P L D 1964 Supreme Court 456 (PLP)

HAMOODUR RAHMAN, J.‑

This appeal, by special leave, is directed against the judgment and order of a learned Single Judge of the High Court of West Pakistan upholding in revision the dismissal of a suit for pre‑emption filed by the appellant herein. The appellant was married to the respondent No. I Umar Bakhsh and the dower fixed at the said marriage was Rs. 1,000 in cash and a gold bracelet worth Rs.

300. The respondent No. 1 was along with his brother Ghulam Yasin entitled in equal shares to a house situated in village Nauthea, Tebsil Peshawar. They also used to reside in this house. On the 7th of May 1941, Umar Bakhsh conveyed his half share in the said house to his wife, the appellant herein, by way of Hiba‑bil‑Ewaz in lieu of a half portion of the cash dower amounting to Rs.

500. On the 18th of September 1944, the respondent Umar Bakhsh's brother Ghulam Yasin, the respondent No. 2 herein, made a conditional sale of his half share in the said house in favour of his brother Umar Bakhsh for the sum of Rs.

500. The condition was to the effect that if the amount of Rs. 500 was paid within two years, Umar Bakhsh would reconvey the half share to Ghulam Yasin. On the 2nd of May 1949, however, Umar Bakhsh took another wife named Mumtaz Begum and transferred to her by way of dower the half share that he had acquired from Ghulam Yasin. Thereafter, on the 29th of January 1952, Umar Bakhsh paid another Rs. 250 to Ghulam Yasin and secured the cancellation of the condition for re‑conveyance This last transaction was treated by the appellant as an out and out sale and, therefore, she brought a suit for the pre‑emption thereof on the 12th of November 1953, claiming to be a co‑sharer in the property. Sometime before this, however, the appellant being unable to live with her husband Umar Bakhsh and his second wife had gone away to live with her father. Umar Bakhsh had, thereupon, filed a suit for restitution of conjugal rights which was contested by the appellant. She had for the proper conduct of her defence in the said suit also appointed her father as her attorney by executing a power in his favour on the 18th of May, 1952. The appellant had also filed a counter‑suit for dissolution of her marriage and in this suit also her father was her constituted attorney under a power executed on the 1st of May, 1954. Both these suits were consolidated and the suit for restitution of conjugal rights was decreed by the trial Court subject to the condition of payment of Rs. 800 (Rs. 500 as the balance of the dower and Rs. 300 the price of ornaments to which the appellant was held to be entitled). Her suit for the dissolution of the marriage was, however, dismissed. From these decrees the appellant went up in appeal to the Court of the District Judge and there during the pendency of the appeal a compromise was effected between Umar Bakhsh and her father Abdul Hakim under which Vmar Bakhsh was to grant a divorce to the appellant and pay a sum of Rs. 8C0, which the appellant Ghulam Sakina was to accept and undertake in lieu thereof to maintain the son of Umar Bakhsh born from her. She was also to relinquish her right, title and interest in the half share of the house which had been transferred to her on the 7th of May 1941. Notwithstanding this compromise, however, the appellant persisted in her suit for pre‑emption. The compromise was accordingly filed in the Court trying the pre‑emption suit for non‑suiting the appellant. But it was contended on her behalf that since her agent Abdul Hakim had no authority to relinquish her rights in the house, she was not bound by this term of the compromise and, in any event, the compromise being inadmissible in evidence for want of registration did not affect her interest in the house. These contentions were repelled by the trial Court which dismissed the suit for pre‑emption not only on the ground that the appellant had no longer any right to pre‑empt but also :9n the grounds of limitation and non‑joinder of a necessary party, namely, Mumtaz Begum, the transferee of the other half share. On appeal the Senior Sub‑Judge, Peshawar, confirmed the decree and dismissed the appeal. This dismissal was also upheld in revision by the High Court. Leave was granted in this case to consider as to whether the unregistered compromise decree was sufficient in law to defeat the appellant's claim for pre‑emption and as to whether I1mar Bakhsh could rely upon the principle of section 53‑A of the Transfer of Property Act to resist her claim ? Learned counsel appearing for the appellant has endeavoured to support this appeal mainly on three grounds:‑ (1) that the powers executed in favour of the father by the appellant in the suits for restitution of conjugal rights and dissolution of marriage did not authorise hire to relinquish or surrender her share in the house. If her father did so, he acted in excess of his authority and the compromise was not binding upon her ; (2) that the value of the property sought to be surrendered being over Rs. 100 the compromise decree was compulsorily registrable under section 17 of the Registration Act, and since this was not done, it could not affect her title in the property and, therefore, her right to pre‑empt could not be defeated on this ground, and (3) that the Courts below were wrong in taking the view that the appellant had, in any event, ratified the act of her father in surrendering her share in the said property. So far as the first point is concerned, the power‑of‑attorney executed in favour of the father Abdul Hakim in the suit for dissolution of marriage clearly authorised him not only to conduct the proceedings but also to compromise the suit. It was in exercise of this express power to compromise that Abdul Hakitu purported to settle the suit during the pendency of the appeal. The authority to enter into the compromise was, accordingly, there. The evidence adduced in this case also shows that Mist. Ghulam Sakina did not dispute that her father had the power to enter into a compromise. Abdul Hakim, the constituted attorney, if, his statement recorded on the 3rd of May 1955, stated, when confronted with the deed of compromise, that he received Rs. 800 from Umar Bakhsh in terms of the compromise and duly paid over this amount to his daughter Mst. Ghulam Sakina and informed her of the terms of the compromise including the surrender of her share in the house. Upon this she accepted the divorce and the money but refused to surrender the house. lie further admitted that although Mst. Ghulam Sakina did not accept the surrender of the house she took no steps to file any application to have the compromise decree set aside. From this evidence it has been inferred that Mst. Ghulam Sakina had by her conduct ratified even the surrender of the house, for, not only was that the consideration for the divorce which her agent obtained for her but she had even after being made aware of the terms taken no steps to repudiate thetas. She could not, therefore, be allowed to accept the divorce and reject the surrender of the house. Learned counsel has sought to contest this proposition that the surrender was the consideration for the divorce, for, according to him the divorce was not a khula divorce but in essence only a mubaraat. The main distinction between a khula and mubaraat is that in the former the aversion is on the side or the wife and she desires a separation but in the latter the aversion is mutual and both sides desire separation. Secondly, in a, divorce by khula some consideration must be given by the wife to the husband for her release from the marital tie. It is in affect an offer from the wife for her release on payment of a compensation. In the present case the suit filed by the husband for restitution of conjugal rights had been decreed and against that the appellant's suit claiming dissolution of marriage had been dismissed In the trial Court. It was the appellant, therefore, who sought the severance of the marital tie and not the respondent Umar Bakhsh and the compromise secured this for her. In the circumstances, it cannot be said that the divorce ultimately agreed upon was only a mubaraat and not a khula. The half share of the house was transferred to the wife in lieu of the half of her dower, as such its surrender in consideration of the divorce was most probable and natural in the circumstances. The appellant could not thus have accepted the divorce and rejected the surrender of her share in the house. One was dependent on the other, for, that was the consideration which moved from her for the divorce. The Courts below were, therefore, in our view, also right in holding that there had been a valid ratification of the compromise by the appellant accepting the divorce and not taking any step to have the compromise set aside. After such ratification the right to pre‑empt could no longer subsist and was rightly refused. Lastly the contention that in the absence of registration of the compromise decree the right of pre‑emption could not be defeated, as the compromise could not affect her rights in the property, is also without any force. Section 49 of the Registration Act, no doubt, provides that if a document, which is compulsorily registrable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53‑A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property t under a document in writing which, though compulsorily registrable, has not been registered, then neither the person transferring the property nor any one claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property. In the present case Umar Bakhsh was admittedly in possession of the house and, therefore, even if the deed of compromise was not registered, the appellant could not enforce her right in the said property against Umar Bakhsh who continued to remain in possession under the terms of the compromise. None of the g1ounds urged in support of this appeal is, therefore, of any substance. This appeal is, accordingly, dismissed. But in view of the fact that the dispute is between a husband and wife who has already surrendered the half share in a house earlier given to her by the husband we leave the parties to bear their own costs. K. B. A. Appeal dismissed.