P L D 1965 Supreme Court 690 (PLP)

B. Z. KAIKAUS, J.‑This is a certificated appeal against a judgment of the High Court of West Pakistan confirming on appeal a decree granted to the plaintiffs‑respondents for specific performance of an agreement for sale of land. The present appeal is by the transferees of part of the land in dispute from the vendor‑ Mst. Rabat Begum who is a pro forma respondent. The agreement for sale of land which is the basis of the suit was executed on the 22nd March 1951? by Shahzada Muhammad Shah Khan husband of Mst. Rahat Begum, who was holding a general power of attorney from his wife. The persons to whom Shahzada Muhammad Shah Khan agreed to sell this property are four minors two of them being sons of Mr. Khawaja Muhammad Khan, Advocate of Peshawar, and the other two his brother's sons. It was Khawaja Muhammad Khan through whom the minors entered into this contract. The property agreed to be sold was 502 kanals and 19 marlas of land, eight houses, and a tower, situated in Mahal Dheri Zardad Khan, Tehsil Charsadda and the price agreed upon was Rs. 1,00,000 out of which Rs. 4,000 were paid at the time of the agreement and the balance was to be paid before the Sub‑Registrar at the time of registration of the sale deed: According to the allegations ‑ of the plaintiffs an oral agreement had been entered into on the 20th March 1951, and on that date forms for the deposit of Rs. 1,875 into the treasury for the purpose of purchase of stamp needed for the sale‑deed had been filed, but before the money was actually deposited into the treasury it came to light that on account of the application of the Kabul River Project (Control and Prevention of Speculation in Land) Act, the land could not be sold without the permission of the Provincial Government. On the 22nd March. 1951, therefore, Shahzada Muhammad Shah Khan applied on behalf .of his wife to the Revenue and Divisional Commissioner for sanction of the Provincial Government to the sale. An inquiry was held by the Government and by a notification of 18th December 1951, the Government acting in exercise of the power conferred on it by section 1 (2) (b) of the Act removed all shah nehri area of village Dheri Zardad Khan from the Schedule to the Act. The result of this notification was that the Act ceased to be applicable to the land in dispute except for an area of 33 kanals which was not shah nehri land. For the sale of this small area the Government granted permission on 30‑1‑1952. On the 15th or 16th February 1952, Khawaja Muhammad Khan who is the next friend of the four minors in this suit came to know of the exemption and asked the vendor to execute a sale‑deed, but the vendor did not care to reply. After some time the next friend of the plaintiffs was informed that Shahzada Mohammad Khan had on the 24th March 1952, sold 420 kanals and 10 marlas of land and some houses out of the property agreed to be sold to the plaintiffs to Haji Abdullah Khan, Mir Afzal Khan, Mastan Khan alias Narai, Ajoon Khan and Siddiq Khan who are the appellants before us. On the 29th April 1952, Mrt. Rahat Begum had also according to the allegations in the plaint fictitiously sold 92 kanals and 9 marlas out of the land agreed to be sold to the plaintiffs to Fateh Muhammad Khan her own ‑ nephew who too is an appellant before us. The present suit was filed on behalf . of the four minors by Khawaja Muhammad Khan as their next friend on the 2nd May 1952. Defendants to the suit were Mst. Rahat Begum, Shahzada Muhammad Shah Khan, the vendees from Mst. Rahat Begum and some tenants. The prayer was for grant of a decree for specific performance of the agreement for sale on payment of Rs. 90,000 after deducting Rs. 4,000 which had been paid at the tine of the execution of the agreement and Rs. 6,000 which the vendor had received from a lessee whose lease she had not disclosed to the plaintiffs. Mst. Rahat Begum did not file any written statement, but Shahzada Muhammad Shah Khan and the vendees filed written statement and contested the suit. The suit was contested on a number of grounds, but it is not necessary to refer to those grounds which are no longer a matter of dispute between the parties. The very agreement for sale was denied and it was denied too that Shahzada Muhammad Shah Khan had ever applied for sanction of the Government to sell the land. . The agreement was also attacked on the ground that it was the result of undue influence and fraud. It was further pleaded that in accordance with the agreement the sale was to be registered within six months and time being of the essence of the contract the suit was liable to be dismissed on the ground that time for its performance had expired. The vendee‑defendants pleaded that they were bona fide transferees for value without notice of the agreement for sale. The trial Court found that there was a valid agreement for sale and that the vendee defendants had failed to prove purchase in good faith for consideration and without notice. On these findings ‑a suit was decreed. Only the vendees from Mst. Rahat Begum appealed against the decree. The High Court agreed with the findings of the trial Court and dismissed the appeal. An effort was made by the appellants to argue before the High Court a number of points which had not been raised either in the trial Court or in the memorandum of appeal. The High Court refused to allow those new points to be raised; Before us Mr. Mahmud Ali who appears for the appellants raises the following points‑‑ (1) That on the 20th March 1951, when the oral agreement for sale was alleged to have been entered into both parties were unaware of the bar that existed to the sale on account of the Kabul River Project (Control and Prevention of Speculation in Land) Act and therefore the agreement was void on account of a common mistake of fact; (2) time which had been fixed in the agreement as six months was of the essence of the contract; (3) the agreement for sale was void as the agreement itself could not have been entered into without the sanction of the Government; (4) as regards the two minors who are the sons of the brother of Khawaja Muhammad Khan, that is, Nisar Muhammad Khan and Bashir Muhammad Khan no agreement came into existence at all for Khawaja Muhammad Khan through whom the agreement was entered into was not their guardian; (5) so far as the other two minors are concerned in the first place there was no valid agreement for purchase, but assuming the existence of a valid agreement grant of specific performance would violate the principle of. reciprocity for such an agreement depends for its validity on a determination by the Court that it was for the benefit of the minor and if the minor failed to perform the agreement the other party would not be able to sue for specific performance, not knowing whether the agreement will be found to be for necessity or obvious benefit; (6) Fateh Muhammad Khan vendee‑appellant had a superior right for. pre‑emption and therefore the agreement could not be enforced against him; (7) the High Court had erred in not allowing the points not mentioned in the memorandum of appeal to be argued before it. Before proceeding further it may be stated that Siddiq Khan who is shown as an appellant before us had died during the pendency of the appeal in the High Court and his legal representatives were not brought on the record in time. His appeal therefore abated, but the High Court held that this did not affect the appeal by others. No question has been raised before us by the respondents as to any further effect of the abatement of the appeal of Sadiq Khan. Out of the points raised before us there are two which were not sought to be raised before the High Court, that is, the one relating to time being of the essence of the contract and the other relating to the agreement for sale being void because of want of sanction of Government. With these two points we will deal before considering the question as to whether the High Court erred in not allowing other points to be raised. So far as time being of the, assence of the contract is concerned the point was not argued before the High Court at all though it did find place in the grounds of appeal. The point had been covered by Issue No. 13 framed by the trial Court. It had been argued as the learned Judges of the High Court say in a luke warm manner before the trial Court and it was apparently not argued before the High Court for it is not discussed in the judgment and there is no grievance before us that it was argued and still was not dealt with. It is not mentioned in the concise statement filed by the appellants. It was not mentioned even in the grounds of appeal to this Court. It does not therefore deserve any serious consideration. It is sufficient to say that ordinarily time is not of the essence of the contract in an agreement for sale of land and in the present case a sale of the land was not possible till the notification by the Government and the permission of the Government for sale to which reference has already been made. The notification was published long after the expiry of 6 months and the permission came even later. So far as the objection to the validity of the agreement on the ground of want of sanction is concerned it has to be observed in the first place that the objection relates only to 33 kanals out of the suit land, to the remaining land the Act having ceased to be applicable. But assuming it relates to the whole land it has little force. Permission for alienation was required under section 4 of the Kabul River Project (Control And Prevention of Speculation In Land) Act, 1948, which runs: "

4. Bar on alienation of project land.‑No person shall alienate the project land from the commencement of this Act until the expiry of fifteen years after such date as may be notified by the Provincial Government as the date on which water from the Kabul River is made available for the irrigation of the land: Provided that the Provincial Government may on application if satisfied that there are sufficient grounds for doing so, permit the land to be alienated, before the expiry of the above said period on such payment to the Provincial Government and subject to such conditions as the Provincial Government deems fit." "Project land" means land to which the Act was applicable. Section 4 prohibits only alienation of land. The contention of learned counsel for the appellants is that whenever sale of land is prohibited an agreement for sale without sanction should also be regarded as prohibited on grounds of public policy. We find little force in this contention. If there is some condition precedent to the validity of a transfer it is open to the parties to enter into an agreement subject to compliance with the condition precedent. The attack on the agreement for sale on the ground of public policy could only succeed if it was shown that the intention of the agreement was to defeat a law. If the parties that enter into an agreement for sale contemplate only a sale with the requisite sanction they are not making any effort to defeat the law. In the present case an application for permission to sell had, according to the findings of the Courts below, been signed by Shahzada Muhammad Shah Khan on the very day on which the agreement for sale was executed. The remaining points which learned counsel for the appellants wants to argue before us had not been taken either before the trial Court or in the memorandum of appeal to the High Court, but were sought to be raised at the hearing of the appeal by means of an application. It was urged before the learned Judges of the High Court that the points should be allowed to be raised as they involved important questions which were either pure questions of law or mixed questions of law and fact and that in case any further inquiry into facts was needed it should be held and the points raised decided. Points involving enquiry into facts or as to which there could have been an answer on facts if they were raised in the trial Court cannot in the absence of strong reasons justifying such a course be allowed to be c raised for the first time in appeal and we will consider the points sought to be raised one by one to determine whether the High Court was justified in refusing to allow them to be raised. The first point relates to what is called the common mistake of the parties as to there being no bar to the sale. Section 20 of the Contract Act on which Mr. Mahmud Ali relies speaks of a "mistake as to a matter of fact" and the legal competence of a person to make a transfer is a question of law. In any case whether both parties were ignorant of the law on the 20th March 1951, is a question of fact which could only be decided after an investigation and there was no good ground for its being allowed to be raised as an additional ground of appeal. We would also point out that the oral agreement having subsequently been reduced to writing on a date when according to the finding of the Courts below both parties were conscious of the correct legal position the want of knowledge on the 20th March would not make any difference. So far as the plea that Fateh Muhammad Khan had a superior right of pre‑emption is concerned we find that although the point was raised in the written statement no issue was claimed with respect to it and no issue was framed. No good ground existed therefore for an opportunity being granted to raise it before the High Court so that an issue may be framed and the case remanded for enquiry. We find ourselves in agreement, however, with learned counsel for the appellants that the points which had been raised as to the effect of the minority of the plaintiffs on the validity of the agreement for sale as well as on the question as to whether the agreement should be specifically enforced in a suit by a minor were such that permission to argue them ought to have been granted. They all are as we will presently show pure questions of law and we do riot think the proposition is open to contest that pure questions of law can be raised at any stage. Learned counsel appearing for the respondents does not accept that the points raised with respect to the minority of the plaintiffs are pure questions of law. He has made an effort to justify the judgment of the High Court on the ground that the questions raised were mixed questions of law and fact. According to him the High Court never held that pure questions of law could not be raised. A reference, however, to the judgment of the High, Court shows that in the opinion of the learned Judges even a pure question of .law could not be allowed to be raised in appeal for the first time. The learned Judges say: "to allow the question of law or of fact to be raised in appeal for the first time would clearly prejudice the other party and thus defeat the ends of justice." It may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted E or proved facts law has to be given effect to whether or not it has been relied upon by a party. Of course we are referring here to proceedings before original and appellate Courts and not to revisional Courts whose jurisdiction to interfere is determined by the statute that creates the jurisdiction. Under section 115 of the Civil Procedure Code for instance the revisional Court cannot interfere on the sole ground that on the merits the decision was not in accordance with law, though the fact that a statute was overlooked and no decision was given with respect to it may constitute an irregular exercise of jurisdiction. Learned counsel for the respondents contends that the objections based on the minority of the plaintiffs are not pure questions of law because if raised in the trial Court they might have been met by the plea that the minors were only intended to be benamidars of their fathers who were the real purchasers or by the plea that Khawaja Muhammad Khan was acting in respect of the sale to the sons of his brother only as an agent of his brother. It is true that pure question of law means a question which not only does not require any investigation into facts, but which could not have F been met by a plea of fact if raised at the proper stage and ordinarily it will be a good argument as against a plea being a plea of law that it could have been met by an allegation of fact. However, there is an aspect of the matter before us which should make it clear that the objection in so far as it relates to the invalidity of the agreement in favour of Nisar Muhammad Khan and Bashir Muhammad Khan minors is one of pure law. It is always open to defendant to raise the objection that ‑on the facts stated in the plaint no right of suit appears in a‑ plaintiff. The plaint in the present case does not disclose a right of suit in Bashir Muhammad Khan and Nisar Muhammad Khan plaintiffs for the. plaint does not contain sufficient allegations to create such a right. In order that they might have had a right of suit it was necessary to state that they had entered into an agreement through their guardian. It is only a guardian who can enter into a contract on behalf of a minor. In Muhammadan law the only guardians of property of a minor are the father or the executor of the father or the person appointed as guardian by his will and the grandfather or his executor or the person appointed as guardian by his will. The father's brother is nowhere in the list of guardians. In Imam Bandi v. Din Mutsaddi (45 I A 73) the Privy Council had found the mother to be in the position of a stranger as regards the property of her children and the position of an uncle is no better than that of a mother for all who are not included among the guardians mentioned above are strangers. If the plaint does not mention that there was an agreement by the minors through a guardian it amounts to this that no legal agreement had been alleged so far as these two plaintiffs are concerned. As a matter of fact the plaintiffs will be forced the moment this objection is raised to ask for permission to make further allegations in the plaint in order to support the claim to ,a relief. This objection raises a pure question of law and should have been allowed to be argued. So far as the objection relating to the validity of the agreement by Khawaja Muhammad Khan as guardian of his own son is concerned that would depend upon benefit to the minors and would involve ‑ questions of fact. No plea as to want of benefit to the minors was raised in the trial Court and no issue was framed in respect of it. No plea with respect to it was taken in the grounds of appeal and even when an application was made to permit new points to be argued there was no plea as to there being no benefit to the minors by the sale. We would not therefore allow an objection to be taken now on this ground. However, the objection that even though there be a valid agreement on behalf of these minors specific performance should be refused on the principle .of reciprocity on the simple ground that because a party to the agreement is a minor the validity of whose agreement depends upon a determination by the Court of benefit to the minor, only raises a question of principle as to award of relief and in fact would be covered by an issue relating to relief. In suits for specific performance relief is in the discretion of Courts and it is open to the defendants to urge that on grounds appearing on the record such a relief should not be granted. This objection too has therefore to be allowed to be raised. We may point out here that it would also be open to the appellant always to raise the question that as a matter of law an agreement for purchase on behalf of a minor is not possible at all. The point was not taken before us in this form, but the cases cited suggest to possibility of such an argument. We find then that the learned Judges of the High Court were not justified in not allowing the points mentioned above to be raised. We have considered the question whether we should remand this case to the High Court for a rehearing after allowing the questions relating to minority of plaintiffs to be raised or whether we should remand the case to the trial Court. We have come to the conclusion that a remand to the High Court would only delay the proceeding because the plaintiffs are bound to raise in answer to the objection as to the minority of to plaintiffs one or both of the pleas mentioned above, that is, tit plaintiffs were benamidars and Khawaja Muhammad Khan will acting as agent of his brother in respect of his nephews. If the plaintiffs raise either of these pleas the High Court will have to remand the case to the trial Court for further evidence and fresh decision. We remand this case therefore to the trial Court with the direction that the defendants‑appellants should be allowed to add to their written statement the pleas which we have permitted to be raised. In reply to these additional pleas the plaintiffs will be allowed to take such pleas as they choose. Evidence will be led by the parties on , the questions of fact which arise out of the additional pleas and the pleas taken in reply. The whole case is not being reopened. The trial Court will only determine the new pleas raised by the defendants‑appellants though in the decision of the facts relating to these pleas it will not be bound by any previous finding it may have recorded on facts. This appeal is allowed and the case is remanded to the trial Court. Costs in this appeal will be costs in the cause. S. Q. Appeal allowed.