AKHTAR HUSSAIN And Others vs SETTLEMENT COMMISSIONER And Other
This petition for leave to appeal challenges a judgment of the Lahore High Court, which dismissed a constitutional petition concerning the transfer of evacuee property. The core legal question was whether a transfer of property executed by an attorney, acting under a power-of-attorney, could be challenged by the principal after the transaction had been approved by the Settlement Department and the principal had allegedly received consideration. The Supreme Court held that the petition must be dismissed. The Court observed that the power-of-attorney explicitly authorized the agent to sell or transfer the property, and the transaction was duly approved by the Deputy Settlement Commissioner. Furthermore, the Court noted that the High Court had correctly identified a factual controversy regarding the principal's own receipt of funds, evidenced by a thumb-impression that appeared genuine upon comparison. Consequently, the Court affirmed that factual disputes of this nature, once adjudicated by the High Court, cannot be reopened in appeal, particularly where the agent acted within the scope of authority and the transaction was finalized by the relevant settlement authorities.
- Can a principal challenge a property transfer executed by an attorney when the power-of-attorney explicitly authorized the agent to sell or transfer the property?
- Is a factual finding by the High Court regarding the genuineness of a thumb-impression subject to re-examination in a petition for leave to appeal before the Supreme Court?
- Does the approval of a property transfer by a Deputy Settlement Commissioner preclude a subsequent challenge by the principal based on allegations of fraud by the agent?
ORDER
1. MUHAMMAD AFZAL ZULLAH, J,- This petition calls in question judgment dated 5-2-1980 of the Lahore High Court; whereby a Constitutional petition arising out of a settlement case, filed by Barkat Ali predecessor-in-interest of the petitioners was dismissed.
2. The petitioner was the transferee of the unit in dispute of evacuee property. He executed a power- of-attorney on 4-3-1970 in favour of Mirza Muhammad Masud respondent No.5 with specific stipulation to the effect that Mirza Muhammad Masud could get the transfer documents in favour of the petitioner completed in the Settlement Department and also that after doing the needful in this behalf the property in dispute could be sold, mortgaged or exchanged by him (the attorney).
3. Through an agreement of association dated 4-4-1970 Mirza Muhammad Masud the attorney transferred the property in favour of Abrar Hussain respondent No.4. It was duly approved by a Deputy Settlement Commissioner on 13-4-1370. Barkat Ali cancelled the power-of-attorney on 5-5- 1970 and later on unsuccessfully challenged the transfer through association in favour of Abrar Hussain. His successors-in-interest have now sought leave to appeal.
4. The execution of the power-of-attorney dated 4-3-1970 is not denied. The plea raised on behalf of the petitioners is that the agent acted fraudulently and also in excess of authority.
5. After hearing the learned counsel we feel that the power-of-- attorney having been acted upon through an association which was approved by a Deputy Settlement Commissioner, it was to late for Barkat Ali to challenge the transfer in favour of Abrar Hussain. A learned Single Judge who examined the record in the High Court found that the thumb-impression on a receipt of Rs.6.000 in connection with the transaction in dispute, executed by Barkat Ali himself "ex facie" appeared to have been thumb-marked by Barkat Ali. This observation was made after comparing the disputed thumb-impression with the admitted thumb-impressions. In these circumstances the case relates to a factual controversy, which cannot now be permitted to be raised. This petition accordingly is dismissed.