S. RAHMAN, J.--Mst. Akhtar Begum, a subsequent vendee of to squares of agricultural land in Bahawalpur district was allowed leave to appeal on 15-6-1973 on the ground that: "Although the petitioner took legal objection before the High Court, namely, that the principles contained in section 41 of the Transfer of Property Act had no application to the present case the learned Judges of the High Court failed to notice the contention."
2. Wasiq Billa, the non-contesting defendant-respondent, was the owner of 36 squares of land in village Taller, Tehsil Hasilpur, jointly with his brothers. Abdul Aziz, the plaintiff respondent was a lessee of the land under him and under the contract of lease he was to hold it as such till 1965. On 8-9-1962 Wasiq Billa entered into a contract for the sale of to squares of land and executed an agreement in favour of Abdul Aziz. The land being un-partitioned particulars of the land to be sold were not provided. Two squares out of joint holding of 36 squares was to be sold for a sum of Rs.
20,000 and the vendor admitted the receipt of 10,000 towards its price. On 6-3-1963 the vendor approached the Patwari, specified with particularity the land sold, as in the meantime partition had taken place, admitted the receipt of the entire price and wanted that mutation be entered giving effect to the sale. The Patwari accordingly recorded a report in his Roznamcha, got it thumb- impressed from the vendor and then entered the mutation in the register to give effect to the sale.
On 5-7-1963 when the mutation came up for attestation before the revenue officer the vendor appeared and repudiated the sale on which the mutation was rejected and cancelled. On 25-7- 1963 the vendor sold the same land in favour of the appellant for a sum of Rs. 50,000. The mutation was entered and attested the same day.
3. Abdul Aziz, the plaintiff, instituted a suit and in the plaint after its amendment claimed that he had become owner of the land having purchased it from Wasiq Billa prior to the sale in favour of the appellant and having paid the entire price. As he was apprehending ouster from the land at the hands of the appellant he sought an injunction restraining her from interfering with his possession on the land. Both the defendants, the vendor and the appellant, filed written statements raising a number of objections to the claim, to the form of the suit and its merits. It was contended that the plaintiff should have sued for specific performance of agreement to sell. The vendor pleaded that he had agreed to sell but the price was different, that the plaintiff had himself backed out of the transaction that he had not gone to the Patwari, made the report or thumb-impressed it, and that he had returned the part price earlier received by him. The appellant contended that there was no agreement to sell, that the sale was inchoate as the property to be sold had not been specified in the agreement, that the possession of the plaintiff was as a lessee and not as a purchaser and that she was a bona fide purchaser without notice and was protected.
On the pleadings of the parties the trial Court framed the following issues:
(1) Whether the form of the suit is improper?
(2) Whether defendant No. 1, agreed to sell the suit land in favour of the plaintiff?
(3) Whether defendant No. 1, received an amount of Rs. 20,000 from the plaintiff?
(4) Whether the defendant No. 1, delivered possession of the suit land to the plaintiff under the sale?
(5) Whether the suit land was sold to defendant No. 2, with the consent of the plaintiff and whether the plaintiff is estopped to institute the suit by his conduct?
(6) Whether an amount has been returned to the plaintiff, if so, what is its effect?
(7) Whether the defendant No. 2, is a bona fide purchaser without notice and her rights are protected?
(8) Whether the valuation for purpose of court-fee and jurisdiction is incorrect, if so, what is the correct valuation?
(9) Whether the agreement to sell was vague and as such it is not enforceable in law?
(10) Whether the plaintiff is owner of the suit land?
(11) Relief.
4. The vendor, respondent No. 2, in this appeal took no further interest in the proceedings, which continued ex parte against him. The trial Court, however, examined him as a Court witness in the case.
5. The Senior Civil Judge who tried the case recorded the finding that the form of the suit was proper, that the agreement to sell dated 8-9-1962 was void for its vagueness but the agreement dated 6-3-1963 as incorporated in the report of the Patwari and thumb-impressed by the vendor was a "fresh agreement" and valid. The payment of the price evidenced by Exhs. P. 2 to P. 30 was held not established as these receipts were taken to be forged ones. Payment of a sum of Rs.5,000 alone was recognized, no portion of it having been repaid. It was held that transfer of possession under the sale did not take place. The valuation of the suit was held to be correct, the plaintiff was found not to be the owner of the land. After holding Wasiq Billa to be owner competent to sell it and the sale in favour of appellant valid the trial Court proceeded to decide issue No. 7 observing at the same the that "it does not appear to have arisen out of the facts so far proved."
This issue was taken to be concerned with section 41 of the Transfer of Property Act and after examining its provisions the following finding was recorded: "On applying a principle laid down in section 41 of the Transfer of Property Act , I am of the opinion that the .Sale of the suit land made by the defendant No. 1 in favour of defendant No. 2 cannot be adjudged as voidable on the ground that the transferor was not authorized to make it. The rights of the defendant No. 2 are protected."
6. In plaintiff's appeal before the District Judge the contest was confined to findings on issues 3, 7 and 10. The District Judge held that the receipts Exhs. P. 2 to P. 3 were proved in accordance with law and it was established that the full payment of the price of land had been made. Hence the plaintiff was held to have become owner of the land. As regards the application of section 41 of the Act the following finding was recorded: "In the first place section 41 of the Transfer of Property Act does not apply to the former Bahawalpur State area. It is only sections 54 and 53-A which have application to this area. But even if the principle contained in this section is tried to be applied, it would be seen that they have no application to the present case. This section presupposes that there is ostensible owner different from the actual owner, that the ostensible owner acts with the consent, express or implied, of the actual owner and thirdly that the transfer by such ostensible owner is made in good faith. In the present case the sale had been made by the actual owner himself. The question of the application of the principle contained in section 41 of Transfer of Property Act does not arise."
The District Judge thereafter recorded the finding on issue No. 7 in the following words: "The haste in which all this was done is rather unusual, respondent No. 1 did not tell anything to respondent No. 2 about the previous agreement of sale with the appellant. The attorney, and the husband of respondent No. 2 also did not take any steps to find out if the land being purchased by him was free of all encumbrances. He did not at upon the age old dictum of the civil law that "buyer beware".
Finally on issue No. 10 it was held that: "I have no reason to hold that the sale transaction of the suit land in favour of the appellant had been completed by 6th March, 1963 notwithstanding the rejection of the mutation by Tehsildar."
The appeal was accepted and the suit was decreed for the declaration prayed for.
7. In her memo of appeal before the High Court, apart from disputing the factual finding with regard to the payment of balance price, the following objection was taken concerning section 41 of the Transfer of Property Act: "The learned District Judge has committed an error in law when he held "that the principles contained in section 41 of the Transfer of Property Act have no application to the present case."
From the relevant portion of the judgment it can be easily gathered that his notion about the ingredients of section 41 is not sustainable in law. The learned District Judge ignored that even if it be assumed that the plaintiff became the owner and had any interest in the land in dispute, he was estopped from challenging the transaction made by defendant No. 1 in favour of defendant No. 2 when by his conduct he had allowed the defendant No. 1 to remain and continue as the ostensible owner by not getting the sale-deed registered (as was provided in the agreement of sale Exh.P. 34) and by not filing an appeal against the rejection of mutation in his favour which amounts in law as implied consent."
8. The High Court in disposing of the second appeal in limine took note of only one argument advanced and that was whether or not the plaintiff was in possession of the land in dispute as owner. The High Court affirmed that the possession of Abdul Aziz was as an owner and though no mutation was attested, the price had been paid and there was the signed statement of the vendor in the Rozenamcha of the Patwari.
9. In her petition for leave to appeal in was stated by the appellant that "as the petitioner had purchased the land for consideration (which fact is not disputed) in good faith from the ostensible owner (in every sense of the word having all the indicia of ownership) the principles contained in section 41 of the Transfer of Property Act could well be invoked to protect the rights of the petitioner in the sale."
10. All the Courts dealing with the case so far have held that principles of section 41 of Transfer of Property Act were not directly applicable, the reason being that the sale in favour of the appellant had taken place at the instance of the true owner (Wasiq Billa) and not an ostensible owner. As it clearly appears from the recital of facts in preceding paragraphs, it was the appellant who invoked the provisions of section 41 of Transfer of Property Act. It was a misconceived ground. The appeal before us has been argued by reference to provisions of sections 53-A of the Transfer of Property Act which alone was attracted to the case and was so reflected by issues 3, 4 and 7. It appears that the framing of issue No. 10 and the implied finding thereon partly accounted for such a misconception.
11. Section 53-A of the Transfer of Property Act gives a statutory form to the English equitable doctrine of part performance and makes it a part of the substantive law of the land. This section and section 54 of the Act had been applied to the Bahawalpur District. The effect of the application of section 54 of the Transfer of Property Act was that sale of land of the value of more than one hundred rupees could take place only by an instrument in writing and registered in accordance with law. The sale pleaded by the plaintiff-respondent not satisfying the requirements of this section could not confer unqualified title as owner on him. He could not claim unqualified rights of ownership merely by pleading and proving compliance with section 53-A of the Act ignoring altogether provisions of section 54.
12. In the case of S.N. Banerji and another v. Kuchwar Lime and Stone Co. Ltd. (in Liquidation) and another AIR 1941 P C 128 the Privy Council held that: "the words of section make it quite plain that the section does not operate to create a form of transfer of property which is exempt from registration. It creates no real right; it merely creates rights of estoppel between the proposed transferee and transferor, which have no operation against third persons not claiming under those persons."
13. In another case of Probodh Kumar Dass and others v. Dantmara Tea Co. Ltd. And others AIR 1940 P C 1 like the plaintiff-respondent of this appeal, the appellants before their Lordships of the Privy Council "contended that, notwithstanding that they had not chosen to sue for specific performance of the contract of 10th October, 1931 and notwithstanding that they had taken no steps to, complete their title they were nevertheless entitled under section 53-A actively to assert the rights of a proprietor in virtue of the contract of 10th October, 1931 and their possession." Their Lordships rejected this contention observing: "the amendment of the law effected by the enactment of section 53-A conferred no right of action on a transferee in possession under an unregistered contract of sale--the section is so framed as to impose a statutory bar, on the transferor; it confers no active title on the transferee. Indeed any other reading of it would make a serious inroad on the whole scheme of the Transfer of Property Act."
14. This Court examined the question in a different context in Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 and held that though a sale in violation of section 54 of the Transfer of Property Act "is not altogether void" yet the interest acquired under such a sale as inchoate and imperfect and "even such an imperfect transaction will give rise to equities in favour of the buyer."
In another case, Inayatullah and others v. Shah Muhammad and others PLD 1961 Lah. 372 the vendee came as plaintiff, sought specific performance of an unregistered contract of sale partly performed. His claim to get the contract specifically performed was resisted on to grounds, the first being that he could, if at all, protect his interest under section 53-A of the Transfer of Property Act as a defendant and could not come to Court as plaintiff. Secondly, it was said that in the absence of registration of the agreement to sell, notwithstanding its part performance, he acquired no enforcible right. Reliance was placed for these submissions on the decision of the Privy Council in case of Probodh Kumar Das. Both these contentions were repelled with by the Division Bench observing as follows:-- "It would be rather anamolous if the position of a transferee in a suit, i.e. Whether he has come to Court as a plaintiff or as a defendant should determine whether he should be accorded recognition of his rights and if he were a plaintiff he should fail but if he raised precisely the same plea if he were a defendant he should succeed. I am of the view that when a transferee by means of a document which has not been registered, though under the law that document was compulsorily registrable, comes to Court as a plaintiff and bases his claim on part performance, of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the title of anyone else. The decision of their Lordships of the Privy Council in Probodh Kumar Dass v. Dantamara Tea Co. Was, therefore, of no avail to defendants Nos. 2 to 9."
In the case of Pakistan Employees Co-operative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar.. 474 another Division Bench affirmed the enforcement of rights under an unregistered agreement partly performed by plaintiff.
The upshot is that in such a case, on other conditions being satisfied the plaintiff can be granted the declaration that the plaintiff is in possession of the property under an enforcible contract of sale in his favour and that defendants Nos. 1 and 2, and persons claiming under them are restrained from interfering with their possession.
15. The learned counsel for the appellant has strenuously challenged the satisfaction of conditions prescribed under section 53-A to entitle the plaintiff-respondent to successfully claim the protection there under. His submissions are the following:
(i) The contract dated 8-9-1962 was at all times unenforcible, incapable of conferring any right whatsoever on the plaintiff because the property to be sold was not specified with particularity.
What was agreed to be sold was to squares out of 36 squares of joint agricultural holding.
(ii) The report made to the Patwari on 6th March, 1963 by the owner specifying the land sold was a unilateral document which could not even if accepted be assimilated to or considered a part of the earlier document so as to make up its deficiency and to put life into it.
(i.e) The plaintiff-respondent was already in possession of the land as a lessee and was to hold it as such till 1965. He could not therefore claim to have continued in possession before 1965 in part performance of the contract.
(iv) Continuance of possession in part performance of the contract in order to qualify for protection under section 53-A of the Transfer of Property Act must be contemporaneous with the contract and should not follow long after the contract, or precede it.
(v) The plaintiff being already in possession was required to do "some at in furtherance of the contract" and there was nothing that the plaintiff did after the contract in furtherance of the contract.
(vi) The appellant was a transferee for consideration who had no notice of the contract of the part performance thereof.
16. The trial Court after noting the first objection dealt with it as under- ---However, on 6-3-1963 Wasiq Billa made a report to the Patwari that he sold the suit land in favour of the plaintiff for a sum of Rs.20,000. This statement was duly entered in the Roznamcha of the Patwari. This statement amounts to afresh agreement to sell. In this agreement it was clearly specified as to what particular Khasra Numbers were being sold. The second agreement which was made on 6-3-1963 was valid."
17. No other Court dealing with the case attended specifically to this question, viz. The validity and completeness of the writing Exh.P04 for the purposes of section 53-A of the Transfer of Property Act.
18. In the context of the first to objections of the learned counsel for the appellant the requirements of section 53-A relevant are (i) there should be a contract to transfer, (ii) from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. The submissions of the learned counsel are directed to establish that both these requirements remained unsatisfied. A contract which is incomplete, vague, incapable of identifying the subject-matter of sale cannot, according to him, qualify as a contract at all. Even if it does, the terms necessary to constitute the transfer cannot be ascertained with reasonable certainty and hence the protection sought for must be denied.
19. The argument Exh.P.34 qualifies as a contract of sale notwithstanding the latent ambiguity of language to this limited extent because the deficiency could be supplied under section 96 of the Evidence Act by extrinsic evidence. The question, how far and with what effect, the writing referred to in this section can be proved is to be decide by the procedural law, and not independently. The subsequent signed statement (Exh.P.1) of the owner supplied the requisite detail and served as an aid to the interpretation and application of document Exh.P.34 without detracting from its effectiveness as a contract of sale.
20. As regards the transfer of possession, it was not to take place, immediately on execution of the contract Exh.P.34. As a matter of fact the parties provided for the payment of price and the registration of the sale-deed within a month thereafter. The payment was, according to the finding of the first appellate Court made and thereafter possession also delivered as per statement (Exh.P.1) of the vendor. The payment was unequivocally shown to be in furtherance of the contract of sale. This fact is borne out from the recital of every receipt which refers to this contract and finally from the endorsement dated 24-11-1962 recorded on the, contract for sale itself to that effect. This evidence coupled with transfer of possession in Rabi 1963 under the sale and as a purchaser satisfied the requirements of section 53-A of continuance "in possession in part performance of the contract". The test is not contemporaneous change in the character of possession or a lateral compliance but change referable to the contract and contract alone, excluding other arrangements and substantial compliance with its terms.
21. The finding of fact recorded by the first Appellate Court was that the purchase by the appellant smacked "of suspicion", as the "haste in which all this was done is rather unusual" and the appellant "did not at upon the age old dictum of civil law that "buyer beware". The benefit of proviso was therefore denied to her. Before the proviso is applied to the appellant she had to show that she was a "transferee". The alleged sale in her favour being in violation of section 54 of the Transfer of Property Act, she could not claim any right or status as a transferee. This was an additional ground for rejecting her claim under the proviso.
22. This appeal is allowed only to the extent of slight modification in relief. The plaintiff respondent is declared to be in possession of the suit property under an enforcible contract of sale in his favour and that defendants Nos. 1 and 2 and persons claiming under them are restrained from interfering with his rights. In the circumstances of the case respondent No. 2 shall bear the costs of both the contesting parties throughout.