' RAJA MUHAMMAD KHURSHID KHAN, ACTO. C. J.-This appeal by leave which is meant to impeach the judgment of the High Court passed on 13-2-1977, arises out of the suit filed by Suleman and others, respondents herein, against Ghulam Rasul, appellant (deceased) who is now substituted by his heirs as appellants. The suit sought possession of the suit land on the basis of title. The appellant- defendant contested the suit on the ground of oral sale made in his favour by Haleem, the father of plaintiff-respondents, in the year 1950. The trial Cow found a valid sale by Haleem in favour of the appellant vide judgment dated 30-1-1975 and dismissed the suit of the respondents. The issue of adverse possession raised was however, decided against the appellant.
2. In the first instance some relevant facts of the case, in brief may be stated. Land measuring 8 Kanals 4 Marlas under Survey Nos. 507/67 and 508/1 situate in village Chakrrian, Tehsil Muzaffarabad, the parties are in agreement, belonged to the respondents. It was inherited by the respondents from their father Haleem and was mutated in their names alongwith other property under Mutation No, 267. It is on the basis of this entry that they sued the appellant to get the possession of the suit land. The entry of same in the name of the appellant in the revenue documents, it was claimed, was incorrect. It was further stated that the appellant was a tenant and paid land revenue to the respondents as such. The appellant's defence is that he had purchased the suit land vide sale-deed Exh. D. G. Executed on 17-3-1950 and be retained its possession as full owner since 1950. In alternate adverse possession was pleaded. As said earlier the learned Sub- Judge dismissed the suit of the respondent vide judgment dated 30-1-1975.
3. Appeal moved by the plaintiff-respondents before the District Judge, Muzaffarabad, also failed vide judgment dated 27-4-1976. The learned District Judge, however, in departure to the finding of the Sub-Judge, found that the sale-deed having not been registered is violative of section 54 of the Transfer of Property Act read with section 17(b) of the Registration Act and is to be ignored. The High Court on appeal, vide report dated 13-2-1977, reversed the finding of both the Courts, i. e., Sub- Judge as well as District Judge, and decreed the suit in favour of the plaintiffs respondents. It is this judgment of the High Court which is under criticism in this appeal,
4. Mr. T. H. Tariq, the learned counsel for the appellants, submitted that the High Court advanced fanciful grounds to reverse the well-reasoned out finding of the learned District Judge and that of the learned Sub-Judge regarding the issues of adverse possession and title recorded in favour of the appellant. In his view the document (Exh. D. G.) executed by Haleem is a sale-deed for all practical purposes and transfers complete title of the suit land to the appellants and that the registration of the document was not necessary as no machinery for registration of documents was provided by the Government at that time. In alternate adverse possession, he contended, stands established out of the oral and documentary evidence. As stated elsewhere the learned Sub-Judge found a valid sale-deed of the suit land in favour of the appellant. But the learned District Judge opined that the sale for its being unregistered creates no title for the appellant in the suit land. It was, however, held by the learned District Judge that the appellant had acquired title by virtue of his adverse nature of possession over the suit land.
5. The most important point in this case, as observed by the High Court is the interpretation of document (Exh. D. G.) relied upon by the respondents; whether the document is a sale-deed, as claimed by the appellant, or it is only an agreement to sell, as held by the High Court, needs consideration. Next we are also called upon to examine the point as to whether the non- registration of the document would, in any way, be fatal to create title for the appellant in the suit land.
6. While critically going thr9ugh the impugned judgment, we feel that the learned Judge, in recording the finding against the appellant, was mainly influenced and guided by the statement of Ghulam Rasul, appellant (deceased), who says that an amount of Rs, 19 still remains unpaid out of the sale consideration and this fact, according to the learned Judge in the Higa Court, makes the document (Exh. D. G.) only an agreement to sell. In view of the learned Judge complete satisfaction of sale consideration is a condition precede dent for a valid sale.
7. The approach to the issue, to us, having been taken on a wrong assumption of law, is misconceived and wholly incorrect and cannot be sustained. The phraseology of the document (Exh. D. G.) leaves no doubt that it is a sale-deed and transfers complete title in the suit land to the appellant. Non-payment of the total sale consideration, as would be seen, does not make the sale- deed defective or agreement to sell.
8. The document (Exh. D. G.) executed on 17-3-1950 runs as under:- {{URDU TEXT}} The bare examination of the document manifests the intention of Haleem (vendor) in so many clear words that he had transferred complete title of the suit land for a consideration of Rs, 360. An amount of Rs, 80, was paid at that time and the remainder, as stipulated, was required to be paid at the time of the attestation of the revenue papers. However there is no ambiguity that it transferred complete title to the appellant. The next document is Exh. D.F. Which was executed on 19-3-1950 by one Sattar Muhammad, the uncle of Haleem, who was in possession of the land. This document hands over the possession to the appellant. The third document is Exh. D.E. And was executed on 2-5-1950. This document lists that out of Rs, 360, R& 216, were paid to Haleem on that date and remainder Rs, 144, would be paid later on. There is still another document Exh. D.J.
Executed on 27-2-1951 which enters the receipt of Rs, 85 and also says that the amount now outstanding was only Rs,
59. There is still another receipt, Exh. D.H. For Rs, 20 and remaining Rs, 19 out of the price of the land, it says, remains unpaid. The document, however, is a complete sale- deed and the mere non-payment of a part of salela consideration cannot make the sale defective.
9. What do we mean by "sale". Sale, as defined under section 54 of the Transfer of Property Act, means:- "Sale' is a transfer of ownership in exchange for a price paid or promised part-paid and part- promised." (Underlining* is ours)
10. It would be observed that the payment of price is not necessarily! Sine qua non to the completion of the sale. If the intention of the vendee is that title should pass to the vendor the sale is complete 'as soon as the document is complete; whether the price has been paid or not makes no difference, and the purchaser, if out of possession, is even entitled to sue for possession although he has not paid the price. This is clear from the words of section 54 of the Transfer of Property Act "price paid or promised oil part-paid or part-promised".
11. It would thus follow that if a document completely transfers the title, the price unpaid cannot be pleaded as a defence to avoid such a transfer. In such a case, the vendor is only entitled to sue for the price. However, if a part of the price remains unpaid and the possession also remains with the vendor, the price unpaid would remain a charge on the property and it will be called non- possessory charge as explained under section 55(4) of the Transfer of Property Act. But non- payment of part of the sale consideration, it is our considered view, would not, as said earlier, justify the seller to refuse delivery of the possession. Therefore, the simple factor that a part of the sale consideration (as the case is before us) had not been paid, cannot change the character of document if it otherwise is a sale-deed as contemplated under section 54 of the Transfer of Property Act.
12. The oral evidence coupled with the documentary evidence also lends full support to the claim of the appellant that document (Exh. D G.) is a complete sale-deed and he retained the possession of the suit land on the basis of this document as an owner. Suleman, respondent, in his statement admits that the possession of the suit land lay with the appellant even from the time his father was alive. He also states that despite his best efforts he was unable to get back the possession from the appellant who always resisted to handover the possession pleading that the land had been purchased by him from Haleem for a consideration of Rs, 36U, and, therefore, he would not leave its possession. Alam Din, one of the witnesses of the respondents, also admits that the appellant had taken possession of the suit land from Haleem, the father of the respondents. And since that time he retains its possession. Rehmatullah, the witness examined by the respondents, also is in line with Alam Din. This all shows that the land in suit was held by the appellant as an owner since 1950 on the basis of sale-deed (Exh. D.G.). The oral evidence regarding possession of the appellant stands duly supported by the entries in the Khasra Girdawaris right from 1950 up-to-date.
In view of the above we hold that the document (Exh. D.G.) is a sale-deed for all practical purposes and transferred complete title of the suit land to the appellant.
13. This brings us to see as to whether non-registration of the document (Exh. D.G.), as contended, is fatal to create title of the land in the appellant. This issue came for consideration in Mir Alam etc. v.
Abd4ilah Khan etc. (1), and was answered in negative with the following observations. It may be stated here that the dictum in that case has since been consistently followed in Azad Kashmir.
"Now we come to discuss the effect of the failure of the Azad Jammu and Kashmir Government to provide machinery for registration of deed, etc. It is a common sense principle that if certain enactment is passed or adopted and no machinery is provided for giving effect to its provisions, then it should be considered as a dead letter unless it is definitely declared that no transaction covered by the enactment will take place till the necessary officers began to function. As no steps were taken to appoint the officers for registering documents connected with the transfer of property and the persons making transfers were not prohibited by any specific declaration, it is to be presumed that the Government was not serious for giving effect to the provisions of Registration Act. This being the case of an oral gift of immovable property which is perfectly valid according to Muhammadan Law, cannot be brushed aside simply on the ground that it was not evidenced by a registered deed."
Hare in this case to the sale-deed was executed in the year 1950 when not, machinery for the registration of the sale-deeds was provided and therefore, {{FOOT NOTE}}
(1) PLD 1953 Azad I & K 13 {{FOOT NOTE}} this document, though unregistered, creates a valid title of the land for the( appellant. How a person can be penalised for non-registration of a document when no machinery is provided for the purpose.
14. Mr. B. A. Farooqi, the learned counsel for the respondents, has not seriously contested the contents of document (Exh. D. G.). He, however, submitted that the document has not been proved in accordance with the provisions of law of evidence and is to be excluded from consideration.
Elaborating his point, he maintained that under section 68 of the Evidence Act, one, out of the attesting witnesses of the document, namely Abdullah, Fateh Muhammad, Mian Ghularn Rabbani and Mahwali, must have been examined to prove the document. As none of the attesting witnesses had been tendered in evidence. The learned counsel maintained, the document stands unproved and cannot be read in evidence.
15. We have given our considered thought to the objection listed under para. 14 above and feel that it carries no substance for the following MUM :-
(a) It has come in the evidence, as pointed out by the learned Sub-Judge, that .All the attesting witnesses are dead and only the scribe was alive who has been tendered in evidence to prove the document. Under section 69 of the Evidence Act, which reads:- "If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting-of that person.".
It is only necessary to call an attesting witness if be is alive, subject to the process of the Court and capable of giving evidence. This section provides a mode of proof when none of the attesting witnesses can be found. Tke rule enacted in section 69 must be observed when the witnesses are dead, H out of jurisdiction, insane or when he witnesses though alive, within jurisdiction and capable of giving evidence, cannot be found after diligent search. Deorao v. Dhondirao and others
(1) may be quoted to support our view-point. This view also prevailed in Ponnuswami Goundan and another v. Kalyanasundara Ayyar and others (2) It has been held in that case :- "Where the executant of a document who is an illiterate man denies execution and having put his mark .To it, and all the attesting witnesses are either dead, or have turned hostile or are not available, there is no rule of law which prevents a Court from holding the execution proved when the signatures of the attesting witnesses are proved to its satisfaction having regard to all the circumstances of the case."
(Underlining' is ours).
It would thus appear that the rule to the effect that at least one of the attesting witnesses must be called -to prove the execution of a document is relaxed under section 69 of the Evidence and if the handwriting of the attesting witness has been proved the presumption would be that he actually witnessed the execution of the deed. Therefore, proof of attestation of witnesses being in their handwriting and of the signature of the executant in the circumstances of this case would be considered as sufficient proof of the document (Ex. D. G.). More or less identical view was taken in Venkataramayya {{FOOT NOTE}}
(I) AIR 1928 Nag. 244 (2) AIR 1930 Mad. 770 {{FOOT NOTE}} v. Kamisetti Gattayya and others (1). It was held in that case:- "Where the handwriting of the attesters who are dead has been proved, the presumption, in the absence of rebutting evidence, is that they actually witnessed the execution of the deed."
(b) Under section 68 of the Evidence Act, which reads:- "If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence : ' Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied."
It becomes imperative for the party relying on the document to tender in evidence one of the attesting witnesses if the execution of the document is specifically denied by the executant and not otherwise. The denial should be unqualified so as to leave no doubt that the execution of the document is denied by the person against whom it is sought to be used. When a person states (as the case is before us) that he is unaware of the execution of the document the plea would net amount to a specific denial. In Bhimasingh Kishorsingh v. Fakirchand Nandlal and others (2) dealing with the point it has been observed by the Division Bench of the High Court :- "A statement by the defendant that be is not aware of the mortgage deed .In suit and that the execution, attestation and consideration of the mortgage are, therefore, denied, does not amount to a specific denial within the meaning of proviso to section 68 when it is nowhere specifically denied that it was signed by the person by whom it purports to have been signed. Hence, the examination of the attesting witness in such a case is not necessary under section 68."
In the instant case too, as said earlier, there is no specific denial of the execution of the document.
All that is being said by the heirs of Haleem is that they are ignorant about the document.
Obviously this cannot be considered to be a specific denial.
(c).No such objection appears to have been taken before the Sub-Judge K when the document was proved by the scribe. Such an objection has also not been taken before the District Judge or the High Court or in the concise statement before this Court. It is too late in the day to allow this belated objection.
16. Even otherwise we are of the considered view that the possession of the appellant, at the time of the institution of the suit in the year 1968, had matured into title by of time. The possession of the appellant was not permissive in any sense. Although he entered in possession of the suit land in the year 1950 with the consent of Haleem, nevertheless he held the land in his own right and the respondents. Suleman and others, placed him on L equal footing with themselves. He enjoyed whole of the produce of the land as an owner uninterruptedly and also enjoyed its usufruct. So is said by the witnesses examined by the parties. Besides the respondents, despite their best efforts, as said elsewhere, also failed to get back the possession from the appellant. This case, therefore, is of a nature in which we feel safe to say {{FOOT NOTE}}
(I) AIR 1977 Mad. 662 (2) AIR 1948 Nag. 155 {{FOOT NOTE}} that the title of the respondents had extinguished by adverse possession prior to the institution of the suit in the year 1968.
' This appeal, for the foregoing reasons, succeeds with costs. In the result the decree of the learned Sub-Judge and that of the learned District Judge stand restored. .11