AMEER AHMAD Versus Mst. FATIMA
AMIN-UD-DIN KHAN, J.--- Through this civil revision the petitioners have challenged the judgment and decree dated 02.02.2001 passed by the learned Additional District Judge, Alipur, whereby the appeal filed by them has been dismissed and the judgment and decree dated 04.12.1995 passed by the learned Civil Judge II Class, Alipur, whereby the suit filed by the petitioners/plaintiffs was dismissed.
2. The brief facts of the case are that the petitioners plaintiffs on 02.10.1991 filed a suit for declaration to challenge the power of attorney No.95 registered on 04.06.1978 by Fazal Din in favour of Maseeta defendant No.5 and Mojeeb-ur-Rehman defendant No.6 and on the basis of said power of attorney registered gift deed No.1734 registered on 17.07.1978, registered gift deed No.1785 registered on 22.07.1978 and registered gift deed No.1864 dated 03.08.1978 on behalf of principal i.e. Fazal Din in favour of Mst. Fatima his daughter with regard to suit land.
3. According to the brief facts of the case the propositus Fazal Din alias Fajju was having no male issue, he was having two daughters Mst. Fatima and Mst. Manzooran defendants No.1 and 3 and a widow namely Mst. Rulli defendant No.2. Fazal Din died on 26.08.1978 and plaintiffs filed a suit that they and defendants Nos.1 to 4 are his legal heirs under the Muslim Law of inheritance and entitled to inherit him. As per the pleadings defendant No.1 fraudulently got registered power of attorney in favour of his minor son Mojeeb-ur-Rehman defendant No.6 and her personal servant Maseeta defendant No.5 and on the basis of power of attorney got the suit land registered in her favour through registered gift deeds. It has been further pleaded that defendant No.6 further transferred the suit property through fraudulent means in favour of his own wife through mutation No.6553 and mutation No.943. Defendant No.1 filed consenting written statement and supported the version of plaintiffs. Defendants No.3 and 4 also filed consenting written statement. Only it was defendant No.7 Mst. Iqbal Bibi who contested the suit. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 04.12.1995 suit was dismissed by the learned trial Court. An appeal was preferred before the learned first appellate Court, which also met with the same fate vide judgment and decree dated 02.02.2001. Hence, this civil revision.
4. Learned counsel for the petitioners argues that even defendant No.1 who is stated to be beneficiary of the transaction appeared as DW-1 and admitted the version of plaintiffs, rather stated that the impugned power of attorney and the gift transactions are result of fraud by her son defendant No.6 (Mojeeb-ur-Rehman). With regard to previous filing of suit by Mst. Manzooran the other daughter of Fazal Din, argues that all the plaintiffs of present suit were not arrayed as party and further that some of the defendants were minor at that time. With regard to limitation argues that when very transactions of gift are absolutely against the law and the donee has denied from said transactions and as such the limitation is not a hurdle against the petitioners/plaintiffs, therefore, both the courts below fell in error while dismissing the suit wrongly applying the principle of res-judicata as well as point of limitation. Prays for acceptance of the instant civil revision and decree of the suit.
5. On the other hand, learned counsel for respondent No.1 has supported the version of learned counsel for the petitioners and states that all the transactions are due to fraud committed by defendant No.6 the real son of defendant No.1 and defendant No.1 does not claim any gift by her father in her favour and therefore she has no objection if the suit is decreed. States that ultimately it is defendant No.6 who is the real beneficiary of the fraud committed by him as the suit property reached to his wife i.e. defendant No.7. Prays that the property of Fazal Din be distributed among his legal heirs in accordance with law.
6. Learned counsel for respondent No.7 Mst. Iqbal Bibi who is real beneficiary of suit property have advanced the arguments and contested the suit by supporting the judgments and decrees passed by both the courts below. Learned counsel state that the instruments of transfer in favour of Mst. Iqbal Bibi are not available on the file but they claim the ownership and lastly argued that most of the property is in the name of respondent No.7 who is wife of respondent No.6.
7. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
8. I have noticed that the certified copy of registered power of attorney is available on the file as Ex.P-3, by Fazal Din in favour of Mojeeb-ur-Rehman and Maseeta jointly. It is a registered document bearing No.95 registered on 04.06.1978. It gives powers to the attorneys mainly with regard to management of property of the principal. There are powers to transfer the property through gift also. With regard to powers of the transfer by the attorneys the language shows that the powers have been given to the attorneys to use the powers given under the power of attorney. It is not mentioned in the power of attorney that anyone of the attorneys can use the powers, therefore, under the natural interpretation of document it is understandable that when two attorneys have been appointed jointly, through this document, naturally the powers are to be used by the attorneys jointly but three impugned gift deeds show that same are by one attorney i.e. Maseeta only and the other attorney has not joined him. When power of attorney gives two attorneys to exercise powers of the principal, the exercise of powers on behalf of the principal by the attorney without joining the other is defective one and cannot create rights in favour of the transferee. So far as question of law that whether a legally constituted attorney can of his own exercise the powers of principal to transfer the property through gift by his own free will and consent as he has powers to transfer the property. I would like to quote Paragraph of Urdu from the document Ex.P-4:--
This language of the document shows that the attorney himself is transferring the property of his own love and affection on behalf of the principal. I am clear in this respect that an attorney cannot transfer the suit property through gift/Tamleek, except the Tamleek is to be made by the principal and just to incorporate that Tamleek in favour of donee the powers of attorney can be used only for performance of codal formalities of the transfer document and the attorney cannot transfer the property of the principal through Tamleek by his own wishes despite the fact that powers of transfer through Tamleek have been given in the power of attorney. In this context, I have already expressed my view in the judgment which is reported as "PLJ 2015 Lahore 1103 (Fateh Muhammad and 2 others v. Din Muhammad and 2 others)". Furthermore, in the absence of adequate and strong evidence presumption in favour of execution of power of attorney cannot be lawfully drawn. Light can be taken from the judgment reported as "PLD 2003 SC 676 (Muhammad Khan v. Mst. Rasul Bibi)".
9. Further very important factor which has been ignored by the courts below is that the alleged donee states that the suit property was never gifted to her and she never claimed the ownership of property on the basis of gift by her father. Needless to mention that the ingredients of valid gift i.e. offer acceptance and delivery of possession are to be proved. Reliance is placed upon "2016 SCMR 1417 (Peer Bakhsh through LRs and others v. Mst. Khanzadi and others)". It is novel case where neither the donor nor the donee claim the gift of property. What to state about the proof of three necessary ingredients of the gift. In this litigation the crux of the matter is that the son of defendant No.1, who is real daughter of the propositus/principal, has cooked a plan with the connivance of Maseeta defendant No.5 to grab the property of Fazal Din alias Fajju. First they fraudulently showed the transfer of property through Tamleek in favour of Mst. Fatima, who denies the transfer, and thereafter fraudulently property reached to defendant No.7, who is wife of defendant No.6, the real son of Mst. Fatima. When a person asks the Court to believe a particular fact, it is his duty to prove the said fact. When in the instant case donee denied from the gift deeds in her favour, it was the duty of defendant No.7 to prove the valid power of attorney in favour of Maseeta as well as Mojeeb-ur-Rehman, then valid gift deeds by the attorneys in favour of Mst. Fatima and thereafter transfer of property in her favour. She miserably failed to prove all these facts. Therefore, in the light of case law "2008 SCMR 1395 (Messrs Noorani Travels, Karachi v. Muhammad Hanif and others)" the judgments and decrees passed by both the courts below by ignoring these important basic requirements are nullity in the eye of law. In these circumstances, when the donee has denied the transfer in her favour, further transfer in favour of defendant No.7 also goes. Even defendant No.7 who was the only contestant of the suit has never proved the valid transfer of property in series which ultimately reached to her. Both the courts below have ignored all these legal questions. If a transaction is fraudulent and absolutely against the law and relates to a matter of inheritance, the application of principles of law of limitation is slight different from the other case. It is now settled that the legal heir of a person become joint owner at the time of death of a propositus. A party claiming adverse rights to the legal rights of a propositus is bound under the law to specifically prove the ouster of legal heir from the rights receivable by that legal heir from the property of propositus. In the case in hand when power of attorney Ex.P-3 was giving no powers to anyone of two attorneys to exercise powers of the principal and the use of powers by one attorney are nullity and further as I have discussed supra, even both the attorneys were not entitled to transfer the property through gift out of their own love and affection in favour of any person. The power of attorney at the most could have been used for completion of codal formalities for transfer in case the principal would have gifted the property to anyone.
10. Further the application of Order II, Rule 2 and principles of res-judicata are also not applicable which have wrongly been applied by the courts below as the previous suit was not by the plaintiffs of the instant suit and further that it has not been proved that anyone of the plaintiffs of the instant suit was duly represented or was associated with the previous litigation. Furthermore, if one of the legal heirs of the propositus was not joined to the previous litigation, on the move of only one legal heir who is entitled to inherit the suit property can start a lis and on his suit the transaction can be declared null and void. The judgment Ex.D-2 which has been made basis for invoking the bar of res-judicata, I have gone through this judgment. Learned Civil Judge has given the findings on issue No.5 that the power of attorney has not been challenged and therefore the Tamleek deeds cannot be challenged. The issue has been decided against the plaintiffs of said suit and the suit was dismissed. For invoking the application of res-judicata the final decision of the matter should be on merits and discussion of evidence. Light can be taken from the judgment reported as "PLD 2005 SC 511 Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others)". In this view of the matter, the findings recorded by both the courts below are absolutely against the law, therefore, not sustainable.
11. In view of above discussion, this civil revision is allowed and the impugned judgments and decrees dated 02.02.2001 and 04.12.1995 passed by both the learned courts below are set aside and the suit shall stand decreed. The result would be that the suit property will be distributed in accordance with law by the concerned revenue authorities in favour of legal heirs of Fazal alias Fajju who were to inherit at the time of his death.
ZC/A-101/L Revision allowed.