2017 CLC 84 PESHAWAR

2017 C L C 84
[Peshawar]
Before Yahya Afridi, J
SAIFULLAH KHAN BANGASH----Appellant
Versus
JASEEM KHAN and 6 others----Respondents
R.F.A. No.11 of 2007, decided on 14th March, 2016.
(a) Specific Relief Act (I of 1877)---
----Ss. 12 & 22---Qanun-e-Shahadat (10 of 1984), Art.79---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement to sell---Bona fide purchaser---Protection envisaged under S.41 of Transfer of Property Act, 1882---Conditions---Ostensible owner---Pardanasheen lady---Reasonable care---Scope---One person could not transfer to another a title or a right greater than what he himself possessed---Vendee could not take more than what the vendor could sell---Purchaser/vendor/transferee of an immovable property could only avail the protection provided under S.41 of Transfer of Property Act, 1882 if he fulfilled the conditions---Transferor of suit property, in the present case, was neither true owner nor the ostensible owner of the same but was identifier of Pardanasheen ladies who were true owners and sellers of the disputed property---Fact that consideration amount did not reach the true owners would not affect the transferee's position of making payment of sale consideration for the disputed property---Plaintiff was not bona fide purchaser of suit property and he did not exercise reasonable care for availing protection provided under S.41 of Transfer of Property Act, 1882---Plaintiff had not been able to prove the condition precedent for being entitled to avail the protection provided under S.41 of Transfer of Property Act, 1882---If a single condition precedent was not fulfilled then the purchaser could not avail the protection provided under S.41 of Transfer of Property Act, 1882---Plaintiff had failed to prove agreement to sell as per mandate of Art.79 of Qanun-e-Shahadat, 1984---Plaintiff was not entitled for exercise of discretion in his favour for specific performance of contract---Impugned judgment and decree passed by the Trial Court were based on correct appreciation of evidence---Appeal was dismissed in circumstances.
Syed Asif Shah's case PLD 1991 SC 905 ref.
Kanwal Nain's case PLD 1983 SC 53; Muhammad Afzal's 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; 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; Noor Hassan and others' case 2015 SCMR 452 and Hafiz Tassaduq Hussain's case PLD 2011 SC 296 rel.
(b) Transfer of Property Act (IV of 1882)---
----S. 41---Ostensible owner---Protection under S.41 of Transfer of Property Act, 1882---Conditions---Principles.
(c) Transfer of Property Act (IV of 1882)---
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----S. 41---"Ostensible"---Meaning.
(d) Maxim---
(e) Maxim---
(f) Maxim---
JUDGMENT
Oxford English Dictionary; Black's Law Dictionary and Mitra's Legal and Commercial Dictionary rel.
----"Nemo dat qui non habet"---Meaning.
----"Nemo plus juris tribuit quam ipse habet"---Meaning.
----"Nemo plus juris in alium transferre potest quam ipse habet"---Meaning.
Abdul Sattar Khan for Appellant.
Zia-ur-Rehman Khan for Respondents.
Date of hearing: 14th March, 2016.
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 v. Jaseem Khan etc).
2.R.F.A No. 12/2007. (Saifullah Khan Bangash v. Jaseem Khan etc).
3.R.F.A No. 35/2007. (Abdul Mateen v. Saifiullah Khan Bangash etc).
2.The brief and essential facts leading to the present appeals, in chronological order, are as follows;
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 Kanals, 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.PW1/1). The said Abdul Mateen, endorsed the said document to be duly executed by the true owners, while the other witness of the
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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. DW1/3). 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 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 PW3/X-2). The total property gifted vide the two mutations was 01 Kanal, while the remaining one Kanal remained to be transferred.
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 No.355/1 for perpetual injunction against Saifullah Khan Bangash etc being owners of the disputed property. This suit was for the remaining one Kanal of land not challenged in Suit No.356/1.
07.09.1999.
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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."
3Feeling aggrieved from the consolidated judgment, Saifullah Khan Bangash, has filed two Regular First Appeals Nos.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 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 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.
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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;
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 qui non-habet. No one can give what he has not got, Nemo plus juris tribuit quam ipse habet. No one can bestow or grant a greater right (better title) than he has himself, and Nemo plus juris in alium transferre 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."
……. So, again, possessors of movables who have lawfully come into possession, may in some cases give a better title than they have; their own 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 Kanwal 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 v. 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 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
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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 Afzal's 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), 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 by 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.
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 definitions are as under;
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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 and 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, 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.PW1/1), and thereafter, as their agent, when he transferred 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 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
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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 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 Beguin. 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. v. 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."
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 bona fide. It may, however, be said that this action on his part was due to his negligence and not mala fide. 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 pre-emptors. These deliberate steps taken by Saifullah Khan Bangash, would thus, 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.PW1/1), 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. Moreso, when he being a lawyer, knew the importance thereof, Thus, Saifullah Khan Bangash would also not qualify the 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
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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 SC 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 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 bona fide 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 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 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.
ZC/147/PAppeal dismissed.