P L D 1969 Quetta 13 (PLP)

Mathura Prasad v. Mst. Anandi Kunwar 64 I C 911 and Ram Sarup v. Ram Saran and another A I R 1926 Lab. 650 (1) ref. Munawar Akhtar with Muhammad Nawaz for Appellant. S. H. Jafary for Respondents. Dates of hearing : 23rd and 24th July 1968. The appellant in this second appeal is Allah Bux and the question raised is whether he is the exclusive owner of a property bearing municipal Nos. 7‑13/17 to 21 situated on Wafa Road, Quetta. For the appreciation of the question at issue, it will be convenient to briefly refer to the relation ship between the parties and to the background of the dispute. I. One Fazal Dad died leaving three sons, namely, (1) Allah Ditta; (2) Maula Bux and '(3) Allah Bux. Fazal Dad left properties both in Quetta as well as in Gujranwala. Fazal Karim (respondent No. 1) is the son, Mst. Iqbal Begum (respondent No. 2) is the daughter and Mst. Said Bibi (respondent No. 3) is the widow of Maula Bux. The three brothers, namely, Allah Ditta, Maula Bux and Allah Bux partitioned the properties left by their father. This partition took effect under an award Exh. Q/A, dated 27‑3‑1932, given by one Syed Muhammad Shah. Under this award, the property at Quetta was given to Allah Bux and property at Gujranwala fell to the shares of Allah Ditta and Maula Bux. The award, however, was neither registered under the Registration Act nor stamped with the requisite stamp fee under the Stamp Act. It also appears that for considerably long time, that is, almost up to the time when disputes developed between the parties, no mutation entries were effected in the revenue records in pursu ance of the partition made by the said award.

2. From the evidence on record, it further appears that only one of the three brothers, namely, Maula Bux bad a continuous residence at Quetta. One Syed Yar Muhammad Shah obtained a decree at Quetta for Rs. 1,045 against the said Maula Bux. The property in dispute was attached in execution of this decree on 22‑10‑1956, whereupon Allah Bux filed objections in the Executing Court under Order XXI, rule 58, Civil Procedure Code, claiming that under the family settlement, evidenced by the aforesaid award, the disputed property was exclusively owned by him. These objections were dismissed on 21‑5‑1958 and then, on 23‑6‑1958, Allah Bux filed a declaratory suit, in which he joined, Syed Yar Muhammad Shah as defendant No. 1, and Fazal Karim; Mst. lqbal Begum and Mst. Said Bibi as defendants Nos. 2 to

3. The suit appears to have been contested by the last three defendants, who are respondents Nos. 1 to 3, and in particular by Fazal Karim, the respondent No.

1. This respondent set up the case that the disputed property was joint property of Allah Bux and Maula Bux, who had equal shares therein and that on the death of Maula Bux, these three respondents became joint owners of the property with Allah Bux. The trial Court, by judgment dated 16‑11‑1959, decreed the suit in favour of Allah Bux, the present appellant, holding that the property in question as exclusively owned by him. This finding was accepted by Syed Yar Muhammad Shah, but the first three respondents chal lenged this finding in an appeal before the District Judge, % ho by his decision announced on 17‑6‑1960 held that the award Exh. O/A being an unregistered and unstamped document, was inadmissible in evidence and consequently did not create any exclusive interest in the disputed property in favour of Allah Bux. On this conclusion, the trial Court's judgment was reversed and the declaratory suit of Allah Bux was dismissed.

3. It is the judgment of the District Judge in first appeal which is impugned by Allah Bux in the present pro ceedings and the only question which arises for determination is whether Allah Bux is the exclusive owner of the disputed property, and for the purpose of arriving at a finding on this question, it is further to be considered whether the learned District Judge acted correctly in rejecting the award Exh. O/A and other oral and documentary evidence on record on the ground of inadmissibility.

4. The learned Advocates for the parties have taken me through the record, and before giving my own view I find it convenient to refer to the evidence which both the contesting parties adduced in the trial Court. Exh. P/A to Exh. P/L are the letters written between 1947 and 1956 by Maula Bux, and later by his son Fazal Karim to the appellant or to his son Inayat Hussain. These letters show that first Maula Bux, and after his death Fazal Karim, used to collect the rent of the disputed property and remit it to the appellant. Most of these letters contain accounts of receipts of rents and expenditure incurred in payment of taxes and in repairs of the property in question. Thus, Exh. P/A, dated 6‑6‑1948 (referred to in the judgment of the trial Court but missing from the record) is Maula Bux's letter addressed to the appellant's son, Inayat Hussain, containing the account of rents for the months of March and April 1948 and seeking the appellant's permission to carry out repairs to the disputed property. Exh. P/G, dated 14‑8‑1948, also contains account of repairs carried out to the property in question. Exh. P/J is, dated 5‑12‑1948 and again contains statement of account for four months that is from August 1948 to November 1948. Exh. P/C is dated 7‑5‑1949 in which Maula Bux requested the appellant to give permission for repairs of the disputed property. Exh. P/D and Exh. P/E are dated 18‑5‑1956 and 23‑6‑1956 and are from Fazal Karim to Allah Bux and again contain the accounts of the dis puted property. All these letters show that both Maula Bux as well as his son, Fazal Karim, treated Allah Bux as the exclusive owner of the disputed property. Another relevant document on record is Exh. P/R, which is a certified copy of a Power‑of‑Attorney given on 21‑11‑1956 by Maula Bux to his son, Fazal Karim, for the purpose of causing entries in the revenue records with respect to the property in question to be changed in the name of Allah Bux as exclusive owner. Under this instrument, Fazal Karim personally appeared before the Tehsildar, before whom he made a statement that his father, Maula Bux, had received in 1944 from Allah Bux the price of one‑half of the said property and that Maula Bux had no longer any interest or right therein, and that Maula Bux's name had been appearing erroneously as joint owner in the records maintained in the Tehsil Office. On this basis, the entries in the mutation records were changed so as to show Allah Bux as the sole owner of the said property. The entries have been brought on record as Exh. P/S. Exh. P/R contains reference to a receipt or acknowledgement, dated 24‑9‑1944 by which Maula Bux purported to declare that he had received from Allah Bux the price of his share in the said property, which henceforward would belong exclu sively to Allah Bux. This document was tendered in evidence but the trial Court declined to bring it on record on the ground that it was produced at a late stage in the pro ceedings. In my opinion, however, there was no justification to reject this document. The signature of Maula Bux on this document was not denied by Fazal Karim, and since a reference was made to this document in the power‑of‑Attorney, Exh. P/R, there could be no doubt about its genuineness. The Power‑of‑Attorney, Exh. P/R, alto referred to another document, Exh. OW1/A, dated19‑9‑1954. This document which was exhibited during the trial of the case, is a rent deed between Maula Bux and Allah Bux by which Maula Bux took on rent from Allah Bux one of the five houses which are situated in the disputed property. Another docu ment of importance is Exh. LC/F, which is a sale deed, dated 10‑9‑1952, by which Maula Bux sold 3 of the 5 shops at Gujranwala. Allah Ditta and Allah Bux attested this document as witnesses. The document contains a statement on Maula Bux's part that he was owner of the shops which were the subject‑matter of the sale deed, by virtue of the partition which was effected by the award Exh. O/A.

5. In addition to the documentary evidence referred to above, there is also considerable oral evidence supporting the appellant's contention that he had been exercising dominion as owner over the disputed property. P. W. Monawar Hussain stated that he had acted as rent collector on the appellant's behalf and had collected rents from the tenants in the disputed property an the appellant's instructions. He produced postal receipts Exhs. P/2, P/3 and P/4, showing remittance of various amounts to the appellant by Monawar Hussain in the months of March, April and May 1954. The witness also stated that he paid one sum of Rs. 20 to Inayat Hussain at Quetta, being the amount collected from the tenants of the said property. P. W. Abdul Wahid, who is related to the appellant as well as to the respondents Nos. 1 to 3, also used to collect rents for some time on behalf of the appellant. According to him, he collected vent from Fazal Karim, respondent No. 1, also in 1957 for the house in the occupation of the respondent. The evidence of be respondents' witnesses does not support the case set up by the respondents. As a matter of fact, one of these witnesses, D. W. 4, Mistri Natthu, stated that he took one of the five louses situated on the said property on rent in 1955 from Fazal Karim, who instructed this witness to pay the rent to the appellant. This witness produced postal receipt D. W. 4/A showing remittance of Rs. 47‑6.0 to the plaintiff in November 1955. The brother of Allah Bux and Maula Bux, namely, Allah Ditta, was examined on commission and he unequivo cally stated in his evidence that its the award Exh. O/A the Quetta property was exclusively assigned to Allah Bux as his share in the estate of Fazal Dad. To the same effect was the evidence of the person who made the award, namely, 3yed Muhammad Shah.

6. All this evidence, documentary as well as oral, conclusively establishes that the property in dispute was exclusively owned by the appellant. But Mr. S. H. Jaffery, the learned Advocate for the contesting respondents, argued that most of this evidence should be eliminated as being inadmissible, and if so done, no evidence would be left on record to support the appellant's claim. With regard to the award Exh. O/A, the learned Advocate relied on the opinion of the Lower Appellate Court that this document, being unregistered is well as unstamped, was inadmissible in evidence and could not pass any right or interest in the said property in favour of Allah Bux. With regard to the power‑of‑attorney, Exh. P/R, Mr. Jaffery's contention was that this document was only a certified copy of the original, and had not been proved in accordance with the provisions of the Evidence Act. A like objection was taken by Mr. Jaffery to the mutation entries brought on record as Exh. P/S. In support of the respondents' contention that the disputed property was joint property of these respondents and the appellant, Mr. Jaffery placed reliance on a mortgage deed Exh. D/A, dated 6‑3‑1941. This document was executed both by Allah Bux and Maula Bux, who were described in` the body of the document as joint owners of the disputed property.

7. I have given careful attention to Mr. S. H. Jaffery's‑ arguments. However, I find myself unable to accept his reasoning or the view taken by the lower Appellate Court with regard to the admissibility of the award, Exh. O/A,. There is no doubt that this document is both unregistered and unstamped, and would ordinarily be inadmissible in evidence. But the question of the effect of this document should be considered in the light of the fact that the document is in the nature of a family arrangement and, further, in the light of the fact that all the interested parties, namely, the three sons of Fazal Dad, had acted upon this document and taken possession thereunder of their shares in their father's estate. Being in the nature of a family arrange ment, the document Exh. O/A could be treated as evidence, notwithstanding that it was neither registered nor stamped with the requisite fee under the Stamp Act. Since this document was acted upon by the three brothers, the principle of section 53‑A of the Transfer of Property Act could also be invoked in support of the appellant's claim, so that notwith standing the defects in the award, Exh. O/A, both Maula Bux as well as his heirs, that is, the respondents Nos. 1 to 3, were and are debarred from enforcing against Allah Bux any right in respect of the disputed property. For the purpose of considering whether the principle of section 53‑A of the Transfer of Property Act could apply to the case, the award could be admitted in evidence. I have already said that this award is in the nature of a family arrangement, and having been acted upon by the three brothers, would raise estoppel & against every one of them so as to prevent them from making any claim to the property which fell to the share of one or the other of the three brothers. For the purpose of consider ing whether questions of estoppel could be raised, the document could again be validly brought as evidence on record. I would therefore say that the lower appellate Court fell into error in rejecting the award Exh. O/A, as evidence on the ground that it was an un‑stamped and un‑registered document.

8. The dispute between the parties can be viewed from another aspect also. I have above referred to the Power‑of -Attorney. Exh. P/R, the mutation entries and the statement. of Fazal Karim before the Tehsildar, Exh. P/S, the rent deed dated 19‑9‑1954, Exh. OW1/A. In the Power‑of‑Attorney Maula Bux expressly acknowledged that he had received the price of his half share in the disputed property, which there fore, exclusively belonged to Allah Bux, and by the same instrument Maula Bux further authorised his son, Fazal Karim, the respondent No. 1, to cause entries in the revenue records to be changed in the name of the appellant. In pursuance of this Power‑of‑Attorney, Fazal Karim gave a statement before the Tehsildar, which has been brought on record, to the effect that the property belonged exclusively to Allah Bux. With regard to this document, Mr. Jaffery's contention is that the Power‑of‑Attorney was not properly proved and that the statements made therein and the statement made by Fazal Karim before the Tehsildar was made with intent to save the property from attachment and sale in execution of decrees against Maula Bux. As regards the proof of the Power‑of‑Attorney, no objection was raised as to its admissibility by the respondents in the trial Court. I cannot, therefore, permit the respondents to object to this document at this late stage. Moreover, Fazal Karim, in his deposition in the lower Court, admitted this Power‑of‑Attorney, and also having made a statement before the Tehsildar under the authority conferred on him by this instrument that the property in question belonged exclusively to Allah Bux. Mr. Jaffery, however, contended that the certified copy of the Power‑of‑Attorney could not have been brought on record unless notice to produce the original was given by the appellant to Fazal Karim. This argument is misconceived, because under proviso 2 of section 66, no notice to produce the original was necessary, as from the nature of the case. Fazal Karim, being in possession of the original, must have known that he will be required to produce this original. As regards the contention that the state ment in the Power‑of‑Attorney and the statement of Fazal Karim before the Tehsildar were made with intent to save the property from attachment in execution of decree from Maula Bux, it would be enough to say that if this was the real intent of Maula Bux or of Fazal Karim, then the statements were made to defraud the creditors of Maula Bux and if so, Fazal Karim cannot take advantage of his own fraud. It may here be mentioned that Fazal Karim's statement before the Tehsildar does not stand alone. In the proceedings for the execution of the decree obtained by Syed Yar Muhammad Shah, this respondent again made a statement on oath before the Executing Court that the sole and exclusive owner of the property was Allah Bux. If in fact these state ments are false, then to accept the respondent's case that they are joint owners of the disputed property with Allah Bux, would be to give to the respondents benefit and advantage of their on fraud, which however, cannot be done according to the decision of their Lordships of the Supreme Court in Mian Muhammad Saeed v. Province of West Pakistan (P L D 1964 SC 572). Such a course would contravene the well‑known principle of "Nullus commodum capere potest de injuria sua propria" (Co. Litt. 148 (b) (no man shall take advantage of his own wrong).

9. Another hurdle in the respondents' way is the estoppel raised by the conduct of Fazal Karim in causing the entries in the revenue records with regard to the disputed property to be changed in the name of Allah Bux. I would here refer to the decision of Allahabad High Court reported in Mathura Prasad v. Mst. Anandi Kunwar (64 1 C 911) and Ram Sarup v. Ram Saran and another (A I R 1926 Lah. 650 (1)). In the first of these cases, it was held that where the plaintiff deliberately, by his own act, got the name of the judgment‑debtor entered as owner of a property in the revenue records, she was estopped from plead ing that she was the owner of the property. In the Lahore case, it was held that where a person entitled to raise challenge, is present at the mutation proceedings but does not raise any objection, he cannot subsequently challenge the entries or the alienation of the property effected under these proceedings. Thus, by Exh. P/R Maula Bux expressly acknowledged that the property in question exclusively belonged to Allah Bux and authorised his own son Fazal~ Karim to have the entries in the revenue records with regard to this property changed in the name of Allah Bux. Again, by acknowledgement, dated 24‑7‑1944, which, as observed by me earlier, was wrongly rejected from evidence by the lower Appellate Court, Maula Bux expressly accepted Allah Bux as the sole owner of the property in question. Again, in the rent deed Exh. OW1/A, dated 19‑9‑1954, executed much before Syed Yar Muhammad Shah obtained decree or took execution proceedings against Maula Bux, the latter took on rent one of the five houses situated in the said property from Allah Bux. Would Maula Bux have done so if he was joint owner of the property with Allah Bux ? The answer would be clearly in the negative. Then there is the sale deed Exh. LC/F, dated 10‑9‑1952, by which Maula. Bux sold three of the five shops at Gujranwala, which fell to his share under the award Exh. O/A, in which document Maula Bux expressly stated that these shops were his by virtue of the partition effected by this award. The conduct of Maula Bux, as evidenced by all these documents, and the statement of respondent No. 1, Fazal Karim, before the Tehsildar at the time of the mutation proceedings, raise an effective estoppel against the contesting respondents, so that these respondents cannot in law claim any right or interest in the disputed property. The respondents' learned Advocate. Mr. Jaffery, contended that had Allah Bux been the exclusive owner of this property, the mortgage deed Exh. D/A, dated 6‑3‑1941 would not have been jointly executed by him and Maula Bux. This contention can be repelled in two ways firstly, the mortgage deed was signed by the two brothers jointly because till 1941 no changes were made in the revenue records either at Quetta or at Gujranwala with regard to the various properties left by Fazal Dad, and therefore the mort gagee must have insisted on the signature of Maula Bux on the mortgage deed to assure of a valid security, and secondly, the subsequent conduct of Maula Bux abundantly establishes that he had relinquished every claim, right or interest, if any, to or in the said property after the mortgage debt was satisfied. As I have already held the conduct of Maula Bux as well as the conduct of Fazal Karim, estops the respondents Nos. 1 to 3 from contesting the appellant's claim that he is the sole and exclusive owner of the property in question.

10. For the foregoing reasons, I would hold that the appellant Allah Bux is entitled to the declaration that he is the sole and exclusive owner of the disputed property. Accordingly, the judgment of the lower appellate Court, dated 17‑6‑1960 is set aside, and that of the trial Court given on 16‑11‑1959 is restored. As Syed Yar Muhammad Shah has not contested the proceedings in the High Court, the appellant is given costs only against the respondents Nos. 1 to 3 both in the High Court and in the two Courts below. S. A. H. Appeal allowed.