Mohammad Fasih v. Munir Khan — 1986 DIGILAW 868 (ALL)

JUDGMENT N. D. Ojha, J. - This is a defendant's second appeal against the judgment and decree dated 16-4-197 1, passed by the Civil Judge, Basti, decreeing the suit of the plaintiff- respondents for specific performance of a contract of sale dated 30-4-1968, and directing the appellant to execute a registered sale deed in favour of the plaintiffs in respect of the property in suit within a period of two months on receipt of Rs. 15,625/-. 2. The case of the plaintiff-respondents was that the appellant entered into an agreement with them on 30-4-1968, to sell certain plots for a sum of Rs. 60,000/- and executed a registered agreement in this behalf. According to them a sum of Rs. 13,000/- had been paid by them to the appellant prior to the execution of the agreement and another sum of Rs. 7,000/- was paid to him at the time of the registration of the agreement before the Sub-Registrar. Their case further was that from time to time thereafter they made several other payments also to the appellant in the sum of Rs. 25,685/- so that the total amount paid by them to the appellant came to Rs. 45,685/-. In regard to the balance of Rs. 14,315/- of the sale consideration of Rs. 60,000/- the case of the respondents was that they were all along prepared to get the sale deed executed on payment of the said sum of Rs. 14,315/- but since the appellant did not execute the sale deed the suit for specific performance had to be filed. They averred that they were prepared to pay the balance of Rs. 14,315/- and prayed for a decree for specific performance of the aforesaid agreement being passed in their favour on payment of Rs. 14,315/-. 3. The suit was contested by the appellant inter alia on the grounds that the property which was the subject matter of the contract of sale was wakf property and was inalienable, that indeed he had only taken a loan of Rs. 7,000/- under the aforesaid agreement and the said sum of Rs. 7,000/- or any further sum to be advanced by the respondents up to a maximum of Rs. 53,000/- was to be recovered by the respondents as a simple debt. 7,000/- under the aforesaid agreement and the said sum of Rs. 7,000/- or any further sum to be advanced by the respondents up to a maximum of Rs. 53,000/- was to be recovered by the respondents as a simple debt. According to him the agreement in question was a simple money bond and the suit for specific performance of the aforesaid agreement treating it to be a contract of sale was not maintainable. His case further was that the sum of Rs. 13,000/- said to have been paid to him prior to the execution of the agreement was never paid to him and the entry in this behalf was fictitious. In regard to the payments of Rs. 25,685/- said to have been paid by the respondents to him subsequent to the execution of the sale deed from time to time his case was that only a sum of Rs. 24,375/- had been received by him and that too was paid to him by Mohibullah Khan, the elder brother of respondent 1 and the husband of respondent 2, on behalf of the business concern M. B. Kanchwala towards certain business transactions. 4. After framing the necessary issues on the basis of the pleadings of the parties and considering the evidence produced by them the trial court inter alia held that the agreement dated 30-4-1968, had been executed by the appellant knowing it to be an agreement of sale of the properties stated therein, that Rs. 13,000/- had been paid to the appellant before the execution of the said agreement and another sum of Rs. 7,000/- was paid at the time of the execution of the agreement before the Sub-Registar. As regards the payment of Rs. 25,685/- after the execution of the aforesaid agreement the trial court held that the respondents had failed to prove payment of Rs. 1310/- to the appellant out of the aforesaid sum and that only a sum of Rs. 24,375/- had been paid to him. In regard to this sum the trial court disbelieving the appellant's version accepted the respondents' assertion that the said sum was paid not towards any business transaction but towards the agreement dated 30-4-1968. The trial court, however, recorded a finding in favour of the appellant on his plea that the properties which were the subject matter of the agreement dated 30-4-1968, were wakf properties. The trial court, however, recorded a finding in favour of the appellant on his plea that the properties which were the subject matter of the agreement dated 30-4-1968, were wakf properties. Even so the trial court held that the appellant having entered into a contract of sale with the respondents was bound by the said contract and was consequently liable to execute the sale deed of the properties mentioned in the said agreement. On these findings the suit of the respondents was decreed in the manner already stated above. 5. It was urged by counsel for the appellant that on the finding recorded by the trial court itself that the property which was the subject matter of the agreement was wakf property, the suit for specific proformance of the contract of sale was liable to be dismissed inasmuch as the said property being wakf property was inalienable. According to him the agreement was void and unenforceable. For, the respondents on the other hand it was urged that the property was not wakf property. In other words the respondents challenged the correctness of the said finding to support the decree passed in their favour. 6. Having heard counsel for the parties and gone through the relevant material on record in regard to this issue we are of opinion that the finding recorded by the trial court that the property in question is a wakf property is unassailable. It is true, as has been asserted by counsel for the respondents, that no wakf deed as such had been filed on behalf of the appellant to indicate that the property in question was wakf property. In our opinion, however, this circumstance is of little consequence. Section 183, Principles of Mahomedan Law by D. F. Mulla, provides that a wakf may be made either verbally or in writing. It is not necessary to constitute a wakf, that the term "wakf" should be used in the grant, if from the general nature of the grant itself such a dedication can be inferred. Where it is not clear whether a grant constitutes a wakf, the statements and conduct of the grantee and his successors, and the method in which the property has been treated, are circumstances which, though not conclusive, are worthy of consideration. Where it is not clear whether a grant constitutes a wakf, the statements and conduct of the grantee and his successors, and the method in which the property has been treated, are circumstances which, though not conclusive, are worthy of consideration. Section 188 thereof provides that if land has been used from time immemorial for a religious purpose then the land is by user wakf although there is no evidence of an express dedication. The trial court in support of its finding that the property in suit was a wakf property, apart from taking into consideration the oral evidence produced by the parties, relied on Ex. A 12, a certified copy of the compromise dated 29-1-1885, alleged to have been arrived at in Original Suit No. 71 of 1865, of the court of Civil Judge, Gorakhpur, Ex. A 4, copy of judgment in Original Suit No. 198 of 1953 of the court of Munsif, Bansi, holding that the property in suit was wakf property, as also Ex. A 5, copy of the judgment given in appeal against the judgment "Ex A 4". The trial court also placed reliance on Ex. A 8, copy of a registered patta dated 9-4-1929, executed by one Shah Abdul Gaffar in favour of Faizullah Khan a witness produced by the respondents themselves as PW 3 in respect of the suit plots where these plots were referred to as wakf property. Here it may also be pointed out that the said Faizullah Khan, PW 3 had also simultaneously executed on the same day, namely 9-4-1929. a registered Kabuliat which too substantiated the case of the appellant that the property in suit was wakf property. These documents were apparently relied on by the trial court in order to indicate the method in which the property in suit has been treated at any rate since 1885. They certainly constitute material which could be taken into consideration. 7. Counsel for the respondents in this connection urged that the suits referred to above in which these properties were treated to be wakf properties were suits in which the respondents were not parties and consequently they were not binding on the respondents. They certainly constitute material which could be taken into consideration. 7. Counsel for the respondents in this connection urged that the suits referred to above in which these properties were treated to be wakf properties were suits in which the respondents were not parties and consequently they were not binding on the respondents. It is true that the respondents not being parties in those suits the judgments rendered therein would not be binding on the respondents in the same manner as they would be binding on the parties to the suit but from this circumstance alone it cannot be said that these judgments were not relevant for deciding the issue as to whether the property in suit was a wakf property or not. In our opinion these judgments were certainly relevant for the decision of the said issue. In this connection reliance may be placed on the decision of a Division Bench of this Court in State v. Nathhoo, AIR 1986 All 172 . In that case a question arose as to whether a judgment not inter partes fixing compensation of adjoining lands at the time when the relevant notification occurring the claimant's land was issued was admissible in evidence or not. It was, relying on certain decisions including those of the Privy Council and the Supreme Court, held that the said judgment was admissible. In view of the reasons recorded by the trial court, with which we agree, and for the reasons stated above, we are of opinion t1Lat the respondents have failed to establish that the finding recorded by the trial court that the property in suit is wakf property is erroneous. 8. Section 193 of Mulla's Mahomedan Law provides that the wakf property cannot be alienated except in the cases mentioned in Sections 207 and 208 thereof. A perusal of Sections 207 and 208 makes it clear that they are not applicable to the facts of the instant case with the result that the property in suit being wakf property was inalienable. Section 23 of the Contract Act inter alia lays down that the consideration or the object of an agreement is lawful unless it is forbidden by law. The object of the agreement dated 30-4-1968, being sale of wakf property which was inalienable meaning thereby that such sale was forbidden by law, was apparently unlawful. Section 23 of the Contract Act inter alia lays down that the consideration or the object of an agreement is lawful unless it is forbidden by law. The object of the agreement dated 30-4-1968, being sale of wakf property which was inalienable meaning thereby that such sale was forbidden by law, was apparently unlawful. Section 23 further provides that every agreement of which the object or the consideration is unlawful is void. The trial court in our opinion committed an error of law in decreeing the suit for specific performance of the said agreement by directing the appellant to execute a sale deed of the property in suit even after recording a finding that the said property was a wakf property.and the said decree consequently deserves to be set aside. 9. Before parting with this plea we may point out that the trial court in decreeing the suit for specific performance of the agreement in question in spite of having held that the .property in suit was wakf property and inalienable relied on a decision of this Court in Gulzar Ali v. Fida Ali, (1883) ILR 6 All 24 which according to it "applies to the present case fully". That was a case where a trustee, alleging that the trust property, consisting of land, was his own property, mortgaged it. The mortgagee took the mortgage in good faith, for valuable consideration, and without notice of the trust. The mortgagee obtained a decree against the trustee for the sale of the land, and the land was sold in execution of that decree. The trustee subsequently brought a suit to recover the land from the purchaser on the ground that it was trust property and that he had no power to transfer it. To this suit none of the beneficiaries under the trust were parties. In the aforesaid circumstances it was held that the plaintiff was estopped by his conduct from recovering possession of the land. 10. That case is clearly distinguishable on the facts of the instant case. Here the plaintiff-respondents, who are seeking the assistance of the court to get the property in suit,. which is inalienable in law, sold in their favour in pursuance of an agreement which is void. A decree for specific performance of a void agreement cannot be passed relying on the rule of estoppel. Here the plaintiff-respondents, who are seeking the assistance of the court to get the property in suit,. which is inalienable in law, sold in their favour in pursuance of an agreement which is void. A decree for specific performance of a void agreement cannot be passed relying on the rule of estoppel. In Banwari Lal v. Sukhdarshan, AIR 1973 SC 814 it was held that estoppel is but a rule of evidence and except in cases like those under section 43, T. P. Act, when a grant is fed by estoppel, the rule does not operate to create interest in property regarding which the representation is made. In the instant case since provisions of section 43, T. P. Act, about feeding the grant by estoppel are not at all attracted, no decree for specific performance could be passed relying on the rule of estoppel and the trial court committed an obvious error of law in passing the decree which it did. 11. Another submission has been made by counsel for the appellant in support of his plea that the decree for specific performance was illegal. According to him on the finding that out of the sum of Rs. 45,685/- claimed to have been paid by them to the appellant towards the sale consideration the respondents had failed to establish payment of Rs. 1310/- it cannot be said that the defendants were willing at all relevant times to perform their part of the contract and this being so the suit for specific performance was liable to be dismissed on this ground also. Reliance in support of this submission has been placed on section 16(c), Specific Relief Act, which inter alia provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than the terms the performance of which has been prevented or waived by the defendant. Counsel for the appellant, in time connection, has also placed reliance on paras 3 and 4 and relief (a) of the plaint as well as on the statement of Mohibullah, PW 5. In para 3 of the plaint it was stated that subsequent to the execution of the agreement the defendant was paid Rs. Counsel for the appellant, in time connection, has also placed reliance on paras 3 and 4 and relief (a) of the plaint as well as on the statement of Mohibullah, PW 5. In para 3 of the plaint it was stated that subsequent to the execution of the agreement the defendant was paid Rs. 25,685/- details of which were given in Schedule B to the plaint and thus the plaintiffs had so far paid Rs. 45,685/- leaving a balance of Rs. 14,315/- to be paid at the time of the execution of the sale deed. In para 4 of the plaint it was stated that the plaintiffs made several oral demands to the defendant to execute and register the sale deed by receiving the balance consideration and when the defendant did not heed to the oral requests a registered notice dated 13-3-1969 was given to him. Relief (a) of the plaint is for a decree of specific performance requiring the defendant to execute and register a sale deed in his favour of the plots in suit by receiving Rs. 14,315/-. Mohibullah, PW 5 who, as seen above, is the brother of respondent 1 and husband of respondent 2, has categorically stated in his deposition (at page 47 of the paper book) that the plaintiffs were still prepared to get the sale deed on payment of the balance of the sale consideration which was Rs. 14,315/-. According to counsel for the appellant on the finding recorded by the trial court that out of the total sum said to have been paid to the appellant the respondent had failed to prove the payment of Rs. 1310/- and consequently the balance of the amount payable by them was Rs. 15,625/- and not Rs. 14,315/- the suit for specific performance was liable to be dismissed because on the own case of the respondents they were never prepared to pay to the appellant Rs. 15,625/-. On the other hand they had been insisting on payment of a lesser amount of Rs. 14,315/- only so that it was a case where the respondents had failed to aver and prove that they had performed or had always been ready to perform the essential terms of the contract which were to be performed by them as contemplated by section 16(c), Specific Relief Act. 12. 14,315/- only so that it was a case where the respondents had failed to aver and prove that they had performed or had always been ready to perform the essential terms of the contract which were to be performed by them as contemplated by section 16(c), Specific Relief Act. 12. In this connection counsel for the respondents made an attempt to assail the finding of the trial court that out of the total sum said to have been paid by the respondents a sum of Rs. 1310/- had not been established to have been paid by them. In our opinion he has, however, not succeeded in his attempt. The trial court on this point has held that this sum of Rs. 1310/- is said to have been paid by three vouchers Exs. 21,26 and 27. These vouchers were not in the name of the appellant but were in the name of one Ikhlaq Ahmad and there was no positive proof that lkhlaq Ahmad was defendant's employee or relation or that he had been authorised to receive payment on behalf of the defendant. The trial court also found that there was nothing to show that Ikhlaq Ahmad had paid the sum of Rs. 1310/- to the defendant. Counsel for the respondents has not been able to point out any such reliable material on the basis of which this finding could be reversed. 13. In Prem Raj v. D. L. F. H. & C. Ltd. AIR 1968 SC 1355 it was held that in the absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract it must be held that the plaintiff has no cause of action so far as the relief of specific performance is concerned. At this place it may be pointed out that in the instant case at no stage was any prayer made for amendment of the plaint. At this place it may be pointed out that in the instant case at no stage was any prayer made for amendment of the plaint. Even if such a prayer had been made it would have been of no consequence inasmuch as a Division Bench of this Court in Mahmood Khan v. Ayub Khan, AIR 1978 All 463 held that an amendment of the plaint in such a case could not be allowed for two reasons firstly because a valuable right has accrued to the respondents and secondly because the amendment seeks to bring out a cause of action in the plaint which was conspicuous by its absence in the plaint as originally filed. We accordingly find substance even in the second submission of counsel for the appellant that the suit for specific performance was liable to be dismissed on this ground also. 14. Counsel for the respondents then urged that in the revenue papers the property in suit was not recorded as wakf property and the appellant's status was that of a rent free grantee prior to the abolition of zamindari and he became a Bhumidhar under section 18(1)(c), U. P. Zamindari Abolition and Land Reforms Act, and consequently was competent to sell the property-in suit. As regards the revenue entries suffice it to point out that in view of section 44, U. P. Land Revenue Act, the entries in village papers are not conclusive and the presumption in their favour is rebuttable. The trial court has not ignored the revenue entries but has even after considering them held that the property in suit was wakf property. In other words in the opinion of the trial court the entries in revenue papers stood rebutted. On the finding that the property in suit was wakf property it is difficult to take the view that the appellant could become bhumidhar of the said property under section 18(1)(c), U. P. Zamindari Abolition and Land Reforms Act, which inter alia contemplates that all lands held by a rent free grantee as such on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such grantee who shall, subject to the provisions of the Act, be entitled to take or retain possession as a bhumidhar thereof. The question which, therefore, falls for consideration is as to whether it can on the facts of the instant case be held that the property in suit was "held" by the appellant as a rent free grantee on the date immediately preceding the date of vesting. In Buddhan Singh v. Nabi Bux, 1961 All LJ 536 a Full Bench of this Court while interpreting the word "held" used in section 9, U. P. Zamindari Abolition and Land Reforms Act, also came to the conclusion that the word "held" does not connote a title of a trespasser but it refers to a title that had a legal origin. The property in suit being wakf property the appellant apparently could not have any title in the said property nor could any title claimed by the appellant have a legal origin. Even if he was in physical possession of the property in suit the appellant would be, in law, holding it for and on behalf of the wakf, at best, as its trustee or manager. For these reasons we find it difficult to agree with the submission of the counsel for the respondents that the appellant had become a bhumidhar and was competent to sell the property in suit. 15. Counsel for the respondents also urged that the respondents were entitled to the benefit of section 41, T. P. Act, inasmuch as in view of the entries in the revenue papers the appellant was an ostensible owner of the property in suit. In our opinion section 41, T. P. Act, is not at all attracted to the facts of the instant case. The said section contemplates transfer of immovable property for consideration by a person who with the consent express or implied of the persons interested in such property is the ostensible owner thereof. Firstly, an agreement of sale .can by no stretch of imagination be treated as a transfer of immovable property. It is settled law that no title in immovable property passes by virtue of an agreement of sale. Secondly in the instant case the property being wakf property it is difficult to hold that the agreement in question was executed by the appellant with the consent express or implied of the persons interested in the said property. 16. It is settled law that no title in immovable property passes by virtue of an agreement of sale. Secondly in the instant case the property being wakf property it is difficult to hold that the agreement in question was executed by the appellant with the consent express or implied of the persons interested in the said property. 16. Counsel for the respondents in this connection urged that in view of section 164, U. P. Zamindari Abolition and Land Reforms Act, the agreement in question would be deemed, to be a transfer inasmuch as it was admitted therein that possession over the property in suit had been delivered to the respondents in pursuance of the said agreement. According to him since possession over the property had been transferred to the respondents in pursuance of the said agreement the agreement was for all purposes a sale of the property. This submission also is on the face of it untenable. Section 164, U. P. Zamindari Abolition and Land Reforms Act, deals with transfer with possession by a bhumidhar. It contemplates transfer of any holding or any part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money referred to in the said section. On the face of it for the application of section 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. Since an agreement of sale does not have the effect of transferring any holding or part thereof even if possession was transferred of the holding in pursuance of the said agreement it cannot be said that the agreement amounted to a sale under section 164. Moreover, section 164 contemplates transfer by a bhumidhar. We have already held that the appellant was not a bhumidhar and could not be a bhumidhar of the property in suit, the same being wakf property. 17. Counsel for the appellant made an attempt to challenge the findings of the trial court on other issues also but in our opinion he has not succeeded in doing so. Having heard him we find it difficult to disagree with the findings recorded by the trial court on those points. 18. 17. Counsel for the appellant made an attempt to challenge the findings of the trial court on other issues also but in our opinion he has not succeeded in doing so. Having heard him we find it difficult to disagree with the findings recorded by the trial court on those points. 18. The question which now falls for consideration is about the nature of the decree to be passed in the suit. 19. Counsel for the appellant urged that since the agreement in question has been found to be void the respondents were not entitled even to the refund of the sum of Rs. 44,375/- which has been found by the trial court to have been paid by the respondents to the appellant. In our opinion there is no substance in this submission. In Kuju Collieries v. Jharkhand Mines, AIR 1974 SC 1892 while dealing with the scope of section 65, Contract Act, it was held by the Supreme Court : "The section makes a distinction between an agreement and a contract. According to section 2, Contract Act, an agreement which is enforceable by law is a contract and an agreement which is not enforceable by law is said to be void. Therefore, when the earlier part of the section speaks of an agreement being discovered to be void it means that the agreement is not enforceable and is, therefore, not a contract. It means that it was void. It may be that the parties or one of the parties' to the agreement may not have, when they entered into the agreement, known that the agreement was in law not enforceable. They might have come to know later that the agreement was not enforceable. The second part of the section refers to a contract becoming void. That refers to a case where an agreement which was originally enforceable and was, therefore, a contract, becomes void due to subsequent happenings. In both these cases any person who has received any advantage under such agreement or contract is bound to restore such advantage, or to make compensation for it to the person from whom he received it. That refers to a case where an agreement which was originally enforceable and was, therefore, a contract, becomes void due to subsequent happenings. In both these cases any person who has received any advantage under such agreement or contract is bound to restore such advantage, or to make compensation for it to the person from whom he received it. But where even at the time when the agreement is entered into both the parties knew that it was not lawful and, therefore, void, there was no contract but only an agreement and it is not a case where it is discovered to be void subsequently. Nor is it a case of the contract becoming void due to subsequent happenings. Therefore, section 65, Contract Act, did not apply." 20. Coming to the facts of the instant case it may be seen that the trial court has recorded a specific finding while dealing with issue 2 which was to the effect as to whether the suit property is a wakf property and, therefore, is inalienable, that there is nothing to show that the plaintiffs had knowledge of the wakf. They used to live at Bombay. It was thus not a case where it could be said that "even at the time when the agreement is entered into both the parties knew that it was not lawful, and, therefore, void". On the other hand it was a case where "one of the parties to the agreement may not have when they entered into the agreement known that the agreement was in law not enforceable. They might have come to know later that the agreement was not enforceable". This being so the appellant is bound to restore the advantage which he has received under the agreement in question. In the normal course it would, while passing a decree for recovery of Rs. 44,375/- in favour of the respondents against the appellant, be expedient in the interest of justice to pass a decree for pendente lite and future interest also. However, on the facts of the instant case we are of opinion that no such decree for interest deserves to be passed. It is a case where respondents' claim have been in possession over the property in suit from the date of agreement in question and enjoying the usufruct of the property. However, on the facts of the instant case we are of opinion that no such decree for interest deserves to be passed. It is a case where respondents' claim have been in possession over the property in suit from the date of agreement in question and enjoying the usufruct of the property. We are further of the opinion that even the decree for recovery of Rs. 44,375/-, on the facts of the instant case, deserves to be passed in favour of the respondents subject to the condition that they simultaneously restore back possession over the property in suit to the appellant. 21. In the result this appeal succeeds and is allowed. In supersession of the judgment and decree passed by the trial court the suit of the plaintiff-respondents is decreed for recovery of Rs. 44,375/- against the defendant- appellant subject to the condition that the plaintiff-respondents restore back possession to the appellant over the property in suit. In other words the decree for the recovery of Rs. 44,375/- shall not be executable by the plaintiff-respondents until they simultaneously deliver back possession over the property in suit to the appellant. In the circumstances of the case the parties shall bear their own costs throughout.