Haji MITHA KHAN vs Mst. NAFEES BEGUM and 2 others

' Mst. Nafees Begum plaintiff in Original Suit 150/1 claims to be the owner of plot C/3502 in D.I. Khan.

It was first transferred by her general attorney (as well as father-in-law) Sardar Muhammad Akbar Khan, defendant 2 in favour of her real brother Qutbuddin son of Haq Nawaz Khan (defendants 3) who sold it in favour of Haji Mitha Khan son of Haji Azam Khan {defendant 1). All these transactions are based upon general powers of attorney, Waseeqa' 10. `Bahi' 4, `Jild' 9 registered on 26-7-1969 purporting to have been executed on behalf of Mst. Nafees Begum the plaintiff-respondent in favour of her maternal uncle-cum-father-in-law Sardar Muhammad Akbar Khan. All subsequent transactions based on the aforesaid power of attorney are duly executed through registered deeds. Lady sued all the aforesaid persons claiming title over the plot in dispute and challenging the power of attorney and all subsequent deeds to be forged, fictitious, fraudulent and allegedly appear to be on behalf of a Pardahnasheen' lady. The Senior Civil Judge, Tank Camp D.I.Khan and the District Judge, D.I. Khan vide their concurrent findings dated 10-2-1994 and 12-6-1994 granted the decree prayed for in favour of the lady and hence this revision.

2. It may be pointed out at this stage that the lady in the alternative had pre-empted the transactions as well which was dismissed and even not agitated before this Court.

3. It is by now a settled principle of law that a lady does not become Pardahnasheen' merely because she observes `Pardah' or is an illiterate woman. There can be occasions when a Pardah' observing illiterate lady is not a Pardahnasheen' lady while non `pardah' observing educated happens to be a Pardanasheen' lady. It all depends upon how they happened to confront their domestic, social and business affairs. This essentially is a question of fact which is bound to be proved through evidence and before that evidence is attempted to be produced, it is essentially to be alleged or claimed in the pleadings, as normally a question of fact would do. Mst. Nafees Begum in the instant case had never claimed to be a Pardahnasheen' lady in her plaint and thus I agree with Mr. Muhammad Iqbal Kundi, Advocate that the plaintiff-respondent does not become a Pardahnasheen' lady merely because she happens to be a woman.

4. So far as the execution of general power of attorney by the lady is concerned the most important factum that requires to be noticed is that the general attorney is the real father-in-law of the lady while the property was transferred by him initially in favour of the one (defendant 2) who is the real brother of the respondent-plaintiff. The endorsement of the Sub-Registrar would reveal that he had practically gone to the house of the lady where she had appeared personally, duly identified by two persons one of whom is again the same real brother of the lady. The matter does not end here.

The real husband of Mst. Nafees Begum i,e, Saadullah Khan was present in the meeting and it was he who had presented the deed before the Sub-Registrar. Above all, Muhammad Akbar Khan was not the only general attorney of the lady but her own husband Saadullah Khan was also the general attorney. The lady while claiming the power of attorney to be forged one has not come to the Court with clean hand because she never impleaded her own husband Saadullah Khan as defendant. Through the plaint in hand, not only the past transactions were required to be declared void but the future actions were also to be checked for which the impleadment of Saadullah Khan was important if the deed was to be nullified for future in toto. Saadullah Khan does appear to be defendant 4 but was impleaded as the only legal heir when Muhammad Akbar Khan died during the pendency of the suit. I hold that the general power of attorney is not bogus and also that Mst.

Nafees Begum was not a Pardahnasheen' lady.

5. There is another important aspect of the case that really matters. The most important point to be noted is that the general power of attorney was executed and registered on 26-7-1969 whereas the plot C-3502 happened to be owned by the lady through registered deed 99 dated 19-3-1975 which was so transferred to her through the above registered deed by her real brother Qutbuddin. How on earth could Muhammad Akbar Khan or Saadullah Khan act under the special power of attorney regarding a property which never was the subject-matter of the deed executed as far back in the year 1969 when Mst. Nafees Begum was never the owner of the plot.

6. The factum of creation of Agency by a Principal also entails a dominant idea of complete trust and hence each and every word of the deed requires to be strictly construed. This has always been the view held by the Superior Courts. The latest being that of our own High Court adopted in (PLD 1989 Peshawar 185-B). A power of attorney confers only those powers which are specifically described. In the instant case, the authority in the deed was with regard to "la Jaidad Mazkoor" and that "Jaidad Mazkoor", (mentioned) in he deeds was landed and residential which was then in existence, "Maujood" at D.I. Khan. Obviously, the present plot C-3502 was never in existence as ownership of the lady on 26-7-1969 and hence Muhammad Akbar Khan (defendant 2) or anybody else had no authority to alienate the same.

7. As a power of attorney requires to be strictly construed and as each and every word thereof requires to be given real' meaning thereto, therefore, no agent has the authority to deal with a property which happens to be acquired by the principal subsequent to the execution of the power of attorney unless either that specific property is mentioned in the deed or, to deal with the property to be acquired in future, is generally authorised in clear and distinct terms.

8. Viewed in the light of this strict principle of interpretation the lady respondent Mst. Nafees Begum had given no authority to any one to deal with plot C-3502 at D.I. Khan. She is not bound by any transaction in dispute and hence, on this score, she was rightly granted the decree prayed for. Both the Courts below have given a legal finding that does not require to be interfered with. The revision petition is hereby dismissed with no order as to costs.