1. ' MRS. YASMIN ABBASEY, J.--- By this common judgment we intend to dispose of the above appeals as common question of facts and law arising in between almost the same parties are entailed therein.
2. ' Facts leading to these High Court appeals are that in 1967 property bearing No,33-B, Block-6, P.E.C.H.S., Sharah-e-Faisal, Karachi was gifted by late M.A. Naqi Khan to his four sons viz. M.A. Zaki Khan, M.A. Razi Khan, M.A. Rafi Khan and M.A. Ansari Khan in equal shares. After death of M.A. Naqi Khan in 1976 two power of attorneys were executed by his successor in favour of M.A. Zaki Khan and M.A. Razi Khan sons of M.A. Naqi Khan.
3. ' In 1977 premises was rented out to Interhom Limited. After handing over its vacant possession by them it was occupied by M.A. Zaki Khan (hereinafter referred as appellant). In 1982 all the co- owners took a decision to sale out the property therefore, offers were called through brokers as well as by publicizing advertisements in newspapers. It is alleged by M.A. Zaki Khan (hereinafter referred as respondent No,1) and respondent No,2 that taking benefit of the power of attorney executed in 1987 appellant entered into an agreement of sale in favour of his sister-in-law Mst. Kishwar Iqbal respondent No,6 for a total sale consideration of Rs,12,75,000. Receipt of part payment of sale consideration to the extent of Rs,2,50,000 and a document purporting to hand over possession of premises in question was also executed on 20-9-1982. Challenging the execution of agreement of sale of 20-9-1982 it is pleaded by respondent No,1 that on 4-8-1982 he had revoked the power of attorney existing in favour of appellant, therefore, the sale agreement dated 20-9-1982 is not a valid document.
4. ' Eventually in September, 1987 respondent No,1 filed a Suit bearing No,554 of 1987 for partition of property. Following thereof in November, 1987 Mst. Kishwar Iqbal on the basis of sale agreement, dated 20-9-1982 also counter filed a suit bearing No,696 of 1987 for specific performance of contract.
5. ' Respondent No,1 in his written statement to Suit No,696 of 1987 has denied the execution of any sale agreement and termed it to be a product of fraud committed by appellant and Mst. Kishwar Iqbal, who apart being sister-in-law of appellant is also mother-in-law of appellant's son, which postulates that respondent No,1 and other co-owners were attempted to be bereft of their rights by executing sale agreement, although no such transaction had ever taken place nor sale proceeds as deposed by appellant and Mst. Kishwar Iqbal, respondent No,6, was ever moved on from Mst.
6. Kishwar respondent No,6 to appellant.
7. ' Assuming the case of the appellant that power of attorney in his favour was in existence at the time of sale agreement, then also it is amazing that in spite of an admitted offer of Rs,32,00,000 appellant preferred to accept and execute sale agreement just for Rs,12,75,000 without taking consent of co-owners particularly when relation in between appellant and respondent No,1 were not on good terms.
8. ' It is also worthwhile to note that both witnesses of sale agreement belonged to Lahore and Gujrat.
9. Out of them one namely Sh. Muhammad Suleman is maternal-uncle of respondent No,6, and other witness Fazal Rahim is a friend of Sh. Muhammad Suleman. At no stage any sort of acquiescence or approval seems to had been taken by appellant from co-owners of property before entering into agreement.
10. ' Anyhow, to the least, if it is taken that there was any sale' agreement, which is subject-matter of this dispute, was entered into burden to prove such agreement was on the appellant and respondent C No,6, which apparently they have failed to discharge. None out of two attesting witnesses was produced to prove their signature on alleged sale agreement. Law as laid down in Article 79 of Qanun-e-Shahadat Order is imperative and does not admit any relaxation except as provided in the preceding Articles 80 to 82, construction of Article 79 of Qanun-e-Shahadat Order is of mandatory nature and if a D document required by law to be attested is used to prove a transaction then it is the bounden duty of a party relying on that document to produce those attesting witnesses. Reference can be made to Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395 and Sana Uilah and another v. Muhammad Manzoor and another PLD 1996 SC 256.
11. ' Nevertheless by making a statement that both attesting witnesses had expired in 1982, appellant and respondent No,6 has tried to absolve from their responsibility, but filing of Suit bearing No,696 of 1987 by Mst. Kishwar respondent No,6 through one of attesting witnesses, as her attorney viz. Sh.
12. Muhammad Suleman is an ex facie proof of false statement made by her of his death in 1982, for the explicit reason bestlE known to respondent No,6.
13. ' Under these circumstances case of respondent No,1 is that it was a sham game played by appellant and respondent No,6 to deprive him and other co-owners from their legal right in the property needs consideration and appears to be weighty. According to them as soon as he came in knowledge of it, a notice dated 4-8-1982 was served by him through registered post on appellant intimating that power of attorney executed in his favour has been revoked.
14. ' As to the last proposition, if it is assumed that the power of attorney was in existence in September, 1982 then also legal requirement persists to have a consent of co-owners particularly while dealing with the sale of property jointly owned and when personal benefit is involved therein.
15. Section 215 of Contract Act, would be relevant to quote which specifies that if an agent intends to enter into any agreement for his own benefit, he is required to take the consent of his principal and such principal has a right to repudiate the said transaction, if it is proved that certain material facts were dishonestly concealed from him by the agent. For proper appreciation section 215 of Contract Act is reproduced as under:-- "215. Right of principal when agent deals, on his own account in business of agency without principal's consent.--- If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him."
16. ' Discussing the rights acquired by an agent as embodied in section 215 coupled with section 188 of Contract Act, prescribing the limits of agent to perform any act' as authority, it is observed in the case of Wali Muhammad v. Muhammad Ibrahim and others PLD 1989 Lah. 440, which reads as under:-- "215. It is elementary' principle of agency that relationship between the agent and the principal is very delicate and of a high trust. In this relationship, the agent occupies the position of dominant influence. He is not permitted to make a transfer of the property of the principal in his own favour or in favour of his associates without the consent of his principal. This proposition came into consideration in Mathra Das Jagan Nath v. Jiwan Mal Gian Chand ILR 1928 Lah.
17. 7."
18. ' Despite the proposition of, law and letter of 4-8-1982 of respondent No,1, it is contended by learned counsel for appellant that as it was not communicated to appellant, therefore, appellant under the attorney was empowered to execute sale agreement. We regret to say that the argument of learned counsel does not appear to be convincing because relation in between executor and executant of a power of attorney is of fiduciary nature and it is expected that act of holder of it will not be adverse to the interest of executant specially in the I circumstances where the persons having interest in the property are his real brothers and are also residents of same city.
19. Observation of Honourable Supreme Court of Pakistan in Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341 would be very much beneficial in this context, wherein it is observed that:- " .... Implied authority to alienate property, would not be readily deducible 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.
20. ' 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 transaction."
21. ' Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31 and 1987 SCMR 1009 can also be referred.
22. ' In view of above discussion we hold that execution of sale agreement in fact was a hoax tried to be imposed on rest of the co- J owners by appellant in the capacity of attorney just to deprive them from their lawful share in the property.
23. ' The upshot of the above discussion is that both the High Court Appeals filed by appellants M.A.
24. Zaki Khan and Mst. Kishwar Iqbal are hereby dismissed. These are the reasons for the short order