IN THE HIGH COURT OF SINDH AT KARACHI
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
Second Appeal No. 46 of 2006
Muhammad Aqil
Versus
Muhammad Amir & others
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Date of Hearing: |
31.01.2018, 02.03.2018 and 24.04.2018 |
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Appellant: |
Through Mr. Abrar Hasan and Ms. Bushra Jawad Advocates. |
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Respondents: |
Through Mr. S. Zakir Hussain Advocate. |
Muhammad Shafi Siddiqui, J.- Appellant has challenged the judgment and decree of V-Additional District Judge Karachi Central in Civil Appeal No.81 of 2005.
2. The appellant originally filed Civil Suit No.804 of 2003 for specific performance of agreements. The suit was contested by the respondents and as many as 16 issues were framed by the trial Court. The subject matter of the suit is a plot of land with construction of double storied house bearing No.D-97, Block-6, measuring 1100 sq. yards situated in Federal B. Area, KDA Scheme No.16, Karachi.
3. It is claimed that the appellant entered into an agreement dated 12.06.1996 with Muhammad Amir and Mst. Maria Siddiqui, both son and daughter of Muhammad Siddiq, respondents No.1 and 2 respectively. Respondent No.1 acted as guardian of respondent No.2 as at the relevant time, when the agreement was entered into, respondent No.2 was minor. The total sale consideration was agreed at Rs.16 lacs out of which, it is claimed that a sum of Rs.2 lacs was paid in cash as part payment which is claimed to have been acknowledged by a receipt. It is further claimed that since one of the vendors was minor therefore the understanding was reached that respondent No.1 would obtain guardianship certificate of a person and property of respondent No.2 and permission to sale share of respondent No.2 in the suit property. With the passage of time certain additional amount was paid from time to time and a supplementary agreement was also executed for the balance sale consideration of Rs.6 lacs payable up to 11.10.1996 with promise to handover physical possession of the first floor and title documents thereof and execution of sale deed/General Power of Attorney in favor of appellant or his nominee. The avoidance of respondents to complete the transaction or to provide guardianship certificate with permission of sale led to some additional payment towards sale consideration. On 04.11.1996 a further amount was claimed to have been paid towards sale consideration and actual physical possession claimed to have been delivered along with documents such as lease, registered on 21.08.1969, other original documents of property and possession order dated 20.01.1965. A consolidated receipt of certain amount was executed on 04.11.1996. It is, however, claimed that some receipts of Rs.290,000/- of subsequent dates have been misplaced by the appellant. Receipts up to 27.01.1997 were exhibited.
4. Since the respondents failed to honour their commitment in pursuance of the agreements even on receipt of full sale consideration as alleged, it is claimed that on the execution of irrevocable General Power of Attorney, the appellant entered into an agreement of sale on 08.04.1997 with his wife and sister in law in a sum of Rs.24 lacs. The ground floor of the subject property was rented out by the respondents originally to a government school at a monthly rent of Rs.3000/- and after execution of the agreement and irrevocable General Power of Attorney, appellant started receiving rent of the ground floor from the Education Department, Government of Sindh. Consequently they filed suit for specific performance, as referred above.
5. The appellant/plaintiff examined himself as PW-1 and exhibited documents as Ex.P/1 to P/25. He also examined five witnesses as PW-2 to PW-6 at Ex.P/24 to P/28 respectively. From the defendants/ respondents side respondent No.1 examined himself as DW-1 at Ex.D/1 and witnesses as DW-2 to DW-4 as Ex.D/2, D/4 and D/5 respectively. One of witnesses, namely Muhammad Asim summoned by appellant has deposed against the case of appellant and hence claimed to have turned hostile. The suit for specific performance was decreed by trial Court whereas findings were reversed and suit was dismissed by appellate Court.
6. Mr. Abrar Hassan, learned counsel appearing for appellant, has argued that the sale was proved through evidence and there is no defence in respect of possession of premises and original documents in custody of appellant and the fact that the rent of ground floor was received by appellant without objection from respondent. Mr. Abrar Hassan, learned counsel in respect of hostility of the witness has also relied upon the case of Hafiz Tasadduq Hussain v. Muhammad Din reported in PLD 2011 SC 241. He is of the view that it would not matter if one of the witnesses turned hostile and did not support the version of the appellant; what was important is that the witnesses of the appellant must be examined. Sale agreement may have been proved by one of the witnesses but other supporting and circumstantial evidence was enough to prove the execution of the agreement. It was argued that gist of the observation of Hon’ble Supreme Court in the aforesaid case was that compulsion was only to the extent of examining the witnesses under Article 79 of Qanoon-e-Shahadat Order, 1984 if that document is to be relied upon whereas the veracity of over all evidence is another factor as the examination of any of the two witnesses cannot be ignored by parties on the presumption or perception that such attesting witnesses, if examined, would turn hostile and this would not absolve the concerned party of its duty to follow the law; the provisions of Qanoon-e-Shahadat Order, 1984 relating to hostile witnesses will take its own course in such a situation. He argued that respondent No.2 may be a minor at the relevant time however she had not taken any step when she turned 18. Unilateral cancellation of Power of Attorney which is a registered instrument, to deprive appellant of his rights, cannot be an instrumental since it is coupled with interest and it was for consideration and scope of Section 202 of the Contract Act will be applied.
7. It has been argued by learned counsel for respondents Mr. Zakir Hussain extensively that the agreement is void, ab-initio as it relates to a property which was co-owned by a minor. He submitted that the agreement by a person on account of his legal disability would be void, abinitio and incapable of being performed and it did not even require a rectification or confirmation after attaining the age of majority. He submitted that one of the prime witness of the agreement has deposed against the execution of alleged agreement and hence the contents of the agreements were not proved in terms of Article 17, 72 and 79 of Qanoon-e-Shahadat Order, 1984.
8. While relying on the case of Province of Punjab v. Syed Ghazanfar Ali Shah, reported in 2017 SCMR 172, counsel submitted that the provisions governing mode of prove could not be compounded or dispensed with nor could the Court which had to pronounce a judgment as to the proof or otherwise of a document be precluded to see whether the document has been proved in accordance with law and could, as such, form basis of a judgment.
9. I have heard the leaned counsel and perused the material available on record.
10. Mr. Zakir Hussain, learned counsel appearing for respondents, has not argued as to the issue of maintainability of suit. He however maintained that the suit was barred by time.
11. Considering the point of limitation, the plaint disclosed cause as on 12.06.1996 when agreement of sale was executed and lastly on 17.08.2003 when the Irrevocable General Power of Attorney was cancelled and it triggered from the date of denial, not from date of agreement. The unilateral cancellation of power took place on 17.08.2000 and this could be construed as date of denial wherefrom limitation could be counted. Thus the suit was within time.
12. The prime questions that require consideration and determination in the matter are some legal questions which are as under:-
i) Whether respondent No.1 allegedly acting as de-fecto guardian of respondent No.2, could sell the property of the minor (as she then was) without authority or permission from the Court?
ii) Whether agreement in respect of immovable property could be enforced against respondent No.1 to the extent of his share in the property?
iii) Whether in case of joint/un-partitioned immovable property of Muslims, other co-sharers/owners can sale their share without having it first offered to other co-owners including minor?
These are some prime questions of law, which goes to the root of the case.
13. The controversy in the present case triggered when the respondent No.2 who was minor at the relevant time filed her written statement. A common written statement appears to have been filed by both the respondents. The subject agreement of sale was executed on 12.06.1996. On 02.12.1996 when the guardianship certificate was issued as Ex.P/13 she (respondent No.2) was 15 years old. Apparently she reached the age of majority in the year 1999.
14. The question regarding sale of an immovable property, co-owned by a minor, was dealt with in detail by Hon’ble Supreme Court in case of Mst. Hamida Begum v. Mst. Murad Begum reported in PLD 1975 SC 624. None of the counsels were able to lay their hands on it. The Hon’ble Supreme Court dealt with the question of void and voidable agreements while dilating upon two instruments in the nature of their void and voidability, it discussed the issue as under:-
(emphasis provided)
“From the language of the Article itself, it is clear that it will not apply when the cancellation of an instrument is not an essential part of the plaintiff's relief. An obvious case of this kind would be where the deed or instrument is ab initio null and void, in which case it can be treated as a nullity without having to be cancelled or set aside. If, on the other hand, the instrument is only voidable, then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of the plaintiff. It is perhaps not possible to enumerate exhaustively the circumstances which would render an instrument null and void, but it is at least clear that if the person who executes the document had no authority in law to do so, or if he had only a conditional authority to dispose of property, and the conditions under which authority could be exercised were rot fulfilled, then the instrument could be regarded as null and void. Similarly, if the instrument is executed by a person suffering under a legal disability at the time of its execution, say by reason of minority, unsoundness of mind etc., the document would be null, and void. If, however, the instrument is executed by a person competent to do so, but it is alleged that he was forced or persuaded to execute the same under coercion, fraud, misrepresentation or undue influence, then it would be" a voidable instrument in accordance with the principles embodied in sections 19 and 19-A of the Contract Act. The instrument would remain operative as long as it was not set aside by a competent Court. As authority for this proposition, we may mention Redhu Ram v. Mohan Singh (A I R 1915 Lah. 200), Unni v. Kunchi Amma (I L R 14 Mad. 26) Mt. Izhar Fatima Bibi v. Mt. Ansar Fatima Bibi (A I R 1939 All. 348), Minalal Shadiram v. Kharsetji Jivajishet (I L R 27 Bom. 560), Janki Kunwar v. Ajit Singh (I L R 15 Cal. 58), Govindasamy Pillai v. Ramaswamy Pillai (I L R 32 Mad. 72), Mahant Gyan Prakash Dos v. Mt. Dukhan Kuar (A I R 1938 Pat. 69), Sh. Ibrar Ahmed v. Mt. Karrni Begum (A I R 1938 All. 451), Ramchandra Jivajg Kanago v. Laxam Shrini Vas Naik (A I R 1945 P C 54).”
15. The current subject was also specifically discussed in case of Muhammad Hanif v. Abdul Samad reported in PLD 2009 SC 751 where de-fecto guardian was considered to have no power to transfer any right or interest in the immovable property of the minor. In terms of Section 359 of Mohammaden Law persons entitled to be a natural guardian of the property of minor are (1) father, (2) executor appointed by father’s will, (3) father’s father and (4) the executor appointed by will of father’s father. These two persons were held to be natural guardian of the person and property and could have dealt with the property of minor. A de-fecto guardian is thus a custodian of the person and property of minor having no power to transfer any right or interest in immovable property of the minor, unless such permission is otherwise granted in accordance with law by Court.
16. In another case of Ahmed Khan v. Rasool Shah reported in PLD 1975 SC 311 the Hon’ble Supreme Court has declared that the alienation of minor’s property by a de-fecto guardian is not voidable but void.
17. In the absence of such relation the duty of Court appointing a guardian for the protection and preservation of the minor’s property falls on the Judge as representing the State. A legal guardian thus in terms of Section 362 has no power to sell immovable property of the minor except in cases where he can obtain double of its value, where the minor has no other property and the sale is necessary for his maintenance, where there are debts of the deceased and no other means of paying them, where there are legacies to be paid and no other means of paying them, where expenses exceeds the income of the property, where the property is falling into decay and where the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution. None of the grounds as summarized in Section 362 were and are available to the alleged guardian. It is not even pleaded by plaintiff in suit. Section 363 of Mohammedan Law provides that the guardian so appointed by the Court has no power unless permitted by the Court to mortgage or charge, transfer by sale, gift, exchange or otherwise and part of the immovable property of this ward, or to lease any part of that property for a term exceeding five years etc. The disposal of immovable property by guardian in contravention of the foregoing provisions is not lawful. These provisions of law thus do not provide any room or shelter to respondent No.1.
18. The aforesaid provisions rather provide that any agreement or transfer or alienation in respect of an immovable property of the minor by a person other than natural guardian is void ab-initio and not even required such declaration from any competent Court of law hence not even limitation would apply in case an attempt is made to have such declaration.
19. Thus, test of void and voidability were clarified by the Hon’ble Supreme Court in the aforesaid case. The subject agreement was executed by a person who was not a natural guardian; he was only her brother who later on appointed as fecto guardian without authority and permission to sell (her) minor sister’s share in the property. The nature of the instrument to the extent of her share at least in the subject property is thus of a void agreement and the test and conclusion provided by the Hon’ble Supreme Court, when applied in these proceedings, would result in the instrument, to the extent of her share, being adjudged as void and is not even liable to be cancelled through any Court of law being void ab-initio.
20. Sections 3 and 4 of the Partition Act apparently triggered as far as facts and circumstances of the case are concerned. Section 3 and 4 are as under:-
“3. Procedure when sharer undertakes to buy--‑(1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as provided in sub‑section (1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
4. Partition suit by transferee of share in dwelling house--‑(1) Where a share of a dwelling‑house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
(2) If in any case described in sub‑section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub‑section (2) of the last foregoing section.”
21. Whether voidability extends to respondent No.1’s share is another question that flows from the proceedings. Whether performance could be enforced upon him is a factor to be determined. The subject property is a joint/undivided immovable property of two Muslims i.e. brother and sister. In the instant matter, the question arises whether first right of refusal in the aforesaid circumstances should have been given to other co-owner, may she or he be a minor?
22. Section 44 of the Transfer of Property Act deals with the issue of transfer of his or her share in an immovable property where one of the two or more co-owners of immovable property legally competent to transfer his or her share in the property or any interest therein, the transferee acquires transferor’s right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same but subject to conditions and liabilities affecting, at the date of transfer, the share or interest so transferred. This provision of Section 44 of the Transfer of Property Act has its own angle while dealing with the share of a transferee in a dwelling house that belongs to an undivided family and for the transferee, not being a member of the family, nothing in the aforesaid section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. Thus, the rights of a transferee in case he is not a member of the family, is always subject to his rights excluding joint possession. In any other property that is other than dwelling house, he (transferee) may claim joint possession and all other rights which the transferor has passed on but not in a dwelling house.
23. In the case of Kalyan Kumar Basak v. Salil Kumar Basak reported in AIR 1989 Calcutta 159 in respect of a dwelling house and relying on Section 4 of the Partition Act ruled that Section 4 deserves liberal construction to preserve integrity of a dwelling house. The Court found that under the Partition Act it is not always incumbent upon to direct sell of a dwelling house if partition by metes and bounds of such dwelling house not feasible. In paragraph 9 of the said judgment the Bench held that appellant and other co-sharers willing to retain dwelling house by purchasing the share of remaining co-sharer will be entitled to buy up the remaining shares within a limited period from the final determination of the valuation of the property by the learned Judge.
24. In case of Krishna Chandra v. Smt. Kaneez Fatima reported in AIR 1983 Allahabad 146 the Bench held as under:-
“7. The object of Section 4 of the Partition Act is that in a dwelling house belonging to an undivided family a stranger should not be permitted to force his way into it by a suit for partition. Section 4 thus affords the benefits of the law of pre-emption and it preserves the joint status and the integrity of joint property. The expression “undivided family” in section 4 of the Partition Act does not mean an undivided Hindu family but it applies to undivided families of all castes and communities and in order to comply with the condition laid down in the section all that is necessary is that the family should be undivided qua the dwelling house which is the subject matter of partition and it is not necessary that the family should be undivided with regard to other properties also; see Sultan Begum v. Debi Prasad (1908) ILR 30 All 324.”
25. As discussed the concepts in a dwelling house are such that transferee being stranger of a dwelling house of undivided family and undivided property cannot be put into joint possession. This concept was highlighted in the case of Balaji Anant Rajadiksha v. Ganesh Janurdan Kamati (1881) I.L.R. 5 Bom. 499. In case the strangers are allowed to intrude in a dwelling house it would be inconvenient and lead to breach of peace. The remedy as made available is a suit for partition, if possible or to leave the purchaser to his remedy of separate suit for partition.
26. In respect of a dwelling house and of a property not divisible, the Partition Act gives the co-sharer of the family the option of buying out the transferee’s share at the current valuation.
27. In the case of Gautam Paul v. Debi Rani Paul reported in (2000) 8 SCC 330, the Supreme Court of India held that there is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus stranger/outsider can purchase the shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that transfer of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion of an outside into a dwelling house. The only manner in which an outsider can get possession is through a partition.
28. Thus, when a co-sharer or sharers sold away the property to stranger purchaser and deliver possession to them the other co-sharer had sufficient notice of such transfer in favour of stranger are required to exercise their right of retaining possession as being of a dwelling house. In case of a joint family property members of the family can claim four rights i.e. right of partition, with restriction right to restrain (to the extent provided under section 44 of the Transfer of Property Act) alienation, right of maintenance and right of survivorship.
29. Section 4 of the Partition Act 1893 a corollary of Section 44 of Transfer of Property Act denies the right of joint possession to stranger and in case of being member of undivided family, a statutory right to purchase the share transferred to an outsider to eliminate difficulties and to maintain homogeny in the families. This principle is derived to prevent intruders enter in the dwelling house.
30. I would now discuss and deal with the issue of proving an instrument registered and/or unregistered. It may take lesser pain to prove a registered instrument such as Power of Attorney and conveyance deed whereas proving an unregistered document such as agreement to sell is altogether different. For the sake of convenience relevant articles 17 and 79 of Qanoon-e-Shahadat Order, 1984 are reproduced as under:-
17. Competence and number of witnesses.‑‑(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an an and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,
(a) 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; and
(b) in all other mattes, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant.
79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”
31. Section 17 deals with the number and categories of witnesses in order to attest a document of the nature mentioned therein. Section 79 requires attesting witnesses to be examined in order to prove it, but it does not take away other factors to prove such transaction otherwise.
32. One may not be in a position to produce or summon witnesses of the sale agreement or one may not be in a position to adduce the kind of evidence that he thought would come, as one of the witnesses, for the reasons which are not difficult to ascertain has gone hostile being real brother of respondent or may have deposed contrary to the real facts but this fact alone does not take away the other factors which may contribute in establishing the sale of the property in question, otherwise. By attempting to prove a document in terms of Article 79 it becomes easier for the party to prove rest of the contents as mentioned in the agreement but it does not mean that those agreements for whom witnesses are not available or if they have turned hostile, the remedy does not lie. Indeed on can establish and prove oral agreements through factors which may be relevant and the events that may have occurred. It cannot be concluded that since one of the witnesses has not supported the version of the appellant/plaintiff therefore there will be no other way to prove such document or to prove the transaction for which the agreement was executed. Where agreement to sale had been reduced into writing but not attested by witnesses, its execution and the contract embodied therein could be proved by other strong evidence and attending circumstances (2002 SCMR 1089 i.e. Mst. Rasheeda Begum v. Muhammad Yousaf).
33. The newly developed question in these proceedings while the instant appeal was pending adjudication is the alienation of the property by respondents No.1 and 2 to respondent No.3. It is claimed to have changed hands and respondent No.3 claimed to have acquired rights in the property and very ably represented by the same counsel who represents the respondents No.1 and 2. Its alienation was effected while the interim order was operating. Additionally Mr. Abrar argued issue of lis pendens. Admittedly the notice under section 18 of the Registration Act in terms of Section 52 of the Transfer of Property Act was not issued. The question of lis pendens would take its effect when proceedings would be initiated in terms of section 18 of the Registration Act, 1908 for its effectiveness and cure as required in terms of Section 52 of the Transfer of Property Act.
34. Appellant’s counsel has seriously relied upon the case of Tabassum Shaheen v. Uzma Rahat reported in 2012 SCMR 983. The Hon’ble Supreme Court while embarking upon same issue and while relying on the case of Muhammad Ashraf Butt v. Muhammad Asif Bhatti reported in PLD 2011 SC 905, the issue of lis pendens was deliberated and it was made effective even for a period where the limitation was available in availing remedy of appeal/revision. Meaning thereby that if a right of appeal or revision is available then as long as the period of limitation does not expire the principle of lis pendens would continue to operate. In the case of Muhammad Ashraf Butt (Supra) the aforementioned expression was held as under:-
"…..that final verdict, which is given in an appeal or revision at the final level of the judicial hierarchy, which verdict has attained Conclusiveness. Therefore, the rule of lis pendens shall also be duly attracted and applicable during the period of limitation provided for an appeal or revision etc. to challenge a decree/order. If therefore an alienation of a suit property has been made by a party to the lis, who succeeds at one stage (such as trial), but the transfer is during the, period of limitation available to the other (unsuccessful) party, to challenge that decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens."
35. In the referred case of Tabassum Shaheen (Supra) the appeal of the respondent wife against the trial Court judgment and decree was filed within time and the plot in question was decreed in favour of respondent. The impugned transaction having been made during pendency of the proceedings relatable to the suit plot in the earlier round of litigation was held to be squarely hit by the principle of lis pendens.
36. However, the subject of lis pendens is slightly modified in terms of Sindh Amendment in Section 52. Section 52 with Sindh Amendment is reproduced as under:-
Section 52
"52. Transfer of property pending suit relating thereto. During the pendency in any Court having authority in Pakistan, or established beyond the limits of Pakistan by the Federal Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred to otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation. For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction of discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
Sindh Amendment
Section 52 shall be renumbered as sub-section (1) of that section: and
(i) in sub-section (1) so renumbered after the word “question”, the words and figures “if a notice of the pendency of such suit or proceeding is registered under section 18 of the Indian Registration Act, 1908”, and after the word “property” where it occurs for the second time the words “after the notice is so registered”, shall be inserted; and
(ii) after the said sub-section (1) so renumbered the following shall be inserted, namely:
36. Subsection 2 of Section 52 then provides the particulars of a notice of the pendency of such suit required to be registered. It include name and address of the owner of the immovable property, description of immovable property, Court where proceedings pending, nature and title of the suit or proceedings and date on which the suit or proceedings were instituted. Thus the issue of lis pendens within the province of Sindh has always been subjected to such amendment. Subsection 2 of Section 52 reads as under:-
“(2) Every notice of pendency of a suit or a proceeding referred to in sub-section (1) shall contain the following particulars, namely:-
(a) the name and address of the owner of immovable property or other person whose right to the immovable property is in question;
(b) the description of the immoveable property the right to which is in question;
(c) the Court in which the suit or proceedings is pending;
(d) the nature and title of the suit or proceedings; and
(e) the date on which the suit or proceeding was instituted”.
[Transfer of Property & the Registration (Sindh Amendment) Act, 1939 (14 of 1939). Section 2]
38. In the instant case an attempt was made to revoke the Power of Attorney somewhere in August 2000. That Power of Attorney is not only a simple Power of Attorney but it is coupled with interest in terms of Section 202 of the Contract Act. It is thus for consideration. The transaction may have been denied by the respondents but the subject Power of Attorney is such which could not have been cancelled unilaterally and arbitrarily. The denial by way of alleged cancellation of a registered instrument to nullify the effect of Power of Attorney coupled with interest is of no effect. The alleged donee respondent No.1 was required to approach the concerned Court having jurisdiction in this regard for the cancellation of the instrument in terms of Section 39 of the Specific Relief Act.
39. The Division Bench of this Court in the case of Ghulam Sakina v. Member (J) Board of Revenue Hyderabad reported in PLD 2004 Karachi 391 highlighting the principle of Section 39 of Specific Relief Act laid down that the registered instrument could only be cancelled with the intervention of the Court having jurisdiction.
40. The point here however is in addition to the above question of lis pendens as interim order was passed on 15.09.2006 when the notices were issued to the respondents. The ad-interim order reads as under:-
“15.9.2006
….
4) Notice for a date to be fixed by the office, meanwhile status-quo be maintained.”
41. The proposed purchaser (respondent No.3) has also filed a counter-affidavit to application under order I rule 10 CPC as an attempt was made for transfer of the property in the presence of an interim order of status quo. The conveyance deed was executed on 16.02.2015 i.e. much after the ad-interim order passed in these proceedings which were pending since 07.09.2006. However, for the purposes of this case the effective date would be when ad-interim order was passed i.e. on 15.09.2006. The intervener (respondent No.3) has thus exposed himself to face the consequences of the outcome of this Second Appeal. He has presented himself as bona fide purchaser and has pleaded the shelter of Section 41 of the Transfer of Property Act and Section 27 of the Specific Relief Act. There is no independent suit claimed to have been filed by this intervener (respondent No.3) claiming independent title over the property without notice to such proceedings.
42. As against the application under order 1 Ruler 10 CPC intervener filed an affidavit which is absolutely silent as far as above provisions of Transfer of Property Act and Specific Relief Act are concerned. There is no iota of evidence whereby any remedy could be provided to him in terms of Section 41 of Transfer of Property Act and Section 27 of Specific Relief Act.
43. This fact cannot be ignored that the possession of the subject premises was and is with the appellant. Hence, the rigors of Section 52, as amended, may not be available but the interim order, as referred above, is enough to raise the eyebrows as to a surreptitious change of hand as far as title of the property is concerned. There is no public notice as well, at least along with affidavit as filed by the proposed intervener and alleged contemnor. So far as the purpose of these proceedings, I may conclude that the respondent No.3 i.e. proposed intervener has to sail and sink along with respondents No.1 and 2.
44. The position now emerges is as under:-
The impugned judgment to the extent of respondent No.1 is set aside and restored as that of trial Court. Considering the facts and circumstances, to the extent of share of respondent No.1 against which suit for specific performance was decreed by the trial Court could be enforced, provided the property can be subjected to partition as conveniently as possible. In case it is not the principles are provided by law and the following conclusion of the discussion referred above could be derived:
i) The agreement to the extent of minor’s share by the alleged guardian was void;
ii) the intervener/respondent No.3 acquired share from the transferor has no better title to defend than what his predecessor had even on the touchstone and consideration of Section 41 of the Transfer of Property Act and Section 27 of the Specific Relief Act;
iii) Specific performance against respondent No.1 is established and proved and there cannot be a view other than formed by the trial Court insofar as share of respondent No.1 is concerned;
iv) In case the property cannot be partitioned to determine the share of respondents No.1 and 2, respondent No.2 may enjoy all her rights attached to a dwelling house, discussed above, while facing the consequences of enforcement of sale agreement (now decree) of the share including possession of share of respondent No.1 which may include reacquiring the share of respondent No.1 either through auction or otherwise in terms of its market value;
v) In case a situation of joint possession is reached and enforced by appellant, respondent No.2 may exercise her right to buy out share in terms of market value, as being a member of a family of dwelling house.
45. The Second Appeal, along with pending applications, stands disposed of in the above terms.
Dated: Judge