2014 PLP 513 (CLC)

LAL JAN KHATTAK J.

This civil revision petition under section 115, C.P.C. is directed against the judgment and decree dated 12-9-2009 of the learned Additional District Judge-I, D.I. Khan whereby appeal of the petitioners, against the judgment and decree dated 8-11-2007 of the learned Civil Judge-VIII, D.I. Khan, has been dismissed.

2. Short facts of the case are that the petitioners-plaintiffs filed a suit against the respondents-defendants challenging the gift effected through gift Mutation No.844 attested on 21-12-1995. Petitioners have averred in their plaint that during their stay at abroad in connection with their livelihood, they had appointed respondent No.3, Muhammad Bakhsh, as their attorney in order to look after their landed properties. It is the petitioners' case that without their consent and permission the attorney transferred their 19 kanals and 16 marlas land by way of gift to the respondents No.1 and 2 through gift Mutation No.844 attested on 21-12-1995. Respondents contested the Suit by filing their written statement in which they refuted claim of the petitioners. After framing necessary issues the learned trial court recorded pro and contra evidence as produced by the parties whereafter suit of the petitioners was dismissed on 8-11-2007 which dismissal was affirmed in appeal vide judgment and decree dated 18-1-2008.

3. Learned counsel for the petitioners in support of the revision petition contended that judgments and decrees of the two courts below are absolutely illegal and are the result of non-reading and misreading of case evidence. It was contended that the attorney had no lawful authority to transfer the suit-land by way of gift to the respondents-donees. The learned counsel further argued that the respondents are at daggers-drawn with the petitioners and there are disputes inter se the parties, therefore, in such-like tense situation there does not arise any question to confer 19 kanals and 16 marlas land on the respondents by way of gift. It was also contended that petitioners Nos.4 and 5 are parda-observing ladies and they never appeared before any local commission for recording their statements but in collaboration with the revenue officials the respondents deprived the petitioners of their valuable land.

4. As against the above learned counsel for the respondents contended that the concurrent findings of the two courts below are based on correct appreciation of law, facts and evidence of the case, He further argued that respondent No.3 was lawfully appointed by the petitioners as their attorney who acted according to the mandate given to him and by making a gift in favour of the donees he committed no illegality. He concluded that the judgments and decrees of the two courts below do not suffer from any illegality or jurisdictional defect.

5. I have heard learned counsel for the parties and also gone through the record of the case.

6. Core and fundamental issue in the instant case is whether the attorney was legally competent to make gift of landed property belonging to the petitioners in favour of the respondents. Answer to the above lies in negative. It is by now a settled law that in order to make a valid gift not only the attorney be specifically authorized but the donee should also be a specified and nominated person. The attorney might be empowered by his principal through a general power of attorney to make a gift but it does not mean that he has got an absolute power to appease and bless any person of his choice. He cannot dole out property of his principal in the garb of a gift on a person not nominated for this purpose by the principal.

7. The above restrictions on the powers of the attorney to make a gift are justified for the seasons that a gift emanates always from love and affection of the donor to a donee and some time is a quid pro quo for personal services rendered by the donee to the donor. Express consent and permission of the principal in the process of making a gift by his attorney cannot be bypassed because it is the inner feeling and state of mind of the donor which inclined him towards a donee for blessing him with a gift. If a person is neither known to the principal or is inimical to him then how the attorney can make a gift in his favour on behalf of his principal. This is something which is not appealable to a prudent mind. Taking the above discussion into account, perusal of the case record reveals that petitioners and the respondents-donees were not in good terms with each other. Both the parties were once bound down by the local police under section 107/151, Cr.P.C. for maintaining peace and tranquillity. There was complete mistrust between them. Compromises were effected and broken on so many occasions. In such circumstances making a gift by the attorney of 19 kanals and 16 marlas of landed property belonging to the petitioners in favour of the respondents is not understandable.

8. Apart from the above there are two ladies petitioners who are pardanasheen. There is no evidence on record that any of their relatives was present during the time when their statement was recorded or their male relative identified them before the revenue officer for making the alleged gift. Moreso, there is no evidence regarding any offer or acceptance of the alleged gift or that in pursuance of the alleged gift the respondents were put into possession of the gifted land.

9. Both the courts below have failed to appreciate the case evidence in its true perspective. The impugned judgments and decrees are not based on correct legal approach relating to the issue raised in the case. There is complete misreading and non-reading of the case evidence which omission and commission has caused grave miscarriage of justice to the petitioners. Therefore, this revision petition is accepted, the impugned judgments and decrees of the courts below are set aside and resultantly suit of the petitioners is decreed as prayed for. JJK/616/P Petition accepted.