SHABNUM KOUSAR Versus AFTAB AHMED
This matter concerns appeals against a trial court judgment dismissing a suit for specific performance of an agreement to sell and decreeing a counter-suit for declaration and cancellation of said agreement. The core legal questions were whether the plaintiff proved the payment of consideration for the agreement to sell and whether the agreement was enforceable as a contract for specific performance. The Court held that the plaintiff failed to prove the payment of consideration, as the marginal witnesses were not produced, and the evidence of the petition writer and notary public was insufficient to establish the actual transfer of funds. Furthermore, the Court established that an agreement to sell lacking a clause granting the right to seek a court decree upon the donor's failure to execute a sale deed is unenforceable. Additionally, the Court noted that an agreement where full consideration is paid with no future obligations is a defective sale deed, not a contract for specific performance. Finally, the Court emphasized that allegations of fraud must be supported by specific particulars as required by procedural law.
- Is an agreement to sell enforceable as a contract for specific performance if it lacks a provision allowing the plaintiff to obtain a court decree upon the defendant's failure to execute a sale deed?
- Can a suit for specific performance be decreed if the plaintiff fails to produce marginal witnesses to prove the payment of consideration?
- Does an agreement to sell where the entire consideration is paid and no future obligations remain constitute a valid contract for specific performance?
- Is a suit liable to be dismissed if the plaintiff pleads fraud without providing the necessary particulars of the alleged fraud?
- Order VI Rule 4, Code of Civil Procedure 1908
1. CHAUDHARY KHALID RASHEED, J.--- The captioned appeals filed against the judgment and decree recorded by the learned Additional District Judge Dadyal dated 31.12.2018, whereby, suits filed by appellants, herein, have been dismissed, arise out of common judgment and common questions of facts and law are involved in the cases, hence, were heard together and are decided through this single judgment.
2. Precise facts of the case are that, appellant herein, filed a suit for specific performance of contract against Mehboob Hussain before Additional District Judge Dadyal, wherein, it was pleaded that vide agreement to sell dated 18.10.2012, the defendant agreed to sell land comprising Survey No.586, measuring 13 marlas along with 02 storey house consisting of 06 rooms, courtyard situated in village Khatar Dilawar Khan Tehsil Dadyal to the plaintiff for the consideration of Rs.40,00,000/-, which has been paid, but now has refused to get registered sale deed, hence, requested that suit may be decreed.
3. The defendant contested the suit by filing written statement wherein it was pleaded that the plaintiff has not paid consideration amount thus the suit is liable to be dismissed.
4. Mehboob Hussain also filed a suit for declaration cum perpetual injunction and cancellation of agreement to sell dated 18.10.2012 before Civil Judge Dadyal which was summoned by Additional District Judge Dadyal and both the suits were consolidated. The plaintiff claimed in the said suit that Aftab Ahmed son of plaintiff was married to defendant on 08.04.2005 with the condition that he will live in the house of parents of defendant but they were not blessed with child whereupon the defendant agreed that if the plaintiff gives assurance that defendant will not be ousted from home, Aftab Ahmed may contract second marriage resultantly, agreement to sell dated 18.10.2012 was executed. It was further contended that after second marriage defendant has taken divorce. He has stated that the agreement to sell dated 18.10.2012, is illegal and fraudulent hence, liable to be cancelled.
5. The defendant contested the suit by filing written statement wherein the claim of the plaintiff was refuted.
6. The learned trial Court consolidated both the suits, framed issues in light of pleadings of the parties provided them opportunity to lead evidence and at the conclusion of proceedings dismissed the suit filed by appellant, herein, for want of proof and the counter suit filed by respondent, herein, has been decreed vide its impugned judgment and decree dated 31.12.2018, hence, the captioned appeals.
7. The learned counsel for the appellant has filed written arguments which are made part of the file, hence, need not to be reiterated for the sake of brevity.
8. The learned counsel for respondents supported the impugned judgment on all counts and contended that plaintiff failed to prove payment of consideration amount, hence, the learned Court below rightly dismissed the suit filed by plaintiff Shabnum Kosar and accurately decreed the suit filed by plaintiffs-respondents Aftab Ahmed and others, hence, prayed for dismissal of appeals.
9. I have considered the written arguments filed on behalf of the learned counsel for the parties, gone through the record of the case with utmost care and caution.
10. Issue No.1 is the core issue in the instant case. The defendant Mehboob Hussain though admitted the execution of agreement to sell dated 18.10.2012, however, he took a specific stance that plaintiff did not pay any consideration amount, hence, it was the responsibility of the plaintiff to prove by producing cogent and convincing evidence that the agreement to sell dated 18.10.2012 was executed by defendant and she had paid the consideration amount. The best evidence to prove payment of consideration amount was the marginal witnesses of agreement to sell in whose presence the consideration was paid. A perusal of the agreement to sell reveals that Khalid Hussain son of Ghulam Hussain and Muhammad Zareef son of Abdur Rasheed were the marginal witnesses of the agreement but plaintiff failed to produce any of them as witness before the Court below, thus adverse inference is liable to be drawn that if they were produced would depose contrary to the version taken by the plaintiff. The plaintiff also failed to bring on record that the marginal witnesses of the agreement have died or for any other reason are unable to get recorded their statements. The learned Court below has rightly observed that though the plaintiff produced petition writer who deposed that agreement to sell was written by him, stamp seller who stated in his Court statement that the stamp paper for execution of agreement to sell was sold by him to defendant and the notary public who deposed that the agreement to sell was attested by him but from their statements the payment of consideration amount has not been proved which is sine qua non. It is an admitted fact that plaintiff was daughter in law of defendant and it is also established from the record that son of defendant Aftab Ahmed has divorced her, thus the Court below accurately observed that from perusal of the record it is evident that the agreement was executed in the circumstances mentioned by defendant Mehboob Hussain in plaint/written statement. The plaintiff miserably failed to prove the fact of payment of consideration amount to the defendant and in absence of payment of consideration amount the agreement to sell is of no legal value as the plaintiff herself failed to perform her responsibility by paying consideration amount to the defendant, thus has got no cause of action to file a suit for specific performance of contract.
11. It is a well settled precept of law that the civil cases are to be decided on the basis of preponderance of probability as compared to criminal cases in which the prosecution has to prove its case beyond any shadow of reasonable doubt. After going through the entire evidence led by the parties and record of the case, I am of the considered view that the stance taken by the defendant Mehboob Hussain is more probable and acceptable while the stance of plaintiff cannot be accepted for the reason that she has got no source of income thus, payment of consideration amount by her is enormous.
12. There is also another reason for dismissal of the suit that as per claim of the plaintiff the defendant agreed to sell suit land to the plaintiff and the whole consideration amount was paid, thus if for the sake of arguments this claim of the plaintiff is accepted, then the agreement to sell dated 18.10.2012 was in fact a defective sale deed because nothing was left to be done in future. An agreement to sell is a contract where something is to be happened in future and the donor is bound to execute sale deed after fulfillment of future obligations. But in the instant case nothing was mentioned as future obligation, thus on the basis of a defective sale deed suit could not been decreed. Reliance may be placed on 2023 CLC 262 .
13. It is also relevant to mention that in the agreement to sell it has not been mentioned that if the defendant Mehboob Hussain fails to execute sale deed the plaintiff has a right to obtain decree from the Court. The Supreme Court of AJ&K has held in various judgments that if in the agreement it is not mentioned that in case of failure on behalf of donor to execute sale deed, the plaintiff has a right to obtain decree of the Court, the suit cannot be decreed for specific performance of contract on the basis of such agreement to sell, hence, the suit filed by plaintiff was also liable to be dismissed on this ground as well.
14. As far as issue No.2 is concerned the plaintiff failed to prove that the house in question remained in her possession rather it is evidence from the record that plaintiff along with her husband Aftab Ahmed were living in the house of parents of the plaintiff thus the Courts below rightly decided issue No.2 against plaintiff.
15. So far issue No.4 is concerned, it may be stated that the plaintiff has not denied the execution of agreement to sell dated 18.10.2012 and sought cancellation of said agreement on the ground that the said agreement has been obtained by practicing fraud, hence, is ineffective and inoperative against the rights of plaintiff but the plaintiff miserably failed to mention the particulars of fraud committed by defendant that how and in what manner the defendant committed fraud. He simply stated in the suit that agreement dated 18.10.2012 has been obtained by fraud.
16. Under Order VI Rule 4, C.P.C. if fraud is pleaded in the plaint the particulars of fraud are necessary to be mentioned but where the suit is silent regarding particulars of fraud that how the other party committed fraud and circumstances of fraud, the same is liable to be dismissed. Though, as stated earlier the payment of consideration amount has not been proved on behalf of the defendant in the counter suit but on this ground the suit filed by plaintiff Mehboob Hussain cannot be decreed and the agreement to sell cannot be termed as fraudulent because the plaintiff has not claimed cancellation of agreement to sell on the ground of non-payment of consideration amount, thus the decision recorded by the Court below on issue No.4 is not sustainable.
17. In view of above, the Appeal No.196/2019 stands I dismissed, whereas the Appeal No.205/2019 is accepted and the suit filed by Mehboob Hussain is hereby dropped for want of proof.
18. MQ/11/HC(AJ&K) Order accordingly.