' This is a first appeal from the order of the District Judge, Gujranwala dated 27-2-1968 whereby he while accepting the appeal of the respondents set aside the judgment and decree of the trial Court dated 29-4-1967 and remanded the case to it for further proceedings.
2. The dispute arises out of a suit brought by the appellants against Sultan Ali, the predecessor of respondents for specific performance of agreement for sale dated 19-2-1957 and 28-1-1958 with regard to the land situated in village Talvandi Musa Khan. The suit was contested by the respondents on various pleas. The trial Court framed the following issues arising out of the pleadings of the parties:
(1) Whether through agreements of sale dated 19-2-1957 and 28-1-1958, Yar Muhammad deceased had agreed to sell the property in dispute in the plaintiff's favour. If so, what were terms of the contract?. OPP
(2) Whether Yar Muhammad had received a sum of Rs,14,000 from the consideration amount? OPP
(3) Whether in view of the non-fulfilment of the contract, the plaintiffs are entitled to receive a penalty to the tune of Rs,5,000 and are also entitled to the re-imbursement of the consideration money of Rs,14,000, allegedly paid to Yar Muhammad.? OPP
(4) Relief.
3. On the basis of the evidence led before him, the learned Senior Civil Judge came to the conclusion that the appellants had successfully proved the execution of the agreements and were entitled to have the same specifically enforced. On these findings, the suit was decreed on 29-4- 1967.
4. Aggrieved by the decision of the trial Court, the respondents took the matter to the District Court in an appeal which was accepted by the learned District Judge, Gujranwala who set aside the decree of the trial Court and remanded the case for decision afresh. The two grounds which prevailed with the District Judge were that one of the promisee namely Akbar Ali was a minor at the time of execution of the two agreements which were as such void and secondly that the suit filed by the appellants was barred by time. It may be mentioned that the plea of minority was neither taken in the written statement nor urged before the trial Court at any stage nor any issue was framed on that aspect. The learned District Judge further observed that though the appellants were not entitled to the relief for 'specific performance but as they had prayed for the refund of Rs,14,000 which they had paid as consideration, the trial Court should have considered that aspect also and as it had failed to do so, the case was remanded to it.
5. Mr. Muhammad Anwar Bhinder, Advocate, the learned counsel for the appellants in support of this appeal has raised the following contentions:--
(i) That as the question of minority of Akbar All was neither raised in the written statement nor at any stage before the trial Court, the District Judge had acted illegally in allowing the respondents to urge that point for the first time in appeal;
(ii) That in law, agreement in favour of minor were not void and as the (iii) agreements in question were for purchase by the minor and for his benefit, the specific performance could not be refused;
(iii) That in any event, as there were two promisees out of which only Akbar Ali was a minor, the suit to the extent of other appellants Safdar Ali, Muhammad Aslam and Ghulam Rasool should have been decreed especially when the appellants were willing to pay the entire consideration.
(iv) That the suit was not barred by time.
6. Mr. A.K. Dogar, learned counsel appearing on behalf of the respondents has, however, argued that as the question raised before the District Judge was purely one of law, the respondents were entitled to agitate it in appeal. It was further argued that it is the obligation and duty of the Court to apply law on admitted or proved facts irrespective whether or not a particular plea has been raised by a party.
' As regards merits, the learned counsel contended that Akbar Ali was admittedly a minor, and therefore, the two agreements in question to which he was a party were wholly void and were not capable of being specifically enforced. He further maintained that specific performance of a part of the agreement was not envisaged by law. Mr. A.K. Dogar also supported the fmding of the learned District Judge that the suit for specific performance was barred by time. He pointed out that the suit had been filed on 12-2-1964 while the agreement of which specific performance was sought were executed on 19-2-1957 and 28-1-1958.
7. In support of the objection that the question of minority of Akbar Ali having not been raised in the written statement or at any stage of the trial, it could not be urged before the first appellate Court and the same is deemed to have been waived, the appellants' learned counsel has relied upon Muddana Viravva v. Mudanna Adenna and others (AIR 1930 PC 18), Attorney-General of the Colony of Fiji v. J.P. Bayly Ltd. (PLD 1949 PC 274), Haji Ghulam Rasul and others v. Chief Administrator of Auqaf, West Pakistan, Lahore (PLD 1966 (W.P.) Lah. 978), Ghulam Mustafa v. Haji Mian Muhammad and another (PLD 1969.Pesh. 241), Municipal Committee of Shandadpur v. Jumo Khan and another (PLD 1972 Kar. 507), Abdul, Karim v. Mirza Bashir Ahmad (PLD 1974 SC 61) and Syed Murtaza v.
Rehman and 5 others (PLD 1979 Lah. 538). He also cited Kona Adinarayana v. Dronavalli Venkatasubbayya and others (AIR 1940 Mad. 625); Shahabud Din v. Muhammad Sharif and others (PLD 1958 (W.P.) Lah. 333). Syed Masood Hussain and others v. Muhammad Saeed Khan and others (PLD 1965 (W.P.) Lah. 11) and Nehar All Biswas v. Nazam Negar Rashida Banu (PLD 1968 Dacca 525) in support of his submission that a point not taken in the pleadings cannot be urged at the time of appeal.
8. I regret my inability to agree with the learned counsel for the appellants that in the circumstances of the case the plea of minority of Akbar All could not have been urged for the first time in appeal. Although it is true and as has been ruled in the precedents cited by the learned counsel for the appellants that a point not taken in the written statement or at the trial should not be generally allowed to be raised for the first time in appeal but that rule is subject to one important exception which is that a question of law which can be decided on the basis of material already on the record may be urged at appellate stage. The Supreme Court of Pakistan has gone on to lay down that if on admitted or true facts a particular law become applicable, it is the duty of the Court to apply the law which becomes applicable on admitted or proved facts even though a plea may not have been raised by the parties. (See Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690) and Khan Azizul Hassan Khan v. Haji Muhammad Ismail (PLD 1972 Lah. 142).
9. Reverting now to the arguments of the learned counsel for the appellants on merits, there cannot be any manner of doubt that an agreement by a minor is void as provided by section 11 of the Contract Act, 1872. (See Commissioner of Income Tax Lahore v. Messrs Sh. Feroze Din Allah Rakha M.
Ramzan and another (PLD 1980 SC 115)) Bilal Jamil v. A. Azam Ltd. And another (1981 CLC 1032). As a principle of law, it is correct and as had been canvassed by the learned counsel for the appellants that the minor can be beneficiary of a contract as has been held in the case of Ashraf Ali v. Etim Ali and others (PLD 1959 Dacca 625) and an agreement in favour of the minor is valid and binding. But this principle holds true in respect of executed and executory contracts. If the contract contains reciprocal promises and some part still remains to be performed by the minor, the contract would be void. The distinction between executed contract and executory contract has been drawn in Ashraf Ali's case supra in which it was observed that sections 10 and 11 of the Contract Act, 1872 have been enacted for the benefit of the minors and that if in the executed contract a minor's part has been performed and nothing is left to be executed by the minor, i,e, no obligation is left to be discharged by him, such a contract is enforceable by the minor. The instances of such transactions are completed sale-deeds and mortgage deeds executed in favour of the minor. This principle has, however, no application in the present case as it is a common ground that both the parties are yet to fulfil certain obligations, the appellants by paying the balance amount of consideration and the respondents by executing sale-deed. Two cases which have been cited by the learned counsel for the appellants namely Mst. Amnat v. Mahboob Hussain (PLD 1959 (W.P.) Karachi 362) and M.A.
Faruqi v. Sajid Ali Khan and another (PLD 1957 Karachi 631), are of no help as the first case related to an executed contract fully performed by a minor while in the second case, the agreement was entered into not by the minor but on his behalf by his guardian/father.
10. This brings me to the main contention raised by the learned counsel for the appellants which was that even if two agreements to the extent of Akbar Ali, minor, were void and, therefore, not enforceable, the specific performance of the contracts so far as it related to the share of other perspective purchasers namely Safdar Ali, Muhammad Aslam and Ghulam Rasool. In that context, it was pointed out by the learned counsel that in the two agreements dated 19-2-1957 and 28-1- 1958, the share of the perspective purchasers has been specified as being 1/4th each and, therefore, to the extent of three appellants who were admittedly majors at the time of agreements the suit could not have been dismissed. The learned counsel stated that the appellants were even willing to pay the entire amount of consideration fixed in the agreements for obtaining 3/4th of the total land. In this respect the learned counsel has heavily relied upon Sakinabai and others v.
Kurnool Muhammad Bashir (PLD 1967 Kar. 158), Rup Chand and others v. Fazal Elahi and others (AIR 1917 Lah. 46), Dwijendra Kumar Ropy and others v. Monmohan De and others (AIR 1957 Cal. 209), Anani Ram v. Surju Prasad (AIR 1935 Oudh. 453), Eskandar All v. Mst. Alhamra Begum and others (PLD 1969 Dacca 214), Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others (PLD 1974 BJ 25), Din Muhammad v. Bashir Ahmad and 5 others (1979 CLC 466), Imam Din v. Muhammad Din and another (AIR 1926 Lab. 136), and Singara Mudali v. Ibrahim Baig Sahib (AIR 1947 Mad. 94).
11. I must confess that on going through the precedents cited by the learned counsel for the appellants, his argument that at least to the extent of 3/4th of the land, the agreements for sale should have been specifically performed appeared attractive. Admittedly as 3 out of four perspective purchasers were under no disability at the time of execution of the agreements and therefore, to their extent the agreements cannot be said to be void. However, in view of the pronouncement of the Supreme Court of Pakistan in Wali and others v. Manak All and others (PLD 1965 SC 651) and Daulat Khan v. Bahadur Khan and others (1982 SCMR 1169), I cannot direct that the two agreements be partly specifically enforced.
12. In the case of Wali and others v. Manak Ali and others (PLD 1965 SC 651), the facts were that suit for specific performance of an agreement to sell was filed by the Manak All and Lal; respondents before the Supreme Court in which apart from impleading Murad, their vendor, the subsequent purchasers namely Wali, Jahania and Allah Dad, the appellants before the Supreme Court were also impleaded as defendants. The trial Court refused to grant decree for specific performance holding that the subsequent purchasers had no notice of the agreement for sale. On appeal, however, the High Court disagreed with the conclusion and the suit was decreed as prayed for. This decree was challenged by Wali, the subsequent purchaser by filing an appeal during the pendency of which one of the respondents namely Lal died. His legal representatives were not brought on the record within time and it was held that the appeal as against Lal had abated. A contention was raised on behalf of the respondents that two plaintiffs had ascertainable shares in the land, the appeal should abate only as regards the share of the deceased. This contention was repelled by the Supreme Court of Pakistan by holding that as there was one agreement for sale in favour of the two persons, the suit could not be decreed in part and the case was not covered by sections 14, 15 and 16 of the Specific Relief Act, 1877. The relevant observations appearing at page 660 of the report are instructive and may be reproduced below:- ". . Admittedly sections 14, 15 and 16 have no relevance in the present case. According to section 17 there can be no partial specific performance of a contract except in cases mentioned, in, sections 14, 15 and 16. It is clear that the law envisages performance of a contract in its entirety unless for some reason it be not capable of such specific performance at all. Sections 14 to 16 deal with cases where such reasons exist. Apart from those sections a contract must be performed as a whole. The law does not contemplate that with respect to the agreement there should be a decree for specific performance in respect of one promisee and a dismissal of suit as regards another. The only argument put forward by learned counsel for the appellants in this connection is that the agreement for sale should be interpreted as consisting of two agreements one in favour of each vendee. It is not possible for us to accept this contention. There is only one contract between the parties. The shares of the vendees are not specified in the agreement, but even if they were specified as long as the contract was one section 17 would bar a splitting up of the transaction. This is one of those cases where the law contemplates only one decision of a dispute. The position is similar to that which arises in cases of pre-emption. With respect to one sale-deed which is in favour of more than one vendee, there can only be one suit for pre-emption, though a pre-emptor may have a right of pre-emption with respect to a part of the property, and his right cannot be defeated by including property with respect to which he has no right of pre-emption. It cannot be urged in cases of pre-emption that if there be more than one vendee the transaction should be split up."
13. It may be noticed that the Supreme Court of Pakistan had observed that in such situations even arising in suits, for specific performance an agreement for sale, the principle laid down in respect of a pre-emption suit barring splitting up of claims would be applicable. The law in that respect is well-settled that there cannot be any splitting up of the transactions unless not only the share of the vendees but also the proportion in which they have paid price is mentioned in the agreement itself. It was emphasised that if the price is mentioned in lump sum the transaction was not capable of being split up. (See Abdullah and 3 others v. Abdul Karim and others (PLD 1986 SC 140).
14. The other case which is directly in point is again from the Supreme Court which is Daulat Khan v.
Bahadur Khan and others (1982 SCMR 1169). In that case, three vendors having separate shares in the land have agreed to sell the land to the vendee for a price which was mentioned in lump sum.
The Supreme Court of Pakistan observed that if the contract as against one of the vendor falls, it cannot be bifurcated and the remaining part of it cannot be specifically enforced. The relevant observations which appear in para 6 are as under:-- "However, we have heard the learned counsel at length. Apart from the fact that the members of the advisory committee in whose presence the alleged agreement was in consolidation proceedings signed by the vendors (respondents) have not been produced, the broad fact remains, that the sale was allegedly to be made by all the three vendors, who no doubt had separate shares in the relevant Khasra numbers, nevertheless the price alleged to be paid or promised to be paid to all the alleged vendors, was mentioned in lump sum, with, the result that it is not known as to in what proportion or to what extent each vendor was to receive or share it. In this state of affairs when the contract against Mst. Noor Hayat one of the vendors fell through inasmuch as she is not a signatory of the agreement, though she is alleged to have received the advance money alongwith others, the contract in this respect remains one individual contract with the result that it must stand or fall as a whole. If vis-a-vis the price, the contract cannot be bifurcated the contract is not capable of specific performance and this short ground is enough to non-suit the plaintiff. We hold accordingly."
15. I am unable to see any distinction between the .Cited cases and the present case. The principle of which has been laid down by the Supreme Court in the two cases is that if the contract cannot be specifically enforced as against all the parties to the agreement, it cannot. Be enforced against some of them unless not only the shares of the parties in the property are stated in the agreement but their share in the consideration itself is also specified. The law declared by the Supreme Court of Pakistan in the two cited cases is binding on D this Court and must be followed even though there appears to be certain precedents to the contrary like Eskandar Ali v. Mst. Alhamra Begum and others (PLD 1969 Dacca 214), Haji Abdul Rehman and 3 others v. Noor Ahmad and 2 others (PLD 1974 BJ 25) and Sakinabai and others v. Kurnool Muhammad Bashir (PLD 1967 Kar. 158). In this view of the matter the District Judge was correct in holding that the two agreements cannot be specifically enforced.
16. It is an admitted fact that the two agreements of which specific performance was sought were executed on 19-2-1957 and 28-1-1958 by Yar Muhammad deceased, the predecessor of the respondents. Yar Muhammad died on 17-4-1958 out of which the suit was filed on 12-2-1964 and on the face of it was barred by time under Article 113 of the Limitation Act 1908, especially when it is a common ground between the parties that on the refusal of the respondents to perform their part of the contracts, the appellants had filed suit for declaration on 13-4-1961 which was dismissed on 31- 7-1962 by the trial Court and on 3-2-1963 by the District Court.
17. On the plea raised by the respondents in the written statement, the trial Court had framed a preliminary issue which was decided in favour of the respondents on 17-2-1964 and the suit was held to be within time on the ground that Akbar Ali, one of the plaintiffs was minor at the time of execution of the agreements and as such could have filed a suit within 3 years of attaining majority. It was found that Akbar All attained majority on 2-5-1963 and as such he could have filed a suit for specific performance before 2-5-1971 in view of section 7 of the Limitation Act, 1908 and as such the suit was within time. The trial Court, however, decided that the suit was barred by Order 2, rule 2, C.P.C. And as such it was dismissed on 31-7-1965. But that finding was reversed by the District Judge, Gujranwala on 16-2-1966, whereafter the suit was tried on merits and as already observed was decreed by the trial Court. When the appeal was filed by the appellants against that decree, the learned District Judge vide his impugned order held that the suit was barred by time.
18. There is no doubt that so far as Akbar Ali was concerned, he being a minor could have filed a suit within 3 years of attaining majority as provided by section 7 of the Limitation Act, 1908 and, therefore, the suit filed by him was within time. This finding does not, however, advance the case of the other appellants. The learned counsel for the appellants had himself contended that as only one of the appellant was minor, the agreements were void to his extent only and the other appellants were entitled to have these agreements specifically enforced to the extent of their share. He cannot, therefore, on his own showing claim that the benefit of section 7 of the Limitation Act, 1908 be made available to other appellants who were not minors. (See Muhammad Aqil Khan v. Akhtar Hussain and others (PLD 1971 Karachi 864)).
' In view of what has been stated above, this appeal fails and is dismissed leaving the parties to bear their own costs.