P L D 1952 Peshawar 82 (PLP)

MUHAMMAD SHAFI, J.‑Haji Faizullah Khan, son of Malik Arsallah Khan, was an owner of considerable landed and other immovable property, in Charpareza, Khappa and Kaniza vil lages of Peshawar District. He had no male or female issue. On 20th February 1911, he executed a gift deed in which he said that he had only one wife by the name of Mst. Begum Jan and besides her there was a grand‑daughter of his brother Ghulam Khan by the name of Mst. Marhama (Maryam Jan), whom he had brought up since childhood and who was living with him. He gifted in their favour 50 jaribs of land out of the entire area in his possession and ownership, and seven mianas situated in Charpareza village. Haji Faizullah Khan died sometime later in the same year. After his death, three different mutations with regard to the properties situated in three different villages were attested in favour of not only Mst. Begum‑Jan, but also in favour of Mst. Qamro Jan, who was also said to be Haji Faizullah Khan's widow. Haji Faizullah Khan had altogether four brothers, namely, Sher Ali, Ghulam Khan, Mir Alam and Dost Muhammad, out of whom Sher Ali and Dost Muhammad had sons and grandsons, while the other two seem to have died without any male issue. After the death of Haji Faizullah Khan a dispute having arisen as to who should succeed him, the matter seems to have been taken up under section 8 F. C. R. The Council of Elders inter alia decided that the gift of 25 jaribs of land in favour of Mst. Marhama should be considered as valid, but the gift of the other 25 jaribs of land in favour of Mst. Begum Jan would be valid only till her remarriage or death. Mst. Marhama got married to Sarbiland Khan, son of Aslam Khan. Ibrahim Khan, son of Sher Ali Khan, a brother of Haji Faizullah Khan, instituted a suit on 6th February 1942, against the said Sarbiland Khan, Mst. Marhama and five others for possession of 1/3rd share in the entire property of Haji Faizullah Khan. On 11th January 1943, Mr. Birch, the then Additional Sub‑Judge, 1st Class, Peshawar, granted the plaintiff in that suit a decree for possession of 1/3rd share out of 792 kanals 2 marlas of land in Charpareza and Khappa less an area of 200 kanals gifted to Mst. Begum Jan and Mst. Marhama in Charpa reza, and less the area of Khasra No. 378 in Khappa, of which Sarbiland Khan had acquired a title by prescription. He also granted a decree in favour of the plaintiff for possession of 1/3rd share out of 1/6th share in the Kaniza Mill in suit, and further granted him a preliminary decree, declaring him to be the owner of 3/10th share in the 22 houses left by Haji Faizullah Khan in Charpareza, subject to the restriction that he could not obtain a share in any house which might be proved to have been endowed in wakf. After this decision, Sarbiland Khan and Ibrahim Khan executed a deed on the 16th of February 1943. By this deed both the executants agreed that they would not file an appeal against the above order, and that if anyone did he would be responsible for the other party's expenses and damages. If, however, anyone else filed an appeal, the two executants shall not oppose each other. They further agreed that after the appeal etc., had been decided, if Sarbiland Khan got 25 jaribs of land and the houses which he and Mst. Marhama had got from Mst. Begum Jan and also got Khasra No. 378 situated in Khappa with regard to which Ibrahim Khan's suit had been dismissed, and the plaintiff (Ibrahim Khan) did not get anything in it, then Ibrahim Khan would get from Sarbiland Khan half of what he got. This deed had no effect on the property which had been gifted in favour of Mst. Marhama. It may be mentioned here that the record shows that Mst. Begum Jan had gifted the property, which had been gifted in her favour by Haji Faizullah Khan to Mst. Marhama, who had done the same in favour of Sarbiland Khan. After the execu tion of the above deed, Yaqoob Khan and two others, who were defendants in the case, filed an appeal against the decree of Mr. Birch. It was decided by Hon'ble Muhammad Ibrahim Khan, the Judicial Commissioner of this Court, on 4th October 1943, in his capacity as an Additional Judge. It is on account of this decision that I have been deprived of His Lordships's valuable assistance in this case, because otherwise this appeal should have been heard by the Bench consisting of His Lord ship and myself. In appeal the decree of Mr. Birch was modified to this extent that Ibrahim Khan was granted a decree for possession of 1/8th share out of 792 kanals 2 marlas in Charpareza and Khappa less an area of 200 kanals gifted to A4st. Begum Jan and Mst. Marhama in Charpareza, and less the area of Khasra No. 378 in Khappa, of which Sarbiland Khan had acquired title by prescription, and a decree for possession of 1/8th share out of 1/6th share in the Kaniza Mill in dispute together with a prelimi nary decree for possession of 1/8th share in the 22 houses left by Haji Faizullah Khan in Charpareza by partition, subject to the restriction that he could not obtain a share in any house, which might have been proved to have been endowed in waqf. Ibrahim Khan has now instituted this suit for possession by partition of half of 10 mianas and of Khata Nos. 23/146‑152 and 2/18‑23, as well as‑Khasra No. 378 on the basis of the deed dated 14th March 1943. This date seems to be the date when the document was registered. The defendants inter alia raised an objection that the document being compulsorily registrable, and having not been registered was inadmissible in evidence. The two Courts below have found the document inadmis sible in evidence and have consequently thrown out the suit. Both of them have directed the parties to bear their own costs. Ibrahim Khan has now come up on further appeal to this Court. The first question to be decided is whether the registration of the deed referred to above is compulsory under section 17 of the Registration Act. This section does make the registration of all those deeds compulsory, which are the gifts of immovable property, or which purport to operate or 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 or upwards, to or in immovable property. The value of the property dealt with by this deed is fixed by the deed itself as Rs. 1,

000. At the time when this deed was exe cuted, Ibrahim Khan suit with regard to 200 kanals of land, which had been gifted in favour of Mst. Begum Jan and Mst. Marhama as well as Khasra No. 378 had already been dismissed. By this deed irrespective of any appeal, which might have been filed later on, Sarbiland Khan gave away half of Khasra No 378, and the share of Mst. Begum Jan in the gifted property to Ibrahim Khan. There was no consideration fixed and the transaction can only be said to amount to a gift by Sarbiland Khan in favour of Ibrahim Khan. Even if it be not a gift, still it is creation of a right in the existing property of Sarbiland Khan in favour of Ibrahim Khan, and its value being Rs. 1,000, its registration was absolutely compulsory. The argument of the learned counsel for the appellant that the deed only amounted to an agreement to convey certain property on the happening of a certain contingency seems to ignore the clear conditions of the deed, by which a certain existing property was definitely conveyed by Sarbiland Khan to Ibrahim Khan. I am consequently of the opinion that the deed required registration, and in the absence of it, it would be inadmissible in evidence. The next point argued before me is whether it has been duly registered. It was written on 16th February 1943, and was presented for registration by Ibrahim Khan on 9th July 1943. The same day an order of the Sub‑Registrar appears on the back of the deed refusing the registration. No reasons have been given in this order as to why was the registration refused. On 28th July 1943, Ibrahim Khan through Mr. Mela Ram Advocate, presented an application, purporting to be under section 73 of the Registration Act, to the Registrar Peshawar, praying that the executant viz., Sarbiland Khan had denied the execution of the document, and that since it has in fact been executed by him, he should order under section 75 (1) of the Registration Act, the registration of the document, in spite of Sarbiland Khan's denial. This application, as is required by subsection (2) of section 73 of the Registration Act, was not verified in the manner required by law for the verification of plaints. It was accompanied by a copy of the reasons recorded in Urdu by the Sub‑Registrar under section 71, which as translated into English would be to the following effect : "Sarbiland Khan party 2 was informed through summons and his brother but he is absent, which amounts to denial. The Registration is consequently refused". Col. Sikandar Mirza, the then Registrar Peshawar, passed the following order : "Sarbiland Khan admits putting his thumb‑impression. He says he has been deceived. I have nothing to do with this Document will be compulsorily registered under section 75 of the Registration Act". The document was again presented for registration to the Sub‑Registrar by Mr. Mela Ram Advocate Peshawar, on 27th January 1944, and was registered at pages 189‑193 of Book No

808. The objection which was taken before the two Courts below against this registration was that Mr. Mela Ram on the second occasion had produced the document for registration without any authority, and consequently it was not due pres entation within the meaning of section 75 (2) of the Registra tion Act, which is to the following effect : " If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60 ". Under section 32 of the Registration Act, every document to be registered has got to be presented at the proper registra tion office by some person executing, or claiming under the same, or by the representative or assign of such person, of by the agent of such person duly authorized by power of attorney executed and authenticated in the manner mentioned in the following section. If the principal at the time of executing the power of attorney resides in any part of Pakistan, a power of attorney to be valid has to be executed and authenticated by the Registrar or Sub‑Registrar within whose district or sub -district the principal resides. The two Courts below have held that Mr. Mela Ram had no such power of attorney, and conse quently he had no authority to present the document for registration. The document having thus been presented by a person not authorized to do so, the Sub‑Registrar had no jurisdiction to register it, and the registration was consequently invalid and the document was inadmissible in evidence. The learned counsel for the appellant has invited my attention to Collector of Moradabad v. M. Maqbul‑ul‑Rahman and others reported in A I R 1918 All. 194 (2), which was up held in Chottey Lal v. The Collector of Moradabad A I R 1922 (P C) p. 279, in which on facts similar to the present case it was held that there was nothing in section 75 to prevent the registrar or the Sub‑Registrar from registering a document which had been duly presented and the execution of which had been proved without requiring a repetition of all the original] steps. This authority is certainly binding on me, and I must, acting upon it, hold that the document originally having been duly presented by Ibrahim Khan, its subsequent presentation by Mr. Mela Ram would not make the registration invalid. The question, however, does not rest here. Under section 23 of the Registration Act, all documents other than a will can be accepted for registration only if they are presented for that purpose to the proper officer within four months from the date of their execution. If the documents are produced for registra tion after the expiry of the first four months, but before the next following four months expire, then the Registrar if he is satisfied that the delay in presenting them for registration was due to urgent necessity or unavoidable accident, he may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee such document shall be accepted for registration. From these two provisions it is obvious that a document presented for registration after the expiry of four months cannot be registered unless presented within the following four months, with an application that the delay should be excused, because it was due to urgent necessity or unavoid able accident. If the Sub‑Registrar registers the document presented to him after the expiry of the first four months, then he does it without jurisdiction, and the document shall be considered as not having been registered at all. If the Registrar without any prayer having been made to him that the delay should be excused and without applying his mind to this fact orders the registration of the above document on some other ground, the document would still be considered as not having been legally registered. In the case before me the document was admittedly exe cuted on the 16th of February 1943. It was presented for registration to the Sub‑Registrar on the 9th of July 1943, which means about four months and 25 days later. The Sub‑Registrar should have refused to register the document on this ground alone, but he does not seem to have noticed the delay, and rejected the document on the ground that the behaviour of the executant amounted to his denial of the execution. There was an application under section 75 of the Registration Act to the Registrar, but no application was made to him under section 25 of the Act. The Registrar also without noticing that the document originally had been presented after the expiry of the initial period of four months, and only considering the factum of the execution of the document, ordered that the document be registered. It would be wrong to say that the Registrar had by ordering the Registration, although on other ground had excused the delay, because if he had done so he should have written it in the order, and at the same time would have bur dened Ibrahim Khan with fine, as laid down in the section itself. Under similar circumstances it was held in Muhammad Yahya Ali Shah v. S. Sardar Ali Shah and another reported in 184 I C p. 556, that the Registration was illegal, and the mere fact that the Registrar found that the document was actually executed did not validate it, for the original delay of mere than four months after its execution was never excused under section 25 of the Registration Act. The law with regard to the presentation of the document within four months is mandatory and has to be complied with. It is not only a question of procedure. It consequently cannot be said to have been cured by section 87 of the Registration Act. In my view the document in question has not been registered according to law, and, therefore, is inadmissible in evidence. The concurrent finding of the two Courts below is hereby upheld, although on different grounds. The appeal fails and is hereby dismissed. Keeping in view the difficult question of law involved in the case, I leave the parties to bear their own costs. Orders announced. A. H. Appeal dismissed.