JAWWAD S. KHAWAJA, J.--- This appeal calls in question the judgment and decree dated 12.7.1997 passed by the learned Civil Judge, Sargodha in a suit filed by Shahamad respondent No. 1 to seek, inter alia specific performance of an Agreement to sell dated 13.10.1991 (hereinafter referred to as the Agreement) purportedly executed in favour of Shahamad by Ahmad son of Lala.
2. To facilitate appreciation of the facts and controversy involved in the present appeal, it would be appropriate to set out the relationship inter se the contesting parties. Shahamad plaintiff's sister is married to Muhammad defendant No. 1 (respondent herein). Muhammad is the brother of the Dosa defendant No. 2 (appellant herein), Mst. Satto defendant No. 3 (respondent herein) and Ahmad (deceased), the executant of the above-referred Agreement.
3. Shahamad's case is that Ahmad had 'executed the. Agreement whereby he had agreed to sell to him 40 kanals of land inclusive of Shamlat situated in Mauza Mateela, Tehsil Bhalwal, District Sargodha, more fully described in the plaint, for a total consideration of Rs.4,00,000/-. The plaintiff also averred that a sum of Rs.3,75,000/- out of the total consideration of Rs.4,00,000/- was paid to Ahmad. It was further alleged that a receipt of the sum of Rs.3,75,000/- was executed by Ahmad contemporaneously with the execution of the Agreement at which time possession of the suit land was also delivered by Ahmad to Shahamad.
4. The suit, according to the plaintiff, had to be filed against Muhammad, Dosa and Mst. Satto (who were the only heirs of Ahmad) on account of Ahmad's death prior to the completion of the sale pursuant to the Agreement. Shahamad plaintiff stated that he had always been ready and willing to complete the sale through execution of a sale-deed but the defendants Nos. 1 to 3 had refused to conclude the sale. Ahmad died on 12.12.1992 and the suit was filed by Shahamad eight days thereafter.
5. Muhammad did not contest the suit and instead filed a conceding written statement wherein the contents of the plaint were admitted. He also gave his consent to the issuance of an injunction in favour of Shahamad restraining the defendants from interfering in Shahamad's possession of the suit land. Mst. Satto did not enter appearance to contest the suit and was proceeded against ex parte. An application, made by her towards the fag end of the trial to have the ex parte , was dismissed. Dosa was, therefore, the only contesting defendant. He denied the averments in the plaint. He also alleged that Ahmad, who was, according to him, about 100 years old on the date of the Agreement, was of unsound mind and, therefore, was incapable of entering into any contract.
Dosa also contended that Muhammad had, during Ahmad's lifetime, attempted to obtain a mutation of the suit land in his own favour but his attempt was thwarted by Dosa through timely intervention with the revenue authorities. According to Dosa, Muhammad thereafter conspired with Shahamad, who was his wife's brother, and they jointly prepared the Agreement with the object of claiming the suit land and thereby depriving the other heirs of Ahmad, namely, Dosa and Mst. Satto from their rightful share in Ahmad's estate.
6. Based on the pleadings the Trial Court framed the following seven issues--
(1) Whether the plaintiff has got no cause of action to file this suit? OPD-2.
(2) -Whether Ahmad s/o. Lala deceased was of unsound mind and was not competent to enter into any agreement? OPD-2.
(3) Whether the alleged agreement to sell dated 13.10.1992 and the receipt dated 13.10.1992 are result of fraud and forgery? OPD-2.
(4) Whether the above-said deceased was declared as of unsound mind by the revenue authorities as well as by Medical Superintendent, Faisalabad, if so, its effect? OPD-2.
(5) Whether the plaintiff is entitled to decree for specific performance of agreement dated 13.10 1991 regarding the suit land as prayed for in the plaint? OPP.
(6) Whether the suit is false and frivolous and as such defendant No. 2 is entitled to special cost u/S. 35-A, CPC? OPD-2
(7) Relief.
7. The plaintiff produced six witnesses in support of his claim and also appeared in the witness-box himself. The documents, brought on record by him, were the Agreement itself as Ex.P-1, the receipt dated 13.10.1991 for the sum of Rs.3,75,000/- as Ex.P-2, a copy of the Jamabandi for the year 1986-87 Ex.P-4 and a power-of-attorney Ex.P-3 which purportedly was executed by Ahmad in favour of Shahamad upon payment of the balance consideration of Rs.25,000/-, on 3.3.1992. In defence Dosa defendant appeared in the witness-box as his own witness. Alongwith two other witnesses, namely, Umar Hayat DW-2 and Aamar Mehmood, Naib-Tehsildar, Bhalwal, DW-3 who supported his case.
Dosa also produced in evidence documents Exs.D-1, D-2 and D-3 which respectively are the plaint of Ahmad, written statement of Muhammad and the order of the Court in the case filed by Ahmad through Dosa as next friend against the Province of Punjab and Muhammad in the Civil Court at Sargodha. He also produced a certificate issued by the Medical Superintendent, District Headquarters Hospital, Faisalabad dated 10.11.1992 which evaluated the mental capacity of Ahmad.
This document was exhibited in evidence as Ex.P-4 subject to objection.
8. The learned Trial Court proceeded to decide issues Nos. 2 and 4 together. The onus of proving these issues was on Dosa defendant No. 2. Dosa as DW-1 testified that Ahmad was of unsound mind at all hours. He also gave evidence that Muhammad defendant No. 1 had attempted to have Ahmad's land transferred in his own name and that he had prevented this from happening by making a timely application to the Tehsildar concerned informing him that Ahmad was of unsound mind. Dosa further deposed that the Tehsildar, on the basis of his application, held an inquiry in the presence of Ahmad Muhammad, Shahamad, Shana and others and came to the conclusion that Ahmad was of unsound mind and therefore, made a report that his land should not be transferred.
Dosa also testified that to prevent further unlawful attempts to transfer Ahmad's property he, as a next friend of Ahmad, filed a suit against the Province of Punjab and Muhammad wherein he alleged that Ahmad was of unsound mind. He further stated that Ahmad was medically examined and doctors had pronounced him to be of unsound mind.
9. Umar Hayat appeared as DW-2 and deposed that Ahmad was of unsound mind. He further deposed that proceedings were held in his village by the Tehsildar to determine if Ahmad was of sound mind and capable of alienating his property. He testified that he was an eye-witness to the inquiry conducted by the Tehsildar which culminated in the determination that Ahmad was not capable of alienating his property on account of his being of unsound mind. He also stated that a proposed mutation in respect of Ahmad's property was stopped by the Tehsildar and was, therefore, not sanctioned.
10. Aamar Mehmood, Naib-Tehsildar, Bhalwal, appeared as DW-3. He deposed that he conducted an inquiry as to the mental capacity of Ahmad and to determine his legal competence to alienate his property. This was done in the presence of the three brothers, namely, Dosa, Muhammad and Ahmad and in the presence of the residents of the village, who had been duly notified of his visit. He stated that .He had found Ahmad not to be of sound mind and he accordingly submitted a report to the Tehsildar that a proposed mutation for transfer of Ahmad's land should not be sanctioned.
He stated that Ahmad was brought to the inquiry by Muhammad. The inquiry report made by DW-3 is available on the record although, we note, it has not been exhibited in evidence.
11. Ex.D-4, which, as noted above, is a Medical Certificate issued by the Medical Superintendent, District Headquarters Hospital, Faisalabad, pronouncing Ahmad to be suffering from dementia, was admitted in evidence as D-4 subject to objection. The learned Trial Court excluded Ex.D-4 from evidence on the ground that it had not been proved in accordance with law either through a statement by the Medical Superintendent, District Headquarters Hospital, Faisalabad, or by other legally permissible means.
12. 12. - The testimony of DW-3 Aamar Mehmood, Naib- Tehsildar, was disregarded by the Trial Court because no record of the inquiry conducted by him had been adduced in evidence. The Trial Court also held that any opinion formed by a revenue officer cannot be treated as the opinion of an expert. It was on this basis that the evidence given by DW-3 was, in its entirety excluded from consideration.
13. As against the testimony of the defendant's witnesses on issues Nos. 2 and 4 the was no evidence in rebuttal given on behalf of the plaintiff. The learned Trial Court, however, while deciding these two issues, reached the conclusion that there was no evidence on record to prove that Ahmad was of unsound mind and, therefore, not competent to enter into an agreement. On this basis these two issues were decided against Dosa who was the only contesting defendant.
14. The findings of the learned Trial Court on issues Nos. 2 and 4 do not accord with the evidence on record and also proceed on reasoning which is not legally tenable. As noted above, the only evidence on these issues was produced on behalf of Dosa which goes to prove that Ahmad was of unsound mind. It was thereafter for the plaintiff Shahamad to lead evidence in rebuttal to establish that Ahmad was of sound mind generally or that he was of sound mind at the time he executed the Agreement. He, however, did not do so. This alone should have been sufficient to decide the two issues against the plaintiff and in favour of defendant No. 2. No valid and legally justifiable reason has been given by the Trial Court for disregarding the testimony of the defendant's witnesses. The mere fact that the document Ex.D-4 could not be read in evidence or that DW-3 Naib-Tehsildar's report is not exhibited in evidence, by itself, does not nullify the effect of the evidence given by DW- 1, DW-2 and DW-3, DW-2 and DW-3. Unsoundness of mind or want of competence to contract can be established even without a medical certificate.
15. The questions which were put to Ahmad during the course of the inquiry conducted by DW-3 and the conclusion reached by the said witness are part of the evidence on record through the testimony of DW-3. This evidence has not been shaken or undermined in cross-examination nor is there any suggestion that DW-3 is not a reliable or impartial witness.
16. In addition to the above, it is also to be noted that the objective criteria set out in sections 11 and 12 of the Contract Act for determining soundness of mind can be met through any evidence which demonstrates the capability, or lack thereof, of any person, to understand a contract and to form a rational judgment as to its effect upon his interests.
17. The best proof of capacity to contract could have been presented by Ahmad himself whose mere presence in Court could have been dispositive of the issue. This, however, did not happen because, as discussed later in this judgment, Shahamad made sure that the Agreement did not come to light and was not enforced during Ahmad's life-time. In these circumstances, the contents of the Agreement which we have considered below shed some light on Ahmad's competence to enter into the Agreement, and on h is ability to form a rational judgment as to its effect on his interests.
18. Some of the terms of the Agreement are unusual and deviate from the norm. Such deviation is adverse to the interest of Ahmad. In particular, it may be noted that Agreement is open ended and does not contain any closing date by which the sale of the suit land is to be concluded.
Furthermore, possession of the suit land is stated to have been delivered to Shahamad at the time of the Agreement even though the entire amount of consideration was not paid. There is also a telling departure from the standard terms, which are usual for such agreements. The Agreement provides Shahamad the right to claim twice the amount already paid by him in the event of Ahmad failing to complete the sale but does not provide for any corresponding forfeiture of such amount, if Shahamad fails to perform his part of the Agreement. The aforenoted terms are unfavourable to Ahmad and are not in line with the ordinary tenor of such agreements. If the scribe of the Agreement (who was produced by Shahamad as PW-3) is to be believed, the Agreement was prepared by him on the instructions of Ahmad. This fact and the contents of the Agreement strongly suggest the inference that Ahmad was incapable of understanding the Agreement and of forming a rational judgment as to its effect upon his interests.
19. In view of the circumstances discussed in the foregoing paragraphs, we hold that the is sufficient evidence eon record to prove that Ahmad was not of sound mind and was, therefore, not competent to enter into the Agreement. The findings of the Trial Court on issues Nos. 2 and 4 are, therefore, reversed.
20. However, before parting with the discussion on issues Nos. 2 and 4 we would like to record our disapproval of the manner in which Ex.D-4 was dealt with by the Trial Court. In the first instance, the Trial Court ought to have noted with specificity the objections raised by the plaintiff to the admissibility of the said document instead of making the terse and unhelpful noting that it was subject to objection. The Trial Court then should have given its findings on the same. The proper time for a decision on the objections was prior to admitting Ex.D-4 in evidence and not at the time of pronouncing judgment. Once a document is marked as an exhibit the party- producing such document can justifiably consider it to be part of the evidence. We are of the view that the procedure adopted by the Trial Court, in first accepting Ex.P-4 and then excluding it from evidence while pronouncing judgment in the suit, caused prejudice to the defendant. We would, therefore, have been inclined to allow additional evidence for the limited purpose of proving Ex.D-4 at the appellate stage but feel that this is not necessary in view of the evidence already on record to support the findings which we have recorded on issues Nos. 2 and 4.
21. In view of our findings on issues Nos. 2 and 4 it would not have been necessary to consider the evidence and give our findings on the other issues. However, since we propose to accept this appeal there is a possibility that the respondent may exercise his right of appeal to the Hon'ble Supreme Court. It would, therefore, be appropriate to decide the remaining issues also so that our findings on these issues are available for consideration in appeal should our reasoning on issues Nos. 2 and 4 not find favour with the Hon'ble Supreme Court.
22. We, propose to consider issues Nos. ,3 and 5 together. The witnesses appearing on behalf of Shahamad in relation to these issues include Mumtaz Ahmed PW-1. And Ghulam Haider PW-2 who are marginal witnesses to the Agreement Ex.P-1 and the receipt Ex.P-2. They have deposed that the Agreement and receipt were duly executed in their presence by Ahmed and the sum of Rs.3,75,000/- was paid by Shahamad to Ahmad. They do not know where Shahamad got the money from Qazi Noor Ellahi, who appeared as PW-3, is the scribe of both Ex.P-1 and P-2. He stated that it was Ahmad who had these documents written; In his cross-examination he denied the suggestion put to him that there were about 25 or 26 different criminal cases against him for preparing false documents. He, however, admitted that two such cases had been registered against him. Muhammad Mumtaz, appeared as PW-4 and stated that he identified Ahmad at the time of registration of the general power-of-attorney Ex.P-3 which purportedly was executed by Ahmad in of Shahamad ad was registered before the Sub-Registrar, Sargodha, on his identification.
23. Shahamad appeared in the witness-box as PW-7 to support his own case. He stated that the sale of the suit land was agreed between him and Ahmad in the presence of Dosa and Muhammad and the Agreement Ex.P-1 and the receipt Ex.P-2 were executed one month later when he paid the sum of Rs.3,75,000/- to Ahmad. He also stated that after payment of the balance consideration of Rs.25,000/- at the time of execution of the power-of-attorney Ex.P-3 he did not owe any further amount to Ahmad. In his cross; examination he acknowledged that he did not possess a bank account. He stated that he kept his money at homes.
24. Dosa as DW-1 and Umar Hayat DW-2 deposed that Ahmad never sold his land to Shahamad nor did he execute the Agreement Ex:P-1 or the receipt Ex.P-2, nor was he paid the sum of Rs.3,75,000/- as alleged by Shahamad. These witnesses also deposed that at the time of Ahmad's death, his bank account did not contain any amount. According to the evidence did not contain any amount. According to the evidence led by the defendant, Ahmad was more than 100 years old when he died. The plaintiff's witnesses, however, variously state his age at around 65 years and 95 years.
25. From the evidence discussed above, the Agreement Ex.P-1 and the receipt Ex.P-2 are proved to have been executed by Ahmad. There is no direct evidence produced by Dosa to establish that the aforesaid documents were procured by Shahamad through fraud or forgery. This", however, is only to be expected as Shahamad is unlikely to have committed 'any fraudulent act within the presence or knowledge of Dosa. If of sound mind, Ahmed could have provided proof, one way or the other of fraud or forgery. However, as noted above, Shahamad made sure that the Agreement was kept hidden for an indefinite period awaiting the death of Ahmed whereafter it was brought to light and is now being enforced through Court in the present litigation. There are, before us, certain significant instances of Shahamad's conduct which are discussed below. These instances do suggest a lack of probity on the part of Shahamad but do not in our opinion, provide sufficient circumstantial evidence to support the conclusion that the Agreement and the receipt Ex.P-2 were procured through fraud and forgery. To prove issue No. 3, it was necessary for Dosa, on whom the burden of proof lay, to establish the existence of any of the instances of fraud set out in Section 17 of the Contract Act. This he has not been able to do. As result, issue No. 3 is not proved on the record and is therefore, decided against defendant No. 2.
26. Shahamad's conduct adverted to in the preceding paragraph does, however, have bearing on our decision on issue No. 5. We, therefore, discuss the same below.
27. The Agreement itself and the nature of the terms contained therein have already been discussed above and reflect at the very least that Shahamad was taking advantage of Ahmed, if not on account of his unsound mind, then on account of reduced mental capacity due to Ahmed's advanced age. In this context it is also worth noting that even according to the testimony of Shahamad the bargain between him and Ahmad was truck in the presence of Dosa and Muhammad. It is therefore, not understandable as to why they were not involved as witnesses when subsequently the Agreement and the receipt Ex.P-2 were executed.
28. We next refer to 'another aspect of Shahamad's conduct In his plaint Shahamad has stated that he was at all times ready and willing to gt the sale-deed executed in his favour. He, however, did not make any attempt to obtain a sale-deed during the lifetime of Ahmed nor did he file any suit for specific performance against Ahmad before> his death. However, only 8 days after the death of Ahmed such suit was filed. Form Shahamad's conduct it can be inferred that he had no desire to enforce the Agreement against Ahmad through Court and thereby expose Ahmad's lack of competence to contract. There is an averment in Shahamad's plaint that he did not get a sale- deed for the suit land, but instead obtained a power-of-attorney from Ahmad, because he had acquired the land for onward sale at a profit and that by this device he was able to avoid the transaction costs , associated with a sale. This, however, is not stated in Shahamad's testimony nor is there any evidence in support of the aforesaid explanation. On the contrary, the power-of- attorney itself is of doubtful authenticity and casts doubt on the story set-up by Shahamad.
29. This brings us to the next significant aspect of Shahamad's conduct which relates to the power- of-attorney Ex.P3 purportedly executed by Ahmad in favour of Shahamad. It was 'got registered in Sargodha rather than Tehsil Bhalwal which would have been the logical place for registration being the Tehsil in which the property subject-matter of the document was situated and also the place where both Ahmad and Shahamad were resident. The scribe of the document namely Fazal Karim appeared as PW-5 and stated that he did not know Ahmad. The person who supposedly identified Ahmad in the registration proceedings appeared as PW-4 but was unable to give even the most rudimentary description of Ahmad. So much so that he was unable to say if Ahmad sported a beard. He was also unable to identify any other distinguishing feature of Ahmad. The other person, who purportedly identified Ahmad, during the registration proceedings, namely, Ahmad son of Baqari, was not produced in Court. Ghulam Murtaza (PW-6) the marginal witness to Ex.P-3, has also acknowledged that he did not know Ahmad prior to the execution of the power-of-attorney and that there 'was no relative accompanying Ahmad. In these circumstances it would be reasonable to conclude that Ex.P-3 was not executed by Ahmad and that it was procured by Shahamad fraudulently.
30. Finally, we refer to the relationship between Shahamad and Muhammad which has been proved on record as has been the fact that Muhammad had attempted to have the suit I and transferred to himself and would have succeeded in his attempt but for the timely intervention of Dosa. The appellant's contention that Muhammad thereafter, in league with his brother-in-law Shahamad, has colluded in the present proceedings with the objective of depriving Dosa and Mst.
Satto from their legal inheritance, is also given credence by the conduct of Muhammad who conceded without demur the claim of Shahamad even though there were, as proved on record, strong grounds to resist the 'suit filed by Shahamad. The case with which Muhammad surrendered his valuable rights in the suit land also raises a strong inference that he was in league with Shahamad and both were intent on depriving Dosa and Mst. Satto of their share in Ahmad's estate.
31. On the basis of the foregoing discussion we have come to the conclusion that the conduct of Shahamad demonstrates lack of probity. It has not been fair, above-board and transparent. There are, as such, no equities in his favour. Section 32 of the Specific Relief Act stipulates that the jurisdiction to decree specific performance of a contract is discretionary. The Court is not bound to grant such relief merely because it is lawful to do so. More specifically, Section 22 provides that it would be proper not to decree specific performance where the circumstances, in which a contract is made, are such as to give the plaintiff an unfair advantage over the defendant, even there is no fraud or misrepresentation on the plaintiff's part. Earlier in this judgment we have considered various aspects of the case including the terms of the Agreement, Shahamad's conduct and other circumstances of this highly contentious litigation. We would be hard put to find a case more suitable for refusing relief to the plaintiff on the basis of the rule embodied in Section 22 of the Specific Relief Act. We, therefore, hold that Shahamad is not entitled to the discretionary relief of specific performance. As a consequence, issue No. 5 is decided- against Shahamad respondent No. 1.
32. Issues Nos. 1 and 6 appear to have been abandoned by Dosa, who did not adduce any evidence on these issues or press the same. These issues were, therefore, rightly decided against Dosa defendant No. 2.
33. The result of the above discussion is that this appeal is accepted, the judgment and decree dated 12.7.1997 passed by the learned Trial Court, are set aside and the suit field by Shahamad is dismissed. The appellant shall be entitled to his costs throughout which shall be payable by Shahamad respondent No. 1.