P L D 1996 Peshawar 86 (PLP)

Abdul Aziz Kundi assisted by Asghar Ali Khan for Petitioner. Aseel Khan Khattak for Respondent Date of hearing: 25th January, 1996. This petition under section 115, C.P.C. has been filed for revision of judgment and decree dated 25-9-1991 passed by learned District Judge, Karak in the backdrop judgment and decree dated 27-2-1991 passed by learned Senior Civil Judge, Karak whereby suit of the petitioners was dismissed.

2. Relevant facts giving rise to the present petition are that the petitioners filed a civil suit in the Court of Senior Civil Judge for a declaration to the effect that the General Power of Attorney executed by their father; Saidan Gul, in favour of Lal Nawaz defendant-respondent, is the result of fraud and, therefore, carries no legal value. They further prayed that the Gift Deed registered through conveyance No. 303, Bahi No. 1, Volume No. 45 entered and attested on 4-12-1984 in respect of land bearing Khasra Nos.9410 and 6233 measuring 54 Kanals, 14 Marlas, is equally the outcome of fraud, thus ineffective on the rights of the petitioner. It was also averred that the sale-deed registered through Conveyance No. 34, Bahi No. 1, Volume No. 459 entered and attested on 4-12-1984 pertaining to Khasra Nos.9378, 9399, 9377 measuring an area of 21 Kanals, 3 Marlas is fraudulent and collusive, hence of no legal consequence. They had also challenged legal validity of Mutations Nos.3573 and 3574 attested on 27-3-1988 on the basis of aforesaid two fraudulent registered documents. Another relief in the shape of permanent injunction restraining the defendants from taking possession of the suit land was also sought.

3. The trial Court issued process to the defendants-respondents who appeared and contested the claim of the plaintiffs-petitioners by filing written statements. The averments of the parties were reduced to as many as 11 issues. Both the parties adduced evidence in support of their respective stand which was recorded. After hearing the counsel for the rival parties, the learned trial Court dismissed the suit of the plaintiffs-petitioners. Not content therewith, the plaintiffs-petitioners preferred appeal to the Court of District Judge, Karak but met with no better fate and their appeal was dismissed through judgment and decree, dated 25-9-1991. Hence the present petition.

4. Learned counsel for the petitioners contended that the power of attorney was obtained by Lal Nawaz through deceitful means, that he had played fraud on Saidan Gul by secretly concocting the Gift Deed in favour of his wife and the sale-deed in favour of one Muhammad Saeed, that the fraud is visible from the fact that these documents were divulged only after the death of Saidan Gul, that the gift in favour of his wife is illegal and that the sale-deed in favour of Muhammad Saeed is also void because the sale has not been proved. These arguments were repelled by the learned counsel for the respondents by arguing that the general power of attorney was obtained genuinely which fact is proved by the cancellation/revocation deed of the power of attorney, that Lal Nawaz respondent had acted as attorney of Saidan Gul,, therefore, his acts were binding on Saidan Gul, that there is no bar on an attorney to execute a gift deed in favour of his wife and that the petitioners are not in possession of the suit property.

5. On correct reading of record it transpires that one Saidan Gul, father of the three petitioners, was owner of landed property in the Revenue Estate Latamber, Tehsil and District Karak. He had executed a general power of attorney which was duly registered on 12-8-1984 Exh. PW.3/1 in favour of Lal Nawaz defendant-respondent. On the basis of the said power of attorney, Lal Nawaz defendant-respondent alienated land measuring 54 Kanals, 14 Marlas situate in Khasra Nos.9410 and 6253 in favour of his wife Mst. Zahir Jana defendant-respondent No.3 through a registered gift deed. He further alienated an area measuring 21 Kanals, 3 Marlas in favour of Muhammad Saeed defendant-respondent No.2 through a registered sale-deed. The transaction of gift in favour of Mst. Zahir Jana was subsequently incorporated in the Revenue Record through Mutation No.9573, dated 27-3-1988 and the transaction of sale in favour of Muhammad Saeed was also 'incorporated in the revenue record through Mutation No.3574 dated 27-3-1988. The petitioners allege that they acquired knowledge about the aforesaid alienation of land when the two mutations were attested on 27-3-1988 and that they approached the defendants respondents to rectify the wrong. On final refusal by the defendants-respondents, they brought the present suit in the Court of Senior Civil Judge on 26-4-1988. It also emerges from the record that the said Saidan Gul expired on 21-11-1986 and his inheritance mutation was prepared on 29-12-1986 and was attested by the concerned Revenue Officer on 11-2-1987. A review petition was filed by Lal Nawaz defendant-respondent No.1 against the said inheritance mutation before the Revenue Authorities. The review petition was accepted and the inheritance mutation was cancelled on 30-8-1987. The relevant documents of cancellation have been placed on record which indicate that the petitioners were not made party in the revenue proceedings and that the inheritance mutation was cancelled behind their back. The evidence further reveals that Saidan Gul in lifetime revoked the power of attorney in favour of Lal Nawaz defendant-respondent No.1 and the revocation deed was properly registered on 16-9-1985. It is pertinent to, point out that the registered gift deed and sale-deed were executed on 4-12-1984 but these documents could not see light of the day during the lifetime of Saidan Gul and were produced before the Revenue Authorities for entry in the Revenue Record in the year 1988 which resulted in the attestation of Mutations Nos.3573 and 3574 on 27-3-1988.

6. As set out above, in the plaint, the petitioners had initially questioned the authenticity of the general power of attorney, executed by their father in favour of Lal Nawaz respondent No.

1. The evidence, both oral and documentary, brought on record has given some additional favour to the whole case. A perusal of record indicates that the revocation deed (Abtal Nama) Exh.P.W.3/2 was registered on 16-9-1985 which states in unambiguous terms that by dint of this revocation deed the original general power of attorney Exh.P.W.3/1 was revoked. There is nothing in the said revocation deed that the original power of attorney was fictitious or concocted rather it has been accepted by Saidan Gul that he had earlier executed a general power of attorney in favour of Lal Nawaz respondent-defendant No.

1. This is what has been held by the two Courts below and this finding does not suffer from misreading or non-reading of evidence. Any finding backed by proper evidence cannot be put aside on mere song.

7. On going through the relevant record, it transpires that Lal Nawaz respondent-defendant No. 1, as holder of the general power of attorney, alienated property of his Principal Saidan Gul measuring 54 Kanals, 14 Marlas situated in Khasra Nos.9410 and 6253 in favour of his wife Mst. Zahir Jana defendant respondent No.3 through a registered gift deed, the record further reveals that the said deed was executed on 4-12-1984, but, strangely enough, this deed did not see the light of the day till the death of Saidan Gul on 21-11-1986. This deed A was presented to the Revenue Authorities much after the death of Saidan Gul (Principal) and the mutation was attested on the basis of this deed on 27-3-1988, meaning thereby that the said deed was kept secret for a period of more than three years. Both the learned two Courts below have not discussed this aspect of the case which is obviously non-reading of evidence resulting in miscarriage of justice. It is also evident from the record that the possession of the suit property was never obtained by Lal Nawaz nor it was handed over to Mst. Zahir Jana as a result of the gift in her favour. The record is quite vocal to indicate that the possession of the suit property remained with Saidan Gul through his tenant Gul Sher Khan. This fact has been testified by Khudai Noor Patwari Halqa Latembar, (P.W.1) in his statement. The same fact has been admitted by Lal Nawaz defendant-respondent examined as D.W.1 by stating that the property alienated through gift is still in possession of Gul Sher Khan tenant and that he has not received any rent from him and that he is intending to proceed against him in a Court of law. This statement was recorded on 26-5-1990, which means that even two years after the attestation of the mutation and almost six years after the gift deed he and his wife Mst. Zahir Jana were and had remained out of possession of the suit property. Needless to reiterate that without delivery of possession a gift is never complete. The validity of gift, origin of which was enveloped by artful concealment and contrivance, is open to challenge on this score alone. The gift is thus not legally enforceable. This aspect of the case which divests the donee of any interest in the subject-matter of gift has been totally ignored by the lower Forums. This vitiates their finding which has been arrived at in disregard of patent facts sailing on the surface and merits to be set aside.

8. It is to be kept in view that a gift in the present case is born of self assumed consideration of love and affection of attorney under reference for his wife Mst. Zahir Jana. Admittedly, he is not the owner of the property. It is the cardinal principle of law that one can't give what he doesn't have. A consideration like love or affection in matter of alienation must proceed from the original and real owner of property in relation to donee, and such element, if springs out from the delegatee or agent, cannot be supplanted on the principal, not being a donor himself. The law is very clear that love and affection cannot be expressed by any attorney on behalf of the donor and the sentiments which form consideration for a gift must be established to have emanated from the donor and the agent cannot provide an armchair to seat his principal thereon, on this pedestal. The gift is obviously without ostensible consideration. The party relying on such a gift must further show that donor, being attorney, had been empowered to alienate property by way of gift and was in a position to transfer the possession of corpus to the donee. On a naked reading of deed of attorney, one would see that it was executed for a specified purpose and not to pot in peril the rights and interests, real and personal of the principal. The deed is barren in its details if its holder was invested with the authority to make a gift of specific property to a particular donee on behalf of the principal. Further the gift is not accompanied by delivery of possession nor was it given effect to in Revenue papers during life time of original donor. Suffice it to say, in the present case, gift made by Lal Nawaz in favour of his wife Mst. Zahir Jana on the basis of the power of attorney executed in his favour by Saidan Gul cannot be upheld for two reasons, firstly, the gift, as per contents of the gift deeds, was made by the attorney himself and not on behalf of the principal and, secondly, even if it is assumed without conceding that such power was available to Lal Nawaz, there appears nothing in the power of attorney Exh.P.W.3/1 that the principal (Saidan Gul) intended to make gift of his property in favour of Mst. Zahir Jana, wife of Lal Nawaz. The requirement of law is that whenever the validity of a gift is called in question then it becomes incumbent upon the beneficiary of the gift to prove its validity. In the present case, Mst. Zahir Jana defendant respondent No. 3 is the donee and she was required to prove the validity of the gift of landed property in her favour. The record shows that only one witness has been examined from the side of defendant-respondent, that is, Lal Nawaz defendant-respondent No.

1. Mst. Zahir Jana has neither appeared in the Court nor has she given any statement through an attorney nor has any witness appeared on her behalf to prove the gift deed. Therefore, the only evidence in favour of the gift deed is the statement of Lal Nawaz. In these circumstances, it is held that the gift deed has not been lawfully proved by the defendants -respondents.

9. The second transaction done by Lal Nawaz attorney is in shape of sale of area measuring 21 Kanals, 3 Marlas in favour of Muhammad Saeed defendant-respondent No. 2 through a registered sale-deed which was incorporated in the Revenue Record through Mutation No.3574. This transaction has also been called in question by the plaintiffs-petitioners. In the given circumstances of this case, the burden of proof was on both the parties to have proved their respective stand. The petitioners have alleged in their plaint that the sale was fictitious and based on fraud. They have stated this fact in their evidence and have also placed reliance on documentary evidence in shape of inheritance mutation bearing No. 3176 attested on 30-8-1987 in their favour. They have also brought on record through Patwari Halqa P.W. 1 that the possession-of the property was still held by Saidan Gul father of the petitioners. In view of this evidence on record, it was primary duty of the respondents to have proved the sale in question. But, the record is destitute of any evidence to prove the sale except the bald statement of Lal Nawaz defendant-respondent No.

1. At the trial Muhammad Saeed vendee has never turned up. He has not authorized any person to act as his attorney at the trial although he has been impleaded as defendant-respondent

2. There is nothing on record to show that Lal Nawaz attorney had received the sale consideration and had passed on the same to Saidan Gul, the original owner of the property. The Revenue Record as well as the oral testimony of the Patwari clearly indicate that the possession of suit property is still with Saidan Gul through his tenant Gul Sher. In these circumstances, the defendants-respondents have failed to prove the sale, which, in turn, is void for want of consideration.

10. In the above context, it hardly needs the telling that a sale as defined in section 54, Transfer of Property Act, 1882 envisages a transfer of ownership of immovable property for price, paid or promised. In order to enforce a sale transaction, the transferee is under legal obligation to establish, firstly that transfer was affected by a person having a title or authority to create a right, secondly, it was backed by passing of sale consideration and thirdly, that it was accompanied by delivery of possession. A mere registration of document by a Registrar by itself does not furnish proof of these elements which must co-exist prior to its execution and registration. On the contrary, the onus lies on the transferee to establish all these prerequisites, especially when validity of transfer in his favour is sought to be impeached. In this case, significantly the so-called transferee has not put himself in the witness-box to set up sale in his favour nor his attorney brought on record to show that sale was affected on behalf of his principal nor indeed has he made any effort to indicate even faintly that he had passed off sale price to Saidan Gul after its receipt. Obviously, the transaction of sale has been brought about in a hole and corner fashion, posing himself as an owner and not agent of Saidan Gul. From its very inception, the sale relied upon is unauthorized and made by a person not competent to affect it, and moreso is without consideration, a sale transaction, pregnant with inherent infirmity, both legal and factual, cannot be upheld nor enforced legally.

11. Apart from the above, on close scrutiny of record it is evident that the sale transaction was affected by executing a sale-deed registered on 4-12-1984 which was kept secret till 1988. The original owner of the property, namely, Saidan Gul expired on 21-11-1986 and thereafter the deed was presented to Revenue Authorities and mutation was attested on 27-3-1988. True that mutation neither creates title nor extinguishes the same but the conduct of the respondents by concealing the sale-deed till and even after the death of the original owner of the property for some time is of immense importance and cannot be overlooked. This circumstance coupled with the fact that the possession of the property was never handed over to Muhammad Saeed constitutes sufficient evidence to show that the sale has not been genuine nor acted upon. It is also important to note that Muhammad Saeed had not submitted any application to the Collector for review of the inheritance mutation attested in favour of the plaintiffs-petitioners. A perusal of the relevant record in this case exhibited as D.W.1/1 to D.W.1/3 shows that all along the proceedings were initiated and followed by Lal Nawaz. The evidence on record shows that the respondents have lamentably failed to prove factum of sale and its genuineness.

12. Before parting with the case, I would like to emphasize that an attorney derives authority from the principal with regard to his property either for its management or alienation for a specific purpose. The agent has to act within the framework of the deed which is depository of the intention, rights, liability and authority of parties and cannot travel beyond its scope and purview of its recitals. By re-passing confidence in agent, he is expected in law to act for the benefit of his principal. His conduct and performance of duty enjoined upon him is subject to certain commotions and limitations. For instance, where an agent is appointed to sell his principal's goods, and he buys the same for himself on his own account but the principal ratifies it, the transaction is not void. But where there is conflict between the duty and interest, the agent must disclose the undertaking, which results in wrongful gain to him and wrongful loss to his principal, so as to enable the latter to rescind the deal with third party. Understood in this sense, a holder of power of attorney to manage immovable property, though invested with power to alienate property, is required to act for the benefit and not to the detriment of the principal. If he intends to derive benefit for his ownself or his next of kin, he should inform his principal prior to entering into such transaction. Any clandestine deal without disclosure to principal will not bind the latter nor will be enforced in law. In the present case, it will have been seen that both the gift and sale transactions affected by holder of power of attorney were tainted with deception and fraud and their validity cannot be upheld on any weapon of reasons. Both the Courts below have over looked and ignored the prominent facts highlighted above and have thus acted with material irregularity in assessing their legal effects on the transactions in question. The principal or his successor-in-interest cannot be bound with such illegal deals.

13. A perusal of the judgment of the two Courts below shows that these important and vital aspects of the case have been disregarded and the material evidence bearing thereon has been put at shelf and, therefore, consequently, have fallen into error of glaring non-reading of evidence resulting in miscarriage of justice. Resultantly, this revision petition is accepted and the impugned judgments are set aside and suit of petitioner is decreed with no order as to costs. A.A./1998/P Revision accepted.