1994 PLP 1690 (CLC)

Ahmad Yar, real brother of Muhammad Siddique petitioner, owned agricultural land measuring 81 Kanals situated in village Channi Khichi, Tehsil Chiniot, District Jhang. Muhammad Siddique petitioner acting as attorney of Ahmad Yar sold the suit land in favour of petitioners Nos. 2 and 3, who are his real sons for petty consideration of Rs.60,000 on 2‑8‑1984. On coming to know of the aforementioned deed of power of attorney Ahmad Yar revoked the same vide Abtaalnama dated 2‑12‑1985. He died on 22‑10‑1989. After his death, respondents claiming themselves to be his heirs as being his widow and daughter challenged the aforementioned sale by filing of a declaratory suit in the Court of learned Civil Judge, Chiniot claiming therein that they are owner in possession of the land measuring 46 Kanals and that the deed of general attorney allegedly executed in favour of petitioner No.l by Ahmad Yar deceased, is illegal, void, ultra vires, based upon fraud and hence the sale in favour of petitioners Nos.2 and 3 is also illegal, and inoperative against their ownership rights in the land in question. The suit has been contested. On the basis of the pleadings of the parties, learned trial Court settled the following issues:‑‑ (1) Whether the suit is liable to be dismissed in view of preliminary objection No. `Alaf, `Bay'? OPD. (2) Whether the suit has incorrectly been valued for the purposes of court‑fee and jurisdiction, if so, what is the correct one? OPD. (3) Whether the suit is not maintainable in its present form? OPD. (4) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD. (5) Whether the plaintiffs are owners in possession of the suit land to the extent of their shares being legal heirs of Ahmad Yar deceased and the impugned registered power of attorney dated 30‑10‑1982 and registered sale‑deed dated 2‑9‑1984 are wrong, against the law and facts, collusive, based on fraud and misrepresentation and as such liable to be cancelled? OPP. (6) Relief.

2. Both parties led evidence in support of their respective case. Learned trial Court after scanning of the whole evidence vide judgment and decree dated 11‑10‑1992 decreed the suit. The appeal filed against said judgment and decree by the petitioner was dismissed by the learned Additional District Judge Chiniot vide judgment and decree dated 22‑5‑1993, hence this civil revision has been filed to challenge the aforementioned judgments and decree.

3. Malik Allah Yar Khan, Advocate has appeared on behalf of the petitioner whereas Mr. G.H. Khan, Advocate has appeared on behalf of the respondents. Learned counsel for the petitioners has raised the following contention:‑‑ (i) that the judgment and decree rendered by the learned First Appellate Court is violative of the provisions of Order 41, Rule 31, C.P.C. as according to the learned counsel the evidence has not been taken into consideration; (ii) that the findings of the two Courts below regarding the validity of the power of attorney hence the sale in question is illegal and based upon erroneous appreciation of evidence on record. Elaborating his argument learned counsel contends that Abtaalnama of the deed of power of attorney clearly proves that the original power of attorney was not a forged document, and therefore as on the basis of a valid document the sale has taken place, it was not challenged by Ahmad Yar deceased during his life time who lived for a period of about 5 years after execution of the transaction in question, therefore, no case is made out for setting aside of the aforementioned sale but the Courts below have illegally held otherwise. Learned counsel for the respondents has supported the impugned judgments and decree of the Courts below. 4. 1 have considered the arguments addressed by the learned counsel for the petitioners and have also gone through the record. A perusal of the judgment rendered by the feared Additional District Judge shows that he has discussed the relevant evidence and all the points in issue and therefore, substantial compliance with the provisions of Order 41, Rule 31, C.P.C. having been made it cannot be said that the judgment and decree rendered by the learned First Appellate Court is violative of the above provisions hence the argument of the learned counsel in this behalf is repelled.

5. Two Courts below after going through the evidence have concurrently held that the power of attorney on the basis whereof the sale‑deed has been executed is not valid document and at any rate the land having been sold by petitioner No.l in favour of his own sons, hence the same is illegal. In case of Wali Muhammad v. Muhammad Ibrahim and others (PLD 1989 Lah. 440) it has been held that if on the basis of a deed of power of attorney a sale‑deed is executed by a father in favour of his sons, it cannot be upheld unless and until it is established on record that the same has taken place with consent of the owner. In case of Fide Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others (PLD 1985 S.C. 341) their Lordships of the Supreme Court has also taken the same view. At pages 344 and 345 of the report it has been held as under:‑ The second aspect which needs caution on question of validity of acts under a Power of Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others:‑ firstly in cases of difficulty (and it will be a case of difficulty if the Power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. The following two examples given under Section 215 of the Contract Act are illustrative of the intention of the law:‑ (a) A directs B to sell A's estate. B buys the estate for himself in the name of C. A, on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts, or that the sale has been disadvantageous to him. (b) A directs B to sell A's estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A & B informs A that he wishes to buy the estate for himself, but conceals to discovery of the mine. A allows B to buy, in ignorance of the existence of the mine. A, discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option." In view of the above even if the power of attorney was valid the sale cannot be upheld as the sale has not been proved to have taken place with consent of Ahmad Yar deceased. Even otherwise, it is very strange that the deceased who was aged about 80 years and was a T.B. patient will allow his brother to dispose of whole of his property which is situate in a vaillage although he had a widow and a daughter. Judicial notice can also be taken of the values prevailing in our village society according to which if there is an old man having no_ male issue paternal‑relations make every effort to grab his property so that the female heirs could be deprived of the same. This is what appears to have happened in this case. Muhammad Siddique petitioner who is real brother of the deceased appears to have learnt upon to deprive of the expected heirs of the deceased, who are widow and daughter of the deceased from inheriting the property in question, transaction in question therefore proved to be sham transaction and hence void, and even without consideration because no evidence has been brought on record that the amount of consideration was ever paid to Ahmad Yar deceased. Refer case of Sardar Ahmad Khan and others v. Mst. Zamroot Jan (PLD 1950 Peshawar 45). Merely because the deceased did not challenge the sale during his lifetime is not sufficient to uphold the transaction in question which is otherwise illegal. May be that the deceased had not come to know of the sale during his lifetime. The fact that he has cancelled the power of attorney by execution of Abtaalnama in the year 1985 speaks volume about the fact that whatever document came to his knowledge which could operate against his interest was got cancelled, therefore, there is no reason that had the sale in question been his knowledge, he would not have challenged the same during his lifetime. At any rate the sale in question being otherwise illegal and a sham transaction cannot uphold and being void and nullity in the eyes of law. Courts below have rightly rendered the findings of fact on the issues framed in this case in favour of the respondents. No case has been made out for exercise of the revisional jurisdiction, therefore, this civil revision is dismissed with costs throughout. AA./M‑1549/L Revision dismissed.