2009 PLP 870 (CLC)

ALI AKBAR QURESHI, J.

The petitioner through this civil revision has sought the invalidation of judgment and decree, dated 27-3-2007 passed by the learned appellate Court whereby the learned appellate Court while accepting the appeal of the respondents, dismissed the suit filed by the petitioner.

2. The synopsis of the fact as stated, is that the petitioner instituted a suit for declaration with consequential relief against the respondents stating, that the petitioner who is a permanent resident of Tehsil Kharian, while performing his duties in Government Security Papers, Karachi with the intention to execute a power of attorney, contacted the respondent No.2. The power of attorney was executed in favour of respondent No.2 wherein he was delegated or given the authority only to the extent to receive the compensation from the Pakistan Army, who wanted to acquire the land to establish training school but respondent No.2 taking undue advantage of old age and illiteracy of the petitioner, while preparing the power of attorney fraudulently and by concealment of facts also written In the power of attorney the authority to alienate the suit-land owned by the petitioner although, the petitioner had no intention to grant any such authority. It was also stated in the plaint that respondent No.2 by playing fraud and misrepresentation executed and registered a power of attorney on 9 4-1994 and on the basis of the said power of attorney, respondent No.2 prepared a gift deed in favour of respondent No. 1 who is wife of the brother of the respondent No.2. Neither the attorney given the power to alienate the land in any manner whatsoever nor the gift was made in favour of respondent No.2, therefore, the petitioner through the aforesaid suit prayed cancellation of the power of attorney as well as the gift deed, got registered by fraud and misrepresentation.

3. The suit was contested by both the respondents, controverting the contents of the plaint and also raised preliminary objections and prayed for dismissal of the suit. The learned trial Court, out of the pleadings of the parties, to resolve the controversy, framed as many as 10 issues and put the case for recording the evidence of the parties.

4. The learned trial Court after hearing the arguments of the parties, finally decreed the suit in favour of the petitioner. The respondents being not satisfied with the judgment and decree, preferred an appeal, which was accepted and resultantly, the suit filed by the petitioner was dismissed, hence this civil revision.

5. It is contended on behalf of the learned counsel for the petitioner that the petitioner who is illiterate and simple man, never given any authority to respondent No.2 to alienate the suit-land in any manner whatsoever in favour of any one because the respondent No.2 was appointed attorney only to receive the compensation in case the land is acquired by the Pakistan Army and even otherwise, the petitioner successfully proved his contention by adducing impartial.. cogent and confidence inspiring evidence, therefore, the learned trial Court rightly reached to a conclusion after appreciating all the material available on the record and decreed the suit whereas on the other hand, the !earned appellate Court ignored the evidence available on the file and also the law applicable thereto, while accepting the appeal and dismissed the suit of the petitioner which is m tact result of jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence. Next contended that even if for the sake of arguments, it is admitted that the power of attorney was executed by the petitioner, the gift made by the respondent No.2 in favour of the respondent No.1, is unsustainable in law because of violative of the rule laid down in the judgments reported as Mst. Bandi v. Province of Punjab and others 2005 SCMR 1368, Mst Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818, Muhammad Jalil and 4 others v. Muhammad Sami and 8 others PLD 2007 Lah.467 and Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR

618. Lastly contended that the learned appellate Court has also failed to take the cognizance of the material aspect of the case, that respondent No.2 made the gift in favour of respondent No.1, who is wife of his real brother which is otherwise violative of the dictum laid down in Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618 (supra).

6. Conversely, the learned counsel for respondents supported the vires of the judgment rendered by the learned appellate Court. Next contended that the petitioner himself has admitted the execution of the power of attorney in favour of respondent No.2, therefore, the petitioner has no reason to deny the execution of the gift executed in favour of the respondent No.1. Also contended that the petitioner could not place on record anything in support of his stance and the prayer made by him, therefore, in presence of the admission made by the petitioner, the petition is not entitled for the decree claimed by him.

7. I have heard the learned counsel for the parties and perused the record.

8. The most Important aspect of the case, which is not denied by the respondents is that the respondent No.2 on the basis of the power of attorney disputed by the petitioner, executed a gift deed in favour of respondent No.1 who is wife of his real brother but without consulting the principal i.e. the petitioner. There is no evidence available on the record to show that respondent No.2 before making the gift questioned herein, consulted the petitioner and even otherwise it was imperative upon respondent No.2 to seek the instruction and permission from the petitioner because of the admitted-fact that respondent No 2 made the gift in favour of his close relative i.e. wife of his brother.

9. The other aspect of the instant case, which requires consideration, is that the respondent No. I is not the (laughter of the petitioner and his father's name is Akhlas Khan. The relation of respondent No. 1 with the plaintiff is to the extent that her mother Mst. Nazir Begum after getting divorce from the aforesaid Akhlas Khan contracted second marriage with the petitioner and the said Nazir Begum, as revealed from the record, has died some years ago,. Respondent No.l about 25 years ago, entered into Nikah with one Muhammad Rafiq who is the real brother of respondent No.2. From the aforesaid relation inter se the parties, it is proved that respondent No.1 was step daughter of the petitioner and if the petitioner had any intention to make the gift in her favour, this would have been done by the petitioner himself.

10. While dealing such like proposition, their Lordships of Honourable Supreme Court of Pakistan has observed as under:

1994 SCMR 818 Contact Act (IX of 1872)

Ss. 214 & 215

Constitution of Pakistan 1973, Art.185(3)

Leave to appeal was granted to consider as to whether an attorney could have exercised the right and power of the owner to make a mental decision for purpose of making a gift as against form of alienations like sale without the donor himself having taken a mental conscious decision of making a gift, particularly, on the basis of alleged power of attorney which allegedly gave power to alienate only through a general power of attorney and whether law laid down by Supreme Court regarding transfers by attorneys in favour of next of kin without the specific approval from the principal had been followed in the case. 2005 SCMR 1368 (a) Islamic Law

Gift

Gift through attorney

Essentials

Power of attorney in such case must specifically authorize attorney to make a gift of property in favour of specified person. PLD 2007 Lah.467 "(a) Islamic Law

Gift through agent

Scope

Personal acts of principal-donor depending upon his own mental decision cannot be delegated to agent

Decision to whom gift should be made being sole prerogative of donor cannot be left at the choice and whim of agent

Only after making declaration of gift, donor can appoint agent for accomplishment of the object

Principles. A Muslim in the matters of gifts, divorce etc. can confer the authority to an agent: But where it is the personal act of the principal, which is dependent upon his own mental decision, such an authority cannot be delegated. In the category of such personal acts, obviously the decision to whom the gift should be made, cannot be left for the choice and whim of the agent, rather it is the sole prerogative of the donor, which cannot be delegated or deputized. However, once the decision is taken, and the donor makes a declaration, only thereafter an agent for the accomplishment of the object can be appointed. A Muslim cannot confer upon his agent a random or roving authority to make the gift of his property to any person of the attorney's choice and according to the agent's wish and the considerations. This is because a gift is a voluntary transfer of the property to another made gratuitously and without consideration; it is a transaction not in the nature of quid pro quo, but is free of the above, therefore, why and to whom the gift should be made is based upon the very personal and self-consideration of the donor, structured upon his personal state of mind and the decision and therefore, under no rules of general law of agency, such personal decision can be delegated to an agent. The donor himself, has to make the gift, whereafter he can confer the authority upon his agent to take necessary steps for the proper implementation/execution of the transaction."

11. While interpreting sections 188, 214 and 215 of the Contract Act, 1872, the Honourable Supreme Court of Pakistan has laid down a principle in the case reported as Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618 and observed as under:

2004 SCMR 618 Contract Act (IX of 1872)

Ss. 188, 214 & 215

Sale of land by Attorney to his own wife without consulting the principal

Validity

Attorney, if wanted to exercise such power in his own favour, had to consult the principal before doing so

Such sale was liable to be struck down.

12. The learned counsel for respondents when confronted with the golden principles, referred in the judgments (supra), which are squarely applicable on the facts of the instant case, the learned counsel had no answer and also could not refer any judgment contrary to the above-referred esteemed judgments.

13. The learned trial Court while decreeing the suit rightly observed that the respondents could not substantiate their stance by adducing any oral or the documentary evidence but the learned appellate Court has travelled totally beyond the jurisdiction conferred upon him under the law and rendered a conclusion which is not only, as observed above, against the facts of the case but also the consistent view maintained in the judgment (supra). The petitioner has succeeded to prove that before making the gift by respondent No.2 in favour of respondent No.1, no consultation or prior admission was obtained by him and further, that the petitioner had not given the authority to respondent No.2 while executing the power of attorney to alienate the suit property in any manner whatsoever, therefore, the judgments of the learned appellate Court being contrary to the facts and violative of law, is unable to sustain.

14. For the foregoing reasons, this revision petition is allowed, the impugned judgment and decree passed by the learned appellate Court is set aside and that of the learned trial Court is affirmed. No order as to costs. M.H./A-73/L Revision allowed.