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Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

JUDICIAL DEPARTMENT

R.F.A .No. 11/2007.

JUDGMENT

Date of hearing……………………14.03.2016.…………………………….

Appellant (Saifullah Khan Bangash) By Mr. Abdul Sattar Khan Advocate.

Respondents (Jaseem Khan etc) By Mr. Zia-ur-Rehman Khan, Advocate.

YAHYA AFRIDI, J:- Through this single judgment, this

Court shall dispose of three Regular First Appeals, as all the

three appeals have arisen out of a consolidated judgment dated

30.11.2006 rendered by the learned Civil Judge-IV, Peshawar.

The particulars of the appeals are as under:

1. R.F.A No. 11/2007.

(Saifullah Khan Bangash..vs..Jaseem Khan etc).

2. R.F.A No. 12/2007.

(Saifullah Khan Bangash..vs..Jaseem Khan etc).

3. R.F.A No. 35/2007.

(Abdul Mateen..vs..Saifullah Khan Bangash etc).

2. The brief and essential facts leading to the present

appeals, in chronological order, are as follows;

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19.01.1982.

Mutation No.4218 vide which Mst. Bibi Saliha

becomes owner of part of the disputed property. Mutation

No.4219 vide which Mst. Bibi Zeenab becomes owner of

the part of the disputed property. Mutation No.4120 vide

which Mst. Inayat Begum (mother of Jaseem, Mst.

Shahida and Mst. Ziljees), and Mst. Farhanda Begum

become owners of the part of the disputed property. All the

owners, mentioned above, are to be collectively referred as

true owners of the immoveable property measuring 02

Kanal, comprising of a built up house on one Kanal and an

adjacent vacant plot of 01 Kanal (“disputed property”).

21.12.1993.

An agreement is entered for sale of the disputed

property purporting to be executed by the true owners in

favour of Saifullah Khan Bangash for a sale consideration

of Rs. 1,775,000/- of which Rs.400,000/- is paid as earnest

money to true owners through Abdul Mateen (Exh.PW

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1/1). The said Abdul Mateen, endorsed the said document

to be duly executed by the true owners, while the other

witness of the instrument is Mashooq Ali, the Property

Agent (DW-4).

12.01.1994 and

30.01.1994.

Saifullah Khan Bangash pays Rs.550,000/- in cash,

Income Tax Certificates of Rs.350,000/- and cheque of

Rs.400,000/-to Abdul Mateen, and a total of

Rs.1,700,000/- was acknowledged, as consideration for the

sale, which was recorded in writing (Exh. DW 1/3).

Possession of the disputed property was transferred to

Saifullah Khan Bangash.

12.06.1994.

First Jirga, comprising of Abdul Samad Khan, Fazal

Muhammad, Said Jaseem, Haq Nawaz, Mashooq Ali, and

Samiullah Jan at the residence of Haq Nawaz. It was

resolved by the Jirga that Saifullah Khan Bangash is to

pay Rs.100,000/- which was paid to Abdul Mateen, and

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thereafter, the possession of the disputed property was to

be retained by Saifullah Khan Bangash.

19.06.1994.

Mst. Inayat Begum expires. Her share in the

disputed property acquired vide Mutation No. 4120 dated

19.01.1982 (14 Marlas out of the total 01 Kanal 08

Marlas) devolved upon her legal heirs, including Jaseem

Khan, Mst. Shahida and Mst. Ziljees, who would,

thereafter be included as the true owners.

03.07.1994.

Mutation No. 11494 reflecting a gift by Jaseem

Khan, Mst. Shahida, Mst. Zeenab, Mst. Farhanda and

others in favour of Saifullah Khan Bangash (Exh. PW 3/X-

1) and Mutation No.11496 also reflecting gift by Mst. Bibi

Saliha in favour of Saifullah Khan Bangash (Exh PW 3/X-

2). The total property gifted vide the two mutations was 01

Kanal, while the remaining one Kanal remained to be

transferred.

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08.09.1994.

The true owners instituted a Suit No.356/1 seeking

declaration that they were owners of one Kanal of land

being part of disputed property, which was reflected in the

two gift mutations with consequential relief of permanent

injunction and possession. The gift mutations No.11494

and 11496 attested in favour of Saifullah Khan Bangash

were also challenged to be illegal.

10.06.1997.

Saifullah Khan Bangash filed a Suit No.354/1

against Jaseem Khan and others seeking declaration of

being owners of the disputed property and specific

performance of the agreement to sell dated 21.12.1993

(Exh. DW 1/1).

26.07.1997.

True owners filed a Suit N0-355/1 for perpetual

injunction against Saifullah Khan Bangash etc being

owners of the disputed property. This suit was for the

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remaining one Kanal of land not challenged in Suit

No.356/1.

07.09.1999.

All the three suits bearing Nos. 218/1, 219/1 and

220/1 filed by the parties were consolidated and thirteen

consolidated issues were framed. The parties produced

their pro and contra evidence.

30.11.2006.

Vide consolidated judgment and decree, the trial

Court decided the aforementioned suits in terms that;

“(a) The suit of Jaseem Khan and others for declaration

and injunction etc (suit No.356/1) is decreed against

the defendants as prayed for.

(b) The suit of Jaseem Khan and others (Suit No.355/1

for permanent injunction is also decreed as prayed

for against the defendants.

(c) The suit of Saifullah Khan Bangash (Suit No.354/1)

against defendants is decreed, against Abdul Mateen

Khan in this manner that Abdul Mateen Khan shall

return Rs.18 lacs (1,800,000/-) to Saifullah Khan

along with interest at Bank rate for the period of

February, 1994 to November, 2006. Moreover,

Abdul Mateen Khan shall also pay entire cost of the

suit to both the parties. The suit of Saifullah Khan

as prayed for is dismissed and the appropriate relief

as stated above is granted to him.”

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3. Feeling aggrieved from the consolidated judgment,

Saifullah Khan Bangash, has filed two Regular First

Appeals N0-11 and 12 of 2007, while Abdul Mateen, has

filed Regular First Appeal No.35 of 2007.

4. The main thrust of the worthy counsel for Saifullah

Khan Bangash, in both his appeals, was that the appellant

was a bona fide purchaser of disputed property for

valuable consideration, vide Agreement to Sell and thus,

Saifullah Khan Bangash was entitled to the protection

envisaged under section 41 of the Transfer of Property Act,

1882 (“Act”); that it was the conspiracy of the entire

family headed by Abdul Mateen, which prevailed upon

Saifullah Khan Bangash to part with the consideration and

allowed to take physical possession of the disputed

property; that the status of Abdul Mateen as an ostensible

owner was evident from his relationship with the true

owners of the disputed property and being the elder of the

family, who had in fact been instrumental in purchase of

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the disputed property in their names in 1982; that Mashooq

Ali (DW-4), the property agent, who facilitated the two

transactions, also supported the said fact; and that the

entire evidence produced by the appellant proved the fact

that Saifullah Khan Bangash was a bona fide purchaser for

valuable consideration is thus entitled to the specific

performance of the Agreement to Sell (Exh PW 1/1).

Reliance was placed on the judgment of Apex Court in

Syed Asif Shah’s case (PLD 1991 SC 905).

5. The worthy counsel for the true owners contended

that the disputed property was owned by Parda Nasheen

ladies, who had not given any authority to Abdul Mateen

to sell the same to Saifullah Khan Bangash; that Saifullah

Khan Bangash during his testimony has confirmed that

during the process of the entire transaction, Abdul Mateen

did not have any written authority on behalf of the true

owners; and that the actual owners of the disputed property

immediately on having gained knowledge about the

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transaction challenged the same in Court; and that

Saifullah Khan Bangash was not legally entitled to the

protection provided under section 41 of the Act.

6. The worthy counsel representing Abdul Mateen in

Regular First Appeal No.35 of 2007, contended that as

Saifullah Khan Bangash was in possession of the disputed

property, the interest imposed was excessive and warranted

its deletion.

7. Valuable arguments of learned counsel for the

parties heard and available record perused with their able

assistance.

8. In essence, the sole contention of the worthy counsel

for Saifullah Khan Bangash was that he was entitled to the

protection provided under Section 41 of the Act. To

consider this contention of the worthy counsel, this Court

has to resolve the controversy framed in issue No.5, which

was in terms that;

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Issue No.5.

Whether the rights of Saifullah Khan

Bangash plaintiff are protected under

section 41 of Transfer of Property Act, 1882?

It is by now a settled principle of law that a person

cannot transfer to another a title or a right greater than

what he himself possesses. Thus, the vendee cannot take

more than what the vendor can sell. This principle is based

on the maxims; Nemo dat quod non-habet- No one can

give what he has not got, Nemo plus juris tribuit quam

impse habet- No one can bestow or grant a greater right

(better title) than he has himself, and Nemo plus juris and

alium transferee potest quam ipse habet- No one can

transfer to another a greater right than he has himself. The

last maxim stated, hereinabove, has been explained in

Trayner’s Latin Maxims (Fourth Edition), in terms that:-

“To illustrate this rule, take the case of a bona fide

purchaser of a stolen article, and that whether purchased

from the thief directly or from some one acquiring from

him. Such a purchaser has no title to the thing purchased,

which he can put in competition with the real owner,

because the person from whom he acquired had no title,

and (according to the maxim) his author could not give him

a better right or title than he himself possessed.”

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…………..So, again, possessors of movables who have

lawfully come into possession, may in some cases give a

better title than they have; their won title may be that of

mere factor or agent, not proprietor, but they may sell so as

validly to vest the purchaser in bona fide with a right of

property.”

9. There are, however, exceptions to the

aforementioned general principle, one of which has been

enunciated in section 41 of the Act, which reads;

“41. Transfer by ostensible owner.

Where, with the consent, express or implied, of the person

interested in immoveable property, a person is the ostensible

owner of such property and transfers the same for

consideration, the transfer shall not be voidable on the

ground that the transferor was not authorized to make it:

provided that the transferee, after taking reasonable care to

ascertain that the transferor had power to make the

transfer, has acted in good faith.”

The true logic behind the protection so provided to a

purchaser of an immovable property under the

aforementioned provision has been described very

exhaustively by the Apex Court in Kawal Nain’s case

(PLD 1983 SC 53), in terms:-

“Mulla has pointed out that the foundation of this section is

the following passage from the judgment of the Judicial

Committee in Remcoomar..Vs..Macqueen:-

“It is a principle of natural equity which must be

universally applicable that, where one man allows

another to hold himself out as the owner of an estate

and a third person purchases it, for value, from the

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apparent owner in the belief that he is the real

owner, the man who so allows the other to hold

himself out shall not be permitted to recover upon

his secret title, unless he can overthrow that of the

purchaser by showing either that he had direct

notice, or something which amounts to constructive

notice, of the real title; or that there existed

circumstances which ought to have put him upon an

inquiry that, if prosecuted, would have led to a

discovery of it.”

The section is a statutory application of the law of estoppel

and makes as exception to the rule that a person cannot

confer a better title than he has. The principle underlying the

provisions of the section is “whenever one of the two

innocent persons has to suffer by the act of a third person he

who has enabled the third person to occasion the loss must

sustain it.”

As rightly mentioned by the learned Additional District

Judge in his judgment, following conditions are necessary for

the application of the section, namely:-

(i) The transferor is the ostensible owner;

(ii) He is so by the consent, express or implied, of the

real owner;

(iii) The transfer is for consideration,

(iv) The transferee had acted in good faith, taking

reasonable care to ascertain that the transferor had

power to transfer.

The aforementioned principle has been, thereafter,

consistently followed by the apex Court in various

pronouncements. Some of the important judgments in this

regard are, Muhammad Afzals’ case (PLD 2006 SC 84),

Haji Abdul Ghafoor Khan’s case (PLD 2007 SC 433),

Mst.Bilqees Begum and others’ case (PLD 2003 SC 899),

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Maulana Riazul Hassan’s case (1991 SCMR 2513),

Mst.Noor-un-Nisa’s case (1994 SCMR 2087),

Muhammad Bashir’s case (2003 SCMR 774), Moulvi

Abdul Qadir and others’ case (2010 SCMR 1877) and

Noor Hassan and others’ case (2015 SCMR 452).

10. In view of the ratio decidendi of the precedents

stated above, it would be safe to state that a

purchaser/vendor/transferee of an immovable property can

only avail the protection provided under section 41 of the

Act, if he proves with positive evidence, the fulfillment of

the five condition precedents, which may be entailed as

under:-

(i) The transferor is the ostensible owner;

(ii) The transfer is for consideration,

(iii) He has consent express or implied of the real owner,

(iv) The transferee has acted in good faith,

(v) The transferee took reasonable care to ascertain that

the transferor had power to transfer.

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11. Now, this Court shall consider, whether the evidence

produced by Saifullah Khan Bangash is sufficient to prove

the five conditions precedent to be entitled to seek the

protection provided in section 41 of the Act.

Transferor is the Ostensible Owner.

12. The term ostensible has not been defined in the Act,

hence we would seek resort to its ordinary dictionary

meaning, some of the definition are as under;

Oxford English Dictionary as

“apparently true, but not necessarily so”,

Black’s Law Dictionary as

“Open to view, declared or professed; apparent.” and in

Mitra’s Legal & Commercial Dictionary as

“Able to be seen; apparent; assumable; avowed; deceptive;

pretended; delusional; delusive; delusory; discernible;

illusionary; illusive; illusory; indubitable; misleading;

obvious; overt; patent; plausible; purported; so-called.

The word ‘ostensible’ has two meanings;

(a) that the object bears out suggesting that it is

or is not that of which it has the superficial

appearance, and

(b) that the object bears a certain appearance

but is not really that of which it bears the

appearance.”

Keeping in view the above ordinary dictionary meaning of

the term ostensible, it is to be seen whether Abdul Mateen,

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the transferor of the disputed property was the ostensible

owner thereof or otherwise. What is interesting to note is

that Abdul Mateen never appeared before the trial Court in

any of the three suits and thus, his stance before the trial

Court cannot be ascertained in exactness. However, the

anchor sheet of Saifullah Khan Bangash’s claim is

Agreement to Sell dated 21.12.1993 (Exh. PW1/1),

wherein Abdul Mateen is neither recorded as the true

owner nor the ostensible owner. In fact, Abdul Mateen has

endorsed the said agreement to be the identifier of the

Parda Nasheen ladies being the true owners and sellers of

the disputed property. Thus, from the available record, it is

evident that Abdul Mateen never represented himself to be

the ostensible owner of the disputed property. At best, his

role and status can be considered as the identifier of the

Parda Nasheen true owners, in the Agreement to Sell (Exh.

PW 1/1), and thereafter, as their agent, when he transferred

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the peaceful possession of the disputed property to

Saifullah Khan Bangash.

Transfer is for consideration.

13. As far as payment of consideration to the transferor,

Abdul Mateen is concerned, it is admitted that the

transferee, Saifullah Khan Bangash paid a total of

Rs.1,800,000/- to Abdul Mateen. The fact that the said

amount did not reach the true owners of the disputed

property would not affect the transferee’s position of

making the payment of the sale consideration for the

disputed property and thereby fulfilling the second

condition precedent to avail the protection provided to him

under section 41 of the Act.

Transferor having express or implied consent to the

owners.

14. As far as, Abdul Mateen having express consent of

the true owners is concerned, Saifullah Khan Bangash

during his cross-examination admitted that Abdul Mateen

had no written power of attorney on behalf of the true

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owners. A case can, however, be advanced in favour of

Saifullah Khan Bangash, that Abdul Mateen had the

implied consent of the true owners to sell the disputed

property, as peaceful transfer of possession of the disputed

property was allowed to be made to him. The fact that the

true owners, as stated to be ‘Parda Nasheen’ ladies and

that they all collectively challenged the gift mutations

immediately after the attestation thereof would, therefore,

nullify this stance of Abdul Mateen having the implied

authority of the true owners to sell the disputed property to

Saifullah Khan Bangash. The conduct of Jaseem Khan

being associated with Abdul Mateen during the transfer of

possession of the disputed property would not be of much

legal avail, as at that particular time, he was not the true

owner. As far as his acknowledgement of being present at

the time when the gift mutations were being entered and

his participation in the Jirgas, would also be of no

significant support to Saifullah Khan Bangash’s claim, as

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by then he had only become the owner of a very small

portion of the disputed property, after the death of his

mother Mst. Inayat Begum. Moreover, binding all the

other true owners, who were stated to be Parda Nasheen

ladies for the act of Jaseem Khan, would not be legally

appropriate, especially, when he too had no authority to act

on their behalf.

Transferee acted in good faith.

15. The issue relating to good faith of a purchaser of

immoveable property has been very eloquently explained

by the Apex Court in Hafiz Tassaduq Hussain’s case

(PLD 2011 SC 296), in terms:-

“The second ingredient “good faith” is the term which

reflects the state of mind and according to section 3(2) of

the General Clauses Act, 1897 “a thing shall be deemed to

be done in ‘good faith’ where it is in fact done honestly,

whether it is done negligently or not”. While interpreting

this, it was held in Nannu Mal..Vs..Rani Chander (AIR

1931 All 277 (FB) that good faith as defined above is

equivalent to honesty of dealing and does not entail upon

the purchaser the necessity of searching the registry, even

assuming that there were facts indicative of negligence in

investigating title, that by itself was not predicative of a lack

of bona fides.”

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Now, testing the conduct of Saifullah Khan Bangash

on the touchstone of the standard for good faith set in the

above judgment, it is but clear that his actions were not at

par with threshold set therein. Knowing very well that

Abdul Mateen was not the true owner of the disputed

property, he still proceeded with the transaction, surely

does not reflect positively on his bonafide. It may,

however, be said that this action on his part was due to his

negligence and not malafide. This Court would not be in

consonance with this line of argument for the simple

reason that, Saifullah Khan Bangash was a law graduate.

Moreover, the fact that Saifullah Khan Bangash recorded

the transaction as a gift in the impugned mutations would

leave no doubt about his true intentions. This intentional

recording of the transaction as a gift was frankly conceded

by him to be only to avoid payment of taxes/duties and the

challenge of prospective preemptors. These deliberate

steps taken by Saifullah Khan Bangash, would thus,

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accumulatively portray his conduct far from being in good

faith.

Reasonable care to ascertain the authority to

transfer.

16. Reviewing the evidence in the present cases, it is

very much apparent that Saifullah Khan Bangash entered

into the agreement to sell (Exh. PW 1/1), knowing very

well that he was not the true owner and yet proceeded

therewith without protesting or demanding any written

power of attorney from Abdul Mateen to act on behalf of

the true owners. As discussed earlier, the steps taken and

the concessions made by Abdul Mateen and Jaseem Khan

in facilitating Saifullah Khan Bangash to take possession

of the disputed property can in no way absolve Saifullah

Khan Bangash from taking the reasonable care, to ensure

that Abdul Mateen had the authority to transfer the

disputed property on behalf of the true owners. More so,

when he being a lawyer, knew the importance thereof.

Thus, Saifullah Khan Bangash would also not qualify the

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test of fulfilling this crucial condition precedent of

reasonable care for availing protection provided under

section 41 of the Act.

17. From the above discussion, it is noted that Saifullah

Khan Bangash has not been able to prove all five condition

precedents for being entitled to avail the protection

provided under section 41 of the Act. In such a situation,

the judicial consensus is that even if a single condition

precedent is not fulfilled, then the purchaser cannot avail

the protection provided under section 41 of the Act. In this

regard, the apex Court has elaborated the said principle in

Muhammad Afzal’s case (PLD 2006 S C 84), in terms:-

“In order that this section may apply, it must be shown that

(a) the Transferor is the ostensible owner (b) He is so by

consent, express or implied, of the real owner, (c) The

transfer is for consideration, (d) The Transferee has acted

in good faith, taking reasonable care to ascertain that the

transferor had power to transfer. If any one of the stated

ingredients is wanting, then the Transferee will not be

eligible to seek protection of equitable doctrine envisaged

under section 41 ibid. It is not attracted unless a party

claiming benefit thereof has fulfilled the aforesaid four

conditions.”

18. Accordingly, for the reasons discussed above, this

Court is in consonance with the findings recorded by the

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trial Court for refusing the relief sought by Saifullah Khan

Bangash. As discussed earlier, Saifullah Khan Bangash

was neither able to prove the Agreement to Sell as per the

mandate of Article 79 of the Qanun-e-Shahadat Order,

1984, nor the bonafide for warranting the exercise of

discretion for the specific performance thereof under

Section 22 of Specific Relief Act, 1877. However, the

payment of Rs.1,800,000/- he made to Abdul Mateen

having been proved was duly appreciated, and accordingly,

a decree to that extent along with interest was correctly

passed in his favour.

19. Now, to the stance of Abdul Mateen in challenging

the impugned consolidated judgment and decree passed by

the trial Court. When this Court traces the conduct of

Abdul Mateen, it is noted that he was proceeded ex parte

in all three suits leading to the present appeals, yet he

remained the central figure in convening ‘Jirgas’ and

participating therein. Today, he sought the audience of the

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Court and frankly conceded that he had received

Rs.1,800,000/- from Saifullah Khan Bangash, as

consideration for the disputed house. He further stated that

the same was a sale transaction and not a gift, as recorded

in the impugned mutations. He further justified his

receiving the sale consideration of Rs.1,800,000/- from

Saifullah Khan Bangash on the expectation that true

owners being his relatives would agree to the proposed

sale. He, however, urged the Court not to impose interest

and that he was willing to repay Rs.1,800,000/- to

Saifullah Khan Bangash, as and when directed by the

Court. The conspicuous silence of Abdul Mateen and his

noticeable absence from the Court proceedings would not

justify his present stance of avoiding the interest awarded

by the trial Court in favour of Saifullah Khan Bangash.

Accordingly, for the reasons stated hereinabove, all

the appeals being bereft of merits are dismissed, as the

judgments and decrees of the learned trial Court are not

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only based on correct appreciation of evidence, but also in

accordance with the applicable principles of law. Thus, the

impugned decision passed by the trial Court is maintained.

Announced.

Dt.14/03/2016 . J U D G E

(K.Ali)