1. ' This is a suit for specific performance, declaration and permanent injunction.
2. ' Case of the plaintiff is that Mst. Sherbano had constructed a building comprising of four flats known as `Falak Numa'. She gifted one flat each to her four sons, namely plaintiff Muhammad Farouk Dossa, predecessor-in-interest of the Defendants, Muhammad Hussain Dossa, Nisar Dossa and Aziz Dossa Muhammad Hussain Dossa transferred the ownership of his flat to his wife ' Defendant No, 1 and daughters Defendants Nos.2 and 3. In 1970 the Defendants vacated their flat and handed over its possession to the plaintiff, who stored his furniture and fittings therein. On 20- 11-1986, Muhammad Hussain Dossa, by a letter made an offer to Nisar Dossa, Aziz Dossa and the plaintiff to sell the flat to them, on he half of the Defendants for Rs, 12,50,000. The plaintiff accepted the said offer on 9-12-1986 and sent a cheque of Rs, 50,000 as part payment. The Defendants first demanded 10% as earnest money, whereupon the plaintiff sent another cheque of Rs, 75,000.
3. Thereupon the Defendants objected to the nomination of Ismail son of plaintiff as seller, whereupon the plaintiff withdrew that nomination and asked the Defendants to execute Sale-Deed in his favour. On this the Defendants kept quiet and did not make any reply in spite of repeated letters and the notices of the plaintiff's Advocate. Hence this suit.
4. ' By order dated 21-1-1987 this Court called upon the plaintiff to deposit the balance of sale consideration amounting to Rs, 11,25,000 in Court the compliance whereof was made on 26-1-1987.
5. ' The defendants filed written-statement, wherein they denied that they had delivered the possession of the flat to the plaintiff in 1970, while shifting therefrom. They have alleged that they had vacated the flat in August, 1975, but have never delivered possession to the plaintiff. The fact of the matter was that a few articles of the Defendants were lying in the flat under their own lock and key and the Defendants and Muhammad Hussain Dossa were regularly visiting this flat. However, some time ago the Defendants had allowed, the plaintiff and-his brother Nisar Dossa to keep some loose pieces of their furniture in a room of the said flat. It is admitted that an offer was given to the plaintiff and his brothers Nisar Dossa and Aziz Dossa to purchase the flat as they were claiming the right of pre-emption. The plaintiff and his brother Aziz Dossa wanted to buy the flat in equal shares and paid Rs,50,000. The Defendants admitted to have demanded 10% of the purchase price which was paid. It is also admitted that the plaintiff wanted the Sale-Deed to be executed in the name of his son Ismail, which was not accepted by the Defendants. It is denied that the Defendants had committed any breach of contract. It is alleged that on the contrary plaintiff and Aziz Dossa had contracted with the Defendants to purchase the flat jointly and in equal shares Subsequently the plaintiff wanted to purchase the flat in his own name alone to which the Defendants did not agree.
6. Hence it was the vendees, who were responsible for breach of the contract and therefore, were not entitled to specific performance.
7. ' On the pleadings of the parties following issues were framed:-
(1) Whether there was an agreement of sale between the plaintiff and the Defendants?
(2) Whether there was breach of the agreement of sale by either party, if so, what is the effect of such breach?
(3) Whether the sale transaction has been completed by the deposit of the total sale proceeds in Court by the Plaintiff?
(4) Whether the plaintiff is entitled to a decree of specific performance?
(5) What should the decree be?
8. ' My findings on all these issues are in favour of the plaintiff for the following:-- REASONS Issues No, 1 to 4.
9. ' Since all these issues are inter-connected, therefore, I have decided to discuss all of them together.
10. ' The plaintiff has examined himself as Ex. 1, and has repeated the same which has been stated in the plaint and therefore, the same need not be repeated. Muhammad Hussain Dossa has produced affidavit reaffirming the gift to her four sons as Ex. 5/1. He has then produced the letter dated 20-11-1986, as Ex. 5/2. This letter reads as follows:-- "20th November, 1986.
(1) Mr. Muhammad Nisar Dossa, Falak Numa, 304-Pedro D'Souza Road, Garden East, Karachi.
(2) Mr. Muhammad Aziz Dossa, Falak Numa, 304-Pedro D'Souza Road, Garden East, Karachi.
(3) Mr. Muhammad Farouk Dossa, Falak Numa, 304-Pedro D'Souza Road, Karachi.
11. ' Dear Sir, ' Sub:-- Flat No,2 --Ground Floor in Falak Numa 304-Pedro D'Souza Road-Garden East- Karachi.
12. ' I have been authorised by my wife Qudsia Dossa and daughters Rubina and Safina to negotiate sale for the said flat, and I have received an offer of Rs,12-1/2 lacs for the same. However as the three of you own the remaining three flats in this building and live therein, I am giving you the opportunity of first refusal. Therefore, if any of you are willing to purchase the said flat at the aforesaid price, please intimate to me at the above address within a week of receipt of this letter.
13. Thanking you, Yours truly, (M.H.DOSSA)."
14. ' He then produced the reply given by him and Aziz Dossa to the Defendants as Ex. 5/3 which reads as under:-- "Mr. M.H. Dossa Registered A/D.
15. ' 147 Cotton Exchange Building I.I. Chundrigar Road, Karachi.
16. ' Dear Sir, ' This has reference to your letter dated November 20, 1986 received by us on November 25, 1986.
17. ' We hereby accept the offer of Flat No, 2, Ground Floor Falaknuma, 304 Pedro D'Souza Road, Garden Road, Karachi at the price of Rs, 12.50 lacs. A cheque for Rs, 50,000. Representing a deposit on the purchase price is enclosed in part performance. We undertake to pay the balance as soon as the Deed of Conveyance is executed in our favour in equal shares.
18. ' It may be added that our funiture is lying already in the flat and we have always had a right of pre-emption to the flat which has now been expressly recognized by you.
19. ' Yours faithfully. AZIZ DOSSA.
20. ' FAROUK H. DOSSA."
21. ' Thereafter he has produced letter dated 4-12-1986 Ex. 5/4, sent on behalf of Defendants calling upon the plaintiff and Aziz Dossa to send the balance of 10 % earnest money. He then produced letter dated 8-12-1986 Ex. 5/5, whereby the plaintiff and Aziz Dossa sent cheque of Rs, 75,000. As desired . The next document is letter dated 23-12-1986 Ex. 5/6 sent by the plaintiff enclosing the draft Conveyance Deed and Power of Attorney and sending an advertisement to Daily 'DAWN' for publication. This draft was in favour of plaintiffs son and nominee Muhammad Ismail, to which the Defendants sent a letter and that letter dated 27-12-1986 has been produced by the plaintiff as Ex.
22. 5/8. It reads as under:-- "Mr. Farouk Dossa, C/o Haji Dossa Nutralgum 27th December, 1986. (Pvt.) Ltd. Jubilee Insurance House 4th Floor, I.I Chundrigar Road, Karachi.
23. ' Dear Sir, ' I have received your registered letter of 23rd December, 1986 together with draft of Conveyance Deed, draft of Power of Attorney and draft of advertisement notice in the newspaper.
24. ' You and Aziz Dossa have contracted to buy the flat in question in equal shares vide your registered letter of December 1, 1986 against my offer of 20th November, 1986 and in conformity with the same sent your cheque for Rs,50,000 as deposit.
25. ' In the draft of the Conveyance Deed sent to me for my scrutiny, you have mentioned the name of your nominee Mr. Muhammad Ismail Dossa s/o Muhammad Farouk as the ulimate purchaser of this flat. I regret this is not acceptable to the sellers of this flat.
26. ' Please send me your revised draft of the sale-deed excluding the name of your nominee Mr. Ismail Dossa as the purchaser of the flat, within four days of the receipt of this letter, failing which your deposit of Rs, 125,000 will be forfeited and the sale will be considered as cancelled, and you will be held responsible for damages or losses suffered by the sellers.
27. ' Yours truly, (M.H. Dossa) c.c. To Mr. Aziz Dossa."
28. ' In reply the plaintiff and his brothers sent letter dated 30-12-1986 which has been produced as Ex.
29. 5/9 and called upon the defendants to execute the Conveyance Deed in the name of the plaintiff as sole purchaser nominated by the three brothers. No reply was sent to this letter by the Defendants. The plaintiff then examined Aziz Dossa as Ex.2, who has supported the plaintiff and has stated that he and Nisar Dossa had given up their right to purchase and opted in favour of the plaintiff. As against this predecessor-in-interest Muhammad Hussain Dossa has examined himself and has repeated whatever has been stated in the written-statement and has produced the following documents:--
(1) Possession Order of his Clifton's House. Ex. 6/1,
(2) Architects' letter Ex. 6/2,
(3) Letter for completion of plan Ex. 6/3,
(4) Letter of shifting telephone Ex. 6/4, and
(5) Telephone & Electricity Bills Exs. 6/5 to 6/10.
30. ' In the end he has produced letter dated 4-1-1987 Ex. 6/12, sent by him to the plaintiff intimating him that their offer had expired on account of no acceptance within one week. All these letters and documents and facts stated therein are undisputed.
31. ' From the above evidence it is quite clear that on 20-12-1986 Defendant Muhammad Hussain Dossa had offered to sell this Flat to Nisar Dossa, Aziz Dossa and Farouk Dossa. The letter Ex. 5/2 makes it clear that the Defendants had received an offer of Rs, 12,50,000 for this flat. It went on to state that since they were the owners of the remaining three flats in the building and lived there, he was giving them an opportunity of first refusal. If any one of them was willing to purchase the said flat at the aforesaid price, they were requested to intimate Muhammad Hussain Dossa within a week of receipt of that letter. From this letter it is abundantly clear that the offer was made to all the three of them jointly and severally. In other words, if they wanted to purchase the flat jointly, they could do it or in the alternative, if one or more of them was prepared to give up his right in favour of the others, the remaining of them could exercise the option to purchase. Thus the sale to all the three of them jointly was not the intention of the defendants. This was quite natural. The plaintiff, Nisar Dossa and Aziz Dossa, were real brothers of Muhammad Hussain Dossa. No stranger was living in the flats of the building Falak Numa and therefore, in all fairness and obviously keeping in view the convenience and the privacy of the members of the family, the defendants had conveyed offer that the flat should be purchased by one of the members rather than by any stranger to the family. The offer was promptly accepted by the plaintiff and his brother Aziz Dossa by letter dated 142-1986 Ex.-5/3. Not only that the acceptance was communicated, but a cheque of Rs, 50,000 was also tendered. The balance was undertaken to be paid as soon as the Deed of Conveyance was executed in favour of both of them in equal shares. Muhammad Hussain Dossa approved the acceptance of plaintiff and Aziz Dossa and asked them to pay some more money to bring it equal to 10 % of the sale price by letter dated 4-12-1986 Ex. 5/4. From this letter it is quite clear that the Defendants had every intention to keep their promise and therefore, they called upon the plaintiff and Aziz Dossa to increase the amount. Consequently the plaintiff and Aziz Dossa sent a further cheque of Rs,75,000 along with letter dated 8-12-1986 Ex. 5/5. It was further stated in that letter that they would be sending a draft of the Conveyance Deed within fifteen days to them and will be willing to register the Conveyance Deed as soon as Muhammad Hussain Dossa obtained appointment with the Registrar. The draft was sent along with letter dated 23-12-1986 Ex. 5/6 by the plaintiff. Plaintiff Muhammad Hussain Dossa replied to these two letters by a letter dated 27-12- 1986 Ex. 5/8. He objected to the Sale-Deed being executed in the name of the nominee i,e, Muhammad Ismail son of Muhammad Farouk Dossa and threatened to cancel the contract and forfeit the earnest money in case the revised draft of Sale-Deed was not sent within four days. This letter is on the face of it not only illegal, but unreasonable as well. According to law the purchasers in a contract of sale can assign their interest in favour of a third person at any time. Such assignment can be objected to only by a co-purchaser and not by the seller. In law the point is quite clear. Sub-clause (b) of section 23 of Specific Relief Act clearly provides that the specific performance of a contract may be obtained by the representative in interest unless the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract or where the contract provides that his interest shall not be assigned.' There can be no doubt that both under the common law as well as under the above provisions of Specific Relief Act option to purchase the property is assignable unless there is a provision expressed or implied in the contract that the interest was not assignable. The deciding factor in such cases is the intention of the parties. When the intention of the parties was that the vendees or one or more of them alone should be given the right of purchase of the property, the assignee outside the family cannot enforce the contract specifically but the converse is not correct. In this contract there was no restriction against assignment. The intention of the parties was that the flat should be purchased by one of the family members and should not go to an outsider. Ismail being son of Muhammad Farouk was a member of the same family. Hence there was nothing improper or unreasonable in transferring the flat to Ismail, the nominee of Muhammad Farouk and accepting his nomination.
32. The refusal of the defendants to accept the nomination was not justified. In the case of Sher Muhammad v. All Muhammad reported in 1986 MLD 597, it was held that where a co-promisee in an agreement for sale did not show his interest to purchase the land or to pay his part of sale consideration, specific performance of such agreement can be enforced by interested promisee alone, who had made payment under agreement of sale.
33. ' Apart from that by letter dated 31-12-1986, plaintiff Muhammad Farouk Dossa as well as Aziz Dossa and Nisar Dossa nominated Muhammad Farouk Dossa as the sole purchaser and sent an amended Conveyance-Deed. Under the law it was the duty of Muhammad Hussain Dossa to have accepted the same as not only Muhammad Farouk Dossa was one of the three promisees to whom Muhammad Hussain Dossa had made offer to sell the flat, but he was also a nominee of the other two co-promisees. It appears that Muhammad Hussain Doss, finding no way out, did not give any reply to this _letter. He has, however, produced letter dated 4-1-1987 Ex. 6/12 in which it is stated that time limit for the acceptance of that offer was one week which has expired. Firstly the plaintiff was not confronted with this letter and therefore, this letter appears to have been prepared on an afterthought. Secondly in this letter also it is not stated that assignment by Aziz Dossa and Nisar Dossa in favour of the plaintiff was not acceptable to the Defendants. Hence the Defendants cannot seek to avoid the contract on that ground. The law on the point of assignment of his interest by a co-promisee in favour of another co-promisee was laid down in the leading case of Monghibai v. Cooverji Umersey reported in A.I.R. 1939 Privy Council 170. In this case some of the partners had assigned their interest in favour of the remaining partners. An objection was taken that all the original co-promisees were not parties to the suit. The Privy Council held as follows:-- "One or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as codefendants if they will not."
34. It is admitted by Muhammad Hussain Dossa in his evidence that there was no restriction on the power of Aziz Dossa to assign his interest. Hence the refusal of the Defendants to perform the contract was not only unjustified, but mala fide as the reason given by them to refuse to perform the contract was absolutely false and incorrect, because the acceptance was communicated within the period given in the notice. The plaintiff has done all that was in his power to abide by the wishes of the Defendants. Reliance was also placed on number of rulings. Some of them may be given as under:--
(1) PLD 1964 (W.P) Baghdad-ul-Jadid 19 Ghulam Hussain Shah v. Ghulam Muhammad.
(2) PLD 1983 Supreme Court 344 Ghulam Nabi and others v. Seth Muhammad Yaqub and others.
(3) PLD 1965 Supreme Court 690 Haji Abdullah Khan and others v. Nisar Muhammad Khan and others.
(4) PLD 1965 (W.P.) Kar 274 Messrs Tanzeem Overseas v. Mst. Zainab Bai and another.
(5) PLD 1962 Supreme Court 1 Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala.
(6) AIR 1928 Privy Council 174 Sakalaguna Nayudu and another v. Chinna Munuswami Nayakar.
(7) AIR 1955 Calcutta 621 All Mistri and another v. Kayem All Sheikh and others.
35. I am, therefore, of the clear view that by now it is a settled law that an assignee of a contract has the right to enforce it in the absence of a contract to the contrary, even if the name of the vendor or his heirs only is mentioned in the contract.
36. ' The next contention of the Defendants' counsel is that all the parties to the contract have not been joined in this suit. He has relied in this behalf on the dictum given in AIR 1973 Nagpur 186, Jagdeo Singh v. Bisambhar.
37. ' In this case the contract was sought to be enforced in terms of the original contract of sale in favour of all co-sharers. As such it was held that all of them were necessary parties. In the present case the plaintiff is not seeking enforcement of contract in the name of all the co-sharers. He is seeking enforcement of contract in his name alone in his capacity as the assignee of other co- sharers. Hence the Nagpur case is distinguishable from the present case. In I L R 16 Calcutta 409, Pyari Mohun Bose v. Kedarnath Roy, which was referred to in 1986 MLD 597, Sher Muhammad v. Ali Muhammad and others, it was observed that "an objection as to non-joinder ought to be taken in the written-statement and when so taken the plaintiff should use his best endeavors to get the other co-sharers joined". Muhammad Hussain Dossa has not taken any objection as to non-joinder of Aziz Dossa. Besides, Aziz Dossa was examined as a witness by the plaintiff. He has confirmed before the Court that he has assigned his interest in favour of the plaintiff. As such the Defendants cannot object to the maintainability of the suit on the ground that Aziz Dossa was not before the Court.
38. ' It was then contended on behalf of the Defendants that they had never given the possession of the flat in dispute to the plaintiff and that at any rate, it was not given in furtherance of the Agreement of Sale. It is alleged that the plaintiff had misconduct himself in this behalf and had forcibly taken the possession of the flat by breaking open the lock thereof and had, therefore, lost the goodwill in pursuance of which the offer of sale was made to him by the Defendants. Hence, the Defendants were no more bound to honour their offer to sell the flat to the plaintiff. This allegation is not supported by the evidence on record. The plaintiff has alleged that the Defendants had permitted him to occupy the flat and the plaintiff had, therefore, stored his furniture and fittings in the flat. The Defendants have not denied the fact that they had allowed the plaintiff to store his furniture and fittings in the flat. Hence the allegation of the plaintiff that he was allowed to occupy the flat seems to be more probable. As against this the allegation of the Defendants that the plaintiff had broken open the lock and had occupied the flat forcibly does not appear probable and believable. Had it been so, the Defendants would have lodged F.I.R. Or would have at least given notice to the plaintiff complaining about the said offence or misconduct as they put it.
39. Nowhere in the notices and letters exchanged between the parties, this fact has been mentioned. It is also not necessary that the possession should be delivered in furtherance of an agreement of sale. A person already in possession of a property agreed to be sold has a right to continue in possession when an agreement of sale has been entered into between the parties. Reliance was in this F connection placed on my own decision reported in 1989 CLC 2309, M.Imamuddin v. Sh.Bashir Ahmad and 7 others, where it was held that when the transferee was in possession of property as a lessee and had been given an option to purchase during continuance of lease, he having exercised such option within the period of tenancy had been held to have rightly exercised the option and was granted specific performance.
40. ' In the result I decree the plaintiffs suit for specific performance and direct the plaintiff to file a properly stamped draft of sale-deed in Court within one month from today. Defendants are directed to execute registered sale-deed so filed in favour of the plaintiff within one month from the date of filing the same. In case the defendants do not come forward to execute the sale-deed, it shall be presumed that they have got no intention of performing the contract. In such a situation the plaintiff will be entitled to have the sale-deed executed by this Court. The defendants will be entitled to withdraw the balance of sale consideration deposited by the plaintiff alongwith the accruals thereon after the registered Sale-Deed is executed and costs etc. Are deducted. The costs of the suit shall be borne by the Defendants.