate could not have been obtained without producing the copy of the agreement. We are also a little surprised as to why the seller had been asking the purchaser to file an affidavit before the Income-tax Officer in regard to source of the money which was to be utilised for purchase -of this property. Normally it is the seller who has to clear his Accounts with the income-tax Department before obtaining a certificate under section 3 of the Transfer of Property (Pakistan) Ordinance, 1947. However, even to such extent the purchaser had in his letter through Mr. Naimatullah Soomro Advocate, dated 10th January 1969, stated that in spite of the purchasers having paid income-tax regularly they would be prepared to appear before the Income-tax Officer to disclose their source of income provided they are summoned. Purchaser Shahabuddin had also stated that he was assessed to income-tax and his accounts with that Department were clear. The allegation in the evidence of the seller to the effect that the purchasers did not have sufficient money to pay for the property is equally untrue as such an allegation was made only at a belated stage of evidence. In the long drawn correspondence between the parties there was not even an allegation of that nature. With regard to meddling of the purchasers with the tenants we must point out that the contract states that the seller had taken a sum of Rs, 5,100 from his tenants as deposit. The seller had agreed to adjust such deposit amount towards the consideration so that after the sale the purchasers would step into the shoesof the seller and be liable for such deposit of Rs, 5,100 to the tenants. It seems one Karim Hussain, a tenant had got some notice published in a daily newspaper to the effect that the fittings and fixtures in the premises in his occupation belonged to him i,e, Karim Hussain. Possibly, purchaser Shahabuddin may have talked to that tenant on that score but for the purposes of this suit it must be clearly stated that the said Karim Hussain is a total stranger and if Karim Hussain had-any claim it would be the purchasers who could make a grievance, and a protest did not lie in the mouth of the seller.
13. On a consideration of the facts and circumstances, we are of the view that it was the seller who is guilty of breach of contract. He had even obtained, a sum of Rs, 1,700 from the purchasers for payment of property tax. If the purchasers were interested in obtaining breach of the contract they would not have risked a further sum of Rs, 1,700;
14. The next point that has been urged by Mr. Iqbal Kazi is that the suit, as filed, could not have been filed by reason of the bar contained in clause (a) of Order III, rule 2 of the Code of Civil Procedure Code. He has relied on the Sind amendment of the said clause and urged that the principals were residents of Hyderabad District and therefore, they could not file a suit through an attorney. On facts it may be stated that plaintiffs Ghulam Mohiuddin and Nisar Ahmed executed a power of attorney in the name of Plaintiff Shahabuddin and such power of attorney has been placed on record as Exh. 17/1. The authenticity of this power of attorney in so far as it relates to purchaser Ghulam Mohiuddin has also been challenged on the premises that Ghulam Mohiuddin had been out of Pakistan for 6 or 7 years.
15. Initially it must be stated that even if a fault is found with the power of attorney the same at most affects the frame of the suit and such F defect cannot by reason of section 99 of the Code of Civil Procedure result in reversal or modification of a decree. In the present case Shababuddin had stated that purchaser Ghulam Mohiuddin was not in Pakistan since the last 5 or 6 years. Mr. Iqbal Kazi has contended that if he was out of Pakistan he could not have executed the power-of- attorney. In that context a reference may be made to evidence of Shababuddin and it is clear that while Ghulam Mohiuddin has been out of Pakistan for 5 or 6 years there is nothing on the record to indicate that during that period he had not come to Pakistan. Plaintiff Shahabuddin has further stated in his evidence as follows :- "Ghulam Mohiuddin had already read the terms of the agreement. I had enquired from Ghulam Mohiuddin about his consent to terms of the agreement, and (he) replied in writing that he consented to the terms of the agreement."
' The portion of the statement of Shahabuddin reproduced above would clearly show that Ghulam Mohiuddin had visited Pakistan. What is more that Ghulam Mohiuddin had executed a power-of- attorney and the same was attested by the Civil Judge and Additional City Magistrate of Hyderabad. The Magistrate has stated that the executant had been identified by Mr. Abdul Ghani Memon and he had executed the document in his presence. This circumstance would clearly show that Ghulam Mohiuddin executed a power of attorney at Hyderabad on 10th December 1969, presumably because he ordinarily resided out of Pakistan. Coming to the case of Nisar Ahmed there is no evidence on the record nor has it been suggested by the defendant that he permanently resided in Hyderabad and it may well be that he is working elsewhere.
16. For all these reasons we have not been impressed by this contention of Mr. Iqbal Kazi.
17. No other contention was raised by Mr. Iqbal Kazi. We, therefore, dismiss this appeal. The learned Advocates for the respondents have not claimed costs and we will therefore, make no order as to costs.
Appeal Dismissed.