P L D 1977 Karachi 162 (PLP)

8. Mr. K Ghani the learned counsel for the petitioner being confronted with this legal objection referred to ground No.6 of the petition wherein it had specifically been contended that the power of attorney of Mr. Qamardin, was for consideration and irrevocable. The same did not terminate with the death of Mr. Qamardin. He contended that this assertion was not controverter by the respondent s as no counter-affidavit in denial had been field. He then proceeded to show from the documents the facts which according to him constitute the consideration for this power of attorney. These documents were, firstly an agreement to build which is dated 10‑5‑1948 and is one day prior to the execution of the power of attorney. In this agreement deceased Qamardin was, described as the "Builder". and the owners of the plot had to pay to him a total sum of Rs. 17,500 for carrying out the specified building work but the excess amount required, if any, for building the ground floor was to be supplied by fuss 'Builder'. On 30-11‑1948 again a lease deed was executed by the owner in favour Qamardin, wherein he was described as a "Lessee" of the same property are it was stipulated that he would jointly construct the ground floor on the plot, with the lessors. In clause 4 of this deed however Qamardin was shown to have paid a sum of Rs. 1,200 on account of rent for three months of the lease in advance to the lessors.

9. According to the learned counsel therefore Qamardin had acquired an interest in the property which was the subject‑matter of the power of attorney, which was heritable. He had also parted with some amounts and undertaken to spend money which was the consideration ultimately for the power of attorney executed by the owners, whereby he was constituted their agent. In his submission section 202 of the Contract Act was applicable to the facts of the case and Qamardin's power of attorney did not terminate merely on account of his death. Section 202 of the Contract Act reads as under ;‑

"Whore the agent has himself an interest in the property which forms the subject‑matter of the agency, the agency cannot, in the absence of an express contract be terminated to the prejudice of such interest." This argument appears attractive but cannot be sustained upon the language used in section 202 of the Contract Act itself, which has' the effect only of saving the interest of the agent in the property and not the actual termination of the agency itself. The interest of the a lent petitioner, in the said property, *as is claimed, was that of a "Builder" and thereafter of a "lgs ee". Upon an a,4sumptjon drat the petitioner did possess such in~erof, even ‑that ias $tfi9s.Vrviept to the original sale w)lich was sotjglat to be approved bit was runt apfoved. Unless tkte salewas an appioyed "Je, tote trq ,s~eree acquired no rights in the property; so as to 4e caps fe of tragpferring any rights to the petitioner. Section X02 of the CQnt Act can have the effect of protecting this interest, whatever be its nature or extent. The primary need that the petitioner had to face was to obtain the approval of the Cuq9dipp to the sale so as to legalize it because that was the foundation of the `interest that he claimed in the property. To obtain that approval, be bad to initiate and also to continue proceed ings before the Custodian. Hqr‑doxpg, this he again needed an authority from the transferees, and which aqthority is definitely distinct from the interest of ‑the agent, in the property, described above. In such circum stances section 2b2 of the Contract Act cannot beread to confuse the interest in property with the authority to file or continue proceedings. That authority ;s tojaliy. indpend,nt of the inierest clamed by the peti tioner in the property which is t~e $pjpct‑matter of the proceedings; and section 202 of the Contract Act r9 not attracted to such an authorit to protect it from =being terminated on account of the dearth of the agent.

10. The learned counsel then relied on the case of Fazal Din v. Lahore Improvement Trust (P L D 1969 S C 223) where while considering the nature of the interest necessary for fling a petition, their Lordships observed at page 231 :‑‑ "It is clear from the above that the right considered sufficient for main taining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise." The learned counsel contented that the petition filed by the Legal Representatives of the petitioner's agent, as they had a right to do so, as they were interested to secure the property that devolved on them on account of the petitioner's death. Now, as stated above, the sale not being confirmed by the Custodian, that order could be challenged either by the purchasers or their attorney on their behalf: But the right to challenge that order cannot devolve on the legal representatives of the attorney; and unless it so devolves they cannot claim any personal interest within the meaning of the observation of their Lordships quoted above.

11. In the case of Mujib‑un‑Nissa v. Abdul Rahim ((1900) 281 A 15) the question under consideration was factually similar to the one in this case. An attorney presented a document for registration, before the Registrar, after the death of the executant. The document was registered and its legality came to be questioned. It was observed while considering this question at page 22 "Now the case in hand is that of a person who, when he presented the deed for registration, as he says he did, on November 4, 1889, stood in no other relation to the deed than that, before the death of the person executing it, he had held his power of attorney, ft is perfectly plain, not merely from the general law, but from the terms of this S. 32 itself, that after the man's death the only attorney who would have any locus standi would have been the attorney of the representatives or assign of the deceased." I am in respectful agreement with what was held in this case, and in the result, find that the legal representatives of the deceased attorney Qamardin have neither any right nor any personal interest to file or prosecute the petition to challenge the action of the Custodian, as they have done. This petition is therefore dismissed as not maintainable on this preliminary ground but with no order as to costs. S. Q. Petition dismissed.