P L D 1962 (W (PLP)

A. S. FARUQUI, J.‑This is a regular second appeal by the plaintiff whose suit for specific performance of a contract was decreed by the Senior Civil Judge, Sheikhupura, but which decree was set aside on appeal by the judgment of Mr. Abdus Samad Khan, Additional District Judge, Lahore at Sheikhupura, in Civil Appeal No. 60 of 1955.

2. The facts relevant for the consideration of this appeal may be shortly stated. The plaintiff, Ziauddin Rafi, entered into an agreement with defendant No. 1 Muhammad Khan whereby the latter contracted to sell about fifteen kanals of land for a consideration of Rs. 1,

500. Muhammad Khan was to receive this land as his one‑third share in the estate of his grand mother, Mst. Basso, on her death. This agreement took place on 1st September 1951 and is contained in Exh. P.

1. On that date Mst. Basso was alive, but she subsequently died and this suit for specific performance of the contract Exh. P. 1 was instituted after her death. According to the allegations in the plaint, the plaintiff paid towards this transaction Rs. 1,400 and the balance of Rs. 100 was payable at the time of registration of the sale‑deed which Muhammad Khan had agreed to execute in respect of the land which formed the subject‑matter of Exh. P.

1. It was the case of the plaintiff that Muhammad Khan, in dis regard of this agreement transferred this land to defendants Nos. 3 and 4 chose relations with the plaintiff were strained. In this transfer, defendant No. 2 Arshad Khan joined because he was an heir to the other one‑third share in the property of Mst. Basso.

3. The suit was contested by the defendant No. 1 Muhammad Khan only. In his written statement, he denied the execution of the agreement and in the alternative pleaded that it was without consideration and had been brought about by fraud. It was also averred that, in any case, as on the date of the agreement the land had not devolved upon him, the plaintiff could not enforce that agreement. The following issues were framed by the first Court: ‑ (1) Did defendant No. 1 execute on 1st September 1951, an agreement to sell the land in suit to the plaintiff for Rs. 1,500 and received Rs. 1,400 as earnest money ? (2) If so, was the agreement obtained by fraud ? (3) Was the agreement valid though defendant No. 1 was not the owner of the land at the time of its execution, and is defendant No. 1 bound thereby ? (4) Is the sale of the land in dispute by defendant No. 1 in favour of defendant Nos. 2 to 4 binding on the plaintiff despite the agreement in question ?

4. The first issue was decided by the learned trial Judge in favour of the plaintiff and the answer to this issue was found in the affirmative. The finding on issue No. 2 was in the negative. On issue No. 3, the learned trial Judge found that defendant No. 1 was bound in law and in equity to perform the agreement. On Issue No. 4 he found that the second sale was subsequent to the agreement and that there was nothing to show that the vendees of this sale were not aware of the prior transaction between the plaintiff and defendant No.

1. He, therefore, held that the plaintiff was not bound by the subsequent sale. He answered issue No. 4 accordingly. On these findings, he decreed the plaintiff's suit with costs and ordered that defendant No. 1 shall specifically perform the agreement dated the 1st September 1951 (Exh. P. 1). Against this decree, the defendant Nos. 1, 3 and 4 preferred an appeal to the Court of the Additional District Judge, Lahore at Sheikhupura. The learned Additional District Judge upheld the findings of the trial Court on issues Nos. 1, 2 and 4 but he found against the plaintiff -respondent on issue No. 3 and upon that basis alone allowed the appeal which had the result of dismissing the plaintiff's suit.

5. The learned Judge of the Court of First Appeal conceded that in the Punjab the alienation of reversionary rights was not void under the Customary Law and such alienations were enforceable as section 6‑A of the Transfer of Property Act did not apply here, but he held that Muslim Personal Law applied in the matters of alienation and succession in the Punjab since March 1948 and according to the rule of Muhammadan Law the right of succession was inalienable and the chance of a Muhammadan heir‑apparent succeeding to an estate could not be the subject of a valid transfer or release. He referred to para. 54 of Mulla's Muhammadan Law in which this rule was enunciated. He, therefore, found that as Mst. Basso was alive on the date of the agreement Exh. P. 1 and Muhammad Khan had not become entitled to the property, succession to which opened after the death of Mst. Basso, "he (Muhammad Khan) had no right under the Muslim Personal Law to make such an alienation. Therefore, it could not be enforced under section 87 of the Specific Relief Act as the contract was invalid and was not enforceable." In view of his finding on issue No. 3, he accepted the appeal and dismissed the plaintiff's suit. He also made certain strong remarks against the trial Judge in respect of certain details and asked for his explanation.

6. To say the least, the learned Additional District Judge, dealt with the question involved in issue No. 3 in a most perfunctory manner. The sole basis of his decision was that Muslim Personal Law had become applicable to Punjab since March 1948 and that law did not recognise such a transfer. As to the application of the Muslim Personal Law, the learned Judge was evidently referring to the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948). But from a plain reading of section 2 of this Act it should have been clear to the learned Judge that this Act was applicable only in question relating to succession, charities and charitable institutions and charitable and religious endowments. Section 2 was amended by the Amendment Act of 1951 and the application of Muslim Personal Law was extended to other matters in preference to any rule of custom or usage. We may reproduce the amended section :‑ "Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardly family relations, wills, legacies, gifts, religious usages or institutions including wakfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims." The learned Judge was, therefore, clearly in error in invoking the assistance of the above statute for deciding the question before him which related to an agreement of sale of property and not to any of the matters which are provided for in section 2 of the said Act.

7. Coming then to para. 54 of Mulla's 'Muhammadan Law, and we are now reading from the 15th Edition of that book, it should have been noted by the learned Judge that this para. appears in Chapter VI of that book which relates to inheritance. The learned Judge merely quoted two lines of this para. which read as follows :‑ "The chance of a Muhammadan heir‑apparent succeeding to an estate cannot be subject of a valid transfer or release." But if the learned Judge had examined the case‑law which is quoted under this para., he would have had no difficulty in seeing that the decisions referred to therein had conceded the application of equitable principles whereby a person who had entered into a transaction for consideration might be held to be bound by it if he subsequently acquired a title. The notes under paragraph 54 would have also shown to the learned Judge that it was stated therein that under the Muhammadan Law an heir‑apparent might by his conduct be estopped from claiming the inheritance he had agreed to relinquish if the release was part of a compromise or family settlement and if he had benefited by the transaction. We might refer to two decisions here which find place under the notes relating to the said paragraph

54. One of the cases is Sumusuddin v. Abdul Husein (I L R 31 Bom. 165). There the learned Judges In appeal were considering the effect of section 6‑A of the Transfer of Property Act in respect of a release by an heir‑apparent who did not have a vested right in the estate on the date of the said release. They found that the principle contained in section 6‑A was in accordance with the principles of Muhammadan Law, and went on to observe as follows: ‑ "But if the chance of an heir‑apparent is neither transferable nor releaseable according to Muhammadan Law, then, as it seems to me, it is only by an application of the principle that equity considers that done which ought to be done that such a chance can, if at all, be bound." Another case noted by Mulla is an Allahabad decision Latajat Husain v. Hidayat Husain (1936 A L J 342). This was a Division Bench decision which consisted of Sulaiman, C. J. and Bennet, J. What was held In that case was this:‑ "Under the Muhammadan Law a renunciation by an heir of a future right of inheritance is not in Itself valid, and such a release or renunciation cannot be operative so as to divest the heir of all rights in the inheritance when the succession opens and to vest the whole property in the person in whose favour the relinquishment was made. But there is nothing to prevent an heir from so acting as to estop himself by his own conduct from subsequently claiming a property to which he may succeed." It would, therefore, be noticed that in both these decisions the relevant principles of equity to which we shall presently refer were still held to be applicable.

8. The principle of Muhammadan Law relating to release or transfer of a mere spes successionis is in accord with the general principle of English Law that an expectancy is not property which can be assigned. But the Courts In England have since long applied the rule of feeding by estoppel whereby the benefit of a subsequent acquisition by a grantor of an interest in land which he did not possess at the time of the grant went to the grantee when the grantor subsequently came to acquire the interest in the said land. This principle was recognised in the case of Rajapakse v. Fernando ((1920) A C 892‑897). Under the equitable principle which is contained in the doctrine "equity regards that as done which ought to be done", the Courts in England have enforced a contract against a person who had, for consideration, made a transfer In respect of a property the title to which he acquired subsequently. This principle has found statutory recognition in this country by section 18 of the Specific Relief Act, section 115 of the Evidence Act, and section 43 of the Transfer of Property Act. The relevant portion of section 18 may be usefully reproduced:‑ "Where a person contracts to sell or let certain property, having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this Chapter) has the following rights :‑ (a) if the vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest."

9. Section 115 of the Evidence Act recognises the principle of estoppel and section 43 of the Transfer of Property Act binds a transferor, who bad professedly transferred property for consideration upon a fraudulent or erroneous representation that he was authorised to make such a transfer of immovable property, when the transferor does in fact acquire an interest in such a property. Unfortunately the attention of the learned Judge was not drawn to any one of these provisions, nor to a judgment of the Federal Court reported as Ghulam Muhammad Shah v. Fateh Muhammad Shah (P L D 1955 F C 1). The learned Chief Justice Muhammad Munir, as he then was, has dealt with this question at page 8 of the report. This is what the learned Judge observed: ‑ "It is true that the Transfer of Property Act, 1882, is not in force in the Punjab and such transfers are not void in that Province by reason of any statutory rule. But the principle on which such transfers are held to be void is of wider application and rests on the rule, also recognised by English Law, that an expectancy is not property which can be assigned. There is, however, one exception to this principle, which has been enforced by the Courts in England, and here in the Provinces where the Transfer of Property Act is not in force. That exception was stated by Buckley, J. In re : Ellenborough (1903) 1 Ch. 697 at page 700, where he said : `If value be given, it is immaterial what is the form of assurance by which the disposition is made, or whether the subject of the disposition is capable of being thereby disposed of or not. An assignment for value binds the conscience of the assignor. A Court of Equity as against him will compel him to that which exhypothesi he has not yet effectually done."

10. In the case before us, it has been found by both the Courts that the respondent Muhammad Khan had agreed to transfer the land in question for consideration and that he actually received‑Rs. 1,400 towards the agreed price of Rs. 1,500 the balance of Rs. 100 being payable at the time of registration of the sale‑deed. It is true that on the day of the contract Muhammad Khan did not have the right in the property which devolved upon him on the death of Mst. Basso, But having acquired the title to the property he must be compelled to make good the contract which he had made and under which he had received the bulk of the consideration. Under the equitable, principle which has found statutory recognition, the plaintiffs' claim for specific performance of the contract must be held to belt well founded. As regards the subsequent transfer by Muhammad Khan, the finding of both the Courts is that the plaintiff- appellant was not bound by it. In fact, these alleged transferees, namely defendants Nos. 3 and 4, did not even contest the suit in the trial Court. Before us also, they remained absent. Upon the material before us, we must hold that the subsequent transfer in favour of defendants Nos. 3 and 4 (respondents Nos. 2 and 3 in this Court) did not affect the right of the plaintiff.

11. Upon the conclusions reached by us, we allow this appeal, set aside the finding of the learned Judge of the Court of First Appeal upon issue No. 3 and decree the plaintiff's suit. We hold that the plaintiff is entitled to a specific performance of the contract and the respondent No. 1 is bound to complete the transfer by executing a deed of sale in respect of the property which is the subject‑matter of the contract and which is detailed in the agreement Exh. P.

1. We order accordingly. On the failure of defendant No. 1 Muhammad Khan to perform the contract and execute the sale‑deed, we order that the Senior Civil Judge shall direct an officer of the Court to execute the required sale‑deed and get it registered. The appellant shall pay the balance of Rs. 100 and shall also bear the cost of the sale‑deed and its registration. The appellant shall have his costs throughout against respondent No. 1, Muhammad Khan. K. B. A. Appeal allowed.