The facts germane for the disposal of instant appeal are that Ch. Muhammad Rizwan present appellant being plaintif f brought a suit for specific performance of two agreements to sell dated 16.10.201 1 with the assertion that Respondent No 1 to 4 being owners of property measuring 27-Kanal and 18-marlas, whereas, Respondents No. 5 to 1.0 being owners of 8-Kanal of disputed property fully mentioned in the today of the plaint had agreed to sell the same to him and after receiving a sum of Rs. 10,00,000/- they executed two different above referred sale agreements. It was further settled that plaintif f/appellant would pay Rs. 32,00,000/- to the Respondents No 1 to 4 and Rs. 8,00,000/- to Respondent No. 5 to 10 till 15.11.201 1. According to the appellant, he was ever ready to pay the balance amount, but the respondents refused to receive the balance amount and get transferred the suit property in favour of the plaintif f/ appellant, who was constrained to file the suit in hand. Along with the said suit appellant/plaintif f also filed an application for grant of temporary injunction with the prayer that respondents be permanently restrained from selling, alienating, transferring or encumbering the land in dispute and from changing its nature and character in any manner whatsoever till the final disposal of the titled suit. The said suit as well as application was resisted by the respondents/defendants by filing written statemen t and written reply . The learned trial. Court vide impugned order dated 12.11.2013 dismissed the said application for grant of injunctive order . Being aggrieved the instant appeal has been filed.
2. During the pendency of this appeal CM No. 1-C/2015 for impleading Parveen as respondent under order I rule 10 CPC was filed, but on reconsideration learned counsel for the applicant has opted not to press the same as the applicant has already filed similar application before the trial Court. As such, CM No. 1-C/2015 is dismissed accordingly whereas CM No. 2-C/2015 has become redundant.
3. Learned counsel for the appellant has argued that respondents received the earnest money , but they did not produce the Fard Malqiat and get demarcated the land, therefore, remaining amount could not be paid to the respondents and the appellant is ever ready to perform his part, if the respondents fulfill the condition mentioned in the agreement; that the learned trial Court without considering the said contention of the petitioner dismissed the application filed by the petitioner; that three essential ingredients necessary for the grant of interim order under Order XXXIX Rule 1 & 2 of CPC also tilt in favour of appellant, but learned trial Court without considering the said pre-requisites passed the impugned order; that the execution of the disputed agreements as well as payment of earnest money was admitted by the respondents and the appellant has prima face arguable case, but this fact has also not been considered by the learned trial Court. He has lastly prayed for the acceptance of the instant appeal, setting aside of the impugned order and that application for grant of temporary injunction filed by the appellant before the learned trial Court be accepted.
3. Conversely learned counsel for the respondents have supported the impugned order .
4. Arguments heard. Record perused.
5. It is an admitted fact that appellant filed a suit for specific performance of agree ment to sell on the basis of two agreements to sell, one was allegedly executed by Respondents No. 1 to 4, whereas the other was claimed to have been executed oh behalf of Respondents No. 5 to 10 by Rahila Bibi Respon dent No. 5 on her behalf as well as her miner sons and daughters Respondents No. 7 to 10. No doubt, Rahila Bibi being mother is the defecto guardian of her minor children, but it is settled principle of law that a defecto guard ian has no authority to enter into an agreement to sell on behalf of minors. This Court has already thrashed this point in the judgment dated 28.4.2014 passed in RSA No. 221/2010 to the following ef fect: "The appellant/plaintif f himself admitted in the plaint that at the time, of execution of the disputed agreement to sell, defendants No. 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. While, 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 Hussdin vs. 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 definies 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 (if 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 up as a valid defence plea to claim thereunder 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 but the said, property after her appointmen t as a guardian. The Court is not even bound to grant leave tO dispose of property of minors to an appointed guardia n unless and until it is expressly proved to before benefit or welfare of minor . Section 29 of the Guardians and W ards Act, 1980 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.Pl) 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 judgment 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/plaintif f 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 ."
Learned counsel for the appellant, during the course of arguments has conceded that one of the alleged agreement is defective to this extent. The appellant/plaintif f by filing a single suit regarding above referred two agreements has also damaged his case on account of mis-joinder of causes of action. It is settled principle of law that mere execution of an agreement to sell neither creates right or title in the immoveable property . The appellant has yet to prove the valid execution of the disputed agreements by producing cogent and convincing evidence. At present stage, the appellant has no batter case than the respondents, who are title holders of the disputed property and for grant of temporary injunction, the applicant, has not only to establish that he has a prima facie case, but he has also to show that the balance of inconvenience is on his side and that he will suffer irreparable loss unless he is protected during the pendency of the suit while issuing Injunctive order in his favour . If the appellant is not equipped with temporary injunction then at the most he could suffer a loss in terms of coins and such a loss cannot be termed as irreparable loss. The appellant has only prayed in his application for grant of temporary injunction to the extent that respondents/defendants be restrained from alienating the disputed property . Rule of Us pendens is available to the appellant, if the disputed property is further alienated by the respondents/defendants. In the presence of said principle the appellant cannot be equipped with the relief of temporary injunction and the learned trial Court after assessing the required three ingredients has rightly declined the grant of stay order . However , there is much force in the contention of the learned counsel for the appellant that the findings of the learned trial Court to the extent that the alleged agreement executed by Respondent No. 1 to 4 did not bear the characteristic of agreement is not plausible. The learned counsel for the respondent has also conceded the said fact. Anyhow the findings of the learned trial Court as well as of this Court are of tentative nature and will not influence the learned trial Court at the final decision of the suit, which will be made independently on the basis of the evidence likely to be produced by the parties during the trial.
6. Sequel to the above discussion, the instant appeal being devoid of any merit and force is dismissed.