Haji FAQIR MUHAMMAD And Others vs PIR MUHAMMAD And Another

MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for leave to appeal is directed against the order of Peshawar High Court, Peshawar, dated 27-2-1996 by which the civil revision filed by the petitioners against the judgment and the decree of the learned Additional District Judge, Kohat, was dismissed.

2. Briefly the relevant facts are these: On 16-6-1960, Pir Muhammad respondent No. l executed a general power of attorney in favour of his son Faqir Muhammad petitioner No. 1. This power of attorney duly registered on 20-6-1990, inter alia, purportedly empowered petitioner No. l to mortgage, sell, exchange and transfer by way of gift the landed property of respondent No. l situate in the revenue estate of village Jangle Khel, Tehsil and District Kohat. Taking advantage of the aforesaid power, petitioner No. l by means of Mutation No.2831 attested on 11-5-1991, purported to gift the disputed land in favour of his own to minor sons, namely, Muhammad Shifa and Muhammad Idrees. On this respondent No. 1, on 25-5-1991, brought the suit, out of which this petition has arisen, against the three petitioners and Tehsildar, Jangle Khel, in the Civil Court at Kohat seeking annulment of the impugned gift mutation, inter alia, on the grounds that he had not gifted the land to petitioners Nos.2 and 3; that the impugned power of attorney was forged, fictitious, and fraudulent and; that he had revoked the power of attorney in favour of petitioner No.1 before the attestation of the impugned gift mutation. The suit was contested by petitioner No.1 in person and as guardian ad litem of petitioners Nos.2 and 3 and denied these allegations. It was, inter alia, averred that in pursuance of direction of respondent No. l he had gifted the land to his sons. The trial Judge framed a number of issues arising out of the pleadings of the parties.

3. After recording the evidence the trial Court, found that by the impugned power of attorney respondent No.1 had duly authorised defendant No.1 (petitioner No. l to make gift and that on the basis thereof he had correctly made a gift (of the disputed land) in favour of defendants Nos.2 and 3 (petitioners Nos.2 and 3) and that by Gift Mutation No.2831 the land had been validly transferred to petitioners Nos.2 and 3. In consequence respondent No. l was non-suited. This order was impugned in appeal by the first respondent before the learned Additional District Judge, Kohat, who after appraising the evidence of the parties, reached the conclusion that the first respondent had been deceived by his son, the first petitioner, in getting executed the general power of attorney and then gifted the land to his sons without his knowledge or consent and, therefore, the impugned gift mutation was liable to be struck down. Consequently the appeal was accepted, the impugned judgment of the trial Court non-suiting the first respondent was set aside and his suit was decreed.

4. Feeling dissatisfied, the petitioners filed petition in the High Court to have the appellate judgment and the decree revised. The learned Judge in Chambers of the High Court in a well-reasoned judgment in revision after consideration of the material evidence reached the conclusion that the first petitioner had not been empowered by virtue of the general power of attorney by the first respondent to transfer his land by gift to the latter's sons. On the authority of Fida Muhammad v.

Muhammad Khan (PLD 1985 SC 341) the learned Judge held that the transaction between the first petitioner and his minor sons was nothing but fraud played on the real owner, Pir Muhammad, the first respondent. The reasoning of the learned Single Judge to uphold the findings of Appellate Court are as follows:-- "The holder of a general power of attorney is not equipped with power to do anything under the sun with the property which is given in his agency by the principal because an attorney dervies the authority with regard to such property under the provisions of law and, therefore, he is required always to at within the four corners of law. It is the salutary principle of law that an agent shall always at for the benefit of his principal and his entire conduct and working shall be governed by this principle. Therefore, it is better to saddle a holder of a general power of attorney with regard to immovable property, notwithstanding an authority to alienate the property of his principal, with certain responsibilities to his principal. The first and foremost duty of the agent is that he will manage the property to the benefit of the principal and not to his own benefit. Secondly, if the agent deal on his own account with the property under agency, that is, if he purchases it himself for his own benefit, he in his own interest should obtain the consent of the principal in this behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. The case of the petitioner, when examined on the touchstone of the aforesaid legal principle, was found to be violative of the law enunciated in the foregoing lines."

5. Haji Muhammad Zahir Shah, learned Advocate Supreme Court, in support of this petition contended that the first petitioner who had been duly authorised by the first respondent by a general registered power to alienate the disputed land, inter alia, by way of gift had in pursuance of that power, rightly transferred it as of gift to the second and third petitioners; that there was nothing wrong with the impugned disposition of the land and, therefore, the appellate judgment and the decree setting aside the judgment and the decree of the trial Court which had been maintained by the impugned revisional order were not sustainable in law.

6. After perusal of the record and the to impugned judgments especially that of the High Court, we have not been impressed by the contentions raised by Haji M. Zahir Shah.

7. The conclusion arrived at by the learned Judge in Chambers of the High Court lends ample support from the law laid down by this Court in Fida Muhammad v. Pir Muhammad Khan (deceased) though Legal Heirs and others (PLD 1985 SC 341), and (2) Mst. Shumal Begum v. Mst.

Gulzar Begum and 3 others (1994 SCM R 818). In the case of Fida Muhammad (supra) which was followed in the latter case of Mst. Shumal Begum (supra) notwithstanding an authority to alienate principal's property, this Court has held that the Attorney is not absolved from his to essential obligations, amongst other:-- "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 communication 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 to 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 by the estate for himself, but conceals the discovery of the mine. A allows B to by, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the the he bought the estate, may either repudiate or adopt the sale at his option.

In the precedent of Mst. Shumal Begum (1994 SCM R 818) Said Nawab, father of appellant and respondents Nos. l and 3, and husband of respondent No.4 executed a general power of attorney in favour of Said Ghawas (respondent No.2) his son-in-law who was married to one of former's daughter, namely, Mst. Gulzar Begum (respondent No.1). The general power of attorney, inter alia, included power to sell and transfer the landed properties of Said Nawab situated in Villages Maneri Bala and Aneri Payan. Said Ghawas on the basis of the general power of attorney executed by Nawab Khan gifted the lands in favour of his wife Mst. Gulzar Begum a few months before the death of Said Nawab. After the death of Said Nawab, her other to daughters Mst. Shumal Begum and Kimkhwab Begum filed to civil suits to challenge the attestation of Mutations Nos.22833 dated 24- 10-1982 and 2985 dated 23-10-1992 acting as attorney of Said Nawab. The trial Judge dismissed both the suits on contest, but on appeal filed by the appellants-plaintiffs, the Appellate Court reversed the judgment and the decree of the trial Court and decreed both the suits. However, the Civil Revision filed by the respondents Nos.1 and 2 before the High Court against the appellate judgment and the decree succeeded and the judgment and the decree of the trial Court was restored by the High Court. Leave to appeal was granted by this Court in both the cases to examine, inter alia, the validity of the gift mutations got attested by the attorney of Said Nawab in favour of his wife and daughter of the former. This Court, apart from reiterating the law laid down in the case of Fida Muhammad (supra) had further elaborated it in the following paragraph:-- "It is to be kept in view that a gift in the present case was allegedly based 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 e property by the donor in favour of the donee where gift, is made through 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 cases 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 to 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)."

8. This being so the law propounded by this Court on the scope of the holder of a general power of attorney in alienating the property of his principal in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself, he should in his own interest obtain the consent of the principal failing which the principal is at liberty to repudiate the transaction.

9. In view of the principles enunciated above, the conclusions arrived at by the learned appellate Court and the learned High Court are fully sustainable on record. The petition has no merit and is accordingly dismisses.