Respondent's suit for specific performance against the appellants was dismissed, however, he was awarded a decree for a sum of Rs.10,000 the amount of earnest money, he had paid to appellant No. 1. This was challenged by the respondent in appeal and the learned Appellate Court by setting aside the decree of trial Court has allowed the suit. Hence this R.S.A.
2. Briefly stated the facts of the case are that on 20-12=1978. Appellant No. 1, Muhammad Zakria, executed an agreement to sell land measuring 24 Kanals, 9 Marlas, situated in 641/G.B., Tehsil Nankana, District Sheikhupura, in favour of the respondent for a consideration of Rs.45,000. A sum of Rs.10,000 was received by him as earnest money.
3. Appellant No.1, admittedly was a co-owner of the aforementioned land to the extent of 7 Kanals and 9 Marlas, and the rest of share, was owned by appellants Nos.2 to 4 as co-sharers. According to the case of the respondent, the appellants failed to specifically perform their part to the agreement by transferring the suit property in their favour, thus, they were constrained to file a suit for specific performance against them seeking the enforcement of agreement to sell, dated 20-12- 1978. This suit was resisted by the appellants. Appellants Nos.2 to 4., filed a separate written statement in which, it was stated in unequivocal terms that they are co-owners in the suit land, except 7 Kanals and 9 Marlas, which is owned by appellant No. l; appellant No. l executed the agreement to sell in favour of the respondent of his own; they had never authorized him to sell the share belonging to the other appellants and thus, such agreement cannot be enforced against them. Because they were neither a party to the agreement nor were bound by it. Appellant No. l had admitted the execution of the said agreement but attributed that in fact it is the respondent, who failed to perform his part of the agreement, by the target date, and therefore, was not entitled to the decree. The learned trial Court, after framing of issues and recording of evidence dismissed the suit to the extent of specific performance, holding that the respondent has failed to prove that the agreement to sell was executed by appellant No. 1, on behalf of appellants Nos.2 to 4, who admittedly were the co-owners of the suit-land, at the relevant point of time. No valid authority had been shown to be vesting in appellant No. 1, in this regard, however, as the agreement could not be enforced, but the trial awarded a decree of Rs.10,000 to the respondent, which amount he. Had admittedly paid to appellant No. l as the earnest money. This judgment and decree, as mentioned above, has been reversed by the Court, in appeal, on ' the reasoning that as per power of attorney, Exh. P.4, the other appellants had given. Power to appellant No. 1, to sell their share, in the suit-land.
In this behalf, it has been held that the stamp paper, on which Exh.P.4 has been written, was purchased on 22nd of November, 1978. The power of attorney was executed on 2-1-1979. This means that appellants Nos.2 to 4 had ratified the action of appellant No. l for entering into agreement to sell, on their behalf. In this regard, the provisions of section 196 of the Contract Act have been applied.
4. Learned counsel for the petitioner contends that learned Appellate Court, has failed to consider that Exh.P.1, the agreement to sell does not pastulate, whether appellant No.1 was acting as an attorney, on behalf of appellants Nos.2 to 4. Exh.P.1, clearly stipulates that Muhammad Zakria, appellant No. 1, is the sole and exclusive owner of the suit property and it is not so mentioned if the other appellants were also the co-owners and he was acting as an agent for them. No evidence has been led by the respondent that, at the time, when Exh. P.1 was executed, Muhammad Zakria had any authority, on behalf of the other appellants to enter into the sale agreement, therefore, they are not bound to the said agreement. It is also contended that appellants Nos.2 to 4 had seriously denied and disputed the execution of the power of attorney, dated 2-1-1979, thus, it was incumbent upon the respondent to prove this document, but instead of proving the same, this document has been tendered in evidence, by the counsel for the respondent, in his statement, which was objected to by the appellants. It is further contended that the doctrine of ratification has erroneously been applied to the facts and circumstances of the present case.
5. I have heard learned counsel for the parties. Admittedly, in the agreement to sell, Exh.P.1.
Muhammad Zakria, appellant No. 1, has asserted that he is the sole and exclusive owner of the suit property and it is he alone, who had entered into agreement to sell with the respondent. It is not so mentioned that the property is also co-owned by appellants Nos.2 to 4 and that he has any valid authority, on their behalf, to enter into the bargain. As per Jamabandi brought on the record by the respondent, as Exh.P.5, it is eminently clear ,that the other appellants were also co-sharers of the suit-land. Therefore, it was incumbent upon the respondent that if he was also buying the share of the other appellants to have got their names entered into the agreement to sell by verifying and specifying if appellant No. 1 had due authority, on behalf of the other appellants to sell their share.
Moreover, it is an admitted position on the record that the document, Exh.P.4, is of a subsequent date i.e. After the execution of Exh.P.1. This power of attorney, Exh.P.4, also does not specify, if the other appellants were ratifying the act of appellant No. l of having entered into an agreement with the respondent through Exh.P.1. The only fact that the stamp paper, Exh.P.4, was purchased on 22- 11-1978, before the agreement to sell, Exh.P.1 and was registered subsequent thereto. Is no reason to attract the principles as enunciated by section 196 of the Contract Act. In this regard,-it may be expedient to reproduce the provisions of section 196 of the Contract Act, which reads as under:-- "Where acts are done by one person on behalf of another, but, without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratify them, the same effects will follow as if they had been performed by his authority."
According to this section, the act, in the first instance, should have been performed by a person acting for the other but without the knowledge of the other. In the present case, according to Exh.P.1, appellants Nos. 2 to 4 p y are not shown to be the seller of the suit property and appellant No.1, was not acting on their behalf. Ever otherwise, before ratifying an unauthorized act of an agent, the principal, must, be proved to have the knowledge of the action he is approving so that he can exercise the option of ratifying or disowning. In the instant case, there is nothing on the record to establish that appellants Nos.2 to 4 were aware, if appellant No.1 has acted as an agent on their behalf while entering into the agreement to sell Exh.P.1. Thus, even if, a power of attorney was subsequently given by appellants Nos.2 to 4 to appellant No. 1, this does not constitute, ratification of the Act, by Muhammad Zakria, which fact was even not known to them. The principle of ratification is subject to the limitation that the person ratifying the contract must, at least, in order to be bound, know fully all the material circumstances, under which the act is so done and that act, which is cited to be ratified, must not be a void act. Reference in this behalf can be made to Abdul Majid and 2 others v. Waris A.I and another 1999 YLR 1668. As per Imperial Bank of Canada v. Mary Victoria Begley AIR 1936 PC 193, the principle of ratification can be pressed into service, if certain conditions are fulfilled. The relevant paragraph of the judgment is reproduced below:-- "The first essential to the doctrine of ratification, with its necessary consequence of relating back, is that the agent shall not be acting for himself, but shall be intending to bind a named or ascertainable principal. Hence where the agent puts some of the principal's money in his pocket, there cannot be any question of ratification by the principal, as the agent cannot be deemed to have taken the money for himself as agent for the principal. If the act has, been authorized, the contract between the principal and the agent would be the ordinary contract of loan." Halsbury's Laws of England, 2nd End.; p.231, Health v. Chilton (1844) 12 M&W 632 and Eastern Construction Co. v.
National Trust Co., (1914) AC 197, rel. On (p.197 C)."
6. In view of the facts of the present case, that appellant No. 1, while executing Exh.P.1 was not acting as an attorney for the other appellants. The other appellants, even subsequently, according to the alleged execution of power of attorney, Exh.P.4, were not aware, if any agreement had already been entered into appellant No.1, on their behalf. In such a situation, the doctrine of ratification was absolutely inapplicable.
7. Moreover, appellants Nos.2 to 4 had disputed the execution of Exh.P.4. This document was not put to them, while they appeared in the evidence, besides, it was incumbent upon the person, claiming due execution of a document to prove the same, in accordance with law. The proof of the execution of Exh.P.4. Is conspicuously missing in the i4stant matter. Exh.P.4 was only tendered in evidence in the statement of the counsel for the respondent, which was objected to by appellants Nos.2 to 4 and, thus, it had become all the more necessary that the respondent should have proved its due execution. Moreover, by adducing evidence to interlink that Exh.P.4. Was executed in connection with the agreement to sell Exh.P.1, i.e. Ratifying the authority of appellant No. 1. It may not be out of place to mention that the documents, which are not copies of the judicial record, should not be received in evidence, without the proof of the signatures and handwriting of the person alleged to have signed or written the instrument, even if, such documents are brought on record, are accepted without objection. But in the instant case, the objection of appellants Nos.2 to 4, in this behalf is very much on the record. Reliance is placed upon Muhammad Yousaf Khan- v. S.M.
Ayub and 2 others PLD 1973 SC 160.
7-A. From the reading of the judgment of the learned Court, in appeal, it seems that the Appellate Court has not taken into consideration the essential of the provisions of section 196 of the Contract Act, but has restricted itself to 4j&w inferences, on the basis of Exh.P.4, which inferences are not justified on the touchstone of the evidence adduced by the respondent. This judgment cannot be sustained.