P L D 1979 Karachi 22 (PLP)

Respectfully agreeing with the above enunciation of the scope of section 202 of the Contract Act, it now remains for determination whether the applicant had interest in the land forming the subject‑matter of the power of attorney, which rendered the power irrevocable and prohibited its cancella tion. The power of attorney reads asunder :‑ "General power of attorney.‑--Know all men by these presents that, I, Syed Qasim Naqvi son of Muhammad Kazim Naqvi, Muslim, adult, residing at House No. 59, Parsi Colony, Karachi, having agricultural lands 29 acres 18 ghuntas at Deh Baharpur, Tappa Manghawari Tehsil and District Khairpur Mirs under Surveys Nos. 74/1‑28, 76/2‑21, 237/0‑10, 111/3/2‑26, 157/6‑8, 166/3‑0, 168/3‑12, 178/1‑25/173/4‑3, 73/1‑25, 74/1‑26 and 28/7‑6 and an other 26 acres 27 ghuntas of agricultural lands at Deh Rahoja, Tappa Manghanwari. Tehsil and District Khairpur Mirs under Nos. 90/7‑5, 400/1‑33, 415/1‑17, 451/7‑1, 380/1‑3‑39 and 380/2‑

08. Now to utilize land and for the purpose do hereby appoint, nominate and constitute Mr. Syed Shafiq Hussain son of Syed Ghulam Abbas, adult, Muslim, aged 34 years, resident of House No. 274, Mohalla Luqman, Tehsil and District Khairpur Mirs (West Pakistan), my General Attorney in my name and on my behalf to do or execute all or any of the following acts, deeds and things in connection with my abovesaid agricultural lands. (1) To appear and act in all the Courts, civil, revenue, criminal, whether original or appellate in the Registration Office and in any other Offices of the Government or District Board, Municipal Board or Notified Area or any other local authority. (2) To sign and verify plaints, written statements, petitions, objections, memorandum of appeal, petitions and applications of all kinds to fill them and file them in such Courts and offices. (3) To manage and deal with all my above lands situated in Deh Baharpur and Rahoja, Tappa Manghanwari Tehsil and District Khairpur Mirs. (4) To sell, mortgage, let on lease, give on interest or otherwise transfer and dispose of my aforesaid agricultural lands in such name and in such terms and conditions as my aforesaid General Attorney may deem fit and proper. (5) To execute any transfer or other deed himself or to admit the execution of the same by me. (6) To take consideration, or to admit the receipt of consideration by me for any sale proceeds, advance amount, lease money, Mokata, or sub lease money from the abovesaid agricultural lands. (7) To borrow on my behalf any money or take any advance or Taqavi, or lease from Government or any Semi‑Government, Rehabilitation offices and pass receipts for the same. (8) To sow the field or fields himself or by servants or through partner ship or otherwise as the said Mukhtar may think fit. (9) To apply for mutation, partition, exchange corporation of the land or part thereof. (10) To receive rents, profits of the lands or any part of it by filing suits or taking any recovery proceedings in any Court, office or authority. (11) To let to any person or eject him from the field or land and for this purpose to apply, move or approach any civil, revenue or Courts from lowest to the highest. (12) To appear, defend, file any suit or any other proceedings in any office, Court or authority and to call and compound or compromise any proceedings. (13) To engage any Advocate, Vakil or appoint one or more Special Attorney as my General Attorney shall deem fit and proper. (14) To look after and manage my aforesaid lands and deal with full powers. (15) And generally to manage or look after the said agricultural land in any way or manner and whereas I could act if personally present and I hereby ratify and confirm all that the said General Attorney may deem fit. (16) This General Power of Attorney is irrevocable and will hold good for all times even after the death of the Executant. In witness whereof I have set my hand hereunto this 8th day of July, 1965, at Karachi in presence of the following witnesses :‑ Executant (Sd.) (Syed Abdul Qasim Naqvi) 9‑7‑1965." Now, the execution of the above power of Attorney is not denied and it is also not denied that on the same day of the execution of the power of attorney, the respondent had also executed the agreement with the applicant donee whereby he had agreed to sell to him the very same land which formed the subject‑matter of the power of attorney and received Rs. 5,000 from the applicant towards the sale price on the execution of the said agreement and, in lieu thereof, had delivered possession of the said land to the applicant party with full rights of management and enjoyment of any produce thereof, and that the agreement further provided that the applicant would pay all the instalments to the Government towards the purchase price and as soon as rights of absolute ownership of the said lands were conferred on the respondent, he (respondent) shall execute absolute deed of transfer of the said lands in favour of the applicant second party. The evidence on record would also show that after having paid Rs. 5,000 to the respondent at the time of execution of the said agreement and the power of attorney in his favour, the applicant entered into possession of the land and since then had been cultivating it and appropriating its produce solely to himself without accounting for it to the respondent, and had also paid all the instalments to the Government towards the purchase price of the said land and also advanced Rs. 14,870 to the respondent. That being so, existence of applicant's interest in the land which formed the subject matter of the power of attorney, within the meaning of section 202 of the Contract Act, can hardly be denied and the facts would show that he bad the interest at the time the power of attorney was executed in his favour. It has been, however, argued by the learned counsel for the respondent that since the power of attorney did not mention the interest of the applicant in the land, it was an independent document and therefore the agreement could not be relied upon in support of it, as the suit was not based on the agreement itself. It is no doubt true that the power of attorney does not specifically mention the interest of the applicant in the land. But, as pointed out in I L R 20 Mad. 97, cited above, it is not necessary that express mention of the interest be made in document itself, as language of section 202 of the Contract Act is wider and what is necessary under the said section is that the agent should 'have an interest' in the property forming the subject‑matter of the agency which may be inferred either from the document or from the course of dealings between the parties and, I would add, from the other surrounding circumstances. In other words, it is the existence of the interest, not the mode in which it is given, that is of importance. Admittedly, the agreement to sale as well as the power of attorney were executed on the same day, and the circumstances would show beyond doubt that they were executed in the course of same transaction. That being so, existence of interest of the applicant in the land could well be evidenced by the agreement, and the acknowledgment by the respondent to have received Rs. 5,000 from the applicant towards the price of the land at the time of execution of the power of attorney in favour of the applicant in respect of the same land. That the applicant had interest in the subject‑matter of the power of Attorney is also shown by the power of attorney itself. It is expressly stipulated in clause 16 of the document that "this power of attorney is irrevocable and will hold good for all times even after the death of the executant". The question arises, why such a clause was inserted in the power of attorney. The answer could only be that it was inserted because the applicant had interest in the land which formed the subject‑matter of the power of attorney and it was to secure that interest that the power of attorney was expressed to be irrevocable. In other words, such a clause would not have been expressly mentioned in the document, unless the applicant was admitted to have had interest in the land which was intended to be secured, and then, parties are presumed to mean and intend what they agree upon and reduce in writing and would be bound by it. Further, no explanation has been offered by the respondent in his evidence whether in spite of it being expressly stipulated in the power of attorney, it was not intended to be irrevocable. All that was argued by the learned counsel for the respondent in this behalf was that since the agreement itself was illegal, in view of the provisions of M. L. R. 89/91 which did not permit sale or transfer of surrendered land to any one until full price was paid to the Government and the land was transferred to the optee purchaser, the power of attorney executed in furtherance of such agreement also became illegal and could not be enforced in law. I am not impressed with the argument. I am not dealing here with the validity, or otherwise, of the agreement to sale and also no issue regarding it had been framed by the Courts below. It will not be proper for me, therefore, to express any opinion on this aspect in these proceedings, and this position was conceded to even by the learned counsel for the respondent himself. All that has to be seen by me here, therefore, is whether the applicant had beneficial interest in the subject‑matter of the power of attorney, and it is in this connection that the agreement is relied upon collaterally to show consideration for execution of the power of attorney and interest of the applicant in the land and to explain as to why it was expressly mentioned in the power of attorney that it was irrevocable, which indeed could be legitimately done, as the agreement, which was in writing, did not stand in competition with or contradict the power of attorney. Dealing with somewhat similar contention in (1906) A C 256, Lord Atkinson, while delivering the judgment for Judicial Committee, cited with approval the rule enunciated by the Vice‑Chancellor (Sir L. Shad Well) in Clifford v. Turrel (lY&C138) as under :‑ "Rules of law may exclude parol evidence where a written instrument stands in competition with it, but it has long been settled that it is not within any rule of this nature to adduce evidence of a consi deration additional to what is stated in a written instrument." He added further :‑ "The rule is, that where there is one consideration stated in the deed. you may prove any other consideration which existed, not in contradiction to the instrument ; and it is not in contradiction to the instrument to prove a larger consideration than that which is stated." Thus, it cannot be legitimately maintained that the agreement executed by the respondent could not be looked into in the present proceedings for such collateral purposes. It may be mentioned here that this very contention regarding the agreement being void on account of the provisions of M. L. R. 89/91, was raised before the trial Court and the first appellate Court who both repelled it and the learned counsel for the respondent could not assail their finding. The relevant finding by the appellate Court may be reproduced as under :‑ "The next point argued by the learned Advocate for the appellant/ defendant was that the contract entered into between the above parties was void ab initio in view of the provisions of section 23 of the Contract Act. He argued that the agreement to sell executed by the parties was in respect of the surrendered land under para. 8 of M. L. R. 89 and free from incumbrances in the Government of Pakistan under para. 9 of the said regulation. An option to purchase was given to the claimant surrendering such land under para. 4 of M. L. R.

91. Sale, transfer, alienation, creation of rights, interests or incumbrances in the surrendered land was declared void by M. L. R. 89, until and unless full price of the surrendered land was paid to the Government. The learned Advocate for appellant argued that agreement to sell was in contravention of the provisions of M. L. R. 89 and as such was hit by section 23 of the Contract Act, because the object of the agreement was to defeat the provisions of law. He further argued that the agreement being itself void, the power of attorney executed in favour of the respondent/plaintiff to give effect to the object of the agreement was also void and of no legal consequence. I am not at all in agreement with the above arguments. The agreement to sell was a contingent contract, dependent upon the happening of an event. No rights or interests were to pass over to the purchaser until and unless the seller was made payment of the full price of the land to the Government and had obtained the transfer documents from the Government, after which there was no prohibition to the sale and under these circumstances the agreement to sell in question cannot be deemed to be a void contract." It has been finally argued by the learned counsel for the respondent that as the applicant had acted in breach of the power of attorney, in that, he misappropriated the produce of the crops and had not rendered accounts and had entered into agreements of sale with the other persons and failed to pay instalments to the Government in time and thus exposed the respondent to penal interest, the power of attorney was validly revoked by the respondent. I see no substance in this contention as well. In the power of attorney, there is no provision requiring the applicant giving produce of crops or of accounting for it to the respondent. On the contrary, the power of attorney authorised the applicant to appropriate the produce, crops, incomes and to sell or do any other acts at his sole discretion as provided in clauses 4 to 12 of the power, and it has also not been shown by the respondent in his evidence as to what installments were not paid to the Government to rebut the claim of the applicant that he had paid all the instalments to the Government. That being so, it also cannot be maintained that the applicant had committed any breach of the terms of the power of attorney to merit its revocation, apart from the fact that it was expressly provided in clause 16 that the power of attorney was irrevocable and was to hold good even after the death of the executant. I, therefore, agree with the trial Court that the applicant having got into possession of the land for value paid and acknowledged in the agreement and he having right to usufruct till the land was finally transferred in his name, he had beneficial interest in the land which formed the subject‑matter of the power of attorney which could not be, therefore, revoked by the respondent in view of section 202 of the Contract Act. For the aforesaid reasons, I allow this Revision Application with costs and set aside the judgment and decree passed by the first appellate Court and restore the decree passed by the trial Court. S. Q. Petition allowed.