' MRS. QAISER IQBAL, J -Mr. Sami Ahsan learned counsel for the petitioner has raised the following questions of law for determination
(1) Whether the Member (RS & EP) Letter No,IGS/BOR/99-878, dated 5-8-1999 is a precedent for respondents Nos.l and z for every case and under the circumstances as to the petitioner's case the Letter No,IGS/BOR/99-878, dated 5-8-1999 is not against the dictum of Honourable Supreme Court of Pakistan as laid down by the apex Court to protect the larger interest of the public and incorporated in the case reported as:-
(1) Mst. Ghulam Fatima v. Muhammad Din (2004 SCM R 618).
(2) Jamil Akhtar v. Las Baba (PLD 2003 SC 494).
(3) Haji Faqir Muhammad v. Pir Muhammad (1997 SCM R 1811).
2. Whether the respondents Nos.l and 2 have been conferred powers under section 21 of the General Clauses Act, 1897 to recall their own orders for registration if found to be illegal, against the dictum laid down by the apex Court in the matters hereinabove-mentioned.
' The petition emanates in the circumstances that petitioner is a Pardanashin Lady, an exclusive owner of the property bearing Flat No,B:304, 3rd Floor, Block-7, Ashi Shopping Mall and Heights, F.B.
Area, Karachi and was managing her property, but her deceased mother-in-law insisted for appointment of her brother-in-law, respondent No,6 as Registered Attorney as he wanted to obtain visa for USA, eventually her power of attorney was cancelled after due notice. The petitioner has resorted to file a Suit No,320 of 2003 in the Court of Senior Civil Judge, Karachi Central, which was defended by the respondent No,6 and eventually the suit was decreed. The petitioner through respondent No, 6 filed Execution Application No,7 of 2004, which was sine die adjourned for want of judgment debtor. After death of petitioner's mother-in-law in April, 2005, the petitioner and others have lodged a claim according to Muhammadan Law of. Inheritance^ -She also demanded her documents and the rent for property including the disputed flat in consequence thereof she served a notice upon the respondent No,6 for cancelling his Power of Attorney and informed the same to the respondent No,l. The respondent No,6 through his Advocate, in reply, set up the case that the Power of Attorney cannot be cancelled as the petitioner has entered into an agreement to sell for himself by way of execution of a Registered Conveyance Deed on 27-7-2004.
' Mr. Sami Ahsan learned counsel for the petitioner has contended that upon execution of sale- deed as consequence thereof recital part of the impugned Member (RS & EP) Letter No,IGS/ BOR/99-878, dated 5-8-1999 by the respondent No,6 acted in violation of the Jaw laid down by the apex Court and on account of non-availability of No Objection Certificate on the part of the petitioner, the respondent No,6 had acted illegal without being clothed with authority, had entered into a self-created Conveyance-deed. It is further pointed out that in agreement dated 19-2-2007, the respondent No,6 has accepted the petitioner as an exclusive owner of the property had agreed to get the property re-transferred in her name, which has not been complied with. It is also disclosed by the learned counsel for the petitioner that a F.I.R. No, 118 of 2006 culminating in Sessions Case No,709 of 2006 is pending adjudication in the Court of Illrd Additional Sessions Judge, Karachi South.
' In the comments filed on behalf of the respondent No,l, Sub-Registrar, Gulberg Town, Karachi, reveals that section 21 of the General Clause Act, does not apply when certificate under section 60 of the Registration Act, 1908 signed by the respondent No,l, which has attained the finality. The registered documents could only be cancelled by the competent authority under section 39 of the Specific Relief Act. The sale-deed in question was registered by the Sub- Registrar on the basis of notification dated 5-8-1999 issued by the Member (RS & EP), Board Of Revenue, Sindh. It is further averred that the Power of Attorney contains the power of sale of the subject property.
' We have considered the arguments advanced at bar, perused the record of the case. The opinion of the Member (RS & EP), Board of Revenue, Sindh, dated 5-8-1999 is reproduced hereinbelow:- ' No,IGS/BOR/99-878 ' Dated, the 5th August, 1999 ' To, ' The District Registrar, ' Karachi ' Subject: OPINION REGARDING REGISTRATION OF CONVEYANCE DEED ON THE BASIS OF POWER OF ATTORNEY IN FAVOUR OF ATTORNEY HIMSELF Mr. Shabbir Ahmed, intended purchaser of Property bearing No,11, Timber Pond, Keamari Road, Karachi has appeared before me regarding execution of sale-deed on the basis of power of attorney in favour of the attorney himself in respect of above said property, in which the Sub-Registrar Central Record Karachi has raised objection that the attorney cannot transfer the property on behalf of the vendor, in his own name.
2. I have perused an opinion in this respect rendered by Messrs A.K. Brohi and Company and have also consulted the Law Secretary according to which there is no harm if the attorney executes a sale-deed in respect of property in his own name and favour.
3. Accordingly the Sub-Registrar concerned should register the document in question which has already been presented before him without any objection in this respect.
(Sd.)
(Nisar Ahmed Siddiqui) Member (RS & EP)
Board of Revenue, Sindh ' A copy is forwarded to the Sub-Registrar, Central Record, Karachi for information and compliance.
(Sd.)
(Nisar Ahmed Siddiqui) Member (RS & EP)
Board of Revenue, Sindh ' The prime question regarding strict compliance of the Power of Attorney and alienation of principal's property through Attorney is to be seen in the light of the Power of Attorney, some of the paras. Are reproduced hereinbelow:--
1. ' "To possess, manage and look after the said property, to pay the KDA, KMC, dues and other relevant charges, to execute and admit to execution of any deed or deeds, Including sale- deed/conveyance deed, gift-deed, declaration of oral gift, mortgage deed, sub-lease deed, deed or addenda, relinquishment deed, lease deed, rectification, surrender deed, joint transfer declaration, gift etc. Etc. And present the same for registration before the Sub-Registrar or District Registrar of Karachi. To get the plan prepared, amended and approved by the relevant authorities, and to take water connection, sui gas, electricity and telephone connection on the said property.
2. To demolish any existing structure on the aforesaid property and to rebuilt whole or part of the same for the purpose of letting it on hire or otherwise in accordance with approved building plan.
To use it personally or to let out the same and collect rent and or other amount and pursue all tenancy affairs.
3. To sell, gift mortgage, charges, and to convey or transfer the said property by way of gift or otherwise dispose of in any manner whatsoever with or without building and structure at such time in such manner, for such consideration and to such person as may deem proper and desirable and for the purpose aforesaid to execute the necessary deed or deeds, instruments, sale, gift lease, transfer, rectification etc., and to appear before the any Registrar or Sub-Registrar, to admit execution and registration of the same, to acknowledge receipt of consideration, to pass proper and valid receipts, to deliver possession of the said property to the vendee, Donee if not already with him/her or them to effect mutation and change of names in favour of the such vendee/ donee/ transferee/ mutatee in the Government or order records.
4. To represent me in all matters and affairs relating to the said property before any Government Department, Officer; Authority Court (from lower to higher), KDA, KBCS, SOCIETY, KMC, HBFC, KESC, Karachi Sui Gas Company, Excise and Taxation Department etc. And to make any application, petition and representation before the aforesaid in respect of any concerning matter of the said property. To make payment on my behalf in my name of any kind of dues, taxes, premises, ground rent etc., pertaining to the said property to Government of Authority, concerned, in order to obtain Income Tax, Clearance Certificate, No Objection Certificate and permission for transfer/mutation of the said property. To have the said property transferred or mutation in all respect in any name and favour of any person or persons. To eject undesirable person(s) from the said property. To defend all cases from lower to higher Court(s) in all concerning matters and affairs relating to the aforesaid property. To obtain decree/judgment to appoint lawyer, advocate, to pay fees etc. To obtain all related document original or CTC from KDA or Registration Authority.
5. To appoint any other Agent(s) Attorney(s), Sub-Attorney(s) of his/her own choice with the same power as are conferred on her/him by me or with limited power to whom I shall also remain responsible in the same under and to remove any of them at any time as he/she may deem fit and proper."
' It is established law that the Power of Attorney is required to be construed strictly in accordance with the averments contained therein, it cannot be interpreted on the other assumption under such circumstances, expressly or by necessary A implications. Power of Attorney holder requires double capacity; one is as his person and the other as attorney, therefore, both the positions cannot be intermingled by executing any document in his own favour. In the case of Munir Hussain v.
Muhammad Aslam (PLD 2003 Azad J&K 16), the observations laid down are that the mere fact a man has two or more capacities does not give him to power to enter into a legal transaction with himself. Double capacity does not connote double personality. For instance, at common law a man could not sue himself, or contract with himself, or convey property to himself; and it made no difference that he was acting on each side in a different capacity. So rigorous was the rule that, if the same party appeared on both sides of a contract, even though accompanied by different parties in each case, the whole contract was void.
' On the other hand, learned Additional Advocate-General, Sindh in the given circumstances, has conceded to the effect that the impugned Notification issued by the respondent No,3 was not in accordance with law, dictum laid down by the highest Court hierarchy of judicial system.
' In view of above, the impugned notification is hereby set aside. The respondents Nos.1 and 2 are hereby directed to delete the entries from their registration of the sale-deed dated 27-7-2004, after issuing notices to the petitioner as well as respondent No,6.
' With the above observation, this order is directed to be communicated to the respondent No,3 and all the concerned, as the matters pertain in the larger interest of public.
' It is further directed to comply with the directions by the Sub-Registrars serving in Province of Sindh for seeking guidance and correction in the identical cases as that of the petitioner and the respondent No,6.
' With the above observations, Constitutional Petition No,D-1084 of 2007 is hereby allowed in the above terms and listed applications stand disposed of. A copy of this order shall be supplied to learned Additional Advocate-General, Sindh for compliance.