ZULFIQAR ALI and 3 others vs BARKAT ALI and 12 otherss
This petition for leave to appeal challenged a Lahore High Court judgment dismissing a regular second appeal in a suit for specific performance of a contract. The dispute arose from an agreement to sell land executed by one co-sharer, Barkat Ali, without the authority of his co-owners. Subsequently, the land was sold to third parties (respondents 12 and 13) by a valid attorney. The petitioners sought specific performance, relying on the subsequent acknowledgment of the agreement by some co-sharers in their written statements. The Supreme Court addressed whether an unauthorized agreement to sell by one co-sharer binds other co-owners and whether a subsequent acknowledgment in pleadings affects the rights of bona fide purchasers. The Court held that the agreement was not binding on non-signatory co-sharers and that the subsequent purchasers were bona fide purchasers for value without notice. The Court affirmed that a person cannot transfer more title than they possess, and the rights of bona fide purchasers are protected under the law, particularly when the transferor lacked authority to bind the property beyond their own share.
- Can a co-sharer enter into an agreement to sell property on behalf of other co-sharers without valid authorization?
- Does the subsequent acknowledgment of an agreement in a written statement by some co-sharers bind other co-owners who were not parties to the original agreement?
- Are the rights of a bona fide purchaser for value protected when the initial agreement to sell was executed by a person lacking authority to bind the entire property?
- Does the principle of lis pendens apply to a transfer made before the filing of a suit for specific performance?
- Article 185(3), Constitution of Pakistan 1973
- Section 41, Transfer of Property Act 1882
' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution has been directed against the judgment, dated 11-4-2005 passed by Lahore High Court, Lahore whereby regular second appeal arising out of a suit for specific performance of the contract was dismissed.
2. The short facts in the background giving rise to this petition are that Barkat Ali, co-allottee of respondents Nos.1 to 11 of the suit-land, subject-matter of dispute on 25-1-1979 entered into an agreement of sale of land with the petitioner for consideration of Rs,80,000 and having received an amount of Rs,40,000 as earnest money, delivered to them the possession of land. It was settled in the agreement that Barkat Ali would obtain power of attorney from his co-sharers and balance price would be paid at the time of registration of sale-deed. However, the sale agreement could not be materialized for want of execution of power of attorney by the co-sharers of Barkat Ali in his favor and meanwhile Muhammad Shafi, respondent herein, in his capacity as general attorney of respondents Nos.1, 2 and 13, executed registered sale-deed in favor of respondents Nos.12 and 13 whereupon the petitioners on the basis of their agreement, dated 25-7-1979, filed suit for specific performance of the contract. The claim of the petitioner was conceded by respondents Nos.1 to 7 and 10 whereas respondents Nos.12 and 13 contested the suit with the assertion that they were bona fide purchaser for value without notice and also denied the validity of sale agreement in question. The suit was dismissed by the learned trial Judge vide judgment dated 16-6-1984 and the appeal filed by the petitioners was also dismissed by learned District Judge, Layyah, vide judgment dated 25-4-1989. The regular second appeal filed by the petitioners in the High Court was dismissed with the observation, firstly that petitioners failed to deposit expenses for publication for service of respondents, secondly, the agreement on the basis of which suit was filed, was executed by one of the respondent, namely Barkat Ali as co-sharers in the property without any authority to enter into such an agreement on behalf of the other co-sharers and consequently, the agreement would not be binding on the co-sharers, who were not party to it and thirdly, the property was purchased by the respondents Nos.12 and 13 for valuable consideration free from all encumbrance and without notice of the agreement in question.
3. Learned counsel for the petitioners has contended that the respondents in their written statement, having acknowledged the execution of agreement, conceded their claim to the extent of their share, therefore, suit was wrongly dismissed.
4. This is an admitted fact that respondents, who have conceded the claim of petitioners in the written statement, were not party to the agreement on the basis of which suit was filed and this is also admitted that Khushi Muhammad, respondent, holding a valid power of attorney, transferred the suit-land in favor of respondents Nos.12 and 13 before filing of suit by the petitioners therefore, the subsequent acknowledgement of agreement of petitioners with Barkat Ali by the respondents, in their written statement would neither affect the A transaction of sale in favor of respondents Nos.12 and 13 who were bona fide purchaser for valuable consideration nor the sale would be hit by the principle of lis pendens and apart from the provision of section 41 of Transfer of Property Act, 1882 by virtue of which right of a bona fide purchaser subject to the conditions contained therein is protected in law, the right of transferor in the present case would be protected by the general principle of law according to which a person cannot transfer right or title in the property more than what he possesses whereas the principle contained in section 41 of the Transfer of Property Act, 1882 is an exception to the general rule which is based on equitable doctrine of estoppel. In the present case, the respondents Nos.12 and 13, purchased the property from the real owner without any defect in their title and free from all encumbrances, therefore, notwithstanding the subsequent acknowledgement of claim of petitioners by the vendees-respondents, the C right, title and interest of respondents-purchaser, would be protected on all force under the law because Barkat Ali had no authority to enter into an agreement with the petitioners beyond his share in the property. The learned counsel for the petitioners has not been able to satisfy us that the judgment of the High Court in the given facts, was suffering from any defect of misreading or non-reading of evidence or any other legal or factual infirmity calling for interference of this Court.
5. In the light of forgoing discussion, we do not find any substance in this petition, which is accordingly dismissed. Leave is refused.