PLJ 2006
Present: Sarmad Jalal Osmany, J.
ABDUL LATEEF--Applicant
versus
ASHIQUE ALI and others--Respondents
C.R.A. No. S-15 of 1996, decided on
17.3.2006.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 12 & 39--Transfer of Property
Act (IV of 1882), Ss. 58(c) & 60--Suit for specific performance and
cancellation of sale-deed--Mortgage by way of conditional sale--Claim of
petitioner was that respondent obtained amount as loan from him and as security
for repayment of said loan, with a stipulation date that if said amount would
not be paid by stipulated date, mortgage deed would be treated as one for
absolute sale; and thereafter respondent would execute sale-deed in favour of
petitioner--Petitioner had alleged that respondent had failed to repay amount
by stipulated date and instead fraudulently had executed a sale-deed for sale
of said shop in favour of other respondent--Respondent denied claim of
petitioner--Suit filed by petitioner was decreed by the trial Court, but
appellate Court set aside decree of the trial Court--Assailed--Validity--Held:
In view of stipulations and conditions contained in mortgage deed in question,
it was a mortgage by conditional sale within the meaning of Section 58(c)
Transfer of Property Act, and suit based upon same for specific performance
would be barred being a clog on equity of redemption which had been accorded to
the mortgager under Section 60 of Transfer of Property Act--Suit for specific
performance filed by petitioner upon document in question, would be barred by
law--No exception could be taken to impugned order passed by First Appellate
Court. [Pp.
128, 131 & 132] A, B & C
1992 SCMR 417; PLD 1959
Mr. Abdul Naeem, Advocate for Applicnat.
Mr. Abdul Qadir Shaikh, Advocate for
Respondents.
Dates of hearing: 12, 19, 26.8.2005, 9,
16 and 30.9.2005.
Judgment
This Civil Revision Application impugns
the judgment dated 28-1-1996 passed
by the learned Additional District Judge, Kandiaro whereby Civil Appeal No. 70
of 1994 filed by respondents against the applicant was allowed and the judgment
and decree passed by the learned Senior Civil Judge, Kandiaro dated 20-11-1994
and 27-11-1994 in F.C. Suit No. 141 of 1993 in favour of the applicant was set
aside.
2.
Briefly stated the facts of the matter are that the applicant Abdul
Latif had filed Civil Suit No. 141 of 1993 (old No. 73 of 1983) against
respondents Ashiq Ali and Rahmat Ali wherein it has been averred that
respondent Ashiq Ali had obtained a loan from Applicant Abdul Latif in a sum of
Rs. 25,000 and as security for repayment of the same he had mortgaged the shop
in question on 11-3-1982 in favour of the former with a stipulation that if the
said amount was not repaid by 5-4-1983, the mortgage deed would be treated as
one for absolute sale and thereafter the respondent Ashiq Ali would execute
such sale-deed in favour of the applicant. The possession of the shop was also
delivered to the applicant on 11-3-1982 and so also a power of attorney was
executed by the Respondent No. 1 in favour of the applicant's son namely Abdul
Razzaq, on the said date whereby the Attorney was authorized to execute the
sale-deed in favour of the applicant. Per the applicant, respondent Ashiq Ali
failed to repay the amount of
Rs. 25,000 by
3.
In support of the revision application, Mr. Abdul Naeem has submitted
that in order to prove his case, the applicant has examined himself and has
fully supported the plaint and also produced a copy of the mortgage deed
alongwith Power of Attorney as well as utility bills etc. in his own name for
the shop in question. Under cross-examination he has denied that the amount of
Rs. 25,000 was returned to him by the Respondent No. 1 and also that it was a
security deposit. Similarly, P.W.2 Muhammad Akram who is a witness to the
mortgage deed has supported the case of the plaintiff but he did not know
whether the amount of Rs. 25,000 was returned to the applicant by Respondent
No. 1. So also, P.W.3 Muhammad Hashim, who was sitting at the shop of P.W.
Muhammad Salik when the mortgage deed was being written, has also supported the
case of applicant. Finally, per learned Counsel P.W.4 Abdul Razzaq, the
applicant's son has again fully supported the case vis-a-vis the execution of
the mortgage deed in favour of the applicant and the power of attorney in his
favour. On the other hand per learned Counsel the Respondent No. 1 has denied
the execution of both these documents and stated that he had returned the
advance deposit of
Rs. 25,000 to the applicant in presence of Master Amin Salik and Nazeer. Under
cross-examination, he stated that the rent agreement for the shop in question
was written at the shop of Master Amin Salik on
4.
On the basis of foregoing evidence on record, learned counsel for the
applicant has submitted that the case has been fully established and hence the
learned
5.
On the other hand Mr. Abdul Qadir Shaikh, learned counsel for the
respondents has fully supported the impugned Judgment on the legal plain as the
document in question is a mortgage by way of conditional sale and hence no suit
can be filed for specific performance of the same, it being a clog on the
equity of redemption as held by the Honourable Supreme Court in Abdul Sattar v.
Mst. Sardar Begum (supra) and Abdus Saboor v. Saeed Mir PLD 1982 AJK 79.
Consequently, the only remedy which was available to the applicants, was to
have filed a suit for foreclose or sale of the property or recovery of the
mortgage money under Sections 67 and 68 respectively of the Transfer of
Property Act. Learned Counsel has further submitted that even otherwise the
applicant has failed to prove the mortgage deed and power of attorney since
only copies have been produced and no reasons have been given for doing so. In
support of his submission learned counsel has relied upon Allah Rakha v.
Muhammad Yousaf 1990 MLD 1592, Wazirdullah v. Land Acquisition Collector PLD
2003 Pesh. 235 and Sher Baz Khan v. Adam Khan PLD 2002 Pesh. 1. In this regard
per learned counsel P.W. Abdul Razzaq has stated in his examination-in-chief
that the originals of the aforementioned document were returned by the
applicant to the respondents on the ground that the amount in question would be
given to the applicant but this was not done and thereafter the Respondent No.
1 had burnt the same. However, as this stand was never taken in the plaint of
the suit hence no evidence could be led on the same. For this submission
learned counsel relied upon Binyameen v. Hakim 1996 SCMR 336. Learned counsel's
next submission is that the burden of proving both the mortgage deed and power
of attorney was upon the applicant since he relied upon the same and execution
thereof was denied by Respondent No. 1. As both these documents created
financial obligations between the parties they were to be compulsory attested
by at least two male witnesses or two female and one male witness in accordance
with Article 19 of the Qanun-e-Shahadat Order and the only method to do so was
by examining such attesting witnesses as per Article 79 of the Order, which has
not been done. Hence per learned counsel these documents have not been proved
in accordance with law since only P.W. Muhammad Akram a marginal witness to the
mortgage deed has been examined and neither the scribe nor the person who attested
the same has been examined. Learned counsel has therefore prayed that this
Revision Application be dismissed.
6. I have heard both the learned counsel
and have examined the record very carefully with their assistance. My conclusions are as
follows.
7. Considering the legal aspect of the
case as to whether the document in question is a mortgage by way of conditional
sale and hence the suit based upon the same is barred under the equity of
redemption, it would be seen that the following tests have been evolved in
order to establish the true identity of such document per Ganu Mia v. Abdul
Jabbar (supra), by Khan, J. (as he then was)--
(a) the
existence of a debt;
(b) the
period of repayment, a short period being indicative of a sale and along period
of a mortgage;
(c) the
continuance of the grantor in possession indicates a mortgage;
(d) a
stipulation for interest on repayment indicates a mortgage;
(e) a
price below the true value indicates a mortgage;
(f) a
contemporaneous deed stipulated for re-conveyance indicates a mortgage, but one
executed after a lapse of time points to a sale.
8. The aforementioned tests were cited
with approval in the case of Allahanda v. Sardarangmat (supra) by Noorul Arfin,
J. (as he then was). Applying such tests to the document in question, it would
be seen that under the same (which is titled as a mortgage deed) the Respondent
No. 1 Ashiq Ali has stated that he owns, the shop in question and that in order
to meet his household expenses, he has borrowed an amount to Rs. 25,000 from
the applicant and as security for repayment" has mortgaged the shop in his
favour. It has been further stipulated that the amount of Rs. 25,000 would be
returned to the applicant by
9. As I have reached the conclusion that
the suit filed by the applicant based upon a mortgage by conditional sale would
not be maintainable being barred by law, there is no further need to discuss
the merits of the case. Revision application accordingly stands dismissed
alongwith the listed application.
(Rafaqat Ali Sohal) Revision
dismissed.