P L D 1987 Peshawar 65 (PLP)

(c) Contract Act (IX of 1872)‑ ‑‑ S. 25, Explanation 2-Inadequacy of consideration‑Effect on agreement‑Agreement to which consent of promisor was freely given, held, would not be void merely because of inadequacy of considera tion‑Such inadequacy of consideration, could be taken into account by the Court in determining question whether consent of promisor was freely given‑Circumstances in which sale‑deed was executed and fact that same was not given effect in revenue record in the life time of vendor and till a further period of four years after death of vendor, held, would lead to irresistible conclusion that sale‑deed was not a genuine transaction and consent of seller was not freely given. (d) Specific Relief Act (I of 1877)‑ ‑‑ S. 42‑Suit for declaration with no consequential relief sought therein whether competent‑Objection to incompetency of suit under S. 42, Specific Relief Act due to non‑inclusion of consequential relief, held, could not be taken in revisional jurisdiction when no such objection was raised before lower Courts nor was mentioned in written statement‑Revision being devoid of merit was dismissed in circumstances. Alhaj Sardar Bahadur Khan for Petitioner. Kh. Abdur Rashid for Respondents. Date of hearing : 14th March, 1987. Mst. Sarwar Jan and Mst. Ashraf Jan (respondents), in their suit, sought a declaration that they are entitled to 1/2 share of the suit land on account of inheritance of their father Ghulam Muhammad alias Gabu and the sale Mutations Nos. 586 and 1538 both attested on 30‑9‑1981 in favour of their brother Mahboob (petitioner) on the basis of a fictitious and fraudulent sale‑deed dated 6‑12‑1976 were ineffective on their rights. As a consequential relief they prayed for permanent injunction and in the alter native for possession of the land to the extent of 1/2 share. In the written statement the defendant‑petitioner claimed to be the lawful owner of the suit land on the basis of the sale‑deed dated 6‑12‑1976. alleging that his father had lawfully sold the land in his favour in his lifetime. Keeping in view the evidence produced by the parties and the circumstances of the case the learned trial Court came to the conclusion that the sale‑deed was factitious and fraudulent and, therefore, liable to cancellation. The decree prayed for the was accordingly granted to the plaintiffs on 9‑4‑1984. In appeal filed by petitioner the learned District Judge was of the view that the defendant was never recorded as owner in possession of the suit land in the revenue record during the lifetime of his father and in case the sale‑deed was a genuine document then there was no reason why no information about the acquisi tion of interest in the land was conveyed by the petitioner to the Patwari in accordance with section 42 of the Punjab Land Revenue Act, 1967. It was noticed that the impugned sale mutations were got attested after about 4/5 years of the execution of the sale‑deed and also after the death of Ghulam Muhammad (vendor). It was also noticed that inheritance. mutation of Ghulam Muhammad in favour of the plaintiffs and defendant was got entered by the defendant himself on 1‑6‑1980 as was evident from copy of the Daily Diary (Exh. P. W. 1/3) but the mutation was subsequently rejected on 10‑7‑1980 on the ground that the death of Ghulam Muhammad could not be ascertained. After considering the entire evidence and circum stances of the case the learned Additional District Judge, Haripur dismissed the appeal on 9‑7‑1984. The defendant feeling aggrieved has come in revision to this Court.

2. In this revision the only material question which requires determina tion is whether the impugned mutations on the basis of the sale‑deed date 6‑12‑1976 have been correctly sanctioned and that Ghulam Muhammad, predecessor‑in‑interest of the parties, had in fact sold the land with free consent in favour of his son Mahboob and whether the finding arrived at in this regard by the Courts below is duly supported by the evidence on record. It is not disputed that Ghulam Muhammad was an illiterate person who died on 11‑11‑1977 at the age of 70 years. The land in suit measuring 151 Kanals is situated in two villages near Tehsil Haripur. The stamp paper for the sale‑deed was purchased at Abbottabad instead of Haripur on 1‑12‑1976 and the sale‑deed was also executed there on 6‑12‑1976 for a sale consideration of Rs. 99 in favour of the petitioner. After the execution of the sale‑deed on 6‑12‑1976 Ghulam Muhammad was alive till 11‑11‑1977 but during this period the possession of the land, has not been shown with the petitioner on the basis of the sale nor the sale was attested in the revenue record. After the death of Ghulam Muhammad his legal heirs are shown in possession of the land in the Khasra Girdawaris alongwith the defendant who is also entered in possession on account of the sale‑deed dated 6‑12‑1976. The record shows that inheritance mutation of Ghulam Muhammad in favour of his heirs was entered on 1‑6‑1980 at the instance the petitioner himself without disclosing that he had purchased the land from his father by the sale‑deed dated 6‑12‑1976. This fact is evident from the report in the `daily diary' (Exh. P. W. 1/3) record ed by Mian Khan Patwari (P. W. 2). The inheritance mutation was subsequently rejected on 10‑7‑1980 by the Revenue Officer for the reason that the death of Ghulam Muhammad could not be ascertained. The defendant has wrongly deposed on his evidence that it was rejected for the reason that he was found owner of the land on the basis of the sale‑deed in question. The impugned Mutations Nos. 586 and 1538 for the first time were got entered by the defendant on 20‑8‑1981 on the basis of the sale‑deed dated 6‑12‑1976 which were subsequently attested. on 30‑9‑1981 in the absence of the plaintiffs. Under section 42 of the Punjab Land Revenue Act, 1967 the petitioner who allegedly acquired interest in the. land by purchase was required to inform the Patwari within 3 months of the acquisi tion of interest for getting the sale attested in the revenue record. The e petitioner not only kept quite during the lifetime of his father but for a further period of 4 years after his death. This coupled with the circum stances that the petitioner himself got entered the inheritance mutation o his father in favour of his legal heirs would lead to the only inference that the sale‑deed in question was not a genuine document. Furthermore, the agricultural land measuring 151 Kanals in the vicinity of Tehsil Haripur is stated to have been sold by Ghulam Muhammad in favour of the peti tioner for a paltry sum of Rs.

99. Thus, even if the sale‑deed is held to be duly executed in favour of the petitioner it would show that the consent of the vendor was .not freely given. Under Explanation 2 to section 25 of the Contract Act, 1872 an agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate but the inadequacy of the consideration can be taken into account by the Court in determining the question whether the consent of the promisor was freely given. The circumstances in which the sale‑deed was executed and the fact that it was not given effect in the revenue record in the lifetime of the seller. and till a further period of about 4 years after his death would lead to the irresistable conclusion that it was not a genuine transaction and the consent of the seller was not freely given. The plaintiffs are the real sisters of the petitioner and no reason is forthcoming in evidence as, to why the deceased wanted to deprive his daughters from his inheritance to which they were otherwise lawfully entitled. The argument on behalf of the petitioner that the suit was incompetent under section 42 of the Specific Relief Act as no consequential relief of possession was sought can not be entertained in revision as no such objection was raised before the lower Courts nor it is mentioned in the written statement. "

3. For the aforesaid reasons no exception can be taken to the finding arrived at by the Courts below and no case has been made out for interference in the revisional jurisdiction. The revision is, therefore, dismissed with costs. A. A./513/P Revision dismissed.