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Regular Second Appeal No.274 of 1985, decided on 28th June, 1987.

---S.54--Execution of agreement to sell--Proof of--Where alleged executants denying execution of agreement to sell in respect of property in dispute, did not care to come into witness-box to deny their signatures on disputed documents, attorney of such executants, held, would not be expected to deny signatures of his principals, particularly when signatures of principals were compared by handwriting expert with their admitted signatures and proved to have been affixed on documents--Finding of Appellate Court below as to non-execution of agreement of sale based on mere statement of attorney was reversed by High Court in second appeal.

Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 ref.

---S.27--Protection to subsequent vendee, when available--Subsequent vendee having notice of previous agreement of sale executed between vendors and previous vendees or at least of pendency of litigation between parties based on previous agreement of sale, held, could not invoke provisions of S.27 of Act I of 1877 for his protection.

---S.54--Guardians and Wards Act (VIII of 1890), S.29--Sale of minors' property--Validity of--Mother being guardian of minors' was not permitted by Guardian Judge to sell or agreed to sell minors' share in property by the time agreement of sale was executed between her and the previous vendees--Permission to sell subsequently in favour of subsequent vendee, held, could not be availed of by previous vendees in proof of sale in their favour because at that time, guardian of minors had no permission to sell.

Khawaja Saved-uz-Zafar for Appellant.

Habibullah Chaudhry for Respondents.

Date of hearing: 10th June, 1987.

The under consideration two appeals viz. R.S.A. No.274 of 1985. and R.S.A. No.275 of 1985 as also the Cross-Objections Nos.5540-C-81 and 5541-C-81 are directed against the judgment dated 5-10-1985 passed by a learned Additional District Judge, Lahore.

2. The dispute pertains to property No.166-B, Mayo Road, Dharampura, Lahore. The portion 'A' of this property was admittedly transferred to Remat Ali Qureshi, the father of Abdul Khaliq Qureshi, the appellant in R.S.As. Nos.274 and 2.75 of 1985 while the disputed portion, viz. portion 'B' was transferred to Raees Ahmad. Anees Ahmad and ShaReel Ahmad sons of Shafeeq Ahmad. Raees Ahmad, one of the transferees, died. Subsequently, Anees Ahmad, Shakeel Ahmad, and Mst.Shamim Akhtar and Khalid Raees, the latter widow and son respectively of Raees Ahmad deceased, allegedly executed an agreement to sell, Exhibit P.1, in favour of Abdul Khaliq Qureshi on 25-1-1971. There are other heirs of Raees Ahmad deceased who are minors. At the time of execution of agreement to sell, Exhibit P.1, their mother Mst.Shamim Akhtar was neither appointed as their guardian of property nor had any permission by the Guardian Judge to dispose of the minors' property.

A Writ Petition bearing No.997-R of 1977, challenging the transfer of the suit property in favour of Raves Ahmad, Shakeel Ahmad, and Anees Ahmad, was pending before the High Court. That Writ Petition was dismissed on 18-9-1975 as withdrawn. Thereafter, Permanent Transfer Deed was issued in favour of Raees Ahmad, Shakeel Ahmad and Anees Ahmad on 19-2-1979. Abdul Khaliq Qureshi, the appellant herein, on 28-2-1979 filed suit for specific performance of the contract giving rise to the present appeals.

On 21-12-1974, Mst.Shamim Akhtar obtained permission from the Guardian Judge to sell the share of the minors in the property in dispute on the condition that she would deposit the sale price in Court. Subsequently, a registered sale-deed was executed in favour of Muhammad Siddiq, respondent No.15, on 18-6-1981, during the pendency of litigation between Abdul Khaliq Qureshi and Anees Ahmad, etc. arising out of the suit for specific performance of the contract.

The Cross-Objections under consideration have been filed by Muhammad Siddiq, respondent No.15.

3. In the first round of litigation, the plaint of the appellant's suit for specific performance of the contract was rejected on 22-12-1979, under Order VII, Rule 11 of the Code of Civil Procedure, by the learned-trial Court. An appeal was taken by the appellant before a learned Additional District Judge, Lahore, against the order of rejection, but his appeal was also dismissed on 18-6-1981. He, thereafter, filed a regular second appeal (R.S.A. No.161 of 1981) before this Court which was accepted on 27-3-1,983 and the case was remanded to the trial Court for deciding the same on merits in accordance with law.

4. After remand, the learned trial Court, keeping in view the divergent pleas raised by the parties in their pleadings, framed the following issues on merits:-

(1) Whether the plaintiff has no cause of action to file the present suit

(2) Whether defendant No.1, his deceased brother Shakeel Ahmad and defendants Nos.4 and 5 entered into an agreement with the plaintiff to sell portion B of house No. SE-6-R-166 for consideration of Rs.20,000 and received Rs.5,000 as earnest money

(3) Whether defendant No.15 is a bona fide purchaser for value and without notice of the suit property' If so, to what effect

(4) Relief.

5. The learned trial Court, after taking into consideration the oral as well as the documentary evidence led by the parties in support of their respective claims, came to the conclusion that the agreement to sell, Exhibit P.1, was executed by Anees Ahmad, Shakeel Ahmad, Mst.Shamim Akhtar and Khalid Raees in favour of the appellant. He, however, further found that Mst.Shamim Akhtar had no lawful authority to agree to sell the minors' share in the property in dispute in favour of the appellant. It was also held that defendant No.15, who is respondent No.15 herein, purchased the suit property during the pendency of litigation between the appellant and defendants Nos.1 to 5 and that he had full knowledge about such litigation. He was, therefore, not protected under Section 27 of the Specific Relief Act. Consequently, the suit of the appellant was decreed against defendants Nos.1 to 5 and 15 and was dismissed against defendants Nos.6 to 14. The parties were left to bear their own costs. This judgment was announced by the learned trial Court, on 18-1-1984.

6. Defendants Nos.1 to 5 and 15 filed appeals challenging the judgment and decree passed by the learned trial Court. Similarly, the appellant herein also filed appeal challenging the dismissal of his suit as against defendants Nos.6 to 14. The learned Additional District Judge, vide his impugned judgment dated 5-10-1985, reversed the findings of the learned trial Court on issue No.2. He (the learned Additional District Judge) found that, in fact, execution of the alleged agreement to sell was not proved. The agreement to sell appeared to be a forged and fake document. He, therefore, accepted the appeal of defendants Nos.1 to 5 and dismissed the suit of the appellant for specific performance of the contract. He, however upheld the finding of the learned trial Court as against defendant No.15, the subsequent vendee and it was held that the subsequent vendee had the notice of the alleged previous agreement to sell in favour of the appellant and the pendency of the litigation between the appellant and respondents/ defendants Nos.1 to 5. His appeal was, therefore, dismissed. Hence, the present appeals and cross-objections.

7. The main controversy in the under consideration litigation between the appellant and respondents Nos.1 to 5 is that if agreement to sell, Exhibit P.1, has, in fact, been executed by Anees Ahmad, Shakeel Ahmad, Mst.Shamim Akhtar and Khalid Raees in favour of the appellant or not. Needless to add that in their written statement Anees Ahmad, etc. denied the execution of the agreement to sell, Exhibit P.1.

8. To prove the execution of agreement to sell, Exhibit P.1, the appellant besides appearing himself as his own witness as P.W.2, examined P.W.1 Muhammad Hameed. P.W.1 disclosed that he signed the agreement to sell, Exhibit P.1, as a marginal witness. He, however, admitted that this document was not executed in his presence. It was brought before him by Abdul Khaliq Qureshi himself and requested him to sign it as a marginal witness. Therefore, he affixed his signatures at Exhibit P.1/1. Abdul Khaliq Qureshi, however, testified that agreement to sell, Exhibit P.1 was duly executed in his favour by Anees Ahmad, Shakeel Ahmad, Mst.Shamim Akhtar and Khalid Races and that they had agreed to sell the property in his favour for Rs.20 000 and Rs.5,000 were received by them as earnest money. Additionally, the appellant also relied upon the report and evidence of handwriting expert A.R. Pasha, who compared the disputed signatures of Khalid Raees, Anees Ahmad and Mst.Shamim Akhtar on the alleged agreement to sell, Exhibit P.1, with their specimen signatures. In his opinion the agreement to sell was, in fact, signed by these respondents.

9. In rebuttal, Muhammad Sharif, an attorney of defendants Nos.1 to 14, has come into the witness-box. He stated that document, Exhibit P.1, was not signed by his principals. Anees Ahmad, Mst. Shamim Akhtar or Khalid Raees had not dared or dared to come into the witness-box to state on oath that agreement to sell, Exhibit P.1, was not signed by them. An handwriting expert has also been examined in rebuttal. He is D.W.5 M.A. Noomani. He has reported that after comparison of the disputed signatures of Anees Ahmad, etc. with their specimen signatures, he has found that document Exhibit P.1 was not signed by Anees Ahmad, etc.

10. The learned Additional District Judge has been influenced by the fact that besides Muhammad Hameed, in whose presence document Exhibit P.1 was admittedly not written, no further evidence has been produced by the appellant to prove that actually agreement to sell, Exhibit P.1, was executed and signed by Anees Ahmad, Shakeel Ahmad, Mst. Shamim Akhtar and Khalid Raees in his favour. The other marginal witness and its scribe have not been produced. He has also opined that the learned trial Court has preferred the testimony of A. R. Pasha handwriting expert over that of M. A. Noomani. According to him, much importance cannot be attached to the opinion of handwriting experts.

11. The grounds on which the learned Additional District Judge has based his conclusions are not devoid of substance, but, nevertheless, he has not taken into consideration this aspect of the matter that the respondents who allegedly executed the agreement to sell, Exhibit P.1, are alive but they have not cared to come into witness box to deny their signatures on the disputed document. Their attorney, who is brother of respondent No.15, the subsequent vendee, is not expected to deny the signatures of his principals -on the document in question: Moreover, the appellant himself has also testified on oath that agreement to sell, Exhibit P.1, was, in fact, executed by Anees Ahmad, Shakeel Ahmad, Mst.Shamim Akhtar and Khalid Raees and that a sum of Rs.5,000 was paid to them as earnest money while the remaining sale price amounting to Rs.15,000 has yet to be paid. This is true that much importance cannot be attached to the opinion of an handwriting expert particularly when his opinion has been contradicted by another handwriting expert. The signatures of Anees Ahmad, Mst.Shamim Akhtar and Khalid Raees on Exhibit P.1, when compared with their admitted signatures on documents allegedly executed by them in favour of respondent No.15 with naked eye, it appears that these persons have actually affixed their signatures on Exhibit P.1. Moreover, in the earlier round of litigation, it was urged on behalf of the respondents before this Court, at the time of hearing of regular second appeal, that the agreement to sell was executed in favour of the appellant by Shakeel Ahmad, Mst. Shamim Akhtar, Anees Ahmad and Khalid Raees, but no body executed this agreement acting as the guardian of the minor defendants who were heirs of Raees ,Ahmad deceased and that their mother Mst.Shamim Akhtar was not authorized by the learned Guardian Judge to transfer the share of the minors. It was also urged that the share of Shakeel Ahmad, Anees Ahmad, Mst.Shamim Akhtar and Khalid Raees was not specified in the agreement to sell. In Malik Din and another v. Muhammad Aslam P L D 1969 S C 136, it has been observed that a previous judgment is admissible to prove a statement or admission or acknowledgment made by a party or predecessor-in-interest of a party in his pleadings in a previous litigation. It has further been held that similarly a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on that occasion. It has also been observed that even recitals in previous judgment, which is inter parties, are admissible.

12. In the light of the above discussion, it is concluded that the execution of the agreement to sell in favour of the appellant by Anees Ahmad, Shakeel Ahmad, Mst. Shamim Akhtar and Khalid Raees stands proved. To this extent, the findings of the learned lower appellate Court recorded in the impugned judgment are reversed.

So far as the question of protection to the subsequent sale in favour of respondent No.15 is concerned, it may be observed that admittedly the subsequent sale in favour of respondent No.15 took place during the pendency of litigation between the appellant and defendants Nos.1 to 5. It has been admitted on his behalf that when the appeal against the order of rejection of plaint by the lower appellate Court was dismissed, he got executed the sale-deed in his favour and that he was aware of the fact that appeal of the appellant has been dismissed. This shows that he had the notice of the previous agreement to sell between the appellant and defendants Nos.1 to 5 or at least the pendency of litigation between the appellant and the said defendants based on the alleged agreement to sell He cannot, therefore, claim protection being the subsequent vendee for consideration. To this extent, the concurrent findings of the Courts below are upheld.

As regards the minors' share in the suit property, admittedly Mst.Shamim Akhtar, the mother and guardian of the minor heirs of Raees Ahmad, was not permitted by the Guardian Judge to sell or agree to sell the minors' share in the property by the time the agreement Exhibit P.1 was executed by her in favour of the appellant.. Such permission was subsequently accorded in 1974, perhaps, when the property was sought to be sold in favour of the subsequent vendee viz. respondent No.15. The appellant cannot avail of such subsequent permission. At the time of execution of agreement to sell, Exhibit P.1, Mst. Shamim Akhtar had no such permission and, therefore, agreement to sell, executed by her had no binding effect on minors' share in the suit property.

13. In view of the above conclusions, the under consideration appeals are accepted. The impugned judgment passed by the learned lower appellate Court is set aside while the judgment passed by the learned trial Court is restored. Consequently, the appellant's suit against defendants Nos.1 to 5 for the specific performance of the contract on payment of the remaining sale price to the extent of the share of defendants Nos.1 to 5 is decreed while the appellant's suit against defendants Nos.6 to 14 is dismissed.

The Cross-Objections are also dismissed.

The parties are left to bear their own costs throughout.

H.B.T./A-174/L Appeal accepted.

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