1. The dispute in this Second Appeal concerns a house bearing No. 166/7, situate in village Bezadi Chikar Kot, Tehsil and District Kohat. This house was owned through purchase by Amo Khan who had two sons, namely, Munawwar Khan and Anwar Khan. Munawwar Khan had died issueless. He had in his lifetime executed a will-deed dated 29-6-1936 (Exh. D. W. 1/1) by which be had declared that after his death his wife Zuhra Bibi (P. W. 2) would be the exclusive owner of the disputed house.
2. The admitted position is that the disputed house remained tinder mortgage and was to be transferred from one mortgagee to another mortgagee. Lastly, it was mortgaged with Jamal Khan defendant No. 2 for Rs. 1,980 on behalf of Mst. Zuhra Bibi. In the events that happened, Mst. Zuhra Bibi sold her equity of redemption to Mst. Mubarik Bano respondent herein, vide registered sale deed dated 4-3-1968. Thereafter, Mst. Mubarak Bano brought the present suit for possession through redemption of the suit house on payment of Rs. 1,980 against Jamal Khan mortgagee and his brother Ghaffar Khan who was living with the former in the house in question. The parties hotly contested the suit. In the first instance, the learned trial Judge decreed the suit of the plaintiff/respondent for possession by redemption of 1/4 share on payment of Rs. 1,250, but on appeal by the respondent the learned District Judge remanded the case to the learned trial Judge with direction to record further evidence of the parties and then dispose of the case in the light of the entire evidence. After remand, the learned trial Judge was impressed by the evidence of the respondent. He accordingly decreed the suit in her favour for possession of the suit house through redemption on payment of Rs. 5,000, it would appear from the record that the mortgage amount was found to have been raised from Rs. 1,980 to Rs. 5,000 vide his judgment dated 25-3-1974. The appellants were not satisfied with this judgment, therefore, they preferred appeal before the learned Additional District Judge who concurred in the judgment of the learned trial Judge and dismissed the appeal, vide his judgment dated 17-12-1977. Hence this second appeal by the appellants.
3. I have heard the learned counsel for the parties, gone through the evidence on record and perused the impugned judgments. My own reading of the case is that the two Courts below have not attended to the real controversy involved in the case. Jamal Khan appellant is a mortgagee of the suit house. Therefore, he cannot claim title to the suit house which can be redeemed from him by the real owner on payment of mortgage amount. Now as indicated above, Amo Khan bad two sons, namely, Munawwar Khan and Anwar Khan. Therefore, after the death of Arno Khan, the suit house was to be inherited by Munawwar Khan and Anwar Khan in equal share. A perusal of the judgment of the learned Additional District Judge will show that he had held that Anwar Khan had sold his half share in the disputed house to Munawwar Khan and thus Mst. Zuhra Bibi on the basis of will-deed dated 1-7-36 (Exh. DW1/1) executed in her favour by her husband Munawwar Khan bad become full owner of the disputed house which she validly sold to the respondent herein. In support of this conclusion, be relied on the will-.Deed in question and while repelling the contention from the opposite side observed :- "------------------No doubt Munawwar Khan has stated in the mentioned will deed that the suit house was purchased by his father and that he also had a brother, but he has at the same time stated in the said deed that he had reconstructed the suit house at his own expense and that he is in possession of the suit house as its sole-owner. The executant further stated in the deed that after his death Mst. Zohra Bibi would be the owner of the suit house as also the other properties mentioned in the deed. This is a registered deed which operates as notice in rem."
4. I do not subscribed to the view of the learned Additional District Judge that as late Munawwar Khan had made a statement in the registered will deed that he had purchased half of the share in the suit house from his brother Anwar Khan, he was owner of the entire house. Correct that Registered deed operates as notice in rem, but while making a statement before the Registrar, the transferor must produce before him a very cogent proof in support of the fact that he is the owner of the property under transfer sale and that he accepts the responsibility to meet the claim of anybody who thereafter asserts his ownership of the property. In the present case, except his mere statement that he bad; purchased half of the share the suit house, Munawwar Khan produced no proof before the Registrar a the time of execution of the will-deed in favour of his wife to establish his claim to that effect. This being the position, the learned Additional District Judge seems to have lavishly applied the legal maxim in the present case that registered deed serves as notice to the world. It may be observed that unless a transferer had produced a very satisfactory proof in respect of the property under transfer before the Registrar, his mere verbal claim that he was the owner of the property should not be taken a gospel truth fox bolding that he was its real owner. If even mere verbal statement of a transferor in the registered deed is considered sufficient for holding him the owner of the property, 4 will encourage people to make false statements before the Registrar at the time of the execution of the deeds that they are the owners of the properties while in fact they would not be the owners. On this view of the matter, I hold that in the present case, the mere verbal statement of Munawwar Khan in the registered will-deed that he had purchased the half share in the suit from his brother Anwar Khan would not be sufficient to establish his claim of ownership regarding the entire house.
5. The learned Additional District Judge was also convinced from another angle that Munawwar Khan was the owner of the entire suit house. He referred to Suit No. 79/1 brought by Anwar Khan for the petition of the suit house and other properties. Anwar Khan died during the pendency of that suit and his legal heir were not brought on record with the result that the suit of Anwar Khan was dismissed in default on 28-6-1965, vide Exh. P. W. 1/4. In view of this, the learned Additional District Judge held that the decision in the above suit is final and operates as res judicata against the legal heir of Anwar Khan. The learned Additional District Judge seems to have erred in holding so. The suit brought by Anwar Khan was for partition. Unfortunately, he died during the pendency of the suit. Therefore, the suit stood abated. I do not think that as after his death his legal heirs were not brought on record, the suit stood dismissed in default g and thus the legal hers will then have no locus standi to claim ownership of the share of their father in the suit house. As indicated above, the suit brought by Anwar Khan was for partition and as he died during the pendency of the suit, the suit house remained unpartitioned between the legal heirs of Munawwar Khan and Anwar Khan, the two brothers. I therefore hold that the legal heirs of Anwar Khan are entitled to inherit half share in the suit house.
6. Now Akbar Khan defendlant-4 and Mst. Sakina Bibi defendant-5 have been impleaded as legal heirs of Anwar Khan in the present suit. The judgment of the learned Additional District Judge will show that before him the identity of Mst. Sakina was questioned. He however did not advert to the resolution of this question whether she was or was not the daughter of Anwar Khan. It seems that he had taken for granted that she is the daughter of Anwar Khan, while referring to Partition Suit No. 79/1 filed by Anwar Khan who died during the pendency of that suit. In this respect, the learned Additional District Judge observed that "if Mst. Sakina Bibi had any claim or any share in the suit house, she might have established the same in the proper forum, had her own father not been failed in her efforts" I have not been able to appreciate the paradox of these observation. How her father can be said to have failed in his efforts to establish his share in the suit house ? He had died during the pendency of that suit. Therefore, his death during the pendency of the suit cannot be regarded as a ground for hold that he had failed to establish his share in the suit house. On his death, the partition suit brought by him stood abated and thus the suit house remained unpartitioned. Therefore, Mst. Sakina Bibi would be the co-sharer in the suit house, if she is the daughter of Anwar Khan. The learned counsel for the respondent did not seriously contest the fact that she is the daughter of Anwar Khan. This fact is borne out from the record. Mst. Sakina Bibi produced her identity card in which she is shown the daughter of Anwar Khan. The other side did not produce any evidence worth consideration to show that she is not the daughter of Anwar Khan and is the daughter of some other person. There--fore, the fact that she is the daughter of Anwar Khan is established beyond any iota of doubt.
7. Having already reached the conclusion that Anwar Khan had not sold his half share in the suit house to his brother Munawwar Khan, his (Anwar Khan's) legal heirs, namely, Akbar Khan and Mst.
8. Sakina Bibi, became entitled to inherit the said half share. Now the case of Jamal Khan appellant is that as regards the share of Mst. Sakina Bibi, he has secured the same as owner from her in exchange for his land given to her. This fact is not denied by Mst. Sakina Bibi in her written statement in paragraph 3 whereof she has stated that she had transferred her share in the suit house to defendant 3, namely, Jamal Khan appellant. Jamal Khan appellant thus became co- sharer in the suit house to the extent of the share of Mst. Sakina Bibi.
9. As a result of the above discussion, this appeal partially succeeds in favour of Jamal Khan appellant, namely, that in half of the suit house be is co-sharer to the extent of the share of Mst.
10. Sakina Bibi.
11. As regards the share of Akbar Khan son of Anwar Khan in half of the suit house, it will go to him (Akbar Khan), as he has not transferred the same to anybody in any way. It may, however, be pointed that Akbar Khan was placed ex parte throughout in the present litigation. I am told that he had gone to India many years ago and it is likely that he has died. In view of this, I consider it proper, just and fair if his share is held as trust by his legal heirs and I direct accordingly.
12. As regards half of the suit house, it is beyond disputed that Mst. Zuhra Bibi has sold it to Mst.
13. Mubarak Jan respondent. Therefore, the respondent is granted a preliminary decree for possession through redemption in respect of half of the suit house.
14. This appeal is accordingly disposed of with direction that in the execution proceedings the suit house will be partitioned between the parties on the line set out above. No order as to costs.
15. Before parting with this case, it may be stated that I am not unconscious of the fact that in the facts and circumstances of the case discussed, the plaintiff should have been asked to bring a suit for partial redemption, as her present suit for possession through redemption of the entire house was found to have been wrongly filed. But as this would have prolonged the matter which could otherwise be decided conveniently between the parties in the present proceedings, therefore, in order to shorten the litigation between them and to save them from the agonies of another round of litigation. I, in the exercise of the inherent powers of this Court and on the doctrines of ex debtor justicia, decided finally the matter between them.