2017 PLP 290 (YLRN)

MUZAMIL AKHTAR SHABIR, J.

This Regular-Second appeal under Section 100 of Code of Civil Procedure, 1908 is directed against judgment and decree dated 06.07.2015 passed by Additional District Judge, Vehari whereby the appeal filed by respondent No.1 was allowed and the judgment and decree dated 08.11.2012, passed in favour of the appellant by Civil Judge 1st Class, Vehari was set aside with the result that the suit for declaration and Specific Performance filed by the appellant was dismissed.

2. Briefly the facts of the case are that on 22.11.2004 the appellant filed a suit for declaration and in the alternate specific performance of an agreement dated 14.09.2000 executed in favour of the appellant by respondent No.1, stating therein that respondent No.2/ Mst. Irshad Kausar (step grandmother of the parties) was owner in possession of the suit property (i.e. agricultural land described in the plaint). The respondent No.1 who is the first cousin of the appellant had promised to get married to appellant whereupon the father of the appellant purchased the suit property from Mst. Irshad Kausar (now dead), defendant No.2 in the suit, against consideration of Rs.12,00,000/- and got the property transferred in the name of respondent No.1 through Mutation No.1707 dated 28.12.1994. It is alleged that the revenue authorities with mala fide intention incorporated the mutation as Tamleek instead of sale in favour of the respondent No.

1. The appellant claimed that he is the real owner in possession of the suit property and the respondent No.1 is the Benami owner. It is alleged that the respondent No.1 backed out from her promise to marry the appellant and instead got married to Ali Raza Khan. Consequently, the respondent No.1 executed agreement dated 14.9.2000 wherein she agreed to return the suit property to the appellant but subsequently she refused to abide by the same, therefore, the appellant filed the suit for declaration and in alternate thereof specific performance of agreement dated 14.9.2000 against the respondent No.1 and respondent No.2/Mst. Irshad Kausar.

3. The respondent No.1 contested the suit stating therein that Mst. Irshad Kausar was her step grandmother and had transferred the suit property in her favour through Tamleek Mutation No.1707 dated 28.12.1994 and in this regard, 'Rapt Roznamcha Waqayati' No.182 was also entered in the record. She denied the execution of agreement dated 14.9.2000 claiming the same to be a forged document.

4. The learned trial court decreed the suit filed by the appellant vide judgment and decree dated 08.11.2012. The respondent No.1 filed an appeal against the same, which was allowed vide judgment and decree dated 06.07.2015 and resultantly the suit filed by appellant was dismissed. The appellant has now challenged the judgment and decree passed by Additional District Judge, Vehari through the instant second appeal.

5. The counsel for appellant has argued that through a betrothal agreement, respondent No.1 had agreed to marry to appellant whereupon the suit property was purchased by father of appellant in the name of respondent No.1. The counsel further argued that on the failure of respondent No.1 to marry to appellant and having instead married with Ali Raza Khan, she entered into agreement dated 14.09.2000 to return the suit property to the appellant.

6. The agreement dated 14.9.2000 (Ex.P-1) was produced by the appellant in evidence. Two marginal witnesses namely Syed Muhammad Ali Mehdi Gardezi and Mazhar Hussain Khan had attested the said document. The perusal of the same reveals that although the agreement makes reference to the name of the appellant but he has not signed the same and his name does not appear as its executant. This agreement itself is vague and uncertain in terms because it relates to different transactions between several parties who all were not the executants and signatories to the said agreement. The name of respondent No.1/Rahat Siddique, her mother Mst. Shamshad Begum and her maternal uncle Khadim Hussain Khan appear on the said document as executants of the same. The agreement is silent relating to various terms and conditions including consideration of transaction between the parties. It appears to be a mere memorandum of some transactions but apparently does not fulfill the criteria of a concluded agreement. It is by now settled that a Memorandum of understanding is not a valid contract unless a final contract is concluded between the parties. Reliance is placed on Mehran Sugar Mills Limited v. Sindh Sugar Corporation Limited through Chairman and 2 others (1995 CLC 707) wherein it is held that "no final agreement was concluded between the parties and alleged agreement was not reduced into writing. Mere signing of Memorandum of understanding could not be deemed to be a valid agreement in the eye of law. No agreement having been finalized, no legal or valid right would accrue to plaintiff on basis of Memorandum of understanding"

7. Besides in this case the agreement Ex-P1 is also silent as to the proposal, its acceptance and consideration. The meaning of the agreement is not certain as to what actually transpired between the parties. Section 29 of the Contract Act, 1872 provides that agreements the meaning of which is not certain or capable of being made certain are void. The terms of the agreement in this case are vague and uncertain; hence not enforceable. Reliance may be placed on Haji Saindino Khan and another v. Mst.Zaibunnisa through legal heirs and another (1991 SCMR 972) through which the Hon'ble Supreme Court upheld the decision of High Court wherein it was held as under: "Now in this case, the lessors were competent to sell the suit land. The purchaser/appellants were competent to purchase the land in dispute. The subject-matter is the land in suit or the agricultural land which the appellants took on lease from the lessors. In my opinion, the lawful consideration i.e. the price of agricultural land was as essential term of the contract was not to be found in clause

15. This offer was vague for uncertainty and indefiniteness on the acceptance of which no contract is ever born or comes into being".

8. One of the two marginal witnesses namely Mazhar Hussain Khan did not appear in the witness-box to prove the execution of said agreement. It is by now settled that the solitary statement of a single marginal witness is not sufficient to prove valid execution of an agreement and both the marginal witnesses have to be produced in evidence to prove the same. The appellant has produced Mian Ashfaq Ahmad, Advocate as PW.1 who claimed to be the scribe of the agreement probably to cover the absence of marginal witnesses in support of his claim. But a scribe cannot be a substitute of a marginal witness. Hence the execution of the agreement is not proved. Reliance is placed on Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241) where it has been held that for validity of instruments falling within Article 17 of the Qanun-e-Shahadat, 1984, the attestation as required therein was absolute and imperative. For the purpose of proof of such a document attesting witnesses had to be compulsorily examined as per requirement of Article 79 of the Qanun-e-Shahadat, 1984, otherwise it was not to be considered and taken as proved and used in evidence. Scribe of a document could only be a competent witness in terms of Articles 17 and 119 of Qanun-e-Shahadat, 1984 if he had fixed his signature as an attesting witness of the document and not otherwise. Signing of document in the capacity of writer did not fulfil and meet mandatory requirement of attesting by him separately. Scribe of document could be examined by concerned party for corroboration of evidence of marginal witnesses or in the eventuality those were conceived by Article 79 of Qanun-e-Shahadat, 1984, itself not as a substitute.

9. The story of the appellant's case revolves around betrothal agreement i.e. the promise of marriage between appellant and respondent No.1 in the year 1994 when the respondent No.1 was aged about 4 to 6 years. It has not been brought on record through any witness that who entered into agreement of marriage between the appellant and respondent No.1, in consideration of which the appellant has alleged that his father had purchased the suit property from Mst. Irshad Begum who was the step grandmother of the appellant as well as the respondent No.1. Both Noor Muhammad and Allah Wasaya, PW-4 and PW-5 respectively have appeared in evidence to state that initial transaction of Tamleeq in favour of respondent No.1 was actually related to purchase of property by the father of appellant in favour of respondent No.1 for promise of marriage but the revenue authorities had shown the same to be a Tamleek. Both these PWs have been working for the father of appellant and are interested witnesses. Neither the father of appellant nor these witnesses or Mst. Irshad Kausar deceased/step grandmother of the parties ever claimed this to be Benami transaction and actually a sale instead of Tamleek in favour of respondent No.1. The cause of action appears to have arisen after the marriage of respondent No.1 with Ali Raza Khan. The transaction allegedly was executed between the father of appellant and Mst. Irshad Kausar who never challenged the nature of the said transaction during their life time. Mst. Irshad Kausar never denied transfer of property through Tamleeq in favour of the respondent No.1 throughout her life time. The appellant failed to establish that the initial transaction was actually a sale instead of Tamleeq and the revenue authorities had wrongly entered the same as Tamleeq. The appellant has merely raised vague allegation against the revenue officers and officials to claim that the said officials had entered mutation of Tamleeq instead of sale with mala fide. Besides under the Article 129 Illustration (e) of the Qanun-e-Shahadat, 1984, presumption is that official acts have been regularly performed. Appellant has failed to rebut the said presumption be leading cogent evidence. Reliance is placed on Mrs. Kausar A. Ghaffar v. Government of Punjab and others (2013 SCMR 99) wherein it has been observed that Presumption of regularity was attached to official acts and the same could not be annulled on vague allegations.

10. The appellant has failed to establish the initial agreement of marriage between the appellant and the respondent No.1. Besides the respondent No.1 was a minor at that time and agreement with a minor is void as the minor does not have the competency to contract. Reference may be made to section 11 of the Contract Act, 1872, wherein it has been laid down that a person has to be of age of majority to be competent to contract. Besides, the appellant has failed to establish, that who had entered into agreement of marriage between the parties, when the respondent who was a minor had not entered into such an agreement. Thus, the said agreement is not proved on the record. On this account also the claim of the appellant is liable to be dismissed. Although the marriage is a civil contract between the parties but an agreement to marry in future is not enforceable as an ordinary agreement under the Law of Contract and marriage can only take place by consent of parties given at the time of marriage. Reliance is placed on Issa Khan v. Razma (1991 SCMR 2454) wherein the Supreme Court has observed as under: "It may be mentioned here that in most of the betrothal agreements in our society the parents or other elders do so on behalf of the two persons who are intended to be united in the wedlock of marriage in future. To bind a girl with such an agreement in the nature of betrothal in such a manner that she should be compelled to give her consent at the time of marriage or for that matter a decree for conjugal rights or for a direction for marriage be passed against a female in the above circumstances is unimaginable. The whole fabric of Islamic Law and Jurisprudence on this subject is against such a notion. The lady remains free to give or to withhold consent for the marriage till the moment when marriage contract takes place. There should be no doubt about it. Coming to the observation made in the impugned judgment of the High Court that the betrothal agreement is generally customary and is also generally arrived at between the relations of the parties with a view to enter into future contract of marriage, therefore, it does not create any civil right, is correct in so far as the claim of the male (in the present case also) for forcing the female to enter into a marriage is concerned. He has no such right."

11. In the present case the appellant has failed to point out any consent on behalf of the respondent No.1 to enter into marriage with the appellant. Therefore, the entire story appears to be an afterthought to deprive the respondent No.1 from the property transferred to her through Tamleeq.

12. As far as agreement Ex.P-1 is concerned, the execution of the same has not been proved by the appellant. Even if the same had been proved, it is not a document that can be treated as an agreement between the parties as it is silent as to various terms and conditions agreed between the parties. The appellant had claimed the property to be a benami but the fact of payment of Rs.12,00,000/- by the father of appellant to Mst. Irshad Kausar has not been proved on the record. This is a fatal defect in the case of the appellant.

13. The learned counsel for appellant has further argued that since the time of Tamleeq to up till now, the possession of the suit property vests with appellant which supports the claim of appellant that transfer of property is a benami transaction. This argument is negated for the reason that the appellant has failed to prove the ingredients of a Benami Transaction. The appellant is not in possession of any title document, the payment of Rs. 12,00,000/- as alleged price of the land has not been proved and it has also not been proved that the father of the appellant got the property transferred in the name of the respondent No.1 . Moreover, admittedly Mst. Irshad Kausar was the step grandmother of both the appellant and respondent No.1. The property was transferred to respondent No.1, is in the year 1994, when the respondent No.1 was admittedly a minor. The parent or grandparent may transfer the property in favour of a child or grandchild without actually transferring the physical possession of the property to the minor and the possession may be retained as constructive possession on behalf of the minor. Gift or Tamleek would not be incomplete in favour of a minor if physical possession has not been given and constructive possession has been transferred. Reliance is placed on Mst. Mahtab Elahi v. Ghulam Rasool (1987 CLC 2011), wherein it was held that in case of gift by father in favour of minor child, delivery of physical possession to done is not necessary. Mere recital of transfer of constructive possession in gift deed is sufficient. In Abdullah v. Maqbool Ahmad (1988 CLC 1633) it was held that in case of gift by grandfather in favour of grandson physical delivery of possession was not required.

14. The donor respondent No.2, Mst. Irshad Kausar was step grandmother of the parties. She transferred the property through Tamleeq to the respondent No. 1 . In such like situation the Supreme Court in judgment reported as Rabia Khatun v. Azizuddin Biswas and others (PLD 1965 SC 665) while considering the case of gift by an adoptive father in favour of minor child reached the conclusion that in such like situation formal delivery of possession to the minor was not necessary. Besides, the appellant has not been able to prove that possession was not actually delivered by the donor to the respondent No.1 .

15. The claim of the appellant that he is in possession of the property since the date of Tamleeq has not been duly established by leading sufficient evidence. As the appellant has failed to prove that the transaction was a benami sale and wrongly entered as tamleeq, therefore, he has got no locus standi to challenge the transfer of property by the respondent No.2 to the respondent No.1 through Tamleeq especially when the appellant has failed to establish any right of interest in the suit property.

16. The learned Additional District Judge was right in allowing the appeal and dismissing the suit filed by the appellant as neither the transaction being Benami has been proved nor it has been proved on the record that the Tamleek was actually a sale nor the execution of agreement dated 14.9.2000 has been proved. No illegality, mis-reading and non-reading or erroneous exercise of jurisdiction has been pointed out in well-reasoned judgment of the appellate court whereby the same could be set aside.

17. For what has been discussed above, I see no merit in the titled appeal; resultantly the same being devoid of merit is dismissed. ZC/M-82/L Appeal dismissed.