' MUHAMMAD ATHER SAEED, J.---This Civil Petition for Leave to Appeal has been filed by the petitioner against the judgment of the learned Sindh High Court dated 8-4-2013 in IInd Appeal No.52 of 2009 whereby the learned Sindh High Court had dismissed the appeal of the petitioner and maintained the judgment dated 20-8-2009 in Civil Appeal No.27 of 2007 passed by IIIrd Additional District Judge, Karachi Central whereby the appeal of the respondent was allowed and the judgment and decree dated 14-12-2006 and 19-12-2006 in Suit No.289 of 2004 passed by Vlth Senior Civil Judge Karachi Central were set aside and suit of petitioner before the trial court was dismissed.
2. Brief facts of the case are that the petitioner since deceased had filed Suit No.239 of 2004 for declaration, transfer and mutation of property bearing House No.A-884, Block-H, North Nazimabad, Karachi (hereinafter referred to as the suit property). It was asserted in the plaint that the petitioner is a bona fide purchaser and owner of the suit property which is in her physical possession since 1974. It was further alleged that initially the property was purchased by husband of the petitioner through agreement to sell dated 20-5-1975 from its owner Mst. Zohra Bai Madarass Walla for a total sale consideration of Rs.53,000/- and thereafter vide registered conveyance deed dated 1-9- 1993 the petitioner purchased the suit property from Gul Shah Khan sub-attorney of Mst. Zohra Bai Madarass Walla for a total sale consideration of Rs.350,000/-.
' The petitioner approached the concerned authorities for mutation of the suit property but the authorities refused and ultimately the petitioner filed Suit No.239 of 2004 before the trial Court against official respondents Nos.11 and 12/Nazim CDGK and Director Land for declaration, transfer and mutation of the suit property. The official respondents in their written statement stated that as per their record the suit property was purchased by Mst. Zohra Bai from one Ismail S/o Adam through registered sale deed dated 23-5-1968 but she could not get the property mutated in her name and she expired on 14-2-1984 and the suit property as per their record still stood in the name of said Ismail. It was further stated by the official respondents that after the death of Mst. Zohra Bai one Afzal Ali Khan as well as one Mst. Khatija Bai claiming themselves to be the legal heirs of Mst.
Zohra also applied for mutation of the suit property in their favour. Thereafter, the legal heirs of Mst.
Zohra were also joined as party to the suit through their *legal heirs. Legal heirs of Mst. Khatija Bai, who are respondents Nos.13 and 14, failed to appear hence they were debarred from filing written statement while legal heirs of Afzal All Khan, who are respondents Nos.1 to 10, contested the suit and claimed that Mst. Zohra had never executed any document in respect of sale of the suit property and claimed that the petitioners are illegally and unlawfully occupying the suit property and that the documents produced by the petitioners are fake and fabricated. The trial Court after framing issues and recording evidence decreed the suit of the petitioner holding that the petitioner is a genuine and a bona fide purchaser/owner of the suit property through sale deed dated 1-9-1993 based on general power of attorney and sub-power of attorney dated 10-1-1984. Being aggrieved, the respondents Nos.1 to 10 filed Civil Appeal No.27 of 2007 which was allowed by turd Additional District Judge, Karachi Central and consequently the judgment and decree of the trial Court were set aside and the suit of the petitioner before the trial Court was dismissed. Being aggrieved the respondents Nos.1 to 10 filed IInd Appeal No.52 of 2009 before the learned Sindh High Court and the learned High Court through impugned judgment maintained the order of the IIIrd Additional District Judge, hence this Civil Petition for Leave to Appeal.
3. We have heard the learned Advocate Supreme Court for the petitioner Dr. Mrs. Rana Khan and the learned Advocate Supreme Court for respondents Nos.1 to 10 Mr. Adnan Iqbal Choudery.
4. Learned counsel for the petitioner argued that the petitioners are bona fide purchasers of the suit property having purchased the same through agreement to sell dated 20-5-1974 and thereafter through conveyance deed dated 1-9-1993. She argued that the husband of the petitioner Fazal Din had purchased the suit property from Mst. Zohra Bai through agreement to sell dated 20-5-1974 for a total sale consideration of Rs.53,000/- and thereafter Mst. Zohra Bai executed a registered power of attorney dated 10-1-1984 in favour of Khairuddin. She further argued that in this power of attorney reference had been made to the agreement to sell dated 20- 5-1974 thus making it a general power of attorney with interest. She stated that Khairuddin had executed sub-power of attorney dated 18-8-1993 in favour of Gul Shah Khan who subsequently executed conveyance deed dated 1-9-1993 in favour of the petitioner. She argued that in the agreement to sell dated 20-5-1974 as well as conveyance deed dated 1-9-1993 the address of the petitioners is mentioned as the subject property which fact confirms that the petitioners are enjoying physical possession of the suit property since 1974. She argued that since 1974 the petitioners have been in lawful physical possession of the suit property and since then no claim has been filed by the respondents Nos.1 to 10 nor by Mst. Zohra Bai to dispossess the petitioners from the suit property which fact gives strong presumption that the petitioners have been occupying the suit property as lawful owners since 1974. She further argued that the petitioners are in possession of original lease deed in the name of Ismail the previous owner from whom Mst.
Zohra Bai had purchased the suit property through registered sale deed which fact substantiates the claim of the petitioner that they are bona fide purchasers of the suit property. She contended that respondents Nos.1 to 10 have deliberately failed to produce any document containing signatures of Mst. Zohra Bai so that the same could be compared with her signatures appearing on agreement to sell dated 20-5-1974 and registered power of attorney dated 10-1-1984 executed by Mst. Zohra Bai in favour of husband of petitioner and Khairuddin respectively. Rebutting the observations of both the appellate Courts that the agreement had not been proved under Article 79 of the Qanun-e-Shahadat Order, she submitted that the document was more than thirty years old and therefore was covered under Article 100 of the Qanun-e-Shahadat Order and a strong presumption goes in favour of the petitioner. On this point she submitted as under:
(i) That since 30 years till the filing of plaintiff's suit in 2004, any one from legal heir of Zohra Bai including respondents never challenged the possession of petitioner's before any competent court of law and even they did not submit any application regarding the adverse possession of petitioner over the suit property. Hence strong presumption goes in favour of the petitioner under Article 100 of the Qanun-e-Shahadat Order;
(ii) That Mst. Zohra Bai kept mum for ten years and thereafter LRs of Mst. Zohra Bai kept mum for 22 years and never issued any legal notice or notice to the petitioner for her possession over the property of Zohra Bai that in what capacity and what manner she has possession over the property of their grandmother;
(iii) That they do not have any single document in their possession showing the ownership of late Zohra Bai including LRs of Zohra Bai and grandsons or any document which differ signature of Zohra Bai over Sale Agreement or general power of attorney issued in favour of Khairuddin; and
(iv) That all the original documents of the subject property are in the possession of the petitioner and such fact was not denied by them through any objection before any forum."
5. Arguing on the point of maintainability of the appeal as the learned High Court had held that the appeal was filed by a dead person and was therefore not maintainable, she submitted as under:--
(i) That the petitioner had duly informed the respondent that Mst.Hajyani Bai Bibi had died but they failed to amend the title before the first appellate Court and did not make the LRs of the petitioner party to the appeal hence the first appeal was also defective;
(ii) That there is no limitation to implead the legal heirs of the parties in the suit and therefore the learned High Court should have considered and decided the application but the learned High Court failed to do so and decided the appeal without considering and deciding her application which has rendered the impugned judgment illegal and invalid.
' In support of her contentions she has relied on the following case-laws:
(1) Muhammad Hanif and 16 others v. Muhammad Latif Khan and 10 others (2001 M LD 493)
(2) Mst. Hajran Bibi and others v. Suleman and others (2003 SCM R 1555)
(3) Abdul Jabbar and others v. Fazal Elahi Butt and others (2003 SCM R 1558)
(4) Muhammad Naseer v. Mir Azhar Ali Talpur (2001 SCM R 4)
(5) Muhammad Tahir Nadeem v. Syed Qasim Ali Zaidi Zafar and others (2012 M LD 931)
6. On the basis of her above arguments she prayed that the impugned judgment being against the facts of the case and law on the subject may be set aside along with the judgment of the first appellate authority and the judgment of the trial Court be restored.
7. Learned Advocate Supreme Court for the respondents Nos.1 to 10 argued that the agreement to sell dated 20-5-1974 and the power of attorney dated 18-8-1993 are forged and fabricated documents. He argued that even otherwise the alleged conveyance deed dated 1-9-1993 in favour of the petitioner is invalid as it was executed by sub-attorney Gul Shah Khan who had been granted sub-power of attorney by the attorney Khairuddin whose power attorney stood terminated on the death of Mst. Zohra Bai the principal/vendor. In support of his contentions he referred to section 201 of the Contract Act. He argued that since the power of attorney dated 10-1-1984 executed by Mst. Zohra Bai in favour of Khairuddin was without consideration therefore on the death of Mst.Zohra Bai on 14-2-1984 the same stood terminated and therefore the said Khairuddin had no authority to execute sub-power of attorney dated 18-8-1993 in favour of Gul Shah Khan, therefore, the subsequent conveyance deed dated 1-9-1993 executed by Gul Shah Khan in favour of the petitioner shall also be considered to have been issued unlawfully and without any authority.
As regards physical possession of the suit property, he argued that power of attorney dated 10-1- 1984 mentions that possession of the suit property had been handed over by Mst. Zohra Bai to Khairuddin and the power of attorney dated 18-8-1993 mentions that the possession of the suit property had been handed over by Mr. Khairuddin to Gul Shah Khan. He argued that both these documents have been produced by petitioners and even if these documents are believed then also the petitioner has no case. He further argued that assuming without conceding that petitioners were put in possession of the suit property in part performance of alleged agreement to sell dated 20-5-1974 and that they had paid the sale consideration then too the provisions of section, 53-A of the Transfer of Property Act cannot be invoked by them in this case. He argued that suit of the petitioners was under section 42 of the Specific Relief Act for declaration of title on the basis of conveyance deed dated 1-9-1993 and not under section 53-A of the Transfer of Property Act on the basis of agreement to sell dated 20-5-1974. He argued that the petitioners have failed to prove that the alleged agreement to sell dated 20-5-1974 had been fully performed by husband of the petitioner Haji Fazal Din and/or his brother Haji Jamal Din. He argued that once the Court concludes that the conveyance deed dated 1-9-1993 is invalid then the suit of the petitioners cannot be decreed and then alleged agreement to sell dated 20-5-1974 which does not convey the suit property to the petitioner cannot be the basis for decreeing the suit. The learned Advocate Supreme Court argued that the question of presumption of truth does not arise in respect of agreement to sell dated 20-5-1974. On this point he submitted as under:--
(i) It is to prove her possession of the suit property since 1974, that the plaintiff has asked this Honourable Court to presume under Article 100 of the Qanun-e-Shahadat Order, that the agreement to sell dated 20-5-1974 was executed.
(ii) Firstly the word "may" in Article 100 of the Qanun-e-Shahadat Order signifies that the presumption envisaged therein does not follow as a matter of course. It is for the Court to decide whether such presumption should be raised in the circumstances of the case. Secondly, the question of the said presumption would only have arisen had there been no other document to contradict the sale agreement dated 20-5-1974. As submitted under the 3rd submission above, the factum of the tenure of the plaintiff's possession is contradicted by the subsequent power of attorneys.
(iii) That where the genuineness of the agreement to sell dated 20-5-1974 had been disputed from the word go, in the written statement, it was imperative for the plaintiff to lead other evidence to show that the said agreement to sell was in fact executed. Admittedly, the marginal witnesses and the purchaser (Haji Fazaldin and Haji Jamaldin) were never examined. In any case, before the plaintiff could ask the Court to raise the presumption of Article 100 of the Qanun-e-Shahadat Order, she had to state in the very least that the marginal witnesses and the purchasers were dead or were not traceable. There is no such evidence. Both the first appellate Court and the High Court have disbelieved the agreement to sale dated 20-5-1974.
' In support of his contentions he relied on the following case-laws:--
(1) Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCM R 1811)
(2) Rasool Bukhsh and another v. Muhammad Ramzan (2007 SCM R 85)
(3) Abdul Rauf v. The State (2007 SCM R 91)
(4) Muhammad Yousaf v. Munawar Hussain and 5 others (2000 SCM R 204)
(5) Habibur Rehman and another v. Mst. Wandania and others (PLD 1984 SC 424)
(6) Mir Akbar v. Sher Bahadur and others (2006 SCM R 315)
(7) Naib Subedar Taj Muhammad v. Yar Mohammad Khan and 6 others (1992 SCM R 1265)
(8) Jang Bahadar and others v. Toti Khan and another (2007 SCM R 497)
(9) Ch. Muhammad Shafi v. Shamim Khanum (2007 SCM R 838)
(10) Allah Dad and others v. Dhuman Khan and others (2005 SCM R 564)
(11) Mst. Aisha Bibi v. Syed Saghirul Hassan and others (1985 SCM R 1758)
(12) Mst. Nasim Akhtar v. Abdul Rashid Khan and others (2009 SCM R 12)
(13) Abdul Rashid v. M.St. Bashiran and another (1996 SCM R 808)
8. On the basis of his above submissions he prayed that the appeal being meritless may be dismissed.
9. We have examined the case in the light of the arguments of the parties and have minutely perused the records of the case and the judgments relied on by the learned Advocate Supreme Courts.
10. From a perusal of the judgment of the trial Court, the judgment of the appellant Court and the impugned judgment it is seen that these Courts- finally decided the case on the following basis.
TRIAL COURT JUDGMENT "In the circumstances discussed above I am of the view, that the plaintiff is a genuine and bona fide owner being in legal possession through sale deed dated 4-9-1993 based on general power of attorney and sub-power of attorney dated 10-14984. Hence issues Nos.2,
3. And 4 are answered as affirmative, negative and negative respectively.
APPELLATE COURT JUDGMENT "16. From the perusal of the case file it reveals that Mst.Hajyani Bai Bibi at the first instance claimed that the disputed property :was purchased by her husband Fazaldin through agreement of sale from Mst. Zohra Bai on 2-5-1974 and in pursuance of such agreement her husband was put into possession of the disputed property. Mst. Hajyani Bibi, however, failed to prove execution of such agreement of sale as neither she examined the marginal witnesses nor the notary public who allegedly attested the said power of attorney. The perusal of agreement of sale. Further reveals that there was a signature of witness No.1 but the name of parentage of witness No.1 is not mentioned therein except the signature of witness No.1 so far witness No.2, is concerned his name was Haji Ghulam Hussain but his father's name is not mentioned therein.
17. In any _case once it is established that Mst. Zohra Bai expired much prior to the execution of sub-power of attorney in favour of Gul Shah Khan (son of Mst. Hajyani Bai Bibi) and much prior to the conveyance deed registered in favour of Mst.Hajyani Bai Bibi, the said documents lost its legality and effectiveness.
18. For the aforesaid reasons coupled with admitted and recorded facts, the learned trial Court was not justified in passing the impugned judgment and decree in favour of respondent No.3 which on the face of it are opposed to facts, justice, equity and the law. Accordingly, the impugned judgment and decree are set-aside, the appeal is allowed and the suit filed by the respondent No.3 is dismissed. Parties are however left to bear their own costs.
HIGH COURT JUDGMENT "From the perusal of record it appears that Mst. Zohra Bai expired on 14-2-1984 and this fact was in the knowledge of the appellant. Mst. Hajyani Bai Bibi as admitted by her in the plaint, as such, consequent upon the death of Mst. Zohra Bai the power of attorney stood automatically revoked.
Needless to emphasize that on the death of a principal power of attorney executed by him for the purpose of presenting certain documents for registration stands revoked and where the principal had died before the execution of the sale deed subsequent registration of sale deed through attorney becomes invalid. Under Section 42 of the Power of Attorney Act, 1882, a power of attorney ceases to be in force on the death of executant. Since Mst. Zohra Bai died much prior to the execution of sub-power of attorney dated 18-8-1993 by Khairuddin in favour of Gul Shah Khan the same had no legal sanctity in the eyes of law. Likewise, on the basis of such invalid and incompetent sub-power of attorney the conveyance deed dated 1-9-1993 executed in favour of Mst. Hajyani Bai Bibi was also invalid and incompetent. In such an eventuality all subsequent transactions made on the basis of such dead power of attorney would certainly be termed as illegal, ineffective and of no legal consequence.
' Furthermore, the record reveals that Mst. Hajyani Bai Bibi claimed that on 2-5-1974 her husband Fazaldin had purchased the disputed property from Mst. Zohra Bai through agreement of sale and in pursuance of such agreement her husband was put into possession, however, she could not prove the execution of such agreement of sale as neither she examined the witnesses of the agreement nor the notary public who allegedly attested the said agreement. Even the name and parentage of witness No. 1 does not find mention and only his signature is visible whereas though name of witness No.2 Haji Ghulam Hussain is mentioned but his father's name is not mentioned."
' From the above extracts it is seen that while the trial Court decided the suit in favour of the present petitioners on the basis that the petitioner was genuine and bona fide owner being in legal possession having purchased the same through sale deed dated 4-9-1993 based on general power of attorney dated and sub-power of attorney dated 10-1-1984. The appellate Court decided the case in favour of the present respondent on the basis that the petitioner failed to prove the agreement to sell dated 20-5-1074 as she neither examined the marginal witnesses nor the notary public who allegedly attested the said power of attorney. The appellate Court also pointed out certain discrepancies in the agreement to sell so far as details of witnesses are concerned. The Appellate Court also held that once it was established that the vendor Zohra Bai expired on 14-2- 1984 i.e. Much prior to the execution of sub-power of attorney by Khairuddin in favour of Gul Shah Khan and much prior to the convenience deed dated 1-9-1993 the said documents lost its legality and effectiveness whereas the High Court not only agreed with the conclusion reached by the appellate Court but also held that since from the title of the appeal it appears that the appeal had been filed by late Hajyani Bai Bibi and therefore the appeal on the face of it seems to be not maintainable.
11. From a perusal of the agreement to sell dated 20-5-1975, general power of attorney dated 10-1- 1984 executed by late Zohra Bai, sub-power of attorney dated 18-8-1993 and the conveyance deed dated 1-9-1993 we have observed the following discrepancies:-
12. In the agreement to sell dated 20-5-1974 although it has been mentioned in para 8 that possession of the suit property has been handed over to the vendees Haji Jamaldin and Haji Fazaldin-husband of the present petitioner but in clauses 2 and 3 it has been mentioned that Rs.10,000/-out of total sale consideration of Rs.53000/- had already been paid whereas a postdated cheque of Rs.23,000/- dated 1-6-1974 had already been issued to the vendor and the remaining balance sale consideration of Rs.20,000/- was to be paid by the vendee to the vendor in presence of the Sub-Registrar on execution of the conveyance deed in respect of the subject property. Apparently no evidence has been produced before the Courts below whether the postdated cheque of Rs.23,000/- was encashed or not and when and where the remaining sale consideration of Rs.20,000/- was paid to the vendor which was necessary to prove that the vendees were acting according to the contract. However, a perusal of the general power of attorney dated 10-1-1984 shows that in paragraph 2 of this power of attorney it has been stated that the has delivered the vacant and exclusive possession of -the subject property to her attorney along with all the relevant documents in original Learned Advocate Supreme Court for the petitioner has argued that in this power of attorney it has been mentioned that the principal had disclosed that she had already executed an agreement to sell in favour of Haji Jamaldin S/o Ghulam Rasool and Haji Fazaldin S/o Ghulam Rasool who are real brothers and contended that the mention of the agreement means that the payment of the dues in respect of the agreement to sell dated 20-5-1974 had been duly paid. We find ourselves unable to agree with this contention of the learned Advocate Supreme Court for the petitioner because it is not specifically mentioned in the general power of attorney that the attorney Khairuddin had made any payment to late Zohra Bai and from the power of attorney if is not established that Khairuddin the attorney was appointed on the basis of recommendation of the Vendee of the agreement to sell dated 20-5-1974 and therefore just by the mention of the sale agreement already executed in favour of the husband of the petitioner and his brother in the General Power of Attorney does not convert this general power of attorney into a power of attorney where the agent has an interest in the subject matter as specified in section 202 of the Contract Act, 1872 and therefore in accordance with section 201 of the Contract Act the power of attorney will stand terminated on the death of the principal and therefore the sub-power of attorney issued by attorney B Khairuddin is also invalid and of no legal effect as his power had already stood terminated on the death of the principal. Learned Advocate Supreme Court for the petitioner claimed that the petitioner has been in possession of the subject property since 1974 from the date of agreement of sale but from a perusal of the sub-power of attorney dated 10-1-1984 it is seen that vendor had delivered the vacant physical and exclusive possession along with documents in original to her attorney on the date c of power of attorney which means that till 1984 the house was in possession of Zohara Bai and from 1984 to 1993 in the possession of attorney Khairuddin who had delivered the possession along with relevant documents to sub-attorney Gul Shah Khan S/o the petitioner as per clause 2 of sub-power of attorney. Therefore her claim to be in possession of the property since 1974 stands disproved on the basis of these documents. We have also seen that vide the conveyance deed dated 1st September, 1993 the alleged sub-attorney Gul Shah Khan had sold the property to his mother for a consideration of Rs.350,000/- being full consideration price well and truly paid by the vendee to the vendor at the time of sale agreement. It does not mention which sale agreement is being referred to because if it is referring to the sale agreement dated 20-5-1974 then the sale consideration as per that agreement was only Rs.53,000/- out of which only Rs.10,000/- was paid at the time of execution of the agreement to sell in the year 1974 and therefore payment of this sale consideration has also not been proved. Although the sub-attorney Gul Shah Khan was selling the property to his mother but he made no efforts to obtain the consent of Mrs.Zohra Bai whose consent could not be obtained as she had already died nor did he obtain the consent of the attorney who had executed the sub-power of attorney in his favour. An identical matter had come before this Court in the case of Faqir Mohammad v. Peer Muhammad reported in 1997 SCMR 1181. In that case the respondent Peer Mohammad had executed a general power of attorney in favour of his son the petitioner Faqir Mohammad who had later on gifted the property to his two minor sons without the consent of the respondent No.1 who brought a suit and this Court in the said judgment held as under: "7. The conclusion arrived at by the learned Judge in Chambers of the High Court lends ample support from the law laid down by this Court in Fida Muhammad v. Pir Muhammad Khan (deceased) though Legal Heirs and others (PLD 1985 SC 341), and (2) Mst. Shumal Begum (supra) notwithstanding an authority to alienate principal's property, this Court has held that the attorney is not absolved from his two essential obligations, amongst other:-- "firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communication with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction, The following two examples given under section 215 of the Contract Act are illustrative of the intention of the law
8. This being so the law propounded by this Court on the scope of the holder of a general power of attorney in alienating the property of his principal in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself, he should in his own interest obtain the consent of the principal failing which the principal is at liberty to repudiate the transaction."
13. We are also of the opinion that Section 53-A of Transfer of Property Act will not apply to this case. Section 53-A reads as under:-- "53-A Part performance.--Where any person contracts to transfer for consideration any immovable property. By writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has, performed or is willing to perform his part of the contract,then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract."
' From a perusal of the above it is seen that when the transferee has in part performance of the contract been given the possession of the property and continues to be in possession in part performance of the contract and has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract, his possession cannot be challenged by the transferor. This is a pre-condition for the application of this section and no evidence has been produced either before the lower Courts or even before us that the petitioner had discharged her onus of establishing that this pre-condition had been fulfilled.
14. This matter was specifically dealt with by this Court in the judgment of this Court in the case of Taj Mohammad v. Yar Muhammad Khan and others (1992 SCM R 1265) wherein this Court held as under:-- "5. So far as the applicability of section 53-A of the Transfer of Property Act is concerned, it depends upon the following factors:-
(i) There is a contract in writing signed by the transferor in respect of an immovable property;
(ii) From the writing, transfer can be ascertained with reasonable certainty;
(iii) In part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract; ' and
(iv) The transferee has performed or is: willing to perform his part of the contract, ' If all these conditions are satisfied, then even if the contract is not registered, the transferor or any person claiming under him cannot enforce any possession except such right, which a transferor is entitled to enforce by virtue of the contract."
15. We have also examined the rival contentions of the Advocate Supreme Courts on the point of the' applicability of Article 100 of the Qanun-e-Shahadat Order. From a perusal of the agreement to sell dated 20-5-1979 it is seen that it is not a registered document but a notarized document and it is admitted fact that neither the notary nor the marginal witnesses have been produced. It is also admitted fact that no contention had been made by the petitioners that the notary and the witnesses were dead or not traceable., On this point this Court in its judgment in the case of Jang Bahadur (quoted supra) held as under:- "12. Also no explanation was furnished at any stage of the trial by the appellants as to the reason of failure for non-production of the original will and nothing was even said about the scribe and marginal witnesses of the said document being alive, dead or not traceable at the relevant time; and more particularly for the reason that it was specifically denied by the contesting defendants in their written statement that no will was executed by late Haji Mangal Khan with respect to the property owned by him and it was alleged that the instrument of Will relied upon by the appellants, in their plaint and as claimed by them, is a fake and forged document.
' The appellants since claimed to be the beneficiaries of the document of Will, therefore, notwithstanding the formulation of terms of issue No.4, it was essential for them to have proved its execution through' the marginal witnesses and the scribe of the instrument in case such witnesses and the scribe of the instrument in case such witnesses were not alive/could not be found to depose as the case be, which they failed to explain, nor even the original document was produced, therefore, in the circumstances as above discussed no presumption of its execution can be attached within the meaning of Article 100 of the Qanun-e-Shahadat Order and the conclusion drawn by the learned Bench of the High Court with respect to the alleged Will are unexceptionable.
' It is not essential for a Court to attach the presumption of execution of a document more than 30 years old. In all the cases without attending to the other relevant facts and circumstances of the case before raising such presumption and not merely because any such presumption was claimed to be attached to such document. ' hence, attachment of presumption of the' execution of the document was a matter of great care, caution to have been undertaken in the case involving rights of the parties to the property. The fact of presumption may be weakened which tend to raise suspicion about the genuineness of the document."
16. We have also noted that both the learned High Court and the appellate Court have disbelieved the agreement to sell dated 20-5-1979. We are in respectful agreement with the judgment of this Court cited supra extract of which has been reproduced above and tend to agree with the learned High Court and are of the view that the presumption of the validity of the document and the truth of the document will not apply in this case. Even otherwise it is only an agreement to sell and does not convey the property to the petitioner and the only course open to the petitioner was to file a suit for specific performance.
17. Since we .Have already held that the power of attorney issued in favour of Khairuddin on 10-1- 1984 had been terminated on the death of vendor Zohra Bai on 14-2-1984 and therefore Khairuddin was not authorized to execute sub-power of attorney in favour of Gul Shah Khan on 10-1-1984 who was also not authorized to transfer the subject property in the name of his mother the present petitioner and have also held that the provisions of section 53-A will not apply to this case. We have also held that the agreement to sell dated 20-5-1974 has not been proved, therefore, we need not give our findings on the alleged legal flaw pointed out by the learned High Court that the appeal was not maintainable having been filed in the name of a dead person.
18. We are therefore of the considered view that the impugned judgment to the extent mentioned above is unexceptionable and no interference is called from this Court. This civil petition for leave to appeal being meritless is dismissed and leave to appeal refused.