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Petitioner: Mst. SIKANDAR BEGUM and 2 others VS Respondent: Syed SHABAHAT ALI and 2 others
Court Name: Sindh High Court Judge(s): Ata-ur-Rehman, Muhammad Mujeebullah Siddiqui Title: Mst. SIKANDAR BEGUM and 2 others vs Syed SHABAHAT ALI and 2 others Case No.: High Court Appeal No, 91 of 2001 Date of Judgment:2002-05-09 Reported As: 2002 YLR 975 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This High Court Appeal is directed against the judgment and decree by learned Single Judge of this Court, in Suit No,848 of 1985 whereby the suit filed by the Respondent No,2/plaintiff for specific performance of the contract, possession, declaration and permanent injunction was decreed. 2. The relevant facts giving rise to this appeal are that, the Respondent No,2/plaintiff filed suit for specific performance of contract, possession declaration and permanent injunction with the following prayer:- (a) direct the defendants to execute Sale Deed of the said property in the name of the plaintiff by appearing before the Registrar for such execution against receipt of sale price before the Registrar and by giving valid receipt of such sum to the plaintiff; (b) direct the defendants to obtain no objection certificate from the Provincial Gain Tax Authorities against the sale of .The said property to the plaintiffs; (c) direct the defendants to hand over vacant and peaceful possession of the said property to the plaintiff before the date on which the said Sale Deed for registration of the said property in favour of the plaintiff will be executed; (d) permanent injunction in favour of the plaintiff above named restraining the defendants No,1 to 5 from selling the said property to any person or firm or company or corporation, from entering into negotiations for such sale or from letting out the said property to anybody on rent and from parting with the possession of' the said property in any manner or entering into any transaction with anybody with a view to creating any mortgage, encumbrance or lien or any disability on the said property with a view to keep the title of the said property clear, until final disposal of this suit;
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(e) temporary injunction in this respect; (f) direct the defendants to hand over all the documents of title of the said property to the plaintiff including original receipts, showing payment of ground rent, water, electricity and gas charges by the defendants until the date of registration of the said property; (g) any other relief deemed fit by this Honourable Court under the facts and circumstances of this case; (h) costs of the suit. 3. It was averred in the plaint that the plaintiff is a Charitable Trust and the defendants/appellants and respondents No,1 and 3 were owners of Plot No, 193, Block-A, Sindhi Muslim Co-operative Housing Society, along with the construction thereon, which they inherited from their mother Mst. Mustafai Begum and the defendant No, 1/Respondent No,1, is duly constituted Attorney of Defendants Nos.2 to 5 /Appellants and Respondent No,3, having authority to sell the suit property for consideration. A General Power of Attorney dated 27th of December, 1983 in favour of Respondent No,1 was also produced along with the plaint. The plaintiff further pleaded that the Respondent No,1 on his behalf and on behalf of other defendants, driving authority from the General Power of Attorney entered into the verbal agreement of sale with the plaintiff for sale of the suit property for a total sale consideration of Rs,24,00,000. Pursuant to the said agreement the plaintiff gave Rs,15,000 as earnest money, to Defendant No,1 through cheque dated 12th November, 1984. The receipt of earnest money was acknowledged and admitted by defendant No,1. It was 'further averred that, as a consequence of such receipt, which contains details of sale of the suit property and consideration of sale, the defendants entered into a binding agreement for sale of the property to the plaintiff. The copy of the said receipt dated 4-2-1985 was annexed with the plaint. Consequent to the said agreement, the plaintiff advertised in English Daily Dawn of 14th February, 1985, inviting objections, if any, to the sale of the suit property. It was averred that the Defendant No,1 approved the advertisement and gave his no objection. After publication of the said advertisement the Sindhi Muslim Co-operative Housing Society Limited, served a notice on the plaintiff raising objection to the effect that sub-lease of the suit property still stood in the name of deceased mother of the defendants and that sale of the said property could not be effected without prior written consent of the Society and called upon the parties to obtain such permission before effecting the transfer of the said property. On receipt of the above notice from the society the plaintiff called upon the Defendant No,1 and through him all other defendants to comply with the requirements of the said Society so that the property may be transferred in favour of plaintiff and the sale-deed may be registered. The defendants were further called upon to obtain clearance from Capital Gain Tax Authority. The defendants were intimated that in case of their failure, the plaintiff shall file the suit for specific performance of contract. In response to the plaintiff's notice, the Defendant No,1 through his advocate's letter dated 8th June, 1985 refused to transfer the suit property in the name of the plaintiff on the ground of breach of condition of the sale alleged to have been committed by plaintiff. The plaintiff showed his willingness to pay the sale price of Rs,24,00,000 to the defendants after deducting earnest money and other necessary expenses. 4. The defendant No,1 failed to file written statement and therefore, he was debarred from filing the same. The defendants Nos.2 to 5 filed their joint written statement. They admitted that the Power of Attorney was executed in favour of Defendant No,1 and was registered on 26-1-1985 but it was cancelled/revoked by another registered deed dated 29-3-1986. They contended that they were not aware of any transaction and received information of the filing of suit on 30-7-1986 received from Mr. Nadeem Azhar Siddiqui, Advocate stating that he was engaged by Defendant No,1 but he failed to give any instructions. They alleged that prior to 26-1-1985. The Defendant No,1 had no lawful authority from the Defendants Nos.2 to 5 to enter into any transaction. They specifically
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pleaded that on 12-11-1984, when the earnest money is alleged to have been paid to Defendant No,1 he had no lawful authority to enter into any transaction on their behalf. They further pleaded that Cheque No,05702329 alleged to have been issued by the plaintiff drawn on Habib Bank Ltd, LI, Chundrigar Road Branch is fictitious cheque number and that neither any cheque book containing such number was issued to the plaintiff, nor any such cheque was ever produced for encashment by the Habib Bank. They further alleged that the Defendant No,1 is in collusion with the plaintiff and a fictitious receipt dated 4-2-1984, is prepared for the alleged Cheque No,05702329 dated 12-11- 1984 as the Power of Attorney in favour of the Defendant No,1 which has been subsequently cancelled was registered on 26-1-1985. They further denied that, they ever approved any publication about the transaction of suit property. They pleaded that they are residing in the suit premises and had no intention to dispose of the same. They prayed that the suit was liable to be dismissed. 5. On the pleadings of the parties the learned Single Judge framed the following issues:- 1. Whether defendants Nos.2 to 5 executed General Power of Attorney dated 27-12-1983, in favour of defendant No,1? 2. Whether the defendant No,1 entered into the agreement for sale of the property as attorney of defendants Nos.2 to 5? If so, is it binding upon the defendants Nos.2 to 5? 3. What should the decree be? 6. On behalf of plaintiff evidence of P.Ws. Imtiaz Samad and Jaffar Ali were recorded. While evidence of Mst. Bano Rizvi the Defendant No,5 was recorded on behalf of defendants. 7. P.W.1 Imtiaz Samad, stated that P.W.2 Jaffer Ali, an Estate Agent was requested to search a suitable property for the plaintiff. Sometime in November, 1984 the said Estate Agent, approached the plaintiff and informed that owners of suit property were interested in selling their property. He requested that a cheque for the sum of Rs,15,000 be issued in favour of defendant No,1, so that the bona fide of purchaser could be established and deal could be finalised. The plaintiff thereafter issued a cheque dated 12-11-1984, drawn on Habib Bank Limited I.1 Chundrigar Road Branch, Karachi, in favour of defendant No,1 and it was delivered to the Estate Agent. The witness further affirmed in his affidavit in evidence, that after several meetings between the defendant No,1 and Estate Agent, it was informed to the plaintiff that the sale consideration was settled at Rs,24,00,000. He has further deposed that the advance amount of Rs, 15,000 was paid to the defendant No,1 who issued receipt Exh.A/2 dated 4-21985. According to this witness the defendant No,1 had assured the plaintiff that he was duly constituted Attorney of defendants 2 to 5 and was fully authorised to sell the suit property. He has produced photocopy of the General Power of Attorney, Exh.A/3. He has further stated that the defendant No,1, through his counsel's letter dated 8-6-1985, Exh.A/14 refused to execute the sale-deed, alleging that the plaintiff has committed serious breach of the conditions of sale. In this letter he stated that he was prepared to refund sum of Rs,15,000 advanced by the plaintiff. In cross- examination, he has stated that although at the time of transaction, he was not one of the trustees of the plaintiff Trust but he is aware of the transaction from the year 1984. He has stated that the transaction was finalised by Mr. Samad father of the witness and Managing Trustee of the plaintiff but Mr. Samad was not involved at any stage of transaction and yet again stated that "it is incorrect that, Mr. Samad was not involved at any stage of the transaction. He changed his version several times. First he stated that the transaction was negotiated by Mr. Samad with defendant No,1, thereafter he said that, the transaction was finalised by Mr. Samad and again stated that, Mr. Samad was not involved at any .Stage of transaction and yet again stated that "it is incorrect that, Mr. Samad was not involved at any stage of the negotiation personally. In the very next sentence he stated that in Paras 1 to 4 of his affidavit in evidence, he stated that the entire transaction was negotiated by the Estate Agent, Jaffer Ali. He further conceded that he has not seen the cheque issued on 12-11-1984. He has conceded that the cheque
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was issued on settlement of the transaction. According to him the valvation was settled and the cheque was issued towards advance payment of the price . He has next stated that, after the issuance of cheque the price was again settled. He has admitted in cross-examination that the cheque was given on 12-11-1984 to P.W. Jaffar An but he gave the receipt on 5-2-1985. He has further conceded that the Power of Attorney in favour of Shabahat Ali, defendant No,1 was registered on 26-1-1985. According to him the brothers P.W. Jaffar Ali and Mehdi had assured, Mr. S.A Samad that defendant No,1 was attorney of the defendants Nos.2 to 5 and was entitled to negotiate the transaction. He has further conceded in cross -examination that on evidence has been produced about the encashment of cheque in the sum of Rs,15,000 He has further stated in his cross-examination that, since middle of 1984 the negotiation for purchase of the suit property was going on between defendant No,1 and S.A. Samad ,through P.W. Jaffer Ali, Estate Broker. He admitted that the deal between Mr. Samad and defendant No,4 finalised in November, 1984 and on realising that the defendant No,1 was not ,attorney of remaining defendants, the defendant No,1 and Mr. Samad colluded in November, 1984, thereby forging receipts of payment dated 5-2-1985. 8. P.W.2 Jaffer Ali, Estate Agent, has stated that the transaction was not settled on 12-11-1984 the day cheque of Rs,15,000 was issued. He has further stated that he had not seen any Power of Attorney in favour of defendant No,1 on 12-11-1984. He denied to have started negotiation with defendant No,1, in respect of suit property before 12-11-1984. He stated that he met defendant No,2 for the first time, in January, 1985. He has further stated that the defendant No,1 had assured him that he was fully authorised to act on behalf of all the other co-owners. In cross-examination he has stated that the cheque was issued on 12-11-1984. According to him he never met the defendant, No,1 before January 1985. He has conceded that he wrongly/falsely stated in Para 5 of his affidavit-in-evidence that, he obtained cheque in the sum of Rs,15,000 from Mr. S.A.Samad, as per request of the defendant No,l. He was conceded that he and Mr.S.A. Samad knew that, there were co-owners also of the suit property. He has further stated that except Mr. Saddat he never met any other co-owner and that, he was informed by Mr.Saddat that the suit property was available for sale. According to him Mr. Saddad is the Attorney of the remaining co-owners and was living in the suit property in the year 1984. In the next sentence he has stated that Mr.Saddat is not Attorney of the co-owners. 9. D.W.1 Mst. Bano Rizvi, stated on oath that, the Power of Attorney registered in favour of defendant No,1 was cancelled/revoked vide registered Cancellation Deed dated 23-3-1986. She has explained that, she and the defendants No,2 and 3 never executed Power of Attorney dated 29-2-1983 in favour of defendant No,l. According to her, she and the defendants 2 and 3 were old ladies and defendant No,4 Syed Saddat Ali was ailing brother, the defendant No,1 suggested that he will look after, the matters relating to the house in various offices, if he was made General Attorney but he was not to have any power of selling the house. However, when Power of Attorney was got signed from them before the. Registrar on 27-12-1983, the Registrar did not register it and adjourned the same. They came to know that the defendant No,1, inserted the power to sell also in the Power of Attorney on which serious dispute took place between them, with the result that the defendant No,1, had strained relations with the brothers and sisters and stated that, he will not act.As. Attorney. She has further stated that, they were never informed of any negotiation for sale of the suit property with plaintiff or anybody else. They were under the impression that the Power of Attorney had not been registered and does not exist. They came to know in March, .1986, that, defendant No,1 had managed the registration of Power of Attorney on 26-1-1995, behind their back and without their knowledge. They apprehended the misuse of the said power of Attorney, as the defendant had become inimical to brothers and sisters therefore, they executed a Deed of Revocation/Cancellation of the Power of Attorney on 27-3-1986 and got the same registered. She produced copy of. Revocation Deed Exh.D/2. She stated that defendant No,2 Mst. Sikandar Begum
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was 74 years old. Defendant No,3 Mst. Ghousia Begum was 72 years old and she was 82 years old and all of them were residing in the suit property. She has further stated that the Defendant No,1 was living outside Pakistan. She has further stated that the Defendant No,.4 S. Saddat Ali is an Asthma patient and cannot move about since 1960. 10. On the basis of above evidence on record, it was contended on behalf of defendant that , Exh.A/2 is only a receipt and not an agreement. It was argued that the said document at the most indicates a proposal and nothing was finally decided as the Receipt Exh. A/2 bears signature of defendant No,1 only and is not signed by the plaintiff. It was asserted on behalf of plaintiff that, no doubt the cheque in the sum of Rs,15,000 was dated 12-11-1984, but the material document was Exh. A/2, which was written on 4-2-1985 and signed by defendant No,1 on 5-2-1985. It was further contended on behalf of plaintiff that, the Power of Attorney Exh. A/3 was actually executed and is alleged to have been revoked on 27-3-1986 vide Exh. D/2 and therefore on the date of transaction the defendant No,1 was duly constituted Attorney of life Defendants Nos.2 to 5. On behalf of defendants it was adjourned and subsequently it was registered. It was argued that the Power of Attorney registered on 26-1-1985 is not valid document. It was presented on 27-12-1983, when it was adjourned and subsequently it was registered. It was further contended on behalf of plaintiff that the Power of Attorney was not compulsorily register able document and therefore, notwithstanding the registration of the document on 26-1-1985 the defendant No,1, shall be deemed to be attorney of defendants Nos.2 to 5 with effect from 27-12-1983, when they signed the document. It was contended that the receipt Exh.A/2. Was dated 4-2-1985, 5-2-1985 when the defendant No,1 was ' July constituted Attorney of defendants Nos.2 to 5. 11. On the basis of above contentions, the learned Single Judge observed that, it is not denied that there is a document in the shape of receipt Exh.A/2 and the only allegation is that it is a fraudulent document. The defendant No,1 neither file written statement nor entered into the witness box. He further observed that -it is admitted position that the Power of Attorney was executed on 27-12- 1983 and registered on 26-1-1985. The learned Judge further observed that in the year 1983 and 1985 the Power of Attorney was not compulsorily register able. He further observed that under section 47 of the Registration Act, a registered document shall operate from the tithe, from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration: Ultimately, he held that the defendants Nos.2 to 5 executed General Power of Attorney dated 27-12-1983 and notwithstanding its registration on 26-1-1985. It shall have effect from the date of execution. The issue No,1 was decided accordingly. 12. Dealing with Issue No,2 the learned Single Judge observed that , receipt Exh.A/2 is an admitted document and the Power of Attorney in favour of defendant No,1 is operative from 27-2-1983 therefore, the- defendant No,1 entered into an agreement as an Attorney of defendants Nos.2 to 5. He -further held that the defendants Nos.2 to 5 were bound by the act of Defendant No,1 as Attorney. He observed that, if brother has acted otherwise than what may have been agreed between sisters and brothers, they may sue the defendant No,1 for damages but it will not affect the right of the plaintiff. 13. Consequent to the above-findings, the suit was decreed as prayed. 14. Being aggrieved with the above findings, the appellants have preferred this High Court Appeal. 15. We have heard Mr. A Aziz Khan, Advocate for the appellants, Mr. Zaki Muhammad , Advocate for respondent No,1 and Mr. Noorullah A. Manji, Advocate for respondent No,2. The respondent No,3 was reported to have died during the pendency of appeal. The learned advocated for the parties agreed that the respondent No,3, died issueless and his legal heirs, the appellants and the- respondent No,1, are already party to the proceedings and therefore, no further proceedings are required for joining of L.Rs of the -respondent No,3.
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16. Mr.A. Aziz Khan, learned counsel for the appellants had argued that, admittedly there is no agreement to sell even between the plaintiff/respondent No,2 and defendant No,1/respondent No,1, Syed Shabahgat Ali. There is one receipt only Exh. A/2. It cannot be termed as sale agreement/contract to sell, as it is allegedly signed by Syed Shabahat Ali only and does not bear the signature of the plaintiff is typed. It is allegedly signed by a witness J.K. Rematullah, stated to be brother of P.W. Jaffar Ali. He has contended that Syed Shabahat Ali never intimated the appellants and deceased Respondent No,3 Syed Saadat Ali, about any such-transaction and admittedly the plaintiffs and their Estate Borker Jaffer Ali, in spite of knowing that the suit property was not in exclusive ownership of Syed Shabahat Ali and there were other co-owners, never contacted or intimated the other co-owners about any such transaction, Managing Trustee of the plaintiff Mr. S.A.Samad who is alleged to have been negotiating the deal through Estate broker Jaffar Ali has not entered the witness box to support the alleged contract of sale arid J.K Rehatullah is alleged to have expired, with the result that his evidence also could not - be recorded. He has further submitted that although the receipt Exh. A/2 has not been proved to have been executed by defendant No,1 on behalf of appellants, but even otherwise it cannot be relied upon at all. In support of his contention, he has argued that a specific plea was taken by the appellants in their written statement that the Cheque No, 05702329 dated 12th November, 1984 is a figment of imagination and no such cheque was en cashed but plaintiffs have not produced any evidence to establish the en cashement of this cheque by the respondent No,1 Syed Shabahat Ali, to whom it is alleged to have been delivered. He has further contended that a perusal of the receipt Exh. A/2 shows that the cheque is alleged to have been issued on 12-11-1984 and the receipt has been typed on 4-2-1985 while it has been signed on 5.2.1985. There is no explanation furnished by the plaintiff/respondent No,2, as to why the receipt was not executed by the respondent No,1 at the time of receiving the cheque if the plaintiff's version is correct and Signing of receipt after about three months of receiving of the cheque should have been -explained by the plaintiff but the plaintiff has avoided to enter the witness box. He has contended that the entire alleged transaction is sham and fraudulent and the result of collusion between the plaintiff and defendant No,1 Syed Shabahat Ali, who was bent upon causing loss to the appellants and the respondent. No,3. He has referred to the admission P.W.1, Imtiaz Samad in his cross-examination to the effect that, it is correct to suggest that the deal between Samad and defendant No,1 had been finalised in November, 1984 and - so on realising that the defendant No,1 was not attorney of remaining defendants, in November, 1984, Mr. S.A. Samad and defendant No,1 colluded in forging receipt of payment dated 5-2-1985. He has further submitted that P.W.2 Jaffar Ali was also instrumental in fabricating the receipt Exh.A/2 which is evident from the evidence of P.W.1 Imtiaz Samad and P.W.2 Jaffar Ali, P.W.1 Imtiaz Samad has admitted the suggestion that, Mr. Samad met Mr. Shabathat Ali, defendant No,1, after getting receipt of advance dated 5-2-1985, He further stated that prior to November 1984 the negotiations were going on between S.A.Samad and Defendant No,1 through Jaffer Ali, Estate Agent. He has further submitted that when the contents of receipt Exh.A/2. Are read with evidence 4 P.W. Jaffar Ali, it becomes abundantly clear that the entire story is false and fabricated and in fact, is a cock and bull story. It is stated in receipt Exh.A/2 that the cheque of Rs,15,000 dated 12th November, 1984 was received by Syed Shabahat Ali defendant No,1 towards the advance money in respect of proposal of the sale for Rs,24,00,000. When the -evidence of P.W.2 Jaffer Ali, is read in juxtaposition, the cat comes out of the bag. He has stated that the transaction was not completed on 12-11-1984 and that on the said date Mr. Samad, had given the cheque to him. He has further stated that the transaction was not settled on 12-11-1984. According to him before 12-11-1984, he had not seen any Power of Attorney in favour of defendant No,1 and had not started any negotiation in respect of suit property before 12-11-1984. He has further stated that he met Shabahat Ali, defendant No,1 for the first time in January, 1985: The question arises as to how,
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and in what circumstances, the cheque dated 12-11-1984 was issued by the plaintiff in favour of defendant No,1, when neither Mr. S.A.Samad, Managing Trustee of the plaintiff nor Mr. Jaffer Ali, the Estate Broker, met the defendant No,1, at any time before 12-11-1984 and how the sale consideration of Rs,24,00,000/- could be settled, Mr. A.Aziz Khan has further submitted that, the entire facts are to be considered keeping in view that the issuance and encashment of cheque has not been proved and no evidence whatsoever, has been brought on record by the plaintiff in spite of specific denial of the encashment of cheque; He has further argued that the perusal of…
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