' The dispute, in this regular second appeal, pertains to a residential house/bangalow No,16, situated at Waris Road, Lahore. It is built over a plot measuring 4 Kanals 10 Marlas along with servant quarters. It shall be hereinafter described as 'house or 'property in dispute'. It was owned by Syeda Imtiaz Khatoon now deceased/represented by her legal heirs/herein-respondents. Khawaja Muhammad Naseem and others/herein appellant are purchasers of this house. They will be shortly described as 'appellants' while Syeda Imtiaz Khatoon shall be referred to as 'Seller/plaintiff'.
2. In order to appreciate the rival contentions of the parties, it is necessary to set out the case of both sides in detail. The case of Syeda Imtiaz Khatoon/seller, according to plaint, is that she was the owner of the house; that her husband/late Col. Ejaz Hussain made it sale through registered:1, sale-deed dated 27-1-1975 in favour of the appellants for a sum of Rs,1,70,000; that she received consideration through Cheque No,603978 en cashable from the Bank of America; that when Col. Ijaz Hussain approached the Bank for en cashing the above cheque, it was found that there was no money lying in the Account of the appellants; that since the aforesaid sale-deed was without consideration and she had not delivered the possession of alienated property to appellants, the aforesaid sale was null and void ab initio and the sale-deed merited to be cancelled.
3. The case of the appellants/purchasers/defendants, as set out in the written statement, was/is that the suit had been filed with mala fide intentions in order to frustrate eviction proceedings commenced by the appellants; that the consideration of the property in dispute was negotiated as 1,70,000 rupees initially but at the time of execution of sale-deed, Col. Ejaz Hussain, the attorney of respondent, showed reluctance to sign the sale-deed and made a demand for payment of Rs,4,60,000 instead of Rs,1,70,000; that on account of above demand, appellants had paid an amount of Rs,2,00,000 (two lacs) to Col. Ejaz Hussain, paid another sum of Rs,90,000 and the balance of the price was paid through Cheque No,603978; that Col. Ejaz Hussain had encashed that cheque from the Bank of America through his one subordinate namely Mr. Akram Rabbani on 8-3-1975. On these pleas, the learned Trial Judge settled following issues:---
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the sale of the suit property made by the plaintiff by registered sale-deed dated 27-1- 1975 is without consideration? OPP.
(3) Whether the plaintiff is entitled to seek cancellation of the sale-deed as prayed? OPP.
(4) Relief.
4. In order to substantiate her case, respondent produced Muhammad Ashraf as P.W. 1 and Haji Malik Shahbaz Din, her attorney, as P.W.
2. P.W. 1 deposed that at the relevant time, there were no adequate funds in the account of appellant/Khawaja Muhammad Naseem. As against this, appellant examined Syed Muhammad Anwar Shah as D.W. 1, and Khawaja Muhammad Naseem as D.W.2. He tendered into evidence the death certificate of Col. Ijaz Hussain D.W.1/1 indicating that the said person had died on 14-10-1986; the statement of Mr. Akram Rabbani Superintendent Directorate of Reclamation and Probation as D.W.2/2, the copy of affidavit of Mr. Akram Rabbani as D.W. 3, the certified copy of statement of one Khushdil Sultan as D.W. 2/5, certified copy of letter of bank official dated 10-4-1976 as . D.W. 2/7 and a receipt Exh.D.W.2/4.
5. On the scrutiny of the evidence so adduced by the parties, the learned two Courts below concurrently found that the sale-deed dated 27-1-1975 was without consideration; that at the relevant time there was no money in the Account of Khawaja Muhammad Naseem; that respondent had not delivered the possession of the property in dispute to appellant and so the ownership of the house had not passed from seller to vendees. In this scenario, this regular second appeal has come to this Court.
6. The learned counsel for the appellants, in support of this appeal, contended that the two Courts below had overlooked settled law that neither the non-delivery of possession nor the non-payment of purchase price to the seller prevents the passing of title. Reliance was placed on Bai Devmani v.
Ravi Shankar Oghadbhai (116 Indian Cases 236) Sahib Lal v. Bhagwan Das (ILR 1888 All 246) and Barkat v. Fazal Elahi (1993 CLC 2400).
7. On the strength of the above rule, it was represented that the questioned contract of sale was an executed contract and so suit for its rescission was not maintainable.
' Secondly: That findings of the two Courts below were based upon non-reading and misreading of material, on record. Pin-pointing the above infirmities, the learned counsel referred to document D.W. 2/7, a letter by the concerned bank saying that Cheque No,603978 had been encashed in favour of Col. Ijaz Hussain.
' Thirdly: That the respondent/plaintiff had not come to the witness-box and so had not controverted the claim of appellant that she received the entire consideration through her husband Col. Ijaz Hussain: ' On the contrary, learned counsel for respondents supported the impugned decision. It was submitted that the findings, of the two Courts below on issues Nos.2 and 3, were concurrent conclusions of fact and so these were not assailable under section 100 of C.P.C. On merits, it was submitted that it was clear from the record that at the relevant time there was no money in the Bank of America and so appellant had committed a fraud with the seller by paying the price of the house through Cheque No,603978. Reference was made to Muhammad Yousaf Khan v.
Government of N.-W.F.P. 1993 SCM R 618.
7. Having penned down facts, the circumstances of the case and arguments of the learned counsel for the parties, I now proceed to deal with them. First question, which arises for determination, is whether the non-payment of purchase price renders the sale-deed void. This question is no longer vexed one and is free from difficulty. It is now established proposition of law that nonpayment of the price of the sold land or its delivery is not necessarily sine qua non for the transfer of the title from seller to purchaser. It was so held as back as in 1866 in Umedewal Moti Ram v. Deva ILR (1866)
2 Bombay 547. In this case, the vendee had neither paid any portion of purchase price nor had received possession of the alienated property. It was held therein that non-payment of purchase money/price did not prevent the passing of title from vendor to vendee and that vendee can maintain a suit for possession. The view taken in Umedewal Moti Ram's case, supra, was approved by Division Bench of Allahabad High Court in Sahib Lal v. Bhagwan Das ILR 1866 (Vol.XI) 244. While delivering the opinion, celebrated Mehmood, J. Pronounced the rule in his usual scholirly and juristic vein. I deem it my privilege to quote it hereunder: "I regret, however, with due respect, I am unable to follow that ruling, for it seems to me to proceed upon disregarding the distinction between a contract of sale and a contract to sell, the former being an executed contract and the latter appertaining to the class of executory contracts. Or, to use the technical language of jurisprudence, sale creates a jus in rem, as it passes ownership immediately when it has been executed; and a contract to sell is a jus ad rem, for it only creates an obligation attached to the ownership of property and does not amount to an interest therein.
' This juristic distinction is fully recognised in section 54 of the Transfer of Property Act (IV of 1882), and forms the basis of many a rule of law and equity, such as the doctrine of notice to bona fide transfers in connection with specific performance of contracts. I may say here that I have had the advantage of conferring with my brother Straight who was one of the learned Judges who decided the case of Ikbal Begum v. Bobind Prasad ILR.3. A11.77 with regard to that ruling and he has authorised me to say that, so far as he is concerned, he has more than once stated from the Bench that the case was always a very doubtful authority and that since section 54 of the Transfer of Property Act, came into force, it can no longer be considered as an authority."
' The learned Judge went on to say:--- "Now in the present case, the Courts below have found that the sale-deed of the 3rd July, 1884, was duly executed, registered and delivered to the plaintiff vendee, who has paid a portion of the purchase money to the vendor's creditors. I hold that these facts in themselves amount to a full transfer of ownership to the plaintiff vendee, notwithstanding the circumstance of his having either omitted, refused or been unable to pay the balance of the purchase money to the vendor Sri Ram or the mortgagee Chagmal Das. The plaintiff could, therefore, maintain this suit, which is in the nature, not of an action for specific performance of contract, but an action for ejectment. Such an action can be maintained by anyone who, like the plaintiff in the present case, has acquired the ownership of immovable property, though, of course, in a case such as this, in common with some other classes of case, quities may exist in favour of the defendant so as to subject the decree for possession to restrictions and conditions appropriate to the circumstances of each case."
8. The above rule was approved by Division Bench of Bombay High Court in Sagaji and another v.
Namdev ILR 1899 (Vol. XXXIII 525), by Allahabad High Court in Baijnath Singh v. Paltu and others ILR 1908 (Vol. XXX) 125 and in Narain Das v. Mst. Phania (Vol. XXXVIII) 154, by Bombay High Court in Bai Devmani v. Ravishankar Oghadbhai 116 I.C. (1929) 154, by Patna High Court in Ramdhari v. Gorakh AIR 1931 Patna 236, by Madhya Pradesh High Court in Sukaloo v. Panau AIR 1961 Madhya Pradesh 171 and in Mst. Murrian etc. v. Suleman etc. PLD 1984 SC (AJ&K)
63. From preceding examination, it, thus, clearly follows that the title from seller to purchaser passes on the execution/registration of the sale-deed, although the purchase money may be wholly or partly unpaid. This rule is subject to an exception that where the parties to agreement prove that sale would take place only when the purchase money was first paid. In short, passing of the title from seller to purchaser is dependent upon the intention of the parties. If the seller intends to transfer his title in favour of purchaser without any condition, then the title passes to vendee irrespective of the payment of purchase price or non-delivery of possession. In such a situation, the vendee can maintain a suit against vendor for possession of the property and seller can bring an action for recovery of the purchase price. Applying these principles to facts and circumstances of the case in hand it is quite clear that the sale-deed was registered on 27-1-1975. It was recited therein that respondent had alienated her right in favour of appellants for a sum of Rs,1,70,000 and had received the price through Cheque No,603978 en cashable from Bank of America. It was further stipulated therein that the appellants could become henceforth the owner of the property so sold and that the title of respondent stood completely extinguished. A bare look at the questioned sale-deed would thus clearly show that the respondent had sold the property in dispute to appellants without making the circumstances of payment of purchase money as condition precedent for passing of ownership to appellants.
Neither the execution of the questioned sale-deed is in dispute in any manner nor its contents. The rule laid down in Makbul Ahmad v. Muhammad Idrees 1966 CLC 30 proceeds on distinguishable facts and is not helpful to the case of the respondent. In view of this conclusion, I have no difficulty in holding that the two Courts below have not correctly decided Issues Nos.2 and 3. Their findings on the above issues are in defiance of above rule and so cannot be sustained. For the above reason, I hereby set aside the findings of the two Courts below on Issues Nos.2 and 3 and decide the same in favour of appellants.
9. I now turn to merits of the case. As already noted, the respondent replied upon Muhammad Ashraf P.W. 1 and Haji Malik Shahbaz Din P.E.
2. P.W. 1 stated that at the relevant time, there were no adequate funds in the Account of Khawaja Muhammad Naseem in the Bank of America. P.W. 2 supported the plaint. As against this, the appellant produced Muhammad Anwar Shah D.W. 1, Khawaja Muhammad Naseem D.W. 2 and documentary material/comprising of death certificate of Col. Ejaz Hussain D.W. 1/1, the statement of Akram Rabbani Superintendent, Directorate of Reclamation and Probation D.W. 2/3, certified copy of the statement of Khushdil Sultan D.W.2/5, certified copy of the letter of Bank official dated 10-4- 1976 D.W. 2/7 and a receipt Exh.D.W. 2/4 D.W. 1 tendered into evidence the statement of Account of Khawaja Muhammad Naseem and stated that Cheque No,603978 was en cashed. This statement was clearly reflected in document Exh.D.W.2/7. Amazingly enough, the two Courts below have not at all read the above documentary material. The learned first Court of appeal as well as the learned trial Court had remained under perpetual sway of statement of Muhammad Ashraf P.W.
Who had stated that at the relevant time, there were no adequate funds in the Account of Khawaja Muhammad Naseem. This statement was alone taken as a factor of decisive significance. The two Courts below in my humble view were clearly in error. The Courts were to decide the case on the principle of preponderance of evidence and were required to assess all the oral as well as documentary evidence brought on record by parties. Muhammad Anwar Shah D.W.1 had clearly stated that Col. Ejaz had received the payment under Cheque No,603978. This was corroborated by the document Exh.D.W. 2/7. Rebuttal presumption of correctness was attached to the above document. No effort, whatsoever, was made by respondent to controvert the above presumption.
The respondent herself had not entered into witness-box and relied upon his attorney. On this state of evidence, the rule of preponderance of evidence was in favour of appellant who had proved by an overwhelming evidence that Cheque No,603978 was encashed by Col. Ijaz Hussain as attorney of the respondent from the Bank of America through his subordinate Akram Rabbani. On these findings, I, therefore, set aside the conclusion of the two Courts below on the question of non- payment of purchase price to respondent. The above conclusion, manifestly, suffer from non- examination of material documentary evidence referred to above.
As a result of the above discussion, I hold that the learned two Courts below have not decided Issues Nos.2 and 3 correctly but even had reached the conclusion with regard to payment of purchase price on the basis of misreading and non-reading of evidence. I, therefore, accept this appeal, set aside the decision of the two Courts below on all the issues and hereby dismiss the suit filed by the respondent. There shall be no order as to costs.