KHALID RASHID Versus AJAIB KHANUM

This judgment shall dispose of two regular second appeals, viz Regular Second Appeal No.940 of 1978 and Regular Second Appeal No.941 of 1978, which arise out of one civil suit for specific performance of the contract filed by Fazal Mobin Khap, the predecessor of the respondents in these two appeals. The dispute pertains to one‑half of house No.6‑S‑95, Block No.2, Sargodha. Half of the evacuee house was transferred to Fazal Mobin the deceased predecessor of the respondents by the Settlement Department on the basis of his CH Form for Rs.3,600 while the other half was transferred to Muhammad Umar etc. There is obviously no dispute regarding the other half. Some litigation remained pending regarding the transfer of half of the house to Fazal Mobin and the other half to Muhammad Umar etc. between the two sets of transferees. The dispute went up to the High Court through two different constitutional petitions. Before the High Court Fazal Mobin was represented by Mr. S.M. Rashid Advocate, while Muhammad Umar etc. were represented by Dr. Nasim Hasan Shah. In both the writ petitions, the parties filed a compromise deed Ex. D.8 on 28‑9‑1966. On the same day after recording the statements of Mr. S.M. Rashid Ex.D.17 and that of Dr. Nasim Hasan Shah Ex.D.12, the writ petitions were disposed of by the High Court in terms of the contents of the compromise deed, whereby transfer of haL portion of house in dispute each in favour of Fazal Mobin and in favour of Muhammad Umar etc. remained intact.

2. Subsequently on 20‑2‑1967, Fazal Mobin executed an agreement to sell in favour of Mst. Bashiran agreeing to sell half of the house transferred in his favour for Rs.8,000. He received Rs.1,000 as earnest money while the remaining amount was to be paid at the time of registration of the sale‑deed. The deed of agreement to sell is Ex.D/18. Appendix D/11 describing the half portion transferred in favour of Fazal Mobin was issued to him by the Settlement Department on 13‑6‑1967. Consequently, the Settlement Department also issued P.T.D. in favour of Fazal Mobin. Mutation Ex.D.3 was also attested evidencing such transfer.

3. After the issuance of the P.T.D. Fazal Mobin executed the sale‑deed Ex.P.W. /12 on 19‑6‑1967, in favour of Mst. Bashiran and her minor son Khalid Rashid for Rs.12,000. This sale‑deed was presented for registration before the Joint Registrar, Lahore, on 4‑9‑1967. It was actually registered on 7‑9‑1967. The intervening delay occurred as Fazal Mobin was also to obtain the clearance certificate from the Excise Department etc. by that time. On 5‑9‑1967, Fazal Mobin executed a rent note EX.PW.1/3 in favour of the vendees i.e. Mst. Bashiran and Khalid Rashid and monthly rent was fixed as Rs.150. It is noteworthy that the sale‑deed in favour of the vendees was signed by Abdul Hafiz, the brother‑in‑law of Mst. Bashiran before the Joint Registrar. He also paid the remaining amount of sale‑deed of Rs.11,000 at the time of registration of sale‑deed to Fazal Mobin.

4. On 5‑9‑1967, an agreement of re‑conveyance (C(130‑kA‑) Ex.P.l was executed by the vendees in favour of Fazal Mobin whereby they agreed to re‑transfer the house to him by 1‑1‑1970, for Rs.12,000. This agreement of re‑conveyance was signed by S.M. Rashid, as father and legal guardian of Khalid Rashid minor and by Mst. Bashiran herself. Abdul Hafiz aforesaid signed this document as marginal witness.

5. Soon after 5‑9‑1967 and before 28‑10‑1967, existing one storeyed construction of the suit property was demolished and instead a double storeyed building was reconstructed. On the ground floor, 11 shops were built while the upper portion consisted of five rooms. The upper portion was rented to Fazal Mobin through a new rent deed for Rs.250 p.m. A new agreement of re‑conveyance EX.P.W.1/1 was executed on 28‑10‑1967, by Mst. Bashiran and Khalid Rashid minor through his father and legal guardian Mr. S.M. Rashid, whereby they agreed to sell the house to Fazal Mobin for Rs.18,000 instead of Rs.12,000 by 1‑1‑1970.

Fazal Mobin allegedly sent notices Ex.P.2 dated 6‑4‑1968, P.3 dated 4‑6‑1969 and P.4 dated 22‑12‑1969 to Mst. Bashiran and Khalid Rashid requiring them that they should re‑convey the property to him as per terms of the agreement dated 5‑9‑1967, for Rs.12,000. Mst. Bashiran and Khalid Rashid have, of course, denied the receipt of these notices, but the learned District Judge has found that these notices were received by them. On 31‑12‑1969, Fazal Mobin also addressed an application Ex.P.5 , to the Sub‑Registrar, Sargodha, requesting that his presence be recorded and that it may also be recorded that the other party had not reached.

On 12‑3‑1970, Fazal Mobin filed a suit for specific performance of the agreement of re‑conveyance dated 5‑9‑1967. In his suit he did not mention in any manner that subsequently an agreement dated 28‑10‑196' was also executed whereby the sale price was fixed as Rs.18,000. It is noteworthy that in the meantime Fazal Mobin also filed a suit for cancellation of the sale‑deed dated 19‑6‑1967. This suit was dismissed on 28‑9‑1976 by the trial Court and his appeal was dismissed on 20‑6‑1978.

The suit of Fazal Mobin for specific performance of agreement was decreed on 28‑9‑1977 by the learned trial Court against Mst. Bashiran on payment of Rs.9,000 to the extent of her share but it was dismissed as against Khalid Rashid minor.

Against the judgment of the trial Court, an appeal was filed by Fazal Mobin so far as Khalid Rashid's share was concerned. Similarly another appeal was filed by Mst. Bashiran challenging the decree passed against her. The learned District Judge, Sargodha, decided both the appeals on 20‑6‑1978. He dismissed the appeal of Mst. Bashiran and accepted that of Fazal Mobin against Khalid Rashid. Thus, the entire suit of Fazal Mobin was decreed by the lower appellate Court for the specific performance of agreement of re‑conveyance on payment of Rs.18,000. Needless to add that it has been observed by the learned trial Court as' also by the learned lower appellate Court in their respective judgments that the learned counsel representing Fazal Mobin expressed willingness to pay Rs.18,000 as sale‑price.

The judgments and decrees passed by the learned lower Courts have been called in question through the present appeals.

6. While challenging the validity of lower Courts' judgments and decrees, it has been mainly urged on behalf of the appellants that:‑

(i) the lower Courts have failed to consider that in case of agreement of re‑conveyance time is always of the essence of the contract and in the present case the predecessor of the respondents failed to seek the performance of the real agreement of re‑conveyance on payment of Rs.18,000 by the prescribed time and in his suit he insisted on the performance of the contract on the basis of the original agreement of re‑conveyance in which the consideration was shown as Rs.12,000 which, in fact was subsequently substituted by innovated contract on 28‑10‑1967;

(ii) relief of specific performance being a discretionary relief could not be granted to the plaintiff who advanced false and dishonest pleas;

(iii) according to Muhammadan Law a Muslim father was not competent to enter into agreement of re‑conveyance on behalf of his minor son and that the learned lower appellate Court has incorrectly placed reliance upon a precedent which pertained to movable property; and

(iv) the learned lower appellate Court has based its impugned judgment on irrelevant considerations pertaining to the conduct of the father of Khalid Rashid and husband of Mst. Bashiran.

7. Repelling the arguments advanced on behalf of the learned counsel for the appellants, it has been urged by the learned counsel for the respondents that the Court could lawfully pass a decree for specific performance of contract on the basis of varied terms of the contract as alleged by the defendants under section 26 of the Specific Relief Act. It has also been contended on behalf of the respondents that in a case of an agreement of re‑conveyance, the minority of one of the prospective sellers could not legally stand in the way of specific performance of the contract, because if the minor could lawfully avail benefit of the original sale in his favour, by the same agreement he was under legal obligation to re‑convey the property as agreed to on his behalf in the same agreement. it has further been pleaded that in a suit for specific performance of the contract the Court was not legally debarred from passing the decree on the basis of terms which it ascertained as a result of its findings.

8. The contentions raised on behalf of both the parties have been fully considered and thoroughly analysed. In the circumstances of the present case, an agreement of re‑conveyance was sought to be specifically enforced. It has been conceded on behalf of both the parties that for a suit for specific performance of the contract, viz, an agreement of re‑conveyance time is always of the essence of the contract. The appellants have urged that the real subsequent agreement which was executed on 28‑10‑1967 has not been sought to be enforced by the prescribed time, while the respondents have pleaded that they bona fide brought the suit for specific performance of the contract and their counsel agreed to pay the price on the basis of the subsequent agreement, which was in fact a variation of the contract set up by the appellants and, therefore, their suit could not be dismissed on the plea of limitation.

9. The resume of facts of this case, as detailed above, clearly indicates that in fact two agreements of re‑conveyance were executed by the appellants in favour of Fazal Mobin, the deceased predecessor -in‑interest of the present respondents. The first agreement of re‑conveyance EX.P.1 was executed on 5‑9‑1967. As per terms of this agreement, the suit house was to be re‑conveyed to Fazal Mobin for Rs.12,000. Subsequently, a new development took place i.e. the original construction was demolished and two storeyed building was raised. Thus, another agreement of re‑conveyance Ex. P.W.1/1 dated 28‑10‑1967, was executed and as per terms of this agreement of re‑conveyance dated 28‑10‑1967, the appellants had agreed to re‑convey the property on payment of Rs.18,000. Fazal Mobin in his notices as also in his suit for specific performance of the contract made no mention of the agreement dated 28‑10‑1967. He insisted on the agreement dated 5‑9‑1967. The suit filed on the basis of agreement dated 5‑9‑1967 was certainly within the prescribed time and no suit has been filed based on agreement dated 28‑10‑1967. At the time of final hearing of the arguments in the year 1977, i.e. long after the expiry of the prescribed period of limitation for filing the suit for specific performance of the contract, the learned counsel for Fazal Mobin agreed to pay Rs.18,000 as consideration for re‑conveyance as mentioned in the agreement dated 28‑10‑1967. Such willingness being not within the prescribed period of limitation cannot be availed of by the respondents or their predecessor. Needless to add that execution of agreement of re‑conveyance dated 28‑10‑1967, has not been denied by the respondents.

In para. 1151 of Halsbury's Laws of England, 3rd edition. Volume 14, it has been observed:

"Where under a contract, conveyance or will a beneficial right is to arise upon the performance by the beneficiary of some act in the stated manner, or at a stated time, the act must be performed accordingly in order to obtain the enjoyment of the right. "

In Muhammad Yaqub vs. Mst. Umda Begum (N L R 1984 Civil 141), it was observed at pages 143 and 144:

"It appears from the judgment of the learned Additional District Judge, Sahiwal, that at the stage of first appeal, the appellant offered to pay the full price, but by that time the stipulated period had expired. According to the contents of Ex.P.2 which was executed on 13‑5‑1960, Mst. Umda Begum, the deceased respondent, had agreed to re‑transfer the shop to the appellant within a period of five years of the execution of the agreement if Muhammad Yaqub appellant paid the price of the shop which she paid to the Settlement Department. The period of five years expired on 12‑5‑1965. The appellant filed the suit for specific performance of the contract on 13‑5‑1965 and being conscious of the expiry of the period he maintained in paragraph 10 of the plaint that on account of Muharram holidays falling on 11/12th May 1965, his suit was within time. Before the trial Court, however, he insisted for decree for specific performance of the contract on payment of Rs.6,803.28 instead of full price paid by the respondent i.e. Rs.13,481. According to the contents of the agreement Ex.P.2 the time in case of this contract was essence of the contract. After the expiry of the stipulated time, the appellant could not be allowed decree for specific performance of the contract on payment of an amount which he was not earlier willing to pay."

10. The aforementioned judgment of the High Court was upheld by the Supreme Court of Pakistan vide its judgment reported as Muhammad Yaqub vs. Muhammad Nasrullah Khan and others (PLD 1986 SC 497). The august Supreme Court was pleased to hold:

"In order to obtain a relief byway of specific performance of a contract the plaintiff has first to allege and prove that he was ever ready and willing to perform his part of the contract from the date of the contract to the date of the suit, as the contract really was and not in the way he thought the contract to be."

An earlier judgment of this Court in re: Narinjan and dthers v. Muhammad Yunus (A I R 1932 Lah. 265) was referred to with approval by the Supreme Court. In that judgment it has been held:‑

"In order to obtain a relief by way of specific performance of a contract the plaintiff has first to allege and prove that he was ever ready and willing to perform his part of the contract from the date of the contract to the date of the suit, as the contract really was and not in the way he thought the contract to be."

In the circumstances of the case reported as A I R 1960 Mysore 59, there had been novation like the under consideration case and the consideration was increased from Rs.8,000 to Rs.12,000. It was held that the suit for specific performance on payment of Rs.8,000 was legally incompetent.

11. The plea that the Court could decree the suit on varied terms or on payment of increased price in regard to which it came to the conclusion that, in fact, such increased price was agreed as consideration for specific performance of the contract, has no relevancy to the facts of the present case and, therefore, the authorities relied upon on behalf of the respondents are distinguishable.

12. In the light of the above discussion it is concluded that in the present case, the original agreement of re‑conveyance dated 5‑9‑1967, was novated by subsequent agreement dated 28‑10‑1967, whereby the consideration was increased from Rs.12,000 to Rs.18,000, but the plaintiff (predecessor of the present respondents) filed the suit for specific performance of the contract based on the original contract dated 5‑9‑1967 and expressed readiness to pay Rs.12,000 as consideration. Long after the expiry of the stipulated period of the specific performance his counsel expressed willingness to pay Rs.18,000, the price as entered in the novated agreement, but time being essence of the contract, his suit could not be decreed by that time.

13. This is a common ground between the parties that Khalid Rashid appellant is a minor. The agreement of re‑conveyance on his behalf was executed on 5‑9‑1967 as also on 28‑10‑1967 by his father. Al Muslim father is not legally competent to agree to re‑convey the minor's share in immovable property. Reliance on behalf of the respondents has been placed on Mst. Zaitoon Begum and another vs. The Central Exchange Bank Ltd. Lahore (in liquidation) and another (P.L.D. 1961 (W.P) Lahore 888), but this case pertains to movable property. Section 11 of the Contract Act is a clear bar to an agreement by a father on behalf of the minor. Para. 362 of the Muhammadan Law by Mulla page 340, deals with alienation of immovable property by legal guardian and it provides that a legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely, (1) where he can obtain double its value; (2) where the minor has no other property and the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid, and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; and (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.

The case of movable property is on different footing and it has been dealt. with in para. 36 of the same book.

14. As already observed, Mr. S.M : Rashid, father of one of the appellants and husband of the other was, no doubt, a counsel of Fazal Mobin, the deceased predecessor of the respondents, in his litigation against Muhammad Umar etc. but that litigation came to an end as a result of compromise reached between the two parties. After that decision P.T.D. was issued in favour of Fazal Mobin in regard to suit property and thereafter agreements basis of the present litigation were executed between the parties. In these circumstances there can be hardly any relevancy of the conduct of Mr. S.M. Rashid to the facts of the present case and thus the learned lower appellate court was not justified to take any exception to his conduct.

15. In the light of the foregoing conclusions, it is held that the suit for specific performance of the contract brought by Fazal Mobin, the predecessor of the present respondents, could not lawfully be decreed and, therefore, the under consideration appeals are accepted and the lower Court's judgments and decree are set aside. Resultantly, the suit for specific performance of contract filed by Fazal Mobin against the appellants is dismissed. There shall be no orders as to costs.

S.Q./K‑61/L Appeal accepted.