1. NASIM HASAN SHAH, J.--This judgment will dispose of Civil Appeal No.82 of 1981 and Civil Appeal No.220 of 1985, which have been heard together.
2. The relevant facts are that one Siraj Din, father of Mst. Saeeda Akhtar and Mst. Nasreen Akhtar (appellants in Civil Appeal No.220 of 1985 and respondents Nos.5 and 6 in Civil Appeal No.82 of 1981), had borrowed a sum of Rs.80,000 from certain persons and to assure payment had executed in their favour two promissory notes in the sum of Rs.40,000 each. The payees endorsed the promissory notes for valuable consideration in favour of Ch. Lal Din (since dead and now represented by respondents Nos.1 to 9 in Civil Appeal No.220 of 1985, who are appellants in Civil Appeal No. 82 of 1981). As holder of the two promissory notes Ch. Lal Din brought two suits for the recovery of Rs.42,400 each against Siraj Din. During the pendency of the suits an order of interim injunction restraining Siraj Din from alienating his land was passed but despite the said order he proceeded to execute a registered sale-deed on 11-6-1964 transferring all his agricultural land measuring 681 Kanals (situated in village Muhammad Sultanabad, Tehsil and District Lahore) in favour of his two daughters Mst. Saeeda Akhtar and Mst. Nasreen Akhtar whereupon Ch. Lal Din moved the Court for taking action against Siraj Din for violating the restraining order. In order to avoid the consequences of his disobedience of the Court's order and presumably also to placate Ch. Lal Din he made an agreement with Ch. Lal Din and entered into a compromise with him. In the agreement of compromise, which was reduced into writing Ch. Siraj Din admitted that the sum of Rs.80,000 was due from him and he agreed to discharge this obligation by transferring one square of this land to him. The land was valued at Rs.95,000 and the excess of Rs.15,000 was to be given by Ch. Lal Din to him at the time of registration of the sale-deed. In the compromise agreement, however, the fact that he had already transferred his land to his two daughters (Mst. Saeeda Akhtar and Mst. Nasreen Akhtar) was clearly mentioned but it was averred that he (Siraj Din) would be responsible for having the sale-deed executed on their behalf, failing which Ch. Lal Din would have the right to file a suit for specific performance. It was also mentioned in the compromise agreement that if Ch. Lai Din refused to accept the land as aforesaid, in satisfaction of the decree, he would only be entitled to recover Rs.40,000 and the balance would be treated as forfeited earnest money but that if, on the other hand; the land was not transferred in his favour on account of Ch. Siraj Din's backing out of this agreement, Ch. Lai Din would be entitled to recover Rs.80,000 through execution of the decree. Both the suits were decreed in terms of the above compromise on 25-2-1965.
3. However, despite the above compromise and the decree following it Siraj Din failed to take any step to implement it. Neither any sale-deed was got executed in favour of Ch. Lai Din nor was he paid any money in satisfaction of the decree though he was requesting Ch. Siraj Din orally and by sending written notices to do the needful. Consequently, Ch. Lai Din moved the Executing Court for execution of the two decrees which were passed against Ch. Siraj Din and these execution applications are still pending in the Court of the Senior Civil Judge, Lahore.
4. During the pendency of the above suit Ch. Lai Din also filed another suit on 14-10-1967 against Ch. Siraj Din and Mst. Saeeda Akhtar and Nasreen Akhtar for possession of the one square of land which was agreed to be sold in terms of the deed of compromise dated 25-2-1965, which was executed between the parties in the two money suits mentioned earlier by specific performance of the said agreement. The precise prayer of the plaintiff (Ch. Lai Din) in this suit was for grant of a decree against the defendants for possession by specific performance of the agreement of the land measuring 201 Kanals 15 Marlas (one square of land under cultivation contiguous to his garden comprising:-
(a) Khata No.7, Khatuni No.15, Khasra Nos.119 to 150, in all 32 fields, measuring 193 Kanals 15 Marlas; and
(b) Khata No.6, Khatuni No.12, Khasra No.34 measuring 8 Kanals situated in the estate of Muhammad Sultanabad, Tehsil and District Lahore according to the Jamabandi for the year 1965.
(1) Whether the suit of the plaintiff is not maintainable as he has included in the suit land which was not the subject-matter of the compromise between the parties?
(7) Whether the plaintiff is entitled to specific performance of the agreement of sale-deed dated 25-2-1965?
(8) Whether the sale in favour of defendants Nos. 5 and 6 by deceased Siraj Din is fictitious, fraudulent and without consideration.? O. P. D.
5. The trial Court decided all the eight issues in favour of Ch. Lai Din including the abovementioned three issues. On Issue No.1 it was held that the land which was agreed to be sold was the same for which the respondent No.1 had filed the suit. On Issue No.7 the finding of the trial Court was that Ch. Lai Din was ready and willing to perform his part of the contract and that there was no difficulty in identifying the land agreed to be sold and hence he was entitled to specific performance of the agreement. It was also held that the sale in favour of Mst. Saeeda Akhtar and Nasreen Akhtar was fictitious, fraudulent and without consideration and, therefore, it was void. Ch. Lai Din, accordingly, was not prevented from seeking specific performance of the contract. The suit was, therefore, decreed on 14-5-1977.
6. As for the suit filed under section 53 of the Transfer of Property Act is concerned, wherein it was prayed that a declaration be granted that the sale made by Ch. Siraj Din in favour of his two daughters Mst. Saeeda and Nasreen was fraudulent, without consideration and made to defeat his creditors and was, therefore, of no legal effect as against Ch. Lai Din and the other creditors of Ch. Siraj Din, this suit too was decreed on 16-10-1974.
7. Mst. Saeeda Akhtar and Nasreen Akhtar challenged the decree in the last mentioned suit by an appeal to the Lahore High Court (R.F.A.No.82 of 1974). Similarly the decree passed in the other suit for specific performance of the agreement to sell embodied in the compromise deed, which was decreed on 14-5-1977, was also challenged by Mst. Saeeda and Nasreen by filing an appeal before the Lahore High Court R . F . A . No.108 of 1977 Both the abovementioned appeals, namely, R.F.A. No.82 of 1974 and R.F.A. No.108 of 1977 were heard together by a Division Bench of the Lahore High Court but were disposed of by separate judgments dated 29-3-1981. The learned Judges of the High Court were pleased to dismiss the appeal of Mst.
8. Saeeda and Nasreen directed against the decree passed in the declaratory suit filed by Ch. Lai Din under section 53 of the Transfer of Property Act. (R.F.A. No.82 of 1974) holding that the sale of the land in favour of Mst. Saeeda and Nasreen by Ch. Siraj Din was indeed fraudulent and without consideration and had been made to defeat his creditors. However the other appeal, namely R . F .
9. A . No.108 of 1977 directed against the decree passed for possession through specific performance of the agreement to sell embodied in the compromise deed was allowed.
10. Mst. Saeeda and Nasreen feeling aggrieved by the rejection of their appeal (R.F.A. No.82 of 1974) moved this Court seeking leave to appeal against the judgment and decree passed against them in R.F.A. No.82 of 1974 (C.P.S. L.A.No.732 of 1981), while the heirs of Ch. Lai Din feeling aggrieved by the judgment of the High Court passed in R.F.A.No.108 of 1977 challenged the same by filing a direct appeal (Civil Appeal No.82 of 1981) under Article 185(2)(d) of the Constitution in this Court.
11. Leave having been granted by this Court on 1-7-1985 in Civil Petition No.732 of 1981 (and assigned the number Civil Appeal No.220 of 1985), both the appeals namely, Civil appeal No.82 of 1981 and Civil Appeal No.220 of 1985 have been heard together by this Court.
12. The learned Judges of the High Court in allowing the appeal of Mst. Saeeda and Nasreen (R.F.A.No.108 of 1977) were of the opinion that the decision of the trial Court on Issues Nos. l and 7 was not correct mainly because of the uncertainty surrounding the land sought to be transferred to Ch. Lal Din under the compromise agreement. According to the learned Judges of the High Court one square of land had been agreed to be sold by Ch. Siraj Din in favour of Ch. Lal Din but the land in question had not been specified with exactitude in the deed of compromise. Thus, in view of this uncertainty the said agreement was not capable of being enforced specifically. In this connection, it was observed that the agreement did not specify the Khasra numbers of the land agreed to be sold but merely said that the land measuring one square of cultivable land adjacent to the orchard of Ch.Lal Din was to be sold and added that if the cultivable area was less than one square, the adjacent land will be included so as to make it one square. In the Aks Shajra Exh.D/4 placed by Ch. Lal Din on the record the land in dispute was marked as Exh.D.4/4 but the aforesaid land, marked as D.W./4 did not correspond with the description of the-land agreed to be transferred as per the recitals contained in the compromise agreement. It was further noted that the suit was instituted in respect -;f 201 Kanals 15 Marlas of land; one Kanal 15 Marlas in excess of one square, which had been agreed to be sold. The Court also observed that while the land in suit was indicated in the Aks Shajra to be in two parcels; in the agreement of compromise it was stated that if the cultivated land was less than one square the adjacent barren land would be included so as to make one square. However, as the main portion of the land was less than one square (being 193 Kanals 15 Marlas) the plaintiff for making up the deficiency was trying to utilise Khasra No.34, which was located at some distance from the remaining suit land for this purpose. But this could not be accepted as Khasra No.34 was not adjacent to it but situated at quite some distance from the main portion of the suit land and did not match the recital contained in the agreement that the land which may be utilised to make up the deficiency would be the "adjacent Banjar land". In fact the land sought to be utilised was neither adjacent (banjar) nor Banjar. Furthermore, the main portion of the suit land was also not adjacent to any land of Ch. Lal Din, much less his land which was under an orchard. Consequently, most of the attributes mentioned in the agreement with regard to the land agreed to be sold were missing in the suit land. Accordingly, it was not established that the land in the suit was indeed the land agreed to be sold by Ch. Siraj Din to Ch. Lal Din. Wherefore, Issues Nos.1 and 7 were decided against him. In view of the aforesaid finding on the said issues the appeal of Mst. Saeeda and Nasreen (R.F.A. No.108 of 1977) was accepted.
13. So far as the other appeal, namely R.F.A. No.82 of 1974 is concerned, the learned Judges expressed the opinion that Ch. Siraj Din had conveyed the land in dispute to Mst. Saeeda Akhtar and Mst.
14. Nasreen Akhtar with the objective of defeating his creditor, namely, Ch. Lal Din and further that the sale transaction in their favour was without consideration. The decree of the trial Court passed in favour of Ch. Lal Din, as a result of this finding, was upheld and appeal R.F.A. No.82 of 1974 of Mst.
15. Saeeda and Nasreen, accordingly, dismissed.
16. We have heard Mr. A.R.Sheikh, in support of Civil Appeal No.82 of 1981 directed against the judgment passed by the High Court in R.F.A.No.108 of 1977 filed by the heirs of Ch. Lal Din as also Mr. S. M. Zafar on behalf of the respondents in this appeal. The latter has also been heard in support of Civil Appeal No.220 of 1985 filed` by Mst. Saeeda Akhtar and Mst. Nasreen Akhtar directed against the judgment passed in R.F.A.No.82 of 1974 while Mr.A.R.Sheikh was heard in reply herein.
17. We regret that we cannot agree. Apart from the fact that the learned counsel has not been able to demonstrate any error in the reasons given by the learned Judges which supported their finding that the suit land did not correspond with the description of the land given in the compromise agreement we ourselves have closely examined the Aks Shajra and also very carefully perused all the relevant evidence on this point. To us, after reading all the relevant evidence together the land covered by the terms of the compromise agreement looks to be not the land marked as D.W.4/4 in the Aks Shajra, but the other piece of land marked therein as D.W.4/5. But in any case, we are entirely satisfied that the finding of the learned Judges of the High Court tot the effect that the identity of the land agreed to be sold cannot be ascertained with certainly from the terms of the compromise deed as clearly correct and that, therefore, in a case of this kind no decree for specific performance could be granted. The appeal (Civil Appeal No.82 of 1981) must, accordingly, fail.
18. As for the other appeal (Civil Appeal No.220 of 1985) we note that Mst. Saeeda Akhtar and Nasreen Akhtar had, during the pendency of the appeal filed by them in the High Court (R.F.A.No.82 of 1974), submitted an application under section 151, C.P.C. Stating that with a view to curtailing the litigation between the parties they, as successors--in-interest of the deceased Ch. Siraj Din, without prejudice to their rights, were prepared to pay the sum of Rs.80,000 to Ch. Lal Din in cash before the High Court towards liquidating the original debt and were also prepared to pay the costs of the previous suit as well as such other sums that might be found due to the respondent /creditor in full and final satisfaction of his claim under the said decree. However, the offer was not accepted by Ch. Lal Din or his heirs and even the High Court has not adverted to this aspect in its judgment. The submission of the learned counsel for the appellants is that if the debtor or the alienee is ready at any stage to pay the debts due to the creditors then the suit under section 53 of the Transfer of Property Act cannot be decreed. Furthermore, if the creditors refuse to accept, the amount due to them on tender either by the debtor-alienor or the alienee, as the case may be, then the creditors have no right to ask for a decree for setting aside the registered sale-deed dated 11-6-1964, or for any other purpose.
19. We find force in this submission.
20. The appellants having offered to satisfy the debt in question in its entirety no question of granting a declaration arose in the circumstances of the case that the transfer of the land in question was fraudulent etc. The decrees passed in favour of the appellant could be satisfied in their entirety by the offer made before the High Court and repeated before us. The High Court has overlooked this fundamental aspect of the case, wherefore, its judgment is unsustainable in law.
21. Moreover, the validity of the sale-deed dated 11-6-1964 in favour of Mst. Saeeda Akhtar and Nasreen Akhtar was not challenged by any, separate suit. The aforesaid sale-deed could not be frustrated by simply asserting that it was without consideration, false and fictitious without filing a regular suit seeking a declaration to this effect. Accordingly, the High Court erred in holding that the sale made in favour of Mst. Saeeda and Nasreen could be declared to be void and of no legal effect and indirectly it set aside in pursuance of the suit filed under section 1 53 of the Transfer of Property Act.
22. We would, accordingly, allow this appeal and set aside the judgments of the Courts below.
23. The result is that Civil Appeal No.82 of 1981 is dismissed with costs, while Civil Appeal No.220 of 1985 is allowed with costs.