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Petitioner: Mst. MUMTAZ BEGUM AND 2 OTHERS VS Respondent: BOMANSHAW BURJORJI GAZDAR AND JUDGMENT
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed, Fakhruddin H. Shaikh Title:Mst. MUMTAZ BEGUM AND 2 OTHERS vs BOMANSHAW BURJORJI GAZDAR AND
JUDGMENT
Reported As: 1984 CLC 1820 Result: Appeal allowed Judgment JUDGMENT ' FAKHRUDDIN H. SHAIKH, J.-This is a L. P. A. From the judgment of learned Single Judge of this Court, dated 19th December, 1968, whereby the learned Judge had dismissed the suit of the appellants for specific performance of a sale agreement and for possession of the land which was the subject- matter of the sale agreement. 2. The subject-matter of the suit was a plot of land measuring 1511 square yards bearing Survey No, 25/4 situated in Garden East Quarters, Karachi. Burjorji Nowroji Gazdar, the father of respondents Nos. 1 and 2 and husband of respondent No, 3, was the owner of this land having leasehold rights under 80 years lease from the Government, commencing 1-8-1915. He had purchased this plot from a Hindu who himself was holding it subject to an encumbrance of Rs, 30,000. As will be shown later, the total sale consideration fixed for plot by the Hindu vendor was Rs, 37,019.8, but Mr. Gazdar had paid only Rs, 7,019.8 to the former and had purchased it subject to the same encumbrance. The case of the appellants before the learned Judge was that the said Burjorji Gazdar, since deceased, had agreed to sell the above land to Mst. Sardar Begum wife of Rashid Ahmad. It may be stated that Mst Sardar Begum also died before the filing of the suit and was survived by one daughter and two sisters namely, Mumtaz Begum, Rupya Begum and Khurshid Begum, appellants Nos. 1, 2 and 3, respectively. It was further alleged in the plaint by the appellants that Rs, '9,000 was fixed as the sale consideration for the land out of which Rs, 9,000 were paid to Burjorji Nowroji Gazdar, while the balance was agreed to be paid at the time of the registration of the sale-deed. A sale agreement is also alleged to have been executed in favour of the said Sardar Begum, but it is now alleged to have been lost. The transfer deed could not be registered by the said vendor because of his
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inability to obtain clearance certificate from the Income-tax Department and No-Objection Certificate from the Custodian of Evacuee Property. It was agreed between the parties, according to the case of the appellant as set up in their plaint, that the responsibility for obtaining the above certificates shall be upon the vendor and that whenever the certificates have been obtained, he will execute sale-deed within a reasonable time thereof. For the satisfaction of the appellants, the vendor also executed a general power of attorney in favour of deceased Sardar Begum's nominee namely, Fasihuzzaman son of Samiullah Qureshi, authorising the said attorney, inter alia, to execute and sign the sale-deed in favour of Sardar Begum in respect of the said plot. Although the original sale agreement is said to have been misplaced and lost by the appellant, yet the general power of attorney, admittedly executed by the vendor, contains an admission and acknowledgment of the said agreement and the receipt of Rs, 9,000. It may be stated that the only witness examined on behalf of the respondents namely, D. W.-1 Eruchshaw, son and legal heir of the vendor (Exh. 16) in his cross-examination has not specifically denied the signature of his father on the general power of attorney (Exh. 8). He was confronted with this document, whereupon he stated : "I am not sure whether this is my father's signature." ' He stated this in spite of his admission that he could recognise his father's signature. It may further be stated that the above respondent has admitted the signature of his deceased father on three letters which the latter had addressed to Mr. Hashim brother-in-law of Mst. Sardar Begum and to Deputy Collector and Rehabilitation Commissioner, Karachi in one of which the sale of this plot has been admitted. 3. According to the appellants, the vendor kept them on assurance, and showed readiness and willingness to execute sale-deed as soon as he was able to obtain the said certificates. The matter drifted like this till 17-1-1963 when the vendor namely, Burjorji Gazdar died, leaving behind the three respondents as his legal heirs. It is alleged that after the death of the vendor, Mst. Sardar Begum approached the respondents requesting them to execute the sale-deed, whereupon they promised to honour the agreement executed by their deceased father. The respondents are alleged to have put of the matter from time to time. In December, 1964 Mst. Sardar Begum also died leaving the three appellants as her legal heirs. The appellants also approached the respondents to execute the sale-deed, but they finally refused to do so on 5-12-1964. Hence they filed a suit, being Suit No, 33 of 1965 in this Court, out of which this appeal has arisen. The suit was filed on 15-1-1965 in which following reliefs were sought by the appellants :- "(a) That a decree for possession of the immovable property viz. Open plot of land measuring 1511 square yards bearing Survey No, 25/4. Situated in Garden East, Karachi be passed in favour of the plaintiffs as against the defendants and the defendants may also be ordered to execute the sale deed in favour of the plaintiffs conveying the said property to them and get the sale-deed registered at the Registration Office Karachi ; (b) That costs of this suit be awarded ; and (c)That any other appropriate relief which arises out of facts proved in the case and is deemed fit and proper be also awarded." 4. In their written statement the respondents have stated that they did not even know Mst. Sardar Begum, nor did they know that the property in dispute was sold by their father to her. About the ownership of their deceased father over the plot in dispute, the respondents stated that their father was not the full owner of the plot in question, as it was mortgaged for Rs, 30,000 payable to Hindu Evacuee. They also denied that their deceased father received Rs, 9,000 towards part payment of the sale price for this plot. In reply to para. 3 of the plaint about the power of attorney, the respondents stated that it is a bogus document in the absence of the sale agreement and the receipt for Rs, 9,000. But they have taken alternative plea, in which they did not deny the
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genuineness of the power of attorney and receipt of Rs, 9,000, in the following words in para. 3 (d) and (e) of their written statement :- "(d) Without prejudice it is submitted that the alleged power of attorney mentions Rs, 9,000 as full consideration amount for the sale of the property and as such the alleged agreement and the sale is void for want of full consideration. (e) Without prejudice the alleged power-of-attorney appears to be tainted with undue influence or coersion or inducement as the deceased Burjorji Gazdar could not have sold his property for a mere sum of Rs, 9,000, when he himself had purchased the same for Rs, 37,019/8." ' They further stated about this power of attorney that it has become ineffective after the death of the executant, and that it does not disclose the total sale consideration, but shows that Rs, 9,000 were paid as the full consideration for the property. It is also alleged that the respondents never agreed to honour any agreement of sale alleged to have been executed by their deceased father in favour of Ma. Sardar Begum. They have also pleaded that the suit is time-barred. On these pleadings following issues were framed by the learned Judge :- "(1) Did Burjorji Nowrozji Gazdar agree to sell the plot in suit to Sardar Begum, on 14-5-1954 for Rs, 39,000? If so, did he receive Rs, 9,000 as part of the sale consideration? (2) Did Burjorji Nowrozji Gazdar execute a genuine and valid power of attorney as alleged? (3) Is the suit for specific performance within time? (4) To what relief, if any, are the plaintiffs entitled?" ' In support of their case the appellants have examined only three witnesses namely, P W. 1 Himayat Hussain Hashmi (Exh. 5) who is brother-in-law of deceased Mst. Sardar Begum, P. W. 2 Latifullah Paracha (Exh. 14) and P. W. 3 Abdul Rehman (Exh. 15). While the respondents have examined only one witness i,e, D. W. 1 Eruchshaw/respondent (Exh. 16). 5. P. W. Mr. Himayat Hussain Hashmi (Exh. 5) is husband of the sister of the deceased Sardar Begum. He has deposed that in. 1951 the deceased vendor had shown the disputed plot to him and agreed to sell it to Mst. Sardar Begum for Rs, 39,000 out of which Rs, 3,000 were paid in cash and Rs, 6,000 through a cheque drawn on Safe Bank Ltd. The balance of Rs, 30,000 was to be paid to the Custodian, as this property was mortgaged with a Hindu Evacuee. The vendor was required to obtain clearance certificate from the Income-tax Department and the Custodian. He further stated that a sale agreement was also drafted by Mr. Abdul Qadir Shaikh Advocate (now Justice), who was then practising as an Advocate. The vendor had signed the agreement and also receipt for Rs, 9,000 in the presence of the witnesses, on 15-11-1951. 6. The witness has produced three letters which were given by the deceased vendor to the witness as Exhs. 6/A, 6/B and 6/C. The letter Exh. 6/A is addressed by the deceased vendor Mr. B. N. Gazdar to the witness Mr. Himayat Hussain Hashmi asking the witness to get two sets of plan prepared for construction on the plot, for obtaining sanction from the Deputy Collector and Municipal Corporation. He also makes certain significant admissions in Exh. 6-A which indicate the transfer of this plot by the vendor which are in the following words :- "As the plot is not yet registered in your name the plans are to be signed by me and that is the reason I have signed the plans. Please also keep with you a copy of Kabala between both of us and if necessary show the same to Municipality and also C. D. C. Office." ' This letter is dated 6th May, 1952. 7. Exh. 6/B is a letter addressed by the deceased vendor to the City Deputy Collector, Karachi in respect of the plot in dispute and is dated 6-5-1962 requesting the City Deputy Collector to help him in removing encroachment made by unauthorised occupants on the plot. 8. The third letter (Exh. 6/C) is addressed by the deceased vendor to the Rehabilitation Commissioner and is dated 6th May, 1952. By this letter also the Renabilitation Commissioner has
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been informed of the unauthorised construction made by some persons, requesting him to remove encroachment. 9. About the above three letters it may be stated that learned counsel for the respondents, who appeared before the learned Single Judge, added an endorsement in his own handwriting to the effect "admitted". It is, therefore, proved that these three letters were admittedly written by the deceased vendor (Mr. B. N. Gazdar) to the abovequoted addresses. 10. Mr. Himayat Hussain Hashmi has produced another letter (Exh. 7) which purports to have been signed by Mr. B. N. Gazdar and addressed to the Inpecting Assistant Commissioner of Income-tax, 'IV Range, Karachi for issuance of clearance certificate. The next document produced by Mr. Himayat Hussain Hashmi is the general power of attorney (Exh. 8) alleged to have been executed by Mr. B. N. Gazdar in favour of Fasihuzzaman on 14-5-1954. Below this document also there is an endorsement of Mr. S. M. Hafeez Advocate for the respondents, to the following effect : "Genuineness admitted." ' During his evidence the respondent was also confronted with this document in cross-examination and was asked whether the signatures purporting to be of Mr. B. N. Gazdar were of his father? The respondent (Exh. 16) replied as under to the suggestion ; "I am not sure whether this is my father's signature." ' However, in view of the endorsement of the respondent's Advocate Mr. S.M. Hafeez on this document, it must be taken to be a genuine document having been executed by the deceased vendor on 14-5-1954 in favour of Mr. Fasihuzzaman. Appointing the letter as his general attorney for completing the sale transaction in respect of the plot in dispute in favour of Mst. Sardar Begum. In this power-of-attorney the deceased vendor makes a categorical admission about the sale of the plot and receipt of Rs, 9,000 in the following words :- "whereas I have already sold my plot above-said to Sardar Begum C/o Rashid Ahmed for the sum of Rs, 9,000 (Nine thousand rupees only) and I have already received the full consideration amount from his and whereas I am unable to execute the sale-deed as I cannot attend the various Courts, I give this General Power-of-Attorney with the following powers." ' The next document produced by Mr. Himayat Hussain Hashmi is a notice (Exh. 10) dated 21-11-1964 given by Munawar Abbas on behalf of Mst. Sardar Begum to the three respondents asking them to complete the sale transaction in a favour of Sardar Begum. 11. The most important document produced by the witness Mr. Himayat Hussain Hashmi is Exh. 13, which is an affidavit sworn by Mr. ' B. N. Gazdar on 3-12-1959 before the Deputy Custodian, Karachi' In para. 4 of this affidavit the deceased vendor states categorically as under :- "(4) "That on or about I sold the said plot to Mr. Himayat Hussain Hashmi." (5) That I have now no right, title or any interest whatsoever in the said plot." ' D. W. Eruchshaw (Exh. 16) was confronted with this document in cross-examination to which he replied as under :- "I see Exh. 13. 1 am shown the signature on it, and I cannot say whether it is my father's signature." ' However. This denial is vague and in view of the statement of Mr. Himayat Hussain Hashmi this affidavit must be taken to be a genuine document bearing signature of Mr. B. N. Gazdar, the deceased vendor. 12. It may be stated that P. W. Himayat Hussain Hashmi, being the male member of the appellant's family, used to look after her affairs and had been negotiating with the deceased vendor on her behalf for the transfer of the disputed plot in favour of Sardar Begum. Even the amount of Rs, 6,000 received by the deceased vendor through cheque was paid by Mr. Himayat Hussain Hashmi as proved by the cheque (Exh. 14/1) produced by P. W. Latifullah (Exh. 14), a Sub-Accountant of the State Bank of Pakistan. The cheque was drawn on Safe Bank Ltd. Which was under liquidation at the
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time when P. W. Latifullah was examined. Respondent Eruchshaw was confronted with the signature of his father on this cheque, to which here plied as under :- "I see Exh. 14/1, the signature on that looks like my father's signature." ' It appears that since Mr. Himayat Hussain Hashmi was all along negotiating with Mr. B. N. Gazdar, therefore, in the affidavit (Exh. 13), the deceased vendor described Mr. Himayat Hussain Hashmi as the purchaser. However, Mr. Himayat Hussain Hashmi himself does not claim to be purchaser, but has stated in his sworn testimony that the plot was in fact purchased for and by deceased Sardar Begum, the predecessor of the present appellants, 13. The last witness produced by the appellants in support of their claim is P. W. Abdur Rehman (Exh. 15.) He was Clerk of Mr. Abdul Qadir Shaikh Advocate in 1953-54. He has deposed that Mr. B. N. Gazdar used to attend the office of Mr. Abdul Qadir Shaikh in connection with legal work and he had seen him writing and signing papers. The witness claims that he can identify the signature of Mr. B. N. Gazdar. He was shown the documents, Exhs. 6/A, 6/B and 6/C and asked to identify the signature thereon, to which he replied that all three letters bear signatures of Mr. B. N. Gazdar. He was also shown the letter (Exh. 7) purported to have been written by Mr. B. N. Gazdar to the Assistant Commissioner of Income-tax, Karachi to issue certificate. The witness identified the signature of Mr. B. N. Gazdar on this document also. 14. On behalf of the respondents only Eruchshaw Gazdar has examined himself (Exh. 16) in rebuttal. He has deposed that Mr. Hashmi had come to him and told him that the plot in question had been sold by his father to Sardar Begum. The witness replied that he has never seen the property in dispute and did not know of the transaction. He called upon Mr. Himayat Hussain Hashim to produce the sale agreement, if any, executed by his father B. N. Gazdar, who had died in January, 1963. He further states that Mr. Hashim went away and never contacted him thereafter. In cross- examination he stated : "I had never seen the property in dispute till I received the summons by this Court in this suit." ' He was confronted with the City Survey record (Exh. 6/1). On seeking this document he stated that this plot had been mortgaged for Rs, 30,000 with Mr. Dingomal. He further stated that his father had paid Rs, 7,019/8 to the Hindu vendor. The witness does not know if this property was ever treated as Evacuee and allotted by the Rehabilitation Department to the Air Scouts. He does not know if his father had applied to the Rehabilitation Department for release of the property. He never made any application to the Settlemeent Commissioner for redeeming the mortgage. He was also confronted with the general power-of-attorney and the cheque for Rs, 6,000 and asked to identify his father's signature. It has already been stated above that the witness was not sure whether the signatures of the power of attorney were of his father, but admitted that the signature on the cheque was of his father. 15. The learned Single Judge discussed the above evidence and came to the conclusion that it was not proved that the plot in dispute was agreed to be sold by Mr. B. N. Gazdar to Mst. Sardar Begum for Rs, 39,000 or that any sale agreement was executed by him. On issue No, 2 it was held that the deceased vendor had executed general power-of-attorney (Exh. 8) in favour of Mr. Fasihuzzaman, On Issue No, 3 regarding the question of limitation, it was held by the learned Single Judge that the appellants have failed to produce any evidence to show that the suit was within time. In view of these findings the learned Judge dismissed the suit of the appellants with no order as to cost, on 19-12-1968. 16. The judgment has been attacked in this L. P. A. By Mr. Mushtaq Memon learned counsel for the appellants on the following grounds namely :- (1) That loss of sale agreement has been proved and that the finding of the learned Single Judge that it has been suppressed with ulterior motive is not correct,
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(2) That existence of the agreement and the material terms thereof have been proved by documentary evidence and that the finding of the learned Judge to the contrary is erroneous. (3) That the learned Judge erred in not awarding at least a decree for refund of Rs, 9,000 from the respondents to the appellants, the payment of which to the deceased vendor was proved. (4) That the finding of the learned Single Judge that the suit was time-barred, is erroneous. 17. So far as points Nos. 1 and 2 are concerned, they can be discussed together. The main reliance on the point of existence of the agreement has been placed on the general power of attorney (Exh. 8) which was executed by the deceased vendor on 14-5-1954 in favour of Mr. Fasihuzzaman. This is an irrevocable power-of-attorney and the genuineness thereof has been admitted by Mr. S. M. Hafeez Advocate, who had made such an endorsement on the original document at the time of trial before the learned Single Judge. The endorsement shows that not only the document was signed by Mr. B. N. Gazdar, but that the contents of the document were also admitted by the executant. This document positively shows that the plot in question, which has been described fully in the preamble of this document, was agreed to be sold by Mr. B. N. Gazdar to Mst. Sardar Begum. It further shows that before the execution of the power-of-attorney the deceased had already received Rs, 9,000. In his deposition, respondent Eruchshaw has not speeifically denied the signature of his father on this document. He simply stated that he cannot say if the signatures purporting to be of Mr. B. N. Gazdar were of his father. This statement is irrelevant in view of the endorsement of Mr. S. M. Hafeez that the document is genuine. Even otherwise in view of the fact that D. W. Eruchshaw, who is respondent No, 2 in this appeal and was defendant No, 2 in the original suit, has not specifically denied in his deposition the existence and execution of this doucment by his father, it shall be presumed that the irrevocable general power of attorney was duly executed by the deceased vendor voluntarily after having received Rs, 9,000 in respect of the plot in dispute. 18. The validity of the irrevocable general power of attorney (Exh. 8) has been challenged by Mr. R. F. Veerjt learned counsel for the respondents on two fold grounds ; first that after the death of the executant of the power of attorney, the document has become ineffective, and inoperative and second that the terms and conditions of the sale agreement cannot be proved by any other document or oral evidence except by producing the original sale agreement in view of sections 91 of the Evidence Act. So far as the first argument is concerned, it is without substance because the general power of attorney is not being used by Fasihuzzaman for the purpose of completing the transaction of sale. Had Fasihuzzaman acted on this power of attorney in order to perform any of the acts mentioned in the document, then it could have been argued but he was not entitled to do so in view of the death of the executant of this document. This document is being used for a collateral purpose only viz. To prove that the deceased vendor had actually agreed to sell the plot in dispute and had received Rs, 9,000 as consideration therefor. Hence the factum of death of the executant of the general power of attorney, is irrelevant, so far as the question of proof of the sale agreement is concerned. 19. So far as the applicability of sections 91 Evidence Act is concerned, it has been argued on behalf of the appellants by Mr. Mushtaq Memon, learned counsel for the appellants, that a sate agreement can even be oral and that no particular form is prescribed for such an agreement. Section 91 would have applied only if actual sale-deed had been executed by the vendor which could not have been proved by oral evidence or by any other evidence except the sale-deed itself. Reliance in this connection has been placed on the case of Ali Muhammad Khan v. Riazuddin Khera (1), In this case it was held by a Division Bench of this Court that it is not necessary to reduce a sale agreement into writing and that oral agreement can also be valid and legal and binding on the parties. In the above case the parties had entered into a sale agreement but it was not signed by the executant, although the parties had acted upon it and the receipt of part of the sale consider action was also admitted. Under these circumstances it was held in the above case as under :-
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"(7) An oral agreement by which the parties intended to be bound is valid enforceable. However, an oral agreement requires for its proof clearest and most satisfactory evidence. In the present case as discussed above there is no iota of doubt that the agreement did not exist. The appellant had agreed for the sale of the property for valuable consideration which was reduced in writing and was acted upon. Merely because the respondent had not signed any of the documents or that no document was duly signed by both the parties will not lead to the inference that a valid agreement did not exist." In the present case the power-of-attorney (Exh. 8) proves without any shadow of doubt that deceased had agreed to sell the plot in question to Mst. Sardar Begum impliedly subject to the satisfaction of the charge of the mortgagees by Mst Sardar Begum and that he had also received Rs, 9,000 as consideration for the plot. It has been argued by Mr. Veerji that Rs, 9,000 has been wrongly mentioned in this document as the total sale consideration for the plot because, according to the plaint the plot was purchased for Rs, 39,000. It is, therefore, argued that the document (Exh. 8) cannot be relied upon to prove the terms and conditions of the sale agreement. This argument of the learned counsel for the respondents is also not sustainable, because the vendor of the plot in dispute was not entitled to anything except Rs, 9,000 for the plot, because the remaining amount of Rs, 30,000 is to be paid to the mortgagee to redeem the mortgage. In the present case the mortgagee is the Custodian or any other authority presently exercising the power of Custodian, who is entitled to receive this amount. Even the deceased B. N. Gazdar had not paid to the Hindu owner any amount except Rs, 7,019'8 as admitted by respondent No, 2 Eruchshaw (Exh. 16) in his cross-examination. It further appears from his…
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