NOOR MUHAMMAD SHAH Versus FAKIR MUHAMMAD

KHUDA BAKHSH MARRI, J .---This 11 years old Appeal No. 45 of 1964, under section 96, rule 41, C. P. C. is directed against judgment and decree -in F. C. Suit No. 40 of 1961 and Suit No. S. G. 4 of 1962 of Mr. Fakhruddin S. Shaikh, learned Senior Civil Judge, Nawabshah dated 25th January 1964, and 3-3-1964, respectively whereby he rejected appellants' prayer for specific performance and for declaration that respondents Nos. 1 to 3 to be owners of 68 paisas shares and direction to execute sale-deed in respect of the share of the property in dispute.

2. The facts giving rise to this appeal briefly are that respondents Nos. I to 3, namely, Fakir Muhammad, Noor Muhammad and Bashir Muhammad and respondent No. 10 Rasool Bux are brothers and respondents Nos. 5, 6, 7, 8 and 9, namely, Mst. Mehboobun Nisa, Mst. Kairun Nisa, Mst. Qureshun Nisa, Mst. Aculun Nisa, and Mst. Aisha and respondent No. 4 Mst. Gul Sanowar Khatoon are daughters and widow respectively of one deceased Khuda Bux who purchased in his lifetime premises known as Nigar Talkies now known as Regal Cinema situated on C. S. Nos. 408, 409, 410, 411 and 412 measuring about 11,000 sq. feet at Nawabsbah and other immovable properties from Smt. Raj Kunwar and others by means of a registered document dated 15-4-1949. This transaction was duly confirmed by Custodian Nawabshah.

3. Deceased Khuda Bux and his 4 sons, namely, respondents Nos. 1 to 3 and 10 were dealing with this property as equal co-sharers with third parties in Cinema business as is evident in Civil Suit No. 54 of 1953, filed against one Chiraghuddin and in sale-deed dated 6-1-1955, executed in-- favour of Khair Shah till the death of Khuda Bux in the year 1958. Deceased Khuda Bux had bought other properties in his individual name in Pakistan and had verified claim in respect of properties left by him in, India. After death of Khuda Bux respondents Nos. 1 to 3 entered into an agreement of sale in writing with Syed Noor Muhammad Shah prede cessor-in-interest of present appellants in respect of their share in Regal Cinema property which they claimed to be 68 paisas in a rupee for a sum of Rs. 75,000 on 16-6-1959 and accepted Rs. 25,000 as earnest money. It is the case of the appellants in appeal that the respondents delivered posses sion of cinema premises to them as purchaser agreeing to complete the sale as soon as possible after obtaining the necessary Income-tax Clearance Certificate and after clearing all disputes of their titles with other heirs, i.e., their step-brother and sisters the respondents Nos. 4 to 10.

4. The respondents Nos. 1 to 3 further extended the time for completion of the agreement in writing on 28-1-1960 up to 31-12-1960 and they have received in the meanwhile further consideration of Rs. 20,200 in cash besides Rs. 8,100 as deposit and Rs. 6,120 as cost of repairs. The total amount having been received by them as consideration stands to Rs. 59,480.

5. The dispute with regard to share of each heir soon arose over the <property left by deceased Khuda Bux and respondents Nos. 4 to 10 denied -the title of respondents Nos. 1 to 3 to the extent of 68 paisas in a rupee and they entered into an agreement of sale on 26-7-1959 in writing with respondent No. 11 Azeem Khan putting their share as 0-9-0 annas in a :rupee and sold the same for a consideration of Rs. 74,219 and received Rs. 49,000 as part payment from him.

6. Seeing this respondents Nos. 1 to 3 filed a Suit No. 4 of 1962 for declaration of their share to the extent of 68 paisas in a rupee against respondents Nos. 4 to 10 in the Court of Senior Civil Judge, Nawabshah.

7. It appears, in the circumstances, the respondents Nos. I to 3 found difficulty and refused to execute and complete the sale-deed in favour of appellants who filed Civil Suit No. 40 of 1961 for specific performance of the contract in the alternative claimed damages and prayed for declaration of the share against respondents Nos. 1 to 11. The suits were consolidated, tried and decided together in the impugned judgment.

8. Respondents Nos. 1 to 3 admitted execution of the agreement of the sale dated 16-6-1959 as well as receipt for the amount of consideration and took plea that it was the appellant who committed the breach of contract. At the same time the remaining respondents denied the title of respondents -Nos. 1 to 3 to the extent of 68 paisas in a rupee and asserted that according to Muhammadan Law they are entitled to only 40 paisas, share in the pro perty, in a rupee. The learned trial Court after framing issues, recording, of evidence and hearing of the parties came to the conclusion that the sale deed dated 15-4-1949 was a benami transaction and deceased Khuda Bux was the sole owner of the property in dispute and share of the respon dents Nos. 1 to 3 is only 40 paisas in a rupee and not 68 paisas in a rupee as claimed. He, therefore, refused to grant relief for specific perform ance and passed a decree of Rs. 45,200 with interest in favour of the appel lants against respondents Nos. 1 to 3.

9. We have heard Mr. K. A. Ghani, Advocate for appellants, Mr. Imam Ali Kazi, Advocate, for respondents Nos. 1 to 3 and Mr. Ghulam Husain Abassee, Advocate, for respondent No. 11. Nemo for respondents Nos. 4 to 10. Counsel for the appellants challenged the impugned judgment mainly on the grounds that the learned lower Court has erred in holding that respondents Nos. I to 3 instead of 68 paisas in a rupee are entitled to 40 paisas in a rupee as their share and respondents Nos. 4 to 10 the remaining are entitled to 60 paisas in a rupee in the property in dispute and that the Court below has erred in holding that respondents Nos. 4 to 10 were justified in selling 60 paisas share to respondent No. 11 and in the alternative that Court below was wrong in refusing to grant a decree of specific performance of the contract at least to the extent of 40 p3isas share in a rupee of respon dents Nos. I to 3 in favour of the appellant and passing a decree against respondents Nos. 4 to 11 and that the finding of the Court that respon dents Nos. 1 to 3 had 40 paisas in a rupee and other respondents had 60 paisas in a rupee is wrong being contrary to facts and law and that the lower Court should have decreed the appellants' suit for specific perform ance of contract and for declaration against all the respondents holding the share of respondents Nos. 1 to 3 of 68 paisas.

10. During the course of arguments Mr. K. A. Ghani learned counsel for the appellants, however, did concede, that the respondents Nos. 4 to 10 are legal heirs along with respondents Nos. 1 to 3 to the property of deceased Khuda Bux, therefore, are entitled to their respective shares according to Muslim Law, hence he did not challenge the finding of the Court below to distribution of the shares between various heirs holding respondents Nos. I to 3 as entitled to only 40 paisas shares in a rupee as against their earlier claim of 68 paisas and that respondents Nos. 4 to 10 the widow, the son and the 5 daughters are entitled to 60 paisas share in a rupee.

11. He, however, argued that the Court below should have ordered specific performance against respondents Nos. 1 to 3 at least to the extent of 40 paisas shares in a rupee on the ground that the appellants once as a purchaser are entitled to exercise right of option of asking the specific performance even for the lesser share at their own risk. Counsel made a statement at the Bar that in fact the appellants are prepared to and ready to purchase 40 paisas share of respondents Nos. I to 3 in a rupee at the original price of Rs. 75,000 which they have earlier purchased for .b8 paisas share, provided specific performance is ordered in their favour with regard to 40 paisas share and that the appellants forego any other damages or claim against the respondents Nos. 1 to 3. This is a fair offer.

12. On the other hand Mr. G. H. Abbasi appearing for respon dent No. 11. the other purchaser, of 60 paisas share from respondents Nos. 4 to 10 submitted that this is not a fit case where specific performance is ordered in favour of appellants firstly because the possession of the pro perty in dispute the cinema has already been given to appellants at the time of the lease by father of the respondents and secondly no specific performance can be ordered for lesser share of 40 paisas against the original claim of 68 paisas ; besides the property in question although a cinema .consists of furniture and immovable property is a running business. It will create difficulties to respondent No. 11 the purchaser of the other share in case specific performance is granted in favour of appellants and it would be difficult also to divide or bifurcate the property according to now settled share of 40 and 68 paisas between the contesting parties. It will create com plication and confusion and will not be in the interest of justice as well .as of the parties particularly the respondent No. 11.

13. Mr. Imam Ali G. Kazi appearing for respondents Nos. 1 to 3 simply adopted the arguments of Mr. G. H. Abbasi and submitted that the appel lants are not entitled to specific performance because the appellants have committed the breach of contract. When it was pointed out to him as to why the respondents Nos. 1 to 3 should not be ordered specific perform ance of their part of the contract at least to the extent of 40 paisas share, in the changed circumstances arisen lie made submission for the option for the sum of 75,000 for which the respondents sold their share of 65 paisas for which in fact they were not entitled to, therefore, respondents Nos. 1 to 3, it was pointed out to him, would not be in a loss. He, however, did not make any worthwhile reply. He did concede at the same time that it is the appellants who are in possession of the property in dispute and remained in possession after the lease deed was entered into and later on the agreement signed by respondents Nos. 1 to 3, it is, therefore, clear that the question of possession does not arise which is already since a long time with appellants first given by Khuda Bux deceased and later on by respondents Nos. 1 to 3 claiming to have more share than they have. But this question has been properly settled by the impugned judgment of the Court below.

14. The only question, therefore, of consideration is whether it is a fit case, in the circumstances, to order specific performance of the contract Co- respondents Nos. 1 to 3 of their 40 paisas share for the amount of Rs. 75,000 as agreed by the appellants. It may be noted also Mr. K. A. Ghani submitted that his clients have no claim, whatsoever, against 68. paisas share to the property in dispute of respondents Nos. 4 to 10 and, their subsequent agreement of sale in favcur of respondent No. 11. The appellants will not come in the way of respondents Nos. 4 to 11 to their respective acts under the law. All he submitted was that he was interested to their own rights which allegedly he had purchased of the share of respondents Nos. 1 to 3. Mr. K. A. Ghani relied on Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others (P L D 1974 B J 25), concerning import of applicability of section 15, Specific Relief Act (I of 1877), wherein it was held that "there is nothing in section 15, Specific Relief Act, or any other provision of law limiting action under section 15 -to any particular stage of the proceedings, It is open to plaintiff (in the present case the appellants) to relinquish his claim to any part of the property in suit on the conditions specified in section 15, at any time before the suit is finally decided by the Court of appeal." He; therefore, submitted he is entitled to exercise the right of option to have specific performance of lesser share of 40 paisas instead of 68 paisas because the former has all proper shares of the respondents Nos. 1 to 3. He next relied on Waryam Singh and others v. Gopi Chand and others (A I R 1930 Lab. 34), on the same point wherein is was held that "there is nothing in section 15 or any other provision of the law limiting section 15 to any particular state of the proceedings ; it is, therefore, open to a person bringing a suit for specific performance of contract to relinquish his claim to any part of the property in suit on the conditions specified in that section at any time before the suit is finally decided by a Court". He next relied on Duncan Rutherford v. William Action-Adams (L R 1915 A C 866) wherein the Privy Council has explained the principle in which equitable jurisdiction of specific performance may be exercised: Their Lordships have held that "in exercising its jurisdiction over specific: performance Court of Equity looks at the substance and not merely at the letter of the contract. If a vendor sues and is in a position to convey substantially what the purchaser has contracted to get, the Court wilt decree specific performance with compensation for any small and immaterial deficiency, provided that the vendor has not, by misrepresentation or other wise, disentitled himself to his remedy." In the present case the principle' laid down by their Lordships appears to me does apply in the sense that respondents Nos. 1 to 3 did enter into agreement of sale of their share of the property of their deceased father to the exaggerated extent of 68 paisa in a rupee instead of 40 paisas which was later on rightly held by the: Court below. Therefore, the intent of the respondents Nos. 1 to 3 from the very outset was to disinvest themselves from their respective shares in exchange for the amount of Rs. 75,000. The substantial part of amount they have already received, the remaining part, counsel for the appellant submitted they are ready and prepared to pay them when the specific performance is ordered and the necessary documents are executed in their favour. In Messrs Tanzeem Overseas v. Mst. Zainab Bai and another (P L D 1965 Kar. 274), it was held that "under section 14 of Specific Relief Act (I of 1877), Sale of Land-Vendor in position to convey substantially what purchaser contracted for, Court can decree specific performance with compensation fore any small or immaterial deficiency." In the present case the appellants have bargained for the share of respondents Nos. 1 to 3 although it was exaggerated at that time but later on finally decided as to 40 paisas and this the appellants are ready to accept even against original higher amount of Rs. 75,000 and they are claiming no further damages or com pensation in any form from the respondents Nos. 1 to 3 who are on their part competent to transfer this 40 paisas share in favour of the appellants. The Court below has rightly held that it were the respondents Nos. 1 to 3 who committed breach of contract. The only point to be decided was whether the appellants be granted compensation or specific performance, in my opinion, under the circumstances of the case, equity is in favour of the appellants because the respondents should have known that their own shares according to clear cut principles of Muslim Law was lesser than 68 paisas. They, therefore, attempted to sell share than they legitimately could, but now as the shares have been finally settled they must perform their part of the contract. They cannot be allowed to take benefit of their own misrepresentation to deprive the appellants from their right, for which they have bargained. In Sakinabai and others v. Kurnool Muhammad Bashir (P L D 1968 Kar. 158) it was held by learned Single Judge that "there is no doubt that granting specific performance of a contract is a matter discre tionary with the Court. Whether in a given case pecuniary compensation is or is not adequate relief is a question to be determined by the Court itself. In terms of the Explanation to section 12 of the Specific Relief Act, 1877 "the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money". Mere fact of a party's willingness to accept compensation in the event of the failure of opposite-party to perform its part of the contract i: not sufficient to establish the allegation of fact that compensation in money is actually an adequate relief." I am, therefore, of the opinion that in view of the principle laid down in the case cited above there is sufficient force in the arguments of the learned counsel for the appellants that it is a fit case where specific performance of 40 paisas share may be ordered in favour of the appellants.

15. Mr. G. H. Abbasi has relied on Supreme Court Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawater Wald (P L D 1962 S C 1). This was the case where the plaintiff-appellant contracted with the respondent for the purchase of a plot of land with the structures thereon, for a consideration of Rs. 16,750 on 20th of January 1949. Two agreements were executed, Under the first agreement, Rs. 2,000 was paid by way of earnest money to the vendor and it was agreed that the balance of the purchase money would be paid by the vendee within two months from the date of the agreement "on the vendor obtaining certificate from the Income-tax Authorities under the Transfer of Property (Pakistan) Ordinance, 1947. By the second agreement it was provided that the vendee would pay to the vendor, a further amount of Rs. 4,750, out of the agreed sale-price, within one week, and in case he was unable to pay the balance of Rs. 10,000 out of the sale-price within a period of two months, the vendor would grant him extension of time up to 18 months from the date of the agreement. Within this period the vendee was to be entitled at any time to pay the balance of Rs. 10,000 and obtain conveyance of the property. The vendee was to be put in possession of the property. He was then to be at liberty to make any alterations or additions of a temporary nature, in the premises. The plaintiff was put in possession of the property in pursuance of these agreements on 20th of November 1949. It was a part of the plaintiff's case that he had effected improvements in the structures standing on the land, at a cost of Rs. 10,000, though in the evidence, this figure was sought to be enhanced to Rs. 23,000. The suit was grounded mainly on the allegation that the plaintiff-appellant was ready and willing to perform his part of the contract by paying the balance of the purchase money, on the defendant producing the clearance certificate from the Income-tax Department and a no-objec tion certificate from the Custodian of Evacuee Property. It was averred that the defendant had failed to produce these documents on the plaintiff's demand. He, therefore, prayed for specific performance of the contract of sale and, in the alternative asked for refund of Rs. 6,750 paid by him together with the cost of improvements effected in the structures, valued at Rs. 10,000, with interest on these two suns and claimed Rs. 25,853-8-0 by way of damages for breach of contract. A Single Judge of the then Chief Court found that the plaintiff was not ready and willing to fulfil his part of the contract and in fact he had committed breach of contract. The plaintiff was held to be disentitled to any relief and the suit was dismissed. This was confirmed by the Division Bench of the Court, and it was challenged before the Supreme Court wherein by majority judgment the appeal was allowed, judgment and decree of the Court below was set aside and the period of two months was allowed, in which time question of title of the land was to be clarified to the satisfaction of the plaintiff and accounts between them were to be settled. Mr. G. H. Abbasi did refer the para graph of minority judgment of Mr. Justice Kaikaus wherein it was observed that "to my mind what I have stated above concludes the matter. But I will also examine the arguments and authorities on which the appellant relies. The main argument is this: how can a party to contract by his unilateral act add to the terms of the contract, if time was not of the essence of the contract how can he make it so? I would agree that no party can add to the terms of a contract. But does he add to the terms by such a notice? No, he simply exercises a right granted by statute. The law had granted to every party the right that the other party shall perform the contract within a reasonable time. You may regard performance within reasonable time as a term which the law incorporates into every agreement when time is already not fixed or is not of the essence of the contract, or you may regard it as a right granted by law, but such a notice is not the addition of a new term unilaterally by a party." But this observation in my opinion does not apply to the arguments of the counsel for the respon dents because the time for completion of the agreement was extended mutually and due to the defect in the title and secondly the time was not held to be essence of the contract and the matter could be decided on other grounds particularly entered into by the parties what they wanted to purchase and what they wanted to convey as discussed earlier.

16. For the reasons given above, I am of the opinion that there is sufficient force in this appeal, although agreeing with the Court below that there is breach of contract on the part of the respondents Nos. 1 to 3 and that respondents Nos. 1 to 3 are entitled to only 40 paisas share and not 68 as claimed earlier. I hold that it would be in the interest of justice that relief for specific performance instead of compensation as held by the lower Court be granted to the appellants. Judgment of the Court below to this extent is modified and the appellants are entitled to specific perform ance to the extent of 40 paisas share in a rupee of the property in dispute on agreed payment of Rs. 75,000 to respondents Nos. 1 to 3. This is of course subject to adjustment of the previous payment. Costs to be borne by the parties.

M. A. RASHID, J .-I agree.

S. Q Appeal accepted.