1. FAISAL ARAB, J.--- Suit No,544 of 1987 was filed by M.A. Razi Khan claiming to be one of the four co- owners of the suit property and seeking its partition. Suit No,696 of 1987 was filed by Mrs. Kishwar Iqbal claiming that she purchased the suit property from one of the co-owners M.A. Zaki Khan under sale agreement dated 20-9-1982 on the basis of power of attorney executed by the rest of the three co-owners in favour of M.A. Zaki Khan.
2. Vide order, dated 24-11-1998 both the suits were consolidated and it was ordered that common evidence be led in both the suits and Suit No,696 of 1987 filed by Mrs. Kishwar Iqbal be treated as the leading suit.
3. The facts of the case are that in 1967 Residential Property No,33-B, Block-6, P.E.C.H. Society, off Sharea Faisal, Karachi measuring 2000 square yards was gifted by its owner late M.A. Naqi Khan to his four sons i,e, M.A. Zaki Khan, M.A. Razi Khan, M.A. Rafi Khan and M.A. Ansari Khan in equal shares.
4. M.A. Naqi Khan died in 1976. In 1977 the four brothers executed two separate general power of attorney instruments on the same day. One was executed in favour of M.A. Zaki Khan, the eldest of them all, and the other was executed in favour of M.A. Razi Khan. On the strength of the, power of attorney in his favour M.A. Razi Khan rented out the house to Interhom in 1977 and had been distributing its rents amongst his brothers according to their shares.
5. Some time in 1982, Interhom Limited, the tenant of the house left and handed over its vacant possession back to the brothers. The brothers then decided to sell the house and distribute its sale proceeds among themselves. In this regard offers were invited through estate brokers and property was advertised for sale in the newspapers. In the same year i,e, 1982 M.A. Zaki Khan, the eldest Of all, went to live in the house along with his family. Later M.A. Ansari Khan also started living in the house, who lived there until his death on 28-10-1984 and after his death his widow Nusrat lived in the house until she remained in 1985. The third brother M.A. Rafi Khan though was living abroad, he too whenever came to Karachi used to live in the house. Only M.A. Razi Khan continued to live in his own separate house in which he was living at the time when the house was vacated by its tenant Interhom Limited in early 1982.
6. It is an admitted position that relations between the two attorneys i,e, M.A. Zaki Khan and M.A. Razi Khan had never been cordial. Each has shown mistrust against the other and has blamed the other for fraud and deceit.
7. In 1987 controversy between the ' parties surfaced when according to M.A. Razi Khan, M.A. Zaki Khan attempted to fraudulently sell the house. This led to filing of Suit No,544 of 1987 for partition in this Court by M.A. Razi Khan in September, 1987. On the other hand in November, 1987 Mrs. Kishwar Iqbal, who also happen to be sister4n-law of M.A. Zaki Khan filed Suit No,696 of 1987 i,e, two months after filing of the partition Suit No,544 of 1987. In her suit she claimed that she purchased the house from his brother-in-law i,e, M.A. Zaki Khan way back on 20-9-1982 for a total sale consideration of Rs,12,75,000 and in this regard she claimed that his brother-in-law executed sale agreement in her favour on the strength of general power of attorney given to him in 1977 by his three brothers. Thus, basing her claim on the sale agreement, dated 20-9-1982 Mrs. Kishwar in her Suit No,696 of 1987 Iqbal sought decree for specific performance of the contract.
8. M.A. Razi Khan and M.A. Rafi Khan in their written statements filed in Suit No,696 of 1987 have totally denied that any sale transaction has taken place on 20-9-1982 and termed Mrs. Kishwar Iqbal's claim to be a product of fraud and deceit between her and M.A. Zaki Khan. It is an admitted position that Mrs. Kishwar Iqbal, apart from being sister-in-law of M.A. Zaki Khan, is also mother-in- law of Zaki Khan's son. By the time of filing of the two suits M.A. Ansari Khan, the fourth brother was already dead as he died in 1984 and therefore, his version could not come on record. However, his widow Nusrat has supported the claim of M.A. Zaki Khan.
9. Both M.A. Razi Khan and M.A. Rafi Khan in their pleadings have claimed that on 4-8-1982 they along with their brother late M.A. Ansari Khan had cancelled the power of attorney given to M.A. Zaki Khan and therefore, M.A. Zaki Khan was not even competent to enter into any sale transaction. M.A. Razi Khan and M.A. Rafi Khan have further pleaded that in 1982 when it was decided by all brothers to sell the house and an offer of Rs,32,00,000 was received from a prospective buyer, M.A. Zaki Khan went to live in the house in order to prolong his occupation on the ground that the house would fetch Rs,40,00,000.
10. The case of M.A. Zaki Khan on the other hand was that all four brothers in 1982 decided to sell the house but the offer which was received from a prospective buyer was only Rs,12,00,000 and that his sister-in-law, Mrs. Kishwar Iqbal showed her interest to buy the house for Rs,12,75,000, and therefore, it was sold to her with the consent of all his three brothers.
11. The above discussed conflicting claims are to be resolved in the present two suits.
12. On 19-3-1989 this Court framed issues in Suit No,696 of 1987 and on 16-4-1989 issues were framed in the connected Suit No,554 of 1987. On 24-11-1998 both the suits were consolidated and it was ordered that common evidence is to be led in both the suits with Suit No,696 of 1987 to be treated as the leading suit. On 27-9-2000 another order was passed in Suit No,696 of 2000 whereby all issues previously settled were curtailed down to three issues by this Court which were reframed as follows:--
(1) Whether the property was sold and if so whether the defendant No,1 has authority to do so?
(2) Whether the defendant No,1 had a valid and subsisting power to sell the property?
(3) Whether the power of attorney was cancelled after the sale or prior to the sale?
13. Issue No,1: The main controversy which needs to be decided first is whether any sale transaction has taken place on 20-8-1982 between Mrs. Kishwar Iqbal and his brother-in-law Zaki Khan or that the alleged sale transaction was a fraudulent attempt on the part of Zaki Khan in collusion with his sister-in-law Kishwar Iqbal with the sole intent to deprive the other brothers of their legitimate share in the house. The second question which needs to be decided is whether Zaki Khan lawfully and validly exercised power under the general power of attorney given to him by the rest of his three brothers. The determination of the remaining issues would depend upon determination of these questions first which are of vital importance for resolution of the controversy.
14. Mr. Saeeduddin Nasir, learned counsel for Mrs. Kishwar Iqbal has argued that sale agreement dated 20-9-1982 was executed by Zaki Khan at a time when he continued to act as attorney of all the remaining three brothers on the basis of power of attorney executed in his favour on 26-5-1977.
15. He further argued that the claim of Razi Khan that power of attorney was cancelled vide letter dated 4-8-1982 produced as Exhibit X-9 is not true. In support of this plea Mr. Saeeduddin Nasir argued that all correspondence between Zaki Khan and Razi Khan has taken place through registered letters whereas letter of cancellation of power, dated 4-8-1982 is said to have been dispatched under postal certificate. He maintained that dispatch of letter of cancellation, dated 4- 8-1982 as well its receipt and acknowledgment are managed and fabricated documents.
16. Mr. Saeeduddin Nasir further argued that a power of attorney cannot be revoked through a letter but it has to be revoked through a deed of cancellation written on stamp paper. He then argued that in any case power of attorney through letter was cancelled on 20-10-1982 by which time a binding contract had already come into existence.
17. Law does not require cancellation of power of attorney through a formal legal document such as deed of cancellation on stamp paper. The power stands revoked the moment it is communicated to the attorney through any mode.
18. Mr. Saeeduddin Nasir also argued that suit filed in 1987 for seeking specific performance in contract executed in 1982 cannot be declared as time-barred when Mrs. Kishwar Iqbal was handed over the possession of the house and section 53-A of the Transfer of Property Act preserves and protects the right of a purchaser who is given possession of the property as well.
19. This argument needs to be examined only if the answer to the first part of Issue No,1 is in the affirmative.
20. Mr. Saeeduddin Nasir next argued that Zaki Khan, Nusrat, who is widow of Anseri Khan and Umer Khan, the son of Anseri Khan have all filed common written statement supporting the case of Mrs. Kishwar Iqbal.
21. I have seen the written statement. It is signed by Zaki Khan as attorney of Nusrat and Umer Khan but as Umer Khan was minor at the time of filing of the suit, being born on 10-8-1983 and that no power of attorney could be executed by him and therefore, the power of attorney dated 8-6-1984 executed only by Nusrat, Zaki Khan, had no legal authority to plead the case on behalf of Umer Khan. Even the suit property has not been mentioned in the power of attorney dated 8-6-1984.
22. Therefore, no adverse orders can be passed with regard to Umer Khan's share in the estate of M.A.
23. Ansari Khan.
24. Mr. Saeeduddin Nasir next argued that Razi Khan and Rafi Khan ought to have filed suit for cancellation of sale agreement which has admittedly not been done. This argument is misconceived. It is only when a document has been admittedly executed and for certain legitimate reasons a party which is going to be affected by its existence seeks its cancellation that it is required to file suit for cancellation of document. However, when a document is claimed to be a product of fraud or forgery then mere declaration that it is product of such fraud or forgery is sufficient to nullify the legal effect of such document and there is no need to seek its cancellation.
25. In any case, what should not be lost sight of is that form of legal proceedings cannot take precedence over legitimate considerations of substance of a case. When the parties are aware of the controversy involved in a case and have been given opportunity to lead evidence on their respective stands then it matters not whether specific relief was sought in the plaint or not or whether specific plea was raised in the proceedings. If a relief or a plea is covered by necessary implication then omission to expressly take such plea or seek such relief would not disentitle a party to seek the requisite relief provided he satisfactorily establishes his case in evidence. Where a matter is even obscurely touched in the issues involved and evidence has been led on it then any objection to it would only be technical and has to be rejected. All that a Court is required to examine is whether the parties were aware of the questions involved in a controversy and have they lead evidence and on examining so it can either grant or reject the requisite relief depending upon the merits of the case.
26. Mr. Saeeduddin Nazir lastly argued in the alternative that this Court can pass decree to the extent of the shares held in the suit property by Zaki Khan and Nusrat as both of them have not contested Mrs. Kishwar Iqbal's claim. Mr. Saeeduddin is absolutely right. When a party fails in establishing its claim but if one of the opposing parties has admitted such claim then the party admitting the claim has to honour its admission to the extent of his share in the property. In the present case as both Zaki 'Khan and Nusrat have not contested the claim of Mrs. Kishwar Iqbal, therefore, Mrs. Kishwar Iqbal would become entitled to claim their shares in the house on the basis of their admission only to the extent of the shares which Zaki Khan and Nusrat held in the house. Zaki Khan held 25% share in the house and Nusrat inherited 148th share in the 25% share owned by late Ansari Khan. Therefore, Mrs. Kishwar Iqbal is to get the entire 25% share of Zaki Khan along with 1/8th share of Nusrat in the 25 % share owned by late Ansari Khan in the house irrespective of the fact whether she succeeds in establishing her claim raised in Suit No,696 of 1987.
27. Mr. Haleem Siddiqui more or less argued on the same lines as was argued by Mrs. Saeeduddin Nasir. In addition to the arguments of Mr. Saeeduddin Nasir, he maintained that though Razi Khan claimed that power of attorney was cancelled vide letter, dated 4-8-1982 but this letter was not filed with his written statement. This argument would become relevant only if the findings on the first part of Issue No,1 is in the affirmative.
28. Mr. Haleem Siddiqui while referring to the cross-examination of Mrs. Kishwar.Iqbal held on 28-10- 1999 then argued that in fact an offer of only Rs,4,20,000 was received and Mrs. Kishwar Iqbal purchased the house of Rs,12,75,000 and therefore, the house was sold for three times more than what was offered.
29. The offers for the house were received by the brother and not by Mrs. Kishwar Iqbal and none of the brothers have maintained that in 1982 an offer of only Rs,4,20,000 for a house on 2000 square yards off Shahrea Faisal was received. Therefore, the argument of Mr. Haleem Siddiqui that offer of Rs,4,20,000 was received is misconceived.
30. Mr. Haleem Siddiqui next contended that Razi Khan in paragraph 42 of his affidavit in evidence has stated that Zaki Khan has forcibly took over possession of the house in mid 1982 hence on such pleadings suit filed after five years is barred by time.
31. Mr. Haleem Siddiqui has not referred to any Article of Limitation Act to support his argument that suit filed for partition was ,time-barred. As the house in question is joint family property Article 127 16f the Limitation Act is attracted to the case in hand. In the case repo in...19-8-1-CLC5-g this Court held as follows:-- Even if I presumed that the two mines were joint family property and that the deceased plaintiff was entitled to a share in it as an heir, even then the period of limitation will be 12 years under Article 127 of the Limitation Act from the date when the exclusion became known to the plaintiff. The plaintiff has not been able to show that the deceased plaintiff became aware of her exclusion from the joint property only within 12 years of the filing of her suit."
32. In the present case admittedly exclusion took place in 1982 and the present suit was filed in 1987, therefore, it is well within the 12 years period provided in Article 127 of the Limitation Act.
33. Mr. Haleem Siddiqui next argued that all documents except letter dated 4-8-1982 purported to be cancellation of power of attorney, was sent by registered A.D. which proves, that it was fabrication.
34. He maintained that power of attorney was actually cancelled on 20-10-1982 as according to Razi Khan's own pleadings in paragraph 11 of his memo. of appeal to the Supreme Court the date of cancellation of power of attorney is shown as 20-10-1982.
35. Even if it is assumed that power of attorney was cancelled on 20-10-1982 this Court has to first examine the genuineness of the transaction which Zaki Khan claims to have taken place with Mrs. Kishwar Iqbal. In case this Court comes to the conclusion that the sale transaction dated 20-9-1982 itself is not genuine then the question whether the power of attorney was cancelled before or after the alleged sale transaction would be of no legal consequence.
36. In order to examine the genuineness of the transaction it is necessary to examine the documents produced in evidence by Mrs. Kishwar Iqbal. The first of such document is Exhibit 5/4 claiming to be the agreement to sell dated 20-9-1982. It is witnessed by one Mr. Fazal Rabi and Mr. Hashmat Ali Habib. Documents which are said to be receipts of payment were produced as Exhibits 5/6 and 5/9 and the allegeth acknowledgment of possession were produced as Exhibits 5/7, 5/10, and 5/11.
37. Exhibits 5/6 to 5/11 are witnessed by Sheikh Muhammad Suleman and Fazal Rabi. It has come in Mrs. Kishwar Iqbal's cross-examination that witness Sheikh Muhammad Suleman was her maternal-uncle having permanent residence in Lahore and witness Fazal Rabi was friend of Sheikh Muhammad Suleman having permanent residence in. Gujrat. Prom Exhibits 5/17 to 5/20 it has come on record that the third witness Mr. Hashmat Ali- Habib was counsel of Mrs. Kishwar Iqbal.
38. Thus, none of these documents have been witnessed either by any of the other co-owners or by their friend or relation or by a person who was from their neighbourhood or locality. Furthermore, none of the three marginal witnesses to the documents Exhibits 5/4 to 5/11 were examined as witnesses in support of Mrs. Kishwar Iqbal's case.
39. According to Mrs. Kishwar's own statement in her cross-examination both Sheikh Muhammad Suleman and Fazal Rabi died in - 1982. In spite of this statement surprisingly the title of Suit No,544 of 1987 shows that Sheikh Muhammad Suleman had filed this suit in his capacity as attorney of Mrs. Kishwar Iqbal. If Sheikh Muhammad Suleman was dead in 1982 then it means that plaint in Suit No,696 of 1987 was signed by some other person posing himself to be Sheikh Muhammad Suleman and therefore, Suit No,696 of 1987 itself was filed by an incompetent person.
40. Mrs. Kishwar Iqbal in her cross-examination has stated that Sheikh Muhammad Suleman's place of residence was Lahore whereas the title of the plaint in Suit No,696 of 1987 shows that the place of residence of Sheikh Muhammad Suleman is Gujrat. All this shows that very presence of Sheikh Muhammad Suleman at the time of execution of documents of sale or filing of the suit is shrouded in mystery.
41. It is also noticeable that of the three persons who appeared as witnesses in support of the plea that sale transaction of the disputed house has taken place in 1982, two of them were the party to the transaction itself i,e, Mrs. Kishwar Iqbal and Zaki Khan were obviously interested to prove their own case. The third witness was Mrs. Nusrat who was widow of late Ansari Khan. Now Mrs. Nusrat who remarried in 1985 and left the house inherited only 12.5% share in the estate .of deceased Ansari Khan. Therefore, the share of Nusrat in the house comes to about only 3.12%. No independent person from the neighbourhood or friend or relation of Khan's family appeared as witness in support of the plea that the sale transaction has taken place. Therefore, the statement of Mrs. Nusrat, would at best amounts to relinquishment of her own share which she inherited from Ansari Khan but it would certainly not prejudice the claim of the rest of the co-owners of the house.
42. There is another aspect to the alleged sale transaction. In pursuance of the alleged sale transaction dated 20-9-1982, Zaki Khan did not physically handed over the vacant possession of the entire house to Mrs. Kishwar Iqbal but claimed that barring one room the entire house was rented out by her to him on 13-11-1982 at a monthly rent of Rs,1,000. Such a claim is also not believable as admittedly when the house was rented out to Interhom Limited way back on 15-6- 1977 it fetched monthly rent at the rate of Rs,4,000 as is evident from Exhibit P.1/2, and therefore, to rent out the same house after five years for just one forth of the rent which the property fetched five years ago creates serious doubts about the entire transaction. Not only this, after the alleged agreement to sell dated 20-9-1982, open spaces of the house have been rented out to tenants exclusively by Zaki Khan himself who has also been dealings with them exclusively. It has also come in evidence that Mrs. Kishwar Iqbal who claims to have purchased the house, continued to live in London where she was permanently settled since 1972.
43. It is also to be examined whether sale consideration as claimed has actually changed hands. Mrs. Kishwar Iqbal who is permanent resident of England has stated that in 1982 when she came to Pakistan she brought only Pound Sterling 7,000, which amount at the exchange rate prevalent at that time was equivalent to Rs,1,50,000 only. No documentary evidence was produced to _show that Rs,11,75,000 which she claims to have paid to Zaki Khan in 1982 were withdrawn by her from any bank considering that such amount was quite hefty at that time and normally people do not keep such big amount at a place where they do not live permanently. Similarly, Zaki Khan has also not produced any document to show that he after receiving Rs,11,75,000 kept this amount or any part thereof in any bank. With regard to distribution of shares also Zaki Khan in his cross-examination has admitted that he does not possess any proof of payment when he states "I have no written proof for payment of the share to plaintiff in Suit No,544 of 1987".
44. There is also contradiction even as to the manner in which Zaki Khan claims to have made payment of Rs,2,50,000 to Razi Khan. Exhibit 10/1 described as "Office Order" and said to have been issued on 20-11-1982 from the office of Zaki Khan forewarns the staff of Zaki Khan not to allow entry of Razi Khan in the office as Razi Khan has taken away from the office the receipt of Rs,2,50,000 which Razi Khan executed upon receipt of his share. The purpose of producing "Office Order" dated 20-11-1982 thus, was to demonstrate that Razi Khan has himself acknowledged receipt of the amount of Rs,2,50,000. However, this plea of executing receipt is belied by Zaki Khan's himself when he claims that Razi Khan's share was paid to Ansari Khan and not to him directly. If Razi Khan's share was paid to Ansari Khan then where is the question of Razi Khan executing receipt as has been claimed on the basis of "Office Order" dated 20-11-1982. It is also to be noted that had the contents of "Office Order" dated 20-11-1982 been true then what is narrated in it ought to have been addressed to Razi Khan directly and not just to Zaki Khan's own office staff. The version of executing receipt as contained in "Office Order" is clearly belied by another statement of Zaki Khan when he in paragraph 3 of his written statement filed in Suit No,544 of 1987 states that he did not take any receipt for Rs,2,50,000 from Razi Khan. Thus, none of the pleas with regard to payment of Rs,2,50,000 to Razi Khan has been established through cogent evidence. When a person takes a false plea then there is every possibility that at different stages of pleadings he makes contradictory statements of a particular situation. This is exactly what has happened to Zaki Khan's plea of distribution of the alleged sale consideration. In fact it establishes the fact that there was no sale consideration available for distribution in the first place as the sale transaction itself did not exist.
45. Though late Anseri Khan's version has not come on record as he died in 1984 and suits were filed in 1987, however, reading Exhibits X/21 and X/22 which are letters dated 9-4-1983 and 3-3-1983 sent by Razi Khan to Anseri Khan and Exhibits P.1/41 and P.1/45 which are Anseri Khan's replies dated 25- 4-1983 and 18-5-1983 to Razi Khan, it appears that in response to Razi Khan's claim to the house, late Anseri Khan has not responded by asserting that Razi Khan had no right to claim any share in the house as it was sold with his consent in 1982 and he had taken his share through him. This further shows that even late Anseri Khan never maintained in his lifetime that sale transaction with regard to the house has taken place in 1982 between Mrs. Kishwar Iqbal and Zaki Khan.
46. In paragraph 6 of the affidavit-in-evidence filed by Zaki Khan, he has narrated the bitter relation between him and Razi Khan. When the relationship between Zaki Khan and Razi Khan were never cordial, then why Zaki Khan did not even care to get the agreement of sale signed by Razi Khan. He did not even obtain receipt from him to establish that he paid Razi Khan's share to him. In paragraph 5(7) of the written statement filed in Suit 544 of 1987 Zaki Khan has said that all brothers agreed to sell the house to Mrs. Kishwar Iqbal and, therefore, sale agreement was executed on 20- 9-1982. If that was so and all brothers were available, then why their signatures were not obtained on the sale agreement or any other document evincing the alleged sale transaction and why such was completed on the basis of power of attorney when admittedly attorney was exercising power in favour of a person who was his close relations. It is also surprising that when Razi Khan examined himself and denied the sale transaction, only one question was put to him in his cress-- examination by Zaki Khan's Advocate which was answered "Stamp paper was purchased in my name but not by me". No question was put to Razi Khan in his cross-examination on any of his assertions made in paragraphs 25 and 88 of the affidavit-in-evidence filed by him either, wherein Razi Khan has narrated material facts of his case. All this create serious doubts with regard to the very existence of the sale transaction. In this background what emerges is that no sale transaction has taken place in 1982 as has been claimed by Mrs. Kishwar Iqbal and Zaki Khan and the plea of such transaction was fabrication and afterthought in order to deprive other co-owners of their legitimate share and defeat the suit for partition.
47. The existence of a genuine sale transaction also becomes doubtful for the reason that total sale consideration is shown to be Rs,12,75,000 when the property was worth much more. It has been pleaded by Razi Khan that an offer of Rs,32,00,000 was received which was rejected by Zaki Khan for the reason that property was worth Rs,40,00,000 and subsequently another offer of Rs,40,00,000 was in fact received. This seems to be correct as in his cross-examination held on 11-10-2000 Razi Khan has stated as follow:-- ... I have advertised three times. I received the offer of Rs,32,00,000. This offer was before the advertisement and after advertisement it was Rs,40,00,000...."
48. No question was put to Razi Khan either by Mrs. Kishwar 's Advocate or by Zaki Khan's Advocate to deny that an offer of Rs,40,00,000 was received after the advertisement. Thus, Razi Khan's claim that the value of the house at that time was Rs,40,00,000 remained unrebutted in his cross- examination. The only question on the value of property was put to Razi Khan was by Advocate for Rafi Khan and that too was as follows:-- Question: what was the market value of the said property in the year 1982?
49. Answer: I had received a last offer of Rs,40,00,000 for this property.
50. The above evidence on the value of the house establishes the fact that price of Rs,12,75,000 at which Zaki Khan allegedly sold the house was not even near to the actual value of the house, which was Rs,40,00,000. Offer of Al-Rehman & Co. vide its letter, dated 25-7-1982 was produced as Exhibit P.1/37. In the facts and circumstances of the case the fact that transaction in question did not represent the actual price offered at that time further establishes fraudulent attempt on the part of Zaki Khan in favour of his close fiduciary relation i,e, Mrs. Kishwar Iqbal who was not only Zaki Khan's sister-in-law but also mother-in-law of his son.
51. In paragraph 1 of the plaint filed in Suit No,696 of 1987 Mrs. Kishwar Iqbal says: (1) that the defendant No,1 (Zaki Khan) is married with the elder sister of the plaintiff thus, they enjoyed good in-laws relations. While enjoying good relations legal notices are claimed to have been exchanged between Mrs. Kishwar Iqbal and Zaki Khan. These have been produced as Exhibits 5/17 to 5/20. It is also surprising to note that legal notices are said to have been exchanged in the year 1987 when admittedly in 1987 at least Zaki Khan was not an attorney of Razi Khan and Rafi Khan and had no power to respond on their behalf. Furthermore, legal notices are normally exchanged through post or courier service but in the case in hand the same are said to have been exchanged by hand through messengers. The plea of sending legal notices through messengers and not through post or courier service creates doubts about the very existence of such an exchange having taken place. It seems utter fabrication just to demonstrate existence of a valid and subsisting sale transaction which in reality did not exist. Thus, there was no genuine sale transaction and all has been fabricated in order to defeat the suit for partition.
52. In the present case Razi Khan and Rafi Khan have claimed that power of attorney executed in favour of Zaki Khan was cancelled as far back as 4-8-1982 i,e, much prior to the alleged sale transaction, whereas Zaki Khan claims that cancellation of power of attorney was communicated to him on 20-10-1982 when the sale transaction with Mrs. Kishwar Iqbal has already been entered into.
53. Where members of a family hold property in common and any member of such family is in occupation or management of the joint family property then such person stands in active confidence of other co-owners. Any exercise of power either in his own favour or in favour of his close fiduciary relation, whereby the joint property is claimed to have been sold with the consent of all other members, then the onus to prove such consent as well as good faith of the transaction is upon him. Unless consent as well as good faith, both are established, any transfer of property has to be regarded as nullity. In such cases even where Power of Attorney is executed by family members in favour of one of them, what needs to be examined is whether such power was exercised as a shield to cover-up fraudulent nature of the transaction.
54. In cases where a person holds a subsisting power of attorney which has not been revoked on the date of the alleged sale transaction entered into by the attorney in favour of his own or in favour of his near or dear one, even then such a sale transaction can be successfully questioned in a Court of law if it is established that it was a product of fraud and deceit. Thus, a sale transaction can always be nullified if it is proved that it was sham and based on dishonest intentions of a person who stood in active confidence of the owner of a property.
55. Mr. Zaki Khan has claimed that he obtained consent of all the brothers and admittedly all were living in Karachi when the alleged sale transaction is said to have taken place and yet surprisingly they were not made party to the transaction. This coupled with the fact that the other contracting party was sister-in-law of Zaki Khan and mother-in-law of Zaki Khan's son, it becomes all the more necessary to examine the bona fide or otherwise of the transaction particularly when co-owners were admittedly not enjoying good relations among themselves.
56. In the case of Maqsood Ahmad v. Salman Ali reported in PLD 2003 SC 31 it was held as under:--- "(17) Now adverting towards an important aspect of the case namely that when attorney holder intends to transfer the property of his principal in favour of one of his close relative he is required to take the consent of the latter. In this behalf reference may be made to the judgments reported in the cases of Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341 and Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and others PLD 2002 SC 71. In view of the law laid down in the cited judgments there is no need to discuss this aspect of the case in detail except observing that in such-like cases where it is alleged that attorney holder has committed a fraud in transferring the property of the principal on the name of his close relative the Court must construe the power of attorney strictly and examine the matter thoroughly following the principle of administration of justice to ensure that the person who has executed power of attorney in favour of his agent is not deprived from his rights including the financial matters arising out of the transactions which are carried out by the attorney on his behalf and also to examine whether the attorney holder has fulfilled his future obligations towards his principal or not."
57. The above principle was reiterated in the case of Jamil Akhtar v. Las Baba reported in PLD 2003 SC 494 in which it was held as under:-- "(8) It is a settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal. The plaintiff never resorted to any such permission and the registered power of attorney is silent about this fact in specific that the principal has allowed the agent to get the property transferred in his own name.
58. There is another aspect which needs to be examined i,e, the conduct of Zaki Khan during and prior to the present proceedings. His whole conduct brings to the fore his credibility. Zaki Khan has signed written statement in Suit No,696 of 1987 by posing himself as attorney of Rafi Khan though even according to his own pleadings power of attorney in his favour was cancelled on 20-10-1982.
59. Secondly he signed written statement on behalf of Umer Khan who was defendant No,5 in Suit No,696 of 1987 and was only 4 years old at that time. The dishonesty on the part of Zaki Khan is to such an extent that he even alleged misappropriation of his share and rents collected by Razi Khan from the tenant, though his share of rent was distributed by Razi Khan to Zaki Khan through cheques, receipts whereof were also acknowledged by Zaki Khan in his cross-examination. Zaki Khan in his cross-examination has admitted as follows: "I see six cheques Exhs.X-29 to X-34. The same were encashed by me. Voluntarily says that I had returned the proceeds to Muhammad Razi Khan".
60. Zaki Khan in paragraph 5(3) of written statement filed in Suit 554 of 1987 and in paragraph 9 of his A/E Zaki Khan says that disputed house was mortgaged with the bank for a loan of Rs,50,000 which amount was utilized by Razi Khan but he failed to repay the same and therefore, I paid the loan.
61. Whereas, in his cross-examination he says "I have no knowledge if Muhammad Razi Khan has ever obtained loan over the suit property.
62. In view of the above discussions, the Issue No,1 is answered in the negative. No real sale transaction has taken place between Mrs. Kishwar Iqbal and his brother-in-law M.A. Zaki Khan. The sale agreement, dated 20-9-1987 and all documents said to have been executed in pursuance of such agreement are product of fraud, deceit and abuse of the authority by M.A. Zaki Khan who was a person standing in active confidence of the remaining three brothers.
63. In support of his arguments Mr. Saeeduddin Nasir has relied upon cases reported as 1993 SCM R 428; 1999 SCM R 382; 1976 SCM R 379; 1992 SCM R 1265; 1994 SCMR 2209; 2210 and 2212; 1985 SCM R 1335; PLD 1988 (S) 22A; PLD 1968 (sic) 505B; PLD 1981 (sic) 175, EF; PLD 1964 SC 456; PLD 1984 SC 424; PLD 1999 (sic) 199 E& H; PLD 2003 (sic) 439F; 1992 MLD 1792 and 1793; 1986 M LD 1335; 2001 M LD 963G; 2003 MLD 293A, 294B, 1985 CLC 2263; 1991 CLC 2078; ABD, 2004 CLC 360 and 319 and 1999 YLR 676A.
64. However, in view of any findings on Issue No,1 that the sale transaction dated 20-91982 itself was sham and fraudulent, the case-law citied by Zaki Khan's Advocate becomes irrelevant.
65. Issues Nos,2 and 3 As I have held, while discussing Issue No,1, that no real sale transaction has taken place and that the sale agreement dated 20-9-1987 was a product of fraud and deceit, there is no occasion to give any findings on Issues Nos,2 and 3 as even an affirmative finding on Issue No,2 or any finding on Issue No,3 would not save the sale transaction dated 20-9-1987 from being declared as fraudulent.
66. The fact that even after the alleged sale transaction dated 20-9-1982 M.A. Zaki Khan, later M.A.
67. Ansari Khan and M.A. Rafi Khan continued to live in the house shows that house was treated as family house. No evidence was led to establish that M.A. Zaki Khan obtained consent of all the brothers to sell the house to his sister-in-law for Rs,12,75,000. No evidence was led to rebut the claim that the value of the house in 1982 was Rs,40,00,000. None of the three marginal witnesses to the documents of sale transaction produced in evidence as Exhibits Nos,5/4 to 5/11 were examined nor any independent person from the neighbourhood or friend or relation of Khan's family was examined to establish that real and fair sale transaction has taken place between M.A. Zaki Khan and his sister-in-law Mrs. Kishwar Iqbal. In fact Mrs. Kishwar Iqbal and M.A. Zaki Khan miserably failed to establish that any consideration changed hands. Even the pleas with regard to distribution of sale consideration were riddled with contradictions. All this goes to show that the transaction dated 20-9-1987 with regard to the sale of the house by M.D. Zaki Khan to Mrs. Kishwar Iqbal in reality never took place what to speak of lawful exercise of power under power of attorney executed in favour of M.A. Zaki Khan.
68. In view of the findings on the issues involved in the case, I partly decree Suit No,544 of 1987 in favour of the plaintiff Mrs. Kishwar Iqbal and declare that on the basis of admissions on the part of M.A.
69. Zaki Khan and Mrs. Nusrat both, Mrs. Kishwar Iqbal has become co-owner in the suit property only to the extent of 25% share held by M.A. Zaki Khan and 1/8th share held by Mrs. Nusrat which she inherited from the 25% share of late M.A. Ansari Khan. Mrs. Kishwar Iqbal shall hold such shares in the suit property to the extent stated above jointly with Razi Khan who owns 25% share, Rafi Khan who owns 25% share and Umer Khan who owns 7/8th share out of late Ansari Khan's 25% share.
70. The Suit No,544 of 1987 for partition and mesne profits is also decreed. Zaki Khan is liable to pay mesne profits to Razi Khan for depriving Razi Khan the use and occupation of his share in the house at the rate of Rs,5,000 per month with effect from September, 1984 i,e, three years prior to the filing of Suit No,544 of 1987, till the disposal of the suit and shall further pay mesne profits at the same rate till the suit property is partitioned or alternatively sold.
71. Nazir of this Court is appointed Commissioner who shall take possession of the suit property. Mrs. Kishwar Iqbal and M.A. Zaki Khan are directed to hand over all title and other necessary documents pertaining to suit property to the Nazir within 30 days. Nazir shall first examine the possibility of dividing the property in proportion to the shares of the respective parties and hand over divided portions to the respective share-holders. If Nazir comes to the conclusion that no I permission would be accorded by the Society to divide the suit property in four portions then the he shall sell the same and distribute the sale proceeds among the co-sharer according to their respective shares. The parties shall be free to place before the Nazir for his consideration any offer which they may be able to procure privately. Any of the co-sharers shall also be entitled to match the highest offer received by the Nazir and get the property transferred in his name. Nazir shall be fully empowered to execute the sale-deed in favour of successful purchaser.
72. To sum up, Suit No,696 is partly decreed in favour of Mrs. Kishwar Iqbal to the extent of the 25 per cent share held by M.A. Zaki Khan and 1/8th share of the Mst. Nusrat which she inherited from in 25% share of late Asnari Khan. The remaining shares in the suit property are jointly owned by M.A. Razi Khan to the extent of 25% share, M.A. Rafi Khan to the extent of 25% share and Umer Khan son of M.A. Ansari Khan to the extent of 7/8th share in the 25% owned by late Ansari Khan.
73. Suit No,554 of 1987 for partition and mesne profits is also decreed. Zaki Khan is liable to pay mesne profits to Razi Khan for depriving Razi Khan the use and occupation of his share in the house at the rate of Rs,5,000 per month with effect from September, 1984 i,e, three years prior to the filing of Suit No,554 of 1987, till the disposal of the suit and shall further pay mesne profits at the same rate till the suit property is partitioned or alternatively sold. Office is directed to prepare preliminary decree for partition.