1. Plaintiffs in the suit for declaration of ownership rights in a house were appellants in the second appeal before this Court. Suit was dismissed by the trial Court on 2-5-1967 on the ground that the document dated 24-7-1961 executed by Sardar Beg, defendant in the suit required compulsory registration and in its absence, did not confer any right of ownership in the house upon the plaintiffs. On appeal by the plaintiffs, judgment by the trial Court was maintained on 23-12-1969 by learned District Judge, Gujranwala on account of a defective form of the suit by holding that the suit for declaration simpliciter was incompetent and the proper remedy for the plaintiffs was to sue for specific performance of Exh. P-1. Both the Courts below had found that on evidence led in the suit, execution of agreement Exh. P-1 by defendant Sardar Beg was established. Defendant did not agitate the correctness of the finding on the issue relating to the execution of agreement by either preferring cross --objections or otherwise. Therefore, in context of the facts and circumstances of the case, only legal effect of the aforesaid document on the rights of the parties and the form of the suit for an appropriate remedy shall require consideration, But before an attempt for resolution of the above legal proposition was made, a reference to the facts of the case shall be necessary.
2. Subedar Beg and Amir Beg were real brothers. They owned some property in village Sonipat of District Rohtak in India. Amir Beg died before partition of India. Subedar Beg breathed his last soon after it. Mst. Shahidi Begum was daughter of Amir Beg. Mukhtar Beg, Ghafoor Beg, Shakoor Beg, Shabbir Beg and Hameed Beg were sons of Subedar Beg. They were plaintiffs Nos. 1 to 5. Mst.
3. Shahidi Begum was plaintiff No. 6 in the suit.
4. A residential house under Survey No. BIl-6S-8, situated in Main Bazar, Aimnabad of Tehsil and District, Gujranwala belonged to a non --Muslim and was evacuee property. It was transferred to Badar Din son of Fateh Muhammad on his CH-Form, and a P.T.O. was issued in his favbur, on 31-2- 1960. Sardar Beg, defendant associated with him for surrender of the rights in the house to him.
5. Consequently, in the result of a deed of association, P.T.O. already issued in favour of Badar Din was amended to give effect to the agreement of association. Upon adjustment of the price, the house was permanently transferred in favour of Sardar Beg, on 2-3-1966. P.T.D. was Exh.D-1 on. file of the trial Court. However, prior to it, on 24-7-1961, Sardar Beg had executed' a document in favour of his real brothers and the paternal--cousin Mst. Shahidi Begum for sharing of proprietary rights in the house with them. It recited that although a P.T.O. was issued in favour of Sardar Beg but since its payment was made from the . joint compensation book, he acknowledged the Sharie shares of all the sharers and treated them as owners of house pro rata. Sardar Beg further agreed that the house shall belong to his brothers and his cousin sister and undertook to make a transfer of their shares in the house upon receiving the proprietary rights in it. Towards the end, the document recited that though the claim was verified in the name of Sardar Beg, yet, he was agreed to treating his real brothers and cousin sister sharers in it in terms of their Sharie shares. The document was scribed by a deed-writer and its execution was witnessed by two witnesses, namely,. Muhammad Ishaq Khan and Mushtaq Ahmad who had thumb-marked it. Sardar Beg also appended his thumb-impression to the document. It was EA. P-1 on file of the trial Court. It was written on a two-rupee stamp paper.
6. ' On 9,-2-1966, the plaintiffs filed a declaratory suit to have it found that the plaintiffs were owners of the house in terms of the aforesaid document. It was averred that though the property in Sonipat was owned .by Subedar Beg and Amir Beg, yet, claim for verificiation was submitted by Sardar Beg in his sole name in result of an agreement between the parties. It was further averred that the transferred house was agreed to be shared by the parties in accordance with their Sharie shares in it and they were, consequently, in its possession as such. .
7. Sole defendant in the suit, namely, Sardar Beg submitted .his written statement in Court. He objected to the jurisdiction of .the Civil Court for entertaining and trying the suit. On merits, it was submitted that he was the sole owner of the house in dispute; the claim was verified in his name and the house was transferred to him on its basis. He denied execution of the document dated 24- 7-1961 and pleaded fraud touching it. On 15-3-1966, the trial Court settled following issues in vernacular for determination. These were translatedin English by 'the trial - Court` in , its ,judgment.
8. These were:--
(1) Whether vide agreement dated 24-7-1961. the plaintiffs were acknowledged as owners of disputed house in accordance with the shares given in para. No. 3 of the plaint? OPP (2)Whether the alleged agreement is inadmissible in evidence? OPD (3)Whether the alleged agreement is the result of fraud, if so proved, its effect? OPD, (4)Whether this Court has no jurisdiction to try this suit? OPP (4-A) Whether the father of plaintiffs 1`to 5 and defendant and father of plaintiff No. 6 were joint owners of any property and the defendant filed the claim of that property an his name with the, consent of plaintiffs, if so proved, its effect? OPP (5)Relief.
9. Plaintiffs gave evidence of a marginal witness namely Mushtad Ahmad and the Deed-Writer Ghulam Mustafa to prove execution of the document Exh. P-1 by Sardar Beg. O,he of the plaintiffs, namely, Mukhtar Beg as P.,W.2 deposed on the execution of Exh. P-1 and. the antecedent events leading to it respecting, abandoned property in India by Subedar Beg and Amir Beg and filing of claim for verification by Sardar Beg and sharing of the i property, transferred on its basis in his name. Agreement to sell was tendered in evidence in the testimony of marginal witness Exh. P-1.
10. Copy of order for verification of claim passed on 20-3-1959 by the Claims Officer was put in evidence as Exh. P-2. The defendant gave evidence of three D.Ws. and himself appeared as D.W.4.
11. His case was that he owned two houses and a plot at Sonipat in India and,the claim submitted by him for verification related to his own abandoned property and the house 'was transferred to him in his own right. He denied execution of Exh. P-1 by him. As far the payment, of price for transfer of the evacuee house, he deposed that a sum of Rs.1,660 was adjusted from the compensation book and he also paid Rs.5,000 in cash to Badar Din. Deed of Association entered into between Sardar Beg and Badar Din and an order passed on it were not put in evidence. Furthermore, no documentary evidence was given by either party to establish the mode of adjustment and payment of the transfer price.
12. Upon scrutiny of the above evidence, the trial Court found that Exh.P-1 was compulsorily registrable.
13. Therefore, it did not create ownership rights in the plaintiffs; in terms of section 49 of the Registration Act, 1908, Exh.P-1. was admissible in evidence; execution of Exh. P-1 by Satdar Beg was established and no cogent evidence was, given to prove that it was tainted with fraud. Issue relating to jurisdiction of the Civil Court was not pressed and was decided against the defendant.
14. Under issue No. 4-A, it was held that the defendant's own written acknowledgement incorporated in Exh. P-1 could not 'be bypassed by him. Consequent upon the above findings, the plaintiffs' suit was dismissed "on legal defects in Exh. P-1" on 2-5-1967. Principal objection J. against decreeing the plaintiffs' suit was want of registration of the document marked Exh. P-1 only. Other, material issues were found in favour of the plaintiffs. They preferred an appeal from the judgment and decree of the trial Court dismissing their suit on legal plane. On Exh. P-1, learned District Judge observed "these recitals contain acknowledgement of the plaintiffs-appellants' right with a condition to transfer such rights in their favour in future in the house in dispute. In order that a document may operate as a transfer either in the present or in the future there must be dispositive words. The executant must say expressly or by implication "I transfer", although he may make the transfer conditional. There are no such words in the document in question which may of themselves' lave the effect of vesting title in the plaintiffs---appellants. The deed under reference is at the best an executory. The remedy of the plaintiffs-appellants lies in, the enforcement of the agreement embodied in be deed under consideration by a suit for specific performance. Since the deed, standing by itself does not presently create any right in the plaintiffs--appellants in respect of the suit house, they are not entitled to the declaration of their title therein. The suit is misconceived and must, therefore, fail". Aggrieved of the judgment and decree given in appeal, the plaintiffs came up in further appeal to this Court. It was admitted to hearing on 24-11-1971. Admitting order reads: "The question whether antecedant arrangement, settlement between the' pakites could not be proved independently of the document, inter alia, requires consideration".
15. Seen from the above, three points emerged for: consideration arid decision in the second appeal.
16. These were; the genuine execution of the deed dated.'24-7-1971 by the defendant Sardar Beg; its requirement for compulsory registration and the form of the suit for an appropriate remedy. As regards the first point, both the Courts of fact were agreed on 'the execution of the deed Exh. P-1 by Sardar Beg and also its voluntary charactcr. The marginal witness and the scribe of the deed gave good evidence to support its execution. One of the plaintiffs also testified on the point. Though the defendant entered denial of the exeuction of the deed, yet, the trial Court, on analysis of the evidence, found its execution established beyond dispute. The suit was dismissed on the score of its defective form only. In appeal preferred by the plaintiffs, defendant did, not agitate the finding on voluntrary execution of Exh. P-1 recorded by the trial Court. Neither, cross-objections were filed,, nor, was the finding otherwise agitated by the defendant. Evidence taken in the suit war read out in Court. It sufficiently convinced 'on'' the soundness of the finding, recorded in the 1Qwer Courts on the voluntary execution of the documenta marked EA. P-1. Agreed finding of fact on this point -was, therefore, properly concluded, and was not available for further debate in second appeal.
17. As regards the second point respecting requirement of compulsory registration of Exh. P.1; on its true construction, its, gave effect to and acknowledged an antecedent oral settlement between closely related persons for sharing of the verified claim submitted on behalf of the defendant and consequent division of the house transferred on its basis between them. Per se, it did not create or declare rights in the immovable property for the value of A Rs.100 and upward in praesent.
18. Therefore, section 17 of the Registration Act, 1908 did not attract for a compulsory registration of it. A j fortiori, section 49 of the Act shall not bar its reception in evidence. The deed contained a clear undertaking by the defendant to transfer the house to his brothers and cousin sister, after it was permanently transferred to him by the Settlement Department. Recital in it showed that payment of price for the house was made out of a joint compensation book. The deed did not per se transfer ownership rights in the house to the plaintiffs. Therefore, the suit for declaration for claiming ownership rights in the house did not lip'. The proper f remedy for it was a suit for specific performance of the terms in Exh. P.1. To this extent, the.view of learned District Judge was correct.
19. There was no doubt that in the existing form of the suit, it could not succeed. However, there was no insuperable legal bar for allowing an appropriate amendment to the plaint C for converting the suit for declaration into a suit for specific performance of Exh. P.1. It was manifest that the plaintiffs were failing on account of defective form of the suit filed by them. Learned counsel for the appellants orally requested for amending the plaint for bringing it in accord with the necessary requirements of the suit for specific performance. Learned counsel for the respondent opposed the prayer. It was submitted that a fresh suit could be filed for it by the appellants. In my view, bar of limitation may present an unsurmountable hurdle for the appellants to cross, over in the new suit for specific performance of the terms in Exh. P.1. All these long years, appellants were agitating their rights on Exh. P.1 but were unsuccessful on account of a defective form of the suit chosen by them.
20. Therefore, it shall not be equitable p to deny them the relief of proposed amendment to the plaint for converting the suit into a proper form of it. There were clear precedents for permitting converting of - the form of the suit for a declaration to a suit for specific performance of contract.
21. In view of the above, I would, therefore, upon allowing the request for amending the form of .the suit, set aside the impugned judgments and decrees of the lower Courts for trial of the suit for specific performance of Exh. P.1 on the amended form of the plaint. Appellants are allowed to put in amended plaint for relief of specific performance of the agreement founded on Exh. P.1 in the trial Court. After the amended plaint was filed, the trial Court shall receive amended written statement from the respondent and thereafter shall, proceed to try the suit on merits in accordance with law and the observations made above. There shall be, no order as to costs in this Court.
22. Records shall be returned to the trial Court