WARYAM vs SHAUKAT ALI KHAN and 5 others
This matter concerns a petition for leave to appeal against the concurrent findings of the lower courts, which dismissed the petitioner’s suit for specific performance of an agreement to sell agricultural land. The trial court had dismissed the suit on the basis that the primary sale agreement was not duly proved, as the attesting witnesses were not examined, and the subsequent documents were rejected due to discrepancies. The petitioner contended that the agreement was sufficiently proved by the scribe and that, under the law, attestation of such an agreement is not a mandatory requirement. Furthermore, the petitioner argued that the subsequent documents, which acknowledged receipt of payments, independently established the transaction even if the primary agreement were excluded. Finding that the contentions regarding the necessity of attesting witnesses for a sale agreement and the evidentiary value of the subsequent documents raised substantial legal questions requiring deeper examination, the Supreme Court granted leave to appeal to resolve these issues.
- Is the examination of attesting witnesses mandatory to prove an agreement to sell?
- Can an agreement to sell be proved by the testimony of the scribe alone?
- Does the failure to object to the admissibility of a document at the trial stage preclude a party from challenging it later?
- Whether leave to appeal should be granted when substantial legal questions regarding the proof of documents are raised?
ORDER
' ZIA MAHMOOD MIRZA, J.---Amir Khali, father of the respondents herein (hereinafter called the vendor) agreed to sell 6-1/4 acres of agricultural land to the petitioner for a consideration of Rs,37,500 vide agreement to sell dated 10-6-1974 Exh.P.1 and received earnest money of Rs,5,000.
The remaining sale price was to be paid up to 30-7-1974 by which date, the sale was to be completed. The sale, it appears, was not completed by the stipulated date. The vendor, however, received Rs,3,000 from the petitioner oil- 2-8-1974 and another sum of Rs,1,700 on 21-9-1974 on which date, he executed another agreement Exh.P.2, extending the date for completion of the sale up to 23-10-1974. In this agreement, the vendor acknowledged the receipt of the aforesaid sums of Rs,3,000 and Rs,1,700. On 16-10-1974, the vendor executed yet another document Exh.P.3 acknowledging the payment of another sum of Rs,1,400 and also confirming the payments earlier made to him. The sale was not completed even by 23-10-1974 and the vendor is stated to have received another sum of Rs,2,300 from the petitioner on 1-11-1975 vide Exh.P.4 whereby earlier payments received by him were also confirmed and 31-12-1975 was fixed as the last date for completion of the sale. Case of the petitioner is that the vendor failed to complete the sale in his favour despite repeated requests and instead gifted the land in dispute to his sons the respondents herein, through a registered deed dated 20-12-1976 and also got a mutation sanctioned in their favour on 28-1-1977. Petitioner, therefore, brought a suit for specific performance of the sale agreement, which was contested by the respondents. The vendor denied the execution of any agreement to sell and receipt of any payment.
2. The learned trial Court, after framing the necessary issues arising from the pleadings of the parties and taking the evidence adduced by them, dismissed the suit holding that the sale agreement Exh.P.1, which was the basic document, was not duly proved on record as none of the witnesses of the said document was examined by the petitioner. On the other hand, both the marginal witnesses thereof, it was observed, appeared as defendants' witnesses and denied its execution by stating that when they signed the document, Amir Khan was not present and no amount was paid by the petitioner in their presence. Trial Court also did not rely upon the documents Exh.P.2 to Exh.P.4 owing to the discrepancies in the statements of the witnesses.
Petitioner preferred an appeal against dismissal of his suit, but with no better result. His revision in the High Court also bore no fruit and was dismissed. He has, therefore, approached this Court through this petition for leave to appeal.
3. Learned counsel appearing in support of this petition contended that the petitioner had duly proved the execution of the sale agreement Exh.P.1 by producing secondary evidence in the form of an extract from the register of Petition-Writer, who being the scribe thereof, was also examined as P.W.6 and he proved its execution. Learned counsel further contended, relying upon a leave-grant order of this Court reported as Muhammad Saeed v. Mst. Sardar Begum and 4 others (1990 SCM R 1176) that the agreement to sell was not required by law to be attested by witness 3 and, therefore, examination of the attesting witnesses was not necessary to vlove its execution. Learned counsel also sought to argue that the agreement to sell having been duly proved/brought on record as Exh, P.1 without any objection from the other side, its proof/admissibility could was be questioned at a later stage. He further contended that even if the sale agreement Exh.P.1 be excluded from consideration, case of the petitioner was sufficiently proved by the documents Exh.P.2 to Exh.P.4 which the Courts below illegally refused to rely upon.
4. Contentions raised by the learned counsel need deeper examination. Leave to appeal is, therefore, granted in this case.