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Civil Petition for Leave to Appeal 582 of 1986, decided on 24th June, 1986.

(On appeal from the judgment and order of the Lahore High Court 29‑1‑1986 in R . S . A No. 20 of 1986).

‑‑‑Art. 185(3)‑‑Transfer of Property Act (IV of 1882), S.44‑‑One co‑sharer entering into agreement to sell house‑‑Two other heirs of property refusing to sell‑‑Respondent's suit for possession through specific performance of agreement, decreed‑‑Decision upheld in second appeal‑‑Plea that house belonging to undivided family could not be made subject of agreement to sell without consent and approval of other co‑sharers, not sustained‑‑Respondent had special power of attorney on behalf of one other co‑‑sharer while third co‑sharer, having knowledge of execution of agreement and suit pending for its specific performance, had purchased house in dispute‑‑No other owner of house was disclosed by petitioners‑‑Petition being devoid of merit, dismissed.

A I R 1940 Lah. 159; 7 I. C. 393 and A I R 1939 All. 64 ref.

A I R 1930 Lah. 401 and A I R 1930 Lah. 1 rel.

C.M. Latif Rawan, Advocate Supreme Court and Maqbul A. Qureshi, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 24th June, 1986.

This petition arises out of the following facts:

Respondent Muhammad Iqbal entered into an agreement with the petitioners for the purchase of a house for Rs.4,000 and allegedly paid Rs.5,000 to the petitioner as earnest money. Later on, it is stated in the petition, that other heirs of the property refused to sell the house in question. Petitioner, therefore, wanted to return the earnest money to the respondent. Respondent, however, filed a suit for possession through specific performance of the Agreement in the Court of Civil Judge who passed a decree in favour of the respondent on the 3rd July, 1984. Petitioner filed appeal against the said judgment and decree of the trial Court which was dismissed by the learned Additional District Judge, Lahore. Thereafter, the petitioner filed Regular Second Appeal in the Lahore High Court which was dismissed vide the impugned order, dated 29‑1‑1986.

2. Petitioners now seek leave to appeal against the aforesaid judgment on the ground that the property in dispute i.e. a house belonging to the undivided family petitioners Nos. 1 and 2‑-could not made it, subject of agreement to sell without the consent and approval of the other co‑sharers of the house in question. Hence, nothing shall be deemed to entitle the respondent to seek possession or enjoyment of the house in dispute as the same is barred under the proviso of section 44 of the Transfer of Property Act (IV of 1882); that the Courts below have ignored the law laid down in A I R 1940 Lah. 159:

"where once co‑sharer enters into a contract for the sale of entire land including the interest of the other co‑sharers giving undertaking that he will obtain the consent of the other‑‑contract is not fulfilled on the refusal of the others, vendee is entitled to damages."

Learned counsel further contended that the Courts below also ignored that law laid down (7 I C 393):

"Deed of sale was to be executed but was signed by only one of them‑‑Contract cannot be enforced."

and it has been held in A I R 1939 All. 64

"Contract incomplete‑‑No suit under Specific Relief Act lies."

3. We have examined the contentions raised by the learned counsel. We would refer to the finding of the learned Additional District Judge, Jhang in paragraphs 7 and 8 of his judgment, dated 19‑1‑1986 which read as follows: ‑

"Hafiz Gul Muhammad appellant /defendant No. 3 appeared as a witness before the lower Court. wherein he admitted in his cross‑examination that Mehboob Elahi was the special power of attorney on behalf of Nisar Ahmad his brother. This fact has also been corroborated by the document .Exh. 3 wherein it is disclosed that Mahboob Elahi and Nisar Ahmad sons of Fazal Elahi are owners in possession on the disputed house. Again I would like to say that neither Mahboob Elahi nor Nisar Ahmad appeared before the lower Court in order to rebut the evidence produced by the respondent /plaintiff before the lower Court. In order to decide this issue I again rely on the authorities cited above A I R 1930 Lah. 401 and A I R 1930 Lah. 1. In these circumstances of the case I hold that Mahboob Elahi and Nisar Ahmad were the owners in possession of the disputed house. It is admitted fact that Mahboob Elahi entered into an agreement to sell with the respondent/plaintiff Muhammad Iqbal and received Rs.5,000 as earnest money through document Exh. P./1. It is on the record that Mahboob Elahi is elder brother of Nisar Ahmed. He was also special power of attorney on his behalf.

As far issue No. 4 is concerned whether the appellant defendant No. 3 Gul Muhammad is bona fide purchaser of the said house through registered sale‑deed Exh. D/4 was in his knowledge that the appellants /defendants No. 1 and 2 entered into an agreement to sell with Muhammad Iqbal respondent /plaintiff prior to the registration of impugned registered sale‑deed Exh. D/4, dated 24‑3‑1980 when the suit was pending. Above all Muhammad Iqbal respondent moved an application Exh. P./4 before Sub‑Registrar wherein he stated that the registered sale‑deed should not be sanctioned as the appellants /defendants Nos. 1 and 2 had already entered into an, agreement to sell with him .. ..."

The learned High Court Judge also found that the finding of the lower Courts are well‑founded and unexceptionable and observed in paragraph 2 of the impugned judgment as follows:‑

"I have noticed also that there has not been made a specific disclosure by the defendants at any stage as to who may be the other owner of the house in dispute and actually in answer to .... of the plaint wherein description and ownership of the house in dispute, has been given, the defendants have not mentioned the name of any other owner of the house in dispute. Not only that such was the duty of the defendants to have clearly pleaded and proved which they have not, but also an objection to that effect cannot even be entertained on behalf of the present defendants, one of whom is a transferee pendente lite of the suit house and he cannot evade his liability under section 27 of the Specific Relief Act ....

In the light of above discussion, we find no merit in this petition which is, consequently, dismissed.

M.I. Petition dismissed.

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