' MALIK SAEED EJAZ, J.---Brief facts of the case are that the petitioner being owner of the land measuring 23 Kanals, 15 Marlas executed a General Power of Attorney in favour of respondent No,4- Muhammad Aslam on 25-1-2006. The said document was got registered from the Sub-Registrar, Vehari, on 25-1-2006. After getting General Power of Attorney in his favour respondent No,4 sold the suit land to respondent No,3 through an agreement to sell dated 18-9-2006 against consideration of Rs,12,00,000 out of which Rs,9,00,000 were received by the Attorney/respondent No,4 on behalf of the petitioner. The remaining amount was to be paid by respondent No,3 at the time of registration of sale-deed.
2. After agreement to sell and before the execution of sale-deed, petitioner being actual owner transferred the land in dispute to respondents Nos.5 and 6 through oral sale vide Mutation No,1519 duly sanctioned by the revenue authorities on 19-12-2006 in favour of respondents Nos.5 and 6 and possession was also handed over to them by the petitioner.
3. After the sale of the said land to the latter purchasers, first purchaser/respondent No,3 filed suit for specific performance for execution of the agreement to sell made by the Attorney/respondent No,4 in his favour on 18-9-2006. The written statement was filed by Muhammad Aslam/defendant No,2 on 17-1-2007 by validly exercising powers given in the General Power of Attorney. While application of the petitioner to file independent written reply was declined vide order dated 4-6- 2007. The said order was assailed before the learned District Judge in appeal but the same was upheld, hence this writ petition.
4. Learned counsel for the petitioner put his attack by arguing that the petitioner is a Pardanashin old and illiterate lady who was defrauded by the real brother/respondent No,4 in executing of the General Power of Attorney, as she never empowered him to alienate the disputed land. The learned counsel further submits that the subject-matter land was not in the ownership of the petitioner when respondent No, 4 filed written statement in the suit for specific performance on behalf of the petitioner as her Attorney. As such, the Power of Attorney had ceased to have effect on the very moment when subject-matter land was alienated to the latter purchaser meaning thereby when written statement was filed by the attorney the subject-matter land was not in the ownership of the petitioner. As such, the written statement filed by him after such alienation of land amounts to be without authority. Further submits that the existence of the executor and the subject matter land in the name of attorney are essential for the validity of the power of Attorney and if any one of them is missing, such power of attorney shall have no validity. Hence the impugned judgments are liable to be set aside and the petitioner is entitled to file written statement in the suit on her own behalf by herself.
5. On the other hand, learned counsel for the respondents has vehemently opposed this petition by contending that the judgments passed by the learned Courts below have been passed after due appreciation of law and facts.
6. I have minutely gone through the record and considered the arguments advanced by learned counsel for the parties.
7. The application submitted by the petitioner, inter alia, suggests that she is an illiterate and Pardah-observing lady and the litigation is the result of mala fide, fraud and misrepresentation only to deprive her of the valuable property. Respondent No,4 while submitting stereotype written reply to the application has not mentioned anywhere that the petitioner is not illiterate or Pardanashin lady or no fraud in any manner was perpetuated. The proposition of law is too settled to admit any debate that the apex Court in more than one occasions reiterated that the lady apparently incapable of conducting cases, it would be in the interest of justice that she should be provided eminent assistance of an experienced lawyer. Extra cautions in the case of a lady and in particular "Pardahnashin" lady should be observed. The petitioner, in the instant case, suffers from the same disability. Accordingly, the Judge seized of the proceedings and attending to the lis, should adopt extraordinary care in the matter of females.
8. In this case, Mst. Phulmajeeran Begum alias Phullan Begum appointed Muhammad Aslam- respondent No,4 her General Attorney who executed an instrument in the nature of agreement to sell in favour of respondent No,3- Muhammad Riaz. The outright allegation of the petitioner is that the said power of Attorney was only for the management of the property because of the apparent disability on her part. The petitioner came out with the plea that she being an illiterate and Pardahnashin lady was kept under dark and it was not known to her that what variety of power the attorney was deriving on the basis of said instrument. This appears to be a sham transaction as no care was taken by the draftsman nor by the Sub-Registrar who attested the said instrument of General Power of Attorney. Apprehending mischief, petitioner had chosen to get the power of attorney cancelled through Abtal Nama. Here, I am constrained to hold that the petitioner still retains her power to alienate or transfer the property as principal even after the General Power of Attorney has been executed in favour of some one. On the face of record, neither petitioner's consent was taken in expressed terms nor she was paid any consideration. The conceding written statement was submitted by Muhammad Aslam-respondent No,4 only to his own benefit. Agent in such like cases possesses dominant influence and thus, could not be permitted to enter into any agreement to sell with a person of his own choice without there being an expressed permission by the Principal. In such situation, the Principal is justified to repudiate the deal.
9. The question of authenticity of Power of Attorney, directly came up for consideration in case titled, Wali Muhammad v. Muhammad Ibrahim and others PLD 1989 Lahore 440 wherein it has been held that Pardanashin lady and illiterate villager stand at par. Thus, section 16 of Contract Act was held applicable to transaction made by illiterate villager. Section 16 ibid provides that, "A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other". Bare perusal of the said provision of law shows in vivid terms that the Courts should take due cautions where the power of attorney by the B Pardanashin lady is involved particularly when the Principal deny the execution of the instrument, in a manner it was drawn or executed.
10. The arguments advanced by the learned counsel for the petitioner are well convincing and in any view the validity of power of attorney would be subject to the survival of its executor as well as the existence of the subject matter land in the name of the executor. The General Power of Attorney ceased to have effect without its revocation when the executor of the power of attorney/owner of the land in question dies. Similarly, if the subject matter land for which power of attorney was executed divested from the ownership of its executor, the power of attorney shall cease to have effect. As such, it is held that the existence of the executor and the subject-matter land in the name of executor are essential for the validity of the power of Attorney and if any one of them is missing, the validity of such power of attorney shall be ousted and such document shall cease to have effect.
11. The fate of the case of the petitioner is mainly depending upon the written statement, which she wants to file in the learned trial Court. In view of this situation when the petitioner came out with a specific plea that she never empowered the agent to enter into the transaction of sale both the learned Courts below have fallen in error by not permitting the Pardanashin lady to file the written statement.
12. In the light of the above discussion, the instant petition is accepted and the orders passed by the learned Courts below are hereby set aside. The petitioner is allowed to file written statement in the suit as defendant No,
1. The written statement already filed by the Attorney/respondent No,4 would deem to be filed as defendant No 2 and not as having been filed on behalf of the petitioner.
There shall be no order as to costs.
13. This order shall not prejudice either of the party of the suit or affect the merits of the case and the learned trial Court shall obviously determine the rights of the parties neither being prejudiced of this order.