PLJ 2011 Peshawar 282
Present: Mazhar Alam Khan Miankhel, J.
QASIM SHAH--Petitioner
versus
Mst. SHAHNAZ BEGUM & others--Respondents
C.R. No. 602 of 2011 with C.M. No. 650 of
2011, decided on 24.6.2011.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Transaction of
sale by an attorney in favour of blood
relation--Proof through cogent and reliable evidence was required--Concurrent
findings--Suit for declaration was decreed by Courts below--Wife appointed her
general attorney spouses unfortunately come to an end through for
dissolution--Ex-husband alienated her property through registered sale
deed--Challenge to--Validity--Attorney would require prior, permission, appraisal
and consent of principal when he wanted to transfer the property in name of his
close relative--When he had lost confidence of the principal i.e. his ex-wife
because of dissolution of marriage between them, was bound to prove the factum
of genuineness of sale within knowledge and permission of principal--Mere
production of registration clerk alongwith marginal
witness of deed would not be sufficient to absolve defendants from burden they
were required to discharge--Being beneficiary of deed was under legal
obligation to prove it to be true and genuine sale and sale consideration
actually changed hands between the parties--Required to prove that he sold the
property with approval and consent of his ex-wife--Petition was dismissed. [P. 284] A, B & C
1994 SCMR 818
& 2004 SCMR 618, rel.
Hafiz Fazli Rahim, Advocate for Petitioner.
Date of hearing: 24.6.2011.
Order
The petitioner herein being Defendant No.
2 in a suit for declaration filed by Plaintiff/Respondent No. 1 has impugned
the concurrent findings of the two Courts below through instant revision
petition whereby suit for declaration regarding property fully described in the
head note of the plaint was decreed in favour of
Plaintiff/ Respondent No. 1 against the defendants by Civil Judge-IV, Mardan vide his judgment and decree dated 14.7.2010. The
appeal of the present petitioner was also dismissed by Additional District
Judge-VIII, Mardan vide his judgment and decree dated
3.2.2011.
2.
Learned counsel for the petitioner in support of his claim submitted
that the findings of the two Courts below are not only against the law but have
been based on mis-reading and non-reading of the
material evidence available on the record. He next contended that the
petitioner being the bona fide purchaser of the suit property from a duly
authorized person i.e. the general attorney of the plaintiff, has through
cogent and reliable evidence, proved the transaction of sale in his favour; the general power of attorney in favour of Defendant No. 1 is still intact and the attorney
was authorized to alienate/transfer the property through sale, gift etc. on
behalf of the owner which according to law is correct in all respect so decretal of suit in favour of
plaintiff by the Courts below is against law and without jurisdiction.
3.
Learned counsel for the petitioner was heard and record of the case was
perused. Record of the case would reveal that the plaintiff and Defendant No. 1
were in a marital bond, she appointed her husband, namely, Sikandar
Shah, Defendant No. 1, as her general attorney through a Registered Deed No.
224 dated 14.5.2001. Later on, the marital bond between the spouses
unfortunately came to an end through a decree for dissolution dated 19.9.2005.
No doubt, the record is silent with regard to cancellation of above said power
of attorney but in the present scenario such a sale cannot be taken so lightly
and cannot be considered a matter of routine specially when the only relation
of husband and wife between the two came to end and the said attorney by using
the deed of attorney, alienated/transferred the property of principal in the
name of his brother against the sale consideration of Rs.10,6500/-.
4.
The perusal of the record would reveal that after dissolution of her
marriage, the plaintiff was re-married to one Ashfaq
and was residing with him in Canada. The Defendant No. 1, the ex-husband of
plaintiff alienated her property through a registered sale-deed Bearing No. 889
dated 20.9.2008 in favour of his brother. In the
circumstances, the said transaction of sale by an attorney in favour of his blood relation i.e. his real brother would
require its proof through cogent and reliable evidence. The law of the land has
also been established to the extent that the attorney would require prior
permission, approval and consent of the principal when he wants to transfer the
property in the name of his close relatives. Reliance in this regard can be
placed on "Mst. Shumal
Bagum Vs. Mst.Gulzar Begum and 3 others" (1994 SCMR 818) and Mst. Ghulam Fatima Vs. Muhammad
Din and others" (2004 SCMR 618). The attorney in the circumstances of the
case, when he had lost the confidence/trust of the principal i.e. his ex-wife
because of dissolution of marriage between them, was bound to prove the factum
of genuineness of the sale within the knowledge and permission of the
principal. The defendants i.e. brothers have attempted to produce evidence in
support of the transaction of sale by producing the Clerk of Sub-Registrar
Office as DW-1, the attorney of the defendants as DW-2 and the two marginal
witnesses of the sale-deed as DW-3 and 4 respectively. The story of sale as
floated by the defendants itself becomes doubtful when both of them i.e. the so
called agent of plaintiff, her ex-husband and the purchaser of the property
i.e. the brother of the agent, didn't opt to appear as a witness in support of
their case and to face the test of cross-examination. Besides, the factum of
payment of sale consideration as narrated by their special attorney, namely, Mukhtiar Ali, DW-2 is also doubtful that the Defendant No.
2 paid the sale consideration to Defendant No. 1 who then passed the same
onward to plaintiff who was present alongwith her
sister Mst.Nuzhat in the "Hujrah"
of defendants. This story is absolutely unbelievable as the social set up we
live in would not allow, a divorced wife to be present alongwith
her sister in the "Hujrah" of her
ex-husband to receive the sale consideration. It is a dent so big in the story
of defendants which cannot be made up. Mere production of Registration Clerk alongwith marginal witnesses of the deed in the
circumstances would not be sufficient to absolve the defendants from the burden
they were required to discharge. The defendant/petitioner being beneficiary of
the deed was under legal obligation to prove it to be a true and genuine sale
and the sale consideration actually changed hands between the parties. The
Defendant No. 1 was also required to prove that he sold the property with the
approval and consent of his ex-wife. Yet another circumstance which he was also
required to prove in the peculiar circumstances of the case was that inspite of their separation, they had relations to the
extent that he was able to act as her attorney with her consent. The defendants
bitterly failed to discharge their burden and the two Courts below after proper
appraisal of evidence have rightly decreed the suit of the Plaintiff/Respondent
No. 1.
5.
Being concurrent findings of the two Courts below, based on proper
appraisal of evidence would require no interference; hence this civil revision
is dismissed in limine alongwith
C.M. No. 650/2011, with no order as to costs.
(R.A.) Revision
dismissed.
