MUHAMMAD SAEED vs Mst. SARDAR BEGUM and 4 others
This petition for leave to appeal arose from a plaintiff's suit for specific performance and possession, which was initially decreed but subsequently reversed on appeal. The High Court dismissed the petitioner's Regular Second Appeal on the ground that the underlying agreement to sell was excluded from consideration due to the absence of valid attestation. Before the Supreme Court, the petitioner contended that while attestation prior to execution is improper, an agreement to sell does not legally require attestation by witnesses and is valid upon execution alone, relying on the Transfer of Property Act. The Supreme Court granted leave to appeal to examine whether an agreement to sell requires attestation to be legally enforceable and whether it can be relied upon solely on the basis of its execution.
- Is an agreement to sell required by law to be attested by witnesses to be legally enforceable?
- Can an agreement to sell be read and relied upon as duly executed in the absence of valid attestation?
- Does attestation of a document prior to its execution render the attestation invalid?
- Transfer of Property Act
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a plaintiff; against the dismissal by the High Court, of his Regular Second Appeal.
2. ' The petitioner's suit for specific performance and possession was decreed. On respondents' appeal, the decree was reversed. The petitioner's Regular Second Appeal was also dismissed by the High Court as the agreement to sell relied upon by him was excluded on account of absence of valid "attestation".
3. Learned counsel contended that although the attestation before "execution" would not be treated as proper attestation and for this reason the agreement to sell was liable to be excluded from consideration; yet, he vehemently contended, the agreement to sell involved in this case was not required by law to be attested by witnesses. Only execution was necessary. He, in this behalf, also referred to relevant provisions of the Transfer of Property Act. He further contended that the document could have been read and relied upon as duly "executed" though without attestation; which as argued, was not necessary.
4. ' This and the other questions raised in this petition require examination. Leave to appeal is granted.
5. ' Security Rs,5,000.
6. ' The appeal shall be prepared on present record with direction to the parties to file all those documents which would be necessary for disposal of appeal.
7. ' No alienation of the property in dispute in the meanwhile.