1. ' This revision application is directed against the two concurrent judgments of the Courts below whereby a suit for specific performance filed by respondent No. 1 against the petitioner and respondent No. 2 was decreed by the Court.
2. ' Respondent No. 1 filed a suit for specific performance of agreement of sale in respect of property bearing No. B-2248/1A, 1B, 2 and 3 and B-2251/1A, 1B, and 1C situated at Kati Bazar, Bagh Hayat Ali Shah, Sukkur. It was alleged in the suit that respondent No. 1 entered into an agreement of sale with deceased Haji Allah Bux alias Hira to purchase the above property for a sum of Rs.31,000 on 12-12- 1974 and out of this amount he paid a sum of Rs.26,000 to the deceased and balance was to be paid at the time of registration and execution of the final sale-deed. It was alleged in the plaint that Haji Allah Bux died at Sukkur on 7-6-1975 namely, after about 6 months of the execution of the sale agreement and thereafter the petitioner and respondent No.2 who are the legal heirs of the deceased Haji Allah Bux refused to convey the property in favour of respondent No.1 whereupon he instituted Suit No. 141/75. It may be mentioned here that respondent No.1 is the grandson of Haji Allah Bux while the petitioner and respondent No. 2 are the daughter and son of late Haji Allah Bux respectively. The suit was contested only by the petitioner in which she stated that the agreement of sale relied by the respondent No. 1 was a forged document and and it did not bear the signature of late Haji Allah Bux. On the basis of the controversy between the parties the trial Court framed the following issues:-- '(1) Whether the plaintiff purchased the property in suit from Haji Allah Bux under agreement, dated 12-12-1974 for Rs.31,000? If so, what are its condonations?
(2) Whether an amount of Rs.26,000 was paid to the seller as earnest money?
(3) Whether the possession of the premises was delivered to the plaintiff?
(4) Whether the agreement of sale is bogus and forged and the same has been prepared with co- operation of the witnesses and defendant No. 1?
(5) Whether the defendant No. 2 is in possession on the property? If so, what is its effect?
(6) Whether the suit is not maintainable under the law?
(7) What should the decree be?"
3. ' Issues Nos. 1, 2 and 4 which were interconnected were discussed together by the trial Court and on the basis of evidence produced before the learned Judge the Court came to the conclusion that there was a valid agreement of sale between respondent No. 1 and late Haji Allah Bux and that a sum of Rs.26,000 was paid to him under that agreement. On issues 3 and 5 the trial Court came to the conclusion that except a small portion of the property which was occupied by the petitioner rest of the property was delivered to the plaintiff in pursuance of the agreement of sale. Issue No. 6 was not pressed before the Court and in consequence of the above findings on issues Nos. 1 to 5 the suit for specific performance was decreed and the petitioner and respondent No. 2 were directed to execute the proper sale-deed in favour of respondent No. 1 in respect of the suit property. The judgment and decree of the trial Court was challenged before the first appellate Court but the learned IIrd Additional District Judge who disposed of the appeal agreed with the conclusion and findings of the learned trial Court and confirmed the decree. The learned counsel for the petitioner has raised two-fold contentions before me in this revision application. It is firstly contended by the learned counsel that the evidence on the record did not satisfactorily prove any agreement of sale between respondent No. 1 and Haji Allah Bux alias Hira and the evidence and circumstances in the case proved that the agreement of sale relied by respondent No. 1 was a forged and fictitious document. The second contention of the learned counsel for the petitioner is that even if it is held that there was an agreement between respondent No. 1 and late Haji Allah Bux it was inequitable to grant a decree of the specific performance in the case as the property was sold for a consideration which was highly inadequate. None of the above contentions raised by the learned counsel for the petitioner finds support from the evidence on record. The respondent No. 1 in order to prove the agreement of sale examined himself and the two attesting witnesses of the document. The respondent No. 1 in his evidence categorically said that the agreement was executed between him and late Haji Allah Bux and that he paid the amount in pursuance of the agreement and was put in possession of the property. He also categorically stated that the agreement was duly thumb-marked by late Haji Allah Bux in his presence. The two attesting witnesses of the agreement examined by the respondent No. 1 fully supported the above stand of the respondent No. 1 and they categorically stated that Haji Allah Bux in their presence executed the agreement of sale. The contention of the learned counsel for the petitioner before me is that since witness who had written document was not examined before the trial Court, therefore, the document was not proved and consequently it could not be relied on by the trial Court. The contention was raised by the trial Court as well as before the first appellate Court and for very valid reasons it has been repelled by both the Courts below. The learned counsel for the petitioner has failed to cite any precedent or law which required that the person who wrote the document is a necessary witness to prove the execution of the document. I, therefore, find no force in the first submission of the learned counsel for the petitioner. It is next contended by the learned counsel that the agreement is written on a stamp paper which was discontinued at the time and the date on which the document was written and, therefore, it should have been held that the document was a fabrication and forgery. This contention was also examined by the trial Court and for very valid reasons it was repelled. The learned counsel is unable to advance any argument to persuade me to hold contrary in this behalf. The last contention of the learned counsel in the case, which is very vehemently pressed before me is that the two Courts below failed to take into consideration that the enforcement of agreement of sale is highly inequitable in the circumstances of the present case as the consideration for which it was being allegedly sold to respondent No.1 was highly inadequate and, therefore, the Courts below should have refused to grant specific performance in the present case. This contention of the learned counsel is equally without any force. The contention regarding inadequacy of the consideration was never raised in the written statement and, therefore, it was not open to be pressed at the trial of the suit. However, it appears that the ground of inadequacy of the consideration was introduced by the petitioner at the stage when the evidence was recorded in the suit. Novertheless, both the Courts below considered this aspect of the case although it was not raised specifically in the written statement of the petitioner, and repelled it. The contention of- the learned counsel for the petitioner is that the value of the property at the time it was allegedly sold to respondent No. 1 by late Haji Allah Bux was in the vicinity of four lac rupees whereas the property is shown to have been sold to respondent No. 1 for Rs.31,000. It cannot be ignored in the present case that respondent No. 1 was a grandson of late Haji Allah Bux and he was also for some time associated with him in the business. Apart from it mere inadequacy of consideration has never been a ground refusing specific performance of the contract in respect of immovable properties unless the inadequacy is shown to be such which would shock the conscience of the Court while decreeing the suit for specific performance. In the case of All Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170 a Division Bench of this Court while considering the contention with regard to inadequacy of consideration held as follows:-- "The contention of the appellant that the price was inadequate has to be considered by looking into all the facts and circum stances of the present case. The agreement was entered into in the year 1961 for Rs.50,000. The transfer value of the property in PTD has been shown as Rs.18,000. The Excise and Taxation Authority while assessing the property has termed its condition as poor. D.W. 2 an estate broker, has stated that in 1961 he had communicated an offer of Rs.1,50,000. However, on his own admission in 1961 he was a young boy studying in Class VIII, and therefore, no reliance can be placed upon his statement. Further the register said to contain the offer made to appellant maintained by his employer was not produced. No evidence was produced to show the price of similar property in the same locality. The evidence on record does not prove inadequacy of consideration at the time of agreement. The inadequacy of price can hardly be a ground for refusing specific performance. In the case of Manakchand v. Purna AIR 1960 Madh. Pra. 235, it was held that where the price is so grossly inadequate as to shock the conscience of the Court and either by itself or in connection with other circumstances such as illiteracy, oppression, etc. it evidences fraud, or that undue advantage was taken by the other side, the Court will refuse specific performance. At this stage we would refer to the following observation of Sir Edward Fry in his book A Treatise on Specific Performance of Contracts" at page 210: ....Inadequacy of consideration, if only amounting to hardship or even great hardship, is no ground for relieving a man 'from a contract which he has wittingly and willingly entered into', but that it may be so enormously great as to be a conclusive evidence of fraud and that it is then a ground for setting aside the transaction effected by it."
4. ' Referring to the case of in Cloes v. Trecothic 9 Ves. 246 Fry has relied upon the following passage of the judgment of Lord Eldon: "Unless the inadequacy of price is such as shocks the conscience and amounts itself to conclusive and decisive evidence of fraud in the transaction it is not itself a sufficient ground for refusing a specific performance."
5. ' From the above-quoted passage it is quite clear that mere inadequacy of consideration in a transaction relating to sale of immovable property has never been a ground for refusing specific performance of contract unless there is evidence to show that there was fraud and misrepresentation on the part of the plaintiff which induced the defendant to enter into a contract for sale or there are certain circumstances under which the plaintiff took an improper advantage of his position or the difficulties of the defendant making him victim of his imposition. It is only in those circumstances that inadequacy of consideration could be a ground for refusing specific performance. Neither any such case was pleaded before the trial Court by the petitioner nor any evidence to that effect was brought on record. The learned counsel for petitioner referred to some of the witnesses who were examined by the petitioner before the trial Court to prove that the consideration for which the property was sold was not adequate but the evidence in this behalf has been properly analysed both by the trial Court as well as by the first appellate Court and no ground has been made out for interference in the revision with the concurrent findings of two Courts below. The conclusion of Courts below are neither perverse nor contrary to the evidence on record. The learned counsel for the petitioner has relied on the case of Babu Ram v. Ram Charan AIR 1934 All. 1023 to contend that a contract in the nature of champerty cannot be specifically enforced but that case is of no assistance to the learned counsel in the present case as such question' is involved here. The learned counsel for the petitioner also relied on the commentary by Chitty on Contracts and specifically referred to paragraph 146 at page 71 and paragraph 1650 at page 784 of the book but in my opinion the aforesaid observation of the learned author are of no assistance in the present case as on the same page there are observations to the effect that inadequacy of the consideration alone is not a valid ground for refusing specific performance of a contract relating to an immovable property. In view of the above discussion no case is made out for interference with the judgment and decree of the two Courts below and I accordingly dismiss the revision application but leave the parties to bear their respective costs.