' This second appeal calls in question the judgment and decree dated the 5th of July, 1967 of the learned District Judge, Bahawalpur, whereby he affirmed the judgment and decree passed by the learned Senior Civil Judge, Bahawalpur Camp at Hasalpur on the 14th of June, 1966.
2. The facts are that Allah Ditta (deceased) had mutated the land in question vide Mutation No,79 attested on the 1st August, 1958 in favour of Fauja, the appellant herein. The deceased, however, had died on the 2nd of August, 1958 after he had appeared before the Revenue Officer for attestation of the mutation. Allah Ditta was survived by his widow Mst. Karim Khatoon, his minor sons Muhammad Ramzan and Ahmed Yar and minor daughters Mst. Maqsood Elahi and Mst.
Manzoor Elahi. On the 21st of March, 1963 they all, the respondents herein, instituted the suit for possession of the land asserting that the deceased was a simpleton, infirm and sick, though Lumberdar of village Ghot Kamal but, the job was carried out by Karindas. The revenue collection in respect of tobacco duty, however. was in arrears against him. He was also having Marz-ul-Maut. In these circumstances, the sale in question was brought about ostensibly for Rs,4,000 (Rupees four thousand only), out of which the Revenue Officer had retained Rs,1,456 (Rupees one thousand, four hundred and sixty-two only) outstanding against the deceased. The sale being oral also contravened the provisions of section 54 of the Transfer of Property Act.
3. The appellant resisted the suit pleading that the sale was for consideration and valid, that the deceased at the relevant time did not suffer from illness or infirmity, that Mst. Karim Khatoon had earlier brought the preemption suit wherein sale was admitted and was, therefore, estopped to raise the dispute about the validity of the transaction of the sale. He also raised legal objections as to limitation and valuation of the suit etc.
4. The learned Senior Civil Judge had put the parties to trial on as many as 12 (twelve) issues. The parties had shared success on various issues, The respondents had not brought cross appeal in respect of the issues which had been answered against them. Nor the appellant had questioned the verdict on the issues decided against him in the first appellate Court, save Issue No,2 which was hotly contested between the parties before the Court below and over here. The issue reads: "Whether the mutation in dispute was sanctioned against the mandatory provisions of section 54 of the Transfer of Property Act. If so with what effect?"
' The finding of the learned trial Court on the issue was affirmed by the learned Court below. The issue was decided in favour of the respondents with observation that the impugned sale being based on oral transaction was violative of section 54 of the Transfer of Property Act (to be referred later as the Act). The case turns on its examination in the light of section 53-A of the Act. The contention of the learned counsel for the appellant is that the transaction in question falls under section 53-A of the Act and not section 54. Section 53-A of the Act was first enacted in 1929 by the Transfer of Property (Amendment Act, 1929), and imports a modified form of the equity of part performance as developed in England. Section 53-A of the Act envisaged the following prerequisites:---
(a) The contract should be in writing.
(b) Such contract should have been signed by the transferor.
(c) In part performance of the contract possession of the immovable property must have been given.
5. Here it may also be kept in mind that provisions of section 53-A of the Act do not create any title in favour of the transferee but transferee's right of possession is protected.
6. Admittedly the transaction in this case was not reduced into writing. The writing of a contract is a must to invoke the benefit of section 53-A. The decision of Calcutta High Court enunciated this aspect of law. The citation is Subdh Chand Mitter v. Bhagwandas Sha AIR 1947 Cal.
353. The appellant banked upon the impugned Mutation Exh.D.1. This document, however, can hardly be termed as contract. The mutations, as we know, are intended primarily for fiscal purposes for the collection of land revenue and they are by no means a judicial proceeding in which the right or title in the property is determined. A mutation is neither a document of title nor does it create or extinguish title. So has been reiterated in various decisions including The P&T Cooperative Housing Society Ltd., Karachi v. Ch. Manzoor Ahmed Shah PLD 1961 Kar. 53 and Allah Bakhsh etc. v. Ghulam Hussain etc. PLD 1975 Lah.
1349.
7. The learned counsel for the appellant relying on Muhammad Amin etc. v. Mian Muhammad PLD 1970 BJ 5 based his arguments on the maxim of pari delicto, the principle being that where both the parties are equally at fault, the law should help the one who is in possession. He also cited at the bar Ghulam Muhammad's case 1980 SCM R 314 where the petitioner undertaking to do all that was necessary for formally completing sale and parting with possession after receiving consideration, was held disentitled to benefit of para. 25 of the Land Reforms Regulation, 1959 or section 19 of the Colonization of Government Lands Act (V) of 1912, so as to non-suit the purchaser.
Almost on similar point another precedent was cited, which is Ghulam Rasul and others v.
Muhammad Anwar and others 1969 SCM R 254. The learned counsel further maintained that since the sale was accompanied by the delivery of possession and payment of consideration and it was vendor (deceased) who himself brought about oral transaction, therefore, the Court should not help the successors-in-interest of the yendor especially when they had also brought a pre- emption suit in respect of the land. In aid of the contention, the learned counsel referred me to Manzoor Hussain and others v. Wali Muhammad and another PLD 1965 SC 425 wherein it was held: "Where a person invoking the aid of a Court to invalidate a contract on the ground of illegality is himself implicated in the illegality the Court will not, as a rule, assist him".
8. First I take up the main limb of the arguments of the learned counsel for the appellant which is about possession. The oral and documentary evidence is there on the subject, but it did not advance the case of the appellant. The Revenue officials appeared to support the contents of the mutation. The Assistant Commissioner (D.W.1), however, admitted that he had not verified on the spot as to if the possession had been delivered to the vendee. The Patwari (D.W.2) did not touch the subject. Even the appellant appearing as D.W.4 did not assert specifically that he had taken the possession at the relevant time. All that he had stated was "I am in possession of the suit land." In fact the oral evidence has to be relegated in the scenario of the documentary evidence. The excerpt of Khasra Girdawari of Kharif 1957 and Rabi 1958 (Exh.P.11) mentions Allah Ditta (deceased) as the owner and Khuda Bakhsh the tenant. The land was originally mortgaged by the deceased in favour of one Piran Khan through Mutation No,74 (Exh.P.9) which indicated that the possession of the land was also delivered to the mortgagee. This fact is also confirmed by the copy of Jamabandi (Exh.P.10). Subsequently Rehmat Khan (defendant No,2 respondent) had admittedly substituted Piran Khan for mortgagee in possession after paying the requisite amount to him. It was, therefore, Rehmat Khan who was in possession of the land in question at the relevant time.
The respondents had impleaded Rehmat Khan as mortgagee in their suit. Rchmat Khan had not contested the suit. And what is more important is that the appellant in his written statement had not specifically taken up vital plea that he was in physical possession of the land in pursuance of the transaction. All these circumstances proved beyond doubt that the oral transaction was never accompanied by delivery of possession to enable the appellant to avail the benefit of section 53-A.
The rulings cited by the learned counsel are not helpful to him as the facts of those cases are distinguishable from the present cast.
9. The learned counsel for the appellant also could not derive benefit from the pre-emption suit, in respect of the suit land, decided on the 44th of January, 1960, which was decreed in favour of the respondents. This is admitted that the latter had not paid the pre-emption money. The decision is in Urdu and on record but not exhibited. I, however, take judicial notice of it. The suit was brought by Muhammad Ramzan (minor) through her mother Mst. Karim Khatoon (respondent). The admission of Mst. Karim Khatoon, however, cannot bind her minor sons and daughters. Moreover, the admission did not create estoppel against law, transaction in question being void ab initio under section 53-A of the Act.
' The learned counsel for the respondents, however, stated that the said suit was product of fraud.
Had the respondents brought a genuine pre-emption suit and got it decreed, then they would have paid the pre-emption money to have the land back.
10. So far as the question of the deceased taking part in the oral transaction is concerned, the answer is available in the written statement of the appellant that the deceased had sold the land on account of a pressing necessity of payment of revenue dues and for treatment of his ailment. It is also in evidence that the deceased had died the next day after he had appeared before the Revenue Officer for mutation. The case of the respondents is that the deceased was extremely infirm and was physically lifted and taken in Paalki to the Revenue Officer for his statement and the transaction was brought about under pressing circumstances. It is not a case where conduct of the deceased betrayed his participation to an illegal transaction to back out subsequently, and in turn disentitling him or his successors-in-interest to the equitable relief.
11. In view of what I have discussed above, I hold with the learned Court below that in circumstance of the case the provisions of section 53-A were not attracted and the sale not having been registered, was hit by the provisions of section 54 of the Act and, therefore, was void and the appellant had acquired no title in the land in question. The appeal is dismissed. The parties are, however, left to bear their own costs.