' MUHAMMAD FARRUKH IRFAN KHAN, J.---The instant appeal is directed against the judgment and decree dated 21.1.2010 of the learned Civil Judge, 1st Class, Faisalabad, whereby the suit, of the appellants for specific performance of the agreements to sell dated 13.3.1999 and 27.7.2000 has been dismissed.
2. Brief facts of the case are that Khalid Latif, predecessor of the respondents was owner of property bearing No,346-B, measuring 1 kanal, situated in Peoples Colony No,1, Faisalabad. He entered into an agreement to sell (Ex.P.1) the said property with Haji Zahoor-ud-Din, predecessor of the appellant on 13.3.1999 and he received Rs,800,000/- (Ex.P.2) as earnest money. Balance sale consideration of Rs,37,00,000/- was agreed to be paid on 5.7.2000 at the time of execution of the sale deed. Subsequently on demand Khalid Latif/vendor was further paid Rs,50,000/- upon signing of a second agreement to sell dated 27.7.2000 (Ex.P.3) whereby time for execution of the sale deed was extended uptill 15.8.2000. Then another amount of Rs,50,000/- was also paid to the vendor on 1.12.2000 which is acknowledged at the back of Ex.P.3. It is alleged that when Haji Zahoor-ud- Din/vendee contacted the vendor/Khalid Latif for receiving the balance sale consideration and completing the sale transaction the latter delayed the matter on one pretext or the other. At last, the vendor refused to perform his part of the contract whereupon on 17.10.2000 Haji Zahoor-ud- Din/vendee filed suit for specific performance of the agreements to sell dated 13.3.1999 and 27.7.2000. During the pendency of the suit both Khalid Lateef/vendor and Haji Zahoorud- Din/vendee passed away and their legal heirs were impleaded. Out of divergent pleadings of the parties issues were framed. Both the parties adduced their respective oral as well as documentary evidence. The learned trial Court, vide judgment and decree dated 21.1.2010 dismissed the suit.
Hence, the instant appeal.
3. Learned counsel for the appellant contends that judgment and decree of the learned trial court is contrary to law and facts on the record; that findings of the trial Court are based on surmises and conjectures and the impugned judgment is the result of misreading and non-reading of evidence on record; that execution of the agreements and receipts of part payment of consideration were fully proved by production of marginal witnesses, namely, Muhammad Shafique (P.W.1) and Muhammad Saleem (P.W.2), who supported the version of the appellant and the respondents failed to shatter veracity of their testimony during their cross-examination; that first agreement (Ex.P.1) was even attested by Shahid Lateef, son of Khalid Lateef/vendor; that the second agreement to sell dated 27.7.2000 (Ex.P.3) whereunder the vendor received Rs,50,000/-. And extended the period for execution of sale deed was not only attested by marginal witnesses, Muhamad Shafiq (P.W.1) and Muhammad Saleem (P.W.2) but the same was also attested by Shahid Lateef, Qaiser Lateef and Shamim Akhtar, sons and wife of the deceased vendor/Khalid Lateef; that Ex.P.3 was signed/thumb marked by Khalid Lateef (deceased) in presence of the marginal witnesses and his two sons and wife; that when the documentary evidence was fully corroborated by oral evidence of two sons and wife of the vendor, there was no occasion for the learned trial Court to non-suit the appellant on the basis of minor discrepancies and contradictions in the evidence; that though the respondents denied the execution of the above said agreements and payment receipts alleging that they were fraudulent but they have not challenged the authenticity of the same before any court of law; that the appellants prayer for getting the signatures/thumb impressions of D.W.3/Shahid Latif and his mother Mst. Shamim Akhtar analyzed by an expert was not allowed on the ground that the same was filed at a belated stage; that claim of the respondents that their predecessor/Khalid Lateef being lunatic was unable to execute the agreement to sell is not supported by any documentary evidence as he was never declared so by any competent court of law and thus, finding of the learned trial Court holding the deceased Khalid Latif as hunatic is the result of misreading and non-reading of the record; that D.W.1/Dr. Tariq Rashid did not support his statement that the deceased Khalid Lateef was suffering from Senile Dementia and Schizopherenia by producing original record of the hospital; that version of the respondents qua lunacy of the deceased vendor is also belied from the fact that he had already entered into an agreement with Housing and Physical Planning Department on 14.4.2000; that the learned trial Court did not take into consideration that Mst. Shamim Akhtar/respondent No,6 had filed application under section 62 of the Lunacy Act, 1912 for declaring her husband/Khalid-Lateef as lunatic which was dismissed as withdrawn on 31.7.2000; that the learned trial Court failed to discuss issues No, 4 independently which related to lunacy of the deceased/vendor; and that findings of the learned trial Court lack application of judicious mind and as such merit reversal by this Court.
4. Conversely, learned counsel for the respondents submitted that from the evidence produced by the respondents it stands proven that their predecessor/Khalid Lateef was not mentally fit and the alleged agreements to sell were bogus, outcome of fraud; that the respondents produced two doctors as D.W.1 and D.W.2, who supported the version of the respondents; that the deceased remained under their treatment and he was a patient of Pre-senile Dementia and Schizophrenia and was not capable of understanding something or recognize even his close relations; that respondent No,6/widow of the deceased had also filed a petition before the learned District Judge for declaring Khalid Lateef as lunatic which was withdrawn on 13.1.2001 after his death on 16.12.2000.; that the appellants failed to prove that the alleged agreements to sell were validly executed by deceased/Khalid Lateef; that there are clear contradictions and discrepancies in the statements of the P.Ws., which make the execution of the aforesaid documents highly doubtful; that a suit for perpetual injunction was filed by the predecessor of the appellants on 21.12.1999 and Rs,50,000/- are claimed to have been received by the defendant/vendor on 27.7.2000 and if there would have been. Any sale transaction between the parties, statement of respondents to that effect could have been recorded; that the alleged agreements to sell are not only fabricated but also legally not executable as being made by a person, who was incapable to enter into any such agreement under the law.
5. Arguments heard. Record perused.
6. There are mainly two points which emerge out of the whole controversy; firstly, whether the two agreements to sell were actually executed by the deceased Khalid Lateet in presence of the marginal witnesses as well as his two sons (Shahid Latif and Qaiser Lateef) and wife (Mst. Shamim Akhtar) and, secondly, whether at the time of execution of the said agreements to sell the said Khalid Lateef was legally incapacitated to enter into any agreement on account of his mental disease. A careful scanning of the available oral as well as documentary evidence led this Court to irresistible conclusion that both the agreements to sell are genuinely executed documents. We are forming this opinion on the ground that both the marginal witnesses, namely, Haji Muhammad Shafique and Muhammad Salim, while appearing as P.W.1 and P.W.2, respectively, fully corroborated the version of the appellants as set out in A the plaint. Both the witnesses faced lengthy cross-examination by the learned counsel for the respondents but nothing favourable could be extracted from their depositions. The execution of the agreement to sell (Ex.P.1) and the receipt of Rs,800,000/:. (Ex.P.2) thus stands proved as per requirement of Article 79 of the Qanun-e- Shahadat Order, 1984. The fact that the first agreement to sell dated 13.3.1999 (Ex.P.1) and receipt (Ex.P.2) bear the signatures of respondent/Shahid Lateef and the second agreement to sell dated 27.7.2000 (Ex.P.3) bears the signatures and thumb impressions of Qaiser Lateef, Shahid Lateef and Mst. Shamim Akhtar/respondents, in addition to the signatures and thumb impression of their predecessor/Khalid Lateef/vendor, has also lend support to the appellants version that agreements to sell were executed by the deceased Khalid Lateef. No doubt the second agreement to sell dated 27.7.2000 (Ex.P.3) does not qualify the requirement of Article 79 of the Qanun- eShahadat Order, 1984 as only one marginal witness, namely, Haji Shafique (P.W.1) verified the execution of the said document in his statement but this document being in continuation of the earlier agreement to sell (Ex.P.1) and having been attested by two sons and widow of the deceased/vendor cannot be easily discarded. During recording of evidence D.W.3/Shahid Lateef denied his signatures and thumb impression on both the agreements 'to sell whereupon the appellants moved application for verification of his signatures and thumb impressions by the handwriting expert but the said application was dismissed by the learned trial Court. Learned counsel for the respondents has failed to show us that Khalid Lateef (deceased) did not sign both the agreements to sell. In this view of the matter, keeping aside the question of validity and legality of the agreements to sell we are convinced to hold that the appellants have been successful in proving that these agreements as well as receipts were executed by the vendor/Khalid Lateef. We do not find any element of fraud or fabrication in execution of the said documents. It is also worth mentioning that uptil now the respondents have not challenged the said agreements to sell before any court of law.
7. Now coming to the question of legality and validity of the said agreements to sell, we observe that it has been proved on record that the deceased Khalid Lateef had a disturbed state of mind.
This fact finds support from the evidence of Dr. Tariq Rashid (D.W.1) and Dr. Muhammad Nasir (D.W.2). D.W.1 stated that Khalid Lateef was his patient suffering from Schizophrenia (Pre-senile Dementia) and treated by him. Similarly D.W.2 who has been performing duties as Registrar of Psychology Department, Civil Hospital, Faisalabad deposed that according to the record Khalid Lateef was admitted in the hospital on 8.8.2000 as a patient of schizophrenia and discharged on 15.8.2000. He died on 16.12.2000 after a few months of his discharge from the hospital. The record further reflects that respondent No,6, widow of the deceased had also filed application under the Lunacy Act, 1912 on 22.5.2000 for declaring her husband/Khalid Lateef as a lunatic. The said application was, however, withdrawn on account of death of Khalid Lateef. There is another aspect of the case, which lends support to the stance of the respondents qua lunacy of their deceased predecessor necessitating signing the agreements to sell by two sons and widow of the deceased.
In normal routine while execution of any document, particularly relating to a sale transaction attestation of only two marginal witnesses is considered sufficient but in the present case besides two marginal witnesses signatures and thumb impressions of two sons and wife of the vendor were also obtained by the vendee on the agreements. Extraordinary care and caution on behalf of the vendee in this case points out that he himself was in doubt that the vendor was legally capable of independently entering into agreement to sell. Learned counsel for the appellant failed to show any reason for making two sons and wife of the vendor as attesting witnesses of the agreement to sell. It is also an admitted fact that when the said Khalid Lateef died, the application of respondent No,6 under the Lunacy Act, 1912 was pending. In view of the circumstances and material available on the record we are constrained to hold that Khalid Lateef (deceased)/vendor was not physically and mentally capable of independently entering into the sale transaction.
8. In view of our above findings relief under the Specific Relief Act, 1877 cannot be granted in favour of the appellants. Their predecessor sought to bolster his legal position by repeated agreements to sell that were endorsed by the putative heirs of the vendor. However, in view of the fact that both the agreements to sell were executed by the deceased Khalid Lateef in presence of his two sons and the widow and payment of Rs,900,000/- out o total sale consideration of Rs,45,00,000/- also stands proved we are inclined to would the relief to meet the interest of justice. In our considered view this Court is vested with the discretion to would the relief in appropriate cases in order to avoid multiplicity of proceedings, to shorten the litigation and above all to do complete justice between the parties. In adopting this approach we are guided by the wisdom laid down by the Hon'ble Supreme Court of Pakistan in the cases Muddasar Qayyum Nahra v. Ch. Bilal liaz and others (2011 SCM R 80) and Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCM R 984). It is proved on record that respondent No,1 signed the first agreement to sell dated 13.3.1999 (Ex.P.1) when an amount of Rs,800,000/- was paid as earnest money. In view of the findings of this Court qua incompetency of the vendor/Khalid Lateef to independently enter into any agreement to sell it can be inferred that the transaction of sale was managed and earnest money received was appropriated by respondent/Shahid Lateef, Qaiser Lateef and Mst. Shamim Akhtar, who endorsed and signed/thumb marked the second agreement to sell dated 27.7.2000 (Ex.P.3).
9. The vendor has already died and the property in dispute has devolved upon his legal heirs, who are impleaded in this appeal as respondents Nos.1 to 6. Though both the agreements to sell are not enforceable under the law, particularly when the remaining three legal heirs were not involved in the agreements to sell but respondents Nos.1, 2 and 6 having received Rs,900,000/- from the predecessor of the appellants in the year 1999 and are enjoying fruits of the same. They are severally and jointly held liable to return the earnest money to the appellants. However, keeping in view the fact that since the date of execution of the first agreement to sell dated 13.3.1999 uptil now not only currency has undergone much devaluation and prices of properties have escalated enormously, we order respondents Nos.1, 2 and 6 to return the appellants an amount equal to the present value of the quantity of gold which could be purchasable with a sum of Rs,900,000/- on 13.3.1999.
10. In view of what has been discussed above, the instant appeal is partially allowed and disposed of in the above terms.