Mst. SHUMAL BEGUM vs Mst. GULZAR BEGUM and 3 others

1. ' SAEEDUZZAMAN SIDDIQUI, J.---The above appeals with the leave of this Court are directed against the judgment of a learned Judge in Chambers of the Peshawar High Court dated 8-6-1991. By the impugned judgment the learned Judge accepted the Civil Ravision Applications Nos. 225 and 226 of 1989 filed by respondent Nos. 1 and 2, set aside the judgment and decree passed by the first appellate Court in favour of appellant and restored the judgment of the trial Court dismissing the suits for declaration instituted by the appellant against respondents 1, 2 and 4.

2. ' The brief facts of the case are that father of appellant and respondents Nos.1 and 3 and husband of respondent No,4, Said Nawab, owned landed property in Villages Maneri Bala and Maneri Payan in tehsil Sawabi. The said Said Nawab executed a general power of attorney in favour of his son-in- law, Said Ghawas (respondent No,2), who was married to one of his daughter Mst. Gulzar Begum (respondent No,1). The general power of attorney executed by the late Said Nawab in favour of Said Ghawas amongst .Others included the power to sell and transfer the landed properties of Said Nawab situated in Villages Maneri Bala and Maneri Payan said Ghawas on the strength of the power of attorney executed in his favour by Said Nawab gified the properties belonging to Said Nawab, situated in Villages Maneri Bala and Maneri Payan, in favour of his wife Gulzar Begum, a few months before the death of Said Nawab. After the death of Said Nawab, her two daughters, Mst.

3. Shumal Begum and Kimkhwab Begum filed two Civil Suits before the Civil Judge, Sawabi, to challenge the attestation of Mutations Nos. 22833 dated 24-10-1982 and 2985 dated 23-10-1992 in favour of Mst. Gulzar Begum on the basis of gifts made by Said Ghawas acting as the attorney of Said Nawab. The trial Court dismissed both the suits on contest by two separate judgments but on appeals filed by the appellants the first appellate Court reversed the judgment and decree of the trial Court and decreed both the suits. However, the Civil Revision Applications filed by respondents 1 and 2 before the High Court against the judgment and decree of First Appellate Court succeeded and the judgment and decree of trial Court was restored by the impugned judgment. Leave was granted against the judgment of High Court in the above appeals to consider the following contentions:- "(a) Whether the High Court in its limited jurisdiction should have A interfered, on questions of fact, with the appellant judgment in this case;

(b) Whether an attorney could have exercised the right and power of the owner to make a mental decision for purpose of making a gift as against forms of alienations like sale without the donor himself having taken a mental conscious decision of making a gift, particularly, on the basis of alleged power of attorney which allegedly gave power to alienate only through a general power of attorney;

(c) Whether law laid down by this Court regarding transfer by attorneys in favour of next of kin without the specified approval from the principal has been followed in this case. See Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs (PLD 1985 SC 341)."

4. ' The learned counsel for the appellant contended before us that the learned Judge in Chambers was not competent to reverse the finding of act arrived at by the first appellate Court in its revisional jurisdiction as the finding of fact recorded by the first appellate Court was neither perverse nor based on misreading of evidence nor it was arrived at by ignoring any valid piece of evidence on record. It is also contented by the learned counsel that the power of attorney executed by deceased Said Nawab in favour of respondent No,2 did not authorise him to make a gift of his property in favour of his wife. It is contended that a gift is a personal act of the donor which cannot be performed by another person acting on his behalf. The learned counsel for the respondent, on the other hand, supported the finding of the High Court and contended that while hearing the revision application, the High Court was fully competent to examine the finding of fact recorded by the trial Court in just position with the findings arrived at by the first appellate Court and if the High Court was of the view that the findings arrived at by the trial Court were more in accord with the evidence on record, as compared to the finding of first appellate Court, the High Court in exercise of its revisional powers could restore the finding of the trial Court. After hearing the learned counsel for the parties, we are of the view that both that appeals must succeed.

5. The revisional jurisdiction under section 115, C.P.C. Exercised by the High Court is attracted only in cases where the lower Court has exercised a jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore, quite clear that the High Court while exercising revisional jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction vested in the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence or non-consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction. The fact that the High Court on reappraisal of the evidence, finds that the finding of fact recorded by the trial Court is preferable to the finding of fact recorded by the first appellant Court cannot justify interference with such finding in exercise of revisional jurisdiction by the High Court. The first appellate Court is the final Court in so far the findings of facts are concerned and such finding can only be disturbed in revisional jurisdiction by the High Court if it is arrived at by the first appellate Court either by misreading the evidence or through perverse appreciation of evidence on record or due to non-consideration of legal evidence on record. From the abvoe-qucted passage of the impugned judgment, it is quite clear that the findings of facts recorded by the first appellate Court was reversed by the High Court on reappraisal of the evidence and by substituting its own opinion for that of the first appellate Court without referring to any defect in the process of reasoning adopted by the first appellate Court, This, in our opinion, was not permissible within the scope of the revisional jurisdiction exercised by the High Court in the case. Apart from it, the learned Judge in Chambers in the impugned judgment observed that the evidence on record did not show that Said Nawab, the executant of power of attorney, was ailing or was on death bed at the time he executed the power of attorney. This conclusion of the learned Judge is contrary to the evidence on record as Said Ghawas, respondent No,2; in his cross- examination, stated as follows:- "At the time of execution of the deed he was not doing any work but was ill, previously he was in police and was on pension. About 7/8 days before the execution of deed he had fallen ill and he appointed me to prosecute litigation on its behalf. That litigation had been started by himself.

6. About 50/60 Kanals is the subject-matter of present suit. After his illness the possession of property to the extent of 50/60 Kanals was delivered to me, and I am in possession of the above mentioned property till the execution of deed uptil now. Similarly I was in possession of this property prior to execution of the deed because he was living with me and I used to spend on his treatment."

7. ' The above statement in the cross-examination by respondent No,2 clearly shows the object and purpose of execution of power of attorney by the late Said Nawab in favour of respondent No,2. We have gone through the power of attorney executed by Said Nawab in favour of respondent No,2 and are unable to discover any specific clause in the said power of attorney which authorised him to make gift of the property on behalf of the donor (Said Nawab). It is to be kept in view that a gift in the present case was allegedly leased on consideration of love and affection of Said Nawab for his daughter Mst. Gulzar Begum. Love and affection cannot be expressed by any attorney on behalf of the donor. The sentiments which were the consideration for gift in the present suit must be established to have come from the donor. Gifts are voluntarily and gratuitous in the present suit transfer from the donor to the donees. The essential of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee where gift. Is made thiough a person authorised by the donor, the intention of donor to make the gift must be established in clear terms. In such a case the authority given by the donor in favour of another person to make a gift of his property besides containing the power to make the gift must also clearly specify the property and the donee in the case. In the case before us gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis of the power of attorney executed in his favour by Said Nawab cannot be upheld for two reasons Firstly, the power of attorney executed in favour of respondent No,2 by the deceased Said Nawab did not contain any specific provision authorising him to make a gift of his properties and secondly, even if we assume that such power was given, there is no indication in the said document that the donor intended to make gift of all his properties in favour of the wife of respondent No,2 (the donor). This Court in the case of Fida Muhammad v. Muhammad Khan PLD 1985 SC 341 while taking note of widespread misuse of power of attorney, observed as follows:- "It is wrong to assume that every "general" power of attorney on account of the said description means and includes the powers 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 deduceable 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.

8. ' 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. 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 on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at option."

9. ' In view of the above-stated legal position we are of the view that the alienation of the property by respondent No,2 in favour of his wife Mst. Gulzar Begum on the basis of power of attorney executed by late Said Nawab in his favour was not sustainable in law. The High Court, therefore, both on point of jurisdiction as well as on facts was not justified in interfering with the order of the first appellate Court. The appeals are, accordingly, allowed. The order of the learned Judge in Chambers is set aside and the judgment and decree passed by the first appellate Court is restored. In the circumstances of the case, we will make no order as to costs.