2002 PLP 1651 (MLD)

This revision petition impugns the judgment and decree dated 19‑4‑2000 passed by the. learned District Judge, Kasur. By means of the impugned judgment the decision of the learned trial Court was reversed. The facts leading up to the filing of the present petition are relatively straightforward.

2. Mst. Santo alias Ghaman respondent owned the suit land measuring 34 Kanals, 2 Marlas situated in Mauza Dobli, Tehsil Chunian. On 29‑1‑1957 she executed and registered a general power of attorney Exh.P‑2 in favour of her husband Khushi Muhammad. By means of a supplementary document some correction was made in the aforesaid power of attorney on 29‑6‑1957. In exercise of powers. conferred on him under the said power of attorney Khushi Muhammad sold the suit land to the petitioners/defendants on 30‑8‑1965. The petitioners are in possession of the said land since the date of the sale made in their favour.

3. On 29‑11‑1967 Mst. Santo respondent filed a suit, out of which the present petition has arisen, whereby the sale in question dated 30‑8‑1965 in favour of the petitioners/defendants, was challenged. It was contended in the plaint that she was only 10/12 years old when she got married to her husband Khushi Muhammad. It was specifically alleged by her that she was a minor and on top of that she was under the undue influence of Khushi Muhammad at the time she executed the power of attorney. The said power of attorney Exh.P.2., according to Mst. Santo was, therefore, invalid and, as a consequence, the impugned sale of the suit land did not confer any title on the petitioners/defendants.

4. Both Courts below have concurrently held that Mst. Santo respondent/plaintiff was, indeed, a minor at the time she executed the general power of attorney (Exh.P.2) in favour of her husband Khushi Muhammad in 1957. Learned counsel for the petitioners has advanced arguments and has also referred to documents on the record and the testimony of witnesses to contend that the aforesaid finding as to the minority of Mst. Santo respondent, is not sustainable on the basis of the evidence on record. For reasons appearing below, however, I do not find it necessary to discuss: the evidence referred to by learned counsel for the petitioners.

5. At this juncture, it is important to note that Mst. Santo, admittedly, remained the wife of Khushi Muhammad and was, by her own admission, living with him at least until 18‑3-1968 when she filed a suit against Khushi Muhammad for dissolution of marriage. The impugned sale in favour of the petitioners/defendants was effected by Khushi Muhammad on the basis of the above‑referred power of attorney on 30‑8‑1965. These dates bear material significance in this case.

6. Mst. Santo plaintiff/respondent has clearly asserted in the plaint that she had executed a power of attorney in favour of Khushi Muhammad. She has also averred in the plaint that the said power of attorney had been obtained by Khushi Muhammad while she was a minor. From these averments, it is quite clear that she was in the knowledge that the power of attorney (Exh.P.2) was in existence. As a witness she has, contrary to the averments of the plaint, asserted that Khushi Muhammad had obtained her signatures on blank white paper which he has used for the purpose of preparing the general power of attorney. She cannot be allowed, as rightly held by the learned trial Court, to take up a position as a witness which is diametrically opposed to the averments in the plaint. I do not, therefore, have any doubt in my mind that Mst. Santo was fully aware of the existence of the power of attorney (Exh. P.2) favouring Khushi Muhammad. She did not take any steps to have the said document cancelled. Even if it is accepted, as contended by her, that she attained majority on 3‑11‑1959, she should have sought cancellation of the power of attorney if it was her desire that her husband Khushi Muhammad should not have the power to deal with her land. This, admittedly, she did not do and thereby enabled third parties such as the petitioners to deal with Khushi Muhammad on the basis of the power of attorney. Furthermore, she remained the wife of Khushi Muhammad and resided with him at the material time when Khushi Muhammad executed the sale‑deed dated 30‑8‑1965 in favour of the petitioners on the basis of the power of attorney. Mst. Santo, therefore, must assume responsibility for the unchallenged. act of her husband Khushi Muhammad, particularly, when such acts were supported by her own conduct. For the petitioners, it was most natural and logical to assume that Khushi Muhammad. who was, at the relevant time, the husband of Mst. Santo, had lawful authority on the basis of the power of attorney (Exh.P.2), to deal with the land of Mst. Santo in accordance with powers duly recorded in the said power of attorney.

7. It is also important to note that the petitioners are bona fide purchasers of the suit land for valuable consideration without notice of any defect in the authority vesting in Khushi Muhammad pursuant to the power of attorney. Significantly, although Mst. Santo, in her testimony, has assailed the sale of her land made by Khushi Muhammad in favour of his daughter Mst. Surayya respondent No.2 herein and in favour of his brother, she has not made any allegation or raised any challenge in respect of the sale made in favour of the petitioners. The petitioners have even otherwise proved that they are bona fide purchasers having paid valuable consideration for the purchase of the suit land. They have produced on record receipts (Exh.D.3 to Exh.D.5) to show payment of consideration for the suit land. In these circumstances, the rights acquired by the petitioners in the suit land, cannot be, allowed to be defeated because some years after the impugned sale Mst. Santo fell out with her husband Khushi Muhammad and developed differences with him resulting in the dissolution of their marriage.

8. Learned counsel for Mst. Santo argued that persons transacting business with a woman, are required to ensure that she has independent advice from a male member of her family so that she can be fully aware of the implications of the transaction. He contended that in the present case Mst. Santo did not have such advice and, as such, the transaction of the sale of her land in favour of the petitioners, could not be sustained. In support of his argument, learned counsel has referred to the case titled Fida Muhammad v. Pir Muhammad Khan (OLD 1985 SC 341) and the case titled Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811). I am afraid, the argument of learned counsel is not well‑founded. The legal principles set out in the aforecited precedents are by now well‑established but the same do not have relevance in the present case. Firstly, it is to be noted that the sale in question, although between the petitioners and Mst. Santo was actually transacted by Khushi Muhammad on behalf of Mst. Santo and not by Mst. Santo herself. Secondly, as far as the petitioners were concerned, Khushi Muhammad, to whom Mst. Santo was lawfully married at the time and with whom she was residing, was the most natural male relative of Mst. Santo to be tendering advice to her and action on her behalf. In these circumstances, therefore, the petitioners, as bona fide purchasers of the suit land for valuable consideration, cannot be deprived of their rights in the suit land. It may be that Mst. Santo can found a cause of action against Khushi Muhammad for his acts and the undue influence allegedly exercised by him over her but she cannot, in the circumstances discussed above, avoid the sale made in favour of the petitioners.

9. For the foregoing reasons, I find that the impugned judgment and decree dated. 19‑4‑2000 passed by the learned District Judge, Kasur are not legally sustainable. The said judgment and decree are, therefore, set aside. As a result, the judgment and decree of the learned trial Court dated 2‑6‑1984 stand restored. H.B.T./M‑1202/L Revision accepted.