1999SCMR2594 (PLP)

CH. MUHAMMAD ARIF, J.

Challenge in this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been made to the judgment, dated 19-6-1998 of the Lahore High Court, Lahore whereby respondent Mst. Wazir Begum's Revision Petition No.219 of 1997 was accepted and the judgments, and decrees of the Civil Judge and Additional District Judge, Lahore respectively, dated 23-5-1995 and 11-12-1996, were set aside.

2. Respondent Mst. Wazir Begum is consanguine sister of petitioner No. l/Muhammad Nazir. Their father Jan Muhammad died on 25-6-1989. On his death his residential properties and agricultural lands devolved upon his heirs including the respondent and petitioner No.l. Respondent No.1 became owner of some properties, which included a parcel of land measuring 6 Kanals and 6 Marlas situated in Had Bast Baghbanpura, within urban limits of Lahore city. Her averments in the suit were that she was called over to the house of one Abdul Majid, real maternal uncle of respondent No.1, and was persuaded to execute a general power of attorney in favour of petitioner Muhammad Nazir to enable him to look after the ancestral property. She thumb marked the power of attorney under bona fide impression. She was also made to thumb-mark some other papers as also the register of deed writer. When she came to know that petitioner Muhammad Nazir was selling the suit land on the assertion that he has been authorised to do so -in his capacity as her general attorney, she cancelled the same on 29-12-1985 and also notified petitioner No.1, accordingly. Suit for declaration with injunction was filed by the respondent on 21-10-1984, with the following prayer-clause. "Under the abovementioned circumstances, it is, therefore, most 'respectfully prayed that a declaratory decree for the cancellation of the registered sale-deed executed by Muhammad Nazir, defendant No. l in favour of the defendants Nos.2 and 3 vide document No. 27731 registered on 10-11-1985 pertaining to sale of land 43 Kanals, 19 Marlas comprising Khewat No.2057, Khatooni No.3836, Khasra Nos.6918 and 7041, Khatooni No. 3837, Khasra No. 7062 and Khewat No. 2058, Khatooni No.3838 Khasra Nos.6894, 6909, 6911, 7066, 7067 and 7102 situated in Village Baghbanpura, Lahore according to year 1979-80 and also Khasra Nos.7012, 7052 and 7053 Registered Haqdaran Zamin as mentioned in said registered sale-deed to the extent of 7/48 share of the plaintiff may kindly be granted with the costs. Any other remedy which this Hon'ble Court deems fit may also be granted."

3. Petitioners contested the suit taking up the plea that respondent/plaintiff had not challenged the general power of attorney and had confined her challenge to the validity of the sale-deed alone with the result that her suit could not proceed. On facts it was pleaded that she had received Rs.75,000 as consideration for the suit land and thereafter, the general power of attorney was executed. Besides a receipt, evidencing the payment of the consideration price, an Iqrarnama was also executed by her. Their further averment was tha; petitioner-Muhammad Nazir had purchased some shares of other legal heirs as well. The allegation of fraud/misrepresentation was stoutly controverted, Another assertion of the petitioners/defendants was that she had launched two housing schemes known as "San Dia Park" and "Data Park" and that sole purpose of the present suit is to pressurize petitioner o. with a view to extorting money from him.

4. The respective pleadings of the parties gave rise to the following issues: "ISSUES. (1) Whether the suit is not maintainable in its present form? OPD. (2) Whether the suit is bad for misjoinder and cause of action ? OPD. (3) Whether the suit is bad for non-joinder of parties, if so, who they are and what is the effect of their non-impleading ? OPD. (4) Whether the suit is barred by limitation ? OPD. (5) What is the effect of non-challenging of the general power of attorney on the strength of which the impugned sale-deed was allegedly executed? OPD. (6) Whether the suit has been incorrectly valued for the purposes of court fee and jurisdiction. If so, what is its correct valuation and to what effect ? OPD/OPPs." (7) What is the effect of preliminary objection No.5 of the written statement ? OPD. (8) Whether the plaintiff has not come to the Court with clean hands OPD. (9) Whether the plaintiff is estopped from lodging this suit by her act and conduct ? OPD. (10) Whether the suit is false and frivolous, if so, whether the defendants are entitled to special costs under section 35-A, C.P.C. If so, to what amount ? OPD. (11) Whether the defendant No. 1. had tricked the plaintiff and thereby got executed general power of attorney as asserted in the plaint ? OPP. (12) Whether the plaintiff is an illiterate and Pardanasheen Lady ? OPP. (13) Whether the impugned sale-deed of the disputed property being illegal, void, fraudulent and without consideration is inoperative upon the rights of the plaintiff ? OPP. (14) Whether the plaintiff is entitled to the relief prayed for:' OPP. (15) Relief. " After recording whatever evidence the, parties wanted to produce in the case, the learned Civil Judge dismissed'the suit of respondent Mst. Wazir Begum holding, under issue No. 11, that petitioner Muhammad Nazir had not tricked her into procuring power of attorney in question. Under issue No. 13, the finding was that no fraud was committed by petitioner No. l; that sale-deed was not void or illegal and that it was with consideration. This happened on 23-5-1995.

5. Respondent Mst. Wazir Begum remained unsuccessful; before a learned Additional District Judge, Lahore, in her appeal against the judgment and decree, dated 23-5-1995, vide judgment and decree of the Appellate Court, dated 11-12-1996.

6. Judgment and decree of the learned Additional District Judge was successfully challenged by the respondent through C.R. No.219 of 1997. This was allowed by the learned Judge in Chambers of the Lahore High Court, Lahore vide the impugned judgment, dated 19-6-1998. The operative part of the impugned judgment is reflected in paras. 10 to 15 thereof, which reads thus:-- (10) To begin with. it is to be seen as to whether these documents have been proved on record according to law or not. The lqrarnama Exh.P.2 and receipt Exh.P.3 have remained unproved, In both the documents name of two persons i.e. Fazal Karim and Abdul Majid are mentioned as marginal witnesses out of whom only Abdul Majid was produced as D.W.3. The scribe has also not been produced. According to Muhammad Aslam P.W.1 these documents alongwith General Power of Attorney EXh.P.I were scribed by his brother, Waris Ali who has not been summoned as a witness. Under Article 79 read with Article 17 of Qanun-e-Shahadat Order, 1984, two attesting witnesses were required to be produced to prove these two documents and since this legal requirement had not been fulfilled both are liable to be excluded from consideration, as having remained unproved. See "Sana Ullah and another v. Muhammad Manzoor and another (PLD 1996 SC 256). It may be noticed that the petitioner had admitted to have put her thumb-impression on one document i.e. General Power of Attorney and claimed to have been persuaded to thumb-mark a few plain papers. This amounted to denial on her part to thumb-mark these documents i.e. agreements P.2 and receipt P.3 and, thus, it became the bounded duty of respondent No. 1 to produce the second marginal witness i.e. Fazal Karim but he failed to do so. We are, thus, left with General Power of Attorney Ehx.P1. "(11) As regards General Power of Attorney EXh.PI, it may be kept in mind that respondent No. 1 is step brother of the petitioner.. The petitioner is illiterate and aged lady and as such entitled to the , same protection as afforded to a Purdahnashin lady. See "Taleh Bibi v. Mst. Maqsoodan Bibi" (1997 SCMR 459). Law leans heavily in favour of purdahnashin lady and it was necessary to ensure that at the time of execution of any document by her involving alienation/right to alienate her property independent advice was available to her. Reliance is placed on Mst Hafiza Bibi v. Ali Hassan and others (1994 PSC 106). Applying the above principles of law it is to be seen as to whether any independent advice was available to the petitioner at the time of execution of General Power of Attorney. Answer is in the negative. Abdul Khaliq D.W.2 is an interested witness, he being real maternal uncle of respondent No.

1. It has to be kept in mind that petitioner is step-sister of respondent No.

1. He has deposed:- It is difficult to. swallow the following explanation offered by Abdul Mkjid in his testimony:- "It is in the evidence of the petitioner that she had two grown up sons namely Zafar Ali and Muhammad Jamil. It is really intriguing as why the petitioner was called by her Dewar (husband's brother) Abdul Majid to his house for execution of document Exh. P

1. Why this hush-hush attitude was adopted? "(12) That is not all. Assuming that General Power of Attorney in question was executed by the petitioner of her free volition, it did not give unbridled authority to respondent No. 1 to alienate the suit property to his two minor sons without seeking consent from the petitioner. See Fida Muhammad's case (PLD 1985 SC 341 at 344). In Haji Faqir Muhammad's case (PLD 1997 SC 1811 at 1814, 1815. and 1816) it has been authoritatively laid down by august Supreme Court that holder of General Power of Attorney, before alienating the property of his principal in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself should, in his interest, obtain the consent of the principal failing which the principal would be at liberty to repudiate it. Since neither Abdul Majid nor Abdul Khaliq can be treated to be capable of giving independent advice to the petitioner, the General Power of Attorney is liable to be declared to be not binding on the petitioner. The alleged sale by respondent No. t in favour of this minor sons is also liable to be declared to be ineffective on the ownership rights of the petitioner as it is violative of the law declared in Fida Muhammad's case rind Faqir Muhammad's case (supra). "(13)Faced with this situation, Sh. Zia Ullah, Advocate learned counsel for respondent No. I tried to argue that the petitioner had also sold her other property to respondent No. i and had failed upto level of Supreme Court. I am afraid this submission needs little attention. Suffice it to say that each case proceeds on its own facts and merely because the sale of some other property by the petitioner to respondent No. I had been held to be valid, per se, provides no ground to non-suit her in this case as well, despite the above legal position of the case. "(14)13oth the learned Courts grievously erred in failing to apply correct law to this case, on the admitted/proved facts. The petitioner was entitled to grant of decree as prayed for by her. "(15) Resultantly, this revision petition is accepted and after setting aside both the judgments/decrees of learned Courts below, the suit of the petitioner is decreed as prayed for, with costs throughout. "

7. Mr Sheikh Zia Ullah, learned Advocate Supreme Court appearing in support of this petition, has raised four-fold plea. In the first place, it is contended that respondent Mst. Wazir Begum filed the suit on 21-10-1984, and the Qanun-e-Shahadat Order (No. 10 of 1984) came into force on 28-10-1984. The requirement of attestation of a document of the nature of the disputed power of attorney (Exh.Pl) did not fall within the criteria laid down in Article 79, read with Article 17 (ibid). It was next contended that in fact Muhammad Aslam, scribe of the disputed document and Abdul Majid, marginal witness thereof, were examined as P.W.1 P.W.3 and D.VJ.1, respectively. Their evidence was sufficient to meet the requirements of Articles 17 and 79, in the alternative. In addition to the above, it was submitted that respondent Mst. Wazir Begum had herself admitted the execution of the disputed power of attorney and in that view of the matter the learned Judge in Chambers was not quite right in holding that petitioner No. l was legally called upon to obtain specific consent of his principal. His last point was that respondent Mst. Wazir Begum had in fact received counsel from her husband's real brothers as also her own paternal uncle.

8. We have considered the arguments addressed at the bar by the learned counsel and have also been taken through available material, by him. We find that the learned Judge in Chambers of the Lahore High Court, Lahore has made an in-depth study of the evidence of the parties before coming to the conclusions that: ` (I) the concurrent finding of fact by the Trial Court as well as the appellate Court that no fraud was perpetrated upon the respondent being a question involving legal implications of far reaching consequences, was required to be attended to by both the learned Civil Judge and the learned Additional District Judge, which was not done with the result that the same is liable to be interfered with in the revisional jurisdiction of the High Court under section 115, C.P.C. It was specifically mentioned that scribe of the disputed general power of attorney (Exh.Pl) was not produced, and therefore, the requirement of Article 79 read with Article 17 of Qanun-e-Shahadat Order, 1984 had not been met. Reliance in this behalf was correctly placed upon Sana Ullah and another v. Muhammad Manzoor and another (PLD 1996 SC 256); (II) The respondent had admitted her thumb impression on Exh.Pl, and claimed to have been persuaded to thumb-mark certain other papers as well which tantamount to denial on her part to thumb-mark the same which further strengthened the requirement of petitioner No.1 to produce the second marginal witness i.e. Fazal Karim to establish that Mst. Wazir Begum an illiterate and aged lady was entitled to protection in terms of Taleh Bibi v. Mst. Maqsoodan Bibi (1997 SCMR 459); and (III) respondent Mst.. Wazir Begum was not anywhere near getting independent advice at the time of execution of Exh.Pl when it held that: "Since neither Abdul Majid nor Abdul Khaliq can be treated to be capable of giving independent advice to the petitioner, the General Power of Attorney is liable to be declared to be not binding on the petitioner.

9. The treatment meted out to the case of the petitioners by the learned Judge in Chambers has not been shown to be falling short of any measure whatsoever. The concurrent findings of fact that respondent Mst. Wazir Begum was not tricked into constituting, the petitioner No. I as her general power of attorney-holder, were open to challenge at the instance of respondent Mst. Wazir Begum before the High Court. The impugned judgment was not even so much as alleged to be contrary to the conclusions drawn on the basis of the evidence on the record.

10. Attending to the first two points raised by the learned counsel jointly, it may be noticed that during the arguments his main stay was on the fact that Muhammad Aslant scribe and Abdul Majid D.W.1 had appeared before the Trial Court. However, he was not in a position to deny that part of the statement of Muhammad Aslam scribe which is available at page 112 of the Paper Book as P.W.3. This statement is couched in the following words: The above expects from the record was sufficient to non-suit the petitioners in the case. We find that whatever was gained by them from the cross-examination of Muhammad Aslam as P.W.1, stood lost in this very witness's examination-in chief and cross-examination as P.W.3.

11. We are also not inclined to the view that respondent Mst. Wazir Begum was imparted proper/required independent advice at the time of execution of the disputed general power of attorney and other documents. The findings of the learned Judge in Chambers in that regard take good care of depositions of Abdul Khaliq D.W.2 and Abdul Majid D.W.1. Former, was correctly held to be an interested witness, being real maternal-uncle of petit ioner-Muhammad Nazir. As regards the deposition of Abdul Majid D.W.1, the following excerpt from his testimony was rightly pressed into service to hold that it is difficult to swallow the following explanation". Moreover. Abdul Majid is Dewar of respondent Mst. Wazir Begum and he had called her over to his house for the purpose of execution of disputed documents. The conclusions drawn by the learned Judge in Chambers have been found to be based upon thorough and correct appreciation of the facts, which meet the eye. The reliance placed by the learned Judge in Chambers on this Court's judgments in Fida Muhammad (supra) and Haji Faqir Muhammad (supra) goes a long way in resolving the dispute between the parties in accord with the law declared by C this Court,

12. No other point was argued,

13. For all that has gone before, the instant petition is dismissed and leave refused. H.B.T.M-302/S Petition dismissed.