1996 PLP 443 (SCMR)

M: Kowkab lqbal, Advocate‑on‑Record for Respondent No.3. Date of hearing: 19th December, 1995. MUHAMMAD BASHIR KHAN JEHANGIRI, J. ‑‑‑This petition for leave .to appeal is directed against the judgment dated 22‑6‑1995 passed by a learned Judge in Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dismissing Constitutional Petition No. 486/1993 filed by the petitioner against the order‑ of the District Registrar exercising his powers under .section 73 of ;the Registration Act (XVI of 1908) whereby the Sub‑Registrar was directed to register the two sale deeds dated 15‑8‑1992 and 24‑8‑1992 on behalf of the petitioner in favour of respondent No.3.

2. The facts in the background of the controversy are that respondent No.3 "expressed his desire to purchase from the petitioner the disputed land measuring 5 Kanals and 14 Marlas, situate in the revenue estate of Mohra Shah Wali Shah, Tehsil Texila for a sum of Rs.4,56,000." Out of this amount, respondent No.3 paid through a cheque a sum of Rs.40,000 and "procured from the petitioner a special power of attorney dated 11‑3‑1992". Respondent No.3 then got a sale agreement scribed and "procured the petitioner's signatures in token of its execution" wherein he got recited a fictitious sum of Rs.2,56,000 and out of it "further falsely got recorded payment of Rs.1,16,000 to the petitioner". The grievance of the petitioner further is that at the time of obtaining his signatures on the agreement to sell, respondent No.3 had undertaken to pay Rs.4,16,000 as balance of sale consideration on the registration of the sale agreement" and that "on this assurance the petitioner got the sale agreement registered on 28‑3‑1992. On 29‑3‑1992 the petitioner went to collect the sale agreement from the office of the Sub‑Registrar but learnt that respondent No.3 had already collected the deeds. The petitioner, therefore, demanded the balance of the sale consideration amounting to Rs.4,16,000 but respondent No.3 started avoiding the payment. In consequence, the petitioner not only repudiated the sale agreement but also cancelled the special power of attorney .executed in favour of respondent No.3 vide deed of cancellation dated 20‑8‑1992. It is further averred by the petitioner that notwithstanding the cancellation of special power of attorney in favour of respondent No.3, he got two sale‑deeds dated 15‑8‑1992 and 24‑8‑1992 scribed at the back of the petitioner purporting to sell the disputed land by the petitioner in favour of respondent No.3 and reciting therein the acknowledgment of the entire sale consideration. It is said that respondent No.3 being an Additional Secretary to the Government of Punjab, not only got a criminal case registered against the petitioner for cheating him but also got him arrested. During the petitioner's detention, respondent No.3 presented the sale‑deeds for registration to Sub Registrar who refused to register the deeds vide his order dated 31‑‑10‑1992. On an application under section 73 of the Registration Act filed by respondent No.3 the District Registrar by his order dated 31‑3‑199? "directed the Sub‑Registrar register the unregistered sale‑deeds". In pursuance of the said order, the Sub- Registrar registered the two sale‑deeds.

3. The petitioner challenged the two orders aforesaid in Writ Petition No. 486/1993 in the High Court. The contention raised by the learned counsel for the petitioner that the sale‑deeds did not bear the signatures of the petitioner, therefore, the 'execution" thereof was not legally established did not find favour with the learned Single Judge in the High Court. The reasoning that weighed with the learned Judge is reproduced hereunder:‑‑ "The impugned order in this Constitutional Petition has been passed by the District Registrar under the provisions of section 73 of the Registration Act. In cases where the Registration is refused by the Sub- Registrar on account of refusal to accept the execution of a document, the District Registrar has the jurisdiction to hold an inquiry and take a decision as to whether the document in fact has been executed or not and if as a result of the said inquiry he comes to the conclusion that the document in fact has been executed by the executant, he can order compulsory registration of the deed in question. The order passed by the District Registrar, however, will be subject to the decision which may be taken by a Court of general jurisdiction in a civil suit which may be filed by either of the aggrieved parties from the order passed by the District Registrar. However, in order to exercise jurisdiction under section 73 of the Registration Act, the District Registrar is competent to decide the question of execution or otherwise of a document. ", The ratio deducible from the impugned judgment of the High Court is that notwithstanding the fact that a document does not bear the signature of the person purporting to execute it, still it may be construed to have been executed. In this context, it was observed that "there can be cases where a document may be executed by a person without putting his own signatures by getting the document prepared with his knowledge, consent and under his instructions". In support of this conclusion, the learned Judge besides referring to Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) placed reliance on two‑old cases of Puran Chand Nahatta v. Monmotho Nath Mukerjee and others (108 I.C. 1928) and Satish Chandra Basu v. Harendra Kumar Ghose (166 I.C. 1937).

4. The learned counsel appearing on behalf of the petitioner distinguished the first case of Ghulam Ali and pointed to that the attempt to disinherit the female (sister of the petitioner) therein was deprecated by the Supreme Court and, therefore, it is irrelevant for construing the word 'execution' and ' executant' occurring in section 73 of the Registration Act, 1908. According to the learned counsel, in Puran Chand Nahata's case section 35 in contradistinction to section 73 of the Registration Act was interpreted. Similarly from Satish Chandra Basu's case the ratio inferred was that ' a document is executed when those who take benefits and obligations under it have put or have caused to be put their names to it'. The ratio was elaborated by holding that "personal signature is not required and another person duly authorised may, by writing the name of the party executing, bring about his valid execution and put him under the obligations involved". According to the learned counsel for the petitioner, the ratio in the case of Puran Chand Nahatta deduced in Satish Chandra Basu's case was that a document is executed when 4tose who take benefits and obligations under it have put or have caused to be put their names to it.

5. No authoritative pronouncement of this Court on the interpretation of the word 'executed' occurring in clause (a) of entire clause (b) of, section 73 of the Registration Act (XVI of 1908) has been brought to our notice.

6. Leave to appeal is granted to consider whether the two documents which do not bear the signatures of the petitioner can be held to 'have been executed' within the contemplation of clauses (a) and (b) of section 73 of the Registration Act (XVI of 1908). A.A./M3204/S Leave granted