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Second Appeal No. 320 of 1951, decided on 10th December 1953, from the decree of the Court of Muhammad Rafiq, District Judge Montgomery at Lahore, dated the 16th June, 1951, affirming that of Muhammad Abdul Rehman, Senior Civil Judge, Montgomery, dated 15th February, 1951.
S. 17‑---Document reciting already existing jointness in land, and promising further that mutation would be entered in name of promisee‑--Not compul sorily registrable.
The first part of document merely recited an already existing jointness in expend and usufruct. The second part contained a promise to get a mutation entered in the name of the promisor's brothers and brother's sons. Whatever the rights of the parties in this document, it was clear that by means of this document no rights in the land had been created.
The document was not compulsorily registrable.
S. 19‑---Agreement relating to transfer of proprietary rights in land comprised in tenancy, when such rights acquired‑‑ Valid‑Form of suit based on agreement‑Declaratory.
Fateh Muhammad acquired, in the year 1922, 47J acres of land in Chak No. 121 f 7‑E. R. from the Government in tenancy tight on terms called Bara Shariat. On the 19th December, 1925, be executed in favour of his brothers Karim Bakhsh and Abdullah and the sons of his third brother Muhammad Bakhsh, who bad died in the meantime, agreement (Exh. P. 1), the basis of the present suit. This agreement after reciting that though the land had been acquired in the name of Fateh Muhammad, the remaining defendants of Ali Bakhsh too were, from the very day of the grant, co‑sharers in it and had contributed to the expense, went on to state that Fateh Muhammad appellant would, on obtaining proprietary rights in the land, get mutation entered in favour of his brother's sons to the extent of I and in favour of his brothers to the exent of J each, i.e., all the four branches would ,share equally.
Held, that the suit related ownership of the land. There was no bar to a person agreeing to transfer or to acquire Jointly proprietary rights, Agreements which relate to both tenancy and proprietary rights, though they may fall as regards the former world still be enforceable in respect of the latter.
Nathu Allahditta A I R 1922 Lah. 287, Hussain Bakhsh Garbuland A I R 1 9 26 Lah. 14 and Hussain Kha, e. . tahaN d Khan 58 P R 1913 ref.
Further, that the true intention of the parties was not that Fateh Muhammad should first become owner of the proprietary rights and then transfer them to the other parties, but that he should acquire proprietary rights on his own behalf as well as on behalf of the other parties to the deed. In such a case the moment he acquires the proprietary right, the other parties would become co‑sharers therein. But this assumes that when be did purchase he had the intention to purchase on behalf of others too.
The plaintiff's suit for declaration of ownership was therefore, in order.
Agreement to transfer‑‑‑Oral.'' declaration either by promisor or an his failure by Court enough ( obiter),
Form of suit‑objection not allowed to he raised for first time in second appeal.
Ghias v. Muhammad for Appellant.
Sh. Abdul Aziz for Respondents.
‑‑‑Parties to Regular Second Appeals Nos. 320 and 326 of 1951 are descendants of one Ali Bakhsh who had four sons, Fateh Muhammad, Abdullah, Karim Bakhsh and Muhammad Bakhsh. Fateh Muhammad acquired, in the year 1922, 47 acres of land in Chak No. 121/7‑E. R. from the Government in tenancy right on terms called para Sharait. On the 19th December 1925, he executed in favour of his brothers he Karim Bakhsh and Abdullah and the sons of his third brother Muhammad Bakhsh, who had died in the meantime, agreement (Exh. P. 1), the basis of the present suit. This agreement after reciting that though the land had been acquired in the name of Fateh Muhammad, the remaining descendants of Ali Bakhsh too were, from the very day of the grant, co‑sharers in it and had contributed to the expense, goes on to state that Fateh Muhammad appellant would, on ob taining proprietary rights in the land, get mutation entered in favour of his brother's sons to the extent of 1/4 and in favour of his brothers to the exent of 1/4 each, i.e., all the four branches would share equally. In 1927, however, the Govern ment wanted to resume half the land, as it appears they were entitled to do under the conditions on which the land had been allotted. On this Fateh Muhammad applied to the authorities for transfer of half of the land to his brother Abdullah. The application was granted and the land so transferred in 1932, Abdullah died acid his share devolved on the remaining three branches equally. In 1946, all the parties acquired proprietary rights with respect to the shares of tenancy standing in their respective names.
On the 17th October 1950, Muhammad Shafi and Muhammad Hassan sons of Muhammad Bakhsh filed the suit out of which the present appeal arises against Fateh Muhammad claiming, on the basis of the deed of the 19th December 1925, that they were entitled to proprietary rights in 1/4 of the whole land. They made no mention of the transfer of half of the land to Abdullah, and the mutations in favour of the three branches on Abdullah's death, They alleged that they had paid to Fateb Muhammad their 1 i4th share of the money that was to be paid for acquisition of the proprietary rights. They alleged, at the same time; that they had been in possession since 1922 and had acquired rights of ownership by adverse possession.
Fateh Muhammad replied that the agreement of 1925 was invalid and had not been acted upon, that the plaintiffs had consented to the transfer of land to Abdullah and had received their share of that land on Abdullah's death, that it was not correct that he had received from the plaintiffs their share of the money required for the purchase of proprietary rights, and that the plaintiffs had not been in adverse posses sion. He objected also to the admissibility of the agreement (Exh. P. 1) Following issues were framed:‑
1. Was the agreement Exh. P. 1 ever acted upon
2. Is that document admissible in evidence
Did defendant get half of the grant in question mutated in the name of his deceased brother Abdullah If so, what is its effect on the present suit
4. Are the plaintiffs in adverse possession of the land in suit for a period of twelve years prior to the institution of this suit
5. Relief:
The learned Subordinate Judge, who tried the suit, found that since the very beginning of the tenancy, i.e., from 1922, the plaintiffs had been in possession and that the agreement (Exh. P. 1) was admissible and had been acted upon. On issue No. 3 he found that the plaintiffs had agreed to the transfer in favour of Abdullah, and held that they could not claim 1/4th of the land so transferred. He found adverse possession not proved On these findings lie decreed the suit for 1 /4 of half of the whole land. Both parties appealed to the District Judge who agreed with the trial Court on all issues and dismissed the appeals. Both parties have come tip in second appeal.
Learned counsel for Fateh Muhammad appellant argue (1) that half the land having been transferred to Abdullah, the whole basis of the agreement (Exh. P. 1) disappeared, (2'3 that the agreement (Exh. P. 1) required registration, (3) that the agreement was bit by section 19 of the Punjab Colo nization of Government Lands Act, and (4) that the Courts having found agreement. (Exh. P. 1) to be only executory, the plaintiffs' suit for a declaration of ownership ought to have been dismissed. As regards the first point, the legal objection contained in the argument can be stated thus: the continued existence of the subject‑matter of the contract, i.e., the whole of the land, was an implied condition of the contract and if the subject‑matter ceases to exist in its original form, the party is absolved frown performance. The circumstances of the case, however, do not justify the inference suggested. The agree ment of 1925 in fact recognises the equal rights of the parties in the land as already existing. The agreement shows that the land had been jointly brought under cultivation and the expenses had been shared equally. The trial Court found that since the very beginning of the tenancy, the four branches were in possession in equal shares, and the record shows Muhammad Shafi plaintiff consistently in possession of about 12 acres. The agreement only records already existing rights and a joint enjoyment of shares. The reason why the agreement to transfer proprietary rights was secured from Fateh Muhammad was due to the fact that the tenancy stood in his name. All that Fateh Muhammad can now urge is that if he has not with him the whole of the land of which he undertook to trans fer a part, then he can be obliged to transfer a part of only that which was left to him.
There is another aspect of this objection. Fateh Muhammad defendant had himself pleaded in the Lower Court, and the plea has been accepted, that the transfer to Abdullah was made with the consent of the parties. The parties could not have given their consent if the result was to be that they were not going to get any part of the land. The consent could only have been given on the assumption that they would at least not lose their share in the land which was left with Fateh Muhammad. I find no force in this point.
The agreement (Exh. P.1) does not require registration for it does not purport to create any rights in land. The first part merely recites an already existing jointness in expense and usufruct. The second part contains a promise to get a mutation entered in the name of the brothers and brother's sons. Whatever the rights of the parties in this document, it is clear that by means of this document no rights in the land had been created.
The objection as to section 19 of the Punjab Colonization of Government Lands Act, though it may not affect the document, which by itself does not purport to transfer any rights in the land, may affect the transaction to which it refers if the transaction took place after Fateh Muhammad had acquired tenancy rights. For the purposes of this case, however, it is not necessary for me to go into the question whether the original agreement between the parties preceded the acquisition of the tenancy and whether it really violates section 19 of the Punjab Colonization of Government Lands Act. The suit relates to ownership of the land. There is no bar to a person agreeing to transfer or to acquire jointly proprietary rights. Agreements which relate to both tenancy and proprietary rights, though they may fall as regards the former, would still be enforceable in respect of the latter. If authority were needed for such a proposition, it will be found in Nathu v. Allah Ditta (A I R 1922 Lah. 287), Hussain Bakhsh v. Sasbuland (A I R 1926 Lah. 14) and Hussain Khan v. Jahan Khan (58 P R 1913). In the first mentioned case, the agreement was held invalid as regards tenancy rights having been entered into in violation of section 19 of the Punjab Colonization of Government Lands Act, and yet was held valid with respect to proprietary rights.
I now come to the objection that as the agreement was found by the Courts to be an executory one, the relief of declaration of ownership ought to have been disallowed and the suit dismissed. The agreement is no doubt executory in form. It contains a promise that the executant would get the property mutated in the names of the other parties to the deed. If the deed was only an agreement to transfer, the only proper decree to pass would be one of specific performance of the contract, and not one granting a declaration that the plaintiffs are already owners of land. This decree for specific perfor mance would be executable by the judgment‑debtor either executing a deed of transfer in favour of the decree‑holder or just making an oral declaration. "I transfer the property in dispute to the decree‑holder", for here there is no enactment like the Transfer of Property Act, making a written transfer essential. If the judgment‑debtor did not comply with the decree, the Court would, under Order 21, rules 32, 34 of the Code of Civil Procedure, either execute the deed of transfer on behalf of the judgment debtor or would orally make a declaration. "I transfer the property on behalf of the judgment debtor to the decree‑holder", and would record the oral declaration which would complete the title of the decree‑holder. I am explaining this for it is generally not kept in view that there can be an oral declaration by a judgment‑debtor or by the Court and that such transfer is essential to pass title to the plaintiff. Suits based on similar agreements generally take the form either of a simple suit for possession or a suit for a declaration of title which forms are really not correct. Of course, the procedure I have indicated relates only to suits based on agreements to transfer and would apply to a case where by a document a contingent interest is actually transfered. In such a case the contingent interest would stand trans ferred but the document would require registration.
However, the deed in this case is not an agreement to transfer. At least it is not only that, although it is not a deed which effects any transfer. The true intention of the parties was not that Fateh Muhammad should first become owner of the proprietary rights and then transfer them to the other parties, but that he should acquire proprietary rights on his own behalf as well as on behalf of the other parties to the deed. This was the interpretation placed on a similar agreement in Preman v. Hardit Singh and others (A I R 1930 Lah. 835). In such a case the moment he acquires the proprietary rights, the other parties would become co‑sharers therein. But this assumes that when he did purchase, he had the intention to purchase on behalf of others too. There is no difficulty, however, in presuming such an intention, for there is a presumption of honesty and good faith. In the absence of any proof to the contrary, I would act on the assumption that when he pur chased the property he had the intention to stand by his agreement. Even if I do not raise this presumption, in the circumstances of this case. Fateh Muhammad would gain noth ing. Having entered into an agreement to purchase on behalf of all, if he went back upon his agreement and acquired pro perty for himself alone he would, under the circumstances in which this deed was executed, become a constructive trustee for other parties to the extent of their shares. An agent for purchase, if he acquires property for himself, becomes a trustee for his principal. This proposition is stated in Article 51 of Bowstead on Agency and the principle underlying ills accept ed in illustrations (e) and (f) of section 3 of the Specific Relief Act, wherein trustee' has been defined. In the present case, Fateh Muhammad was not a mere agent. He was one of the persons who had launched a join: venture sharing expenses and profits and by his exceptional position as the person in whose name the grant stood, he was the only one who was entitled to acquire the rights. The circumstances are clearly such that it would be his duty to protect the rights of the parties to the deed of 1925, who had reposed confidence in him. If his posi tion then be that of a trustee, I am not going to allow an objection on this ground being taken by him for the first time in second appeal. No objection as to the form of the suit ha
been taken in any of the Courts below.
In the cross appeal it is argue that the plaintiffs should be allowed 1 /4th of the whole land. Both Courts have found that the plaintiffs had consented to the transfer in favour of Abdullah. It is apparent too from the statement of Muhammad Shafi plaintiff himself that one‑half of the land was being taken over by the Government and it was for this reason that a transfer to Abdullah was secured. Had the Government resumed one‑half of the land, the plaintiffs would have no rights in that half. It cannot be said, under the circumstances that Abdullah's land also remained subject to the original agreement. The real nature of the agreement was that parties were to share equally. If part of the land was taken away from Fateh Muhammad, the result would be that the remaining land in his possession would be shared equally by all parties. The fact that subsequently some part of the land of Abdullah did come back to Fateh Muhammad should not make any differ ence. I find no force in the pleas advanced on behalf of the plaintiffs. As a result both these appeals are dismissed but the parties are left to bear their own costs of the appeals.
A.H. Appeals dismissed.
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