PLJ 2009 Lahore 940 (DB)
[Rawalpindi Bench Rawalpindi]
Present:
Syed Hamid Ali Shah and M.A. Zafar, JJ.
MUHAMMAD
AKBAR KHAN (deceased) & others--Appellants
versus
ATTA ULLAH
KHAN & 11 others--Respondents
R.F.A. No.
35 of 2000, decided on 28.10.2008.
Specific
Relief Act, 1877 (I of 1877)--
----S.
42--Hibba by the General Attorney--Validity--Although the execution of three
powers of attorney has been admitted by the plaintiff but these were executed
for different purposes--A valid gift, held could only be made, if there had
been an approval and consent of the principal with regard to property sought to
be gifted with a specific mention of the name of the donee--In the absence of
approval or consent of Principal--Such transfer has no legal validity and is
set aside. [P. 947] D
Gift--
----Cancellation
of mutation--Executed three deeds of General Power of Attorneys--Question of
validity of gift through an attorney--A valid gift could only be made, if there
had been on approval and consent of principal with regard to property sought to
be gifted with a specific mention of name of donee--Transaction lacks the
element of clear and specific approval of the principal regarding gift,
particulars of donee and intention of donor qua specific property--Thus it has
not been established that the donor had intended to transfer the property in
question to donee as a voluntary or gratuitous act. [P. 946] A
Transaction
of Gift--
----Transaction
was gift made on the basis of general power of attorney--Validity of
transaction--Validity of the transaction can be ascertained, only on basis of
deed of gift and general attorney--Held: Needs no scholarly discussion that
oral evidence can neither be led nor considered to prove that parties intended
something different from clear stipulation of document--When document is clear
and speaks for itself, then there is no question to consider oral evidence to
show real nature of transaction. [P. 946]
B
Power of
Attorney--
----General
power of attorney and gift-deeds--Determination--No evidence can be admitted or
considered that parties by executing general powers of attorney and gift-deed
meant to effect a sale in favour of respondent--Rights and obligations of
parties can only be determined on the basis of the documents and no other
meanings can be assigned to such documents. [P.
947] C
Malik
Muhammad Kabir, Advocate for Appellant.
Syed Hamid
Ali Bukhari, Advocate for Respondent.
Date of hearing:
22.10.2008.
Judgment
Syed Hamid
Ali Shah, J.--Muhammad Akbar Khan deceased plaintiff instituted a suit for
declaration, cancellation of mutations, injunction and restoration of
possession, on 22.06.1994. The case of the plaintiff, as set out in the plaint
was that he owned 116 kanal and 4 marlas agricultural land in village Akwal. He
shifted to Okara and appointed Atta-ur-Rehman Khan (Defendant No. 1) as general
attorney and executed three deeds of General Power of Attorneys on 19.12.1993,
4.1.1994 and 8.1.1994. The object of appointing the attorney was to sell the
land and remit the sale proceeds to the plaintiff. The attorney, instead of
selling the property as per covenant, gifted the same through impugned
Mutations No. 1413, 1414, 1418 and 1420 to close relatives including his son
(Defendant No. 2). Respondent No. 12 (Defendant No. 12) the nephew of the
plaintiff in this illegal exercise, actively connived with Defendant No. 1. It
is also asserted in the plaint that impugned gifts were made without the
consent and authority of the plaintiff. The plaintiff breathed his last, during
the pendency of the suit and is survived by appellants (Defendants No. 1-A to
1-C).
Respondents
appeared before learned trial Court, submitted written statements, controverted
the assertions of the plaint and raised various preliminary objections.
Respondent No. 1 took the plea that plaintiff sold the property in dispute and
had received entire sale consideration from him and in lieu thereof executed
three General Powers of Attorney.
2. Learned trial Court, out of the divergent
pleadings of the parties, framed ten (10) issues and recorded the evidence of
parties. Learned trial Court, on conclusion of the trial, vide impugned
judgment and decree dated 10.02.2000, dismissed the suit. Issues No. 6 to 8
were decided against the defendants, while Issues No. 1 to 3, were decided
against the plaintiff. Issues No. 3-A, 3-B and 5 were decided in favour of the
defendants. Hence this appeal.
3. Learned counsel for the appellants contended
that, by a general attorney mutations of gift were sanctioned, on behalf of the
appellants' predecessor. The gift is invalid as love and affection, which is
the main consideration of gift, cannot be expressed through attorney. Learned
counsel supported this contention by placing reliance on the cases of
"Mst. Shumal Begum vs. Mst. Gulzar Begum and 3 others" (1994 SCMR
818). Learned counsel contended further that before the transfer of the
property, the consent of the principal was essential, which was not obtained.
Respondent No. 1 has violated the provisions of Sections 214 and 215 of the
Contract Act, 1872. Learned counsel referred to the case of "Muhammad
Ashraf and 2 others Vs. Muhammad Malik and 2 others" (PLD 2008 S.C. 389)
and contended that without permission and consent of the principal, any gift by
the authority on behalf of the principal, is void transfer. Learned counsel
added that when the attorney has his own interest in a transaction, then
mention of consideration is essential and mandatory requirement. Learned
counsel, in his contention, found support from the dictum laid down in the case
of "Rasool Bukhsh and another Vs. Muhammad Ramzan" (2007 SCMR 85).
Learned counsel went on to argue that evidence of DW-5, DW-7, DW-8 and DW-9, on
the point of sale agreement between the plaintiff and Defendant No. 1 was out
of pleadings and had to be ignored. It was submitted that Exh. D-1 to Exh.D-3
were not mentioned in written statement, nor the plaintiff was confronted with
these documents. The execution of these documents was denied and as such, by
virtue of Article 140 of Qanoon-e-Shahadat Order, 1984, these documents have no
evidentiary value. Learned counsel pointed out contradictions in the evidence
of the respondents regarding payment of earnest money etc. He referred to
Article 102 of the Qanoon-e-Shahadat Order, 1984 and contended that oral
evidence cannot be adduced to prove and dislodge the express stipulation in a
document. Learned counsel summed up his arguments with the contention that sale
agreement of subsequent date is silent with regard to earlier document i.e power of attorney, this fact alone is
sufficient to conclude that subsequently false sale transaction was created
through fake document.
4. Learned counsel for the Respondents No. 1, 2
and 7, stood behind the impugned judgment. He supported it with full vehemence
and contended that suit is incompetent, as it is admitted by PW-1 that
plaintiff was out of possession. In the absence of specific prayer for
possession, the suit under Section 42 of the Specific Relief Act, is not
competent. He added that Exh.D-1 to Exh.D-3 are unchallenged and without
seeking cancellation of these documents, no other suit can proceed. Learned
counsel referred to the statement of PW-2, who admitted that he was a witness
of sale agreemen, which was signed by him at his residence. Ex-D-1 to Ex.D-4
are of one date. The witness admitted that sale agreement was executed in
favour of Defendant No. 1. The witness further showed his inability to tell
that power of attorney was executed by the vendor and also Iqrar Nama, Stamp
vendor entered the witness box to prove Exh. D-1. He admitted that deceased
plaintiff at the time of purchase of stamp paper was not present and signatures
of Muhammad Akbar were taken, at the time of purchase of stamp paper. DW-2,
(Sadiq Arain) another Stamp Vendor stated that he was scribe of Exh.D-2
whereupon the parties signed the document and plaintiff received consideration
of Rs. 1 lacs. The witness was also scribe of Exh.D-3, Exh. D-3 was attested by
DW-3, Talat Najeeb, Advocate a notary public, DW-4 stated in the witness box
that the principal received the sale consideration first and thereafter the
deed of General Power of Attorney was delivered. He further stated that payment
of Rs. 1 lacs was paid in his presence. DW-5 (Atta Ullah) in his statement gave
full details of the transaction. His statement remained unrebutted and no
question was put to witness that Iqrar Namas are fake documents. DW-6 was
marginal witness of Exh.D-2, while DW-5 and DW-7, specifically stated that the
payment was made by Defendant No. 1 to the plaintiff in their presence, DW-8,
in response to suggestion, responded that Hibba was made to avoid the
pre-emption. Learned counsel, after discusing in detail the resume of the
evidence, submitted that the real transaction was sale. Defendant No. 1 made
the payment of sale consideration. He then submitted that scribe acquires the
status of marginal witness and supported this contention by referring to the
cases of "Muhammad Nawaz Vs. The State" (2000 YLR 1933) and
"Nazir Ahmad Vs. Muhammad Rafiq" (1993 CLC 257). Learned counsel
referred to the case of "Muhammad Younis Vs. Atta Muhammad and 2
others" (1999 SCMR 2574) and contended that no limitation can be placed on
attorney, on his power to execute sale-deed and the attorney enjoys unfettered
powers on behalf of his principal. Attorney can sell and transfer the property
of the principal.
5. Heard learned counsel for the parties and
record perused.
6. We will first take up the matter of proof of
vital documents i.e Exh. D-1 to Exh.D-3. Whether the respondents have succeeded
in proving these documents, the respective evidence of the parties needs
examination. The plaintiff appeared as PW-1 and denied that he had authorized
his Attorney/Respondents No. 1 to transfer the property through Hiba to
Respondents No. 2 to 5. In his cross-examination, he had expressed ignorance
regarding agreement of sale (Ex.D-1). He was not confronted with the documents
as well as his signatures. Although he made another statement suggestive of
admission of the agreement Ex.D-1, but in the absence of any document
specifically put to him such statement does not carry much weight. Ex.D-2 and
Ex.D-3 were not put to the plaintiff when he appeared as a witness. Clearly the
provisions of Article 140 of the Qanoon-e-Shahadat Order, 1984, have not been
complied with and the alleged agreement of sale does not carry any evidentary
value.
7. The marginal witnesses produced by the
respondents did not confirm the signatures on the agreement of sale Ex.D-1 as
well. The document was not placed before them. Ex.D-2 as well as Ex.D-3 had not
been proved, in accordance with Article 17 read with Article 79 of the
Qanoon-e-Shahadat Order, 1984.
8. The plaintiff admitted execution of three
powers of attorney in favour of Respondent No. 1. However, it is evident from
relevant record that Respondent No. 1 transferred the property in dispute in
favour of Respondent No. 2 (his real son) and Respondents No. 3 to 5 his close
relatives. It was imperative for him to have obtained consent of the principal
before transferring the land to his near relatives. Transfer of property on the
basis of power of attorney to closely related person by the attorney and impact
of failure to seek consent and approval, remained under consideration in
various cases. It was held in the case of "Muhammad Ashraf and 2 others
vs. Muhammad Malik and 2 others" (PLD 2008 S.C 389) as under :--
"It is
a settled law by now that if an attorney intends to exercise right of
sale/gifts in his favour or in favour of next of his kin, he/she had to consult
the principal before exercising that right. The consistent view of this Court
is that if an attorney on the basis of power of attorney, even if "general"
purchases the property for himself or for his own benefit, he should firstly
obtain the consent and approval of principal after acquainting him with all the
material circumstances."
The
Honorable Apex Court in the case of "Rasool Bukhsh and another Vs. Muhammad
Ramzan" (2007 SCMR 85), held further that :--
"It is
also a well established legal preposition that a person, who has been validly
authorized to alienate the property of another, he has to satisfy the Court
that at the time of entering into a transaction of sale of a property, the
principal was not available and if there is no such evidence then the
transaction does not hold good unless it is established on record that the
transaction has been made with knowledge and with consent of the principal while
entering into general power of attorney."
It has been
held in the case of "Dur Muhammad and 12 others vs. Abdul Sattar"
(1996 CLC 1596) that in the event of a Hiba by the attorney, prior permission
of the principal is necessary.
The
Honorable Apex Court, in the case of "Fida Muhammad Vs. Pir Muhammad Khan
(Deceased) through legal heirs and others" (PLD 1985 S.C 341) held that:--
"It is
wrong to assume that every "general " Power-of-attorney on account of
the said description means and includes the power to alienate/dispose of
property of the principal. In order to achieve that object it must contain a
clear separate clause devoted to the said object. The draftsman must pay
particular attention to such a clause if intended to be included in the power
of attorney with a view to avoid any uncertainty or vagueness. Implied
authority to alienate property, would not be readily deduceable from words
spoken or written which do not clearly convey the principal's knowledge,
intention and consent about the same. The Courts have to be vigilant
particularly when the allegation by the principal is of fraud and/or
misrepresentation. The second aspect which needs caution on question of
validity of acts under a power of attorney is that notwithstanding an authority
to alienate principal's property, the attorney is not absolved from his two
essential obligations, amongst others, firstly in cases of difficulty (and it
will be a case of difficulty if the power of attorney is susceptible to doubt
about it's interpretation) to use all reasonable diligence in communicating
with the principal and seeking to obtain his instructions; and secondly, if the
agent deals on his own account with the property under agency, e.g, if he
purchases it himself or for his own benefit, he in his own interest should
obtain the consent of the principal in that behalf after acquainting him with
all material circumstances on the subject, failing which the principal is at
liberty to repudiate the transaction."
9. The above survey of law, brings us to
conclude that the attorney is under legal obligation to seek approval or
consent of the principal, when the property of the principal is acquired by the
attorney himself or for his own benefit or when such property is alienated to
the persons closely related to the attorney.
10. Now we will advert to the question of
validity of the gift through an attorney. The identical question came-up for
consideration before the Honourable Apex Court in the case of "Mst. Shumal
Begum Vs. Mst. Gulzar Begum and 3 others" (1994 SCMR 818), wherein it was
held that:--
"Love
and affection cannot be expressed by an attorney on behalf of the donor. The
sentiments which were the consideration for gift in the present suit must be
established to have come from the donor. Gifts are voluntary and gratuitous in
the present suit transfer from the donor to the donees. The essentials of these
transactions are, the capacity of donor, intention of donor to make gift,
complete delivery of the gifted property to the donee and acceptance of gift by
donee. In order to establish a valid gift of the property by the donor in
favour of the donee, where gift is made through a person authorized by the
donor, the intention of donor to make the gift must be established in clear
terms. In such a case, the authority given by the donor in his favour by said
Nawab cannot be upheld for two reasons. Firstly, the poer of attorney executed
in his favour by said Nawab cannot be upheld for two reasons. Firstly, the
power of attorney executed in favour of another person to make a gift of his
property besides containing the power to make the gift must also clearly
specify the property and also the name of the donee. In the case before us, the
gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis
of the power of attorney executed in his favour said Nawaz cannot be upheld for
two reasons. Firstly the power of attorney executed in favour of Respondent No.
2 by the deceased Said Nawab did not contain any specific provision authorizing
him to make a gift of his properties and; secondly, even if we assume that such
power was given, there is no indication in the said document that the donor
intended to make gift of all his properties in favour of the wife of
attorney".
11. The above dictum of the Honourable Apex
Court, has settled the controversy in clear and unambiguous terms. Respondent
has entered into a transaction, with regard to property of the principal,
without his consent and approval. A valid gift, in the case in hands, could
only be made, if there had been an approval and consent of principal with
regard to property sought to be gifted with a specific mention of the name of
the donee. Instant transaction lacks the element of clear and specific approval
of the principal regarding gift, particulars of donee and intention of donor
qua the specific property. Thus it has not been established that the donor had
intended to transfer the property in question to donee as a voluntary or
gratuitous act.
12. There is another angle to view this controversy.
The impugned transaction was gift made on the basis of General Power of
Attorney. The validity of instant transactions can be ascertained, only on the
basis of deed of gift and the general attorney. The stance of respondents that
the suit property was sold by the deceased plaintiff to the Defendant No. 1 and
the latter as the owner of the property, alienated it to Respondents No. 2 to
5, has no legal sanctity. It is settled law and needs no scholarly discussion
that oral evidence can neither be led nor considered to prove that parties
intended something different from the clear stipulation of the document. When
the document is clear and speaks for
itself, then is
no question to consider oral evidence to show real nature
of the transaction. Language employed in the general powers of attorney and the
gift deeds, accurately define real nature of transaction between the parties.
No evidence can be admitted or considered that the parties by executing general
powers of attorney and the gift deed, meant to effect a sale in favour of
Respondent No. 1. The rights and obligations of parties can only be determined
on the basis of these documents and no other meanings can be assigned to these
documents.
13. In view of the above discussion, it is clear
that the plaintiff had challenged the transfer of property in dispute to
Respondents No. 2 to 5 and subsequently to Respondents No. 6 to 11 on the basis
of fraud and collusion and had also denied making of a gift of the property in
dispute in favour of Respondents No. 2 to 5. Although the execution of three
powers of attorney has been admitted by the plaintiff but these were executed
for different purposes i.e sale of the land in dispute and transferring of sale
proceeds to the plaintiff. Respondent No. 1 had transferred the property in
dispute by way of Hibba to his son and other near relatives without obtaining
prior consent of the plaintiff. Such transfer has no legal validity and is
set-aside.
14. For the foregoing, the transaction of gift is
illegal and unlawful and subsequent transfers on the basis of gift, are also
void. The appeal is accepted and the judgment of learned trial Court is set
aside and the suit of the plaintiffs is decreed as prayed for in the plaint,
with no orders as to the costs.
(R.A.) Appeal accepted.
