Since common question of law and fact is involved in R.S.As. Nos.2 of 1997 and 3 of 1997, I propose to decide the same by a common judgment.
2. Plaintiffs/appellants (successors-in---interest of Kafaitullah Faridi) filed a suit on 8-8-1983 for possession by redemption of mortgage property No.S-31R-120 situate at 120 McLeod Road, Lahore, on payment of Rs.71,000 as mortgage money as per registered mortgage deed dated 16-8-1960. It was averred in the plaint that Kifayatullah Faridi the father of the plaintiffs 1 to 8 and husband of plaintiff No.9 mortgaged the suit property vide registered mortgage deed dated 16-8-1960 in favour of Qazi Muhammad Sharif, father of defendants/respondents 1 to 7 and husband of defendant No.8 for an, amount of Rs.71,000 alongwith possession. Kafaitullah Faridi, the predecessor-in- interest of the plaintiffs died in 1962 and Qazi Muhammad Sharif (predecessor-in- interest of defendants) died in 1980. The defendants were requested to receive Rs.71,000 and return the possession of the mortgage bungalow to the plaintiffs but they declined to do so. The suit was resisted alleging that the plaintiffs have no locus standi to institute the suit-for redemption of the property. The predecessor-in-interest of the plaintiffs vide agreement dated 7-11-1960, sold the equity of redemption in favour of predecessor-in--interest of the defendants and vide agreement dated 18-10-1961, admitted to have received the full sale consideration and also admitted that Qazi Muhammad Sharif shall be deemed to be in possession of the property as full owner. The mortgage was for 30 years and after the execution of the agreement, dated 18-10-1961 the formality of registration of sale deed could be completed any time. After the issuance of the PTD, Mst. Jameela Begum, the mother of the plaintiffs had been postponing the execution of the sale deed on the ground that the same shall be done on attaining the age of majority by the plaintiffs, her sons. It was further stated that the property in dispute was old for an amount of Rs.1,01,000 vide agreement to sell, dated 7-11-1960 and payment of Rs.30,000 was acknowledged by Kafaitullah Faridi vide agreement dated 18-10-1961. Under the said agreement the vendee could get the sale deed executed in his favour before 15-8-1990. In the alternative it was pleaded that they were in adverse possession.
3. The respondents also filed a suit No. 311/1 on 13-9-1984 for specific performance of the agreement to sell dated 18-10-1961. It was averred in the plaint that late Kafaitullah Faridi was transferred the suit property vide PTO No.DSC-1-501/049038 dated 30-11-1959. He was a man of meager sources and had a small verified claim to the tune of Rs.5,000 only and was not in a position to make the payment of the full price of the property. He vide registered mortgaged deed dated 16-8-1960, mortgaged the same property for a consideration of Rs.71,000 for a period of thirty years.
Thereafter, vide agreement dated 7-11-1960 he agreed to sell the property for a consideration of Rs.1,01,000 in favour of Qazi Muhammad Sharif (predecessor-in-interest of the respondents). It was agreed that after the issuance of PTD in favour of Kifaitullah Faridi, he will send a registered notice for completion of the sale within 15 days for payment of the balance amount of Rs.30,000. Vide another agreement dated 18-10-1961, late Kafaitullah Faridi, acknowledged the payment of entire sale consideration as under:-- After having paid the entire sale consideration to Kafaitullah Faridi, nothing was left to be performed except the formal execution of the sale deed after issuance of the PTD. The plaintiffs have been paying all the utility bills and the taxes. Said Kafaitullah Faridi died on 16-6-1962 and Muhammad Sharif Qazi died on 15-6-1980. Kafaitullah Faridi deceased did not serve any notice on late Muhammad Sharif Qazi, after the issuance of PTD in his favour. The plaintiffs had spent huge amount on the renovation of the house after becoming its owners under the, agreement, dated 18- 10-1961. The cause of action arose in the year 1982 when the defendants (appellants) filed an ejectment petition against them and also refused to accept the execution of the aforesaid' agreement to sell. The two suits were consolidated vide order, dated 13-3-1985.
4. Out of the pleadings of the parties, following issues were framed:--
(1) Whether the Suit No.311 / 1 of 1984 is time-barred? OPD
(2) Whether the plaintiffs have no locus standi?
(3) Whether the plaintiffs have no cause of action? OPD
(4) Whether the agreement of sale deed dated 18-10-1961 was executed by late Kafaitullah Faridi, the predecessor-in--interest, of the defendants and full consideration was paid to him towards the agreement? OPP
(5) Whether the plaintiffs are entitled to the decree for specific performance of that contract? OPP
(6) Whether the defendants have no locus standi and no cause of action to institute the Suit No.91/1 of 1983?
(7) Whether the plaintiffs are in possession of the property in dispute as mortgagee? OPD
(8) Whether the mortgage deed dated 16-8-1960 still subsists? If not, what is its effect? OPD
(9) Whether the defendants are entitled to redemption, of the suit property? If so, on what terms and conditions? OPD
(10) Whether the mortgage deed dated 16-8-1960 stands substituted by agreement of sale dated 7-11-1960 and 18-10-1961 and nature of possession stands changed from mortgage to complete bargain of sale? OPP
(11) Whether the Suit No.911/1 of 1983 is premature? OPP
(12) Whether the possession of the plaintiffs over property in dispute is protected under section 53- A of Transfer of Property Act? OPP
(13) Whether the defendants of Suit No.91/1 of 1983 are entitled to special costs under section 35-A?
If so, to what extent?
(13-A) Whether the agreement, dated 7-11-1960 and 18-10-1961 are result of fraud and are fake and fabricated documents, hence are not enforceable against the defendants? OPD
(14) Relief.
The respondents produced nine P.Ws. And documentary evidence Exh.P.1. To Exh.P.12. The defendants/appellants produced four defence witnesses and also produced documentary evidence D.W.1/D1 to Exh.D.W.1/D5. After hearing the parties, the learned trial Court vide its judgment dated 30-1-1993 dismissed the suit of the appellants for redemption of property titled Salim Ullah Faridi and others v. Amjad Sharif Qazi and others and decreed the suit for specific performance titled Amjad Sharif Qazi and others v. Salim Ullah Faridi and others. Two appeals were preferred before the District Judge, Lahore which came up for hearing before Mr. Nasir Hussain, Additional District Judge, Lahore, who vide his judgment dated 10-11-1996 dismissed the same and upheld the judgment of the learned trial Court dated 30-1-1993.
5. Learned counsel for the appellants contended that the agreement dated 7-11-1960 Exh. P.2 and agreement dated 18-10-1961, Exh. P.3. Were forged documents. There was no occasion to execute the same. There was nothing on the record to show the payment of the alleged remaining Rs.30,000 to deceased Kafaitullah Faridi. The said two documents were prepared after filing of the ejectment petition against the respondents. The respondents remained silent for 23 years and when application for ejectment of the respondents was filed on 7-2-1982, the respondents fabricated the two documents. He further submitted that agreement dated 18-10-1961 Exh.P.3 was not a document enforceable at law the same was not signed by Qazi Muhammad Sharif. Reliance was placed on 1990 SCMR 28. Learned counsel urged in the alternative that agreement dated 7-11- 1960 and 18-10-1961 were a mortgage by conditional sale and not am agreement to sell. Reliance was placed on 1992 SCMR 417, PLD 1985 Lah. 637, 1990 PSC 852. Learned counsel argued that the respondents had pleaded the prescriptive right under the Limitation Act which was inconsistent with the plea of sale. Reliance was placed on PLD 1997 SC 353, PLD 1980 SC 1049 and 1988 SCMR 1765.
6. Qureshi Muhammad Hafeez, Advocate, learned counsel for the appellants adopted the arguments of Muhammad Naveed Shehryar, Advocate, but added that the signatures of Kafaitullah Faridi, on alleged agreements to sell dated 7-11-1960 Exh.P.2 and 18-10-1961, Exh.P.3. Did not match with each other and were different to the naked eye. Kifaitullah Faridi did not sign any document in English. One marginal witness Mahmood Ashraf who appeared as P. W.3 was a minor at the time of the alleged agreement dated 18-10-1961 Exh.P.3. Learned counsel urged that the respondents were in the know of PTD as they have stated in their plaint and written statement that the widow of Kafaitullah Faridi had been postponing the execution of the sale-deed on one pretext or the other. The suit should have been filed within three years and it is clearly barred by time.
7. Conversely, learned counsel for the respondents Ch. Muhammad Bukhsh, Advocate, submitted that discrepancy in the signature is natural and that signatures of Kafaitullah Faridi, on Exh.P.4, an admitted document, are also different. Legal heirs of Kafaitullah Faridi, have no locus standi to challenge the transfer of property by him. Learned counsel referred to assessment orders Exh.P.9 to Exh.P.12 showing Qazi Muhammad Sharif, as owner. It was further submitted that the plea of fraud had not been taken in the written statement and issue No.13-A was illegally framed. No evidence can be produced on what is not alleged in the written statement.
Mian Nisar Ahmad, Advocate, for respondents also advanced arguments on behalf of respondents and submitted that what is not pleaded cannot be proved by leading evidence. Reliance was placed on 1988 SCMR 1696. Learned counsel emphasized that plea of fraud was not pleaded nor evidence was led on it. He further argued that the suit for specific performance was not barred by time as the date for issuance of notice was terminus a quo. There was a concurrent finding of fact and the same cannot be set aside howsoever erroneous it may be. The evidence of the respondents was full of contradictions. Learned counsel submitted that there was no need to obtain the expert opinion of handwriting expert as the same was of no value. Reliance was placed on 1985 SCMR 359.
8. Khawaja Ibrar Majal, Advocate, appearing on behalf of respondent No.5 reiterated the arguments advanced by two senior learned counsel for respondents. He submitted that 1990 SCMR 28 was not applicable to the facts of the case. The appellants were guilty of suppressing the facts in the ejectment petition and had not come to this Court with clean hands. He particularly stressed that no reappraisal of evidence can be made as there was concurrent finding of the Courts below.
9. I have gone through the judgments of the Courts below and perused the record minutely. I do not agree with the learned counsel for the appellants that the suit was barred by time. A notice through registered post was to be issued after obtaining the PTD for execution of sale-deed. There is nothing on the record to show the date of issuance of the PTD. Similarly, no notice for registration of sale deed was issued by the appellants. In the absence of the same it cannot be said that the suit was barred by time.
The contention of the learned counsel for the appellants that the agreement dated 7-11-1960 Exh.P.2 and dated 18-10-1961 Exh.P.3 were not agreements of sale but mortgage by conditional sale, also has no force. The authorities relied upon by the learned counsel for the appellants Abdul Sattar v. Mst. Sardar Begum, etc., Muhammad Kazam through Legal Heirs v. Mst. Janat Bibi and Pomal Kanki Govnindji and others v. Vrajlal Karasandas Purohit and others etc. (supra) are not applicable to the instant case. A criteria has been laid down by the Honourable Supreme Court in the case of Abdul Sattar v. Mst. Sardar Begum etc. 1992 SCMR 417 by approving the principle enunciated in AIR 1927 All. 321, which reads as under:-- "A transaction cannot amount to a mortgage by conditional sale unless it fulfils the conditions of section 58(c). Nor can a transaction be not a mortgage by conditional sale if it comes within that section. The ascertainment of the true intention used to be a matter of considerable difficulty. The Legislature has come to the rescue of the Courts and laid down conditions which, if fulfilled, would make the sale a mortgage. If the mortgagor ostensibly sells the mortgaged property on condition
(a) that on certain date the sale shall become absolute or (b) that on such payment being made the sale shall become void or (c) that on transfer the property to the seller, the transaction, though in the grab of a sale, is in the eye of the law, a mortgage by conditional sale. Sales with an independent covenant for repurchase have a resemblance to the third class of ostensible sales mentioned above. The section provides that where mortgagor has ostensibly sold his property on condition that on payment of the mortgage money the buyers shall transfer the property to the seller the transaction is a mortgage by conditional sale."
None of the conditions have been fulfilled in the present case. The agreements Exh.P.2 and Exh.P.3 (subject to my finding in the latter part of the judgment) appear to be sale and not a mortgage by conditional sale.
The agreement dated 7-11-1960 Exh.P.2 clearly shows that the signatures of Islam Akhtar Warsi, marginal witness, on this document are in the handwriting of the scribe. It is visible to the naked eye. He appeared as P.W.6 and deposed that Qazi Muhammad Sharif and Kafaitullah signed Exh.P.2 dated 7-11-1960 in his presence. He did not know if any other witness signed the said document but improved his statement by saying that he did not know the name of the person who signed it. He is not a witness of the sale transaction and is silent as to contents of document. He has not said a word about the sale consideration of Rs.1,01,000 and other stipulations. In the absence of the same the alleged sale cannot be said to have been proved. The most important aspect of this document is that it is a unilateral writing by Qazi Muhammad Sharif in his own favour. It unequivocally demonstrates that the offer is not from deceased Kafaitullah Faridi, but by Qazi Muhammad Sharif proposing conditions of sale to himself. This writing by Qazi Muhammad Sharif in his own favour coupled with the doubtful signatures of Islam Akhtar Warsi, P.W.6, cannot be considered an agreement to sell. Similarly, the alleged sale document dated 18-10-1961, Exh.P.3 remains unproved.
The marginal witnesses of the same do not inspire confidence. Mahmood Ashraf, appeared as P.W.3 and admitted that he worked in Rustam Sohrab Factory and Qazi Muhammad Sharif was a Director in the Company. In the beginning, he has given his age to the Court as 42 years, which means that he was 16 years of age thus a minor at the time of execution of agreement to sell dated 18-10-1961 Exh.P.3. He admitted that he used to come to deceased Kafaitullah Faridi for tuition, but he stated in the cross---examination that he was about 19/20 years of age at that time which is an improvement. He also did not know what actual amount was paid to Kafaitullah Faridi on the material date. Similarly there are no separate receipts showing the payment of Rs.9,125 and Rs.15,000 as alleged. In my view in the absence of the receipts for the payment of the said amounts, the receipt of Rs.30,000 as balance of the sale consideration is not proved.
Ghulam Sarwar, P.W.4, admitted in his cross-examination that he went to the house of deceased Kafaitullah Faridi 2/3 times whereas subsequently, he admitted in the cross-examination that he did not know the predecessor-in-interest of the plaintiffs before the execution of Exh.P.3. He also admits that he was an employee of the respondents since 1962. He is not a reliable witness.
The document Exh.P.3 has its origin in Exh.P.2. Both the documents have been written by the same scribe. I have already held that Exh.P.2. Is not valid document, any. Superstructure built upon it also falls to the ground. Both the alleged agreements dated 7-11-1960 and 18-10-1961 Exh.P.2 and Exh.P.3.
Respectively, have not been proved on the record, and seem to have been fabricated after the death of Kafaitullah Faridi. In my view, his signatures on the said two documents are visibly different and do not match with each other. P.W.8 has admitted in his testimony that the area of the bungalow is about two Kanals, five Marlas and it has about 16/17 rooms. This bungalow is situate at 120-McLeod Road, Lahore, which is in the heart of the town. The sale price of this bungalow i.e. Rs.1,01,000 cannot be said to be its true market value by any stretch of imagination.
The Iqramama dated 18-10-1961 Exh.P.3 can be looked at from another angle, it does not bear the signatures of Qazi Muhammad Sharif, the vendee (predecessor---in-interest of the respondents) signifying his acceptance. Every Iqrarnama does not create legal relationship between the parties.
In the case of Muhammad Kazam v. Janat Bibi PLD 1985 Lah. 637 it was observed:-- "The second document Exh.R.1 is in fact a unilateral writing by the respondent agreeing to re- transfer the house to the appellant. Though it is in his favour but he is not a signatory thereto and thus not party to the same.
The Honourable Supreme Court has laid down in the Mst. Barkat Bibi and others v. Muhammad Rafique and others (supra) that every Iqrarnama is not an agreement for its enforcement. It was observed:-- "Moreover, we observe that it is a unilateral offer made by Muhammad Din to recovery the land as soon as they (the vendors) themselves have raised the money. No indication is to be found in the document that this offer was accepted by the respondent for no one on the side of the respondents has signed this Iqrarnama in token of its acceptance. It was no more than a proposal because unless the person to whom the offer is made signifies his willingness to accept it, the proposal does not, in law, ripen into an agreement."
10. As far as the contention of the learned counsel for the respondents that the plea of fraud was not taken in the written statement nor any evidence was led on it, suffice it to say that the execution of the disputed agreements to sell were denied in the written statement in paras.2 and 3.
Para. No.3 of the written statement reads as under:-- "That, the contents of para. 3 are incorrect, hence vehemently denied. All the contents of the para. Are absolutely false. There was no agreement as contended in this paragraph. No deed as alleged in this paragraph was executed on 18-10-1961 between the predecessor-in-interest of the plaintiffs and that of the defendants. The contention of the repairs etc. Is also false."
A specific Issue No.13-A was framed on this and both the parties led evidence on it. No objection was raised on it. This point cannot be urged for the first time before this Court in the second appeal.
Both the Courts below have not taken into account the above stated facts and have simply held that two documents have been proved. The legal effect of same has been considered.
As regards the contention of the learned counsel for the respondents that the documents Exh.P.9 to P.12 show Qazi Muhammad Sharif as owner of the property, suffice to say that these are only the copies of the assessm ent from Register PT-I and are not documents of ownership/title of the property. No receipt for payment of the property tax, as alleged, has been placed on the record.
This belies the plea of the learned counsel that Qazi Muhammad Sharif has been paying the property tax of the property in dispute. The concurrent findings of the Courts below are perverse and not based on correct interpretation of the said two documents. The interpretation of document is a question of law. Both the Courts below misunderstood and misinterpreted the documents as such the judgments are unsustainable in law.
11. Under section 22 of the Specific Relief Act, 1877 a Court is not bound to grant specific performance of a contract in every case as the same is discretionary matter. See Syed Arif Shah v.
Abdul Hakim PLD 1986 Kar.
189. The Honourable Supreme Court in the case of Sirbaland v. Allah Loke and others 1996 SCMR 575 observed as under:-- "A perusal of the above section indicates that a Court is not bound to grant relief of specific performance as the grant of the same is discretionary matter but this discretion is not arbitrary and should be guided by judicial principles which are susceptible to correction by a Court of appeal. It may further be noticed that where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the part of the plaintiff, the Court would refuse to grant the above discretionary relief of specific performance."
12. For what has been stated above, both the appeals are allowed; the judgments of the Courts below are set aside and the suit of the plaintiffs/appellants for redemption of the mortgage dated 16-8-1960 is decreed and a preliminary decree is passed on payment of Rs.71,000 within two months. The suit of the respondents for specific performance of the agreement dated 18-10-1961 is dismissed.
(i) Receipt of mortgage amount Rs.71,000
(ii) Previously received amount. Rs.9,125 (i.e) Cash by hand on 18-10-1961 Rs.15,000
(iv) Payment vide cheque, dated 18-10-1961Rs.5,875 Total Rs.1,01,000