11-007 Common Judgement in three RFAs Saifullah Bangash ... · more than what the vendor can sell....
Transcript of 11-007 Common Judgement in three RFAs Saifullah Bangash ... · more than what the vendor can sell....
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Judgment Sheet
IN THE PESHAWAR HIGH COURT,
PESHAWAR
JUDICIAL DEPARTMENT
R.F.A .No. 11/2007.
JUDGMENT
Date of hearing……………………14.03.2016.…………………………….
Appellant (Saifullah Khan Bangash) By Mr. Abdul Sattar Khan Advocate.
Respondents (Jaseem Khan etc) By Mr. Zia-ur-Rehman Khan, Advocate.
YAHYA AFRIDI, J:- Through this single judgment, this
Court shall dispose of three Regular First Appeals, as all the
three appeals have arisen out of a consolidated judgment dated
30.11.2006 rendered by the learned Civil Judge-IV, Peshawar.
The particulars of the appeals are as under:
1. R.F.A No. 11/2007.
(Saifullah Khan Bangash..vs..Jaseem Khan etc).
2. R.F.A No. 12/2007.
(Saifullah Khan Bangash..vs..Jaseem Khan etc).
3. R.F.A No. 35/2007.
(Abdul Mateen..vs..Saifullah Khan Bangash etc).
2. The brief and essential facts leading to the present
appeals, in chronological order, are as follows;
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19.01.1982.
Mutation No.4218 vide which Mst. Bibi Saliha
becomes owner of part of the disputed property. Mutation
No.4219 vide which Mst. Bibi Zeenab becomes owner of
the part of the disputed property. Mutation No.4120 vide
which Mst. Inayat Begum (mother of Jaseem, Mst.
Shahida and Mst. Ziljees), and Mst. Farhanda Begum
become owners of the part of the disputed property. All the
owners, mentioned above, are to be collectively referred as
true owners of the immoveable property measuring 02
Kanal, comprising of a built up house on one Kanal and an
adjacent vacant plot of 01 Kanal (“disputed property”).
21.12.1993.
An agreement is entered for sale of the disputed
property purporting to be executed by the true owners in
favour of Saifullah Khan Bangash for a sale consideration
of Rs. 1,775,000/- of which Rs.400,000/- is paid as earnest
money to true owners through Abdul Mateen (Exh.PW
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1/1). The said Abdul Mateen, endorsed the said document
to be duly executed by the true owners, while the other
witness of the instrument is Mashooq Ali, the Property
Agent (DW-4).
12.01.1994 and
30.01.1994.
Saifullah Khan Bangash pays Rs.550,000/- in cash,
Income Tax Certificates of Rs.350,000/- and cheque of
Rs.400,000/-to Abdul Mateen, and a total of
Rs.1,700,000/- was acknowledged, as consideration for the
sale, which was recorded in writing (Exh. DW 1/3).
Possession of the disputed property was transferred to
Saifullah Khan Bangash.
12.06.1994.
First Jirga, comprising of Abdul Samad Khan, Fazal
Muhammad, Said Jaseem, Haq Nawaz, Mashooq Ali, and
Samiullah Jan at the residence of Haq Nawaz. It was
resolved by the Jirga that Saifullah Khan Bangash is to
pay Rs.100,000/- which was paid to Abdul Mateen, and
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thereafter, the possession of the disputed property was to
be retained by Saifullah Khan Bangash.
19.06.1994.
Mst. Inayat Begum expires. Her share in the
disputed property acquired vide Mutation No. 4120 dated
19.01.1982 (14 Marlas out of the total 01 Kanal 08
Marlas) devolved upon her legal heirs, including Jaseem
Khan, Mst. Shahida and Mst. Ziljees, who would,
thereafter be included as the true owners.
03.07.1994.
Mutation No. 11494 reflecting a gift by Jaseem
Khan, Mst. Shahida, Mst. Zeenab, Mst. Farhanda and
others in favour of Saifullah Khan Bangash (Exh. PW 3/X-
1) and Mutation No.11496 also reflecting gift by Mst. Bibi
Saliha in favour of Saifullah Khan Bangash (Exh PW 3/X-
2). The total property gifted vide the two mutations was 01
Kanal, while the remaining one Kanal remained to be
transferred.
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08.09.1994.
The true owners instituted a Suit No.356/1 seeking
declaration that they were owners of one Kanal of land
being part of disputed property, which was reflected in the
two gift mutations with consequential relief of permanent
injunction and possession. The gift mutations No.11494
and 11496 attested in favour of Saifullah Khan Bangash
were also challenged to be illegal.
10.06.1997.
Saifullah Khan Bangash filed a Suit No.354/1
against Jaseem Khan and others seeking declaration of
being owners of the disputed property and specific
performance of the agreement to sell dated 21.12.1993
(Exh. DW 1/1).
26.07.1997.
True owners filed a Suit N0-355/1 for perpetual
injunction against Saifullah Khan Bangash etc being
owners of the disputed property. This suit was for the
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remaining one Kanal of land not challenged in Suit
No.356/1.
07.09.1999.
All the three suits bearing Nos. 218/1, 219/1 and
220/1 filed by the parties were consolidated and thirteen
consolidated issues were framed. The parties produced
their pro and contra evidence.
30.11.2006.
Vide consolidated judgment and decree, the trial
Court decided the aforementioned suits in terms that;
“(a) The suit of Jaseem Khan and others for declaration
and injunction etc (suit No.356/1) is decreed against
the defendants as prayed for.
(b) The suit of Jaseem Khan and others (Suit No.355/1
for permanent injunction is also decreed as prayed
for against the defendants.
(c) The suit of Saifullah Khan Bangash (Suit No.354/1)
against defendants is decreed, against Abdul Mateen
Khan in this manner that Abdul Mateen Khan shall
return Rs.18 lacs (1,800,000/-) to Saifullah Khan
along with interest at Bank rate for the period of
February, 1994 to November, 2006. Moreover,
Abdul Mateen Khan shall also pay entire cost of the
suit to both the parties. The suit of Saifullah Khan
as prayed for is dismissed and the appropriate relief
as stated above is granted to him.”
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3. Feeling aggrieved from the consolidated judgment,
Saifullah Khan Bangash, has filed two Regular First
Appeals N0-11 and 12 of 2007, while Abdul Mateen, has
filed Regular First Appeal No.35 of 2007.
4. The main thrust of the worthy counsel for Saifullah
Khan Bangash, in both his appeals, was that the appellant
was a bona fide purchaser of disputed property for
valuable consideration, vide Agreement to Sell and thus,
Saifullah Khan Bangash was entitled to the protection
envisaged under section 41 of the Transfer of Property Act,
1882 (“Act”); that it was the conspiracy of the entire
family headed by Abdul Mateen, which prevailed upon
Saifullah Khan Bangash to part with the consideration and
allowed to take physical possession of the disputed
property; that the status of Abdul Mateen as an ostensible
owner was evident from his relationship with the true
owners of the disputed property and being the elder of the
family, who had in fact been instrumental in purchase of
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the disputed property in their names in 1982; that Mashooq
Ali (DW-4), the property agent, who facilitated the two
transactions, also supported the said fact; and that the
entire evidence produced by the appellant proved the fact
that Saifullah Khan Bangash was a bona fide purchaser for
valuable consideration is thus entitled to the specific
performance of the Agreement to Sell (Exh PW 1/1).
Reliance was placed on the judgment of Apex Court in
Syed Asif Shah’s case (PLD 1991 SC 905).
5. The worthy counsel for the true owners contended
that the disputed property was owned by Parda Nasheen
ladies, who had not given any authority to Abdul Mateen
to sell the same to Saifullah Khan Bangash; that Saifullah
Khan Bangash during his testimony has confirmed that
during the process of the entire transaction, Abdul Mateen
did not have any written authority on behalf of the true
owners; and that the actual owners of the disputed property
immediately on having gained knowledge about the
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transaction challenged the same in Court; and that
Saifullah Khan Bangash was not legally entitled to the
protection provided under section 41 of the Act.
6. The worthy counsel representing Abdul Mateen in
Regular First Appeal No.35 of 2007, contended that as
Saifullah Khan Bangash was in possession of the disputed
property, the interest imposed was excessive and warranted
its deletion.
7. Valuable arguments of learned counsel for the
parties heard and available record perused with their able
assistance.
8. In essence, the sole contention of the worthy counsel
for Saifullah Khan Bangash was that he was entitled to the
protection provided under Section 41 of the Act. To
consider this contention of the worthy counsel, this Court
has to resolve the controversy framed in issue No.5, which
was in terms that;
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Issue No.5.
Whether the rights of Saifullah Khan
Bangash plaintiff are protected under
section 41 of Transfer of Property Act, 1882?
It is by now a settled principle of law that a person
cannot transfer to another a title or a right greater than
what he himself possesses. Thus, the vendee cannot take
more than what the vendor can sell. This principle is based
on the maxims; Nemo dat quod non-habet- No one can
give what he has not got, Nemo plus juris tribuit quam
impse habet- No one can bestow or grant a greater right
(better title) than he has himself, and Nemo plus juris and
alium transferee potest quam ipse habet- No one can
transfer to another a greater right than he has himself. The
last maxim stated, hereinabove, has been explained in
Trayner’s Latin Maxims (Fourth Edition), in terms that:-
“To illustrate this rule, take the case of a bona fide
purchaser of a stolen article, and that whether purchased
from the thief directly or from some one acquiring from
him. Such a purchaser has no title to the thing purchased,
which he can put in competition with the real owner,
because the person from whom he acquired had no title,
and (according to the maxim) his author could not give him
a better right or title than he himself possessed.”
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…………..So, again, possessors of movables who have
lawfully come into possession, may in some cases give a
better title than they have; their won title may be that of
mere factor or agent, not proprietor, but they may sell so as
validly to vest the purchaser in bona fide with a right of
property.”
9. There are, however, exceptions to the
aforementioned general principle, one of which has been
enunciated in section 41 of the Act, which reads;
“41. Transfer by ostensible owner.
Where, with the consent, express or implied, of the person
interested in immoveable property, a person is the ostensible
owner of such property and transfers the same for
consideration, the transfer shall not be voidable on the
ground that the transferor was not authorized to make it:
provided that the transferee, after taking reasonable care to
ascertain that the transferor had power to make the
transfer, has acted in good faith.”
The true logic behind the protection so provided to a
purchaser of an immovable property under the
aforementioned provision has been described very
exhaustively by the Apex Court in Kawal Nain’s case
(PLD 1983 SC 53), in terms:-
“Mulla has pointed out that the foundation of this section is
the following passage from the judgment of the Judicial
Committee in Remcoomar..Vs..Macqueen:-
“It is a principle of natural equity which must be
universally applicable that, where one man allows
another to hold himself out as the owner of an estate
and a third person purchases it, for value, from the
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apparent owner in the belief that he is the real
owner, the man who so allows the other to hold
himself out shall not be permitted to recover upon
his secret title, unless he can overthrow that of the
purchaser by showing either that he had direct
notice, or something which amounts to constructive
notice, of the real title; or that there existed
circumstances which ought to have put him upon an
inquiry that, if prosecuted, would have led to a
discovery of it.”
The section is a statutory application of the law of estoppel
and makes as exception to the rule that a person cannot
confer a better title than he has. The principle underlying the
provisions of the section is “whenever one of the two
innocent persons has to suffer by the act of a third person he
who has enabled the third person to occasion the loss must
sustain it.”
As rightly mentioned by the learned Additional District
Judge in his judgment, following conditions are necessary for
the application of the section, namely:-
(i) The transferor is the ostensible owner;
(ii) He is so by the consent, express or implied, of the
real owner;
(iii) The transfer is for consideration,
(iv) The transferee had acted in good faith, taking
reasonable care to ascertain that the transferor had
power to transfer.
The aforementioned principle has been, thereafter,
consistently followed by the apex Court in various
pronouncements. Some of the important judgments in this
regard are, Muhammad Afzals’ case (PLD 2006 SC 84),
Haji Abdul Ghafoor Khan’s case (PLD 2007 SC 433),
Mst.Bilqees Begum and others’ case (PLD 2003 SC 899),
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Maulana Riazul Hassan’s case (1991 SCMR 2513),
Mst.Noor-un-Nisa’s case (1994 SCMR 2087),
Muhammad Bashir’s case (2003 SCMR 774), Moulvi
Abdul Qadir and others’ case (2010 SCMR 1877) and
Noor Hassan and others’ case (2015 SCMR 452).
10. In view of the ratio decidendi of the precedents
stated above, it would be safe to state that a
purchaser/vendor/transferee of an immovable property can
only avail the protection provided under section 41 of the
Act, if he proves with positive evidence, the fulfillment of
the five condition precedents, which may be entailed as
under:-
(i) The transferor is the ostensible owner;
(ii) The transfer is for consideration,
(iii) He has consent express or implied of the real owner,
(iv) The transferee has acted in good faith,
(v) The transferee took reasonable care to ascertain that
the transferor had power to transfer.
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11. Now, this Court shall consider, whether the evidence
produced by Saifullah Khan Bangash is sufficient to prove
the five conditions precedent to be entitled to seek the
protection provided in section 41 of the Act.
Transferor is the Ostensible Owner.
12. The term ostensible has not been defined in the Act,
hence we would seek resort to its ordinary dictionary
meaning, some of the definition are as under;
Oxford English Dictionary as
“apparently true, but not necessarily so”,
Black’s Law Dictionary as
“Open to view, declared or professed; apparent.” and in
Mitra’s Legal & Commercial Dictionary as
“Able to be seen; apparent; assumable; avowed; deceptive;
pretended; delusional; delusive; delusory; discernible;
illusionary; illusive; illusory; indubitable; misleading;
obvious; overt; patent; plausible; purported; so-called.
The word ‘ostensible’ has two meanings;
(a) that the object bears out suggesting that it is
or is not that of which it has the superficial
appearance, and
(b) that the object bears a certain appearance
but is not really that of which it bears the
appearance.”
Keeping in view the above ordinary dictionary meaning of
the term ostensible, it is to be seen whether Abdul Mateen,
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the transferor of the disputed property was the ostensible
owner thereof or otherwise. What is interesting to note is
that Abdul Mateen never appeared before the trial Court in
any of the three suits and thus, his stance before the trial
Court cannot be ascertained in exactness. However, the
anchor sheet of Saifullah Khan Bangash’s claim is
Agreement to Sell dated 21.12.1993 (Exh. PW1/1),
wherein Abdul Mateen is neither recorded as the true
owner nor the ostensible owner. In fact, Abdul Mateen has
endorsed the said agreement to be the identifier of the
Parda Nasheen ladies being the true owners and sellers of
the disputed property. Thus, from the available record, it is
evident that Abdul Mateen never represented himself to be
the ostensible owner of the disputed property. At best, his
role and status can be considered as the identifier of the
Parda Nasheen true owners, in the Agreement to Sell (Exh.
PW 1/1), and thereafter, as their agent, when he transferred
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the peaceful possession of the disputed property to
Saifullah Khan Bangash.
Transfer is for consideration.
13. As far as payment of consideration to the transferor,
Abdul Mateen is concerned, it is admitted that the
transferee, Saifullah Khan Bangash paid a total of
Rs.1,800,000/- to Abdul Mateen. The fact that the said
amount did not reach the true owners of the disputed
property would not affect the transferee’s position of
making the payment of the sale consideration for the
disputed property and thereby fulfilling the second
condition precedent to avail the protection provided to him
under section 41 of the Act.
Transferor having express or implied consent to the
owners.
14. As far as, Abdul Mateen having express consent of
the true owners is concerned, Saifullah Khan Bangash
during his cross-examination admitted that Abdul Mateen
had no written power of attorney on behalf of the true
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owners. A case can, however, be advanced in favour of
Saifullah Khan Bangash, that Abdul Mateen had the
implied consent of the true owners to sell the disputed
property, as peaceful transfer of possession of the disputed
property was allowed to be made to him. The fact that the
true owners, as stated to be ‘Parda Nasheen’ ladies and
that they all collectively challenged the gift mutations
immediately after the attestation thereof would, therefore,
nullify this stance of Abdul Mateen having the implied
authority of the true owners to sell the disputed property to
Saifullah Khan Bangash. The conduct of Jaseem Khan
being associated with Abdul Mateen during the transfer of
possession of the disputed property would not be of much
legal avail, as at that particular time, he was not the true
owner. As far as his acknowledgement of being present at
the time when the gift mutations were being entered and
his participation in the Jirgas, would also be of no
significant support to Saifullah Khan Bangash’s claim, as
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by then he had only become the owner of a very small
portion of the disputed property, after the death of his
mother Mst. Inayat Begum. Moreover, binding all the
other true owners, who were stated to be Parda Nasheen
ladies for the act of Jaseem Khan, would not be legally
appropriate, especially, when he too had no authority to act
on their behalf.
Transferee acted in good faith.
15. The issue relating to good faith of a purchaser of
immoveable property has been very eloquently explained
by the Apex Court in Hafiz Tassaduq Hussain’s case
(PLD 2011 SC 296), in terms:-
“The second ingredient “good faith” is the term which
reflects the state of mind and according to section 3(2) of
the General Clauses Act, 1897 “a thing shall be deemed to
be done in ‘good faith’ where it is in fact done honestly,
whether it is done negligently or not”. While interpreting
this, it was held in Nannu Mal..Vs..Rani Chander (AIR
1931 All 277 (FB) that good faith as defined above is
equivalent to honesty of dealing and does not entail upon
the purchaser the necessity of searching the registry, even
assuming that there were facts indicative of negligence in
investigating title, that by itself was not predicative of a lack
of bona fides.”
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Now, testing the conduct of Saifullah Khan Bangash
on the touchstone of the standard for good faith set in the
above judgment, it is but clear that his actions were not at
par with threshold set therein. Knowing very well that
Abdul Mateen was not the true owner of the disputed
property, he still proceeded with the transaction, surely
does not reflect positively on his bonafide. It may,
however, be said that this action on his part was due to his
negligence and not malafide. This Court would not be in
consonance with this line of argument for the simple
reason that, Saifullah Khan Bangash was a law graduate.
Moreover, the fact that Saifullah Khan Bangash recorded
the transaction as a gift in the impugned mutations would
leave no doubt about his true intentions. This intentional
recording of the transaction as a gift was frankly conceded
by him to be only to avoid payment of taxes/duties and the
challenge of prospective preemptors. These deliberate
steps taken by Saifullah Khan Bangash, would thus,
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accumulatively portray his conduct far from being in good
faith.
Reasonable care to ascertain the authority to
transfer.
16. Reviewing the evidence in the present cases, it is
very much apparent that Saifullah Khan Bangash entered
into the agreement to sell (Exh. PW 1/1), knowing very
well that he was not the true owner and yet proceeded
therewith without protesting or demanding any written
power of attorney from Abdul Mateen to act on behalf of
the true owners. As discussed earlier, the steps taken and
the concessions made by Abdul Mateen and Jaseem Khan
in facilitating Saifullah Khan Bangash to take possession
of the disputed property can in no way absolve Saifullah
Khan Bangash from taking the reasonable care, to ensure
that Abdul Mateen had the authority to transfer the
disputed property on behalf of the true owners. More so,
when he being a lawyer, knew the importance thereof.
Thus, Saifullah Khan Bangash would also not qualify the
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test of fulfilling this crucial condition precedent of
reasonable care for availing protection provided under
section 41 of the Act.
17. From the above discussion, it is noted that Saifullah
Khan Bangash has not been able to prove all five condition
precedents for being entitled to avail the protection
provided under section 41 of the Act. In such a situation,
the judicial consensus is that even if a single condition
precedent is not fulfilled, then the purchaser cannot avail
the protection provided under section 41 of the Act. In this
regard, the apex Court has elaborated the said principle in
Muhammad Afzal’s case (PLD 2006 S C 84), in terms:-
“In order that this section may apply, it must be shown that
(a) the Transferor is the ostensible owner (b) He is so by
consent, express or implied, of the real owner, (c) The
transfer is for consideration, (d) The Transferee has acted
in good faith, taking reasonable care to ascertain that the
transferor had power to transfer. If any one of the stated
ingredients is wanting, then the Transferee will not be
eligible to seek protection of equitable doctrine envisaged
under section 41 ibid. It is not attracted unless a party
claiming benefit thereof has fulfilled the aforesaid four
conditions.”
18. Accordingly, for the reasons discussed above, this
Court is in consonance with the findings recorded by the
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trial Court for refusing the relief sought by Saifullah Khan
Bangash. As discussed earlier, Saifullah Khan Bangash
was neither able to prove the Agreement to Sell as per the
mandate of Article 79 of the Qanun-e-Shahadat Order,
1984, nor the bonafide for warranting the exercise of
discretion for the specific performance thereof under
Section 22 of Specific Relief Act, 1877. However, the
payment of Rs.1,800,000/- he made to Abdul Mateen
having been proved was duly appreciated, and accordingly,
a decree to that extent along with interest was correctly
passed in his favour.
19. Now, to the stance of Abdul Mateen in challenging
the impugned consolidated judgment and decree passed by
the trial Court. When this Court traces the conduct of
Abdul Mateen, it is noted that he was proceeded ex parte
in all three suits leading to the present appeals, yet he
remained the central figure in convening ‘Jirgas’ and
participating therein. Today, he sought the audience of the
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Court and frankly conceded that he had received
Rs.1,800,000/- from Saifullah Khan Bangash, as
consideration for the disputed house. He further stated that
the same was a sale transaction and not a gift, as recorded
in the impugned mutations. He further justified his
receiving the sale consideration of Rs.1,800,000/- from
Saifullah Khan Bangash on the expectation that true
owners being his relatives would agree to the proposed
sale. He, however, urged the Court not to impose interest
and that he was willing to repay Rs.1,800,000/- to
Saifullah Khan Bangash, as and when directed by the
Court. The conspicuous silence of Abdul Mateen and his
noticeable absence from the Court proceedings would not
justify his present stance of avoiding the interest awarded
by the trial Court in favour of Saifullah Khan Bangash.
Accordingly, for the reasons stated hereinabove, all
the appeals being bereft of merits are dismissed, as the
judgments and decrees of the learned trial Court are not
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only based on correct appreciation of evidence, but also in
accordance with the applicable principles of law. Thus, the
impugned decision passed by the trial Court is maintained.
Announced.
Dt.14/03/2016 . J U D G E
(K.Ali)