' MIAN SAQIB N1SAR,, J.--- The suit for the Specific Performance of an agreement to sell regarding the sale of immovable property, filed by the appellant against the respondents, has been dismissed by the trial Court vide judgment and decree, dated 19-10-1996. But the alternate relief for the return of earnest money has been allowed to the plaintiff/appellant against some of the defendants of the case.
2. Briefly stated the facts of the case are, that Saleem ud Din, father of defendants Nos.1, 2, 2.A to 2- H and defendants Nos.3 to 23, were the owners of the land measuring 142 Kanals and 18 Marlas, situated in Chak No,127/G.B., Tehsil Jaranwala, District Faisalabad (land has been described in the plaint). The appellant on 21-9-1991, brought a suit for the specific performance against the defendants claiming that vide an agreement to sell, dated 16-3-1991, defendant No,1, for himself and as the general attorney of his father Saleem-udDin, (who had died by that time), and the legal heirs of the deceased i,e, defendants Nos.2, 2A to 2.H; defendant No,2, for himself and being the attorney of defendants Nos.4 to 19 and defendant No,23 on its own behalf and as the attorney of defendants No,20 to 22, agreed to sell the aforesaid land measuring 142 Kanals and 18 Marlas, for a total consideration of Rs,26,00,000 out of which, Rs,5,00,000 was paid by the plaintiff/appellant, as the earnest money to the executant/defendants. And on the payment of the balance consideration of Rs,21,000,00. All the defendants were bound to finalize the sale transaction in his favour by 15-1- 1992. It is further the case of the appellant that on the payment of Rs,1,000,00 by him to the tenant of the land, he also took over the possession of the said land. Therefore, the subsequent sales of the same land by the defendants vide sale-deeds No,1885,1 and 1886/1. Dated 8-9-1991, in favour of defendants Nos.24 to 28; who according to the appellant were well aware of his earlier agreement, were invalid, thus in the same suit, he challenged the above sales as well.
3. Defendants Nos.1 to 23, filed a joint written statement in which, they denied the execution of the agreement to sell in favour of the appellant, by the alleged executants/defendants. It was further pleaded in defence that the amount of the part consideration allegedly paid by the appellant, as mentioned above, is not in connection with the present transaction, rather it was for some other deal. The defendants also took . Up the plea that defendant No,1, was not the attorney on behalf of defendants Nos.2. 2A to 2-I-I, because Saleem-ud-Din had died before the alleged agreement and the power of attorney given by the deceased -in favour of defendant No,1, stood revoked by operation of law and that none of the said defendants had appointed defendant No,1, as general attorney for the purpose of the sale of the property in question. It is also their defence in the joint written statement that defendants Nos. 21 to 22, had never appointed any person at all as their attorney, who could enter into any agreement to sell on their behalf. This set of defendants pleaded about the validity and genuineness of the sales made by them in favour of defendants Nos.24 to
28. Defendants Nos.24 to 28, filed separate written statement, in which, they took up the plea of being bona fide purchaser for valuable consideration and without notice of the disputed agreement to sell; they also claimed to have purchased the property on the basis of an agreement to sell in their favour, which was even prior in time to the one in question. Anyhow, on account of the pleadings of the parties. Learned trial Court, was pleased to frame the following issues;-
(1) Whether the plaintiff is estopped by his act and conduct to bring the suit? OPD-1 to 23.
(2) Whether the plaintiff has no cause of action or locus standi to bring the suit? OPD
(3) Whether the suit is not maintainable in its present form? OPD-1-23.
(4) Whether the suit is false, frivolous and defendants are entitled to special costs under section 35-A C.P.C.? OPD
(5) Whether the defendants Nos.24 to 28 have superior right of preemption against the plaintiff?
OPD 24 to 28.
(6) Whether the defendants Nos.24 to 28 are bona fide purchaser with consideration, without notice of the disputed land? OPD 24 to 28.
(7) Whether the defendants Nos.1 to 23 entered into an agreement to sell with the plaintiff regarding the land in dispute in the consideration of Rs:26,00,000 and have received Rs,8,00,000 as advance amount and have executed the agreement and receipt on 16-3--1991 in favour of the plaintiff? OPP
8. Relief.
' Parties were put to trial' the appellant examined P.W.1 to P. W.8 and also produced the documentary evidence as Exh.P.W.2/1, Exh.P.W.2/2 Exh. P.W .4 /1, Exh.P. W.5/1, Exh. P.W . 6/1, Exh. P. W.
6/2, Exh.P .W . 6/3, Exh.P.W.8/3, Exh.P.W.815, Exh.P.1 to Exh.P.30 and Exh.D.W-2/P-1. Conversely, the respondents Nos.1 to 23, examined two witnesses D.W.1 and D.W.2 and produced the documents Ex.D.W.1/1 and Exh.D.W.1/2. Besides, respondents Nos.24 to 28 also examined D.W.3 to D.W.6 and produced documents such as Exh.D.W.2, Exh.P.W.8/D.1, Exh.D.1 to Exh.D.l1.
' Learned trial Court, on the conclusion of trial, mainly decided issue No,7, and held:--
(1) The agreement to sell was executed on 16-3-1991 by defendants Nos.1, 3 and 23. The defendant No,1, posed himself to be general attorney of his father namely Saleem-ud-Din whereas said Saleem-ud-Din had passed away on 30-10-1990.
(2) That defendant No,1 had got no authority to enter into any sort of agreement to sell on behalf of the defendants Nos.2, 2A to 2. H, with respect of the share of the land owned by said defendants.
(3) Similarly, defendant No,3, was the general attorney of defendants Nos.4 to 20, but she was never appointed by defendants Nos.21 and 22, as their attorney, hence she was vested with no authority to sell the land of said defendants.
(4) That the suit-land is still unpartitioned, no separate share can be determined, therefore, decree for the specific performance, cannot be allowed.
4. On issue No,6, it has been adjudged, that the defendants Nos.24 to 28, have proved to be the bona fide purchasers of the suit-land, for valuable consideration, without notice of the agreement to sell in question and that they also had an agreement of sale in their favour prior to that of the appellant. Issues Nos.1 to 5, were decided against the defendants. But the suit for specific performance was dismissed, however, it was decreed against defendants Nos.1, 3 and 23, for the return of the earnest money received by them under said agreement. Hence this appeal by the plaintiff.
5.
5. Learned counsel for the appellant contends that the plaintiff/ appellant, through the reliable, independent and trustworthy evidence, has proved that the agreement to sell was executed by defendant No,1, as an attorney on behalf of his father, Saleem-ud-Din, representing to be also authorized by the legal heirs of Saleem-ud-Din, i,e, defendants Nos.2, 2A to 2-H; likewise defendant No,3, had the valid authority for defendants Nos.4 to 19, but it is conceded that, defendant No,23 was not holding any authority for defendants Nos.21 and 22. It is therefore, argued that once the agreement to sell was proved and found by the trial Court to have been executed by the said defendants, who were the majority share holder of the suit-land, which agreement was valid in law; the refusal of the Court to grant the decree for the specific performance is contrary to law and the result of improper exercise of the jurisdiction. It is also submitted that the defendants Nos.24 to 28, had never proved to be the bona fide purchaser of the suit-land, because the possession of the property was taken over by the plaintiff from the tenant by making him the payment of Rs,1,000,00, thus this factum of the appellant's possession was sufficient to put the said respondents to a notice that the appellant has some interest in the property, making incumbent upon them to have investigated about the interest of the appellant. Having failed to do so, the said respondents are debarred from taking the advantage of the rule of equity, otherwise available to a bona fide purchaser. It is further submitted that the said respondents were fully posted with the facts of the agreement to sell in favour of the appellant, yet they purchased the property in collusion with the other defendants of the case to deprive the appellant from his valuable rights and to cause prejudice to him.
6. We have heard learned counsel for the Parties. The trial Court though has held about the proof of the execution of the agreement, to sell by defendants Nos.1, 3, 4 to 20 and 23, yet as mentioned above, the specific enforcement had been refused by the Court, on the ground that such agreement is unenforceable against the defendants Nos.2, 2-A to 2-H and defendants Nos.21 and 22; as the executants of the instrument had no authority on their behalf to enter into any agreement to sell; the property is indivisible and resultantly, in such circumstances, the discretionary relief cannot be granted to the plaintiff.
' The other main reason of the Court below for refusing the relief is that defendants Nos.24 to 28 are the bona fide purchasers and therefore, has the protection of section 27(b) of the Specific Relief Act; moreover, they have purchased the property on the basis of an agreement to sell in their favour by the owners which was prior in time.
7. Learned counsel for the appellant, when asked, has conceded that on the day, when the sale agreement, dated 16-3-1991, is alleged to have been executed, Saleem-ud-Din was dead. However, by relying upon the provisions of section 208 of the Contract Act it is argued that the authority of defendant No,1, shall still remain intact, until the factum of the death of Saleem-ud-Din was known to the appellant. However, he has candidly- conceded that there was no authority with the respondent No,23, for the execution of the agreement on behalf, of defendants Nos.21 and 22. On Issue No,6, it is submitted that as the appellant had taken over the possession from the tenant of the property on the payment of Rs,1,00,000 or Rs,75,000 therefore, this fact was sufficient to put the said respondents on notice about the appellant's right or interest in the property. Resultantly, when it is not established on part of the said defendants, having made the requisite inquiry about the interest etc. Of the appellant, they cannot set up the plea of being the bona fide purchasers.
8. Before proceeding to examine the pleas raised above, it may be pertinent to mention here that no cross appeal or cross objection has been filed by either set of respondents, to challenge the decree for the return of money, passed against some of the defendants. However, Ch. Khurshid Ahmed, the learned counsel for defendants Nos.24 to 28, has argued that the finding of the trial Court on issue No,7, that the agreement to sell was executed by defendants Nos.1, 3 to 23 and the direction in the decree for the return of the earnest/advance money should be set aside. Because according to him, these findings are not supported by the evidence on the record.
' We are afraid, that without their being any cross appeal or cross objections, such finding cannot be interfered, because, if that is so done, the legal consequences shall be that the decree of the trial Court granting the relief of the return of money to the appellant shall have to be set aside. But according to law, declared by the Honourable Supreme Court of Pakistan in Khairati and 4 others v.
Aleem-ud-Din and others PLD 1973 SC 295, this Court cannot set aside or modify the decree without their being a cross appeal or the cross objections. Moreover, the counsel for the said defendants/respondents, against whom this decree has been passed, has not raised this plea and in the circumstances of the case, we are of the view that defendants Nos.24 to 28 have no locus standi to challenge this part of the decree.
9. Coming back to the merits of the case, particularly, examining the question, if in the light of the facts of the case, the appellants are entitled to the grant of decree for specific performance. It may be held that it is the admitted position on the record, that the shares of defendant No,2, 2-A to 2.H, alongwith defendants Nos.21 and 22, in the suit- land, form a larger part of the share of the suit property. The proposition, whether the agreement can still be enforced against said defendants, and the others. The learned counsel for the appellant had reiterated that the power of attorney by Saleem-ud-Din, shall be valid entitling the defendant No,1 to sell the share of other legal heirs of the deceased, and in view of the provisions of section 208, of the Contract Act, 1872 (the Act), such power of attorney shall not stand terminated, until it was brought to the notice and knowledge of the appellant, that Saleem-ud-Din has died.
10. We are afraid, that the provisions of section 208 cannot be construed in the manner as has been argued before us.
' For the purpose of understanding the true meaning and the purport of, section, it is necessary to make reference to section 201, which provides the situation and the general rule about the termination of the authority of an agent. The section, inter alia, envisages that on the death of the principal or the agent, the agency shall automatically be terminated. Obviously, this is propoundly logical, because the conferment of the authority upon an agent by the principal is highly personal in nature, and the moment an agent is dead, there 4s no one left to exercise such authority.
Similarly the death of the principal deprives the agent of any one for whom he can act. The legal consequences which follow are, that the agency ceases/lapses altogether. However, section 208 to some extent, is an exception to the general rule, and to our mind, has a limited scope and the application. This provision of law, in no way, can be interpreted to permit an agent to keep on exercising his authority on the basis of a power of attorney, which by operation of law, stood terminated, on account of the death of his principal, and admittedly, when this fact is in the knowledge of the agent. Such agent cannot continue entering into fresh and new agreements and transactions with the unknown and would be third party. The third party referred to in this section and elaborated in the illustrations, means the specific person with whom the agent was conferred with an authority to, interact and that too for a particular nature of transaction. For example, if a third party has to discharge an obligation towards the principal such as the payment of any debt or the amount and before the death comes to his knowledge, the payment is made to the agent, it shall give a complete discharge to the third party.
11. In any case, even giving the widest meaning to the exception under section 208, it cannot be construed and extended to connote, that on account of the death of the principal when the property in his estate immediately and automatically has devolved upon his legal heirs, an attorney earlier appointed by the principal in his life time, can deprive the legal heirs of the deceased of their ownership rights, by entering into a transaction for the alienation of their property, with any third party, and such third party, on account of being unaware about the death of the principal, can take shelter under section 208.
12. It may be pertinent .To state here that the above principle is more squarely applicable in the case of the death of a Muslim. As under the law of inheritance, the estate of a deceased Muslim automatically devolves upon his legal heirs the moment he closes his eyes. This means that on the death of Saleem-ud-Din, which occurred much before the agreement to sell, defendants, No,2, 2.A to 2.H become the owner of the property in question, and Saleem-ud-Din who had died, was left with the no right or the interest in the property, because under the law, a dead person conceivably cannot own or hold any property of whatever nature, it may be. Therefore, by utilizing the said power of attorney, defendant No,1 could not have agreed to transfer any property, which was not belonging to Saleem-ud-Din, and in this manner could legally bind his legal heirs; when there is no evidence on the record, if such LR's had rectified the alleged authority of the attorney. Above all, this has never been the case of the appellant that they entered into the sale agreement with defendant No,1, being unaware of the death of Salecm-ud-Din, therefore, they are precluded to take this plea at this stage, which is not a pure question of law.
13. The upshot of the above discussion is, that because of the lack of authority on behalf of defendants Nos.2, 2.A to 2.H, and defendants Nos.21 and 22, who had a larger share in the property, which otherwise, is indivisible, the trial Court, under the provisions of sections 15 to 17 of the Specific Relief Act, notwithstanding the proof of the agreement to sell on behalf of some of the defendants, has rightly refused to grant the decree for the specific performance in favour of the appellant.
14. The other question about the protection of bona fide purchaser, available to defendants Nos.24 to 28; the rule about the proof in this behalf, has been settled in the law laid down in the cases reported as Mst. Khair ul Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Abdul Haque and others v. Shaukat Ali and others 2003 SCM R 74. We have examined and tested the evidence on the basis of these judgments and find that the appellant has conspicuously failed to establish in positive term that respondents Nos.24 to 28, had the knowledge about the agreement to sell. We are not satisfied and convinced, if the possession of the property in question was taken over by the appellant on making the payment of Rs,1,000,00 to the tenant, because there is no clause/stipulation in the agreement to sell that the plaintiff could receive the possession from the tenant. It is not even their case that the possession could have taken by them from the tenant as per agreement Exh.P.5. The entire evidence led in this behalf is most improbable and seems to be result of concoction. Moreover, though the onus of issue No,6, initially was on the shoulders of defendants Nos.24 to 28, but when the onus was discharged by the said respondents, nothing in rebuttal has been stated by the/appellant to contradict the above and to establish that they had the knowledge of the agreement in favour of the appellant; on the appreciation of the evidence led by the plaintiff in the affirmative, that the property dealers had apprised the said defendants about the sale agreement, is not convincing and probable as stated earlier, therefore, we are not persuaded to believe the same.
' In the light of above, we do not find any merit in this appeal, which is hereby dismissed with costs throughout.