PLJ 2009 Lahore
478
Present: Ali Akbar Qureshi, J.
ALLAH DITTA--Petitioner
versus
NASREEN AKHTAR and another--Respondents
C.R. No. 1327 of 2007, heard on 5.11.2008.
Contract Act, 1872 (IX of 1872)--
----Ss. 214, 215 & 188--Specific Relief Act, 1877, S.
42--Civil Procedure Code, (V of 1908), S. 115--Gift through attorney--Validity
of--Preparing the power of attorney fraudulently and by concealment of
fact--Gift by attorney without consulting the principal--Fraud and
misrepresentation--Plea of--Respondents could not substantiate their stance by
adducing any oral or the documentary evidence but appellate Court had traveled
totally beyond the jurisdiction conferred upon him under the law and rendered a
conclusion which was only, against the facts of the case but also consistent
view maintained in the judgments by superior Courts--Petition had succeeded to
prove that before making the gift by respondent, no consultation or prior
admission was obtained by him and further, that the petitioner had not given
the authority to respondent while executing the power of attorney to alienate
the suit property in any manner whatsoever, therefore, the judgments of the
appellate Court being contrary to the facts and violative of law, was unable to
sustain--Revision allowed.
[Pp. 482 &
483] A, B & C
Mr. Nisar Ahmad Baig, Advocate for Petitioner.
Mian Javed Rashid, Advocate for Respondents.
Date of hearing: 5.11.2008.
Judgment
The petitioner through this civil revision has sought the
invalidation of judgment and decree dated 27.3.2007 passed by the learned
appellate Court whereby the learned appellate Court while accepting the appeal
of the respondents, dismissed the suit filed by the petitioner.
2. The synopsis of
the fact as stated, is that the petitioner instituted a suit for declaration
with consequential relief against the respondents stating that the petitioner
who is a permanent resident of Tehsil Kharian, while performing his duties in
Government Security Papers, Karachi
with the intention to execute a power of attorney, contacted the Respondent No.
2. The power of attorney was executed in favour of Respondent No. 2 wherein he
was delegated or given the authority only to the extent to receive the
compensation from the Pakistan Army, who wanted to acquire the land to
establish training school but Respondent No. 2 taking undue advantage of old
age and illiteracy of the petitioner, while preparing the power of attorney
fraudulently and by concealment of facts, also written in the power of
attorney, the authority to alienate the suit land owned by the petitioner
although, the petitioner had no intention to grant any such authority. It was
also stated in the plaint that Respondent No. 2 by playing fraud and
mis-representation executed and registered a power of attorney on 9.4.1994 and
on the basis of the said power of attorney, Respondent No. 2 prepared a gift
deed in favour of Respondent No. 1 who is wife of the brother of the Respondent
No. 2. Neither the attorney given the power to alienate the land in any manner
whatsoever nor the gift was made in favour of Respondent No. 2, therefore, the
petitioner through the aforesaid suit prayed cancellation of the power of
attorney as well as the gift deed, got registered by fraud and
misrepresentation.
3. The suit was
contested by both the respondents, controverting the contents of the plaint and
also raised preliminary objections and prayed for dismissal of the suit. The
learned trial Court, out of the pleadings of the parties, to resolve the
controversy, framed as many as 10 issues and put the case for recording the
evidence of the parties.
4. The learned
trial Court after hearing the arguments of the parties, finally decreed the
suit in favour of the petitioner. The respondents being not satisfied with the
judgment and decree, preferred an appeal, which was accepted and resultantly,
the suit filed by the petitioner was dismissed, hence this civil revision.
5. It is contended
on behalf of the learned counsel for the petitioner that the petitioner who is
illiterate and simple man, never given any authority to Respondent No. 2 to
alienate the suit land in any manner whatsoever in favour of any one because
the Respondent No. 2 was appointed attorney only to receive the compensation in
case the land is acquired by the Pakistan Army and even otherwise, the
petitioner successfully proved his contention by adducing impartial, cogent and
confidence inspiring evidence, therefore, the learned trial Court rightly
reached to a conclusion after appreciating all the material available on the
record and decreed the suit whereas on the other hand, the learned appellate
Court ignored the evidence available on the file and also the law applicable
thereto, while accepting the appeals, and dismissed the suit of the petitioner
which is in fact result of jurisdictional defect, legal infirmity, material
irregularity, mis-reading and non-reading of evidence. Next contended that even
if for the sake of arguments, it is admitted that the power of attorney was
executed by the petitioner, the gift made by the Respondent No. 2 in favour of
the Respondent No. 1, is unsustainable in law because of violative of the rule
laid down in the judgments reported as Mst. Bandi v. Province of Punjab and
others (2005 SCMR 1368), Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others
(1994 SCMR 818), Muhammad Jalil and 4 others v. Muhammad Sami and 8 others (PLD
2007 Lahore 467) and Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCMR 618).
Lastly contended that the learned appellate Court has also failed to take the
cognizance of the material aspect of the case, that Respondent No. 2 made the
gift in favour of Respondent No. 1, who is wife of his real brother which is
otherwise violative of the dictum laid down in Mst. Ghulam Fatima v. Muhammad
Din and others (2004 SCMR 618) supra.
6. Conversely, the
learned counsel for respondents supported the vires of the judgment rendered by
the learned appellate Court. Next contended that the petitioner himself has
admitted the execution of the power of attorney in favour of Respondent No. 2,
therefore, the petitioner has no reason to deny the execution of the gift
executed in favour of the Respondent No. 1. Also contended that the petitioner
could not place on record anything in support of his stance and the prayer made
by him, therefore, in presence of the admission made by the petitioner, the
petitioner is not entitled for the decree claimed by him.
7. I have heard
the learned counsel for the parties and perused the record.
8. The most
important aspect of the case, which is not denied by the respondents is that
the Respondent No. 2 on the basis of the power of attorney disputed by the
petitioner, executed a gift-deed in favour of Respondent No. 1 who is wife of
his real brother but without consulting the principal i.e. the petitioner.
There is no evidence available on the record to show that Respondent No. 2
before making the gift questioned herein, consulted the petitioner and even
otherwise it was imperative upon Respondent No. 2 to seek the instruction and
permission from the petitioner because of the admitted fact that Respondent No.
2 made the gift in favour of his close relative i.e. wife of his brother.
9. The other
aspect of the instant case, which requires consideration, is that the
Respondent No. 1 is not the daughter of the petitioner and his father's name is
Akhlas Khan. The relation of Respondent No. 1 with the plaintiff is to the
extent that her mother Mst. Nazir Begum after getting divorce from the
aforesaid Akhlas Khan contracted second marriage with the petitioner and the
said Nazir Begum, as revealed from the record, has died some years ago.
Respondent No. 1 about 25 years ago, entered into nikah with one Muhammad
Rafique who is the real brother of Respondent No. 2. From the aforesaid
relation inter-se the parties, it is proved that Respondent No. 1 was step
daughter of the petitioner and if the petitioner had any intention to make the
gift in her favour, this would have been done by the petitioner himself.
10. While dealing
such like proposition, their Lordships of Hon'ble Supreme Court of Pakistan has
observed as under:--
1994 SCMR 818
Contact Act (IX of 1872)
----Ss. 214 & 215--Constitution of Pakistan
(1973), Art. 185 (3)--Leave to appeal was granted to consider as to whether an
attorney could have exercised the right and power of the owner to make a mental
decision for purpose of making a gift as against form of alienations like sale
without the donor himself having taken a mental conscious decision of making a
gift, particularly, on the basis of alleged power of attorney which allegedly
gave power to alienate only through a general power of attorney and whether law
laid down by Supreme Court regarding transfers by attorneys in favour of next
of kin without the specific approval from the principal had been followed in
the case.
2005 SCMR 1368
(a) Islamic Law--
----Gift--Gift through attorney--Essentials---Power of
attorney in such case must specifically authorize attorney to make a gift of property in favour of specified
person.
PLD 2007 Lahore
467
(a) Islamic Law--
---Gift through agent--Scope--Personal acts of
principal-donor depending upon his own mental decision cannot be delegated to
agent--Decision to whom gift should be made being sole prerogative of donor
cannot be left at the choice and whim of agent--Only after making declaration
of gift, donor can appoint agent for accomplishment of the object--Principles.
A Muslim in
the mattes of gifts, divorce etc. can confer the authority to an agent. But
where it is the personal act of the principal, which is dependent upon his own
mental decision, such an authority cannot be delegated. In the category of such
personal acts, obviously the decision to whom the gift should be made, cannot
be left for the choice and whims of the agent, rather it is the sole
prerogative of the donor, which cannot be delegated or deputized. However, once
the decision is taken, and the donor makes a declaration, only thereafter an
agent for the accomplishment of the object can be appointed. A Muslim cannot
confer upon his agent a random or roving authority to make the gift of his
property to any person of the attorney's choice and according to the agent's
wish and the considerations. This is because a gift is a voluntary transfer of
the property to another made gratuitously and without consideration; it is a
transaction not in the nature of quid pro quo, but is free of the above,
therefore, why and to whom the gift should be made is based upon the very
personal and self consideration of the donor, structured upon his personal
state of mind and the decision and therefore, under no rules of general law of
agency, such personal decision can be delegated to an agent. The donor himself,
has to make the gift, whereafter he can confer the authority upon his agent to
take necessary steps for the proper implementation/execution of the
transaction.
11. While
interpreting Sections 188, 214 and 215 of the Contract Act, 1872, the Hon'ble
Supreme Court of Pakistan has laid down a principle in the case reported as
Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCMR 618) and observed as
under:--
2004 SCMR 618
Contract Act (IX of 1872)--
--Ss. 188, 214 & 215--Sale of land by Attorney to his own wife without
consulting the principal--Validity--Attorney, if wanted to exercise such power
in his own favour, had to consult the principal before doing so--Such sale was
liable to be struck down.
12. The learned
counsel for respondents when confronted with the golden principles, referred in
the judgments supra, which are squarely applicable on the facts of the instant
case, the learned counsel had no answer and also could not refer any judgment
contrary to the above-referred esteemed judgments.
13. The learned
trial Court while decreeing the suit rightly observed that the respondents
could not substantiate their stance by adducing any oral or the documentary
evidence but the learned appellate Court has traveled totally beyond the
jurisdiction conferred upon him under the law and rendered a conclusion which
is not only, as observed above, against the facts of the case but also the
consistent view maintained in the judgment supra. The petitioner has succeeded
to prove that before making the gift by Respondent No. 2 in favour of
Respondent No. 1, no consultation or prior admission was obtained by him and
further, that the petitioner had not given the authority to Respondent No. 2
while executing the power of attorney to alienate the suit property in any
manner whatsoever, therefore, the judgments of the learned appellate Court
being contrary to the facts and violative of law, is unable to sustain.
14. For the
foregoing reasons, this revision petition is allowed, the impugned judgment and
decree passed by the learned appellate Court is set aside and that of the
learned trial Court is affirmed. No order as to costs.
(Sh.A.S.) Petition
allowed
