Mst. SHAH SULTAN Versus Syed JAMEEL SHAH
SHAKEEL AHMAD, J.---- This is defendant's revision petition arising out of a suit for specific performance of contract dated 11.12.1997 in respect of the land in dispute to have been executed by Muhammad Rustam (defendant No.1) in favour of the plaintiff/respondent. The petitioners in this revision petition are Mst. Shah Sultan widow of Zarat Khan, Mst. Robina Shaheen, Mst. Azhra Shaheen, Mst. Niazmeen, Mst. Robina daughters of Zarat Khan, Zahid Mehmood, Abdul Wahid sons of Zarat Khan, they are mother, sisters and brothers of the defendant No.1 Muhammad Rustam.
2. The plaintiff's case was that the defendants were the real owner of the land in dispute. It was alleged that on 1st December 1997, Rustam Khan/defendant No.1 (now deceased) himself and acting on behalf of the rest of the defendants entered into a contract with the plaintiff, agreed to transfer the suit land through registered sale deed or mutation in favour of the plaintiff for a consideration of Rs.900,000/- (Nine Lakh). The plaintiff alleged that the entire consideration was paid to the defendant No.1, who executed a written agreement (Ex.PW 2/1). It was further alleged by the plaintiff that it was agreed between the defendant No.1 and the plaintiff that after final adjudication of the lis concerning the suit land, the plaintiff would be entitled to get the sale deed/mutation executed in his favour, but in case he failed, he would refund the consideration. According to the plaintiff, in pursuance of the agreement (Ex.PW 2/1), possession of the land was delivered to him, whereafter he constructed house and shops on the suit land and that defendants Nos.2 to 8 had full knowledge of the contract of sale. According to plaintiff, the defendants refused to transfer the suit land in his favour, thus breach of agreement was committed by the defendants. Since the defendants refused to transfer the suit property through a registered sale deed/mutation, the plaintiff had to file the suit.
3. The suit was contested by the defendants. The defendants in their written statement pleaded that the defendant No.1 had entered into agreement to the extent of his share in the suit property and received Rs.171,100/- as consideration and Rs.9,000/- is still outstanding against him and taking advantage of illiteracy of the defendant No.1, incorporated Rs.900,000/- as sale consideration in the sale agreement. They denied execution of any contract in respect of land in dispute on their behalf. According to defendants/petitioners, they are co-owners in the suit property. It was also pleaded that agreement (Ex.PW 2/1) executed by defendant No.1 in favour of the plaintiff was invalid and unenforceable and possession of the plaintiff over the suit property and construction thereon was illegal, as such, the plaintiff's suit for specific performance could not be decreed. From divergent pleadings of the parties, following issues were framed and parties were directed to produce their evidence:-
ISSUES
1. Whether plaintiff has got cause of action? OPP
2. Whether plaintiff is entitled to specific performance of contract entered into by defendant No.1 personally and on behalf of defendants Nos.2 to 8 ? OPP
3. Whether sale consideration is paid? OPP
4. Whether defendant No.1 contracted to the extent of his share only and sale consideration is outstanding? OPD
5. Whether contract was entered for sale consideration of Rs.180,000/- whereas plaintiff fraudulently entered Rs.900,000/- on account of defendant's illiteracy? OPD
6. Whether suit is within time?
7. Whether plaintiff is entitled to relief as prayed for
8. Relief?
4. In support of his contention, the plaintiff produced as many as seven witnesses including himself and closed his evidence. In rebuttal, the respondent examined two witnesses and closed their evidence.
5. The trial Court held that the agreement (Ex.PW 2/1) dated 11th December, 1997, was admissible in evidence and it was established that it was executed by the defendant No.1 and had been reduced to wiring and partially decreed the suit of the plaintiff to the extent of 5.25 marlas (share of the defendant No.1) subject to payment of remaining consideration of Rs.9,000/- vide judgment dated 21.07.2011. Not contented with the judgment of the learned trial Court, plaintiff went in appeal. The learned Additional District Judge-II, Haripur held that the agreement Ex.PW 2/1 dated 1st December, 1997 was executed by the defendant No.1 on behalf of the rest of the defendants in favour of the plaintiff and his authority to enter into contract for sale of the land in dispute in favour of the plaintiff, was an implied authority, which could be inferred from the action of the defendant No.1 by general course of conduct of being son and brother of the rest of the defendants, set aside the impugned judgment of the learned trial Court and decreed the suit of the plaintiff as prayed for vide judgment dated 07.04.2016. Hence, this revision.
6. I have heard Adil Mir learned counsel appearing for the petitioners, and Qazi Obaid-ur-Rehman, Advocate, learned counsel appearing for the respondent/plaintiff and perused the record with theirable assistance.
7. Before discussing the merits of the case in the light of the submissions made at the bar, it is necessary to give the details of Ex.PW 2/1, the agreement to sell the land in dispute, executed by Rustam Khan, defendant No.1 (now deceased) in favour of the respondent/plaintiff on 1st December, 1997, which reads as under:
8. It was specifically mentioned in the agreement to sell Ex.PW 2/1 that besides the defendant No.1 the suit property also belongs to other owners in view of the judgment and decree of the learned trial Court upheld by the learned Additional District Judge, Haripur. Meaning thereby that defendant No.1 (Rustam Khan) was one of the co-owner in the suit property to the extent of 5.25 marlas out of 1 kanal 10 marlas. In paragraph No.1 of the plaint it was asserted that the defendant No.1 entered into agreement to sell voluntary on behalf of the defendants Nos.2 to 8 who are co-owners with the defendant No.1 and received the entire sale on 1st December, 1997. In paragraph No.5 of the plaint it was again reiterated, that construction of shops and residential property of the plaintiff is available on the suit land. In Ex.PW 2/1, defendant No.1 at one place stated that the suit regarding the property of land in dispute is subjudice in the High Court and that there are other co-owners in the said property. Recital of agreement Ex.PW 2/1 depicts that it was nowhere stated that he is signing/executing this agreement on behalf of other co-owners, who happen to be his mother, sisters and brothers, respectively and executed the agreement by putting his signature over it. At second place of the agreement he took the responsibility of co-owners and bounded himself to transfer the suit property and acknowledged the receipt of sale consideration by him. In view of the above facts I find that this agreement Ex.PW 2/1 was not executed by the defendant No.1 Rustam Khan on behalf of other co-owners. In a suit for specific performance the contract of sale must be definite and precise and if it is uncertain it must be held to be void under section 29 of the Contract Act. Specific performance is an equitable relief and the contract of which, specific performance is sought must appear to be correct and precise and no oral evidence was admissible to add to the terms or contents of Ex.PW 2/1 (See Articles 102 and 103 of the Qanun-e-Shahadat Order, 1984).
9. The agreement of sale dated 1st December 1997 Ex.PW 2/1 did not purport to be executed by defendant No.1 as agent of his mother, sisters and brothers. Statement of one of the marginal witnesses namely Waqar-ul-Hassan (PW-6) does not depict that agreement Ex.PW 2/1 purported to be executed on behalf of other co-owners. It must therefore, be held that the Courts below have misconstrued and misread an important piece of documentary evidence, viz Ex.PW 2/1. The learned appeal Court wrongly held that there existed an implied agency between defendant No.1 and defendants Nos.2 to 8. There was no evidence on record that defendant No.1 (Rustam Khan) had authority on behalf of his mother, sisters and brothers (defendants Nos.2 to 8) to enter into a contract of sale belonging to them. In this respect it will be appropriate to place reliance on section 187 of the Contract Act, which deals with definition of express and implied authority and reads as follows:
"187. An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case."
Implied agency arises from the conduct or situation of parties or by necessity. It was contended by the learned counsel for the respondent that since petitioners did not come forward to repudiate the agreement to sell the land in favour of the plaintiff, it must be assumed that Rustam Khan (defendant No.1) had implied authority to act as agent of defendants Nos.2 to 8. The defendants Nos.2 to 8 specifically averred in para No.1 of written statement that the defendant No.1 had sold the property only to the extent of his share. Thus, from the conduct of the parties it was established that Rustam Khan (defendant No.1) had no implied authority to sell the land belonging to them.
10. In the instant case, there could be no agency of necessity in favour of Rustam Khan. Agency of necessity arises whenever a duty is imposed upon a person to act on behalf of another apart from contract and in circumstances of an agency in order to prevent irreparable injury to the other person. It may also arise where a person acts in the other person's interest to preserve property from destruction. In the instant case there is no evidence on record that Rustam acted on behalf of the defendants Nos.2 to 8 in order to prevent irreparable injury to the petitioners (defendants Nos.2 to 8) or to their property or that he acted in order to preserve their property from destruction.
11. The conditions which, in my opinion, entitled a son/brother to act as an implied agent of his mother, sisters and brothers (defendants Nos.2 to 8) are that he could not communicate with his mother, sisters and brothers before executing the agreement and the cause he took was necessary in the sense that it was in the circumstances the only reasonable and prudence course to take and that he acted bona fide in the interest of his mother/sisters and brothers. Implied authority of agency does not however, extend to act which are outside the ordinary course of business and which are neither necessary nor incidental to his authority. Where an act done by a son/brother is not done in the ordinary course of business they cannot be bound by such an act. In the instant case it was not proved by the plaintiff/respondent that the agreement to sell Ex.PW 2/1, was executed by the defendant No.1 in the ordinary course of business and was incidental to his authority as son/brother. A son / brother has no authority by virtue of his relation alone, to contract on behalf of his mother/sisters or brothers without their authority. In this context, reliance can be placed on the judgment reported as 'Zardad Khan v. Mst. Safia Begum' (1998 CLC 2006). In this case, this Court while declaring sale of wife's property without lawful authority and invalid observed as under:
"No one could alienate any property unless the same is either owned by him or he was duly authorized through power of attorney for any such transaction mentioned/described in the power of attorney."
12. It cannot be presumed that the son/brother in dealing with the joint property was acting as agent in respect of their interest as well as his own. In the case before me, the property in dispute was admittedly jointly owned by the petitioners and defendants Nos.2 to 8, however, merely on this score alone it cannot be presumed that the defendant No.1 had the authority to sell their property as their agent.
13. It was contended by he learned counsel for the respondent that the sale of property in dispute was admitted by the petitioners, which could be said to be against them. That admission, in my opinion, could not bind the petitioners/defendants Nos.2 to 8, perusal of contents of written statement as well as statement of DWs reflect that it was admitted to the extent of sale of the share of the defendant No.1.
14. It was added by the learned counsel for the respondent that the petitioners had not filed any written statement, it amount to an admission of the facts stated in the plaint. There is no substance in this contention. Perusal of written statement reflects that it was jointly filed by all the defendants. Even otherwise non-filing of written statement or omission to file written statement does not amount to an admission of the facts. In this behalf reference may be made to the case reported as 'Sonabhati Kumari v. Kirtyanand Sing' (AIR 1935 PAT 306) wherein it was held that mere omission to file a written statement does not amount to an admission of the facts stated in the plaint. In this context further reliance can be placed on the judgment reported as 'Narindur Singh v. CM King' (AIR 1928 Lah. 769) in which it was held that an admission, or even a confession of judgment, by one of several defendants in a suit is no evidence against the other defendants. In this behalf reference may also be made to the case reported as 'Jatis Chandra v. Kshiroda Kuniar' (AIR 1943 Cal 319).
15. Learned counsel for the petitioner lastly contended that the transaction entered into between plaintiff and defendant No.1 was acted upon and it was not open to any party to challenge its validity. It has already been observed that petitioners repudiated the execution of contract of sale, Ex.PW 2/1 on their behalf in favour of the respondent/plaintiff on 1st December, 1997, it cannot be said that the agreement to sell Ex.PW 2/1 was acted upon by the petitioners/defendants Nos.2 to 8.
16. Now adverting to the findings of the learned appeal court that the respondent / plaintiff enjoys protection of Section 53-A of Transfer of Property Act, 1882, who has purchased the suit property after having paid consideration by virtue of agreement to sell Ex.PW-2/1 executed by defendant No.1 Rustam Khan and that the respondent / plaintiff was already in possession of suit of land and continued his possession by virtue of recitals in the documents. It is by now established that a party could take benefit of Section 53-A of Transfer of Property Act, 1882, where the contract was in writing, signed by or on behalf of the transferor, where transferee had possession of the immoveable property covered by the contract, where the transferee had done some act in furtherance of the contract, where the transferee had either performed his part of the contract or willing to perform his part of the contract. All the said conditions are sine qua-non and had to be satisfied before a party could take advantage of Section 53-A of Transfer of Property Act, 1882, otherwise not. In the instant case, it transpires from the record that, initially, the plaintiff had purchased the suit land from one Shahzada Khan much before execution of agreement to sell Ex.PW-2/1 with the defendant No.1 (Rustam Khan) and raised construction thereon and re-purchased it from defendant No.1 (Rustam Khan) after decision of the case in favour of the petitioners / defendants against the said Shahzada Khan. It is an admitted fact that respondent No.1 / plaintiff was in possession of the suit property / land even before execution of agreement to sell Ex.PW-2/1. The learned appeal court was misled by the fact that petitioners were in the knowledge of possession of the plaintiff over the suit property and despite that they never raised objection on his possession over the property in dispute. Admittedly, the lis regarding the same subject matter was sub-judice between the petitioners, defendant No.1 (Rustam Khan) and Shahzada Khan and matter went upto the Apex Court and this agreement to sell was executed by Rustam Khan during pendency of the case and that there is no evidence on record that petitioners received the sale consideration or they impliedly or expressly consented to the agreement or they have done some act in furtherance of the contract or performed their part of the contract or willing to perform their part of contract, therefore, the case of the respondent No.1 / plaintiff does not fall within the ambit of Section 53-A of Transfer of Property Act, 1882, the learned appeal court, thus, committed a legal error by extending protection of Section 53-A of Transfer of Property Act, 1882, to the plaintiff.
17. The last question for determination, which requires consideration is that whether an issue may be remitted to the trial Court for a finding whether it was proved by evidence on record that defendant No.1 Rustam Khan had implied authority on behalf of his mother/sisters and brothers to sell their shares/property to the plaintiff. I do not see any justification to remand back the case to the learned trial Court on this ground in view of the fact that the learned appeal Court has specifically held that the defendant No.1 acted as the implied agent of the petitioners/defendants Nos.2 to 8 in executing Ex.PW 2/1 in favour of the plaintiff/respondent.
18. The result, therefore, is that for the reasons mentioned above, I allow this revision petition, set aside the judgment and decree of the learned appeal Court dated 07.04.2016 and restore the judgment and decree dated 21.07.2011 passed by the learned Senior Civil Judge, Haripur. Cost shall follow the event.
SA/105/P Revision allowed.