FIDA MUHAMMAD vs Pir MUHAMMAD KHAN (DECEASED) THROUGH LEGAL HEIRS AND OTHERS

1. ' MUHAMMAD AFZAL ZULLAH, J. -These two appeals through leave of this Court are directed against judgment dated 28-6-1980 of the Peshawar High Court dismissing Fida Muhammad appellant's appeals from acceptance by an Additional District Judge of objections under section 30 of Land Acquisition Act (No, 1) of 1894 of Pir Muhammad Khan (deceased) respondent.

2. ' Pir Muhammad had sought reference to the Court on the ground that although he was the real owner of the property under acquisition, the compensation had wrongly been entered in the name of Fida Muhammad appellant. The latter's case however was that he was the recorded owner on the basis of sale made by Qalandar Khan respondent his own father, as Attorney of Pir Muhammad, the admitted original owner.

3. ' The learned trial Judge in a very elaborate judgment after consideration of the material evidence came to the conclusion that Qalandar though having been constituted as Attorney for other purpose had not been authorised by Pir Muhammad to sell his land. It was also held that the transactions between the father and the son were nothing but fraud played on the real owner, Pir Muhammad who also happened to be Qalandar Khan's principal. Accordingly the reference was allowed and the compensation was ordered to be paid to Pir Muhammad.

4. ' Fida Muhammad the present appellant then filed two appeals in the High Court with deficient court-fee, which were dismissed mainly on the point of court-fee. However, in a short and weighty part of the appellate judgment the appeals were also found to be without any force on merits, as follows : "I have found no case on merits either. Qalandar Khan, father of the appellant, had been conducting the case of the land on behalf of Pir Muhammad etc. Vendors. In the meanwhile the acquisition proceedings started in the year 1968. Pir Muhammad was out of the country. Qalandar Khan transferred the land in the name of his son, the appellant, by instituting a Civil Suit No, 38/1 of 1968 in the Court of Civil Judge, Haripur. On the one hand he filed the and on the other confessed judgment therein. This was apparently done to deprive the objector of his right to receive compensation. His plea that he had incurred expenses in the aforementioned litigation and in lieu thereof was empowered to transfer the land in the name of his son has not been accepted by the learned Court below and for good reasons. The power-of-attorney in his favour (Exh. P. W. 2/6) authorised him to defend all actions but not to sell the land. Qalandar Khan has also failed to prove that expense, if any, he had incurred in litigation. He himself has not appeared in the witness-box so much so that he was present outside the Court with appellant on the day his attorney Sher Bahadur was being .Subjected to cross-examination. And to his dismay his attorney admitted that in the days when litigation was going on he (the attorney) was at Karachi. Appellant himself was also employed at Karachi and worked there from 1961 to 1968. The job he held was temporary and his monthly wages did not exceed Rs, 300 how could he have paid the alleged sale consideration of Rs, 29,000 to Qalandar Khan when his total income during the entire period assuming that he had not spent even a penny did not exceed Rs, 25,000 thus he was possessed of no means to purchase and the so-called transaction smacks of collusion and a conspiracy to grip compensation. In this view of the matter, therefore, there is no merit in the two appeals and both are dismissed with costs."

5. ' Leave to appeal was granted in both the cases to examine the question of court-fee as also the effect of the afore-referred treatment of merits by the High Court.

6. The appeals came up for hearing on 5-5-1985. Learned counsel offered to pay the court-fee as determined by the High Court ; whereupon the following order was passed by this Court: "Learned counsel for the appellant while maintaining that the view taken by the High Court on the question of amount of court-fee leviable on the appeals before the High Court was not in accordance with law, however, stated that if the High Court would have acted under Order VII, rule 11, C. P. C. As held in Siddique Khan v. Abdul Shakoor Khan PLD 1984 SC 289 the appellant would have complied with the direction and supplied the deficiency found by the High Court. He also expressed desire to make up the deficiency now. As held in Siddique Khan's case the provisions of Order VII, rule 11, C. P. C. Also apply to the appeals. The High Court could and should have directed the appellant to supply the deficiency. This error can be corrected by this Court. We accordingly direct the appellant to furnish the deficiency of court-fee in the High Court by 25th May, 1985. The Office of the High Court shall entertain court-fee stamps and the application made in that behalf.

7. These papers including the court-fee stamps together with the endorsement by the Registrar of the High Court regarding the amount of court-fee, shall be transmitted to this Court within two weeks after 25th May, 1985. If the appellant fails to pay the court-fee as directed by 25th May, 1985 the appeals shall deemed to have been dismissed. These appeals are kept pending for the time being and are fixed for hearing on merits on 15-6-1985 subject to compliance of afore-made direction regarding payment of deficient court-fee by 25-5-1985."

8. ' The appeals have come up for hearing on merits, of course, after the needful is claimed to have been done under the last quoted order.

9. ' Learned counsel for the appellant complained that the High Court recorded the findings on merits without hearing the parties on that aspect. The perusal of grounds of appeals and the tender of the impugned judgment on question of facts does not show that the learned Judge in the High Court was not aware of the issues and related questions involved in the merits of the case. We, however, afforded full opportunity to the learned counsel to argue on merits regarding the salient features thereof. The technical argument regarding lack of hearing is thus of no assistance to the appellant.

10. ' Learned counsel argued on merits of the case; both, with a view to show that the relevant Power- of-Attorney did contain, the authority to Qalandar Khan by Pir Muhammad to sell his land; as also, to dilute the concurrent findings of two Courts that appellant had tried to grab Pir Muhammad's property by committing fraud in collusion with his father Qalandar Khan.

11. ' With the help of the learned counsel we perused the Power-of-Attorney. The paragraphs pointed out and relied upon by him in our view do not at all support the argument that Pir Muhammad had authorised Qalandar Khan to sell his land. He also relied on some letters exchanged between the two to show: firstly, that Pir Muhammad owed large sums of money to Qalandar Khan; and secondly, that he had asked him to recover the same by sale of his property. But, the contents of letters also do not give any support to appellants plea in so far as the permission to sell the land is concerned.

12. ' The detailed discussion and the findings of the trial Court as upheld by the High Court are not such so as to merit our interference. These appeals accordingly merit dismissal.

13. ' Before parting with the judgment, however, it is essential to take note of a widespread misuse of Power-of-Attorney in cases like the present one.

14. 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 c 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.

15. ' 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 interprotstion) 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. The following two examples given under section 215 of the Contract Act are illustrative of the intention of the law:-

(a) A directs B to sell A's estate. B buys the estate for himself in the name of C. A, on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts, or that the sale has been disadvantageous to him.

(b) A directs B to sell A's estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A. B informs A that he wishes to buy the estate for himself, but conceals the discovery of the mine. A allows B to buy, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option.

16. ' With the afore noted precautions about the Powers-of-Attorneys and the conduct of the agents when alienating the property of the principal, these two appeals are dismissed with costs.