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Second Appeal No.469 of 1970, decided on 16th May, 1987.

--S.12--Contract Act (IX of 1872), Ss.2(b), 182 & 186--Agreement of sale--Proof of execution--Agreement of sale of respondent's property was allegedly entered by him with appellant through latter's attorney when no written power of attorney was existing in favour of attorney at time of execution of agreement--Evidence' of appellant coupled with that of attorney of appellant, held was sufficient to establish that respondent had executed agreement' of sale with appellant and no written power of attorney was required in case for proving execution of said agreement.

---S.12--Contract Act (IX of 1872), Ss.2(b), 182 & 186--Qanun-e Shahadat Order (10 of 1984), Art. 79--Agreement of sale--Proof of execution--Agreement of sale allegedly entered by respondent with appellant--Appellant examining attesting witnesses to prove execution of agreement but Courts below requiring production of expert evidence--Nothing available on record to show that evidence of attesting witnesses on point was insufficient--Finding of Courts below requiring production of expert evidence for proof of execution of agreement, held, was not justified--No requirement of law existed to prove execution of a document by production of expert evidence--Findings of Courts below set aside and case remanded for disposal in accordance with law.

Azhar Ali Siddique for Appellant.

Respondents (absent).

Date of hearing: 27th April, 1987.

The facts giving rise to this second appeal are that the appellant through his general attorney Maqsood Ali had agreed to purchase property bearing No.BV/121 situated in new Hala by an agreement of sale dated 6-2-1961 executed by him and deceased Sadal Khan (respondent No.1). An amount of Rs.1,847/- was also paid to deceased Sadal Khan as consideration for the property on an assurance that he would execute the sale-deed in favour of the appellant after P. T. D. in respect of the property was issued in his favour by the Settlement Department. It was then alleged that P. T. D. was later issued in favour of deceased Sadal Khan but he failed to execute the sale-deed in favour of the appellant. Consequently, a suit for specific performance in respect of the sale agreement was filed by the appellant against Sadal Khan.

Deceased Sadal Khan filed written statement wherein execution of sale agreement with the appellant was completely denied. However, during pendency of the proceedings, respondent Muhammad Ramzan who was son-in-law of Sadal Khan filed an application before the learned trial Court for being joined as a defendant in the suit , as according to him the property in question had been purchased by him from deceased Sadal Khan for a consideration of Rs.4,000/- by a registered sale-deed. Respondent Muhammad Ramzan was accordingly joined' as a defendant to the suit. Thereafter, the matter proceeded before the learned trial Court which dismissed the suit of the appellant vide judgment dated 12-7-1969. The appellant appealed before the then learned District Judge, Hyderabad but without any success and hence this second appeal.

In their respective judgments, both the Courts below have come to the conclusion that execution of the sale agreement by the appellant and Sadal Khan had not been sufficiently established by the appellant. The reasons for giving such findings by the learned Courts below are that a power of attorney (Ex.17) had been produced by the appellant in evidence which, indicated that the same had been executed in favour of Maqsood Ad on 4-9-1969 and since the sale agreement is alleged to have been executed by the appellant through Maqsood Ali on 6-2-1961, obviously the written power of attorney was not in existence at that time. An inference was consequently drawn by the learned subordinate Courts that execution of the sale agreement in favour of the appellant was not proved.

I have only heard Mr. Azhar Ali Siddiqui, learned counsel for the appellant as none has appeared on behalf of the respondents in the case despite, notice.

The contentions raised by Mr. Azhar Ali Siddiqui are that:

(1) Since P.W. Maqsood Ali had fully supported the appellant on the point of execution of sale agreement, a written power of attorney in his favour was not required to be produced in evidence; and

(2) Both the Courts below were in error while holding that expert evidence was necessary to prove execution of the sale agreement.

No doubt the power of attorney, dated 4-9-1967, which was produced by the appellant himself in evidence raise a presumption that there was no written power of attorney in existence at the time when the agreement of sale is alleged to have been executed by Sadal Khan and the appellant, but it may be pointed out that no written power of attorney was required in the case for proving execution of such agreement. Since the appellant was a purchaser of the property, his evidence coupled with that of Maqsood Ali was sufficient to establish that the latter had executed the sale agreement as attorney or agent of the appellant.

Turning to the second argument of Mr. Azhar Ali Siddiqui, the findings of the learned Courts below requiring production of expert evidence to prove execution of the sale agreement also do not appear to be tenable as the two attesting witnesses, namely, Abdul Ghaffar and Talib Hussain had been examined by the appellant to prove execution of the agreement. Since production of handwriting expert in evidence was not required by any law to prove execution of a document, the findings of the learned Courts below in this respect were certainly not justified since there is nothing to show that the evidence of the two attesting witnesses on the point was insufficient. I, therefore, fully agree with Mr. Azhar Ali Siddiqui that such findings cannot be sustained in view of the circumstances discussed above.

The upshot of this discussion is that the appeal is allowed and the judgment, dated 6-7-1970, passed by the learned District Judge, Hyderabad is set aside and the case is remanded to the learned District Judge, Hyderabad for fresh disposal in accordance with law after considering all the relevant aspects of the case. The parties are however left to bear their own costs.

M.Y.H./K-42/K

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