ANWAR BEG vs RIAZ HUSSAIN AND 3 Other
This matter concerns a dispute over the validity of a gift deed executed by an attorney on behalf of a donor, Allah Ditta Qureshi, in favor of the attorney's wife. The respondents challenged the gift, alleging the power of attorney was a forgery and the donor was incapacitated, further contending that possession was never delivered. The trial court initially ruled the suit was within the limitation period under Article 120 of the Limitation Act 1908. The Lahore High Court set aside this finding, remanding the case to determine if the power of attorney was genuine and if possession was delivered, noting that the applicable limitation period depends on these factual findings—specifically, whether the suit falls under Article 120 or Article 91 of the Limitation Act 1908. The petitioner sought leave to appeal, arguing the suit was time-barred. The Supreme Court dismissed the petition, holding that the question of limitation cannot be determined without first establishing the factual basis regarding the execution of the power of attorney and the delivery of possession.
- Can the question of limitation be determined before establishing the factual validity of the power of attorney and delivery of possession?
- Does a suit challenging a gift deed fall under Article 120 or Article 91 of the Limitation Act 1908 depending on the proof of possession?
- Is it appropriate for a High Court to remand a case for trial on merits when the issue of limitation is inextricably linked to disputed facts?
- Article 120, Limitation Act 1908
- Article 91, Limitation Act 1908
1. HAMOODUR RAHMAN, C. J.-The dispute in this case relates to certain properties which originally belonged to one Allah Ditta Qureshi, the father of respondent No. 3 and the father-in-law of the petitioner.
2. It appears that the petitioner held a power of attorney from Allah Ditta for the management of his property; but he, purporting to exercising his powers as such Attorney, gifted away certain properties of the said Allah Ditta consisting of shops, houses and agricultural lands situated in Gujranwala to his wife Mst. Iqbal Begum. The deed of gift which was executed on 5-2-60 was duly registered and it was claimed that possession of the gifted property had already been delivered to the donee, inasmuch as the tenants who were occupying part of the property attorned to Mst. Iqbal Begum and started paying rents to her.
3. A mutation in pursuance of the gift-deed was also entered in the revenue records on the 24th of May 1960 at a jalsa-e-aam at which only the petitioner Anwar Beg appeared and was identified by the Lambardar as the attorney of the donor.
4. Allah Ditta died on the 1st of December 1962 and five years there--after, on the 10th January 1967 the respondents 1 and 2 herein filed a suit for a declaration that the Power of Attorney was a forgery and that the gift was illegal and void, as Allah Ditta who was 72 years' old suffered from paralysis and had become insane and could not make any valid transaction. In any event, the alleged gift was incomplete as possession was never delivered. The suit was contested by Mst. Lqbal Begum and the present petitioner.
5. The trial Court tried some of the issues as preliminary issues and held that the suit, being governed by Article 120 of the Limitation Act, was within time and that it was not necessary for the plaintiffs in the suit to also pray for the cancellation of the deed of gift.
6. The defendants 1 and 2 went up in revision to the Lahore High Court from this order, but a learned Single Judge of the said High Court accepted the revision in part, set aside the finding of the trial Court on issue No. 2, namely whether the suit was within limitation, and sent the case back to the trial Court to decide this issue alongwith other issues on merit, observing that if after taking evidence "the Court comes to the conclusion that either the power of attorney was not executed by Allah Ditta and/or the possession of the property in dispute was never delivered to the alleged donee, the suit would be within limitation as it would fall under Article 120 of the Limitation Act. If these allegations are not proved and it is found necessary that the suit should have been for setting aside the gift deed, the matter would be governed by Article 91 and the suit would fail."
7. The petitioner alone has come up for special leave to appeal and he has made his wife a respondent in this petition. It is contended on his behalf that the High Court should have held that the suit was barred by time and was incompetent in its present form on the evidence already on the record, instead of remanding the case to the trial Court to decide the question of limitation along with other issues on merits.
8. No legitimate exception can be taken to the proposition of law enunciated in the passage quoted earlier. It is, therefore, apparent from this that evidence as regards the execution of the power of attorney and delivery of possession of the property to the alleged donee must be taken before the question of limitation can be decided.
9. There is no substance, therefore, in anyone of the contentions advanced on behalf of the petitioner.
10. This petition is accordingly dismissed.