2003 PLP 327 (SCMR)

Respondents Nos. 1, 2, 6 to 9: Ex parte (in both Appeals). M. Ismail Qureshi. Advocate Supreme Court/Advocate‑on‑Record for Respondents (in both Appeal). Date of hearing: 3rd October, 2002. SARDAR MUHAMMAD RAZA, J.‑‑‑Ali Rehman son of Juma Khan of Malakand has filed this regular appeal against the judgment dated 14‑11‑1994 of a Division Bench of Peshawar High Court whereby, on acceptance of the appeal of the opposite‑party, his suit decreed by Senior Civil, Judge Malakand at Batkhela on 22‑10‑1992, was dismissed.

2. Fazal Mehmood respondent was admittedly an owner of the house disputed between the parties and situate at Baizogaro Dag, Malakand. According to Ali Rehman plaintiff/appellant, the suit house was sold by Fazal Mehmood in favour of Ali Rehman for a sum of Rs.60,000 on the basis of two agreements dated 1‑5‑1985 and 14‑7‑1985. The occasion to file the suit arose because fazal Mehmood through a registered deed dated 3‑1‑1987 had transferred the same in favour of his wife Mst. Sherin Taj in lieu of dower and thereafter the wife had obtained a sum of Rs.60,000 as loan from House Building Finance Corporation.

3. The defendants, including House Building Finance Corporation, contested the suit and after framing numerous issues and recording of evidence pro and contra, the learned Senior Civil Judge decreed the suit, which on appeal was dismissed by the Hon'ble High Court.

4. At the time of execution of agreement dated 1‑5‑1985 Fazal Mehmood had. received 20 Tolas of gold ornaments equivalent to Rs.20,000 while at the time of execution of deed dated 14‑7‑1985 he had received another sum of Rs.40.000. So far as the receipt of aforesaid amount is concerned, it is admitted by Fazal Mehmood but his stance was that it was obtained not as a consideration for house but as a simple loan the interest whereof used to be paid by him at the rate of Rs.300 per month and in lieu whereof the house in question was mortgaged. That the defendant in due course had paid back an amount of Rs.34,400 and asked Ali Rehman to return the relevant documents but the latter refused to do so and instead sued Fazal Mehmood on the basis of the aforesaid agreements which were forged in order to give the transaction a colour of sale.

5. The High Court while non‑suiting the plaintiff was of the view that though the receipt of Rs.60,000 is admitted by the defendant yet the plaintiff had failed to prove the deeds to be of sale. The substantial failure in this behalf was pointed out as the non‑confrontation of the alleged signatures of Fazal Mehmood with the executant at the time when he appeared in the witness‑box. The most important reason that prevailed with the High Court was that both the agreements relied upon by Ali Rehman plaintiff being admittedly unregistered, did not confer any title under section 49 of the Registration Act. The High Court also refused to give benefit to the plaintiff under section 53‑A of the Transfer of Property Act, on the authority of this Court judgment in Habibur Rehman and another v. Mst. Wahdania and others (PLD 1984 SC 424), where it was held that no equitable doctrine including the one contained in section 53‑A of the Transfer of Property Act can override the specific provisions of section 49 of the Registration Act and that no document required to be registered can confer title to immovable property in case it was unregistered.

6. After examining the provisions of two independent laws, we are of the view that if the equitable doctrine contained in section 53‑A of the Transfer of Property Act is not followed in the given circumstances, it would render section 53‑A of the Transfer of Property Act as redundant. This cannot be the intention of Legislature because the Legislature is not supposed to enact a law which becomes redundant from the very date of its enactment and that at the time of insertion of section 53‑A of Transfer of Property Act the Legislature was not aware of the existence of section 49 of Registration Act. We believe that section 53‑A evolving in equitable doctrine cannot become redundant provided the conditions laid therein are duly fulfilled in the circumstances of each case. It was in this background that this Court in case of Naib‑Subedar Taj Muhammad v. Yar Muhammad Khan (1992 SCMR 1265) and while discussing the case of Habibur Rehman (PLD 1984 SC 424) rightly held that the equitable doctrine embodied in section 53‑A of the Transfer of Property Act is fully applicable provided. certain conditions laid down in the section itself are fulfilled. For facility of reference section 53‑A of the Transfer of Property Act is reproduced below: "53‑A. Part performance. ‑‑‑Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then, notwithstanding that the contract, ,though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

7. A close perusal of the section would clearly indicate that in order to derive benefit thereof, a party concerned must prove:‑‑ (a) that a contract was in writing signed by the transferor in respect of any immovable property; (b) that from the body of the agreement or contract the transfer can be ascertained with reasonable certainty; (c) that in part performance of the contract the transferee has taken possession of the property or any part thereof or if he already was in possession, he continues to be in possession in part performance of the contract and had done some act in furtherance of the contract; (d) that the transferee has performed or is willing to perform his part of the contract.

8. If all the conditions aforesaid are satisfied, the transferor or any person claiming under him cannot enforce any right in respect of that property of which the transferee has taken possession except a right which a transferor is entitled to enforce by virtue of that contract.

9. As stated earlier, the High Court has rightly held that the execution Of two agreements could not be proved by proving the signatures of the transferor, for, he was not confronted in the witness‑box with the alleged signatures. We believe that the first necessary ingredient of section 53‑A remained unfulfilled.

10. The most important ingredient of section 53‑A of the Transfer of Property Act is the transfer of possession in favour of the transferee. If such pronounced and tangible act of transfer of physical possession is in favour of the transferee, the equity must favour him and he be allowed to defend his possession even on the basis of an unregistered deed. To the hard luck of the transferee, we may say. he had failed to obtain physical possession of the F disputed house. The non‑delivery of possession is rather conceded by the transferee Ali Rehman. His case was that the possession remained with the transferor because of the latter's induction as tenant. We may mention at the cost of repetition that the execution of deed to hand is not proved in accordance with law. The transferee cannot derive any benefit from the present deeds so as to gain any benefit from section 53‑A of the Transfer of Property Act. He could have got executed a regular rent deed from transferor Fazal Mehmood but that too he failed to obtain. In the circumstances of the resent case where the transferee has failed to obtain the physical possession of the property, he cannot gain any benefit of section 53‑A of the Act. Two important ingredients of section 53‑A are missing. We, therefore, hold that not on legal side but on factual side the application of section 53‑A cannot be claimed by the plaintiff/transferee. On legal side we hold that the benefit of equitable doctrine embodied in section 53‑A can be derived by a party provided all the ingredients of section 53‑A are factually proved.

11. In view of the above circumstances and in view of the factual background of the case, the impugned judgment of the High Court is upheld. There being no merit in the appeal, it is hereby dismissed. As the two agreements in question have finally been declared unenforceable, the plaintiff/appellant becomes vested with a right to sue for the recovery of amount. M.B.A./A‑355/S Appeal dismissed.