PLJ 2006
Present: Sarmad Jalal Osmany, J.
KHALIL-UR-REHMAN and others--Applicants
versus
Mst. VAKEELAN and another--Respondents
C.R. No. 89 of 2004, decided on
10.3.2006.
Qanun-e-Shahadat Order, 1984 (10 of
1984)--
----Arts. 17(2)(a), 47, 79, 80 &
118--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of
agreement to sell--Executants of agreement three in number--Denial of execution
by vendee-defendant, but its acceptance and performance by other
co-vendees--Produced in evidence by plaintiff copies of depositions of
co-vendees recorded in earlier suit for specific performance between parties
regarding execution of agreement by all three ladies and receipt of sale
consideration by them--Non-production of attesting witnesses of
agreement--Statement of plaintiff during cross--examination that one attesting
witness had died, but not stating anything about other witness, whether or not
he was alive and capable of giving evidence--Non-production of death
certificate of other witness--Non-appearance of vendee--defendant as
witness--Effect--As a result of denial of execution of agreement by vendee,
burden of proving same would lay upon plaintiff--Duty of plaintiff was to have
examined both attesting witnesses unless shown to have been died or incapable
of giving evidence--Such depositions of co-vendees could be used only when
plaintiff was able to establish that attesting witnesses were either dead or
could not be found--Such depositions would not be sufficient to prove
agreement--Plaintiff had failed to discharge burden, which could not shift to
vendee-defendant--Suit was dismissed. [Pp.
324, 326 & 327] A, B, D, E, F & G
PLD 2005 SC 418; 2005 CLC 269; PLD 2003 Pesh. 40; PLD 2003
AJK-16; 2002 SCMR 1089; 2003 MLD 329 and 2003 MLD 954 ref.
PLD 1995 Lah. 395; 1995 CLC 1173 and 1990 SCMR 1259 rel.
2005 MLD 261; 1993 CLC 257 and 2000 YLR 2789 distinguished.
Qanun-e-Shahadat Order, 1984 (10 of
1984)--
----Art. 17(2)(a)--Transfer of Property
Act (IV of 1882), S. 54--Agreement to sell--Attestation by
witnesses--Requirements--Such agreement being in nature both of a financial and
future obligation, would require attestation by two male or one male and two
female witnesses. [P. 326] C
Mr. Abdul Haque Kamboh, Advocate for
Applicants.
Miss Sabra Ali Rajput, Advocate for
Respondents.
Date of hearing: 12.9.2005.
Order
This Civil Revision Application impugns
the judgment dated 19-5-2004 passed by the learned District Judge, Naushahro
Feroze, in Civil Appeal No. 37 of 2003 whereby the Judgment and Decree dated
19-3-2003 passed by the Learned 1st. Civil Judge, Naushahro Feroze in F.S. Suit
No. 13 of 1995 was set aside.
2. Briefly stated the facts of the matter
are that the Applicants/Plaintiffs had filed Suit No. 65 of 1991 on
3. Thereafter on 25-8-1995 Suit No. 13 of
1999 (New Number 12 of 2002) was filed by the Applicants against Mst. Wakeelan
and Maqbool Ahmed with the same prayers as in the previous Suit i.e. for
Specific Performance of the Agreement to sell between the parties. Again a
written statement was filed by Maqbool Ahmed on his own behalf as well as on
behalf of Mst. Wakeelan since according to him he had purchased the land from
the lady per registered sale-deed and possession had already been handed over
to him. In order to prove the case again Applicant Khalilur Rehman stepped into
the witness box and produced the agreement to sell between the parties as well
as true copies of the depositions of Mst. Rashidan and Mst. Akhtari recorded in
Civil Suit No. 65 of 1991. The Respondent Maqbool Ahmed examined himself only
in defence of the Suit and denied that the agreement to sell was ever executed
by Mst. Wakeelan. As stated above the Suit was decreed in favour of the
Applicants but in Appeal said Decree was reversed.
4. In support of the case Mr. Abdul Haq
Kamboh, learned Counsel for the Applicants has submitted that he only ground
whereby the learned Appellate Court allowed the Appeal was non-examination of
the attesting witnesses of the agreement to sell between the parties which was
mandatory in terms of Article 79 of the Qanun-e-Shahadat Order and hence fatal
to the Applicants' case. Per learned Counsel this line of reasoning adopted by
the learned Appellate Court entirely ignores the deposition of Applicant
Mehrban Khan according to which the Notary Public who had notarized the
agreement viz. Allah Bux, Stamp Vendor/Scribe Muhammad Uris and marginal
witness viz. Ghulam Mustafa had died. Hence per learned Counsel the transaction
between the parties would not be covered under Article 79 of the
Qanun-e-Shahadat Order, which provides that atleast two attesting witnesses
must be examined, if they are alive, in order to prove the agreement in
question. Consequently in the circumstances the evidence of Mst. Rashidan and
Mst. Akhtari could be relied upon who were the co-executants of the agreement
in question and who have admitted the same as well as the fact that Mst.
Wakeelan had also executed it. In this respect learned Counsel has referred to
Article 47 of the Qanun-e-Shahadat Order, according to which the evidence given
by a witness in any judicial proceedings can be relied upon in a subsequent judicial
proceedings for proving the truth of any fact when the said witness cannot be
produced again without an amount of delay and expense. Per learned counsel it
has come on the record that Mst. Akhtari the mother of Mst. Wakeelan and Mst.
Rashidan is an aged lady of more than 85 years and is living in the
5. Next learned counsel submitted that
under Article 71 of the Qanun-e-Shahdat Order the oral evidence of a living
person must in all cases be direct and "hence it was incumbent upon Mst.
Wakeelan to have appeared before the learned
6. Finally learned counsel has submitted
that under Section of the Contract Act, a Power of Attorney must specify the
acts which the Attorney is authorized to perform on behalf of his principal.
Mst. Wakeelan had not authorized Maqbool Ahmed to appear in Court and file the
written statement on her behalf or give evidence. Consequently, the evidence of
Maqbool Ahmed cannot be considered vis-a-vis denial of the agreement to sell by
Mst. Wakeelan. In support of his proposition learned counsel has relied upon
Imamdin v. Bashir Ahmed (PLD 2005 SC 418), Talat Jahan Burki v. Member, Board
of Revenue Chief Settlement Commissioner,
7. In view of the foregoing submissions
and in the facts and circumstances of the case, learned Counsel has prayed that
this Revision be allowed and the judgment and decree of the learned Appellate
Court be set aside.
8. On the other hand learned counsel for
the respondents has fully supported the judgment of the learned Appellate
Court. According to her the burden of proving the agreement to sell was upon
the Applicants as they had relied upon it which had been denied by the
Respondents. Hence failure by the Applicants to produce the attesting witnesses
of the agreement to sell is fatal to their case being in violation of Article
79 of the Qanun-e-Shahadat Order. In support of her case Learned Counsel has
relied upon Mst. Rashidan Begum v. Muhammad Yousif (2002 SCMR 1089), Imamdin v.
Merajdin (2003 MLD 329) and Muhammad Arif v. Mahmood Ali (2003 MLD 954).
9. I have heard both learned counsel and
my conclusions are as follows:
10. It would be seen that per the case
set up by the Applicants in the Suit, all the three ladies viz. Mst. Rashidan,
Mst. Akhtari and Mst. Wakeelan had executed the agreement to sell the suit
property to the Applicants. Whereas Mst. Rashidan and Mst. Akhtari had
performed their part of the bargain and had conveyed their portion of the Suit
property to the Applicants, Respondent Mst. Wakeelan had refused to do so, on
the ground that she had never executed the agreement in question. In the
written statement filed by Mst. Wakeelan, this factual assertion is denied viz.
execution of the agreement by her, consequently, the burden of proving the same
lay upon the Applicants. In this regard it would be seen that per Article 17(2)
of the Qanun-e-Shahadat Order, in matters pertaining to financial or future
obligations if reduced to writing, the instrument shall be attested by two men,
or one man and two women, so that one may remind the other, if necessary, and
evidence shall be led accordingly. Further according to Article 79 of the Qanun-e-Shahadat
Order if a document is required by law to be attested it shall not be used in
evidence until two attesting witnesses at least have been called for the
purpose of proving its execution if they are alive and capable of giving
evidence and subject to the process of the Court. Finally per Article 80 if no
such attesting witness can be found it must be proved that the witnesses are
either dead or cannot be found and that the document was executed by the person
who purports to have done so. As admittedly the document in question, viz.
agreement to sell is in the nature both of a financial and future obligation,
therefore, in my opinion it had to be attested by two male or one male and two
female witnesses. A perusal of such document would show that indeed it has been
attested by two male witnesses viz. Ghulam Mustafa son of Jamil Ahmed and
Badurudin son of Nabi Bux Rajput. Consequently in terms of Articles 79 and 80
of the Order it was incumbent upon the Applicants to have examined both these
witnesses unless it could be shown that they were either dead or incapable of
giving evidence, in which event the Applicants were free to prove the document
in any other manner provided by law. In this regard only a simple statement has
been made by Applicant Mehrban Khan under cross-examination that attesting
witness Ghulam Mustafa had died whereas nothing has been stated as to whether
or not the other attesting witness Badruddin was alive and capable of giving
evidence. No death Certificate of Ghulam Mustafa or for that matter
Badruddin has been produced in order to prove this factum.
In view of the foregoing in my opinion the Applicants have failed to prove that
the agreement to sell was executed by Mst. Wakeelan. In this respect reference
can be made to Muhammad Yakoob v. Naseer Hussain (PLD 1995 Lah. 395), Auqaf
Department v. Javed Shuja (1995-CLC 1173) and Mansoor Hussain v. Maqbool Begum
(1998 SCMR 1259).
11. As regards the submission of learned
counsel for the Applicants that in the previous Suit Being No. 65 of 1991 both
ladies viz. Mst. Rashidan and Mst. Akhtari had deposed that they alongwith Mst.
Wakeelan had executed the agreement and all of them had received the sale
consideration, which is sufficient proof of the execution of said document by
Mst. Wakeelan in terms of Article 47 of the Order, suffice it to say that such
evidence could only be used if the Applicants were able to establish that the
attesting witnesses were dead and hence could not be found. As I have already
held that the Applicants have failed to do so, hence the depositions of these
two ladies are not sufficient to prove the document in question. As regards the
cases cited by learned counsel viz. Nazeer Ahmed v. Muhammad Rafiq, Mst. Allah
Jiwai v. Maqbool Shah and Zafarullah Khan v. Mst. Hakim Bibi, in my view these
are distinguishable as in all of them at least one marginal witness/scribe was
examined in order to prove the document in question.
12. As regards learned counsel's
submission that Mst. Wakeelan has not stepped into the witness box in order to
establish that she never executed the agreement in question, suffice it to say
that this burden lay upon the Applicants and not her. Where this burden has not
been discharged as in the present case, it could hardly shift to the other side.
13. Finally, vis-a-vis the Power of
Attorney in question, a close scrutiny of the same would show that Mst.
Wakeelan has authorized her attorney Respondent Maqbool Ahmed, to sell, gift,
exchange or otherwise dispose of her share in the property in question as well
as to appear in any Court of law in any matter regarding the property and to
pursue the same as well as engage counsel for this purpose. In view of such
observation I am satisfied that Respondent Maqbool Ahmed had sufficient
authority on behalf of Mst. Wakeelan to file the written statement etc. as well
"as appear in Court to depose on her behalf. Insofar as the case-law cited
by Mr. Kamboh on this point is concerned in my opinion the same enunciates the
principles regarding interpretation of a power of attorney and I respectfully
agree with the same.
14. For all the foregoing reasons this
Revision Application is dismissed.
(Fouzia
Fazal) Revision dismissed.