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Civil Appeal No. 21 of 1962, decided on 29th November 1962.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi, dated the 27th September 1961, in Writ Petition No. 185 of 1961).

S. 21‑‑Construction‑Transfer of evacuee property by sale deed executed in 1960 in respect of which certificate by Custodian had been granted in 1950‑Registration of sale‑deed and confir mation of sale by Custodian, held, valid‑Registration Act (XVI of 1908), Ss. 23 & 25.

Muhammad Sadiq Advocate Supreme Court instructed by Ghulam Ali Memon Attorney for Appellants.

Sayeed A. Shaikh Advocate Supreme Court instructed by Shafiq Ahmad Attorney for Respondent No. 1.

Riaz Hashmi Advocate Supreme Court instructed by Muhammad Bakhsh Mesawa Attorney for Respondent No. 2.

Date of hearing : 29th November 1962.

‑This appeal by special leave granted to the appellants Mst. Rehmat Bai and others as successors of one Hussaini, raises a question of the true construction of section 21 of the Pakistan (Administration of Evacuee Property) Act, 1957. For the proper evaluation of the ground on which relief was refused to the appellants by the Custodian of Evacuee Property (Southern Zone) and again by a Division Bench of the West Pakistan High Court at Karachi, which was moved by a petition for a writ, it is necessary that the full terms of section 21 aforesaid should be set out in this judgment. It reads as follows :‑

"21. Registration of documents and mutation of names.‑

(1) Where any document required to be registered under the Registration Act, 1908, or any application for mutation of names purports to create or transfer any right or interest in any property in contravention of the provisions of section 20 of this Act, no registering officer shall register the same, and no revenue officer shall sanction any mutation of names in respect thereof, unless the party presenting the document or making the application produces a certificate from the Custodian that the property is not evacuee property or that the transaction has been confirmed or that the Custodian has sanctioned the transaction.

(2) If any question arises whether any document presented for registration or any application made for mutation of names purports as aforesaid the registering officer or the revenue officer, as the case may be, shall direct the party concerned to apply to the Custodian for a certificate under subsection (1), and shall not register the document or grant the application without such certificate.

(3) The Custodian may grant the certificate referred to in subsection (1) either unconditionally or on such terms and conditions as he thinks fit to impose.

(4) When a certificate as is mentioned in subsection (1) has been granted by the Custodian, the document shall, notwith standing anything contained in section 23 of the Registration Act, 1908, but subject to the other provisions of that Act, be accepted for registration by the registration officer if presented within four months of the passing of this Act or the date on which the certificate is granted, and the expiration of the time prescribed for presentation of the document for the purposes of section 25 of that Act shall be computed accordingly."

In the Ordinance of the same name promulgated in 1949, this provision was contained in section 17 in a materially different form. Section 17 provided for the requisite of a certificate from the Custodian in the same terms as those in section 21, subsection (1) of the 1957 Act, with this difference that it contained reference to "an intending evacuee". The law relating to "intending evacuees" was repealed when the Ordinance of 1949 was repealed by the first Ordinance of the same name issued in 1956. Subsection (2) in each of the two sections 17 of 1949 and 21 of 1957 was to the same effect and in practically the same terms, namely, that a Registering Officer or a Revenue Officer as the case may be was obliged whenever a document of the relevant kinds was produced before him for registration or for mutation of names as the case may be, to direct the parties to obtain a certificate from the Custodian under subsection (1). At the same time, such Officer was prohibited from registering the document or granting the mutation without such certificate. Subsections (3) and (4) of section 21 of 1957 Act were new, that is to say they were not contained in either of the two Ordinances of the year 1956 which followed the repeal of the Ordinance of 1949. Subsection (3) permitted the Custodian to impose terms and conditions upon the grant of certificate under subsection (1) and is not relevant to the present subject. By subsection (4), a rule of limitation was laid down, to operate notwithstanding anything contained in section 23 of the Registration Act, 1908, which provides, in negative terms, that no document of the specified kinds should be accepted for registration by a Registrar unless it is presented for registration within 4 months of its execution. By section 25 of the Registration Act, which is also mentioned in subsection (4) aforesaid, this period of 4 months is extensible in certain cases by a further period of four months. It is quite clear that there is a bar or disability imposed by section 23 of the Registration Act, and it is equally clear that the intention of subsection (4) of section 21 of the Act of 1957 is to overcome that bar, and make it ineffective, in certain cases where it would otherwise frustrate any attempt at completion of title under a deed of transfer by the statutory method of registration. This is placed beyond doubt by the fact that sub section (4) aforesaid imposes a positive duty upon the Registrar to accept the documents which it embraces, provided that a time limit is observed.

There might be a case in which all the conditions of section 21 of the Act of 1957 as well as of section 23 of the Registration Act are satisfied within the primary period of 4 months, but the main purpose of the new provision in the Act of 1957 was plainly to allow for the possibility of delay occurring in the presentation of a deed of transfer for the purpose of registration, such delay being due to the duty imposed upon the person interested, by the Ordinance of 1949 and successive Ordinances, to obtain a certificate as specified from the Custodian, coupled with a command to the Registrar not to register any such document unless it is supported by such a certificate. The possibility of delay is patent in the circumstances, but it also appears clearly from the provision in subsection (2) of section 21 of the Act of 1957 that if a document unsupported by the Custodian's certificate were presented to the Registrar, the latter officer was to direct the party concerned to apply to the Custodian for such certificate. Of course, if the document were presented more than 4 months after its execution, and the operation of section 23 of the Regis tration Act 1908 were not avoided, then no question would arise of the Registrar doing anything except refusing to register the document for non‑compliance with section 23, (or in a special case, with section 25) of the Registration Act, on the point of time. Therefore, it seems plain upon a proper reading of all the terms of section 21 of the Act of 1957 that it contained a rule of relaxation in respect of the periods of limitation provided by section 23 and section 25 of the Registration Act, to adapt the latter provisions to conditions brought about by the imposition from 1949 onwards of the requirement of a certificate from the Custodian as a requisite for registration. It is also clear from' the fact that 4 months from the date of the passing of the Act of 1957 were allowed for such presentation that the new and amended section contemplated the presentation of documents for registration which had been delayed in presentation for a great length of time, in consequence of the formal requirements newly imposed under the law relating to evacuee property. Within those four months, all documents which had been executed prior to the enactment of the Act of 1957 and m hose registration had been delayed for lack of the requisite formal certificate could be presented for registration provided the formalities had been completed. There might be a case in which the Custodian's certificate was granted on the very date when the Act of 1957 came into force, and for such a case, the period of four months could be computed equally from the date of the grant of the certificate, but the latter provision was clearly more apt in a case where the certificate was granted after the Act of 1957 came into force, and was obviously intended to apply to all such certificates however long after the enactment of the 1957 Act they might have been granted.

Having made a full examination of the provisions of section 21 of the Act of 1957, we may now proceed to state the facts of the present case. The deceased vendee Hussaini entered into an agreement of sale with the evacuee vendor Khushiram on the 1st September 1947. Khushiram later emigrated to India, but appointed an attorney to act for himself. In 1949, Hussaini died, and was succeeded by the present appellants as his succes sors‑in‑interest. They applied to the Custodian under section 17 of the Ordinance of 1949 for a certificate and this was issued to them by the then Custodian Mr. Akbar Hussain on the 14th February 1950. The next step, namely, execution of the sale‑deed was much delayed, on account of non‑payment of his income‑tax dues by the evacuee vendor, but finally on the 27th August 1959, the Income‑tax Department issued their clearance certificate after having created a charge upon certain properties of Khushiram for satisfaction of the income‑tax dues. This clearance certificate enabled further progress in the case, and on the 9th January 1960, the sale‑deed was executed by the attorney for the vendor. On the 12th January 1960, it was duly registered and mutation of names was made in the survey register. The Custodian duly confirmed the sale on the 24th May 1950. There was, however, an allottee living in the premises named Muhammad Hafeez Siddiqi, the second respondent before us, and he moved against the confirmation with the result that on the 25th February 1961, the Custodian set aside the order of the 24th May 1960 con firming the sale and at the same time, granted permission to the vendees to apply for a fresh certificate under section 21 of the Act of 1957. The solitary ground upon which this action was taken was stated in the following terms :‑

"Mr. Zahiruddin (counsel for the vendees) concedes that the attorney was authorised to execute sale‑deed in 1950, but he has done so in 1960. It is this sale‑deed which has been Section 21 of XII Additional 1957 prescribed a limp on uses of authority to an attorney to execute a sale‑deed within 4 months. The attorney has admittedly executed the sale‑deed 3 years after the Act. Sale‑deed thus executed is the clear contra vention of section 21 of the Act and cannot therefore be confirmed".

"Mr. Zahiruddin concedes the legal position urged in the matter and has no objection to revision application being allowed".

We have endeavoured with the assistance of the learned counsel of the appellants‑vendees, for the Custodian and for the allottee Muhammad Hafeez Siddiqui to discover exactly what was meant in this order by saying that section 21 of the Act of 1957 limited the use of an authority to an attorney to execute a sale‑deed within four months. There is no mention of attorneys or agents in section 21 and no provision in that section nor any term used therein is relevant to the conception of action by an agent or authorised attorney. It seems to us therefore that the Custodian was clearly wrong in finding illegality in the fact of the attorney having executed the sale‑deed three years after the Act. In the judgment of the High Court dismissing the writ petition an attempt was made to support that finding by a form of reasoning. This was the explanation offered :‑

"The ground taken in the Custodian's order is that sub section 4 of section 21 of Act XII of 1957 has no application since the document was presented more than four months after the passing of the Act, and more than four months after the grant of the certificate. Therefore, the applicant was relegated to the position which obtains in the Registration Act regarding authority of the attorney to execute a sale‑deed. We can see no reason to consider that this reasoning of the Custodian is not in accordance with law". .

From the fact that the vendees lost no time in moving the High Court against the order of the Custodian, it is evident that they did not regard themselves as being bound by the concession made on a point of law by their counsel before the Custodian. Nor were they so bound. However, in the judgment of the High Court, it is stated that that concession was rightly made, and this is probably to be understood in the light of the new explanation offered by the learned Judges of the Division Bench themselves, That explanation introduces a new assumption namely, that in the Registration Act, there is a provision which limits the authority of attorneys to execute a sale‑deed in point of time. Again, we have relied for the examination of this point, sought assistance from the learned counsel representing the three parties before us, and neither they nor we ourselves could discover the least basis for this proposition advanced by the Division Bench. That being the case, there is clearly ground for a fresh appraisement of the situation in the light of the relevant law.

We think it admits of no doubt that section 21 of the Act of 1957 was, in its terms, adapted for application to transfers of evacuee property made by deeds executed after the passing of the Act of 1957, in respect of which certificates by the Custodian had been obtained on a date prior to the passing of that Act. The deed in this case was executed on the 9th January 1960, and was presented to the Registrar on the 12th January 1960, that is within the period limited by section 23 of the Registration Act. The duty of the Registrar was, if the deed was not supported by a certificate, to direct the party concerned to obtain such a certificate. In the absence of such a certificate he was bound to refuse to register the deed. In this case, neither of the contingencies arises. He had no need to refer the parties to the Custodian because an effective certificate from the Custodian issued as far back as the 14th February 1950 was presented along with the deed. He could not refuse to register the deed, because all the conditions of section 23 of the Registration Act, as well as of section 21 of the Act of 1957 were satisfied. In the circumstance, the deed was rightly registered, and its subsequent confirmation of the 24th May 1960, was entirely in order.

We accordingly allow this appeal and setting aside the order of the High Court, direct that a writ of certiorari as prayed should issue, to call up the order of the Custodian dated the 25th February 1961, and his subsequent order of the 8th April 1961 refusing to review the former order and to quash each of the said orders. As the proceedings which have given rise to the litigation were commenced by the respondent Muhammad Hafeez Siddiqui, we direct that he should bear the costs of the proceedings in this Court.

K. B. A. Petition accepted.

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