Mst. Abida Khatoon, the predecessor-in-interest of respondents No. l to 11 filed a suit against the petitioner and one Syed Sakhawat A.I. In the suit it was alleged that the said Abida Khatoon was the owner of land measuring 24 Kanals, 4 Marlas in Tehsil and District Sialkot; that she agreed to sell the land to Major(R) Abdul Hamid. The price was fixed at Rs.325 per Marla; that Abdul Hamid was to pay Rs.40,000 as earnest out of which Rs.20,000 were paid at the time of execution of agreement.
The balance of Rs.20,000 was to be paid till 15-11-1971 failing which the agreement was to stand cancelled; that the agreement was to be performed within a year and six months; that during the said period Abdul Humid could sell the land wholly or severally and in such an eventuality 2/3rd of the sale price was to be retained by Abida Khatoon; that to carry out the performance of agreement, a power of attorney was executed in favour of Sakhawat A.I; that Abdul Hamid died about 7 months-prior to the institution of the suit and the power of attorney stood revoked; that the petitioner a son of the said Abdul Hamid, in collusion with the said attorney got a sale deed in respect of 3 Kanals,,2 Marlas of land registered in his favour and has thus committed a fraud on the said plaintiff. She alleges that the sale was without consideration and the document is otherwise illegal and void. It was further alleged in the plaint that the petitioner was asked to treat the document as void and not to interfere in her ownership and possessory rights, whereupon he handed over the original sale deed to the said plaintiff but later had again started interfering with the said rights. With these averments a declaration was sought that the sale deed dated 12-5-1971 executed by the attorney in favour of the petitioner be declared to be illegal and ineffective upon the rights of the said plaintiffs. A permanent injunction was also sought restraining the petitioner from alienating the suit-land. In his written statement the petitioner took the plea that Rana Muhammad Abdullah Advocate was paid from time to time a sum of Rs.98,000 by the petitioner and his late father. After the death of the said Abdul Hamid the petitioner requested Rana Muhammad Abdullah and the said Sakhawat A.I to transfer the entire land in his name. However, Rana Muhammad Abdullah persuaded him to buy only the suit---land and that as and when he will be procuring the buyers they will be executing the sale deeds directly in their favour and in this way the petitioner will save a lot of money. It was under the said advice that the sale deed w a: executed. Regarding the original sale deed he states that Rana Muhammad Abdullah being his Legal Advisor has taken away the sale deed. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 19-12-1975. A first appear filed by the petitioner was heard by a learned Additional District Judge Sialkot who dismissed the same on 23-11-1986.
2. Learned counsel for the petitioner contends that the evidence of record has been misread by the learned Courts below particularly complain: that the agreement and the power of attorney admittedly executed by Abide Khatoon had not been construed properly. Learned counsel for the respondents supports the impugned judgments and decrees passed by the learned Courts below.
3. I have gone through the copies of the record appended with the Civil Revision with the assistance of the learned counsel for the parties. There is no denial in the plaint of the deceased lady that she had executed the agreement dated 21-2-1971 which is on record as Exh.P.5 as also the power of attorney of the even date in favour of Sakhawat A.I on 23-2-1971 which is Exh.P.1 on the record. I have been taken through the agreement Exh.P.5 by the learned counsel for the parties. I find that 24 Kanals, 4 Marlas of land described in the agreement was agreed to be sold by Abida Khatoon to Major (R) Abdul Hamid. The consideration was settled at Rs.325 per Marla. Abdul Hamid was to pay an earnest money of Rs.40,000. Out of this amount he had paid Rs.20,000 through a cheque dated 21-2-1971. The balance of Rs.20,000 of earnest money was to be paid upto 15-11-1971.
The balance amount of consideration i.e. Rs.1,17,300 was to be paid on 15-9-1971 when the sale deed was to be executed by Abida Khatoon in favour of Abdul Hamid and it was to be registered. It was stipulated that in case the purchaser could not get the sale deed registered then the earnest money shall stand forfeited in favour of the said lady on the cancellation of the agreement and in case she could not get the sale deed registered then she would pay Rs.40,000 over and above the amount of Rs.40;000 received by her by way of earnest: The agreement then proceeds further. It states that in case within the said period of time if the purchaser (reference is to Abdul Hamid) enters into an agreement with some one for part of the land, then the lady will herself get a sale- deed executed in favour of the said purchaser (reference is to the person to whom the sate hart been arranged to be made by Abdul Hamid). It was further agreed that the consideration that would be paid bi the said purchaser would be retained by Abida Khatoon to the extent of 2/3rd while 1/3rd shall be retained by Abdul Hamid. It has further been stated in the agreement that the subsequent sale shall also he subject to the same terms as are applicable to Abdul Hamid under the agreement, and in case the Raid subsequent purchaser/would not get the sale-deed registered during the said period, then his advance amount shall also stand forfeited.
4. It will be pertinent here to refer to the said power of attorney as well at this stage. According to the power of attorney Exh.P.1 Abida Khatoon proceeded to appoint Sakhawat A.I as her attorney.
The document recites that she had agreed to sell 24 Kanals, 4 Marlas of land to Abdul Hamid. The attorney was authorised to sell the land to Abdul Hamid or on the instructions of Abdul Hamid to sell the land as a whole or in parts to such person or persons as Abdul Hamid directs and to collect the consideration after adjustment of earnest money. The power of attorney then further proceeds to state that Rana Muhammad Abdullah, Advocate who is a general attorney of the lady under the instructions of Abdul Hamid settles, the transaction of the whole of suit-land or a part thereof under instructions of Abdul Hamid. Then Sakhawat attorney shall act on the instructions of said Rana Muhammad Abdullah.
5. The said Abdul Hamid had died on 14-4-1971. On 1-5-19'71 the said Sakhawat A.I proceeded to execute the impugned sale-deed in favour of the petitioner which was got registered on 12-5-1971.
Copy on record is Exh.P.2. The sale has been made in respect of 3 Kanals and 2 Marlas of the land.
6. A reading of power of attorney Exh.P.1 and the agreement Exh.P.5 together would show that Abdul Hamid had agreed to enter into a contract for sale of 24 Kanals, 4 Marlas of land with Abida Khatoon on terms and conditions settled there. It is also apparent that Abdul Hamid was to get the entire land transferred in his favour. He was permitted to split up the bargain only if he was himself not to purchase the land but was to sell the same to some third party. In such an eventuality the matter was to be settled with the lady who was to be paid 2/3rd of the price to be received from such a third party. The attorney was also either to sell the entire land in favour of Abdul Hamid and it was only in terms of the agreement that if the land was to be sold to a third party; that the bargain was to be split up and the attorney was to act in the matter under the instructions of Rana Muhammad Abdullah, Advocate. Learned counsel for the petitioner argues that being an heir or Abdul Hamid the purchaser, the petitioner had a right to seek specific performance of the contract.
There cannot be possibly any cavil with the proposition being so propounded by the learner, counsel. However, the specific performance has to be in accordance with law of the land. Learned counsel has not been able to explain as to on what principle of law of equity can the partial performance of contract in the form of the impugned sale-deed be sustained in favour of his client. Proceedings on the same analogy the attorney namely, Sakhawat A.I had no authority to execute or to get a sale-deed registered in favour of Abdul Hamid and consequently to any of his heirs of only a portion of the land. Under the agreement and the power of attorney the land so far as its sale to Abdul Hamid was concerned, had to be of the whole land and not of a part thereof. On this account the sale in favour of the petitioner is wholly without lawful authority.
7. As to the performance and right to seek performance of the contract is concerned, suffice it to say that under the agreement Abdul Hamid was to pay a sum of Rs.40,000 as earnest money and then he was to pay the balance amount of Rs.1,17,300 up to 15-9-1972. The balance of the earnest money i.e. Rs.20,000 was to be paid upto 15-11-1971. A bare look on the agreement would show that the operation was to start after the payment of the said earnest amount. It was after the payment of the earnest money that upto 15-9-1972 Abdul Hamid could have either get the land transferred in his own name on payment of the agreed price or within the same stipulated period to arrange the sale of land in parts to a third party.
8. In the present case learned Courts below have very rightly concluded that the transaction smacks of fraud and mala fides being based on collusion with the said attorney of the respondent who have tried to deprive the deceased lady of the land without even paying any consideration.
9. Ch. Mushtaq Ahmad Khan, learned counsel for the respondents has drawn my attention to cases of Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others (1993 SCM R 804) and Wali, Jahania and Allah Dad v. Manak A.I, Lal and Murad (PLD 1965 SC 651) to urge that the sale in question was a partial performance which is not permissible under the law. So far as the power of attorney is concerned, by now it is well-settled that document has to be strictly construed and as such its recitals cannot be stretched to cover the arguments of the learned counsel for the petitioner to the effect that power of attorney could be utilised for partial sale in favour of the original purchaser or his successors.
10. In view of the above discussion no case has been made out for interference with the impugned judgments and decrees within the four corners of section 115, C.P.C. This Civil Revision is accordingly dismissed with costs.