1. ' This suit by the plaintiff is for specific performance of an agreement of sale, dated 1st August, 1979 executed by defendant No, 3 as attorney of defendant No, 1, and as natural legal guardian of defendant No, 2, in respect of property bearing No, 19/B situated in South Avenue, Defence Housing Authority, Karachi, and measuring 1,003 sq. Yds. With construction thereon. The following facts are alleged by the plaintiff in his plaint : ' The defendant 3, as attorney of defendant No, 1, and father/ natural guardian of defendant 2, on or about 1st August, 1979 executed an agreement of sale in favour of the plaintiff who was represented through his attorney/father-in-law M. Y. Khan, for sale of building constructed on plot No, 19/B, situated in South Avenue, Defence Housing Authority, Karachi, for a sum of Rs, 11,87,500. The defendant 3 received in cash a sum of Rs, 5 lacs upon execution of the aforesaid agreement of sale and acknowledged this amount under a separate receipt. Subsequent to the execution of the above agreement of sale the defendant 3 further received a sum of Rs, 15,000 through a cheque, dated 18th December, 1980 and Rs, 1 lac through a , pay Order, dated 28th January, 1980. In February, 1980 the defendant 3, informed the plaintiff's attorney that defendant 2 who was minor at the time of agreement of sale after attaining majority had resiled from the agreement of sale and this dispute between defendant's 2 and 3, has to be resolved first and, therefore, it will some time to finalise the sale in his favour. It appears that on account of the above referred dispute between defendants no sale-deed could be executed in favour of the plaintiff with the result the plaintiff instituted the present suit in this Court on 26th October, 1980 for specific performance of the agreement of sale. The defendant 2, who in the meantime had attained majority, on being served in the suit personally filed a written statement denying that defendant 3, had any authority on his behalf to sell, convey or transfer the property in favour of the plaintiff. He also denied having received any consideration for sale of the above property in favour of the plaintiff. The defendants 1 and 3 filed a joint written statement which is signed by defendant 3 both for self and as attorney of defendant 1. In the written statement these defendants jointly contended that defendant 3 had no lawful authority to sell the share of defendant I in tne property to the plaintiff. In para. 3 of the written tatement it is asserted that although according to the agreement of sale a sum of Rs, 5 lacs is supposed to have been paid on the execution of the agreement on 1st August, 1979 but in fact the defendant 3 was paid only a sum of Rs, 15,000 by way of post-dated cheque or the execution of the said agreement of sale and subsequently a sum of Rs, one lac was paid on 21st August, 1980.
2. On the basis of the pleadings of the parties the following consent issues were framed by the Court on 3rd April, 1980.
3. Whether Mr. M. Y. Khan is the duly constituted attorney of the plaintiff ?
4. Whether the agreement, dated 1st August, 1979 is binding on the defendant No, 1 and/or 2 ?
5. Whether the price of Rs, 11,87,500 included furniture. If so, what were the items of furniture ?
(4) What consideration was paid by the plaintiff to D/3 for sale of the property and whether the defendants are estopped from claiming that a sum of Rs, 5,00,000 was not received by them from the plaintiff ?
(5) Who committed breach of agreement, dated 1st August, 1979.
(6) Whether D/2 divested himself of interest in the property. If so what is the effect ?
(7) Whether the suit has been filed in collusion with D/1 and D/3 to defeat the claim of D/2 and to support Suit No, 414/1980 ?
(8) Relief."
6. ' It may be mentioned here that prior to the filing of the present suit the defendant No, 3 had already instituted Suit No, 414/1980 in this Court against defendants Nos. 1 and 2 impleading Pakistan Defence Officers Cooperative Housing Society Military Estate Officer, Karachi Circle, Karachi Cantonment Board and the District Registrar, Karachi, as defendants in the said and claimed the following reliefs :- "It is, therefore, prayed that this Honourable Court may be pleased to pass judgment and decree in favour of the plaintiff and against the defendants Nos. 1 and 2 as under :-
(a) That it be declared that the plaintiff is the lawful owner of the bungalow No, 19/B, South Seaview Avenue, Defence Society, Karachi and the defendants Nos. 1 and 2 have no interest or right therein.
(b) That a permanent injunction may be granted restraining the defendants Nos. 1 and 2 therein respective attorneys, agents and any person or persons acting for and on behalf the defendants Nos. 1 and 2 from selling transferring or encumbering the suit property by any means whatsoever, and disposing the plaintiff, his tenants of assigns and restraining the defendants Nos. 3 to 6, to deal with the subject property in any manner till the disposal of the suit.
(c) Award costs of this suit."
7. ' On 23rd November, 1983 when Suit No, 414/1980 came up before me alongwith the above suit for evidence only Mr. Liaquat Ali Merchant, Advocate for defendant No, 2, was present and plaintiff and his counsel and so also the counsel for other defendants remained absent with the result I dismissed that suit for default.
8. ' The plaintiff has examined Muhammad Yousuf Khan, his father-in-law attorney (Exh. 6) in support of his case and has produced documents Exhs. 6/1 to 7/9. The defendants 1 and 3 have not produced any evidence ' and remained absent. However, defendant 2 examined her attorney Mst. Yasmin Arbab and produced documents 7/1 and 7/2. After close of evidence by defendant 2, the plaintiff filed a statement in writing which is Exh.
8. This is all the evidence produced by the parties in the case. I have heard the learned counsel for the plaintiff and defendant 2 on the above issues and my findings thereon are as follows :-- ' Issue No, I.-On this issue the plaintiff has examined Muhammad Yousuf Khan, who has stated on oath that he was appointed as attorney by plaintiff. He produced the original general power-of- attorney executed by the plaintiff in his favour on 27th December, 1978 (Exh. 6/1). No evidence in rebuttal has been brought by the defendants. The original power-ofattorney is on a stamp which bears the value of Rs,
25. It is duly executed by plaintiff and attested by Notary Public. On the basis of the above evidence I answer the above issue in the affirmative.
9. ' Issue No, 2.-Before considering this issue I may state here that defendant 2 examined his attorney (Exh. 7) in the Court who denied the signature of defendant 2 on Exh. 6/6. The attorney of defendant 2 also stated that neither defendant 3 was authorised to sell the share of defendant 2 in the property nor defendant 2 received any consideration for sale of his share either from plaintiff or from defendant 3. She further stated that in spite of these facts the defendant No, 2 is prepared to transfer his 1/2 share in the property to the plaintiff on the terms and conditions which she produced as Exh. 7/1 in her evidence. After the above statement of the attorney of defendant No, 2, was recorded in Court, the plaintiff who is present in Court filed a signed statement accepting the terms and conditions offered by defendant 2, for sale of his share in the suit property in favour of plaintiff. In the changed circumstances the learned counsel for the plaintiff and defendant 2, agreed that under issue No, 2, it is not now necessary to determine the binding effect of agreement of sale on defendant 2. Accordingly modify Issue No, 2 as follows :- ' Whether the agreement, dated 1st August, 1979 is binding on defendant No, 1?
10. ' The plaintiff's witness Exh. 6 stated on oath that at the time of execution of agreement of sale (Exh.
11. 6/2) a sum of Rs, 5 lacs was paid in cash to defendant 3, who signed the same. The original agreement is on record as Exh. 6/2 and it is shown in the document that defendant 3, signed the same as attorney of defendant 1. In para. 1 of Exh. 6/2 defendant No, 3 acknowledged receipt of the sum of Rs, 5 lacs from plaintiff. The defendant 3, also admitted receipt of the said sum of Rs, 5,00,000 by separate receipt which is produced as Exh. 6/4. The balance of the sale consideration amounting to Rs, 6,85,500 was agreed to be paid at the execution of final sale-deed in favour of plaintiff. Exh. 6/6 is another document in which defendant 3, acknowledge receipt of a sum of Rs, 1 lac from the plaintiff towards sale consideration of the property on 28th January, 1980 through a pay order, dated 28th January, 1980. The plaintiff has also produced photostat certified copy of the cheque in the sum of Rs, 15,000 paid to defendant 3 on 18th October, 1979 towards sale consideration of the property and receipt thereof is admitted by the defendants 1 and 3, in their written.. Statement. No evidence has been led by defendants I and 3 to rebut these facts. The plaintiff's witness also produced the original plaint in Suit No, 414/1980 as Exh. 6/9 and I find that alongwilh the plaint defendant 3, (who is plaintiff in Suit No, 414/1980) produced a photo copy of power-of-attorney executed by defendant 1, in his favour. This power-ofattorney inter alia, authorised defendant 1 to sell the property in suit. On the basis of above evidence, I hold that the agreement of sale, dated 1st August, 1979 was executed by defendant 3 as the duly constituted attorney of defendant 1, and therefore, the same is binding on defendant 1. This issue is decided accordingly.
12. ' Issue No, 3.-The agreement Exh. 6/2 at page one of the agreement recites as follows "AND WHEREAS the Vendors agree to sell and the vendee agrees to purchase the said property free from all liens, encumbrances, dues demands charges etc. For the lump sum consideration of Rs, 11,87,500 (Rupees eleven lacs eighty-seven thousand five hundred only) alongwith furniture as per Annexure 'A' attached duly signed by the vendors and the vendee."
13. ' Annexure "A" to the agreement is produced in evidence as Exh. 6/3. The defendant 2's attorney also admitted in his evidence that the items mentioned in Exh. 6/3 were agreed to be sold to the plaintiff and that the consideration which the defendant 2 has demanded from the plaintiff for sale of his share in the property included the half share of defendant 2, in the items mentioned in Exh.
14. 6/3. No evidence in rebuttal is led by defendants 1 and 3. I, therefore, hold that defendants agreed to sell the items mentioned in Exh. 6/3 alongwith the property.
15. ' Issue No, 4.-The agreement of sale Exh. 6/2 states that a sum of Rs, 5 lacs was paid by the plaintiff to defendant 3, upon execution of agreement of sale. Apart from the above statement made in Exh.
16. 6/1, there is also a separate receipt for this amount Exh. 6/4, in which defendant 3 acknowledged receipt of a sum of Rs, 5 lacs towards sale consideration of the property. A further sum of Rs, 15,000 was paid by the plaintiff through cheque, dated 18th December, 1979 and another sum of Rs, one lac was paid through a pay order, dated 28th January, 1980. The receipt of Rs, 15,000 and Rs, 1,00,000 are acknowledged in Exh. 6/6 as well as in the written statement jointly filed by defendants 1 and 3. Defendant 2 has taken the stand that defendant 3 was not authorised to receive any consideration for kale of the property or to enter into any agreement of sale on his behalf and this stand is accepted by the plaintiff vide Exh.
8. No evidence in rebuttal has been produced by defendants Nos. 1 and 3. I, therefore, hold that defendant 3, received a sum of Rs, 6,15,000 towards the sale consideration of the property but for sale of the share of defendant No, 1 only in the property.
17. ' Issue No, 5. -In view of my findings on the above issues it is quite clear that Exh. 6/2 binds only defendant 1, who is the joint owner of the property with defendant 2. It is an admitted position that the shares of defendants 1 and 2 in the property are not specified in the documents of title relating to the property in suit. In the absence of specification of the shares of joint owners in the property in the title deeds they will be deemed to be holding the property in equal shares under the law.
18. Therefore, defendant 1, is the owner of 1/2 shares in the property. The sale consideration in the agreement of sale (Exh. 6/2) is stated as Rs, 11,87,500 for the entire property. The share of defendant 1 thus comes to Rs, 5,93,750. The attorney of defendant 1, has already received a sum of Rs, 6,15,000 from the plaintiff towards the sale consideration which is more than the shares of defendant 1. The agreement of sale provided a period of six months for completion of sale in favour of plaintiff. The plaintiff's attorney. Asked defendant 3, before filing of the suit to complete the sale but he expressed his inability on account of dispute raised by defendant 2. I have already reached the conclusion that the agreement of sale (Exh. 6/2) is binding on defendant 1 only in the circumstances of the case. As the plaintiff was ready and willing to perform his part of the contract the breach was on defendant 1, who failed and neglected to perform the same. I, therefore, hold that defendants 1 and 3 were in breach of the agreement, dated 1st August, 1979.
19. ' Issue No, 6.-This issue was raised by defendants 1 and 3 in their joint written statement. The burden of proving this issue is entirely on them. They failed to lead any evidence in this regard. Suit No 414/1980 filed by defendant 3, against defendants 1 and 2 has been dismissed for default on 23rd November, 1983. The defendants 1 and 3, therefore, failed to prove this issue which is accordingly decided in the negative.
20. ' Issue No, 7.-This issue was raised by defendant 2. The learned counsel for defendant 2 does not press this issue which is accordingly dropped.
21. Issue No 8.-From the above discussed evidence it is quite clear that plaintiff was always ready and willing to perform his part of the contrae but the defendants avoided to perform the same. In fact defendant 1, was paid in full for his share in the joint property before filing of the suit. .4 The plaintiff is willing to deposit the consideration demanded by defendant 2, for his share in the property in Court within 6 weeks on the terms and conditions mentioned in Exh. 7/1. Therefore, I see no reasons to refuse specific performance of the agreement in favour of plaintiff. I accordingly decree the suit of plaintiff for specific performance on the condition that within 6 weeks from today the plaintiff will deposit a sum of Rs, 5,93,500 in Court and within two weeks thereafter the defendant shall execute and register a proper and valid conveyance deed in respect of the property in suit in favour of the plaintiff. The defendants are also directed to put the plaintiff in vacant possession of the property alongwith fitting and fixtures mentioned in Exh. Q3. Upon delivery of possession and execution and registration of the sale-deed in favour of plaintiff as aforesaid the amount deposited by the plaintiff in Court will be paid to defendant 2. In case the defendants failed to execute and register the saled-deed as aforesaid the Nazir of this Court is authorised to execute the same in favour of plaintiff. The plaintiff will be entitled to recover only half of the costs of suit against defendants 1 and 3. In the circumstances of the case I also grant a permanent injunction restraining defendants from transferring of parting with the possession of the property in suit to any other person except the plaintiff.