1987 PLP (Trib (PTD)

WHEREAS the party of the first part has planned to construct "' flats and garrages on the above said plot and to receive rentals for the purposes of earning on income. WHEREAS the party of the first part has not been able to arrange funds for the purpose of such construction and the plot remains as open plot which of course requires further expenditure and taxes from year to year without any return and the party for the first part feats that such funds may not be available in the remote future from his own resources. Besides the party of the First Part also needs funds badly. WHEREAS the party of the second part has assured the party of the first part that they are in a position of arranging funds to raise the construction and has thus approached the party of the first part to relinquish the building rights in favour of the party of the second part and the parties of the first and second parts have agreed mutually on the terms and conditions mentioned hereinbelow: - That it is agreed between the parties that the total consideration for the transfer alienation and relinquishment of all rights in respect of plot No.255/ A.R. Lines Karachi in favour of Party of the First Part is a sum of Rs. Five Lacs payable by the party of the second part to the party of the first part. That the party of the second part, in pursuance of the agreement and arrangement under discussion, has paid an advance of Rs. Fifty Thousand on this 17th April, 1980. (3) That the party of the second part has further paid the balance of the sum of Rs.4 Lacs 50 Thousand by way of remaining consideration by means of a credit entry in the Books of Account of the party of the second part, which it is assured shall remain as a floating charge on the plot, construction raised and on the business assets of the party of the second part. (4) That the party of the second part further assures the party of the first part that the credit appearing in the books of accounts and the, charge upon as aforesaid shall diminished and be cleared from year to year as under: -- (i) The sum of Rs. 1 Lakh shall be paid by the party of the second part to the party of the first part by 31st March, 1981. (ii) The sum of Rs. 1 Lakh shall be paid by the party of the second part to the party of the first by 31st March, 1982. (iii) The balance of Rs.2 Lakh 50 Thousand shall be paid by the party of the second part to the party of the first part by 30th June, 1983. (5) It is further agreed between the parties that if the construction operation of the party of the second part are postponed in view of the unforeseen circumstances, the dischargement of credit entry and release of charge shall be suitably postponed to other dates by mutual consent of the parties. (6) It is further assured that proper accounts of expenditure incurred from time to time on the plot and construction shall be maintained by the party of the second part and the developments made in this behalf shall be communicated to the party of the first part periodically at least in every quarter. (7) That the party of the second part assures that the plot under question and all approvals and necessary actions, constructions shall continue to remain in the name of the party of the first part although for that purpose the party of the first part shall only be a Benami until the credit is totally discharged. (8) That the party of the first part shall execute within a month hereof a general power of attorney in favour of the party of the second part from the execution of various acts and deed to be undertaken in respect of the plot and construction etc. This power of attorney shall not be revocable except in the manner as hereinafter provided. (9) It is further assured that the party of the first part shall not be entitled to cancel the aforesaid power if the entire consideration is paid and all acts and deeds promised in the agreement are acted upon by the party of the second part in right earnest. However, if any of the acts as contemplated and promised in the aforesaid clauses are not acted upon and any of the instalments towards dischargement of loan are not paid in accordance with the periods mentioned above or extensions granted thereto. (10) It is further provided that in case a power of attorney is cancelled by the party of the first part, the party of the first part shall be liable for payment of the entire expenditure incurred, including all payments received by him as of the day to the party of the second part. (11) That the party of the first part assures the party, of the second part that through the power of a attorney executed the party of the second part shall remain entitled to sell, transfer, alienate, the sub-plots, sub-constructions, flats and garrages to individual clients and purchasers. (12) That the parties assure cash other than the agreement to relinquish and sell is final and irrevocable and is not capable of being rescinded or withdrawn and for all practical purpose shall be deemed to a transaction in final. In WITNESSES WHEREOF the parties hereinabove mention have set and subscribed their respective hands on this day, month and year mentioned above." Mian Mohammad Shafiq party of the first part. (Sd.) Mian Ahsan Elahi"

15. Now from perusal of its opening part it appears that the document was executed between the appellant and 51/s. Qaiser Naeem and Co. Since M/s. Qaiser Naeem and Co. is a registered partnership firm hence it has no legal personality and could not have entered into any agreement hence it is not a legal document. Nevertheless, we are of the view that this finding makes no difference as far as the taxability of the amount is concerned for the reason that the document would be looked into for collateral purposes.

16. If we read whole of the document it appears to us that the intention of the parties has been to put the partners of the firm called M/s. Qaiser Naeem and Co. into possession of the plot of land for purposes of raising construction thereon. It further appears that aforesaid firm made credit entry in its account books for Rs.4,50,

000. The document also talks of execution of power of attorney. However, now here it has been mentioned that the appellant would execute a sale-deed in favour of the partners of aforesaid firm. After carefully going through the whole of it we are of the view that it is nothing but a licence deed executed by the appellant in favour of tile partners of the aforesaid firm or at least in favour of Mian Ehsan Ilahi. The licence has been defined by Section 52 of the Easement Act, 1982 as under: "Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immovable property of the granter, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a licence."

17. Thus, if we read 4th paragraph of the document it appears that the appellant has actually relinquished the building rights in favour of the partners of aforesaid firm in return of Rs.5.00,

000. Thus, it is a licence deed. It is settled law that the, contents of a document are important to determine its nature than its title or nomenclature given by the parties.

18. In order to fortify our finding let us also mention here that it is not a sale-deed. In this regard we would like to reproduce section 54 of the Transfer of Property Act. It reads: "'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer or such person as he directs, in possession of the property. A contracts for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."

19. From its perusal it is clear that sale is a transfer of ownership whereas the licence consists of a right to do or continue to do something upon the property of the owner, thus, a sale-deed is that which demises the property but a licence deed witnesses granting of permission to do some act oh the property. The former is a registered deed if value of property is more than one hundred rupees whereas the latter need not be registered under the Registration Act. Though, the consideration may pass in both cases but in case of sale it is called sale price and in case of licence it is called premium. It is not an agreement of sale either. As 'pointed out earlier the parties have not stipulated that a sale-deed would be executed later on. Let us also mention here that it is also not a lease agreement. A lease has been defined under section 105 of the Transfer of Property Act as follows "

105. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lesser, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. "

20. It is clear from this definition that lease consist of transfer of a right to enjoy an immovable property and this document has not transferred any right in the plot of land. It has only granted a right to build as explained earlier. However, even if it is held to be a lease-deed it would not help the appellant.

21. Thus, we are of the view that the appellants allowed the partners of the aforesaid firm to enter his plot of land and to raise construction thereon in return of a certain premium. He did not either divest or intended to divest himself of his ownership rights or transferred right in the property. As such, the question regarding sale-deed does not arise at all. Let us also mention here that the document is written on stamp paper of four rupees and is attested by a Notary Public.

22. As we have already pointed out that aforesaid firm called M/s. Qaiser Naeem and Co is constituted by son and daughters of the appellant and is nothing but a family affair of the appellant. This fact is also fully borne out of aforesaid document. Our finding that the licence was granted to the partners of the firm or in any case to Mr. Ahsan Elahi is on the basis that aforesaid firm, was not only a family affair but also for the reason that it is possession of entire plot of land. Be it as it may the document produced before I.T.O. is nothing but a licence deed and the money paid is nothing but premium. As such, neither it is sale-deed nor an agreement to sale. The arguments of Mr. Mahmood Hashmey, therefore, appears to be untenable in law. His very strong reliance on case of Ashaland (supra) also appears to be wholly misplaced. Thus, his second leg of arguments also fails.

23. Since no other ground has been pressed we find no force in this appeal and it stands, rejected accordingly. M.B.A. /429/ T. Appeal dismissed.