1998 PLP 96 (SCMR)

KHALIL-UR-REHMAN KHAN, J.

This order will dispose of two Civil Petitions for Leave to Appeal No.1503-L of 1996 and 1530-L of 1996 arising out of one and the same judgment of Lahore High Court, Lahore, dated 7-3-1996, whereby the Regular Second Appeal filed by respondent No.1 was accepted and the suit filed by the plaintiff/respondent No.1 was decreed with costs throughout.

2. Facts of the case, briefly stated, are that the land measuring. 14 Kanals 1 Marla out of the other land owned by Mst. Basri/respondent No. I was sold by Muhammad Ibrahim son of Noor Din (Petitioner No.1 in C.P.No.1503-L of 1996 and respondent No. 3 in C. P. No. 1530-L of 1996), statedly on the basis of Power of Attorney executed by Mst. Basri in his favour, to Ws Abdul Hameed and another (Petitioner No.2 and Respondent No.2 in C.P. No.1503-L of 1996 and petitioner and respondent No.2 in C.P. No.1530-L of 1996). Mst. Basri, now represented by her legal representatives, on coming to know of the aforesaid sale dated 27-1-1967, filed a suit on 3-2-1967 seeking a declaration to the effect that the sale in favour of defendants Abdul Hameed and Sultan made by Muhammad Ibrahim defendant No. 3, petitioner No. I in C. P. No. 1503-L of 1996 and respondent No.3 in C.P. No. 1530-L of 1996, is unauthorised, void, collusive, without consideration and is inoperative against her ownership and possessory rights and she continues to be the owner of the suit land. She also prayed for usual permanent injunction restraining defendants from interfering in her possession. Her case in the plaint was that Muhammad Ibrahim was appointed as her attorney for the purposes of the management of the suit land but the said authority was revoked by registered notice dated 26-1-1967 and citation in the press dated 27-1-1967, and neither the said attorney had been authorised to sell the property nor the plaintiff ever agreed to sell the same.

3. Learned trial Court after obtaining the written statements, in which the suit was contested, framing the necessary issues and recording the evidence produced by the parties, dismissed the suit vide judgment and decree dated 12-4-1969. The appeal of the plaintiff/respondent No.1 was dismissed on 8-12-1969. Regular Second appeal of the respondent No.1 was, however, accepted vide impugned judgment. The High Court recorded the conclusion that the findings of the two Courts below that "the deed of Power of Attorney could only be revoked by a registered document" cannot be upheld for the reasons amongst others that notice of revocation of authority as well as citation in the press were given and it was not necessary to get these two documents registered or to get the deed of General Power of Attorney revoked through another registered deed as it was not established on record that the original deed of Power of Attorney granted a tight to Muhammad Ibrahim, defendant, to alienate the land in dispute. As regards the claim of defendants Abdul Hameed and Sultan that they were bona fide purchasers for value, learned Judge observed that Muhammad Ibrahim defendant himself being not competent title-holder nor authorised to transfer the title, title in the suit land cannot be said to have passed on the basis of the sale-deed executed by the said defendant. It was also pointed out that Mst. Basri/plaintiff was an old, illiterate, rustic lady and that if a person transacts with a lady or is a beneficiary of such a transaction, it is he, who is required to prove by positive evidence that at the time of entering into transaction in question independent advice was available to the lady and that she had entered into the transaction with her free consent and full knowledge.

4. Learned counsel for the petitioners in support of the Petition argued that the learned Judge has erred in law in setting aside the concurrent findings of fact recorded by the learned two Courts below, that the registered Power of Attorney could not be rendered ineffective by a notice or citation in the press; that the registered Power of Attorney needed to be revoked by a registered revocation deed and that the transaction of sale having been conducted during the subsistence of the Power of Attorney, the said sale was valid and effective in law and the High Court has erred in law to hold to the contrary.

5. Having heard the learned counsel for the parties at length and having gone through the record, we are in agreement with the findings recorded and the conclusions drawl by the learned Judge of the High Court. The power of Attorney statedly executed and registered in favour of Muhammad Ibrahim defendant was not produced on record. If the document was registered one, a copy of the same could be obtained and produced on record. The presumption against the defendants can legitimately be drawn that had the said document been produced, it would have gone against the defendants. In this context, the plea of the plaintiff/respondent No.1 that only power to manage the property was granted assumes importance. Be that as it may, the notice having been given and citation as to revocation having been issued in the press, it was necessary for the defendants/vendees, Abdul Hameed and Sultan, to have assured themselves that the property is being sold with the knowledge and free consent of Mst. Basri an illiterate village woman. It was held by this Court in Malik Riaz Ahmed ands A others v. Mian Inayat Ullah and others (1992 SCMR 1488) that the attorney should have brought to the notice of executant of power of attorney the intended sale prior to entering into the agreement to sell, and failure of attorney to do so was a complete failure on his part to discharge his duty. Such pre-cautions are taken by Courts to protect the interest of pardanashin illiterate ladies. It is pertinent to note that in the instant case, the vendees, Abdul Hameed and Sultan and Mst. Basri/plaintiff belonged to the same village as is apparent from the Memorandum of parties, and had the transaction been entered bona fide, prudence required that they would have directly contacted Mst. Basri to know her willingness to part with the property. Learned Judge in the High Court was, therefore, right in relying on the law laid down in Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD 1985 SC 341) for reversing the findings of the two Courts below. The appraisal of evidence and the conclusions drawn by the learned Judge of the High Court are well founded and call for no interference.

6. Leave to appeal is, therefore, refused arid both the petitions are t dismissed. A.A./M-3375/SC Leave refused