2003 PLP 1555 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

This petition is directed against judgment, dated 27-9-1999 passed by the Lahore High Court, Lahore in R.S.A. No.898 of 1979.

2. The facts of the case are that Nazir Ahmad predecessor-in -interest of the petitioners (hereinafter referred to as the deceased) instituted a suit for declaration against the respondents in the Court of Civil Judge, Jauharabad, District Sargodha. It was averred in the plaint that he had appointed respondent No. 1 as general attorney through a registered deed, dated 26-12-1972 in respect of the suit-land but cancelled the same on 19-1-1976. Despite cancellation of power-of attorney, the respondent No.1 proceeded to execute an arbitration agreement and procured an award which was made rule of Civil Court through decree, dated 24-2-1976 for the sale of the suit-land of the deceased in favour of his minor son, respondent No.2.

3. The respondent No.1 in his written statement took the plea that as a matter of fact the deceased had already executed an agreement in his favour on 5-2-1968 whereby he had agreed to sell the suit-land situated in a Thal area on conferment of proprietary rights for a consideration of Rs.35,

000. A sum of Rs.15,000 by way of earnest money, was paid to the deceased, who delivered the physical possession of the suit-land to him. Subsequently, a further sum of Rs.12,500 was paid by the respondent No.1. The deceased executed another agreement to sell on 26-12-1972 in favour of respondent No.1 and acknowledged the receipt of Rs.2,

750. He also executed a registered general power of attorney dated 26-12-1972 in favour of the respondent No.1. On 7-1-1973, he received a sum of Rs.7,000 from the respondent No.1 towards the sale price of the suit-land. The respondent No.1 also made payments of Rs.1,828.25 and Rs.2,700 to the Government being a charge and Taqvi on the suit-land.

4. The trial Court decreed the suit of the deceased by judgment and decree, dated 17-4-1979. However, the same was reversed on appeal of the respondents and the civil suit of the deceased was dismissed by the District Judge, Sargodha by judgment and decree, dated 23-10-1979. The Regular Second Appeal No.898 of 1979 of the petitioners, being legal heirs of the deceased, was dismissed by Lahore High Court, Lahore by impugned judgments, dated 27-9-1999. Hence this petition for leave to appeal.

5. The learned counsel for the petitioners argued that the registered power of attorney, dated 26-1-1972 executed by the deceased in favour of the respondent No.1 had been duly cancelled on 26-1-1976 through a registered deed. The respondent No.1 had no authority to enter into an arbitration agreement in favour of his minor son the respondent No.2. Therefore, the award which was made rule of the Court by decree dated 24-2-1976 for the alienation of suit property in favour of the minor respondent No.2 was void and nullity in the eye of law. The learned counsel placed reliance on the cases of Malik Riaz Ahmad and others v. Mian Inayat Ullah and others (1992 SCMR 1488) and Mst. Feroze Bano and another v. Mst. Bilqis Jehan and others (1987 SCMR 1009) to support his contention that in view of section 214 of the Contract Act, 1872, the respondent No.1 was duty bound to use all reasonable diligence in communicating with the deceased and in seeking to obtain his instruction and approval before entering into an arbitration agreement in favour of his own minor son or in procuring an award and decree of the Civil Court on the basis of award. It was further contended that the general power of attorney executed by the deceased itself did not empower the respondent No. 1 to alienate and dispose of the suit property in favour of his minor son. The Courts were required to be more vigilant in such cases where allegations of fraud and misrepresentation were leveled by the principal against his agent as laid down in the case of Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs (PLD 1985 SC 341).

6. On the other hand, the learned counsel for the respondents submitted that it was proved by evidence that the deceased had already received an amount more than that was agreed to between the parties for the sale of the suit property. The agreements to sell Exh.D2 and Exh.D3 and registered general power of attorney Exh.D1 coupled with the delivery of the suit property in favour of the respondent No.1 had been duly proved. The deceased acknowledged the receipt of consideration amount from respondent No.1 which was proved through oral and the documentary evidence Exh.D-2 to Exh.D-7. It was lastly submitted that the power of attorney, Exh.D-1, coupled with interest and right in the suit property in favour of respondent No.1, executed by the deceased was irrevocable in view of the provisions of section 202 of Contract Act, 1872. He relied on the case of Mst. Zakia Begum through Legal Heirs v. Niaz Ahmad (1999 MLD 3156), Muhammad Din and 9 others v. Mst. Absar Fatima and others (1996 CLC 1979) and Syed Shafique Hussain v. Syed Abdul Qasim (PLD 1979 Karachi 22) in support of his above contention.

7. We have heard the learned counsel for the parties at length. We find that execution of registered general power of attorney Exh.D1 and agreements to sell Exh.D.2 and Exh.D.3 by the deceased in favour of respondent No. 1 in respect of the suit-land was proved and was never denied. The suit-land, was situated in the Thal area. Therefore, the proprietary rights qua the. suit-land were conferred later. The entire consideration amount for sale of the suit property was proved to have paid by the respondents through Exh. D2 to Exh. D7 together with the Government dues. The registered general power of attorney Exh.D1 admittedly executed by the deceased in favour of respondent No. 1, was coupled with interest. Therefore, the same was irrevocable by virtue or provisions of section 202 of the Contract Act, 1872. The possession o the suit property by respondents was also protected by the provisions of section 53-A of the Transfer of Property Act, 1882. The reliance of the learned counsel of the petitioners on the case of Malik Riaz Ahmed and others, supra is wholly inapt as it involved the question of execution of power of attorney by a Pardahnashin lady for the alienation of her immovable property. Similarly the case of Fida Muhammad, supra is distinguishable as in that case the question of co-relationship of an agreement to sell and general power of attorney did not arise, in Mst. Feroze Bano and another supra the legal effect of execution of more than one power of attorney in favour of different persons was considered. The Appellate Court and the High Court have already done substantial justice between the parties. The impugned judgment does not call for interference by this Court on hypertechnical grounds divorced from equity and justice. This is not a fit case for grant of leave to appeal.

8. For the foregoing reasons we do not find any merit in this petition and the same is dismissed accordingly. M.H./H-80/S Petition dismissed.