P L D 1969 Azad J & K 79 (PLP)

This section incorporates the principle of part performance. Learned counsel for the appellant cited P L D 1963 S C 322 and P L D 1963 Dacca 238 and

886. It has been laid down on page 332 of the Supreme Court Judgment of 1963 S C 322 that "The Courts must lean against giving a statute retro spective operation on the presumption that the Legislature does not intend what is unjust. It is chiefly where the enactment would prejudicially affect vested rights, or impair existing contracts, that the rule in question prevails." Their Lordships also referred in this connection to page 206 of Maxwell on the Interpretation of Statutes, 11th Edition. It was laid down in P L D 1963 Dacca 238 that retrospec tive effect should not be given to statutes unless clear intention appears and that where substantive law has been altered during the pendency of action, rights of parties are to be decided according to law before the alteration unless new statute clearly varies such rights and that a statute becomes `virtually retrospective' when it renders inoperative a pre‑existing contract or covenant: It has been laid down in P L D 1963 Dacca 886 that retrospectively in case of interpretation of statutes is not to be inferred unless it clearly arises from the Act and that retrospectively is not to impair existing rights and further that vested rights cannot be affected without express provisions to that effect. Maxwell in his Interpretation of Statutes, 9th Edition, at page 223 has made the following observation "Every statute, it has been said, which takes away or impairs vested rights acquired under existing law, or creates a new obligation, creates a new duty, or attaches a new disability in respect of transactions or considerations already past, must by presumed, out of respect to the Legislature to be intended not to have a retrospective operation. Where vested rights are affected prima facie it is not a question of procedure." Sardat Muhammad Iqbal, J. held in P L D 1966 B J 19 that. "It is a well established principle of law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction. This principle, however, applies only to cases where 4 statute takes away or affects vested rights, imposes a new disability or confers a new right. In all such cases the Act is presumed not to have retrospective operation. Enactments dealing with procedure are always retrospective in the sense that their provisions will apply to proceedings already commenced at the time of their enactment." It has been laid down in P L D 1965 S C 681 that "The general principle is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending Law if the new law manifests such a necessary intend ment. With regard to procedural laws the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view." Their Lordships of the Supreme Court further laid down in this ruling that : "A statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie to all actions, pending as well as future. It is only if it be more than a mere matter of procedure, that is, if it touches a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act." It has been held by S. M. Murshed, C. J. and Abu Md. Abdulla, J. in P L D 1965 Dacca 296 that : There is a distinction between the statutes which affect a procedural change and those which affect substantive rights. The distinction is very important, because a pro cedural change comes into effect as soon as the law has come into force even in respect of proceedings which had been started prior to the date when the amendment came into effect. With regard to vested rights, various kinds of principles apply. A statute is construed as prospective and it is never presumed to be retrospective unless it has been specifically made so or the necessary implication of the enact ment leads to that conclusion. To this view a further rule may be added, namely that even with regard to a statute which is retro spective, in effect, no greater retrospection should be given to it than is necessary for the purpose of giving effect to the require ment of the relevant statute and a statute cannot be construed so as to take away a vested right unless there are express provisions of law to that effect or unless such a result follows as a necessary implication of the language in the statute. Learned counsel for the respondent has cited A I R 1936 Lah. 5 in which it was held by Rangi Lal, J. that :‑ "According to the amended Act XX of 1929, section 53‑A is intended to have a retrospective effect." The question before the learned Judge in this case was whether the doctrine of part performance applies also to leases or not and his Lordship held that it does apply to leases. The remarks of the learned Judge that `section 53‑A is intended to have a retrospective effect' was obiter dicta because this question was not in issue before his Lordship. No direct authority was cited before me on either side whether the Transfer of Property Act is a substantive law or a law of procedure. Learned counsel for the respondent relied on A I R 1936 Lah. 5 for the proposition that the Transfer of Property Act is a law of procedure. But this is not so laid down in this authority. It has only been remarked in this authority that section 49 of the Registration Act is really one of procedure. A substantive law is one that creates rights and, in my opinion the Transfer of Property Act creates rights and cannot be said to be a law of procedure, therefore, it not being a law of procedure, the case before me shall be governed by the Jammu and Kashmir Transfer of Property Act and not by the Transfer of Property Act of 1882 as it applies to West Pakistan because this Act was adapted during the pendency of the proceedings. The law in force at the time of the institution of the proceedings shall govern the case which was the Jammu and Kashmir Transfer of Property Act of 1977 (Bik.). Section 53‑A did not occur in the Jammu and Kashmir Transfer of Property Act, therefore, it would be wrong to apply the provisions of section 53‑A of the Transfer of Property Act of 1882. In considering whether section 53‑A of the Transfer of Property Act has retrospective effect or not, the question is to be considered only in reference to the circumstances which brings the provisions thereof into effect, that is to say to the filing of the suit. It is not the date of the making of the contract; but the date on which the suit is filed, that is relevant for the purpose. It has been laid down in Sir Dinshah Fardunji Mulla's Transfer of Property Act, 1956, 4th Edition at page 264 that `section 53‑A' applies to suits filed after 1st April 1930 and that this section was inserted by the Transfer of Property Act (Amendment) Act XX of 1929. So it is the clear opinion of the learned commentator that the section was not intended to be given retrospective effect. My view is and I hold accordingly that the case before me would be governed by the Jammu and Kashmir Transfer of Property Act 1977 (Bik.) which does not contain section 53‑A and that in any case section 53‑A being a substantive law would not apply to an action commenced before the coming into force of this section C and it may be remembered that it was enforced in Azad Kashmi in January 1959 whereas the suit was commenced in the year 1954. It was argued by the learned counsel for the defendant respondent that the document executed by Mst. Nooran in favour of Kaloo on 2‑12‑1951 and that the document further executed by Kaloo in favour of Mohammad Zaman on 3‑4‑52 a certified copy of which was produced by the learned counsel for the respondent in this Court and which was placed on the record because no objection to its production was raised by the learned counsel for the appellant ; rather he welcomed its production, were sale‑deeds and that their not being registered was no defect because the Azad Jammu and Kashmir Government had not set up the necessary machinery for the registration of deeds though the Registration Act was there on the statute book. He relied on P L D 1953 Azad J & K 13 in which it was held by Abdul Majid C. J. and Ch. Niaz Ahmad, J. that the necessary machinery for registration not having been provided by the Government the transactions shall be deemed valid and effective even without registration. It is uncontested that by Government Order No. 201/52 dated 14‑4‑52 the Government was pleased to appoint the Chief Justice of Azad Kashmir as the Inspector‑General of Registration and that the District Judges were appointed as Registrars though the Sub‑Registrars were appointed a bit later and both the agreements executed by Mst. Nooran in favour of Kaloo and by Kaloo in favour of Mohammad Zaman were executed before this date 14‑4‑

52. If the deeds executed by Mst. Nooran in favour of Kaloo or by Kaloo in favour of Mohammad Zaman could be said to be sale deeds then of course Haider Ali Khan has no locus stand! to come into Court. According to the principle laid down in P L D 1963 Azad J & K 13 the sale executed by Mst. Nooran in favour of Kaloo would be perfect and valid even without registration and in that case Mst. Nooran would have no title left in her which she could validly transfer in favour of Haider Ali Khan, the plaintiff appellant. But the trouble is that the documents executed by Mst. Nooran in favour of Kaloo and by Kaloo in favour of Mohammad Zaman are agreements to sell and not sale deeds. These have not been relied upon by the defendants in their written statement as sale deeds but only agreements to sell and have been held to be so by the Courts below. Even the learned counsel for the respondent did not read out the deeds before me nor did he try to show that the deeds were not agreements to sell but sale deeds. The copy of the deed executed by Kaloo in favour of Mohammad Zaman on 3‑4‑52 which has been placed on the file of this Court recites that Kaloo who secured an agreement to sell from Mst. Nooran executes a further agreement to sell in favour of Mohammad Zaman. It was argued by the learned counsel for the appellant that section 54 of the Jammu and Kashmir Transfer of Property Act defines that a contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties, but no such contract shall be valid, unless it is in writing and signed by the parties; and that it does not, of itself, create any interest in or charge on such property. Section 54 of the Jammu and Kashmir Transfer of Property Act differs from section 54 of the Transfer of Property Act, 1882 which is now in force though it does not apply to the present case. This section describes a contract for sale as a contract that a sale of such property shall take place on terms settled between the parties and it does not, of itself, create any interest in or charge on such property. Section 54 of the Jammu and Kashmir Transfer of Property Act provides that no contract of sale shall b; valid unless it is in writing and signed by the parties. The condition that it shall be signed by the parties does not occur in section 54 of the Transfer of Property Act of 1882. Relying on section 54 of the Jammu and Kashmir Transfer of Property Act, learned counsel for the appellant argued that no charge could be created on the suit land because the contract for sale was not signed by both the parties in both the cases. He admitted that it may be said that Haider Ali Khan, the plaintiff, had notice of the transaction catered into between Asst. Nooran, the owner of the land, and Kaloo because he was a marginal witness to the document and was also the Mukhtar of Mst. Nooran in the action brought by her against Kaloo claiming rescission because she had not been paid but he argued that it could not be said that Haider Ali Khan had notice of the transaction entered into between Kaloo and Mohammad Zaman therefore, no charge could have been created on the suit land. Here it would be necessary to refer to the statement of Haider Ali Khan which was recorded before the framing of the issues. He had admitted that Mst. Nooran had executed an agreement to sell and mortgage the suit land in favour of Kaloo and that the agreement had been reduced to writing and that Mst. Nooran had brought a suit against Kaloo alleging that she had not been paid the considera tion, therefore, the agreement to sell should be rescinded axed that he was the Mukhtar of 1llst. Nooran in this suit. He further admitted that during the pendency of the suit Kaloo had executed an agreement to sell and mortgage the suit land in favour of Mohammad Zaman and that during the pendency of the suit Mst. Nooran had sold the land in his favour saying that since Kaloo had agreed to transfer the suit land to Mohammad Zaman, therefore, there was no dispute now left with Kaloo and that he (Haider Ali Khan) should now take the suit land whereafter Haider Ali Khan got Mst. Nooran's suit dismissed for default. Section 55 subsection (6) (b) of the Jammu and Kashmir Transfer of Property Art provides that the buyer is entitled unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him to the extent of the seller's interest in the property. Haider Ali Khan had knowledge not only of the agreement to sell executed by Mst. Nooran in favour of Kaloo but had also knowledge of the further agreement to sell executed by Kaloo in favour of Mohammad Zaman. Therefore, Mohammad Zaman the buyer would be entitled to a charge on the property as against the seller and all persons claiming under him and Haider Ali Khan is a person claiming under the seller Mst. Nooran, therefore, the charge has been validly created. It was next argued by the learned counsel for the respondent that the rule of `lis pendens' incorporated in section 52 of the Transfer of Property Act is a bar to a valid transfer made in favour of Mohammad Zaman. Section 52 provides that during the pendency in any court having authority in the State of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the right of any other party thereto under any decree or order which may be made therein except under the authority of the Courts and on such terms as it may impose. The pendency in Court of any snit or proceeding in which any right to immovable property is directly and specifically in question is a bar to the transfer of the property in favour of any other person but the essential condition is that in the pending suit any right to immovable property should be in question. Section 54 of the Jammu and Kashmir Transfer of Property Act, which applies to the case, provides that a contract for sale which is not signed by the parties shall not be valid and that a contract for sale does not, on itself, create any interest in or charge on such property. It is a well understood rule of law that an agreement to sell does not create any right or title in the person in whose favour the agreement to sell has been executed. The owner can rescind the contract and sue for possession within 12 years, unless the person in whose favour the agreement to sell has been executed has already within the prescribed period of limitation brought a suit for specific performance of the contract. Mere Agreement to sell does not create any right or title in the person in whose favour the agreement to sell has been executed, therefore, the rule of 'lis pendens' would not apply in such cases. In any case, if the rule of `lis pendens' applies, it would apply also against Mohammad Zaman because according to the statement of Haider Ali Khan which has been relied upon by the learned counsel for the respondent, Kaloo had executed an agreement to sell in favour of Mohammad Zaman during the pendency of the action brought by Mst. Nooran against Kaloo in which she claimed the rescission of the contract. Towards the end the learned counsel for the respondent tried to argue that some 6 or 7 necessary issues had not been struck but no such plea had been raised in the trial Court or in the lower appellate Court and no cross‑objections had been taken even in f this Court, therefore, the learned counsel was not allowed to raise this plea at this late stage. Haider Ali Khan's appeal is accepted and setting aside the judgment and decree of the lower appellate Court, the posses sional decree passed by the trial Court in his favour is restored but it shall be conditional on his paying Rs. 350 to Mohammad Zaman, the charge created by the trial Court is also upheld. Since the question of the application of section 53‑A was raised by the lower appellate Court, I leave the parties to bear their own costs of this Court. This judgment shall also cover Civil Appeal No. 12 of 1968, date of institution 2‑3‑1968, entitled "Haider Ali Khan v. Muhammad Zaman and others", in which the parties are the same though the land is different. In this appeal land survey N3s. 71, 72, 128, 158, 480, 153/2,172 and 166measuring 37 kanals and 8 marlas situated in village Sharian is involved. The Sub‑Judge, Muzaffarabad, had by his judgment dated 31‑12‑62 decreed the plaintiff's suit subject to the creation of a charge of Rs. 403 on the suit land which was to be paid by the plaintiff to Mohammad Zaman, the defendant. The learned District Judge had by his judgment and decree dated 15‑11‑1967 set aside the possessional decree passed in favour of the plaintiff on the ground that section 53A was a bar to the passing of the decree in favour of the plaintiff. Learned counsel for the parties while arguing Civil Appal No. 13 of 1968 did not touch upon Civil Appeal No. 12 stating that the point involved in both the appeals were the same though the land was different. Civil Appeal No. 12 of 1968 instituted on 2‑3‑1968 is also accepted and sating aside the judgment and decree of the District Judge dated 15‑11‑1967 the decree passed in favour of the plaintiff' by the trial Court is restored conditional on the payment of Rs. 400 to Mohammad Zaman, the charge created by the learned trial Judge, is upheld. A copy of this judgment shall be placed on File No. 12 of 1968. A. E./S. A. H. Appeal accepted.