Muhammad Shafique etc. vs Muhammad Shabbir etc.

Stereo.HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Civil Revision No.1378 of 2015.

Muhammad Shafique, etc.

Versus

Muhammad Shabbir, etc.

J U D G M E N T.

Date of hearing: 04.06.2026.

Petitioner No.1 by: Mian Asad Jamil, Advocate.

Petitioners No.2, 3, 4(i), 4(ii), 5 to 9 and Legal heirs of petitioner No.11 by: Syed Mohsin Mushtaq Hashmi, Advocate.

Respondent No.1 by: Mr. Tahir Mehmood Sandhu, Advocates.

Respondents No.2-4 by: Qazi Imran Zahid, Advocate.

Respondent No.5 by: Mr. Atif Khan, Advocate.

AHMAD NADEEM ARSHAD, J. Through the instant

Civil Revision filed under Section 115 of the Code of Civil Procedure, 1908, the petitioners have assailed the validity and legality of the judgment and decree dated 18.04.2015, whereby the appeal preferred by the respondents was accepted and, consequently, their suit instituted under Section 77 of the Registration Act, 1908, was decreed.

2.Tersely stated, the facts giving rise to the present proceedings are that the respondents/plaintiffs instituted a suit under Section 77 of the Registration Act, 1908, asserting that one Khurshid Shah was the owner of land measuring 28 Kanals and 05 Marlas situated in Mouza Kotli Gull Muhammad, Tehsil Daska. It was pleaded that Khurshid Shah had appointed Muhammad Shabbir as his attorney through General Power of Attorney No. 39 dated 25.01.1984, duly registered with the office of the Sub-Registrar, Daska. Acting on the basis of the said authority, Muhammad Shabbir executed a sale deed dated 30.01.2003 in favour of the respondents/plaintiffs with respect to the suit property and presented the same before respondent No. 7/Sub- Registrar, Daska, for registration. The Sub-Registrar, however, sought a report regarding the validity of the power of attorney. Upon receipt of the report dated 31.01.2003 indicating that Khurshid Shah, the executant of the power of attorney, had expired, registration of the sale deed was declined on the ground that the authority of the attorney had ceased upon the death of the principal. Aggrieved thereof, the respondents/plaintiffs preferred an appeal before the District Officer (Revenue)/Registrar, Sialkot, which was dismissed vide order dated 15.03.2003. Consequently, they were constrained to institute the aforesaid suit. Basic stance of the respondents/plaintiffs was that the deceased Khurshid Shah died in the intervening night of 30.01.2003 and 31.01.2003, hence, the Registrar was not justified to refuse registration.

3.Conversely, respondent/Sub-Registrar Daska, submitted contesting written statement whereby he reiterated the version taken

in the order dated 31.01.2003 refusing to register the document. The petitioners/defendants who are legal heirs of deceased Khurshid Shah resisted the suit by filing contesting written statement whereby they specifically contended that deceased Khurshid Shah died in the morning on 30.01.2003 and the Registrar has rightly refused the registration of the document.

4.Learned Trial Court framed issues out of the divergent pleadings of the parties and invited them to lead their respective evidence. After recording evidence of the parties pro & contra, oral as well as documentary, learned Trial Court dismissed the suit vide judgment & decree dated 15.09.2011. Feeling aggrieved, the respondents/plaintiffs preferred an appeal which was allowed by the learned Appellate Court vide judgment & decree dated 18.04.2015 and consequently their suit was decreed. Being dissatisfied, the petitioners have filed instant Civil Revision.

5.I have heard learned counsel for the parties at length and gone through the record with their able assistance.

6.At the outset, it is pertinent to mention here that three miscellaneous applications (C.Ms No.1, 2 & 3 of 2026) have been decided vide separate order of even date.

7.After hearing the learned counsel for the parties and perusing the available record, it has been observed that the respondents/plaintiffs instituted a suit under Section 77 of the Registration Act, 1908, challenging the order of the Registrar

C.R. No.1378 of 2015. 4

whereby registration of the sale deed was refused on the ground that the person presenting the document for registration ceased his authority as the principal had already been died.

8.The record reveals that on 30.01.2003 a sale deed relating to the suit property was presented before respondent No.7/Sub- Registrar, Daska, for registration. The document had been executed by Muhammad Shabbir, attorney of the vendor, namely Khurshid Shah, under a registered power of attorney.

9.Before proceeding with the registration, the Sub-Registrar sought verification of the said power of attorney. In response, a report dated 31.01.2003 was received indicating that Khurshid Shah, the principal/executant of the power of attorney, had already expired.

Proceeding on the premise that the death of the principal had automatically terminated the authority of the attorney, the Sub- Registrar declined registration of the sale deed and passed order dated 31.01.2003 to that effect. The operative part of the said order reads as follows:

وکاکی ررٹسجی عیب انہماجنمبن دمحم ریبشاشہ ودل لیفط اشہ ہنکسوکیلٹ لگدمحم30/01/03"ومرہخ 7 ،6 ،5 ،4 رمہلربمنان ویھکٹ5 انکل26 اتخمر اعم ابعئاجنمبنوخردیشاشہ ودل الغم دمحمرہبقدعتادی ابوعلضغلبمآھٹالھک روےپربا ےیدص ق شیئو۔ی ررٹسجی ےتا ھاتخمر43ات31ربمنانوتھکین ی انہماعمیکلقنفلیھت ہکبجالصراکیرڈایسوکلٹیعلضھڈوکاررٹںیمعمجئواکچےھ اتخمرانہماعم وک اکی روپرٹ رحتریی اجنمبن31/1/03 یک یدص ق کت ررٹسجی وک رواک ایگ اےلگ روز ومرہخ وٹپاریہقلحوکیلٹلگدمحم شیئو۔یہکاتخمرانہماعمددنھہوخردیشاشہوفتئواکچےھ ذٰہلا،دلیصحتار ررٹسجیاپسہنیکاج ے دعبقیقحتولعممئواہکاتخمرانہماعمددنھہوخردیشاشہوفتئواکچےھیکسج وہج ےس اتخمرانہماطمبقب اقوننوخدوخبد لسنیکئواکچ ےھ ذٰہلا وہقیثھذڈایدص ق رکےن ےسااکنرایک "31.1.03 وحاہلتالئئو2اجاتےھ دعبازادنراجیہبربمن

10.Before proceeding further, it is better to see the scheme of the Registration Act, 1908. According to the scheme of that Act, every document to be registered there under may be presented at the proper registration office by its executant or by the persons claiming under the same or by their duly authorized agents, vide section 32. The registering officer shall, as required by section 35 (1) register the document if he is satisfied as to its due execution, but he may refuse its registration on the ground of the executant's denial of its execution under section 35 (3) or on grounds other than denial of execution e.g., insufficient description of property (sections 21 and 22), presentation of the document beyond time (section 23) or in wrong office (section 28) or by incompetent person (section 32), non-appearance of executant within time (section 34), or executant appearing to be a minor, idiot or lunatic [section 35 (3)]. If the Sub-Registrar refuses to register a document on a ground other than denial of its execution, an appeal to have the document registered lies to the Registrar under section 72 within thirty days from the date of the order of refusal. If, however, the Sub-Registrar refuses to register the document on the ground of denial of its execution by the executant or his legal representative, the person claiming under that document may, within thirty days after the making of the order of refusal, make an application under section 73 to the Registrar to establish his right to have the document registered. On such appeal or application, the Registrar may direct the document to be registered under section 72 or section 75, or refuse to do so under section 72 or

76.Where the Registrar refuses to order the document to be

registered, the person claiming under, such document may, within thirty days after the making of the order of refusal, institute in the Civil Court of appropriate jurisdiction, a suit under section 77 for a decree directing the document to be registered.

Thus, it will appear that the sole purpose of a suit under section 77 is to procure registration of the document whose registration was refused initially by the Sub-Registrar and ultimately by the Registrar. Acting under section 77, a Civil Court can do only what the Registrar could have done. Therefore, inquiry by the Court in a suit under the said section is confined to the plaints mentioned in section 74, namely, (a) whether the document has been executed, and

(b)whether the requirements of the registration law have been complied with.

11.Section 32 of the Registration Act, 1908, provides that who may present a document for registration, which reads as under:- "32. Persons to present documents for registration.— Except in the cases mentioned in Section 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented,—

(a)by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order; or

(b)by the representative or assign of such person; or

(c)by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in the manner hereinafter mentioned."

Section 32 provides that a document intended for registration may be presented not only by the person executing it or claiming rights thereunder but also through his duly authorized agent.

However, where a document is presented by an agent, such authority

must be conferred through a valid power of attorney executed and authenticated in the manner prescribed by law. The object of the provision is to facilitate registration through authorized representatives while ensuring the authenticity of the authority under which they act.

12.Section 33 specifies the type of power of attorney that can be recognized for presenting a document for registration under Section

32.It requires that the power of attorney be executed and authenticated by the authorities mentioned therein, such as a Registrar, Sub-Registrar, Magistrate, Notary Public, Consul or other authorized officer, depending upon the place where the principal resides. The purpose of the provision is to ensure the authenticity of the authority claimed by an agent presenting a document for registration.

13.Section 34 of the Act authorizes the Registration Officer to conduct inquiry, which is as follows:

34.Enquiry before registration by registering officer.—

(1)Subject to the provisions contained in this Part and in Sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act unless the persons executing such document, or their representatives, assigns or agents authorized in the manner mentioned in Section 33, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26:

Provided that, if owing to urgent necessity or unavoidable accident any such person is unable to appear personally before the registering officer, he may, on payment of the prescribed fee, attend at the residence of such person for the purpose of examination.

(2)Appearances under sub-section (1) may be simultaneous or at different times.

(3)The registering officer shall thereupon—

(a)enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b)satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c)in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.

(4)Any application for a direction under the proviso to sub- section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

(5)Nothing in this section applies to copies of decrees or orders."

Section 34 of the Registration Act, 1908 embodies the statutory duty of the Registering Officer to conduct a preliminary inquiry before admitting a document to registration. The provision requires the executants of the document, or their representatives, assigns or duly authorized agents, to appear before the Registering Officer within the prescribed period. Upon such appearance, the Registering Officer is under a legal obligation to satisfy himself that the document was in fact executed by the persons by whom it purports to have been executed, to verify the identity of those appearing before him, and, where a person appears as a representative or attorney, to ascertain the validity of his authority to act on behalf of the executant. The object of the section is to ensure the authenticity of the registration process and to guard against fraud, impersonation, forgery and unauthorized transactions. Thus, before registering a document, the Registering Officer is not expected to act as a mere recording authority; rather, he must undertake the inquiry contemplated by Section 34 to satisfy himself regarding the due execution of the document and the competence of the persons presenting it for registration. Hence, in this way, the Sub-Registrar,

was justified to refer the matter for inquiry and verification of the power of attorney.

14.Section 71 provides that a Sub-Registrar while refusing registration of a document shall record reasons for such refusal, which reads as under:

"71. Reasons for refusal to register to be recorded.—

(1)Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

(2)No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered."

15.Such a refusal by Sub-Registrar can be challenged in appeal before the Registrar under Section 72 of the Act, which is as follows:-

"72. Appeal to Registrar from orders of Sub-Registrar refusing registration on ground other than denial of execution.—

(1)Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

(2)If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub- Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration."

16.Registrar refusing to register a document shall make an order by recording reasons in Book No.2, as provided in Section 76 of the Act, which reads as under:-

76.Order of refusal by Registrar.—

(1)Every Registrar refusing—

(a)to register a document except on the ground that the property to which it relates is not situate within his district or that the document ought to be registered in the office of a Sub-Registrar; or

(b)to direct the registration of a document under Section 72 or Section 75,

shall make an order of refusal and record the reasons for such order in his Book No. 2, and, on application made by any person executing or claiming under the document, shall, without unnecessary delay, give him a copy of the reasons so recorded.

(2)No appeal lies from any order by a Registrar under this section or Section 72."

17.Section 77 of the Act provides a remedy to institute a suit within a period of 30 days in case Registrar refuses to register a document, which is reproduced as under:-

"77. Suit in case of order of refusal by Registrar.—

(1)Where the Registrar refuses to order the document to be registered under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.

(2)The provisions contained in sub-sections (2) and (3) of Section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and notwithstanding anything contained in this Act, the document shall be receivable in evidence in such suit."

18.In a suit under Section 77, the Court is not concerned with the validity or legal effect of the document and, as such, it cannot inquire into defences like fraud, misrepresentation, undue influence,

coercion, duress, want of consideration and matters affecting the validity of document. The Registrar has only to make an inquiry about the execution of the document or whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration as the case may be, so as to entitle the document to registration.

19.If the suit is brought under Section 77 of the Act, claim has to be confined only to the registration of the document as in a suit under Section 77 the Court is only concerned with genuineness of the document sought to be registered that is whether the document is executed by the person by whom it is alleged to be executed and not its validity. Scope of a suit under this Section has been elaborated and defined in a case titled "Satvanarayana V. Yeerank China Venkatarao and others" (AI R 1926 Mad. 530), in the following words:- "......in a suit under section 77 the Court is only concerned with the genuineness of the document sought to be registered that is, whether the document is executed by the person by whom it is alleged to be executed, and not its validity and the question of its validity must be determined in a suit properly framed for that purpose."

This Court in a case titled "Hamida Begum and others V.

Province of Punjab through Collector and 4 others" (2012 MLD 832) defined the jurisdiction of the Court as under:- "......the Court is to see only the execution of the sale and that whether the Registrar was competent to reuse the registration or not. The Civil Court while deciding this suit under section 77 is competent to look into the matter which the Registrar should do at the time of registration i.e. whether the document fulfills the requirements of Section 35 or not and whether the document fulfill the requirement of section 71 to 76 or not."

20.The jurisdiction of a Civil Court in a suit instituted under Section 77 of the Registration Act, 1908, is of a limited and circumscribed nature, confined to examining the correctness, legality, and justification of the Registrar’s order refusing registration of a document. While exercising such jurisdiction, the Court essentially steps into the shoes of the registering authority and determines whether the refusal was lawful, justified, and based upon the material available before the Registrar at the relevant time. The inquiry does not extend to adjudication of disputed questions of title, ownership, succession, validity of transactions or mutations, or other independent civil rights, which are required to be agitated through appropriate substantive proceedings. Consequently, where the refusal is founded upon a legally recognized ground and supported by relevant material, the Court cannot substitute its own opinion merely because another view is possible; rather, the decisive consideration remains whether the refusal to register the document was legally sustainable, and if so, the suit must fail irrespective of any collateral disputes concerning the parties’ rights in the subject property.

21.The principal contention of the respondents/plaintiffs is that Khurshid Shah died during the intervening night between 30.01.2003 and 31.01.2003. According to them, since the sale deed had been presented for registration while the attorney-grantor was alive, the Sub-Registrar was under a legal obligation to register the document.

22.A careful appraisal of the evidence, however, does not support the respondents’ stance. The petitioners/defendants produced on

record a copy of order dated 21.06.2003 (Exh.D.2), which reveals that, upon their application, an inquiry regarding the exact time of death of Khurshid Shah was conducted by the Assistant Director, Local Government, Sialkot. The inquiry conclusively established that Khurshid Shah had died in the early hours (Pehla Pehar) of 30.01.2003. Pursuant to the findings of the inquiry, the death certificate of the deceased was corrected, and the revised death certificate (Exh.D.3) records the time of death as “early morning” ()صبح سویرے.

23.The aforesaid documentary evidence, emanating from official proceedings and duly reflected in the corrected death certificate, carries significant evidentiary value. The petitioners, therefore, successfully substantiated their version through cogent, reliable, and trustworthy evidence, establishing that Khurshid Shah had already passed away before the relevant transaction could lawfully proceed.

24.Even otherwise, assuming for the sake of argument that the respondents/plaintiffs are correct in asserting that Khurshid Shah died during the night intervening between 30.01.2003 and 31.01.2003, their case still does not advance. The record reveals that the verification report was received by the Sub-Registrar on 31.01.2003. By that time, according to the respondents’ own version, Khurshid Shah had already passed away. Therefore, the Sub- Registrar could not have lawfully proceeded to register the sale deed on the basis of an authority which had already been extinguished.

The refusal of the Sub-Registrar to register the document cannot be

termed illegal or without lawful justification. Rather, the action of the Sub-Registrar was fully in consonance with the settled principles governing agency and registration of documents.

25.Section 201 of the Contract Act, 1872, expressly provides that an agency is terminated, inter alia , by the death of the principal, which reads as under:-

"Termination of agency.— An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors."

26.A power of attorney, being merely an instrument evidencing and regulating the authority of an agent, is founded upon the relationship of principal and agent and derives its existence solely from the authority conferred by the principal. Consequently, upon the death of the principal, the agency stands terminated by operation of law and the attorney is immediately divested of all authority to act on behalf of the deceased. Since the authority of the attorney is neither independent nor self-sustaining but merely an extension of the will and legal personality of the principal, the cessation of the principal’s existence extinguishes the very source from which such authority emanates. Therefore, any transaction, execution of document, presentation of an instrument for registration, or any other act purportedly undertaken by the attorney after the death of the principal is without lawful authority, non est in the eyes of law, and incapable of creating, transferring, extinguishing, or otherwise affecting any right, title, or interest in property. Thus, where it is

established that the principal had died before the completion of a transaction or before the attorney purported to exercise powers under the power of attorney, the authority conferred by such instrument must be deemed to have stood extinguished under Section 201 of the Contract Act, 1872, and all acts done thereafter are void and incapable of conferring any valid legal rights. Reliance is placed on the cases titled "Mehdi Khan V. Faqir Muhammad and 4 others" (PLD 1980 Lahore 110), "Mr. Zafarul Islam Minhas V. Mrs. Azra Malik, etc." (NLR 1993 UC (Civil) 30) and "Muhammad Nawaz through LRs. and others V. Muhammad Khan and others." (2016 CLC Note 62).

27.In view of the foregoing discussion, the learned Appellate Court, while reversing the well-reasoned judgment and decree of the learned Trial Court, failed to properly appreciate the factual matrix as well as the legal consequences arising from the death of the principal.

The findings recorded by the learned Appellate Court are largely founded upon assumptions and overlook the settled principle that registration is not a mere ministerial act but requires lawful authority subsisting at the relevant time. Moreover, the learned Appellate Court failed to assign legally sustainable reasons for upsetting the findings of the learned Trial Court and ignored material evidence going to the root of the controversy. Consequently, the impugned judgment and decree suffer from misreading and non-reading of evidence and, therefore, cannot be sustained in law.

28.Before parting with this judgment, it is pertinent to observe that the present proceedings arose out of a suit instituted under Section 77 of the Registration Act, 1908, the scope of which is confined to examining the legality, propriety, and validity of the order passed by the Registrar refusing registration of the document.

The Court, therefore, has not adjudicated upon the substantive rights of the parties flowing from the underlying transaction or contract.

But, all such matters can be inquired into by the Court in a suit for specific performance of a contract of sale, if these are raised therein by the party opposing performance of the contract. The purpose of a suit for specific performance of a contract is not to procure registration of the very document whose registration has been refused by the Registrar but to enforce the contract itself by getting a fresh document executed and registered through Court to perfect the plaintiff's title and possession. Thus, a decree in a suit under section 77 affects only the document, but a decree in a suit for specific performance of a contract strikes at the transaction itself, and the reliefs obtainable in a suit for specific performance which may in appropriate cases, include recovery or confirmation of possession, cannot be had in a suit under section 77. Also the causes of action in the said two classes of suits are different. The cause of action in a suit under section 77 arises on the Registrar's refusal to register the document, but the cause of action in a suit of the other class is the breach of the contract by the person contracting to sell. Thus, it is quite clear that the scope and purpose of a suit under section 77 of the Registration Act and those of a suit for specific performance of a

contract of sale are different. A suit for specific performance of a contract of sale provides a separate remedy based on a cause of action which is independent and separate from the cause of action for a suit under section 77 of the Registration Act. Therefore, section 77 which is apparently an enabling provision cannot be construed as providing, the only exclusive remedy to the person claiming under the unregistered document. Section 77 being an enabling provision the person claiming under the unregistered document may bring a suit under the section for procuring only the registration of the document and if he chooses to do so, the suit must be brought within thirty days after the Registrar's order refusing its registration. As the said section does not provide the only exclusive remedy, separate suit under the Specific Relief Act for the enforcement of the contract itself is maintainable if it is not otherwise barred. Consequently, dismissal of the suit under Section 77 shall neither operate as res judicata against the plaintiffs nor preclude them from seeking appropriate relief through an independent suit under the Specific Relief Act, 1877, for enforcement or specific performance of the alleged contract relating to the immovable property. This view is further fortified by Section 49 of the Registration Act, 1908, which recognizes that an unregistered document, though incapable of affecting immovable property or being received as evidence of a completed transfer, may nevertheless be received in evidence for purposes such as a suit for specific performance, thereby preserving the parties’ substantive remedies notwithstanding the refusal of

registration. Reliance is placed on the case titled "Kalu V. Abdul Rashid" (PLD 1985 Lahore 461).

29.For what has been discussed above, this Civil Revision is accepted. The judgment and decree dated 18.04.2015 passed by the learned Appellate Court are set aside and the judgment and decree dated 15.09.2011 passed by the learned Trial Court are restored.

Consequently, the suit instituted by the respondents/plaintiffs under Section 77 of the Registration Act, 1908, shall stand dismissed.

There shall be no order as to costs.

(AHMAD NADEEM ARSHAD)

JUDGE.

APPROVED FOR REPORTING.

JUDGE.

M. Arsalan*