P L D 1975 Lahore 846 (PLP)

This judgment will dispose o! R. S. As. Nos. 470, 471 and 472 of 1970.

2. The dispute in these three appeals relates to an area of 4 kanals of land situated in village Mianapura, Sialkot City. This land admittedly was allotted by the Settlement Department to Umar Din respondent No. 2, under the Displaced Persons (Land Settlement) Act, 1958. ‑Before its allotment, Umar Din had executed a general power of attorney (Exh. P. 2) slated the 9th April 1962, in favour of Muhammad Arshad, real brother of the appellant, authorising him to obtain the allotment of property in his favour rind to dispose it of by mortgage, sale or gift. He cancelled this power of attorney by a registered deed of cancellation dated the 11th February 1965 (Exh. P. 3) and executed another power of attorney on the same date with like powers of transfer in favour of Khan Raziq Nawaz Khan vide Exh. P.

4. The cancellation was published in Daily `Kohistan' dated the 31st February 1965 (Exh. P. 5/1).

3. Muhammad Arshad executed a sale deed on the 9th February 1965, of this entire land in favour of his brother who is the appellant before this Court for a consideration of Rs. 5,

000. He presented this document in the office of the Sub‑Registrar on the 11th February 1965. When this document came up for registration before the Sub‑Registrar on the 13th February 1965, he noticed that although the area was within the limits of the Municipal Committee but its value was very low. He, therefore, directed for a report to be secured from the Patwari on the question of valuation.

4. It appears that the Sub‑Registrar was not satisfied that the stamp duty was correctly paid and for this reason he was making a probe into the question of correct valuation for that purpose. On the 15th February 1965, he refused to register this document since he bad received a telegram (Exh. P. 1) from Umar Din intimating him about the cancellation of the general power of attorney in favour of Muhammad Arshad.

5. The appellant challenged this order of refusal to register the document by an appeal before the Registrar. He set aside the order dated the 15th February 1965, passed by the Sub‑Registrar and directed him to register this document, vide his order dated the 31st June, 1966 (Exh. D. 1). He was of the view that the order dated the 15th February 1965, was without jurisdiction since the Sub‑Registrar had nothing to do with the question of price. He, however, missed the point that the Sub‑Registrar could have taken any objection in the interest of Government in order to find out whether the stamp duty was correctly paid. Regarding the telegram, he was of the view that there was nothing to indicate that it had been sent by Umar Din or that the power of attorney had, in fact, been revoked.

6. On the basis of this order the sale‑deed in favour of the appellant was registered on the 22nd April 1966. On the date too the presentation was mace by Muhammad Arshad as a Mukhtar‑e‑Aam and he received a sum of Rs. 5,000 before the Sub‑Registrar.

7. Umar Din sold this land on the 10th April 1963, in three parcels. One kanal eleven marlas of this land was sold to Sheikh Maqbool Illahi, respondent in R. S. A. No. 471 of 1970, for a consideration of Rs. 5425 (Exh. P. 5) au equal area for like consideration was transferred to mss. Ghulam Sughru, respondent is R. S. A. No. 470 of 1970 (Exh. p. 7) and an rhea of 1,8 marlas was transferred in favour of Ch, Faqir Hussain, respondent in R. S. A. No. 472 of 1970 (Exh. P. 6) for a consideration of Rs. 3,

150. The entire consideration for 4 kanals amounted to Rs. 14,000.

8. Three different suits were filed by these three transferees for possession of the respective area transferred to each against the appellant on the 13th June 1967. It was alleged that the sale by Muhammad Arshad in favour of his brother was based on fraud and had been effected when the power of attorney bad already been cancelled.

9. These suits were contested by the appellant. On the basis of the pleadings of the parties the following issues were framed: (1) Whether Umar Din had cancelled the General Power of Attorney in favour of Muhammad Arshad before the execution of the sale- deed in favour of defendant No. 2? If so, to what effect? O. P. (2) Whether the sale in favour of defendant No. 2 is based on fraud ? O. P. (3) Whether Umar Din executed another sale‑deed in respect of the suit land in favour of the plaintiff? O. P. (4) If issues Nos. I and 2 are decided against the plaintiff, whether the sale in favour of the plaintiff, has a priority over that in favour of defendant No. 2 ? O. P. (5) Whether the plaintiff is a bona fide purchaser for valuable considera tion and without notice? If, so, what is its effect? O. P. The learned trial Court later on was of the view that issue No. I should be in the following form: Whether Umar Din had cancelled the General Power of Attorney in favour of Muhammad Arshad before the execution and the registration of sale‑deed in favour of defendant No. 2'' if. so, to what effect? O. P. It found that before filing the appeal before the Registrar, Muhammad Arshad and the appellant had come to know of the revocation of the General Power of Attorney in favour of Muhammad Arshad and the appellant had also knowledge of the subsequent sale in favour of the plaintiffs but he did not implead the plaintiffs as party in his appeal before the Registrar. This rendered the proceedings illegal, void and inoperative. He also held that the registration of the sale‑deed in favour of the appellant was illegal since Umar Din had already cancelled the General Power of Attorney in favour of Muhammad Arshad. He, therefore, held the sale in favour of the plaintiffs to be legal. Issue No. 2 was also decided in favour of the plaintiffs in view of the disparity between the consideration purported to have been paid by the appellant and that paid by the plaintiffs‑respondents with the additional ground that the appellant continued his efforts to get the deed executed in spite of his knowledge of revocation of the power of attorney. Issues Nos. 3, 4 and 5 were also determined in favour of the plaintiffs with the result that the decrees for possession were passed in all the three suits against the appellant in favour of the plaintiffs‑respondents.

10. The appellant challenged all these decrees and judgments by three different appeals which were dismissed by Mr. Bashir Ahmad, Additional District Judge, Sialkot. He did not give his own finding on the question of fraud, but held that the registration was invalid in law and void since Muhammad Arshad was no longer an authorised agent when he got the sale‑deeds registered on the 22nd April 1966, and received the consideration.

11. The learned counsel for the appellant contended that the effect of the registration is that the registration of the sale‑deed in favour of the appellant dates back to the time of execution i.e. 9‑2‑1965, and it to be deemed prior in time to the sale‑deeds (Exhs. P. 5, 6 and 7) which were executed in favour of the plaintiffs‑respondents and as such the appellant had become vested with the property before the execution of the other sale‑deeds. He further argued on the basis of section 72 of the Registration, Act that at most the document can be taken to have been registered on the 11th February 1965, the date of its presentation and from this angle also it has precedence over the sale‑deeds in favour of the respondents. He relied upon Lakhpat Lal v. Sukhraji A I R 1940 Oudh 318 which lays down that a Registrar directs the Sub‑Registrar to continue proceedings of registration from the stage when he had acted illegally. He also placed reliance upon Muthu Goundan v. Pachayammal and others A I R 1943 Mad. 749 for the proposition that proceedings before the Ragistrar are in continuation of the original proceedings. He further cited Muhammad Ibrahim Khan v. Sarbuland Khan and others P L D 1952 Pesh. 82 in which case relying upon Collector of Moradabad v. M. Maqbul‑ur‑Rehman and others A I R 1918 All. 194(2) it was held that the effect of the order of the Registrar in appeal is to date back the registration to the date and time of its original presentation before the Sub -Registrar. He further submitted that the Allahabad case was later on upheld in Chottay Lal v. The Collector of Moradabad A I R 1922 P C

279. The learned counsel for the respondents on the other hand laid emphasis on the point that the principle relied upon retrospectively of the date of registration by the learned counsel for the appellant is not applicable to a case where on the date of actual registration of a document, the presentation is not made by a duly authorised agent. It was further argued that on the date of actual registration i.e. 22nd April 1966, Muhammad Arshad had put in appearance and made presentation of the documents as Mukhtar‑e‑Aam of Umar Din although the power of attorney had been cancelled more than a year ago and this man who was a stranger now purported to have received the consideration also. He further submitted that in order to attract the provisions of section 72, the second presentation on the date of actual registration should also be due presentation. In this connection he relied upon Madan Lal v. Ganga Bishan and others A I R 1938 Lah. 255 where the Allahabad case already referred to above was distinguished, Bharat Indus and others v. Hakim Muhammad Hamid Ali and others A I R 1921 P C 92 and Mujib‑un‑Nisa and others v. Abdur Rahim and another 1 L R 23 All. .233. He distinguished A I R 1922 P C 279 on the ground that in that case the person who presented the document for registration continued to be authorised. The learned counsel for the respondents further argued that in this case it had been proved that the sale‑deed in favour of the petitioner was the result of fraud and collusion. He also criticised the order of the Registrar on the ground that he did not consider the implication of the Sub‑Registrar's order dated 13th February 1965. He argued that the Sub‑Registrar did not concern himself with the adequacy of price but with the question of deficiency in the stamp duty. He placed reliance upon section 41 of the Transfer of Property Act and argued that the plaintiffs. respondents were entitled to this property since they were bona fide purchasers without notice. 12: The learned counsel for the appellant replying to the question of fraud argued that there can be no fraud where blank authority has been given to an agent but even if it is established that some fraud was played by Muhammad Arshad, the innocent purchaser cannot be penalised. On the question of revocation he argued that revocation is not complete.

13. The first point to be considered in this case is whether the document (Exh. D. W. 1/1) i.e. the sale‑deed in favour of the appellant was duly registered on the 22nd April 1966. If the answer to this question be in the affirmative the registration shall take effect as if it had been registered on the 11th February 1965, when the power of attorney in favour of Muhammad Arshad had not been revoked. The relevant provision in this connection is section 72 of the Registration Act which reads as follows: "(1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of Sub‑Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub‑Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order. (2) If the order of the Registrar directs the document to be registered and the document is duly presented for the registration within thirty days after the making of such order, the Sub‑Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60 and such registration shall take effect as if the document had been registered when it was first duly presented for registration." Subsection (2) provides that if after the order of the Registrar the document is duly presented for registration within thirty days thereafter, the Sub. Registrar shall obey the same and shall follow as far as practicable the procedure prescribed in sections 58, 59 and 60 and such a registration shall take effect as if the said document had been registered when it was first duly presented for registration.

14. Section 32 provides the manner of presentation and the persons who are competent to make this presentation. Section 72(2) read with section 32,1 therefore, will mean that it is only when the document is presented again within thirty days from the date of appellate order of the Registrar inj' accordance with section 32 of the Registration Act, the consequence of the registration taking effect from the date of its first presentation will follow.

15. Section 32 provides as follows: "Except in the cases mentioned in sections 31, 38 and 89 every document to be registered under this Act whether such registration be compulsory or optional, shall be presented at the proper registration office‑‑ (a) by some person executing or claiming under the same or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such person, or (c) by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in manner hereinafter. mentioned." The sections incorporating the exception i.e. sections 31, 38 and 89 are not attracted to the facts of the present case. Consequently, the due presenta tion means a presentation by persons enumerated in clauses (a), (b) and (e) of section

32. The presentation must, therefore, be either by the executant of the document or by the persons claiming under that or by the representative or assign of such person or by the agent of such person, or by representative or assign of such person, who is authorised by power of attorney executed and authenticated in manner mentioned in the later provisions of Registration Act. These provisions are incorporated in section 33, clause (a) of subsection (1) of which provides that if the principal at the time of executing the power of attorney resides in any part of Pakistan in which the Act is for the time being in force, a power of attorney can be executed before and authenticated by the Registrar or Sub‑Registrar within whose district or sub‑district the principal resides.

16. In the present case such a power of attorney (Exh. P. 2) was held by Muhammad Arshad. But he held this power of attorney up to the 13th February 1965, on which date it was cancelled by a duly execute document of cancellation (Exh. P. 3). On the 22nd April 1966, therefore, Muhammad Arshad did not hold any power of attorney. The presentation however, on that date was neither made by the executant i.e. a transferee nor even by the representative or assign or either of them. It was presented by Muhammad Arshad alone. In the endorsement dated g .the 22nd April 1966, it is specifically recorded that this document was presented on that date by Muhammad Arshad. Muhammad Arshad admitted the execution and receipt of a sum of Rs. 5,

000. The presen tation of this document on the 22nd April 1966, was not, therefore, in accordance with section 32 of the Registration Act and it cannot be said that the document was duly presented within the meaning of section 72 (2 of that Act within thirty days from the date of order of the Registrar.

17. The provisions of section 32 are imperative in character. In Jamna Prasad v. Muhammad Aftab Ali Khan AIR 1914 P C 16=42 I A 22 = 31 All.49 two mortgage deeds were presented at registration office by two agents on behalf of the mortgagee neither of whom held the authenticated power of attorney. Thereupon the Registrar in pursuance of his duty under section 34 enquired of mortgagors who were there present at the same time whether they admitted the execution of the deeds. On their making such admission the Registrar registered the two deeds. The High Court at Allahabad held that the mortgagors having admitted the execution and having been in attendance simultaneously, the presenta tion should be deemed to have been made by them (I L R 34 All. 331). Their Lordships of the Privy Council took a different view and observed that the mortgagors had attended to admit that they had executed the deeds and not to present them for registration. Their assenting to the registration could not be deemed as presentation by them. It was further observed that one of the objects of the Act was to make it difficult for persons to commit fraud by means of registration under the Act and that it is the duty of the Courts in India not to allow the imperative provisions of the Act to be defeated when it is proved that an agent who presents a document for registration, has not been duly authorised in the manner described in the Act to present it.

18. Although the Legislature, in order to prevent or obviate any miscarriage of justice hastened to insert section 33‑A with retrospective effect but the weight of the principle of this authority is still unshaken. This principle was cited with approval by their Lordships of the Privy Council in Bharat Indus and others v. Hakim Muhammad Hamid Ali Khan and others, long after the insertion of section 23‑A, in the Registration Act. In Mujib‑un- Nisa and others v. Abdur Rahim and another a person who had executed a document disposing of immovable property made his power of attorney to his agent to present it for registration but he died before its presentation. The Registrar was aware of his death, but accepted and ‑registered the document. It was held that the registration was illegal and ,invalid since the power and jurisdiction of the Registrar only arises when it 4s invoked by a person in direct relation to the document and the relations of the person authorised by the maker in his life had ceased on his death. It was further held that it was not a mere defect in procedure.

19. The case of Collector of Moradabad v. M. Maqbulur Rehman and ‑others is clearly distinguishable. In that case the objection was not about ‑the authority of the person presenting the document for registration under section 75(2) of the Registration Act which is similar in terminology as section 72(2), but upon the manner of presentation by the person so authorised. The facts of that case were that the mortgagee executed a power of attorney in favour of and for presentation of the mortgage deed. Such presentation was made but the Sub‑Registrar refused to register the document since the mortgagor did not appear and, according to the Sub‑Registrar, this amounted to denial of the execution. The mortgagee having died an application was submitted by his legal representatives, who were minors, to the Registrar and the proceedings before the Registrar resulted in an order by him under clause (i) of section 75 of the Registration Act whereby he ordered ‑the document to be registered. In the meanwhile the estate of the minors had come under the management of the Court of Wards. The Collector, in his official capacity as Manager of the Court of Wards, sent the mortgage deed to the Sub‑Registrar with an official letter enclosing also a copy of the order of the District Registrar. The Sub‑Registrar on receipt of this communication took cognizance of the document within the meaning of ‑section 75(2) of the Act and proceeded to register it. A controversy being raised on the question whether the presentation by the Collector by a ,registered letter and without appearing in person before the Sub‑Registrar was a due presentation of the document within the meaning of section 75(2) of the Act, Piggott J., answered in the affirmative and held that the action of ,the Sub‑Registrar in taking cognizance of certain facts on the strength of an official letter of the Collector, without requiring his personal attendance was at most a defect in procedure curable by the provisions of section 87 of the Act. Walsh, J. agreed with the conclusion, though for different reasons with reference to section 72 as well as section 75, he held that the presentation requisite under these two sections was not necessarily of a strict personal character which is obviously intended by Part VI of the Act (which includes section 32). It was further held that what happened after the Registrar's order as provided by section 75 is pure machinery and .any form of presenta tion if it is backed up by an application, which takes place on the part of the presentor and is noted on the order in his favour, is sufficient. The underlined* words would show that even if the personal presentation may not be necessary in a case covered by sections 72(2) and 75 of ‑the Registration Act, the presentation must be at the instance of a person ‑who had a right or authority to present the document on the date of the subsequent presentation. *[Here in italics)

20. The Privy Council case in Chottey Lal v. Collector of Moradubad is. an appeal against the judgment of the Allahabad High Court. It was observed, there as follows: "The weight of this argument depends upon the phrase `duly presented' and it is pointed out that the subsequent use of the same words, in subsection (3) shows that `duly presented' means presented in, accordance with all the formalities imposed by section

32. Their Lordships are not prepared to differ with this reasoning, but it. does not conclude the case in the appellant's favour. Upon the hypothesis that section 75, subsection (2), may be dealing with a case such as the present in which original presentation has been properly made, and as every condition has been satisfied, there would, in their Lordships' opinion, be nothing to prevent the District Registrar, when, he had determined the question of execution, from directing that the registration should then be made. The last words in subsection (3), which provide that the registration shall date back, do not necessarily refer only to a registration effected in pursuance to be provisions of subsection (2), but to every registration consequent on the order made by the Registrar. The main point about subsection (2), is that it is mandatory in form and compels the registration if the document be duly presented. If this procedure be followed and registration is. refused, the process of the Court are open for the purpose of compel ling obedience, a privilege that would not be enjoyed if the formalities were omitted. Their Lordships can find nothing in the section to prevent the Registrar or the Sub‑Registrar from registering a document which had been duly presented and the execution of which has been. proved, without requiring a repetition of all the original steps, but he cannot be compelled to register unless the document be 'duly presented' a second time. There are many mischiefs against which the statute was designed to afford protection for presentation in the first instance,. but when once the execution of the document and the original con ditions for presentation are complied with, there is no reason why they should all be repeated" It may be seen that in the opinion of their Lordships of the Privy Council, the Sub‑Registrar cannot be compelled to register unless the document is 'duly presented' a second time. What has been said is only this that repetition of a formality is not necessary.

21. None of these cases or authorities covers the proposition that once the document has been duly presented under section 32, subsequent presen tation under section 75(2) by an unauthorised person would not invalidate the registration. These authorities do not go to the extent of laying down that anybody may present the document. They only deal with the manner of presentation by a person authorised to present under section 32 of the Registration Act. The case of Muhammad Ibrahim v. Sarbuland Khan P L D 1952 Pesh. 83 is equally distinguishable. There it was held that the document had not been registered according to law. The ground for this finding was that it was presented for registration after the expiry of the period fixed by law. There are: observations to the effect that according to the dictum laid down in Collector of Moradabad v. M. Maqbulur Rehman and others and Chottay Lal v. Collector of Murababad the document originally having been presented by the executor its subsequent presentation under section 75(2) by a counsel who was not authorised to present it will not make the registration invalid. But these remarks are merely obiter. In my view the presentation under section 72(2_ in order to be a due presentation must be presentation by or on behalf of a presentor authorised on that date to present under section 32 of the Registra tion Act. But the form of presentation may not be repeated and thus may not be strictly in accordance with that section. .In the present case it has been established that the alleged executor did not present the document on the 22nd April 1966, and the person who presented it was not authorised by him. Issue No. 1 was, therefore, correctly decided by both the Courts below.

22. I agree with the finding of the learned trial Court that in this case Muhammad Arshad was playing fraud upon his principal, by purporting to sell a valuable property for a paltry amount of Rs. 5,000 although it was sold for a sum of Rs. 14,000 within two months. The inadequacy of the consi deration coupled with close relationship of the appellant with Muhammad Arshad and his subsequent presentation of the document when he was no authorised to present, it, establishes a case of collusion and fraud.

23. In my view these appeals are without any merit and are dismissed with costs. S. A. H. Appeal dismissed.