2011 PLD 241 SUPREME-COURT.
(On appeal from the order dated 12-11-2003 passed by Lahore High Court, Multan Bench in C.R.No.805-D of 2002)
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 17, 72 & 79----Constitution of Pakistan, Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether scribe of agreement having appeared as witness to prove agreement to sell could assume the role of attesting witness; and whether in the light of judgment passed by Supreme Court in another case, testimony of one marginal witness was enough to prove execution of such agreement, if his statement otherwise was confidence inspiring.
Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760 ref.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 17(2)---Document, proof of---Number of attesting witnesses---Pre-condition---In order to bring case within the purview of Art.17 of Qanun-e-Shahadat, 1984, two ingredients must co-exist firstly there must be an instrument, secondly, it should pertain or relate to a matter either of a financial or future obligations---If such two conditions are met, it is mandated that the instrument must be attested in terms of Art.17 of Qanun-e-Shahadat, 1984---Agreement of sale or to sell immovable property being a written document is an instrument within the meaning of law.
Black's Law Dictionary, Fifth Edn. ref.
(c) Specific Relief Act (I of 1877)---
----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17, 72 & 79---Agreement to sell---Execution---Proof---Scribe of document, evidence of---Requirement of two attesting witnesses---Suit filed by plaintiff was dismissed by Trial Court on the ground that he failed to produce two marginal witnesses in proof of execution of agreement to sell---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court and High Court---Validity---Transaction of sale of immovable property (if not a conditional sale) was the conclusive transfer of an absolute title and ownership of property unto the vendee in presentee, while agreement to sell was meant for accomplishing the object of sale in futurity and for all intents and purposes it pertained to future obligations of the parties thereto---Sale agreement/agreement to sell was. duly covered and fell within the pale of Art.17 of Qanun-e-Shahadat, 1984---Purpose and object of attestation of document by certain number of witnesses and its proof through them was meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and thus legislature in its wisdom had established class of documents which were specified in Art.17 of the Qanun-e-Shahadat, 1984---For validity of instruments falling within Art.17 of Qanun-e-Shahadat, 1984, the attestation as required therein was absolute and imperative---For the purpose of proof of such a document, attesting witnesses had to be compulsorily examined as per requirement of Art.79 of Qanun-e-Shahadat, 1984, otherwise it was not to be considered and taken as proved and used in evidence---Such principle of law was in line with the principle that where law required an act to be done in a particular manner, it had to be done in that way and not otherwise---Scribe of a document could only be a competent witnesses in terms of Arts.17 and 79 of Qanun-e-Shahadat,1984, if he had fixed his signature as an attesting witness of the document and not otherwise---Signing of document in the capacity of a writer did not fulfil and meet mandatory requirement of attestation by him separately---Scribe of document could be examined by concerned party for corroboration of evidence of marginal witnesses or in the eventuality those were conceived by Art.79 of Qanun-e-Shahadat, 1984, itself not as a substitute---Mandatory provisions of law had to be complied and fulfilled and only for the reasons or the perception that such attesting witness if examined would turn hostile did not absolve the concerned party of its duty to follow the law and allow the provisions of Qanun-e-Shahadat, 1984, relating to hostile witness take its own course---Supreme Court declined to interfere in the judgments and decrees passed by the Courts below---Appeal was dismissed.
Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760 distinguished.
Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Mst. Noor Bibi and 9 others v. Ghulam Rasool 1991 SCMR 1281; Muhammad Sharif v. Mst. Sardaran Bibi and others, 2002 MLD 1002; Mst. Allah Jawai and others v. Maqbool Shah and others 2005 MLD 261; Jalal Din and 4 others v. Sardaran Bibi and 7 others 2006 YLR 2959; Nazir Ahmed v. Muhammad Rafiq 1993 CLC 257; Bonaventure Paul v. Ali Muhammad 1991 MLD 145; Habib Bank Limited v. Mubarak Alam Syed 1987 CLC 1914; Fiazyab Khan v. Aziz Ali Chishti 1982 SCMR 358; Malik Din and another -v. Muhammad Aslam PLD 1969 SC 136; Muhammad Samar and others v. Jahangir Ahmad and others 2002 CLC 1865; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Black's Law Dictionary, Fifth Edn.; Beni Chand v. Smt. Kamla Kunwar and others AIR 1977 SC 63; Maqsood Ali Khan v. M. Tehseen Khan 2003 YLR 1866; N. Kamalamand another v. Ayyasamy and another (2001) 7 SCC 503; Sheikh Karimullah v. Gudar Koeri and others AIR 1925 All. 56; Ram Samujh Singh v. Mt. Mainath Kuer and others AIR 1925 Qudh 737; Badri Prasad and. another v. Addul Karim and others 1913 (19) IC 451; Qasim Ali v. Khadim Hussain through Legal Representatives and others PLD 2005 Lah. 654 and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250) ref.
Talib H. Rizvi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Appellant.
Mushtaq Ahmed Mohal, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondents Nos. 2-6.
Ex-parte for Respondent No.1 (i-ii).
Date of hearing: 21st December, 2010.
JUDGMENT
MIAN SAQIB NISAR, J.---This appeal has its genesis in a suit for specific performance, filed by the appellant against the respondents, which was dismissed by the trial Court vide judgment and decree dated 12-10-2000 holding that the appellant has failed to prove the agreement to sell for the lack of confidence inspiring evidence besides, the same is also not proved as the mandatory requirement of law to examine two marginal witnesses in this behalf has not been fulfilled; the appeal and the revision petition, initiated by the appellant, have also failed; the relevant portion of the High Court judgment reads as under:--
"Both Courts below have held that the alleged agreement dated 17-2-1986 (Ex.P-1) (sic) on the basis of which the petitioner/plaintiff filed a suit for specific performance, had not been proved because the marginal witnesses thereto had not been produced by the petitioner/plaintiff. It is true that the scribe of the said document had appeared as a witness but this, by itself, does not meet the requirements of Article 17 read with Article 79 of the Qanun-e-Shahadat Order. The Courts below, therefore, were justified in holding that execution of the said agreement had not been proved."
2. Leave to appeal, in this case, was granted vide order dated 10-1-2009 to consider, whether the scribe of the agreement having appeared as a witness to prove the agreement to sell can assume the role of an attesting witness and whether in the light of the judgment reported as Abdul Wali Khan v. Muhammad Saleh (1998 SCMR 760), the testimony of one marginal witness is enough to prove the execution of such an agreement, if his statement otherwise is confidence inspiring.
3. Learned counsel has argued that the second marginal witness of the document was the son of the vendor, therefore, the appellant could not take the risk of producing him; the document was admitted in evidence without the objection of the respondents which amounts to the waiver, rather an acquiescence to the mode of its proof; P.W.1, who has inscribed the agreement, was present at the time of its execution and when the two witnesses attested the document, thus for all intents and purposes he was a marginal witness; he has duly appeared in the case and has deposed to that effect. Lastly, it is argued that that an agreement to sell immovable property is not required by law to be attested by two witnesses, because such an instrument does not fall within the purview of Article 17 of Qanun-e-Shahadat Order, 1984 (hereinafter referred to as The Order, 1984). In support of his contentions, the learned counsel has placed reliance upon the following cases: Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639), Mst. Noor Bibi and 9 others v: Ghulam Rasool (1991. SCMR 1281), Muhammad Sharif v. Mst. Sardaran Bibi and others, (2002 MLD 1002), Mst. Allah Jawai and others v. Maqbool Shah and others (2005 MLD 261), Jalal Din and 4 others v. Sardaran Bibi and 7 others (2006 YLR 2959), Nazir Ahmed v. Muhammad Rafiq (1993 CLC Lahore 257), Bonaventure Paul v. Ali Muhammad (1991 MLD 145), Habib Bank Limited v. Mubarak Alam Syed (1987 CLC Karachi 1914), Fiazyab Khan v. Aziz Ali Chishti (1982 SCMR 358), Malik Din and another v. Muhammad Aslam (PLD 1969 SC 136), Muhammad Sarwar and others v. Jahangir Ahmad and others 2002 CLC 1865 and Abdullah and 3 others v. Abdul. Karim and others (PLD 1968 SC 140).
4. Heard. At the very outset, it may be pointed out that according to the findings of the first two courts, the appellant has not been able to prove the agreement as the testimonies of the scribe and the only marginal witness examined in this behalf were considered devoid of confidence; the reasons/findings in reference to the above are duly incorporated in the judgments which are neither shown nor an attempt has been made to establish, if are the result of any misreading or non reading, therefore, leaving apart the legal submissions made by the appellant's learned counsel, the judgments and decrees of the courts of facts call for no interference on this score alone.
5. Notwithstanding the above, now attending to the legal propositions urged, it is expedient to comprehend the true import of Article 17 (2)(a) of The Order, 1984, the relevant portion whereof reads as follows:--
(1) .
(2) Unless otherwise provided in any law relating to the enforcement of Hadood or any special law,-
(a)in matter pertaining to financial or future obligation, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b)in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as .the circumstances of the case may warrant"
From the clear and unambiguous language of the Article, in order to bring a case within its purview in the context of present case, two ingredients must co-exist, firstly there must be an instrument, secondly, it should pertain or relate to a matter either of a financial or future obligations. If the above two conditions are met, it is mandated that the instrument must be attested in terms of the Article. There can be no cudgel that an agreement of sale or to sell immovable property being a written document is an instrument within the meaning of law, however, to ascertain; its nature, the Black's Law Dictionary, Fifth Edition defines it as under:
"Agreement of sale; agreement to sell.---An agreement of sale may imply not merely an obligation to sell, but an obligation on the part of the other party to purchase, while an agreement to sell is simply an obligation on the part of the vendor or promisor to complete his promise of sale. Treat v. White, 181 U.S. 264, 21 S.Ct. 611, 45 L.Ed. 853. It is a contract to be performed in future, and, if fulfilled, results in a sale; it is preliminary to sale and is not the sale."
The noted meaning is also fortified by the provisions of section 54 of the Transfer of Property Act, 1882 which defines the sale of immovable property, prescribes the mode and mechanism how it is made; and by virtue of its clear language distinguish it from a contract/agreement of sale, when it is ordained that: "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties". Furthermore, in the above context, a clear distinction and contract is drawn in the same provision, wherein it is provided that a contract for sale itself shall neither create any interest in or a charge on such property. Thus, the former transaction (if not a conditional sale) is the conclusive transfer of an absolute title and ownership of the property unto the vendee in presentee, while the later is meant for accomplishing the object of sale in futurity and for all intents and purposes it pertains to the future obligations of the parties thereto, resultantly there is no room for doubt that a sale agreement/agreement to sell is duly covered and is hereby so declared to fall within the pale of said Article.
6. Having settled the above, it is necessary and appropriate to comprehend the true meaning and purport of the word/concept attested/attestation and the abject and effect thereof. In Black's Law Dictionary, the noted term has been defined as:-
"The act of witnessing an instrument in writing, at the request of the party making the same, and subscribing it as a witness. The act of witnessing the execution of a paper and subscribing the name of the witness in testimony of such fact."
As per words and phrases, permanent edition "Attest" means to bear witness to; to affirm to be true or genuine; to witness the execution of a written instrument, at the request of him who makes it, and subscribe the instrument as a witness (re Mitchell's Estate, 249 P.2d 385, 394, 41 Wash.2d 326)." an "Attestation" is the act of witnessing the actual execution of a paper subscribing one's name as a witness to that fact (re Smith, 281 F. 574, 575)". In Beni Chand v. Smt. Kamla Kunwar and others (AIR 1977 SC 63), it has been held "By attestation is meant the. signing of a document to signify that the attestor is a witness to the execution of the document and an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document". In the case reported as Maqsood Ali Khan v. M. Tehseen Khan (2003 YLR 1866) attestation is held to mean "attesting witness in terms of the Article 79 of Qanun-e-Shahadat Order, 1984 read with section 3 of Transfer of Property Act is a person who had witnessed the execution of the instrument by the executants and also signed the instrument for the purpose of attesting signature of executant". The legal maxim animo testandi or animo attestandi is the pithy statement about the principle and the concept of attestation which in N. Kamalam and another v. Ayyasamy and another (2001) 7 Supreme Court Cases 503) has been described to connote "The attesting witnesses must subscribe to the intent that the subscription of the signature made stands by way of a complete; attestation of the will and the evidence is admissible to show whether such was the intention or not." From the noted references, it is clear that the attesting witness is a person who is intended by the conscious decision of the executant to stand as a witness, 'for the purpose of the authenticity of the execution of the document. And pursuant to the above, such a person affix his signatures/thumb impressions on the document specifically as an attesting witness.
7. Evidence Act,1872 (the Act) has been repealed and replaced by The Order, 1984 and Article 17 thereof is a provision which was not, as it is now, a part of the law earlier on the subject. Rather Section 134 of the Act which may be said to have nexus to this Article provided "no particular number of witnesses shall in any case be required for the proof of any fact". None of the provisions of the Act itself enunciated which instruments should be mandatorily attested or prescribed the number of the witnesses for that purpose, though the requirement of the attestation of a particular kind of a document/instrument by certain number of witnesses was set out by other laws and section 68 of the Act only provided that for the purposes of proving the document such specified number of witnesses are needed, therefore, the scope of the section ibid was restricted to the proof of a document only. However, the provisions of Article 17(2)(a) encompasses in its scope two fold objects (i) regarding the validity of the instruments, meaning thereby, that if it is not attested by the required number of witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments in terms of mandatory spirit of Article 79 of The Order, 1984 when it is read with the later. Because the said Article in very clear terms prescribes "If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence".
8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.
9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witnesses: the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative.
10. It has been held in Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639):--
"Attesting witness was the one who had not only seen the document being executed by the executant but also signed same as a witness---Person who wrote or was 'scribe' of a document was as good a witness as any body else, if he had signed the document as a witness (Emphasis supplied) No legal inherent in competency existed in the writer of a document to be an attesting witness to it".
In N. Kamalam and another v. Ayyasamy and another (2001) 7 Supreme Court cases 503), it has been held:
"Evidence of scribe could not displace statutory requirement as he did not have necessary intent to attest."
In Badri Prasad and another v. Abdul Karim and others (1913 (19) IC 451, it is held:--
"The evidence of the scribe of a mortgage deed, who signed the deed in the usual way without any intention of attesting it as a witness, is not sufficient to prove the deed."
An attesting witness is a witness who has seen the deed executed and has signed it as a witness. (Emphasis supplied)."
To the same effect are the judgments reported as Qasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfil and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute.
11. For the submission that the agreement in this case was received in evidence without any objection, therefore, it cannot be excluded from consideration, suffice it to say that the submission is wholly misconceived, the said agreement was never tendered in evidence or exhibited, rather was only marked "A". Besides the said rule shall not be applicable to the case which comes within the mischief of Article 79, on account of its language as explained above that such document shall not be used in evidence, therefore, it is the command of the law to exclude it from evidence, until it is admitted to have been executed by the side against whom it is sought to be used and enforced. Moreover, a litigant cannot be precluded to tender a document in evidence through the examination/statement of one attesting witness and at that point of time the opposite side cannot anticipate if the other attesting witness shall not be produced, enabling it to raise the objection about the proof there and then, therefore on this account the non raising of the objection at the time when it is tendered in the statement of one of the marginal witnesses or even through the scribe who may come forward to prove his writing does not make the document admissible.
12. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant could not take the risk of examining him, it may be held-that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there.
13. In the light of what has been stated above, we find no merit in their appeal which is herby dismissed. No order as to costs.
M.H./T-1/SCAppeal dismissed.
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