1994 PLP 1444 (SCMR)

"Analytical consideration of the oral as well as documentary evidence of respondent No.l, reveals that neither she purchased the plot nor she was nominated by the deceased Rahim Bakhsh regarding the suit property. There is no sale deed on the record, and there is only mortgage deed Exh. PW. 7/14. It is a registered document and its recital clearly shows that the disputed plot was mortgaged to Mst. Saeeda Begum by Rahim Bakhsh for an amount of Rs.1,250 without possession."

4. The matter was brought in second appeal to the High Court which was dismissed in limine. A review petition was also filed before the High Court which was dismissed in limine.

5. Mian Nisar Ahmad, Advocate the learned counsel for the appellant contended that section 54 of the Transfer of Property Act was extended to Lahore Model Town Area by notification can 6‑5‑1937. There was no requirement of compulsory registration of sale‑deed prior to that date. The sale in favour of the appellant was oral. It found full corroboration from the fact that Seth Rahim Bakhsh had made her the nominee; she was subsequently approved by the Society as a Member and owner of the plot on the basis of such nomination. In the circumstances, her title and interest was fully established, she being an utter stranger to Seth Rahim Bakhsh, the mortgage followed by the sale and the nomination all these established consistently the transaction of sale itself which was not open to question or doubt.

6. An examination of the plaint reveals that it was not so much the oral sale which was made the basis of title as the nomination by Seth Rahim Bakhsh was made the basis of title in the plot. Going through the various bye‑laws of the Society, we find that such a nomination did not necessarily imply either the transfer of the property or its devolution. Whatever doubt existed in the matter stood resolved by decision of this Court in Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others (PLD 1974 SC 185). Hence, the nomination by itself would not be indicative of the transfer or of sale.

7. The fact that the mortgage entered into between the parties in 1934 was by registered deed would indicate that if a sale had taken place it would have also been got registered, the parties being accustomed to such a mode of dealing with the property. The absence of registration itself would indicate that in fact no sale of the property had taken place as is claimed for making the basis of title in the property. The conduct of the appellant also suggests that no such sale had taken place.

8. There is a document dated 17th/29th October, 1936 (Exh. P.W.7/12) addressed to her in the following words:‑‑ "Dear Madam, With reference to your letter dated 7‑10‑1936,1 am to inform you that your name‑has been registered in our record as nominee for the share of Messrs Seth Khuda Bakhsh and Sons. The plot can be transmitted by the Committee in favour of the legal heir of Messrs Seth Khuda Bakhsh and Sons which should be proved by sending us a succession certificate or a certificate of a 1st Class Magistrate."

9. The appellant did not respond to this letter but after ten years in the year 1947 i.e., 22‑2‑1947 she addressed the following letter to the Society:‑‑ "Sir, I have the honour to write that Seth Rahim Bakhsh proprietor of Messrs Khuda Bakhsh and Sons, previous owner of Plot No.22‑A first mortgaged and then sold this plot to me in the shape of Permanent Transfer of the plot to me after his death. A note to the effect was made by him in the proper register of the Society. Seth Rahim Bakhsh died in 1935, and I find that though you have corrected your own registers, and have mentioned my name as nominee, but have not transferred the land to my name in the Records. I should be most obliged if you kindly get the needful done as early as possible."

10. These documents in fact show that her claim to the plot was based more as a nominee than on the basis of any sale. As a nominee she could not claim a share in the property in view of the decision of this Court in the case of Mst. Amtul Habib and others (PLD 1974 SC 185). No particular date of sale or witnesses of sale have been produced or examined. The witnesses have generally stated about the ownership and that is in no manner sufficient for establishing the sale.

11. We find that the decision of the two appellate Courts follows the correct law and no case is made out for our interference. Hence the appeal is dismissed with no order as to costs. A.A./S‑829/S Appeal dismissed.