P L D 1970 B J 5 (PLP)

(5) Relief.

5. After having considered the evidence adduced by the parties, the learned trial Judge found issues Nos. I and 4 in favour of the plaintiff--respondent. In view of his above finding rile his judgment and decree the learned Senior Civil Judge decreed the suit principally on the ground that the sale was hit by section 54 of the Transfer of Property Act on account of its non‑registration.

6. Feeling aggrieved, on 12‑12‑1964 the defendant --appellants filed an appeal before the Additional District Judge against the trial Court's finding on issues Nos. 2 and 3 and simultaneously with it the plaintiff‑respondent also filed cross objections in respect of the findings on issues Nos. 1 and

4. Vide his judgment dated 8‑12‑1964 the learned Additional District Judge dismissed the appeal as well as cross‑objections giving rise to the present regular second appeal.

7. Learned counsel for the appellants raised the following contentions before me: --‑ (1) That section 5‑l of the Transfer of Property Act did not apply to the Bahawalpur State and as such there wag no question of the sale being hit by this provision on account of its non‑registration being oral in nature. (2) that the suit being one for declaration under section 42 of the Specific Relief Act which is a discretionary relief, it should not have been granted to the plaintiff‑respondent who had come to the Court with unclean hands and by his conduct had disentitled himself to the grant of this equitable relief on the basis of the maxim "he who seeks equity must do equity." Reliance was placed in this regard on Seeni Chattiar v. Santhanathan and others I L R 20 Mad. 58, Basheshar Nath and others v. The Municipal Commitree, Moga A I R 19‑10 Lah. 69, Haji Nur Muhammad v. Ghulam Masih Gill P L D 1965 B J 1, Dr. A. N. M. Mahmood v. Dr. M. O. Ghani, Vice Chancellor and others P L D 1967 Dacca 71 and Seth Narainbhai Iehharam Kurmi and another v. Nashada Prasad Sheosahai Pande and others A I R 1941 Nag. 357. (3) That on the basis of another maxim of law "no man shall take advantage of his own wrong", the suit of the plaintiff respondent being tainted with fraud, it should not have been decreed. Reliance was placed on Mian Muhammad Saeed and another v. The Province of West Pakistan and others P L D 1964 S C 572 and Mian Allah Baksh v. Fazal Karim and others P L D 1969 Quetta 14. (4) That yet another legal maxim of part delicto could also be appropriately and justifiably invoked against the plaintiff respondent w ho being equally at fault for the non‑registration of the sale could not have taken precedence over the defendant--appellants, who were in possession of the land and as such could claim preference over him. Reliance was placed on Raja and others v. Karam Ali and others P L D 1951 Lah. 177, Qadir Bakhsh v. Hakam A I R 1932 Lah. 503, Puvvada venkata Subbavva v. Attar Sheikh Mastan A I R 1949 Mad. 252 and Sundrabai Sitaram and another v. Manohar Dhondu A I R 1933 Born. 262.

8. As regards the first contention, learned counsel for the appellants was fully conscious of Haji Nur Muhammad v. Ghulam Masih Gill (P L D 1965 B J I) an authority which presented a formidable hurdle for him, but nevertheless raised the same contentions which were raised before and overruled by my learned brother S. A. Haq, J. who delivered the judgment, in the above case. It was half heartedly argued that since the object of Central Laws (Statutory Form) Ordinance, 1960, Central Ordinance (XXI of 1960) was to harmonize the laws in all parts of the newly integrated Province of West Pakistan and to ensure their uniformity as far as possible and yet notwithstanding this the transfer of Property Act had not as such been made applicable to the former Province of Punjab and other parts of West Pakistan, it could be inferred there from that its extension to the area comprising the former Bahawalpur State was not visualized either. In the case before my learned brother Anwarul Haq, J. of which the facts are almost identical, is was admitted before his Lordship on behalf of the appellant that the Transfer of Property Act was applied to the former State of Bahawalpur by a Notification issued in 1931. It was further conceded that the area comprising the former State of Bahawalpur did not fall within the ambit of subsection (2) of section 3 of Central Ordinance XXI of 1960 which came into play only when the operation of any Central Act or Ordinance, had been extended, by an amendment indicated in the Second Schedule, to any area which before the 14th of October 1955 formed part of the territories of an acceding State. Section 3(2) of Ordinance XXI of 196() reads as follows :‑ "Nothing in subsection (1) shall be deemed to extend, or to have had the effect of extending the operation of, any Central Act or Ordinance so extended or amended to‑ (a) any Scheduled District to which, immediately before the fourteenth day .of October 1955, such Act or Ordinance did not extend, or is not otherwise extended or applied thereafter ; or (b) any of the Special Areas to which, immediately before the fourteenth day of October 1955, such Act or Ordinance did not extend, or is not otherwise extended or applied thereafter ; or (c) any Acceding State, not being an Acceding State incorporated, on and from the fourteenth day of October 1955, into the Province of West Pakistan, whose Instrument of Accession does not authorize, nor is deemed to authorize, the Federal Legislature to make for that State such law as is contained in any such Act or Ordinance ; Nor shall the extension of any Central Act or Ordinance by this Ordinance be deemed to have or ever to have had the effect of retrospectively creating any offence, or of retrospectively enhancing the punishment for any offence provided in any law for the time being in force." According to his Lordship, the effect of the relevant amendment given in the Second Schedule under the heading "The Transfer of Property Act" was that this Act had not yet been extended to the whole or any part of West Pakistan. Consequently, the provisions contained in section 4 of the Ordinance resulting in the repeal of a corresponding provision did not apply to Bahawal pur. Section 4 reads as follows:‑ "Section

4. Repeal and re‑enactment of certain laws in force in certain Acceding States before their incorporation into West Pakistan.‑(I) Subject always to the provisions of subsection (2) of section 3 where the operation of any Central Act or Ordinance has been extended by any amendment indicated in the Second Schedule to any are which, before the fourteenth day of October 1955, formed part of the territories of an Acceding State, any law in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed, and shall be deemed to have been re‑enacted by such Act or Ordinance, as amended by this Ordinance, as if such law were a Central Act and the provisions of the General Clauses Act, 1897 (X of 1897), shall apply accordingly. (2) Notwithstanding the provisions of subsection (1), anything done, action taken, right, accrued, or liability, penalty, forfeiture or punishment incurred, under any such law as aforesaid during the period commencing on the fourteenth of this Ordinance shall be deemed to have been validly done, taken, accrued or incurred, as the case may be, and the Central Act or Ordinance, by which such law is deemed to have been re‑enacted shall, to that extent, be deemed not to have come into force during the said period in the area to which such law applied immediately before the commencement of this Ordinance." As a result of this discussion, it was held by his Lords'‑lip that the law corresponding to the Transfer of Property Act previously operating in the former Bahawalpur State did not stand repealed and since section 54 of the Transfer of Property Act was made applicable in 1931, for the non‑substitution of a fresh provision, the former continued to remain intact. I am in respectful agreement with the view expressed by his Lordship.

9. Learned counsel could not cite an authority to the contrary and as such the contention stand repelled.

10. This brings me to the second contention that a declara tion sought under section 42 of the Specific Relief Act being a discretionary relief should not have been granted to the plaintiff who had come with unclean hands. The earlier authority of my learned brother S. A. Haq, J., applies with full force. The facts of that case as stated earlier were almost identical with those of the instant case. The factum of the transaction of sale and the payment of consideration stood proved but the sale was held to be void on the ground that being unregistered it was bit by section 54 of the Transfer of Property Act. Taking all the relevant circumstances into consideration and placing reliance on Sohna v. Allahdad and another (P L D 1962 B J 17), Seeni Chettiar v. Santhanam Chettiar and others ((1896) 20 Mad. 58), Bishesher Nath and others v. Municipal Com mittee, Moga (A I R 1940 Lah. 69) his Lordship accepted the appeal on the equitable consideration that the respondent had come to the Court with unclean hands, had been guilty of fraud and as such could not be allowed to take advantage of his own sharp‑practices. In the instant case while denying the factum of sale or the receipt of the sale‑price, the plaintiff‑respondent had taken the position that, in fact, he had leased out the land to the defendant‑appellants from 1955 to 1960 for an annual cash rent of Rs. 1,100 wrongly mentioned as Rs. 11,000 in the judgments of the Courts below. He further alleged that on 5‑7‑1960, he removed a Shisham tree from the property in dispute when one of the defendants, Ghulam Yasin lodged a report against him under section 379, P. P. C. and it was then revealed to him for the first time that the defendant appellants had got a mutation of sale sanctioned in their favour. I have already referred in the earlier part of the judgment to the shifting of ground on the part of the plaintiff, respondent when after having filed a suit for declaration in the first instance claiming to be in possession, he later sought amendment of the plaint alleging that during the pendency of the suit, he had been forcibly dispossessed by the defendant‑appellants. This allegation was found to be utterly false and baseless and Malik Lehrasap Khan, the then Administrative Civil Judge vide his judgment dated 19‑4‑1962 dismissing the respondent's suit had clearly and categorically held that in point of fact the plaintiff‑respondent was never in possession of the suit‑land. Sections 42 and 56 of the Specific Relief Act deal respectively with suits for declaration and injunction, both being discretionary and equitable relief s. The principle laid down in section 56 (j) rests on the maxim that he who seeks equity must do equity and should come with clean hands. Although the relevant provision which embodies this principle apparently appears to have been made only in regard to a suit for injunction, but in a chain of judicial pronouncements the principle has been equally found to be applicable to declaratory suits. The following observation made in Gadadharadoss Vavaji v. Suryanarayana Patanaik and others, a Division Bench authority which was also cited with approval by my learned brother S. A. Haq, J., may be reproduced with advantage: --‑ "In these circumstances, the plaintiffs conduct seems to be unfair and inequitable within the meaning of the authorities on the point. Whilst refusing an injunction on the above ground, it would not be a sound exercise of the discretion, vested in the Court under section 42 of the Specific Relief Act, to grant the plaintiff the other relief claimed, namely, declaration of his title to the trees." In S. M. Zahiruddin and others v. Muhammad Ghyasuddin Ahmad and others (P L D 1967 Dacca 761) placing reliance on Aziz‑ur‑Rahman Chowdhary v. M. Nasir‑ud‑Din and others (P L D 1.965 S C 236), the learned Judge observed "It is not a matter of absolute right to get a declaratory decree. It is discretionary with the Court to grant it or not and in every case the Court is to exercise a sound judgment as to whether it is reasonable or not under the circumstances of the case to grant the relief asked for. Where the conduct of the plaintiffs indicates that the suit is filed for some other motive and not in good faith, the Court is entitled to refuse to exercise its discretion in favour of the plaintiffs." Seth Narainbhai Ichhara Kurmi and another v. Nashada Prasad Sheosahai Pande and others is also to the same effect. It was held in this D. B. authority that no equitable relief such as a declaration would be granted when the plaintiff is shown to have acted fraudulently.

10. As a result of the above discussion, I am convinced that notwithstanding the application of section 54 of the Transfer of Property Act, the plaintiff‑respondent was not entitled to seek assistance of this Court because of his unfair dealing and fraudulent conduct and on that score alone, the appeal should succeed.

11. Coming now to the next contention based on the maxim Nullus commodum capere de injuria sua propria (no man can take advantage of his own wrong), I am afraid, the maxim could not be attracted to the facts of the instant case. At the time of the execution of the sale the position seems to be that with a view to avoid expenses of registration both the parties by mutual agreement decided to have recourse to an oral transaction. As such, both being equally at fault, it cannot be said with any justification that one was trying to take undue advantage of his own wrong. In Mian Muhammad Saeed and another v. The Province of West Pakistan and others, the position was quite distinguishable. The predecessor‑in‑interest of the appellants before their Lordships had got his caste changed from Rajput Minhas to Shaikh in the revenue papers. They then mortgaged their land to certain Sikh non‑agriculturist and later sold the same to the mortgage. The successors‑in‑interest of the vendors again succeeded in getting their former caste of Rajput Minhas restored in the revenue record, and then proceeded to recover the land from the Rehabilitation authorities, the vendees in the meantime having migrated from Pakistan. It was held by their Lordships of the Supreme Court that in the circumstances of the case the appellants were in fact trying to take advantage of their own fraud in contravention to the well‑known principle embodied in the legal maxim. Mian Allah Bakhsh v. Fazal Karim and others is based on the above authority of the Supreme Court. In this case before my learned brother Nur‑ul‑Arfin, J., the question was whether the appellant was the exclusive owner of the property in question situated within the Municipal limits of Quetta in which share was now claimed by the other legal heirs of his deceased father. The earlier property had been partitioned an the basis of a family arrangement between the parties. A part of the property was attached in execution of a decree whereupon only the appellant filed objections claiming that under the family arrangement, the disputed property was exclusively owned by him. This claim of exclusive ownership was contested by his brothers and sisters and a declaratory suit of the appellant though decreed in the first instance was dismissed in appeal by the District Judge. While taking into consideration other relevant evidence which negatived the claim of the appellant, his Lordship also took into account his previous statement on oath that be had nothing to do with this property which belonged to his other relations. It was in this context that the maxim under discussion was relied upon by his Lordship that no one could take advantage of his own fraud. In my humble view, the maxim cannot he attracted with much force to the circumstances of the case before me. It could perhaps be taken as a ground in support of the disentitlement of the plaintiff‑respondent to the grant of a discretionary relief on other equitable considerations, but it was certainly not a case of taking undue advantage of one's fraud justifying the invocation of the maxim.

12. This brings me to the last contention based on the maxim of pari delicto, the principle being that where both the parties are equally at fault, the law would help the one who is in possession. As regards the application of maxim of part delicto, I am of the view that the principle embodied therein is not directly but only collaterally applicable to the facts of the instant case. The authorities relied upon by the learned counsel, namely, Qadir Bakhsh v. Hakam, Puvvada Venkata Subbayya v. Attar Sheik Mastan and Sundrabai Sitaram and another v. Manohar Dhondu pertain to litigation between a Benamidar, i.e. an ostensible purchaser or mortgagee and the real beneficiary. Since, before the abrogation of the Alienation of Lands Act, benami transac tions were commonly resorted to by members of the non agriculturist tribes with a view to evade the provisions of the Act, it often gave rise to this kind of litigation between the benamidar and the beneficiary. In such cases both being otherwise equally at fault and sailing in the same boat, the man in possession was held to be in an advantageous position. In Raja and others v. Karam All and others, it was held by a D. B. consisting of eminent Judges of this Court, one of whom retired as Chief Justice of Pakistan, and the other as Chief Justice of this Court (S. A. Rahman and M. R. Kayani, JJ.) it was held by their Lordships in a suit for possession that both being equally at fault, the law would help the one in possession. Admittedly, the defendant‑appellants are in possession of the suit‑land and as such from this point of view also they stand on a better footing.

13. Perhaps, being conscious of the fact that he was on a weak wicket, learned counsel for the plaintiff‑respondent in answer to the second contention relating to the discretionary nature of a relief under section 42 of the Specific Relief Act and particularly defending the consequential nature of his relief for possession relied on Sohna v. Allahdad and another, Mst. Zeb‑un -Nisa and others v. Ch. Din Muhammad and others (A I R 1941 Lah. 97) and Kalu Ram v. Babu Lai and others (A I R 1932 All. 485) to show that the relief of possession was not discretionary being an independent relief. It appears that the learned counsel did not realize the self‑destructive implication of this argument. In the first instance, it cannot be dis puted that the relief for possession which certainly is independent in nature could not be claimed by way of a consequential relief but by filing a separate suit. It was for this reason that the learned Administrative Civil Judge did not grant him permission to amend his plaint. Even otherwise the authorities relied upon by him deal with the question of payment of court‑fee which could not be evaded by dexterously having recourse to a disguised form of suit which in substance amounts to a suit for possession though framed in the form of a declaratory suit with a view to evade payment of full court‑fee. The authorities are obviously irrelevant having no bearing whatever on the facts and circumstances of this case.

14. It was next contended on behalf of the plaintiff that in view of the statutory provisions of section 54 of the Transfer of Property Act, no equitable or legal maxim could be invoked to override the same. It may be observed, as discussed earlier, that the basic statutory provision contained in section 42 of the Specific Relief Act makes the grant of relief discretionary for the Court and legal and equitable maxims have been invoked only to show that the plaintiff‑respondent had forfeited the assistance of the Court in exercise of its discretionary power. The argument is, therefore, misconceived and stands repelled.

15. An equally misconceived contention was sought to be raised on the basis of section 153‑A of the Transfer of Property Act which laid down certain conditions for the application of the principle of part performance. In fact the principle cannot be pressed into service for the obvious reason that it applied only to transactions which have been reduced into writing, signed by the parties.

16. The upshot of the discussion, therefore, is that the appeal is allowed resulting in the dismissal of the suit with costs throughout. S. Q, Appeal allowed.