' MUHAMMAD RAZA KHAN, J.--- The facts lying in the background of this civil revision are that Sultan Shah, the predecessor of the respondents, was the real brother of Firdoos Shah, the predecessor of the petitioners. The said Sultan Shah executed a power of attorney in favour of his brother Firdoos Shah for the purpose of management and disposal of his property. By exercising the said power of attorney Firdoos Shah executed the Deed No,375 on 10-8-1978 whereby he transferred his own landed property as well as the property of his brother Sultan Shah to his wife Mst. Tahira Bibi in lieu of her dower. The power of attorney was revoked in 1983. He did not challenge the said registered Deed No,375 of 1978. The deed was not by then incorporated in the Revenue Record. So in the year 1992 a mutation was entered which was rejected by the Revenue Officer. During the proceedings of appeal a compromise was allegedly effected whereby the right of Mst. Tahira Bibi to the disputed land was conceded. The Collector did not accept the compromise and directed the parties to approach the Civil Court for the resolution of their dispute. However, the Additional Commissioner accepted the compromise and consequently a mutation on the basis of the said registered deed was attested. Prior to the attestation of the said mutation the legal representatives of Sultan Shah had instituted a suit for the declaration to the effect that they were the owners of the property belonging to Sultan Shah and that the registered Deed No,375 dated 10-8-1978 was wrong, fraudulent and illegal, therefore, ineffective on their rights. There was also a prayer for perpetual injunction. This suit was decreed by the learned Civil .Judge on 3-5-1999. The appeal against the said judgment and decree was dismissed by the learned District Judge, Mansehra on 28-10-2002.
Hence, this revision petition.
2. The learned counsel for the petitioners agitated four points at the bar. Firstly, that the registered deed was a notice to the entire world and, therefore, after the attestation of a registered deed, it was the responsibility of the registration authorities to forward a copy of the deed to the Revenue Authorities for its incorporation in the record of rights. Secondly, that the delegation of authority to Firdoos Shah through a power of attorney has not been denied and the said attorney included the transaction of mortgage, sale, gift and exchange. So the exercise of the said authority was not restricted and the attorney could transfer the property to his wife in lieu of her dower and could also use the same for his personal account. Thirdly, that the revocation was not retrospective in effect because the contents of the revocation deed specifically mentioned that w,e,.f, execution of revocation deed the attorney shall cease to have any authority under the general power of attorney. He further pointed out that once the attorney had exercised the authority vested in him, the principal or his legal heirs can only sue the attorney for damages but the transaction shall be deemed to have attained finality. Fourthly, that the registered deed was executed in 19'78 and the power of attorney was revoked in 1983 but the said Sultan Shah who lived uptil 1992 or 1993 did not challenge the said registered deed during his life time. So the suit for possession as well as for declaration subsequently filed was barred by time. The learned counsel for the respondents, relying on various precedents argued that the execution of the power of attorney was not denied but the terms of the said authority has to be interpreted strictly, particularly when the attorney is transferring the property to a person of close fiduciary relationship. He further argued that the deed allegedly registered in 1978 was not brought on the Revenue Record till the death of the predecessor of the respondents which indicated mala fides of the predecessor of the petitioners.
With regard to the question of limitation he pointed out that the predecessor of the petitioners was admittedly acting as the attorney for his brother Sultan Shah, therefore, he was having the possession of all the property and so the permissive possession neither bars the suit filed subsequently nor does it constitute adverse possession. The learned counsel for the respondents Nos.3 to 7 argued, inter alia, that the alleged compromise before the Collector had neither been accepted by the said authority nor has been proved by the petitioners as the marginal witnesses of the said alleged compromise had appeared as D.W.4 and D.W.5 but they had neither confirmed the presence of the respondents-plaintiffs at the time of the said compromise nor did they affirm the signature or thumb-impression by the petitioners in their ' presence. Thus, the marginal witnesses had negated the alleged compromise.
3. Despite the fact that there was a concurrent finding of both the Courts in this case in favour of the respondents and particularly the learned Appellate Court has discussed all the aspects of the case threadbare but in addition thereto it has to be observed that the authority of an attorney needs further consideration in this case. The execution of power of attorney neither amounts to be divesting the principal of the authority over the subject-matter nor does it amount to absolute right of the attorney over the property as its owner. The attorney has to act as an agent of the principal.
He has to account for all the transactions. It was not sufficient to prove that the attorney had the authority to enter into a transaction but in addition thereto he was duty bound to explain that he has rendered true accounts of the transaction to the principal. If he enters B into a bargain of sale, he receives the consideration on behalf of the principal which has to be refunded to him and in case of an exchange, he has to explain the true value of the property received and that given in exchange. Similarly, the transactions of lease and mortgage should also be for the benefit of he principal. That is why, there is a restriction that the attorney has to take the principal in confidence before converting the property of the principal on the force of the power of attorney into personal use or for the benefit of his nearer relatives. In this particular case the amount of dower of Mst.
Tahira Bibi was. Rs,4,000. Firdoos Shah had transferred his own landed property, along with considerable property of Sultan Shah, to his wife in lieu of her dower. He had to justify the consideration of the land so transferred and had to pay the consideration thereof to Sultan Shah.
Section 215 of the Contract Act, provides for a situation where the agent deals on his own account in the absence of the agency, (i,e, the subject-matter of his authority), without principal's consent and the illustration (a) to the said section prescribes that "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 fact or that the sale has been disadvantageous to him". Thus, when the property belonging to Sultan Shah was being transferred by his attorney Firdoos Shah to his wife in lieu of her dower, it was incumbent on Firdoos Shah, firstly, to have sought the permission from the principal for such transfer as well cs for the consideration to be paid to Sultan Shah for such transfer. If the property of the principal is transferred against petty amount and there is no proof that even the said amount was ever transferred by the attorney to the principal, the transaction shall suffer from inherent defect of being contrary to law and the authority of the attorney. There can be no doubt that the said power of attorney was general in nature authorizing the predecessor of the petitioners to deal in the property in all manners of transaction but the consideration of each transaction was the right of the owner and the same had to be accounted fora In the case of accrual of rights of third party, the action of misappropriation of trust could be maintained whereas the right of third party being transferees for valid consideration with bona fides could be protected. However, in the case of transfer of the property by the attorney to a person closely related to him has to be strictly considered so that the position could not be misused by the attorneys. The intentions can be gathered from the fact that the said deed registered in 1978 was not incorporated in the Revenue Record till the death of the said Sultan Shah. There is no doubt that the registered deed amounts to notice to the public-at-large but in view of the relationship of principal and agent, the general trend of transactions by the attorneys may not come to the notice of the principal or anyone related to him unless such a transaction is incorporated in the Revenue Record where it can be noticed by everybody. In view of the position of Firdoos Shah, as is appearing from the evidence, the confidential execution of a deed can be presumed particularly when he can convince persons like D.W.3 and D.W.4 to attest a document which was allegedly executed by the persons not known to the marginal witnesses and who had not signed or thumb-impressed the deed in their presence and more particularly when one of them was admittedly a minor.
4. The revocation could not be retrospective in effect and, therefore, any transaction by the attorney in favour of a third party may be considered to be lawful and the right of a third party could be protected but the transfer of huge property against a petty sum of dower in favour of his own wife has to be scrutinized with caution and though the revocation may not operate retrospectively but such transfer shall not be approved unless the bona fides were established.
5. The question of estoppel and limitation is also nullified for the reason that the alleged compromise before the Collector was not proved through the evidence and the possession of the suit property with the predecessor of the petitioners being permissive one, coupled with the fact that he was also a co-owner being a real brother of Sultan Shah, therefore, the possession of a co- owner will neither amount to adverse possession nor shall it bar a suit for declaration and possession.
6. Both the Courts have properly appreciated the evidence and tightly applied the law and particularly the judgment of the learned Appellate Court is comprehensive and speaking one.
Finding no interference, the revision petition is, therefore, dismissed. No order as to costs.