ISLAMABAD FARMING COOPERATIVE SOCIETY Versus GHULAM ABBAS KHAN

JAWWAD S. KHAWAJA, J .---These three appeals arise out of a declaratory suit filed by Ghulam Abbas (hereinafter referred to as the plaintiff) who is respondent No. 1 in these appeals. The plaintiff's suit filed on 30-7-1992 was dismissed by the trial Court on 6-2-1995. However, R.F.A. No. 19 of 1995 filed by the plaintiff before the High Court has been allowed vide impugned judgment dated 8-7-2003. Three separate appeals by different parties to the /is have now been filed to impugn the judgment of the High Court.

2. In order to understand the controversy in these appeals, it is necessary to give a brief narration of the relevant facts. However, before doing so, it will be useful to give a description of the parties before us. The plaintiff Ghulam Abbas is the brother of Ghulam Hussain respondent No.3/defendant both being sons of late Sikandar Khan who was the original owner of the land which is subject-matter of this litigation. Sabir Hussain respondent No.2/defendant is the son of Ghulam Hussain and is, therefore, the grandson (pota) of Sikandar Khan. Messrs Islamabad Farming Cooperative Society which is the appellant in C.A. No.1621 of2003 was arrayed as defendant No.3 in the plaint. It asserts title to a portion of the suit-land. Ghulam Hussain and his son Sabir Hussain are appellants in Civil Appeal No.1657 of 200i. In the 3rd appeal i.e. Civil Appeal No.41 of 2004, the appellants are the legal heirs of Mst. Rubina Iftikhar who in the suit had been arrayed as defendant No.4.

3. The controversy between the parties, as set out in their respective pleadings, can now be briefly stated. According to 'the plaintiff, his father Sikandar Khan was the owner of 376 kanals of land in two Mauzas namely, Sarai Madhu and Sarai Kharbuza. In the plaint it has, inter alia, been alleged that Sikandar Khan was living with and was under the influence of his son Ghulam Hussain and grandson Sabir Hussain. It has also been averred that Sikandar Khan was suffering from asthma and that by taking advantage of their position and exercising undue influence over Sikandar Khan, they managed to obtain a general power of attorney in favour of Sabir Hussain which was registered on 29-5-1991 with the Joint Registrar, Islamabad. This power of attorney, inter alia, authorized Sabir Hussain to alienate by means of sale, gift or otherwise, the above mentioned land belonging to Sikandar Khan.

4. On the basis of the power of attorney, Sabir Hussain made a sale in favour of Messrs Islamabad Farming Cooperative Society. The sale was in respect of land measuring 12 kanals, 16 marlas and was effected through Mutation No.4 10 (Exh.P-7) dated 25-6-1991 (for convenience, hereinafter referred to as the 'First Sale). Sabir Hussain also exercised his purported authority under the power of attorney and made a gift in favour of his father Ghulam Hussain vide Mutation No.413 (Exh.P-8) dated 23-7-1991 whereby land measuring 54 kanals, 1 marla belonging to Sikandar Khan was purportedly gifted in favour of Ghulam Hussain. Thereafter vide Mutation No. 438 (Exh. P-9) dated 4-9-1991 Ghulam Hussain sold the said land to Messrs Islamabad Farming Cooperative Society (hereinafter referred to as the `Second Sale'). The First and Second Sales were in respect of land in Sarai Madhu.

5. In addition to the above sales and gift, the plaintiff also challenged two sale mutations purportedly made by Sikandar Khan himself. The first of these was Mutation No. 2550 (Exh. P-10) dated 18-3-1992 whereby Sikandar Khan purportedly sold an area measuring 110 kanals to Mst. Rubina Iftikhar (hereinafter to as the `Third Sale'). The last sale was purportedly made through Mutation No.2552 (Exh.P-11) which is also dated 18-3-1992 whereby Sikandar Khan is purported to have sold land measuring 150 kanals, 1 marla to his son Ghulam Hussain respondent-defendant (hereinafter referred to as the `Fourth Sale'). The Third and Fourth Sales were in respect of land in Sarai Kharbuza.

6. The controversy in these appeals is very straightforward. The First and the Second Sales have been assailed by the plaintiff on the ground that the power of attorney (Exh.D-1) was invalid having been obtained through fraud and undue influence exercised on Sikandar Khan by Sabir Hussain and Ghulam Hussain. Although, there is no express allegation in the plaint that Sikandar Khan was suffering from marzul maut, it is apparent that evidence was led by the plaintiff in an attempt to prove marzul maut in addition to undue influence and fraud. The Third and Fourth Sales which were purportedly affected on the same date i.e. 18-3-1992, have been assailed on the ground that Sikandar Khan did not appear before the Revenue Officer at the Jalsa-e-Aam and that his purported signatures on the two sale Mutations respectively bearing Nos.2550 and 2552 were forged.

7. The appellants in these three appeals resisted the plaintiff's suit and asserted that the land comprised in the four sale transactions stood lawfully transferred to them. As many as 12 issues were framed by the learned trial Court arising from the pleadings of the parties. However, issues Nos.1 and 12 are dispositive of the controversy between the parties. These issues were framed in the following terms:--

"(1) Whether the plaintiff has got no cause of action or locus standi to bring the suit? OPD

(2) Whether the plaintiff being the legal heir of Sikandar Khan deceased is entitled to have 1/4th share in the estate of the said deceased and the mutation No.410 dated 25-6-1991, mutation No.413 dated 23-7-1991, Mutation No.438 dated 30-9-1991 and Mutation Nos. 2550 and 2552 dated 18-3-1992 in respect of the landed property of Sikandar Khan deceased and power of attorney dated 29-5-1991 are illegal, against facts, based on fraud and coercion, without consideration, liable to be cancelled and ineffective qua the plaintiff? OPP

8. The learned trial Court decided the aforesaid issues against the plaintiff and as a consequence dismissed his suit. It was held, inter alia, that the execution of the power of attorney dated 29-5-1991 was not disputed as per contents of the plaint. The only factual controversy, therefore, was as to whether Ghulam Hussain and Sabir Hussain had obtained a power of attorney Exh.D-1 through fraud or by exercising undue influence on Sikandar Khan. The parties led evidence on this question which was duly appraised by the learned trial Court which came to the conclusion that the plaintiff had failed to prove fraud or undue influence. As noted above, although marzul maut was not pleaded in the plaint, evidence was led on this aspect also. After examining the same in detail, the learned trial Court came to the conclusion that the plaintiffhad also failed to prove marzul maut. As to the Third and Fourth Sales, the learned trial Court, after considering the evidence, came to the conclusion that these sales had been affected by the Sikandar Khan himself and, therefore, were valid transactions.

9. In the R.F.A. No.19 of 1995 filed before the High Court, the learned Appellate Bench observed that the power of attorney (Exh.D-1) was not a public document and since the original had not been produced, it was held that the same had not been proved in accordance with law. On this basis, it was held that the First and Second Sales had not been proved to have been made by a duly authorized agent on behalf of Sikandar Khan. The said two sales were, therefore, declared to be illegal. We take up these sales first for consideration.

10. Mr. Gul Zarin Kiyani, learned counsel for Islamabad Farming Cooperative Society has argued that the findings of the learned Appellate Bench in the High Court are contrary to the contents of the plaint and record. He has, in particular, drawn our attention to paragraph No.2 of the plaint. From the same it is abundantly clear that execution of the power of attorney was never disputed by the plaintiff. In fact to the contrary, it is clear from the averments in paragraph No.2 that execution of the power of attorney (Exh.D-1) by Sikandar Khan was implicitly acknowledged by plaintiff. In view of its relevance to the controversy between the plaintiff and Islamabad Farming Cooperative Society, paragraph No.2 of the plaint is reproduced as under:--

Based on the above averments, it is evident that the learned Appellate Bench fell in error by holding that it was necessary for Islamabad Farming Cooperative Society to prove the execution of the power of attorney (Exh. D-1). As a result of such error, the High Court observed that there was no need to discuss the question of Marzul maut. The connected aspects as to whether the power of attorney had been obtained by fraud or undue influence, were also not discussed by the High Court.

11. We have, however, examined the evidence and have also noted that the Islamabad Farming Cooperative Society was a bona fide purchaser of the land comprised in the First and Second Sales and had paid valuable consideration for the same. Additionally, the said Cooperative Society has also made allotments in favour of its members who have taken possession of the land allotted to them. Furthermore, the detailed reasoning given by the trial Court for deciding issues Nos. 1 and 12 against the plaintiff, has not been met by the learned counsel who represented the plaintiff and his sisters (respondents Nos. 6 to 9). He merely repeated the argument made before the High Court viz. that the power of attorney (Exh.D-1) had been obtained by fraud and by exercising undue influence on Sikandar Khan during marzul maut.

12. We have, with his assistance, gone through the testimony of the witnesses produced by the parties. The power of attorney was executed almost 10 months prior to the death of Sikandar Khan on 22-3-1992. There is no credible testimony nor do we find any independent witness or medical practitioner or documentary evidence showing treatment or hospitalization of Sikandar Khan at the time when the power of attorney (Exh.D-1) was executed. Furthermore, it is important to bear in mind that Islamabad Farming Cooperative Society was justified in relying on the power of attorney in respect of the First Sale considering that Sabir Hussain was the grandson of Sikandar Khan and had with him a registered power of attorney which, inter alia, authorized him to sell the land comprised in the First Sale. As to the Second Sale, the Islamabad Farming Cooperative Society undertook due diligence and examined the revenue record which showed that Ghulam Hussain was the owner of the said land appearing in the Revenue Record.

13. Before parting with the two sales made in favour of the Islamabad Farming Cooperative Society and in order to ensure completeness of this judgment, it is necessary to make a note of another submission made by learned counsel for the plaintiff. He argued that the First and Second Sales were liable to be set aside because there was no proof that Sabir Hussain as attorney of his grandfather Sikandar Khan had rendered an account of these Sales to Sikandar Khan under section 218 of the Contract Act. It is correct that the law requires an agent to render accounts to his principal in respect of any transaction which he may have undertaken on behalf of the principal. This requirement, however, does not invalidate the transaction itself. If, at all, Sabir Hussain had committed breach of his obligation to render an account under-section 218 of the Contract Act, this would give rise to a cause of action to the principal to seek a rendition of accounts and recovery of sums determined to be due to him. The First and Second Sales having been made in favour of a bona fide purchaser for valuable consideration cannot be set aside on account of the agent's failure to render accounts to his principal.

14. Learned counsel for the plaintiff referred to a number of precedents but in the main, relied on the cases titled Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD 1985 SC 341) and Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494) to support his argument that the gift mutation (Exh.P-8) made in favour of Ghulam Hussain on the basis of the power of attorney was illegal. His submission was posited on the fact that even though the power of attorney (Exh.D-1) purported to authorize Sabir Hussain to make a gift, such gift could not have been made in favour of his own father. On this basis it was contended that Mutation No. 413 (Exh.P-8) was liable to be set-aside and as a consequence the Second Sale was illegal. We have considered this argument and have also gone through the case-law cited by learned counsel for the plaintiff. It is clear from the same that the above referred precedents are distinguishable on facts. There was no bona fide purchaser for valuable consideration, involved in the cited cases. This is a relevant distinguishing feature of this case considering that the Islamabad Farming Cooperative Society had undertaken due diligence before purchasing the land comprised in the First and Second Sales. Furthermore, it has already allotted the said land to its members who have acquired a vested interest therein. The case law, therefore, which has been cited by learned counsel for the plaintiff, has no application in the circumstances of this case.

15. We now take up for consideration the factual issue as to whether Sikandar Khan himself appeared before the Revenue Officer for the purpose of affecting the Third and Fourth Sales made respectively in favour of Rubina Iftikhar (predecessor in interest of appellants in Civil Appeal No.41 of 2004) and his son Ghulam Hussain. We have gone through the record with the assistance of learned counsel for the parties and have also examined the reasoning given by the learned High Court for holding that Sikandar Khan had not in fact appeared at the Jalsa-e-Aam for the purpose of the said two sales. The High Court, we note, had examined the disputed signatures of Sikandar Khan appearing on Mutations Nos. 2550 (Exh. P-10) and 2552 (Exh. P-11) and compared it with the admitted signatures of Sikandar Khan appearing on the power of attorney. We have undertaken the same exercise and agree fully with the High Court that the said signatures do not match the admitted signatures of Sikandar Khan on the power of attorney (Exh.D-1). We may add here that we have also had the benefit of examining the original power of attorney. We further note that Mst. Rubina Iftikhar did not produce evidence in support of her case. In fact the order sheet of the learned trial Court dated 11-12-1994 has recorded the fact that her husband who was also her special attorney had informed the Court that Rubina Iftikhar would rely on the evidence which had already brought on record but permission was sought to record the statement of her husband. This permission, however, was justifiably declined by the learned trial Court on the ground, inter alia, that Rubina Iftikhar had been provided a final opportunity to produce evidence which she had failed to avail. Her right, therefore, to produce evidence was foreclosed under Order XVII, Rule 3, C.P.C.

16. Learned counsel for the appellants in Civil Appeal No.41 of 2004 attempted to persuade us to draw an inference that Sikandar Khan had in fact appeared at the Jalsa-e-Aam to confirm the Third and Fourth Sales. He firstly contended that when the plaintiff examined himself as P.W.8 in support of his case, he did not depose that Sikandar Khan had not been present at the Jalsa-e-Aam. This contention, is wholly misconceived and is devoid of merit. The plaintiff was not present at the Jalsa-e-Aam and, therefore, could not have testified as to whether or not Sikandar Khan was present when the mutations in respect of the Third and Fourth Sales were sanctioned. Secondly, it was argued that the mere signatures of Sikandar Khan on the two mutations should be taken as proof that he was present at the Jalsa-e-Aam. This contention is also not legally tenable because it was for Rubina Iftikhar and Ghulam Hussain to produce the Patwari or the Revenue Officer or other witnesses to establish that Sikandar Khan was present at the Jalsa-e-Aam and had confirmed the Third and Fourth Sales. This obviously was not done and the consequence in failing to do so must, therefore, be borne by Rubina Iftikhar and Ghulam. Hussain and by none else. It is also to be noted that the vendor is not to sign in the register of mutations. His signatures or thumb impression may be taken on the roznamcha waqiati but under section 42 of the Land Revenue Act, he is not supposed to sign the Mutation register.

17. Having agreed with the High Court that the signatures on Mutations No. 2550 and 2552 were not genuine, we are also clear that there is no credible or admissible evidence on record to prove that Sikandar Khan had himself affected the Third and Fourth Sales. One additional circumstance in support of this conclusion is that in consideration for the Fourth Sale, Ghulam Hussain purportedly paid a sum of Rs.1,50,000 to his father Sikandar Khan. There is no explanation as to where the money went and whether this money was at all paid to Sikandar Khan. This conclusion is inescapable considering that Sikandar Khan died only four days after the Mutation and it is in evidence that in the only bank account which he maintained, there was a sum of less than Rupees five hundred as balance. In view of the fact that Sikandar Khan admittedly was residing with Ghulam Hussain and Sabir Hussain and considering that Rs.1,50,000 was purportedly paid by Ghulam Hussain to his father Sikandar Khan there should have been evidence produced by Ghulam Hussain to account for the sale consideration of Rs.1,50,000. No such evidence has been brought on record. In the foregoing circumstances, we are of the opinion that the beneficiaries of the Third Sale namely, Rubina Iftikhar and the Fourth Sale namely, Ghulam Hussain were unable to prove the sales purported to have been made in their favour by Sikandar Khan.

18. In the light of above discussion, we allow Civil Appeal No.1621 of 2003. As a result the First and Second Sales made in favour of Islamabad Farming Cooperative-Society are held to be valid. Civil Appeals Nos. 1657 of 2003 and 41 of 2004 are, however, dismissed. The parties to bear their own costs.

S.A.K./I-7/SC Order accordingly.