1. ' This suit instituted by the legal representatives of deceased vendee for specific performance of an agreement of sale, dated 28-6-1969 against the vendor. Both vendor and the vendee are dead and they are represented in the suit by their respective legal representatives. The following facts are alleged by the plaintiffs in the suit.
2. ' Late Ghulam Ali Memon on 28th June, 1969, entered into an agreement with Late Muhammad Ayub for purchase of 1/2 share in a double-storeyed bungalow situated on Plot No. 12-A, measuring 850 square yards in Sindhi Muslim Co-operative Housing Society Limited, Karachi, for a total sale consideration of Rs.60,000. The 1/2 share agreed to be purchased comprised of ground floor premises only with open space consisting of small garden. A sum of Rs.30,000 was paid to Muhammad Ayub at the time of entering into agreement of sale and balance was to be paid at the time of execution of the final sale-deed. However, it is alleged that the balance of sale consideration amounting to Rs.30,000 was also paid to Muhammad Ayub by Late Ghulam Ali Memon during his lifetime. After the death of Ghulam All Memon his legal representatives by a legal Notice, dated 14-10-1979 upon Muhammad Ayub to complete the sale and upon their failure, the present suit was instituted on 11-3-1980. The defendant Muhammad Ayub who was alive at the time of institution of the present suit was personally served in the suit and in his written statement amongst other grounds, he pleaded that the agreement of sale was executed between him and Late Ghulam All Memon on the representation that this agreement was needed by Ghulam Ali Memon for saving Income-tax and that it will not be acted upon and that he signed the agreements without reading it because of his friendship with Ghulam All Memon. It was also denied that any consideration was paid to defendant in connection with the agreement of sale by Ghulam Ali Memon. As regards possession of Late Ghulam Ali Memon over the bungalow, it was stated in the written statement that it was temporary for six months. The following consent issues were framed/adopted by the Court:--
(1) Whether the suit is improperly valued and insufficiently stamped?
(2) Whether the claim in suit is barred by limitation?
(3) Whether the suit is incompetent and not maintainable because the plaintiffs have not taken letters of Administration?
(4) Whether the defendant is entitled to compensatory cost?
(5) Whether the Agreement of Sale, dated 28-6-1969 is a fake and ficticious agreement as alleged by the defendant in para. 2 of the written statement?
(6) Whether the defendant has not received the sale consideration in full?
(7) Whether the possession of the disputed premises of the plaintiffs predecessor-in-interest Mr. Ghulam Ali Memon, was to come to be in part performance of an Agreement to sell?
(8) Whether the plaintiffs are entitled to a decree for specific performance of the agreement, dated 28-6-1969?
3. ' As the burden of all the above issue lay on the defendants they have examined Muhammad Qasim (Exh.6) and Muhammad Aslam (Exh.7), one of the defendants, and closed their side. The plaintiffs have not led any oral evidence in the case but both the parties have filed documentary evidence which have been admitted on record, by consent as Exhs. P-I to P-II and D-1 to D-7. I have heard the learned counsel for the parties at length and by findings on the above issues are as follows:-- ISSUE No. 1: ' The burden of proving of this issue is on the defendants. The agreement of sale Exh.P.1 shows that the property was agreed to be sold for sum of Rs.60,000 and the same valuation has been shown for the suit, which is quite in order. Mr. Inayat Ali, learned counsel for the defendant is unable to point put any discrepancy in the valuation of the suit. Issue No. 1 is accordingly answered in the negative.
4. ISSUE No. 2: ' The burden of proving of this issue is on defendant. The agreement of sale Exh.P.1 was entered into on 28th June, 1969 and according to the agreement Late Ghulam Ali Memon was put in possession of the property in part performance of the agreement of sale. The agreement does not provide any fixed period or time for its performance. In these circumstances the latter part of Article 113 of the Limitation Act will be applicable which provides a period of three years for filing of a suit from the date, the plaintiff has notice of refusal to perform the contract. It is contended by Mr. Inayat Ali, the learned counsel for the defendants, that Late Ghulam Ali had notice of cancellation of agreement of sale Exh.P.1 on or about 12th July, 1975, when a cheque in the sum of Rs.35,000 was afforded to him by Late Muhammad Ayub but he declined to accept the same. The learned counsel relied in this connection, on the evidence of Muhammad Qasim Memon (Exh.6) who has stated that he alongwith Haji Pir Muhammad had gone to the office of Late Ghulam Ali Memon for giving him the cheque of Rs.35,000 which was made out by Late Muhammad Ayub for payment to Ghulam All Memon but he refused to accept it and stated to the witness that the matter could be settled only on the condition which he had already communicated to Late Muhammad Ayub. On the basis of evidence of Exh.6, the learned counsel contends that Ghulam Ali Memon had notice of non- performance of the agreement on the date when the cheque was taken to him by the witness. I have gone through the evidence of witness Muhammad Qasim and I am unable to agree with the learned counsel for the defendants. Firstly, Muhammad Ayub had filed written statement in this case personally but he nowhere alleged that he cancelled the agreement or refused to perform the same in the year 1975. On the contrary there is an admitted document on record (Exh.P.4) written by Late Muhammad Ayub to Late Ghulam Ali Memon which reads as follow s: "Dear Ghulam Ali"
5. Re: AGREEMENT OF SALE DATED 28TH JUNE, 1968 IN RESPECT OF HALF SHARE IN PLOT No. 12-A, SINDHI MUSLIM CO-OPERATIVE HOUSING SOCIETY AND BUILDING THEREON.
6. ' With reference to my letter, dated 16th July, 1974 I am to inform you that I have decided to cancel agreement of sale, dated 28th June, 1968 in respect of half share in Plot No.12-A. Sindhi Muslim Co- operative Housing Society and Building thereon and as per terms of my letter mentioned above and our mutual verbal agreement I am, enclosing herewith a Cheque No. CAA LL 3866, dated 7th April, 1977, for Rs.35,000 (Thirty-five thousand) only on Habib Bank Limited, Fish Harbour Branch in . your favour.
7. Please collect the amount and acknowledge the receipt.
8. Yours faithfully, (Sd.)
9. (MUHAMMAD AYUB)"
10. ' After reading the above document, I am in no doubt that the agreement of sale was cancelled by Muhammad Ayub only on 7-4-1977 when he sent the above letter to late Ghulam Ali Memon and, therefore, Late Ghulam Ali Memon shall be demanded to have notice of refusal to perform the contract by Ayub on the date he received the above letter. The period of 3 years prescribed for filing the present suit under Article 113 of Limitation Act, therefore, would run from the date when the above letter was received by Late Ghulam All Memon. The present suit as istituted on 11th March 1980, is therefore, within time. Issue No. 2 is accordingly answered in the negative.
11. ISSUE No. 3: ' The learned counsel is unable to point out any provisions of law under which letters of administration were required by the plaintiffs for institution of the present suit. This issue is also answered in the negative.
12. ISSUE No. 4: ' The defendants have not led any evidence on this issue nor any reason has been assigned which would entitle them to compensatory cost in the case. This issue is also accordingly answered/declined in the negative.
13. ISSUE No. 5: ' The burden of proving this issue is on the defendants. Late Muhammad Ayub died before he could be examined in the case. However, the counsel appearing for legal representatives of the deceased admitted the documents Exh.P.1 which is agreement of sale between the parties. Nothing has been stated in the evidence of defendants in support of the contention raised by Late Muhammad Ayub in his written statement that the agreement was signed by Muhammad Ayub as a result of any pursuasion by Ghulam Ali. The agreement is duly signed by Muhammad Ayub and is also confirmed by him in the letter Exh.P.7. Apart from it, in the letter Exh.P.8, dated 7th April, 1977 by which Muhammad Ayub had cancelled the agreement Exh.P.1 he did not allege that the agreement was brought about as a result of any misrepresentation on the part of Late Ghulam All Memon has gone wholly unsubstantiated and is contrary to the evidence on record. I accordingly answered this issue also in negative.
14. ISSUE No. 6: ' On this issue the defendants have not led any evidence. One of the defendants Muhammad Aslam who was examined in the case as Exh.7 nowhere alleged that his father was not paid the amount, mentioned in the agreement of sale. On the contrary in Exh.P.7 shows that the entire sale consideration was received by Ayub. This issue is accordingly also answered in the negative.
15. ISSUE No. 7: ' Paragraph 3 of the agreement Exh.P.1 produced in the case recites that the possession of the ground floor Bungalow was delivered to Ghulam Ali Memon in part performance of the agreement.
16. In the letter Exh.P.10 written by Muhammad Ayub to Ghulam Ali Memon, the former has admitted the payment of half share of Municipal Taxes of ground floor upto the assessment year 1973-79.
17. This evidence which is documentary has not been controverted by the defendants in any manner. I accordingly held that Late Ghulam All Memon and his heirs (plaintiffs) are holding the premises in part performance of the agreement of sale dated 28-6-1969.
18. ISSUE No. 8: ' The only point now remains to be decided in the case is, whether the plaintiffs are entitled to a decree of the specific performance. I have already held under the previous issue that the agreement was duly executed by the parties. The entire sale consideration has been paid and that Late Ghulam Ali Memon was put in possession of the premises in performance of this agreement of sale. In these circumstances a very heavy burden was cast on the respondents to establish circum stances which could persuade the Court to refuse specific performance. The plaintiff's predecessor having paid the entire consideration and having taken possession of the premises in persuance of the agreement of sale had fulfilled his part of the contract and he was not required under the agreement to do anything further. The default in completion of sale, if any, was on the part of defendants or their predecessors for which they cannot take any advantage. Mr. Inayat Ali, learned counsel for the defendants contended that because of inordinate delay on the part of Late Ghulam All Memon to enforce his right under the agreement, it will now prejudice the defendant greatly, as in the meantime the prices of the property in the locality have gone very high. The contention raised by the learned counsel for the defendant has not impressed me at all. There was no delay as such, on the part of the vendee in the present case as he was not required to do anything further, having paid the entire consideration and taken possession of the property in the part performance. All that was required on his part in these circumstances, to make a demand on the defendant to execute the sale-deed, which was made but the defendants, predecessor cancelled the agreement by latter, dated 7th April, 1977. The suit was brought within three years of the cancellation of the agreement by the legal representatives of deceased Ghulam Ali Memon.
19. The defendants have not been able to establish in the evidence anything to show that the delay, if any, amounted to a abondonment of contract or that they altered their position on account of delay which will now prejudice them. The fact that the prices of property have gone up has no bearing in the present case. I accordingly decree the suit of plaintiffs and direct the defendants to specifically perform the agreement of sale, dated 28-6-1969 by executing a valid and proper sale- deed in favour of the plaintiffs within one month from today failing which Nazir of this Court will execute the same on behalf of the defendants on usual terms. The defendants will also pay the costs of the suit.