P L D 1995 Lahore 313 (PLP)

These two Civil Revisions (C.R. 1682/D-93 and 1683/D-93) raise the same questions of law and facts, therefore, are being disposed of by one judgment. Both the suits and the appeals arising therefrom were also heard and decided together.

2. The facts relevant are that the respondents are owners of agricultural land. They appointed Muhammad Afzal, petitioner No.l (B) as their General Attorney vide General Power of Attorney dated 17-7-1980. The said General Attorney proceeded to transfer the land through gift deed dated 20-10-1981 to his father. The respondents filed a suit for declaration that the gift by defendant No. 2, the General Attorney, in favour of Siraj Din defendant No. 1, his father is void, illegal and ineffective against the rights of the plaintiffs. It was added that Power of Attorney was cancelled and the factum of cancellation of general power of attorney was notified through notice dated 12-10-1981. The copies of the same were also sent to the Tehsildar and A.C., Chunian and D.C., Kasur. The defendants contested the suits. The trial Court accordingly framed the following issues:-- (1) Whether the suit is within time? OPP (2) Whether the suit is undervalued for the purpose of court-fee and jurisdiction? If so, its effect? OPD (3) Whether the plaintiff has no locus standi? OPD (4) Whether the plaintiff is liable to pay special cost to the defendants? ' OPD (5) Whether the gift deed is against facts and law and as such iv illegal and ineffective against the rights of plaintiffs? OPP (6) Relief. The plaintiffs examined Sahib Din P-W.1 while Muhammad Ali one of the plaintiffs appeared as P.W.2. The defendants examined Najam-ul-Hassan, Petition Writer as D.W.1 while defendant No.2 Muhammad Afzal appeared as D.W.2. The trial Court after hearing the arguments decreed the suits vide judgment and decree dated 2-3-1991, which were assailed through appeals before the District Judge. The appeals came on the file of the Additional District Judge, Chunian, who dismissed the same vide judgment and decree dated 22-7-1993. Hence the present revision petitions. Notice for pre-admission hearing were issued to the respondents, who have appeared through Ch. Inayat Ullah Khan, Advocate and contested the revision petitions. It is relevant to mention here that Siraj Din, defendant No.l, died during the pendency of the appeals before the lower appellate Court, therefore, the petitioners besides Muhammad Afzal were also impleaded as parties.

3. The learned counsel for the petitioners argued that the suit for declaration was not competent. They should have filed the suit for cancellation of the gift deed and for possession as the gift deed was a voidable document. The learned counsel in this behalf has referred to the cases reported as Inayat v. Sharif Din PLD 1978 Lahore 1358, Hamida Begum v. Murad Begum PLD 1975 SC 624 and Syed Mithal Shah v. Khawaja Rafiullah and another PLD 1975 Karachi

930. It is added that the lower appellate Court did not deal with issues Nos. `2, 3 and 4 properly, therefore, its judgment is bad . in law. It is argued that the suits were not properly valued for the purposes of court-fee and jurisdiction. In this behalf the trial Court wrongly referred to PLD 1982 Lah. 615.

4. The next argument is that the plaintiffs failed to prove service of notice of cancellation of the general power of attorney. It is added that there is no presumption in law as to the service of notice. It is added that issues Nos. 2, 3 and 4 were not correctly decided by the Courts below, therefore, their judgments are rendered illegal. In the end it is argued that the original ( ILTAL NAMA ) was not produced, therefore, copy could not be exhibited.

5. On the other hand, the learned counsel for the respondents argued that the gift deed was void because the General Attorney has no power to gift the property and that too in favour of his own kith and kin. It is maintained that such gifts are void, therefore, there was no need to file a suit for cancellation of the documents. The learned counsel in this behalf has referred to the cases reported as Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818, Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 and Malik Riaz Ahmed and others v. Mian Inayat Ullah and others 1992 SCMR 1488. It is added that since the respondents were in possession, therefore, the suit for declaration was competent and there was no necessity to file a suit for cancellation of gift deed and pray for possession. It is added that the notice of cancellation of general power-of-attorney was sent to the General Attorney through registered post, acknowledgment due on 12-10-1981 and Muhammad Afzal while appearing as D.W-II admitted the receipt of this notice whereas the gift deed was registered on 20-10-1981. It is explained that the cancellation deed was originally presented before the Sub-Registrar, Kasur but he asked that it should be presented to the Sub-Registrar, Chunian. Accordingly, the document was registered on 25-10-1981.

6. The next argument is that the defendant Siraj Din had also filed a suit for specific performance of agreement dated 25-3-1980 against the respondents in respect of the suit land and this fact alone was sufficient to decree their suit for declaration. It is added that the plaintiffs were in possession, therefore, there was no occasion for them to sue for possession. In this behalf the learned counsel referred to the case reported as Mst. Izzat v. Allah Ditta PLD 1981 SC

165. It is argued that copy of the deed of cancellation of power of attorney (ILTAL NAMA ) was exhibit marked in evidence without any objection, therefore, the objection cannot be raised in the revision petition. In this behalf the learned counsel referred to Muhammad Din v. Bashir Ahmad PLD 1977 Lahore

267. Moreover, it is a registered document, therefore, presumption of correctness is attached to the same.

7. The next argument is that the petitioners did not press issues Nos. 2 to 4 either before the lower appellate Court or before the trial Court, therefore, the same for this reason were not dealt with at length. It is added that the agreement to sell does not create any right or title to the property. In this behalf, the learned counsel has referred to the case reported as Ghulam Muhammad v. Custodian of Evacuee Property PLD 1966 Lahore 953.

8. The arguments are summed up with the submission that it is a concurrent finding of fact recorded by the two Courts below. The petitioners have failed to make out a case for interference in revisional jurisdiction. The learned counsel has referred to Tijarat Bibi v. Ghulam Rabbani 1985 SCMR 1004.

9. I have given my anxious consideration to the arguments of the learned counsel four the parties and gone through the record, relevant provisions of law and precedent cases.. The argument that the suits for declaration was not competent and the respondents should have filed suits for cancellation of the gift deed and possession. It is clear not only from the plaint but also from the statement of the plaintiff-respondent No.2 as P.W.2 and of Muhammad Afzal petitioner as D.W.II that the possession of the suit land is with the respondents, therefore, suit for declaration simpliciter was competent and it was unnecessary to pray for possession. Now coming to the other part of the argument that it should have been the suit for cancellation of gift deed and not a suit for declaration. There is subtle but clear distinction between the scope of sections 39 and 42 of the Specific Relief Act. The same has been noted in the chain of precedents. Suffice it is to refer to the cases of Hamida Bibi v. Muhammad Bashir 1989 CLC 1588 and Abdul Hamid v. Sadeque Ali Ahmed PLD 1969 Dacca

357. Whether the suit for declaration in the given facts was competent would depend mainly on the question whether the gift deed was void or voidable document? The distinction between void and voidable documents has been made clear by the Hon'ble Supreme Court in the case of Muhammad Akbar Shah v. Muhammad Yousaf Shah (PLD 1964 SC 329) wherein it was held as under:-- .. ...As to whether a transaction is voidable or void there is a simple criterion: did the transaction create any legal effect, that is, did the transaction transfer, create or terminate or otherwise affect any rights? In a void transaction no legal effects are produced. In a voidable transaction legal effects are produced but some person has the right to avoid the transaction and if he exercises that option the process by which rights were affected is reversed and the original situation as it existed before the transaction is restored (subject to adjustment of equities) ... ... ..." The gift deed is clearly a void document for the following reasons:-- ' "Firstly, the love affection cannot be expressed by an Attorney on', behalf of the donor and that too in favour of his own kith and kin. In this case donee was his father: I am fortified in my view by the judgment in the case of Shumal Begum (supra) where Mr. Justice Saiduzzaman Siddiqui,i J., pin pointed the essential ingredients as under:-- ` ... ... ...Love and affection cannot be expressed by any authority on behalf of the donor. The sentiments which were the consideration for gift in the present suit must be established to have come From the donor. Gifts are voluntarily and gratuitous in the present suit transfer from the donor to the donees. The essential of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee where gift is made through a person authorised by the donor, the intention of donor to make the gift must be established in clear terms. In such a case the authority given by the donor in favour of another person to make a gift of his property besides containing the power to make the gift must also clearly specify the property and the donee in the c$se. In the case before us gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis of the power of attorney executed in his favour by Said Nawab cannot be upheld for two reasons. Firstly, the power of attorney executed in favour of .respondent No.2 by the deceased Said Nawab did not contain any specific provision authorising him to make a gift of his properties and secondly, even if we assume that such power was given, there is no indication in the said document that the donor intended to make gift of all his properties in favour of the wife of respondent No.2 (the donor). This Court in the case of Fida Muhammad v. Muhammad Khan PLD 1985 SC 341 while taking note of widespread misuse of power of attorney, observed as follows: `It is wrong to assume that every `general' power of attorney on account of the said description means and includes the powers to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The Draftsman must pay particular attention to such a clause if intended to be included in the power of attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduceable from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation. 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 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 illustrations 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 CA., 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 the discovery of the mine. A on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at option." Secondly, according to section 149 of the Muhammadan Law by D.F. Mulla there are three essentials of a valid gift, namely, (1) declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession. But in the present case, it is admitted position that possession throughout remained with the plaintiff, therefore, complete and valid gift never came into existence. It is interesting to note that the alleged donee did not enter witness box to claim possession, therefore,. non-appearance is also fatal to his claim of a valid gift. Thirdly, Siraj Din, the alleged donee, has filed suit for specific performance of the agreement in respect of the suit land. The moment the suit was filed he denounced the gift or in other words, it was not a gift as defined' in section 138 of the Muhammadan Law by D.F. Mulla:"

10. Now.once again I take up the point of competency of the suit. The plaintiff being admittedly in possession of the suit land and the alleged. gift having been adjudged as void, therefore, the suit for declaration simpliciter was competent as held in the case of Akbar Shah (supra). There was no need to pray for cancellation of a void document also. In this behalf, reference may also be made to the cases of Hamida Begum (supra) and Mst. Izzat (supra) which fully cover the controversy in the present case. It is, therefore concluded that the suit was competent.

11. The notice of cancellation of the power of attorney was despatched on 14-10-1981 to Muhammad Afzal and simultaneously its copies were endorsed to D.C., Kasur, A.C. and Tehsildar, Chunian vide receipt Exh.P

5. Therefore, the notice must have reached in the normal course of business by the 20th of October, 1981. It is interesting to note that the petitioner Muhammad AIM as D.W.II admitted its receipt but failed to produce the notice and envelope, therefore, the presumption is that it was withheld in order to conceal the date of its delivery. It is a matter of great regret that although copies of the notice were sent to the D.C., Kasur and A.C. and Tehsildar, Chunian almost a week before the registration of the alleged gift deed still they did not bother to perform their obligation under the law. The learned counsel for the petitioners while urging that there is no presumption in law as to service of notice failed to keep in mind section 26 of the . Punjab General Clauses Act, 1956 which provides that service shall be deemed to have been effected by properly addressing, pre-paying and posting by registered post. All the three pre requisites having been complied with in this case, therefore, there is a clear presumption of service. This controversy is even otherwise concluded by the admission of Muhammad Afzal D.W.II that he received the notice. It was for him to prove that notice reached him after the registration of the gift deed. This having not been done, therefore, the presumption was that the notice was served before the 20th October, 1981.

12. Now coming to the limitation. The alleged gift deed is dated 20-10-1981 while the suit was filed on 19-10-1985. The petitioners have not pointed out how this suit was time-barred. The suit being one for declaration, therefore, under Article 120 of the Limitation Act it could have been filed within six years from the date of cause of action. The same was clearly within time. I am fortified in my view by the judgment of the Hon'ble Supreme Court in case of Fatahuddin v. Zarshad and another 1973 SCMR

248. It is relevant to mention here that on behalf of the petitioners reference to none of the Articles of Limitation Act was made. Issue No.2 was as to the plaint being deficiently stamped. The trial Court has decided the same with reference to the case of Lal Din and another v. Rasul Bibi PLD 1982 Lah. 615 while the same was not challenged before the lower appellate Court. The suit being simpliciter for declaration and injunction, the plaint was valued at Rs.400 for the purpose of court-fee and jurisdiction. There is nothing wrong with the same. The objection regarding locus standi was raised in preliminary objection No.4, which reads as under:-- YEH KAI MUDIAAN NAY ARAZI MUDTDAVIA KI RAKAM HAASIL KAR KAY HI ARAZI MUNTAQIL KEE HAY AB IN KO DAWA DAEER KARNAY KAY LIYA KOI LOCUS STANDI HASSIL NA HAI Therefore, issue No.3 was rightly decided by the trial Court against the petitioners and for that reason it was not pressed before the lower appellate Court. Issue No.4 in view of the above discussion is absolutely redundant. In fact, it is the petitioners, who should have been burdened with special costs for unnecessarily compelling the respondents to start this litigation.

12. The upshot of the above discussion is that there is no merit in these revision petitions. The same are dismissed with costs. AA./S-411,/L Revisions dismissed.