P L D 1973 Peshawar 63 (PLP)

And we do hereby undertake that Mst. Zamroot Jan shall have 1/5 share in the double-storey house situated in Mohallah Sarbanan Police Station Hashtnagri, Peshawar city, and which house has under it six shops; on its east there is a public road, on its west is the house of one Haidar, on the north of it is a public road leading to Lahori Gate and on its south is the house of Mian Abdul Hakim, and that the price of 1/5 share of the said house is Rs. 2,

100. There is, no doubt that the object of this document was to create in favour of Mst. Zamroot Jan interest in immovable property of the value of more than Rs. 100 and consequently it required compulsory registration under sub-clauses (b) and (c) of clause (1) of section 17 of the Registration Act, which read:- "Documents of which registration is compulsory.-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. RVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely (a) . . . . . . . . . . . (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether . in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and . . . . ." Dower-deed, Exh. P. W. 1/1, being unregistered, would invite the penalty provided in section 49 of the Registration Act, which is to the following effect:-- "Effect of non-registration of documents required to be registered.-No document required by section 17 or by any provision of the Transfer of Property Act, to be registered shall-- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section S3-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument" By reading sections 17 and 49 of the Registration Act, it is clear that dower-deed Exh. P. W. 1/i, which was compulsorily registrable, but not registered, would not convey to Mst. Zamroot Jan any interest in the immovable property mentioned therein except that it could be received in evidence for the limited purpose mentioned in the proviso appearing under section 49 of the Registration Act. The proviso specially mentions that a document of this nature can be received in evidence to prove "part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882 . . . . ." and in order to see the effect of section 53-A, on which great emphasis has been placed by the learned counsel for the appellant, it would be proper to reproduce it:-- "Part performance.-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the . transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued to possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part-performance thereof."

6. The object of this section, which was introduced in the Transfer of Property Act by Act XX of 1929, appears to be that a written instrument, by which a person contracts to transfer for consideration any immovable property, provided it is otherwise in accord with the various conditions mentioned in that section, can be used by the transferee as a weapon of defence against the transferor or tiny other person claiming under him to protect his interest. In other words, all that section 53-A of the Transfer of Property Act provides is that in case a written instrument, by which interest 1s created in immovable property for consideration, has not been registered according to the requirements of section 17 of the Registration Act, then the transferor and all those claiming under him, would be debarred from enforcing against the transferee any right in respect of the property of which transferee has taken or has continued to be in possession, other than the right expressly provided by the terms of the contract. The object of the section would therefore, appear to be to provide defensive protection to a transferee of an immovable property, but to contend that on the strength of this section, a transferee could claim to have become the owner of the property would be fallacious, for it would tantamount to obliterating sections 17 antis 49 of the Registration Act as well as section 54 of the Transfer of Property Act, by which too transfers of tangible immovable property of the value of Rs. 100 or more are required to be made only by a registered instrument. Surely, no such thing is permissible to be done by which a part of the Statute would be rendered nugatory and indeed the learned counsel failed to show any authority in support of the contrary proposition.

7. The Supreme Court of Pakistan had the occasion to consider the effect of section 53-A of the Transfer of Property Act in the case of Abdullah Bhai and others v. Ahmad Din (P L D 1964 S C 106), and the following observations on pages 111 and 112 of the Judgment would appear to be apposite in the content of the present discussion:-- "According to this section when the transferee takes possession of or continues in possession of property which has been transferred to him by an unregistered deed the transferor cannot enforce a right against the transferee in respect of that property except a right provided for in the deed. Property means not the physical property but the right in property which is transferred and the remedy of the transferor is barred only with respect to the right that stands transferred. The only effect of this section is that when the person in whose favour the unregistered deed has been executed is a defendant in the suit the plaintiff cannot enforce against him a right which is inconsistent with the rights conferred upon the defendant by the deed . . . . . It is not, the effect of section 53-A that any right or interest stands transferred in violation of section 107 of the Transfer of Property Act or section 17 of the Registration Act. No title is transferred to the person who holds the deed although he can base a defence on it. Section 107 of the 'Transfer of Property Act remains unaffected by section 53-A . . . . ." These observations, with which I am respectfully bound, furnish a complete answer to the contention of the learned counsel and without extending this discussion any further, it is obvious that dower-deed, Exh. P. W. 1/1, did not create in favour of Mst. Zamroot Jan any interest in the suit property, for being unregistered under section 17 of the Registration Act, it came within the mischief of section 49 of the Registration Act and section 54 of the Transfer of Property Act. It would, therefore, follow that the appellant too, who claims through. Mst. Zamroot Jan, would have no interest in the suit property, notwithstanding the fact that Mst. Zamroot Jan had allegedly gifted to him her share in the property and also put him in possession. This was clearly an exercise in futility, because if Mst. Zamroot Jan would have no share in the property then she could convey none to the appellant.

8. The net result of all this discussion is that even if deed Exh. D. 6/2 is held not to be affecting the interest of Mst. Zamroot Jan, she got no interest in the suit property, for Exh. P. W. 1/1 by which the right was attempted to be created in her favour, came within the mischief of section 49 of the Registration Act and section 54 of the Transfer of Property Act and consequently she could not gift away her share in favour of the appellant. The appeal, therefore, fails and is dismissed, but under the circumstances there would be no order as to costs. S. A. H. Appeal dismissed.