JAVED IQBAL Versus Mst. FARHAT IQBAL (deceased)
SHAHID BILAL HASSAN, J.--- Brief facts germane to the filing of the instant appeal are as such that the dispute pertains to a parcel of land measuring 01 Kanal, 19 Marlas and 8 Sarsahi situated at Chak No. 14/G Chishtian, which the respondent No.1 (deceased), hereinafter referred as respondent , inherited from her father. Owing to close familial relations, the respondent initially executed an unregistered General Power of Attorney in the year 2003 in favour of Appellant No.1. Subsequently, a registered General Power of Attorney dated 24.09.2005 was executed authorizing him to manage the suit property. In 2006, acting under the said authority, Appellant No. 1 transferred the suit property in favour of Appellants Nos. 2 and 3 through a registered sale deed and mutation. The respondent Mst. Farhat Iqbal (deceased), later on, alleged misuse of the authority and asserted that the transfer had been affected without her consent. She revoked the power of attorney through a registered deed in April 2009 and instituted a suit on 05.05.2009 seeking cancellation of the sale deed and mutation. The appellants contested the suit through joint written statements, maintaining that Appellant No. 1 had purchased the property for valuable consideration; however, in an amended written statement, the alleged sale consideration was materially altered without explanation.
The trial court initially decreed the suit in favour of the respondent vide judgment dated 21.12.2012. In appeal, the matter was remanded on 26.04.2013 for decision afresh on certain issues. Upon reappraisal, the trial court again decreed the suit on 18.11.2014. The appellate court, however, set aside the said decree on 08.05.2015. Aggrieved, the respondent filed a civil revision, which was allowed by the High Court vide judgment dated 06.10.2025, restoring the decree of the trial court. The appellants have now approached this Court through the instant petition seeking leave to appeal against the judgment of the High Court.
2. Learned counsel for the appellants contends that the impugned judgment of the High Court suffers from misappreciation of evidence and settled principles of law. It is argued that the respondent had, of her own free will, executed the powers of attorney in favour of Appellant No. 1, and the subsequent transfer of the suit property was affected with her knowledge and consent. Such consent, according to the learned counsel, stands duly established through the testimonies of various witnesses as well as surrounding circumstances on record. It is further submitted that the transaction was for valuable consideration, and the appellants are bona fide purchasers, thus the concurrent findings of the trial court, restored by the High Court, are unsustainable in law.
3. Conversely, learned counsel for the respondent submits that the entire transaction is tainted with fraud, misrepresentation, and abuse of fiduciary relationship. It is contended that Appellant No. 1, taking advantage of the respondent s position and trust, misused the authority conferred through the power of attorney to unlawfully transfer the suit property in favour of his sons, i.e., Appellants Nos. 2 and 3, without lawful authority or genuine consideration. Learned counsel emphasizes that the inconsistency in the appellants stance regarding the sale consideration, coupled with the circumstances in which the transaction was carried out, renders the same void and ineffective. It is thus argued that the High Court has rightly restored the decree of the trial court, warranting no interference by this Court.
4. Arguments of learned counsel for the parties have been heard, and the record has been perused with their able assistance.
5. The only point that requires our consideration in the present matter is whether an attorney, in the absence of express written consent, could validly transfer the principal s property in favour of his own sons, and whether, in the facts and circumstances of the case, such consent (if any), has been duly proved in accordance with law.
6. At the very outset, we note that it is an admitted position that Appellants Nos. 2 and 3 are the sons of Appellant No. 1, i.e., the attorney, and the transfer in question has been affected in their favour. The law on the subject is now well settled 1 . In Fida Muhammad v. Pir Muhammad Khan (PLD 1985 SC 341) , this Court categorically held that a general power of attorney does not, by itself, confer authority to alienate property unless a clear and specific clause to that effect exists, and even then, such authority cannot be readily inferred in the absence of clear intention and consent of the principal, in the following words:
It is wrong to assume that every "general" Power-of-Attorney on account of the said description means and includes the power 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 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 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 should 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.
Further, in Maqsood Ahmad v. Salman Ali (PLD 2003 SC 31) , it was held that where an attorney seeks to transfer property in favour of a close relative, it is incumbent upon him to obtain prior approval of the principal to validate such transaction, in the following words:
"13. With reference to the context of power of attorney we have pointed out to the learned counsel for appellants that as appellant Maqsood Ahmad had been authorized to deal with the affairs of the property including the financial powers, therefore, if he wanted to transfer the land in respect whereof allegedly respondent appointed him as attorney to deal with his property, it was incumbent upon him to have sought prior approval of the Principal before transferring the land on the name of his brother Muhammad Ayub being the close relative of the attorney in order to make it a valid transaction in terms of section 211 read with section 215 of the Contract Act..".
This principle was reiterated in Jamil Akhtar v. Las Baba (PLD 2003 SC 494) , wherein it was declared that transfer by an attorney in favour of his close fiduciary relations requires special permission from the principal. This Court held:
"8. It is a settled principle of law that whenever a general attorney transfers the property of his principal in his even name or in the name of his close fiduciary relations, he has to take special permission from the principal."
Similarly, in Muhammad Ashraf v. Muhammad Malik (PLD 2008 SC 389) , this Court held that even where a power of attorney exists, an attorney is not competent to transfer property in favour of his close relations without first obtaining the consent of the principal after full disclosure of material circumstances. This Court held:
4. Even if it be taken that power of attorney was validly executed, appellants No.1 had no authority and he was not competent in law to gift or sell the suit land to his son-in-law namely, Muhammad Amin. There is no evidence on record to show that the attorney before making the gift in favour of his son-in-law ever obtained the consent and permission of the plaintiffs and sought any approval from the real owner of the property, who even according to the stance of the appellants are his principals. It is a settled law by now that if an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right. The consistent view of this Court is that if an attorney on the basis of power of attorney, even if "general" purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances.
The most recent reiteration of this principle is found in Allah Bakhsh v. Muhammad Riaz (PLD 2025 SC 63) , wherein this Court held that in the absence of prior permission, approval, and consent of the principal, a transfer made by an attorney in favour of his sons or close relatives is legally unsustainable, and even an iota of evidence in that regard must be forthcoming to validate such transaction. This Court held as under:
8. Record further reveals that based on forged power of attorney the Appellant No. 01 allegedly sold a portion of the disputed land to his sons (Appellants Nos.1-A and 1-B). It is established law that holder of a general power of attorney must obtain special permission from the principal when alienating the principal's property, either in their own favor or in the name of their relatives. In the present case, there is no evidence on record to suggest that Appellants No. 01 sought special permission from the principal to alienate the suit land in favor of his sons and the sons of his brother. In the absence of such permission, the legality and propriety of the alleged sale deed in favor of these individuals is highly doubtful.
10. Thus, it has been consistently ruled that the attorney would require prior permission, approval and consent of the principal when he wants to transfer the property in the name of his close relatives. In the case at hand, entire evidence was scrutinized by the trial court and appellate court but not even an iota of evidence is available on record to demonstrate receipt of any such prior permission.
7. In the present case, no cogent or reliable evidence has been produced to establish that the respondent had granted express consent, much less prior approval, for the transfer of the suit property in favour of the sons of the attorney. The alleged payment through cheque, made by the appellant (brother) in favour of the respondent (sister), is not conclusive proof of a valid sale transaction, particularly in the absence of any agreement to sell or other independent corroborative evidence reflecting a lawful bargain. Mere production of such payment, without establishing the underlying transaction, does not satisfy the legal standard required to validate an alienation of immovable property.
8. In view of the above, the impugned transaction is clearly hit by the settled principles governing fiduciary obligations of an attorney and cannot be sustained. Consequently, this appeal fails and is hereby dismissed with no order as to the costs.
UN/J-5/SC Appeal dismissed.
1 2009 SCMR 114 - Muhammad Taj v. Arshad Mehmood and 3 others @ para 6 and 2016 SCMR 1781 - Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others @ para 7.