2018 PLP 145 (YLRN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

In brevity, the facts of the case are that respondent No.1 and petitioner No.3 are sister and brother inter se, whereas petitioners Nos.1 and 2 are sons of the latter. Respondent No.1 through a civil suit with regard to subject property disputed genuineness of General Power of Attorney dated 17.06.1986 purportedly executed on her behalf in favour of her brother besides assailing vires of oral gift mutation No.1218 dated 11.12.190 sanctioned in favour of petitioners Nos.1 and 2 by their father being her attorney while claiming it to be illegal, void and inoperative upon her rights being result of misrepresentation, fraud and collusion and ultimately prayed for its cancellation. Both the Courts below appreciated evidence available on suit file with different angles and the first one dismissed the suit, however, it was decreed by the learned lower Appellate Court through the impugned judgment, which is under challenge of this civil revision.

2. Heard. Record perused.

3. The relationship among the parties is admitted. The moment, respondent No.1 appeared in witness-box being PW1 and deposed on oath that neither she had appointed her brother being her general attorney nor authorized him to alienate her property through gift, but they managed the impugned documents fraudulently by means of fake proceedings, onus to prove the valid execution of general power of attorney as well as attestation of mutation and transaction reflected therein was shifted upon the petitioners being beneficiaries. The basic questioned document i.e. original general power of attorney was not tendered in evidence by the petitioners, which compelled the learned Additional District Judge to draw adverse inference against the petitioners under Article 129 illustration (g) of the Order 1984, however, when Mr. Ahmad Waheed Khan, Advocate for the petitioners was faced with this situation, he tried to handle it while responding that Muhammad Afzal (DW5) fully explained in his statement that the original instrument was handed over to the Revenue Officer when oral gift mutation in favour of petitioners Nos.1 and 2 was attested, therefore when the document was not in possession of the beneficiaries, how it could be brought on the suit file, is not tenable. There was no fun to leave the document with the Revenue Officer after attestation of mutation and for the sake of argument, if it is admitted as correct, then the beneficiaries were required to summon the said Revenue Officer along with the original general power of attorney, but no effort in this regard was made and mere oral explanation of (DW5) could not be made basis to believe that document was out of possession of the petitioners. It was the specific stance of respondent No.1 that she had neither appeared before any scribe or Registrar nor did she sign the alleged forged general power of attorney and in such a situation, the original document was required to be essentially brought on file so that genuineness of the disputed signature/thumb impression of the executant over it could be ascertained. Had it been lost or destroyed by the Revenue Officer and was not in custody of the petitioners, then they under the law were bound to file an application for seeking permission to tender its attested copy in secondary evidence. No doubt, attested copy of general power of attorney was brought on the file, but without seeking any such permission for its exhibition in secondary evidence. Had the petitioners filed such an application, they were bound to first prove its lost or destroy and thereafter, they could be permitted to lead it in evidence. In these circumstances, the attested copy of the attorney deed did not suffice the purpose of proving the same; presumption attached to copy of a registered document goes merely to the extent of document having been registered and not to the effect having been executed by a particular person. Moreover, at the time of execution of general power of attorney, Stamp Vendor and Deed Writer might have obtained signature as well as thumb expression of the executant/respondent No.1 in their relevant Registers, otherwise, at the time of attestation thereof, it was imperative upon Attesting Officer to procure signature and thumb impression of the principal against the entry made by his officials in Behi Register and in that eventuality allegation of the lady that she did not sign the questioned document could be belied by making any application by the petitioners for its comparison through an expert, but this request was also not tabled either before Courts below or before this Court. Although report of an expert is not conclusive evidence, but the apex Court in the case reported as 'Hamid Qayyum and 2 others v. Muhammad Azeem through Legal Heirs and another' (PLD 1995 SC 381) has concluded that such a report, if is properly proved, can be used as corroborative piece of evidence. By not resorting to such exercise, the beneficiary has incurred an adverse presumption against him. The Deed Writer, Stamp Vendor and one of the attesting witness, who played their role in construction of the attorney deed could not be examined by the beneficiary, being already departed prior to recording of evidence. The Attesting Officer was not brought into the witnessbox, whereas only the second marginal witness, Ashiq Ali Chatha, Advocate being DW8 was examined, but his sole statement is insufficient to prove the contents as well as the signature of the executant. The corollary of appreciation of evidence discussed so far is that petitioners miserably failed to prove the execution of their hub document.

4. Once again, Mr. Ahmad Waheed Khan was faced with the query whether an agent on behalf of his principal could make a gift in violation of principle settled for all the times by the apex Court in a case cited as Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818), wherein it was concluded as under: - .Love and affection cannot be expressed by any attorney 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 essentials of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gift 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 authorized 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 case. 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 authorizing 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). He having remained speechless could not cite any other verdict of the apex Court to counter aforenoted dicta.

5. Mr. Ahmad Waheed Khan, Advocate has been again tested while confronting whether property of a principal could be transferred by an agent to his kith and kins, whose reply that the principal through the execution of registered power of attorney had authorized her agent to transfer the disputed property and while acting on her behalf being agent the attorney was not required to seek prior permission to transfer the disputed property to his kith and kin is not correct. It is a wrong presumption that every agent on account of description of general power of attorney means and includes the power to alienate/dispose of property of the principal to his fiduciary relations. In order to achieve that object, it must contain a clear separate clause devoted to the said object. The principal as well as attorney must have paid particular attention to such a clause regarding alienation of the property to the kith and kin with a view to avoid any uncertainty or vagueness. Implied authority to alienate property would not be readily deducible from words spoken or written, which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to remain vigilant regarding interpretation of the clauses of the power of attorney, particularly, when the allegation by the principal is of fraud or misrepresentation. These views have been conceived from another authoritative judgment rendered by the Supreme Court reported as Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD 1985 SC 341), which has also been followed by the Supreme Court in the case cited as Mst. Bandi v. Province of Punjab and 5 others (2005 SCMR 1368).

6. The submission of the learned counsel for the petitioners that the suit was instituted by respondent No.1 beyond limitation and the learned Additional District Judge erred in law while ignoring the said aspect is incorrect. When it is established on record that the petitioners failed to prove the valid execution of general power of attorney and also remained unsuccessful to rebut the allegation that it was procured by means of fraud, then no embargo of limitation can be imposed to challenge a fraudulent instrument. There is no dearth of case law on this point and for ready reference some of those judgments reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Abdul Rahim and others v. Mst. Jannatay Bibi and 13 others (2000 SCMR 346), Khair Din v. Mst. Salman and others (PLD 2002 SC 677) are referred. Moreover, the document being result of misrepresentation has to strike down and cannot be protected with rule of limitation. This is the recent voice of the apex Court of the State in a case cited as Ghulam Farid and others v. Sher Rehman through LRs. (2016 SCMR 862). It is well established by now that fraud vitiates most solemn proceedings and cannot be perpetuated due to some legal hitch/ objections. Reliance can be placed upon the cases known as Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729) and Mst. Zulikhan Bibi through LRs and others v. Mst. Roshan Jan and others (2011 SCMR 986).

7. The argument of learned counsel for petitioners that learned Civil Court was perfect in appreciating the evidence available on lis file and dismissing the suit of respondent No.1 whereas judgment of the learned lower Appellate Court being result of misreading and non-reading of evidence is liable to be set at naught has no weight in the light of aforenoted appreciation of evidence and the conclusion drawn by this Court. It is also again established up till now that in case of inconsistency between the learned trial Court and the learned lower appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary as has been held by the apex Court in the judgments reported as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs and others (2013 SCMR 1300) and Amjad Ikram v. Mst. Asya Kausar and 2 others (2015 SCMR 1).

8. In view of the above stated legal position, this Court is of the view that alienation of the property of respondent No.1 by her brother/petitioner No.3 in favour of his sons petitioners Nos.1 and 2 on the basis of purported general power of attorney was not sustainable in law and learned Additional District Judge was perfect in reversing judgment of his subordinate Court and decreeing the suit of the respondent No. 1 through the impugned judgment, which does not call for interference by this Court in the exercise of revisional jurisdiction, which is only meant to correct the errors of law and facts, if are found to have been committed by the Courts below in the discharge of their judicial functions.

9. Consequently this civil revision bounds to fail, which is dismissed with costs throughout. ZC/S-60/L Revision dismissed.