Required to prove agreement through concrete convincing and unimpeachable evidence

 PLJ 2015 Lahore 1098

[Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

MATLOOB HUSSAIN and 6 others--Petitioners

versus

ALAMGIR and 2 others--Respondents

C.R. No. 1046-D of 2001, heard on 11.5.2015.

Agreement to Sell--

----Inheritance--Retransferred--Required to prove agreement through concrete convincing and unimpeachable evidence--Suit for specific performance on basis of agreement to sell is a discretionary relief with Court to grant a party who is coming to Court for specific performance and therefore Court is required to consciously scrutinize evidence and only in that case grant a decree when plaintiffs fully prove case and prove that they are entitled to a decree in their favour--If agreement to sell is proved, Court was not bound to grant a decree for specific performance in every suit as it is discretion of Court and when even there is a slightest doubt in mind of Court that agreement was not genuine one, Court can refuse to grant a decree--For proving an agreement to sell stamp vendor along with his record be produced to prove that stamp paper was issued on a specific date and who was purchaser of stamp paper, then petition writer along with his register of petition writing to prove that same was written on specific date--Register and record of petition writer is also helpful to prove writing of a document at specific date, then two marginal witnesses to prove agreement and struck of bargain and then execution of document--Contents of agreement to sell were read over to her and after she accepted true, thumb marked same, therefore, agreement is bad in law.         [Pp. 1100 & 1102] A, B, C & D

Ch. Khalid Ayaz, Advocate for Petitioners.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 11.5.2015.

Judgment

Through this civil revision petitioners have challenged the judgment and decree dated 27.7.2001 passed by the learned Additional District Judge, Lodhran whereby appeal filed by the respondents-plaintiffs was accepted and the judgment and decree dated 10.11.2000 passed by the learned Civil Judge, Lodhran, dismissing the suit for specific performance was reversed.

2.  Brief facts of the case are that plaintiffs-respondents on 15.2.1995 filed a suit for specific performance on the basis of agreement to sell dated 9.8.1990. Respondents-plaintiffs claimed an agreement to sell of the suit property from Mst. Basri who was real sister of the plaintiffs. According to the agreement, the date for performance was 30.12.1992 and the suit has been filed on 15.2.1995 after the death of alleged seller. As per record she died in November, 1994. Written statement was filed. Suit was contested. Learned trial Court recorded the better statements and after that framed issues, invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Vide judgment and decree dated 10.11.2000 learned trial Court dismissed the suit. Appeal was preferred which was accepted by the learned Additional District Judge vide judgment & decree dated 27.7.2001. Hence, this civil revision.

3.  Learned counsel for the petitioners argues that Mst. Basri was real sister of the plaintiffs/respondents and suit has been filed on the basis of forged and fictitious agreement to sell to grab the property received by her in inheritance and further that there are material contradictions in the evidence of the plaintiffs-respondents and they have failed to prove the execution of agreement to sell, payment of consideration amount, therefore, learned trial Court reached to a right conclusion when the suit was dismissed and findings recorded by he learned first appellate Court while reversing the well-reasoned findings of the learned trial Court without any sufficient reason are not sustainable under the law. Prays for acceptance of this civil revision and setting aside the judgment and decree passed by the learned first, appellate Court.

4.  On the other hand, learned counsel for the plaintiffs-respondents states that two marginal witnesses as well as scribe have been produced and one of the plaintiffs appeared as a witness, therefore, findings of learned first appellate Court are in accordance with the record.

5.  I have heard learned counsel for the parties at length and gone through the record, evidence produced by both the parties oral as well as documentary, findings recorded by both the Courts below and the applicable law and the case law submitted by learned counsel for the petitioners.

6.  The alleged agreement to sell is dated 9.8.1990. Consideration amount is Rs. 2,00,000/- whereas as per agreement to sell an amount of Rs. 1,90,000/- has been shown to have been paid, which has been produced as Exh.P.1, the date for performance of the sale deed has been mentioned as 30.12.1992 whereas only a meager amount of Rs. 10,000/- is outstanding. I am unable to understand why such a long time was fixed for performance of agreement to sell when a meager amount of Rs. 10,000/- was outstanding and further there is no reason mentioned in this agreement that why direct sale transaction is not being arrived at between the parties and further the suit has been filed on 15.2.1995 when the alleged seller lady was already expired in November, 1994. A suit for specific performance on the basis of agreement to sell is a discretionary relief with the Court to grant a party who is coming to the Court for specific performance and therefore Court is required to consciously scrutinize the evidence and only in that case grant a decree when plaintiffs fully prove the case and prove that they are entitled to a decree in their favour. Even if an agreement to sell is proved, the Court is not bound to grant a decree for specific performance in every suit as it is discretion of the Court and when even there is a slightest doubt in the mind of the Court that the agreement is not genuine one, the Court can refuse to grant a decree. In this case the alleged seller is real sister of the plaintiffs and the suit property is the same which she received in inheritance and in our society we as a student of law everyday see that in the matters of inheritance the male members want to retain the property of the females with them and in most of the cases the intention remains that the female members be excluded from the inheritance or in some cases through various modes the property is re-transferred in favour of the male members. When in this case the plaintiffs have filed a suit for specific performance on the basis of agreement to sell, they were required to prove the agreement through concrete, convincing and unimpeachable evidence. For proving an agreement to sell the standard prevalent in our judicial system is that the Stamp Vendor along with his record be produced to prove that stamp paper was issued on a specific date and who was the purchaser of the stamp paper, then the Petition Writer along with his register of petition writing to prove that the same was written on specific date. This fact is proved when he produces the original record of petition writing i.e. his register to show chronological writing of deeds which are available date-wise in his register. The register and the record of the Petition Writer is also helpful to prove writing of a document at specific date, then two marginal witnesses to prove the agreement and struck of bargain and then execution of the document. In this case PW-1 the alleged Petition Writer appeared to prove Exh.P.1 the alleged agreement to sell and receipt Exh.P.2 but he did not bring his register to prove the specific time of writing of these documents. In the cross-examination he has admitted that the money was not paid before him. He does not know Mst. Basri and further that she was a “Pardah Nasheen” lady, therefore, his statement is not much helpful for the plaintiffs. One of the plaintiffs appeared as PW-2. he has admitted that the possession of the land is with them even before the writing of Exh.P.1. He has stated that Mst. Basri purchased the stamp of Exh.P.1 and she thumb marked in the register of Stamp Vendor. As per case of the plaintiffs at the time of execution of Exh.P.1 and Exh.P.2 Matloob Hussain/defendant, husband of Mst. Basri, was available but he was not made a witness. PW-3 also states that the stamp was purchased by Mst. Basri and he thumb marked the register of Stamp Vendor. This witness states that the payment was made to Mst. Basri in the plot of Tehsil office whereas PW-2 does not state that where the amount was paid. Perusal of Exh.P.1 agreement to sell shows that the stamp paper of Exh.P.1 was not purchased by Mst. Basri herself, there is no thumb impression to show that she purchased the same. Against the evidence of the plaintiffs, defendants produced DW-1 the Stamp Vendor, who came with his register to show that Muhammad Iqbal purchased the stamp, who is junior to the Petition Writer and Mst. Basri never came to him and stamp was never purchased by Mst. Basri. Even the front side of this document shows that no place for signatures or thumb impression of Alamgir and Muhammad Jamil has been fixed but at the end of this document without mentioning their names their signatures are available which shows that actually this document was prepared unilaterally on behalf of Mst. Basri and then to cure the legal defect plaintiffs have put their signatures at the end of this document.

7.  As I have discussed supra, the evidence of the plaintiffs is contradictory and further that I am unable to understand that why this document was written when almost 95% of the amount was being paid and there is no reason that why the sale was deferred and further when document is allegedly dated 9.8.1990 and for performance of agreement the date has been mentioned as 30.12.1992, whereas Mst. Basri died in November, 1994 and suit has been filed on 15.2.1995, series of the facts show that this document is not genuine one and further only this document was not to be proved by the plaintiffs, they were required to prove the struck of bargain, how it struck and payment of consideration, Exh.P.1 and Exh.P.2 which they failed to prove. They were required to prove the delivery of possession of the suit property in part performance of agreement to sell, this fact also has not been proved.

8.  Admittedly, Mst. Basri was a “Pardah Nasheen”, illiterate lady as has been admitted by one of the plaintiffs when appeared as PW-2/Muhammad Jameel and it is case of the plaintiffs that her husband was accompanying them when Exh.P.1 and Exh.P.2 were executed. Astonishingly he is neither marked anywhere present as a witness or identifier nor his presence is visible from these documents. It means that the story of presence of Matloob Hussain introduced by the plaintiffs is false. When Mst. Basri was having her husband and children, there was no reason why she sold her inherited property. To strengthen the findings I am fortified by the judgment of the Privy Council reported as A.I.R 1940 PC 147 “Bank of Khulna, Ltd. V. Jyoti Prokash Mitra and others”, wherein it has been held:--

“Where the execution of a mortgage deed by a pardanashin lady is found not to be her mental or conscious act, there being no room for a semi-conscious act, the whole deed is affected and must be set aside.”

Circumstances of the case show that no independent advice was available with the lady. I rely upon 2004 CLC 1026 “Muhammad Rasheed versus Mst. Saleema Bibi” and quote the dictum for ready reference:--

“Mere thumb-marking and especially of an illiterate lady is not sufficient to prove that the transaction contained in the document was understood by her. A person who is in a position to exert pressure or has got a relation of great confidence to wield influence upon the illiterate lady, if gets a transaction executed in his favour, that has to be seen with great doubt and in such case, the beneficiary of the document has to prove that the executant was emancipated from the above influence and had acted with an independent advice, with his free will and consent.”

Further it is not the case of the plaintiffs that contents of the agreement to sell were read over to her and after she accepted the true, thumb marked the same, therefore, the said agreement is bad in law in the light of judgment of august Supreme Court of Pakistan reported as PLD 1990 Supreme Court 642 “Janat Bibi versus Sikandar Ali and others''.

9.  For what has been discussed above, this appeal is accepted. The judgment and decree passed by the learned first appellate Court is set aside. The result is that the suit filed by the respondents-plaintiffs stands dismissed.

(R.A.)  Appeal accepted