' CH. MUHAMMAD MASOOD JAHANGIR J.---Brief facts of the case are that Muhammad Faazal, appellant/plaintiff filed a suit for possession through specific performance of an agreement to sell dated 10.1.2004 with the assertions that the disputed property, fully mentioned in the head note of the plaint had been purchased by him against a consideration of Rs.4,00,000/- and he paid a sum of Rs.1,00,000/- as earnest money to Mst. Gul Zamina, defendant No.1. However as per settlement, the remaining amount of Rs.3,00,000/- would be paid by the appellant/plaintiff to defendant No.1 at the time of execution of registered sale deed in his favour after getting guardian certificate of the minors(defendants No.2 to 4 and 6) and permission to sell their shares as they were minors at the time of execution of agreement to sell dated 10.1.2004. Whereas, defendant No.1 transferred the disputed property in the name of respondent No.1 vide sale deed No. 2213 dated 10.2.2005 and on coming to know about the said fact the appellant/plaintiff filed the above suit before the learned trial court for possession through specific performance of an agreement to sell dated 10.1.2004 and cancellation of above said sale deed. The suit was resisted by defendants Nos.1 and 5 by filing written statement. The learned trial court, out of the divergent pleadings of the parties, framed the following issues:-
(I) Whether the sale deed No. 2213 dated 10.2.2005 and subsequent mutation is against law and facts, mis-representation and is liable to be set aside? OPD
(2) Whether the plaintiff has no cause of action to file the instant suit? OPP
(3) Whether the plaintiff is estopped by his words and conduct from filing this suit? OPD
(4) Whether the suit is false and frivolous and has been filed just to harass and pressurize the defendants and the defendants are entitled to special costs under section 35-A, C.P.C.? OPD (4-A) Whether the plaintiff is entitled to the decree for specific performance of the contract dated 10.2.2004?OPP
(5) Relief.
2. After recording evidence of both the parties the learned trial court decreed the suit of the appellant/plaintiff vide judgment and decree dated 23.12.2009. The respondents/defendants filed an appeal before the learned lower appellate court which came up for hearing before learned Addl. District Judge, who allowed the same vide judgment and decree dated 24.6,2010 and dismissed the suit of the appellant/plaintiff, hence, the instant civil revision.
3. Learned counsel for the appellant/plaintiff has argued the impugned judgment and decree passed by the learned lower appellate court is against law and facts; that the learned lower appellate court without taking into consideration the actual and real facts of the case available on the record has dismissed the suit filed by the appellant/plaintiff; that the impugned judgment has been passed without applying its judicious mind, which is also reflective of mis-reading and non- reading of evidence as the appellant/plaintiff had not only paid Rs.1,00,000/- to defendant No.1 but also deposited the balance consideration in compliance with judgment and decree passed by the learned trial court. The learned counsel for the appellant/plaintiff in support of his contention has relied upon the judgments reported as "2004 SCMR 729, 2003 CLC 1058, PLD 2006 Lahore 571(DB) and 2009 SCMR 114. He has lastly prayed for the acceptance of the instant appeal, setting aside of the impugned judgment and decree passed by the learned lower appellate court and prayed that the suit of the appellant/ plaintiff be decreed.
4.Conversely, the learned counsel for the Respondents has argued that the questioned agreement to sell dated 10.1.2004 had been allegedly executed by defendant No.1, the mother of the other defendants Nos.2 to 4 and 6 who were minors at the time of alleged execution of the said agreement, which was not binding upon them having no value in the eyes of law; that the said agreement was also unilateral as the same being not signed by one of the party was not enforceable in accordance with law. He has lastly prayed for dismissal of the instant appeal.
5.Arguments heard and record perused.
6.The learned lower appellate court has non-suited the appellant/ plaintiff mainly on the findings recorded on issue No.4-A. The appellant/ plaintiff himself admitted in the plaint that at the time of execution of the disputed agreement to sell, defendants Nos.2 to 4 and 6 were minors and defendant No.1, the mother of the said minor defendants was not their appointed guardian at the time of execution thereof.
7. The agreement to sell is defined in Black's Law Dictionary, Fifth Edition which reads as under:-- "Agreement of sale; agreement to sell.--- An agreement of sale may imply not merely an obligation to sell, but any obligation on the part of the other party to purchase, while an agreement to sell is simply an obligation on the part of the vendor or promisor to complete his promise of sale. Treat v. White, 181 U.S. 264, 21 S.Ct. 611, 45 L.Ed. 853. It is a contract to be performed in future, and, if fulfilled, results in a sale; it is preliminary to sale and is not the sale."
The said definition has further been elaborated by the august Supreme Court of Pakistan in a case reported as "Hafiz Tassadiq Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 Supreme Court 241) and relevant para-5 is reproduced hereunder for ready reference:-- "The noted meaning is also fortified by the provisions of section 54 of the Transfer of Property Act, 1882 which defines the sale of immovable property: prescribes the mode and mechanism how it is made; and by virtue of its clear language distinguish it from a contract/agreement of sale, when it is ordained that: "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties". Furthermore, in the above context, a clear distinction and contract is drawn in the same provision, wherein it is provided that a contract for sale itself shall neither create any interest in or a charge on such property. Thus, the former transaction Of not a conditional sale) is the conclusive transfer of an absolute title and ownership of the property unto the vendee in presentee, while the later is meant for accomplishing the object of sale in futurity and for all intents and purposes it pertains to the future obligations of the parties thereto, resultantly there is no room for doubt that a sale agreement/agreement to sell is duly covered and is hereby so declared to fall within the pale of said Article.
8. It is an admitted fact that the disputed property had been agreed to sell by defendant No.1, i.e. Mother of the other defendants, who were less than 18 years of age and could not validly enter into sale contract on their behalf, which was void ab initio having been contracted incapacity of vendors, thus, had no legal existence. No rights or liabilities would arise in favour of vendee from such void transaction, which could neither be enforced nor set tip as a valid defence plea to claim there under a right or title. Invalidity of such transaction arose from a legal incapacity, which was, thus, incurable. Such sale was void and not voidable. Sale of minors's property_ by their mother as a defecto guardian was not sale in the eyes of-law. Such sale would be invalid, unless the guardian obtained permission from the court of law to sell out the said property after her appointment as a guardian. The court is not even bound to grant leave to dispose of property of minors to an appointed guardian unless and until it is expressly proved to be for benefit or welfare of minor.
Section 29 of the Guardians and Wards Act, 1890 reads as under:--
29. Limitation of Powers of guardian of property appointed or declared by the Court. Where a person other than a Collector, or other than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court:
(a) mortgage, or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of his ward; or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.
' After perusal of the aforesaid provisions, there is left no doubt that the agreement to sell (Exh.P1) alleged to have been executed by defendant No.1 in favour of the appellant on behalf of the minor children without prior permission of the Court is void and the appellant could not seek performance of such agreement with the aid of Court by filing Civil suit. In arriving at this view, I am also fortified by the dictum laid down by the august Supreme Court of Pakistan in the judgments reported as "2000 SCMR 961, PLD 1994 SC 674 and 2008 SCMR 352.
9. In the present case, it is even admitted by the learned counsel for the appellant/plaintiff during the course of arguments that defendant No.1 was not an appointed guardian of the minor defendants from the competent court of law. As such the said defendants cannot be burdened with liability of void contract and the learned lower appellate court has validly refused relief to the vendee from his contracting minor party.
10. The case law referred to by the learned counsel for the appellant/plaintiff runs on different footing. In the case reported as "2003 CLC 1058", the agreement had been executed by the father of the minor child being their natural guardian, who was also appointed as such by the Guardian Court subsequently and permission to sell the suit property was also obtained. In the present case it is not the case of the appellant/plaintiff rather the disputed agreement was allegedly executed by the mother of the minors who was not their natural guardian or appointed guardian by the court. The case law reported in 2004 SCMR 729 also runs on different footing and is not applicable on the instant case. Even otherwise, there is no evidence available on the file that the mother/defendant No.1 had entered into an agreement with the appellant/plaintiff in the interest of other defendants who were minors and the agreement by defecto guardian in favour of appellant is not protected under the law. Hence the case law reported as PLD 2006 SC 571 is also not applicable to the present case.
11. Irrespective of the above facts and circumstances, it is also. Notable after perusal of the impugned agreement to sell (Exh.1) that the same was unilateral having not been signed by one of the party i.e. Plaintiff/appellant. Under the law the said agreement was not enforceable. Safe reliance can be placed on the judgment reported as ,2010 SCMR 334. This view has further been fortified in the case law reported as 2013 YLR 1017, the relevant portion is reproduced as under:- "Performance of an agreement is required by both the parties and if it is unilateral and signed by one party and signatures of the other party is not available on the said document, the same is not an agreement enforceable under the law."
12. No doubt, regular second appeal is maintainable against the judgment passed by the learned lower appellate court, but this Court can interfere if the lower court is found to have committed error of law or error in procedure, which may have effected decision of the case upon merits or that finding arrived at by the first appellate court is not supported by the evidence on record, but the same is result of surmises and conjectures as a result of fallacious appraisal of evidence. The learned counsel for the appellant is unable to make out a case on the touchstone of the grounds provided by Section 100, C.P.C.
13. Sequel of the above discussion is that the instant appeal having no force is dismissed with no order as to costs.