JUDGMENT NAZIM HUSSAIN siddiqui, J.- This appeal is directed against the Judgment and Decree dated 27-4-1987 passed by a learned Single Judge of this Court, in Suit No. 465 of 1973, whereby he declined specific performance of an agreement, but decreed the suit against the respondent No. 1 for Rs. 6000/- with interest at the rate of 10% per annum from the date of the suit till its realisation.
The facts relevant for decision of this appeal are as follows: - 2 Appellant Ijaz Mahmood filed the suit against the respondents and prayed for the following reliefs:-
(a) That defendant No. 1 and/or 2 be ordered specifically to perform and complete the agreement dated 11-1-1973 and execute proper deed and document as may be required or otherwise necessary in this behalf and to admit execution and effect necessary registration thereof before the Sub Registrar of Assurance Karachi and obtain such certificates and documents as may be required being pre-requisite for registration to the said sale deed. In case defendants failed to specifically perform the agreement to sell, this Hon'ble Court may be pleased to direct the Nazir and/or any other officer of the Court to perform the agreement specifically and receive the balance of sale consideration amount for and on behalf of defendants No. 1 and 2 and/or any one of them.
(b) Cost of the suit may also be awarded.
(c) Any other relief if this Hon'ble Court may deem fit in the circumstances of the case."
3. The case of the appellant, in brief, is that Mst. Najma Siddiqui, the predecessor-in-interest of respondents, entered into agreement to sell to the appellant her property, bearing No. WSA X Block No. 18, Federal 'B' Are, Karachi for consideration of Rs. 6500/-. It is alleged that a sum of Rs. 6000/- was paid to her at the time of agreement and the balance was to be paid in two instalments within a year. The appellant has claimed that, in pursuance of said agreement, the possession of the property was handed over to him and thereafter he constructed three rooms on said plot and also obtained commercial electric meter and water-line etc. According to him, the title deeds, receipts, and other documents relating to said property were also handed over to him. On 14-1-1973, he issued a public notice, inviting claims and objections against said property, but nobody had filed any objection. It is alleged that on 1-8-1973 he received a notice from an advocate of Mst. Najma Siddiqui, a director of respondent No. 4, A.M. Industrial Corporation Ltd., wherein he (appellant) was addressed as a tenant and rent was claimed from him. Thereafter, he approached the respondents to execute the sale deed in respect of said property, but with no result. He therefore, filed a suit for the reliefs mentioned earlier.
4. The case of the respondents in short, is that the appellant is a tenant in respect of said property and his claim over the property is frivolous. The respondents have asserted that no construction over the property was raised by the appellant. According to them, said property belongs to respondent No. 4 and said respondent had no knowledge about public notice allegedly issued by the appellant.
5. From the pleadings of the parties, learned trial Court had settled the following issues: -
1. Whether the defendant No. 1 entered into contract dated 11-1-1973 on behalf of defendant No. 2 for sale the property in suit?
2. Whether the suit is under-valued?
3. Reliefs?
6. At trial the appellant examined himself. Ex-5. Khawaja Qutbuddin Ex-6 and Obaid-ur-Rahman.
Advocate, and the respondents examined Jameeluddin Siddiqul.
7. On assessm ent of evidence brought on record, leaned Single Judge decided issues Nos. 1 and 2 in the negative, and issue No. 3 as indicated above.
8. It appears that genuineness of receipt (Ex-5/1) was seriously disputed by respondents and this receipt states that an amount of Rs. 6000/- was received by the deceased Najma Siddiqui from the appellant, as advance towards the sale of said property. Though this document has been executed as a receipt, but. In fact, it contains all the terms and conditions of the sale. This receipt, besides deceased Najma Siddiqui, was also signed by Haji Saeeduddin Siddiqui. The predecessor- in- interest of the respondents Nos. 2(a) to 2(j), Aminuddin Siddiqui. And Qutbuddin. According to the appellant, this document was tampered with after the evidence of appellant was recorded and the modus-operandi was that the original revenue stamp affixed on it was removed and instead another revenue stamp, bearing the words Najma Siddiqui was affixed on it. Learned trial judge has dealt with this point at length and ultimately reached the following conclusion; "Considering the evidence brought on record and the circumstances stated above, it is established that the agreement was signed by Najma Siddiqui which was exhibited as Ex.5/1. But;. It has been tampered subsequently during the proceeding in the Court."
9. We have gone through the entire record and are of the view that above finding is perfectly correct and no exception can be taken to it nor above finding has been challenged before us.
10. Having decided the point of genuineness of the receipt (Ex.5/1) learned Trial Judge held that said property admittedly being of the respondent No. 4, it could not be transferred by deceased Najma Siddiqui. This is the finding which, in fact, has been challenged by the appellant.
11. Mr. Azhar Ali Siddiqui. Learned counsel for the appellant contended that once it was established that said receipt was executed by, deceased Najma Siddiqui, being as one of the directors of respondent No. 4, the trial Court should have decreed the suit as was prayed. He also submitted that said receipt was executed by the deceased in presence of Saeeduddin Siddiqui, who was her husband, and Najmuddin Siddiqui, who is her brother. Above contention has no force. It is an admitted fact that said property belongs to the respondent No.4 (A.M. Industrial Corporation). It is not established from the record that said Corporation ever authorised the deceased to dispose of said property. It is also an admitted fact that originally appellant was inducted in the premises as a tenant. Learned trial Judge relying upon the principle laid down in the cases reported in (1) Khulna Loan Company Limited Vs. Jaki Goldar and another (AIR 1914 Cal. 687) (2) Ali Muhammad Khan Vs. Riazuddin Khera (PLD 1981 Kar. 170) (3) Abdul Hamid Kv. Abbas Bhai and Abdul Hussain Sodayater Wala (PLD 1962 S.C. P-1), held that the agreement/receipt could not be enforced against the respondent No. 4. In Khulna Loan Co's case, the two Secretaries and Managing Director of defendant company agreed to grant to the Plaintiff a permanent lease at a certain premium and rent. Agreement was repudiated by company at earliest opportunity, and it was held that specific performance could not be allowed against the company. In Ali Muhammad Khan's case, a Division Bench of this Court held that specific performance, being an equitable relief, cannot be granted as a matter of course or as a matter of right. In Abdul Hamid's case, Hon'ble Supreme Court has laid down that specific performance can be granted only if "under all circumstances it is just and equitable to do so."
12. Deceased Najma Siddiqui could not pass better title than she had. She was only a director of Corporation and as such, under no circumstances, was entitled to dispose of the property. The appellant knew it very well that she was not the owner of the property, as is evident from the title deeds, which were in his possession. The appellant has himself admitted that he was inducted in the premises as a tenant. It is the duty of the purchaser to fully investigate the Vendor's title. Maitland in Hansbury Modern Equity Vth Edition 1949 Page 123 on the point of necessity to investigate Vendor's title states that "apart from any equitable doctrine, prudent purchaser of land will investigate his vendor's title". It is settled proposition of law that a purchaser who buys a property without investigating the title of the vendor does so, at his own risk. To purchase an immovable property from a person, who is neither its owner nor legally authorised to sell it by itself elegantly ruins the claim of specific performance.
11. Mr. Azhar Ali Siddiqui. Learned counsel for the appellant contended that once it was established that said receipt was executed by, deceased Najma Siddiqui, being as one of the directors of respondent No. 4, the trial Court should have decreed the suit as was prayed. He also submitted that said receipt was executed by the deceased in presence of Saeeduddin Siddiqui, who was her husband, and Najmuddin Siddiqui, who is her brother. Above contention has no force. It is an admitted fact that said property belongs to the respondent No.4 (A.M. Industrial Corporation). It is not established from the record that said Corporation ever authorised the deceased to dispose of said property. It is also an admitted fact that originally appellant was inducted in the premises as a tenant. Learned trial Judge relying upon the principle laid down in the cases reported in (1) Khulna Loan Company Limited Vs. Jaki Goldar and another (AIR 1914 Cal. 687) (2) Ali Muhammad Khan Vs. Riazuddin Khera (PLD 1981 Kar. 170) (3) Abdul Hamid Kv. Abbas Bhai and Abdul Hussain Sodayater Wala (PLD 1962 S.C. P-1), held that the agreement/receipt could not be enforced against the respondent No. 4. In Khulna Loan Co's case, the two Secretaries and Managing Director of defendant company agreed to grant to the Plaintiff a permanent lease at a certain premium and rent. Agreement was repudiated by company at earliest opportunity, and it was held that specific performance could not be allowed against the company. In Ali Muhammad Khan's case, a Division Bench of this Court held that specific performance, being an equitable relief, cannot be granted as a matter of course or as a matter of right. In Abdul Hamid's case, Hon'ble Supreme Court has laid down that specific performance can be granted only if "under all circumstances it is just and equitable to do so."
12. Deceased Najma Siddiqui could not pass better title than she had. She was only a director of Corporation and as such, under no circumstances, was entitled to dispose of the property. The appellant knew it very well that she was not the owner of the property, as is evident from the title deeds, which were in his possession. The appellant has himself admitted that he was inducted in the premises as a tenant. It is the duty of the purchaser to fully investigate the Vendor's title.
Maitland in Hansbury Modern Equity Vth Edition 1949 Page 123 on the point of necessity to investigate Vendor's title states that "apart from any equitable doctrine, prudent purchaser of land will investigate his vendor's title". It is settled proposition of law that a purchaser who buys a property without investigating the title of the vendor does so, at his own risk. To purchase an immovable property from a person, who is neither its owner nor legally authorised to sell it by itself elegantly ruins the claim of specific performance.
13. Accordingly we held that prayer for specific performance was rightly refused by the learned trial Judge. On 16-3-1994, after hearing the arguments, we had dismissed the appeal, and these are the reasons for the same.