Farhat Iqbal (deceased) Versus Javed Iqbal
This civil revision challenged an appellate judgment that dismissed the petitioner's suit for declaration regarding the unauthorized transfer of her ancestral property. The core legal question was whether an attorney, acting under a General Power of Attorney (GPA), could lawfully transfer the principal's property to his own sons without express consent, and whether prior financial transactions between the parties constituted valid sale consideration. The Lahore High Court held that the transfer was unlawful. The Court found that the respondents failed to prove the alleged payments were sale consideration for the suit property. Furthermore, the Court established that an attorney requires the principal's prior permission, approval, and consent when transferring property to his own close relatives, regardless of general powers granted in the GPA. The appellate court’s finding of an implied understanding was deemed a gross misreading of evidence. Consequently, the Court allowed the revision, set aside the appellate judgment, and restored the trial court's decree in favor of the petitioner, affirming that such self-dealing by an attorney without express authorization is void.
- Can an attorney acting under a General Power of Attorney transfer the principal's property to his own close relatives without express permission?
- Do financial transactions between a principal and an attorney, unrelated to the property, constitute valid sale consideration for the transfer of the principal's property?
- Does the failure to produce two independent witnesses for a receipt of payment violate the evidentiary requirements of the Qanun-e-Shahadat Order 1984?
- Article 17, Qanun-e-Shahadat Order 1984
- Article 79, Qanun-e-Shahadat Order 1984
Abid Hussain Chattha, J .--- This Revision Petition is directed against the impugned Judgment and Decree dated 08.05.2015 passed by Additional District Judge, Chishtian, District Bahawalnagar, whereby, Judgment and Decree dated 18.11.2014 passed by Civil Judge, Chishtian, District Bahawalnagar was set aside and in consequence thereof, suit of the Petitioner who died during the pendency of this Civil Revision and is now represented through her legal heirs was dismissed.
2. The brief facts of this case are that the Petitioner instituted a suit for declaration averring therein that she executed General Power of Attorney dated 24.09.2005 (the GPA ) in favour of her real brother / Respondent No. 1 being parda nashin lady to effectively look after her share in ancestral suit property fully described in the plaint but upon discovering ulterior designs of her brother to take over her other immoveable properties in Tehsil Chishtian through false litigation, she cancelled the GPA on 13.04.2009. Later, when she wanted to dispose of the suit property, she came to know that her brother had in fact already transferred the suit property in the name of his real sons / Respondents Nos. 2 and 3 through registered sale deed dated 30.01.2006 followed by mutation No. 15725 dated 27.06.2006 which is unlawful and liable to be cancelled being ineffective qua her rights. The Petitioner emphatically asserted that even if it is assumed that the suit property was transferred by Respondent No. 1 to his sons during the subsistence of valid GPA, the same is a sham and void transaction being without consideration and her express consent which was mandatory for Respondent No. 1 as her agent before transferring the suit property to his legal heirs. Hence, the impugned transfer by Respondent No. 1 in favour of his sons is liable to be set aside.
3. The Respondents contested the suit by raising a number of legal objections and on merits, contended that the suit property was lawfully transferred during subsistence of valid GPA which empowered Respondent No. 1 to transfer the suit property and no express permission of the Petitioner was required since the same was transferred against consideration based on market value. In this context, it was explained that the Petitioner took Rs. 200,000/- on one occasion followed by Rs. 1,000,000/- which were acknowledged in a previously drawn General Power of Attorney dated 25.10.2003, the original whereof was kept by the Petitioner with the promise that she would return it after getting the same registered from Lahore. However, later she raised further demand of Rs. 800,000/- on the pretext that the sale price is less than the market value of the suit property which was paid to her husband as her special attorney against receipt dated 09.09.2005. Thereafter, the GPA was registered since the previously executed General Power of Attorney dated 25.10.2003 could not be registered at Lahore as the suit property was located at Chishtian. It was further asserted that the Petitioner is not a parda nashin lady, rather, an educated person who frequently travels abroad and appears before different forums. As such, transfer of suit property by Respondent No. 1 in favour of his sons is lawful and unexceptional warranting dismissal of the suit.
4. The Trial Court framed issues arising out of the divergent pleadings and recorded pro and contra evidence of the parties. The suit was initially decreed on 21.12.2012 by the Trial Court which was remanded by Appellate Court with a direction to the Trial Court to hear both the parties and decide the matter afresh after giving findings on subsequently framed issues as per law. The Trial Court after appraising the evidence on record again decreed the suit in favour of the Petitioner. Nevertheless, appeal of the Respondents was accepted vide impugned Judgment and Decree and in consequence thereof, suit of the Petitioner was dismissed. Hence, this Civil Revision.
5. Arguments heard. Record perused.
6. The real point of determination before this Court is as to whether the suit property was lawfully transferred by Respondent No. 1 on the strength of the GPA in favour of his real sons after paying sale consideration to the Petitioner. It is established on record that suit property was transferred by Respondent No. 1 to his real sons during the subsistence of valid GPA which conferred all the necessary powers of transfer. However, the stance of the Respondents that no express permission of the Petitioner was required since the GPA was coupled with consideration could not be proved for multiple reasons. As per the version of the Respondents, the entire payment had been made before execution of the GPA but the contents of the GPA conspicuously did not mention any payment made to the Petitioner. Had it been so, the Petitioner would have executed direct sale deed in favour of the Respondents as no effective purpose could have been served by executing the GPA. The Respondents also could not establish that the alleged amounts paid to the Petitioner were against consideration settled with the Petitioner regarding the sale of the suit property. The document relied upon by them in this behalf i.e. General Power of Attorney dated 25.10.2003 (Ex.D-9) was never got registered by the Petitioner and even otherwise, it shows that the Petitioner had received Rs. 1,000,000/- as loan payable on 12.01.2004 and another amount of Rs. 200,000/- was to be returned on or before 31.01.2004. The said amounts could not be construed as sale consideration for the sale of the suit property. Similarly, receipt of payment dated 09.09.2005 (Ex.D-5) demonstrates that it was not executed by the Petitioner and even otherwise, it depicts that Rs. 800,000/- was paid by Respondent No. 1 to husband of the Petitioner with permission that in case, the Petitioner would not execute General Power of Attorney in his favour, she as well as her husband would be liable to pay Rs. 1,600,000/- to Respondent No. 1. Additionally, it lists Rs. 800,000/- as sale consideration which is diametrically against the pleadings which proclaims that Rs. 2,000,000/- was the sale consideration of the suit property. One of the witnesses of the said receipt, namely, Tahir Riaz appeared as DW-8 and stated that no amount was paid in his presence, whereas, the second witness was not produced, as such, contents of the said receipt were not proved by producing two independent witnesses as ordained by Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. Under these circumstances, even if some payments have been made by Respondent No. 1 to the Petitioner as his real sister, the same could not be termed as consideration of the suit property, especially, when the GPA on the basis of which the suit property was allegedly transferred explicitly does not acknowledge the payment of sale consideration. The alleged payments, if any, made by Respondent No. 1 to the Petitioner as sibling during periods of distress could only confer him a separate and independent right to recover the same in accordance with law but the same could not be unilaterally equated as consideration for the sale of the suit property by Respondent No. 1 giving him an unfettered right to transfer the suit property in favour of his sons. Although the scrutiny of evidence on record proves that valid GPA was executed by the Petitioner in favour of Respondent No. 1 with all the necessary powers to transfer the suit property and was not confined to merely look after the same on her behalf yet the suit property was transferred by Respondent No. 1 in favour of his real sons without the express permission of the Petitioner as principal which fact was unequivocally acknowledged by Respondent No. 1 in his cross-examination in the following words:-
Therefore, the transfer of the suit property by Respondent No. 1 in favour of his real sons without the express permission of the Petitioner was unlawful and based on misapplication of law. The Supreme Court of Pakistan in case titled, Allah Bakhsh deceased through L.Rs and others v. Muhammad Riaz and others (PLD 2025 SC 63) after analyzing the existing law on the subject held as under:-
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. The Appellate Court on the basis of extraneous circumstances has held that there was implied understanding between the Petitioner and Respondent No. 1 qua transfer of suit property as she had received an amount of Rs. 2,000,000/- from him on different occasions in the form of cash and cheques which had empowered Respondent No. 1 to retain the suit property. The conclusion drawn by the Appellate Court is based on gross misreading of evidence which led to reverse the sound and well-reasoned Judgment of Trial Court rendered after due appreciation of evidence and correct application of law.
8. The upshot of the above discussion is that the Petitioner successfully proved her suit for declaration which was rightly decreed by the Trial Court. Hence, the titled Civil Revision is allowed ; the impugned Judgment and Decree dated 08.05.2015 passed by the Appellate Court is set aside; and in consequence thereof, the Judgment and Decree dated 18.11.2014 of the Trial Court is upheld. No order as to costs. Since the main case has been decided, therefore, all the pending applications have become infructuous which are disposed of, accordingly.
MQ/F-23/L Revision allowed.