Mst. FATIMA PARVEEN vs MUHAMMAD YOUNUS S — 2026 PLD 140 KARACHI-HIGH-COURT-SINDH

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Mst. FATIMA PARVEEN VS MUHAMMAD YOUNUS S. 53-a---Specific Relief act (I of 1877) S.12---agreement to sell---Doctrine of part performance---applicability and essential requirements---agreement must reflect delivery of possession---Continuous possession in part performance must be substantiated by vendee---Section 53-a of the Transfer of Property act, 1882, provides protection to a transferee who has taken possession of a property based on a partially performed contract---This protection is available even if the contract itself is not fully registered or legally enforceable, as long as the transferee has acted in good faith and partially performed the terms of the agreement---This is commonly referred to as the "doctrine of part performance"---However, in the present case, the respondent/ plaintiff's inability to prove possession since the year 1982 and the lack of any mention of possession in the agreement to sell precluded the application of S. 53-a---Since the agreement did not explicitly provide for the delivery of possession, and the respondent/plaintiff (vendee) could not substantiate his claim of possession through evidence, no protection under S. 53-a could be extended---The respondent/plaintiff's (vendee) failure to prove possession from the date of execution of agreement to sell in 1982 and the absence of an explicit provision in the agreement regarding possession negated the applicability of the doctrine of part performance under S. 53-a of the Transfer of Property act, 1882---Court below acted with material irregularity---Present civil revision petition was allowed, in circumstances. Citation Name: 2026 PLD 140 KARACHI-HIGH-COURT-SINDHBookmark this Case Mst. FATIMA PARVEEN VS MUHAMMAD YOUNUS arts.17 & 79---agreement to sell---Proof---Execution of agreement denied---Producing two attesting witnesses is mandatory to prove execution---Qanun-e-Shahadat, 1984 being procedural law would apply retrospectively---Significance of arts. 17 & 79 of Qanun-e-Shahadat, 1984/stated---article 17 of the Qanun-e-Shahadat, 1984 addresses the competence of witnesses and the required number of witnesses for different types of matters---In matters relating to financial or future obligations that have been reduced to writing, art. 17(2)(a) specifies that the document must be attested by two men, or one man and two women---For all other matters, art. 17(2)(b) grants the court the discretion to accept or act on the testimony of one man or one woman, or any other evidence deemed appropriate given the circumstances of the case---The presence of multiple witnesses serves as a safeguard against potential fraud or false testimony---article 79 of the Qanun-e-Shahadat, 1984 further stipulates that if a document is required by law to be attested, it cannot be used as evidence until at least two attesting witnesses are called to prove its execution---This provision is intended to verify the authenticity of attested documents by requiring the testimony of persons who can confirm that the document was duly executed in their presence---The failure to call both attesting witnesses renders the document inadmissible, as it undermines the credibility of the document's execution---The provisions encapsulated within arts. 17 & 79 of the Qanun-e-Shahadat, 1984, are endowed with retrospective effect---These provisions are applicable to cases wherein the evidence was recorded subsequent to their enforcement, notwithstanding that the transaction transpired prior to their promulgation---article 79 of Qanun-e-Shahadat, 1984 unequivocally stipulates that a document mandated by law to be attested, cannot be admissible as evidence unless two attesting witnesses are summoned to substantiate its execution, contingent upon their being alive, subject to the court's jurisdiction, and competent to provide testimony---The omission to summon the second attesting witness contravenes the explicit mandate of art. 79 of the Qanun-e-Shahadat, 1984 and consequently impairs the credibility of the document's execution---In summation, the provisions enshrined in arts. 17 & 79 of the Qanun-e-Shahadat, 1984, possess retrospective applicability---The non-compliance with the requirement of summoning both attesting witnesses culminates in the document being inadmissible in evidence. Citation Name: 2026 PLD 140 KARACHI-HIGH-COURT-SINDHBookmark this Case Mst. FATIMA PARVEEN VS MUHAMMAD YOUNUS Ss.28 & 30---Land documents must be registered in the Sub-Registrar's office where the property is located---Registration of documents irrespective of the property's location within Pakistan---Scope---Section 28 of the Registration Act, 1908 mandates that documents related to land must be presented for registration in the office of the Sub-Registrar within whose Sub-District the property is located---Section 30 of the Registration Act, 1908 grants Registrars the discretion to register documents that could be registered by any Sub-Registrar subordinate to them and to register documents without regard to the property's location within Pakistan. Citation Name: 2026 PLD 140 KARACHI-HIGH-COURT-SINDHBookmark this Case Mst. FATIMA PARVEEN VS MUHAMMAD YOUNUS arts. 17 & 79---Registration act (XVI of 1908), S.17---agreement to sell---Proof---Execution of agreement denied---Producing two attesting witnesses is mandatory to prove execution---Exception to the said rule stated---article 79 of the Qanun-e-Shahadat, 1984 outlines the procedure for proving the execution of a document required by law to be attested---according to this provision, if a document must be attested by law, it cannot be used as evidence until at least two attesting witnesses have been called to prove its execution---This provision aims to ensure the authenticity and validity of attested documents by requiring the testimony of witnesses who can confirm their execution---However, there is an exception to this rule---It is not necessary to call an attesting witness to prove the execution of any document (except for a will) that has been registered in accordance with the provisions of the Registration act, 1908---This means that for registered documents, the registration itself serves as sufficient proof of execution, and the testimony of attesting witnesses is not required unless the execution of the document is specifically denied by the person who purportedly executed it---In cases where the execution of the document is disputed, attesting witnesses must be called to provide evidence to resolve the matter. Citation Name: 2026 PLD 140 KARACHI-HIGH-COURT-SINDHBookmark this Case Mst. FATIMA PARVEEN VS MUHAMMAD YOUNUS Procedural law---Retrospective application---Procedural laws possess retrospective applicability unless explicitly stipulated otherwise---Procedural laws govern the mechanisms and methodologies through which substantive rights and obligations are effectuated---This retrospective effect comports with the principle that procedural laws are designed to augment the administration of justice by ensuring that judicial proceedings are conducted with fairness and efficacy. Citation Name: 2026 PLD 140 KARACHI-HIGH-COURT-SINDHBookmark this Case Mst. FATIMA PARVEEN VS MUHAMMAD YOUNUS S.115---Revisional jurisdiction of the High Court---Judgments at variance---Scope---When the findings of the two courts below are at variance, the High Court would be justified in appreciating the evidence to arrive at the conclusion as to which of the decisions is accord with the evidence on record---Where two courts below, while giving their findings on a question of law, have committed material irregularity or failed to read the evidence on point, which resulted in miscarriage of justice, the High Court would have the occasion to re-examine the question and to give its findings on that question in exercise of revisional jurisdiction. Citation Name: 2026 PLD 140 KARACHI-HIGH-COURT-SINDHBookmark this Case Mst. FATIMA PARVEEN VS MUHAMMAD YOUNUS arts.17 & 79---Specific Relief act (I of 1877), Ss.12 & 22---Evidence act (I of 1872) S.68---Civil Procedure Code (V of 1908) S.115---Suit for specific performance of agreement to sell---Proof---Courts' discretion to grant relief of specific performance discussed---Execution of agreement denied by vendor---agreement executed prior to promulgation of Qanun-e-Shahadat, 1984---Question was as to whether the agreement could be proved by just producing one attesting witness as per S. 68 of the Evidence act, 1872, or since the evidence having been recorded after promulgation of Qanun-e-Shahadat, 1984 the provisions of Ss. 17 & 79 would apply to the case requiring two attesting witnesses to prove execution of the agreement---Qanun-e-Shahadat, 1984 being procedural law would apply retrospectively to the case where the agreement under question was allegedly executed even prior to the existence of Qanun-e-Shahadat, 1984---Facts in brevity were that the respondent/plaintiff (vendee) filed a suit for specific performance of an agreement to sell dated 07.01.1982 claiming he purchased the land in question from petitioner No.2 (vendor) who later on through a sale deed dated 22.12.1997 sold the land to petitioner No.1 and contended that since the agreement was executed prior to promulgation of Qanun-e-Shahadat, 1984, S. 68 of Evidence act, 1872 would come to his aid and protection, which required only one attesting witness to prove the execution of the agreement---Held: The provisions of arts. 17 & 79 of the Qanun-e-Shahadat, 1984 were endowed with retrospective effect as same were procedural in nature, and as a jurisprudential principle, procedural laws possessed retrospective applicability unless explicitly stipulated otherwise---The retrospective application of arts. 17 & 79 of Qanun-e-Shahadat, 1984 signified that they extend to cases that originated prior to their promulgation, contingent upon the evidence being recorded subsequent to their enforcement---Section 68 of the Evidence act, 1872 required that if a document was legally required to be attested it could not be used as evidence until at least one attesting witness was called to prove its execution---This provision was in effect before the Qanun-e-Shahadat, 1984 was promulgated, however, once Qanun-e-Shahadat came into force, it repealed the Evidence act, 1872 and its provisions took precedence---In the present case, the agreement to sell was executed on 07.01.1982 predating the promulgation of Qanun-e-Shahadat, 1984---The agreement was attested by two witnesses, however, only one witness was produced when the evidence was recorded in the year 2003---Given that the evidence was recorded subsequent to the enforcement of the Qanun-e-Shahadat, 1984 the provisions encapsulated in arts. 17 & 79 of Qanun-e-Shahadat, 1984 were unequivocally applicable and the respondent/plaintiff (vendee) was required to produce two attesting witnesses to prove the execution of the agreement---Notwithstanding, under S. 22 of the Specific Relief act, 1877, a court's exercise of judicial discretion in decreeing the suit for specific performance of a contract was inherently discretionary and not a matter of absolute right for any party---The grant of specific performance was not obligatory and could be denied by the court if the prevailing circumstances warranted such denial---In the present case the respondent/plaintiff's non-compliance with the attestation requirements mandated by art. 79 of the Qanun-e-Shahadat, 1984, by failing to call both attesting witnesses, rendered the document inadmissible as evidence and undermined the credibility of the agreement's execution---additionally, the respondent/plaintiff could not substantiate the payment of the sale consideration, as the testimony of one attesting witness, was vague and did not corroborate the payment---The respondent/plaintiff failed to produce receipts to prove the payment of instalments, further diminishing the strength of his claim---Given the discrepancies in the evidence and the respondent/plaintiff's inability to meet the legal requirements, granting specific performance would not have been equitable, as the court had to ensure that the relief granted did not result in injustice or unfairness to any party---Therefore, in light of the discretionary nature of specific performance and the circumstances of the present case, the Court should exercise its discretion judiciously and decline to grant specific performance---The court below acted with material irregularity---Present civil revision petition was allowed, in circumstances.

Mst. FATIMA PARVEEN vs MUHAMMAD YOUNUS S — 2026 PLD 140 KARACHI-HIGH-COURT-SINDH

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