' SYED HAMID ALI SHAH, J.- Muhammad Akbar Khan, deceased plaintiff instituted a suit for declaration, cancellation of mutations, injunction and restoration of possession on 22-6-1994. The case of the plaintiff as set out in the plaint was that he owned 116 Kanal and 4 Marlas agricultural land in village Akwai. He shifted to Okara and appointed Atta-ur-Rehman Khan defendant No,l as general attorney and executed three deeds of General Power of Attorneys on 19-12-1993, 4-1-1994 and 8-1-1994. The object of appointing the attorney was to sell the land and remit the sale proceeds to the plaintiff. The attorney, instead of selling the property as per covenant, gifted the same through impugned mutations Nos. 1413, 1414, 1418 and 1420 to close relatives including his son defendant No,2. Respondent No,12 (defendant No,12) the nephew of the plaintiff in this illegal exercise, actively connived with defendant No,l. It is also asserted in the plaint that impugned gifts were made without the consent and authority of the plaintiff. The plaintiff breathed his last, during the pendency of the suit and is survived by appellants defendants Nos. 1-A to 1-C.
' Respondents appeared before learned trial court, submitted written statements, controverted the assertions of the plaint and raised various preliminary objections. Respondent No,l took the plea that plaintiff sold the property in dispute and had received entire sale consideration from him and in lieu thereof executed three General Powers of Attorney?
2. Learned trial court, out of the divergent pleadings of the parties, framed ten (10) issues and recorded the evidence of parties. Learned trial Court, on conclusion of the trial, vide impugned judgment and decree dated 10-2-2000, dismissed the suit. Issues Nos.6 to 8 were decided against the defendants, while issues Nos.l to 3, were decided against the plaintiff. Issues Nos.3-A, 3-B and 5 were decided in favour of the defendants. Hence this appeal.
3. Learned counsel for the appellants contended that mutations of gift were sanctioned, on behalf of the appellants predecessor, by a general attorney. The gift is invalid as love and affection, which is the main consideration of gift, cannot be expressed through attorney. Learned counsel supported this contention by placing reliance on the cases of Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SGMR 818. Learned counsel contended further that before the transfer of the property, the consent of the principal was essential, which was not obtained. Respondent No,l has violated the provisions of sections 214 and 215 of the Contract Act, 1872. Learned counsel referred to the case of Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389 and contended that without permission and consent Of the principal, any gift by the authority on behalf of the principal, is void transfer. Learned counsel added that when the attorney has his own interest in a transaction then mention of consideration is essential and mandatory requirement. Learned counsel in his contention, found support from the dictum laid down in the case of Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCM R 85. Learned counsel went on to argue that evidence of D.W.5, D.W.7, D.W.8 and D.W.9, on the point of sale agreement between the plaintiff and defendant No,l, was out of pleadings and had to be ignored. It was submitted that Exh.D.1 to Exh.D-3 were not mentioned in written statement, nor the plaintiff was confronted with these documents; . The execution of these documents was denied and as such, by virtue of Article 140 of Qanun-e-Shahadat Order, 1984, these documents have no evidentiary value. Learned counsel pointed out contradictions in the evidence of the respondents regarding payment of earnest money etc. He referred to Article 102 of the Qanun-e-Shahadat Order, 19.84 and contended that oral evidence cannot be adduced to prove and dislodge the express stipulation in a document. Leamed counsel summed up his arguments with the contention that sale agreement of subsequent date is silent with regard to earlier document i.e, power of attorney, this fact alone is sufficient to conclude that subsequently false sale transaction was created through fake document.
4. Learned counsel for the respondents Nos.l, 2 and 7, stood behind the impugned judgment. He supported it with full vehemence and contended that suit is incompetent as it is admitted by P.W.1 that plaintiff was out of possession. In the absence of specific prayer for possession, the suit under section 42 of the Specific Relief Act, is not competent. He added that Exh.D-l to Exh.D-3 are unchallenged and without seeking cancellation of these documents, no other suit can proceed.
Learned counsel referred to the statement of P.W.2 who admitted that he was a witness of sale agreement, which was signed by him at his residence. Exh.D.1 to Exh.D.4 are of' one date. The witness admitted that sale agreement was executed in favour of defendant No,l. The witness further showed his inability to tell that power of attorney was executed by the vendor and also Iqrar Nama. Stamp vendor entered the witness box to prove Exh.D.1. He admitted that deceased plaintiff at the time of purchase of stamp paper was not present and signatures of Muhammad Akbar were taken at the time of purchase of stamp paper. D.W.2 (Sadiq Arain) another Stamp Vendor stated that he was scribe of Exh.D.2, whereupon the parties signed the document and plaintiff received consideration of Rs, 1/1/2 lacs. The witness was also scribe of Exh.D.3. Exh.D.3 was attested by D.W.3, Talat Najeeb, Advocate a notary public, D.W.4 stated in the witness box that the principal received the sale consideration first and thereafter the deed of General Power of Attorney was delivered. He further stated that payment of Rs, 1/1/2 lacks was paid in his presence. D.W.5 (Atta Ullah) in his statement gave full details of the transaction. His statement remained unrebutted and no question was put to witness that Iqrar Nainas are fake documents. D.W.6 was marginal witness of Exh.D.2, while D.W.5 and D.W.7, specifically stated that the payment was made by defendant No,l to the plaintiff in their presence. D.W.8, in response to suggestion, responded that Hibba was made to avoid the pre-emption. Learned counsel, after discussing in detail the resume of the evidence, submitted that the real transaction was sale. Defendant No,l made the payment of sale consideration. He then submitted that scribe acquires the status of marginal witness and supported this contention by referring to the cases of Muhammad Nawaz v. The State 2000 YLR 1933 and Nazir Ahmad v. Muhammad Rafiq 1993 CLC 257. Learned counsel referred to the case of Muhammad Younis v. Atta Muhammad and 2 others 1999 SCM R 2574 and contended that no limitation can be placed on attorney, on his power to execute sale deed and the attorney enjoys unfettered powers on behalf of his principal. Attorney can sell and transfer the property of the principal.
5. Heard learned counsel for the parties and record perused.
6. We will first take up the matter of proof of vital documents i.e, Exh.D.1 to Exh.D.3. Whether the respondents have succeeded in proving these documents, the respective evidence of the parties needs examination. The plaintiff appeared as P.W.1 and denied that he had authorized his attorney/respondent No, 1 to transfer the property through Hiba to respondents Nos.2 to 5. In his cross-examination, he had expressed ignorance regarding agreement of sale Ex.D-1. He was not confronted with the documents as well as his signatures. Although he made another statement suggestive of admission of the agreement Exh.D.1, but in the absence of any document specifically put to him such statement, does not carry much weight. Exh.D.2 and Ex.D.3 were not put to the plaintiff when he appeared as a witness. Clearly the provisions of Article 140 of the Qanun-e- Shahadat Order, 1984, have not been complied with and the alleged agreement of sale does not carry any evidentiary value.
7. The marginal witnesses produced by the respondents did not confirm the signatures on the agreement of sale Exh.D.1 as well. The document was not placed before them. Exh.D.2 as well as Exh.D.3 had not been proved, in accordance with Article 17 read with Article 79 of the Qanun-e- Shahadat Order, 1984.
8. The plaintiff admitted execution of three powers of attorney in favour of respondent No,l.
However, it is evident from relevant record that respondent No,l transferred the property in dispute in favour of respondent No,2 his real son and respondents Nos.3 to 5 his close relatives. It was imperative for him to have obtained consent of the principal before transferring the land to his near relatives. Transfer of property on the basis of power of attorney to closely related person by the attorney and impact of failure to seek consent and approval, remained under consideration in various cases. It was held in the case of Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389 as under:- "It is a settled law by now that if an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right. The consistent view of this Court is that if an attorney on the basis of power of attorney, even if "general" purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances."
The Honourable apex Court in the case of Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCM R 85, held further that:- "It is also a well-established legal preposition that a person, who has been validly authorized to alienate the property of another, he has to satisfy the court that at the time of entering into a transaction of sale of a property, the principal was not available and if there is ho such evidence then the transaction does not hold good unless it is established on record that the transaction has been made with knowledge and with consent of the principal while entering into general power of attorney."
' It has been held in the case of Dur Muhammad and l2 others v. Abdul Sattar 1996 CLC 1596 that in the event of a Hiba by the attorney, prior permission of the principal is necessary.
' The Honourable Apex Court, in the case of Fida Muhammad v. Pir Muhammad Khan (Deceased) through legal heirs and others PLD 1985 SC 341 held that:- "It is wrong to assume that every "general" Power of attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the power of attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduceable 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. The second aspect which needs caution on question of validity of acts under a power of attomey 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 it's 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 the subject, failing which the principal is at liberty to repudiate the transaction. "
9. The above survey of law, brings us to conclude that the attorney is tinder legal obligation to seek approval or consent of the principal, when the property of the principal is acquired by the attorney himself or for his own benefit or when such property is alienated to the persons closely related to the attorney.
10. Now we will advert to the question of validity of the gift through an attorney. The identical question came up for consideration before the Honourable Apex Court in the case of Mst. Shumal Begum v. Mst Gulzar Begum and 3 others 1994 SCM R 818, wherein it was held that:- "Love and affection cannot be expressed by an attorney on behalf of the donor. The sentiments which were the consideration for gift in the present suit must be established to have come from the donor. Gifts are voluntary and gratuitous in the present suit transfer from the donor to the donee.
The essentials of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee, where gift is made through a person authorized by the donor, the intention of donor to make the gift must be established in clear terms. In such a case, the authority given by the donor in favour of another person to make a gift of his property besides containing the power to make the gift must also clearly specify the property and also the name of the donee. In the case before us, the gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis of.The power of attorney executed in his favour by Said Nawaz cannot be upheld for two reasons: Firstly, the power of attorney executed in favour of respondent No,2 by the deceased Said Nawab did not contain any specific provision authorizing him to make a gift of his properties and; secondly, even if we assume that such power was given, there is no indication in the said document that the donor intended to make gift of all his properties in favour of the wife of attorney. "
11. The above dictum of the Honourable Apex Court has settled the controversy in clear and unambiguous terms. Respondent has entered into a transaction, with regard to property of the principal, without his consent and approval.
' A valid gift, in the case in hands, could only be made, if there had been an approval and consent of principal with regard to property sought to be gift with a specific mention of the name of the donee. Instant transaction lacks the element of clear and specific approval of the principal regarding gift, particulars of donee and intention of donor qua the specific property. Thus it has not been established that the donor had intended to transfer the property in question to donee as a voluntary or gratuitous act.
12. There is another angle to view this controversy. The impugned transaction was gift made on the basis of General Power of Attorney. The validity of instant transactions can be ascertained, only on the basis of deed of gift and the general attorney. The stance of respondents that the suit property was sold by the deceased plaintiff to the defendant No,l and the latter as the owner of the property, alienated it to respondents Nos.2 to 5 has no legal sanctity. It is settled law and needs no scholarly discussion that oral evidence can neither be led nor considered to prove that parties intended something different from the clear stipulation of the document. When the document is clear and speaks for itself then there is no question to consider oral evidence to show real nature of the transaction. Language employed in the general powers of attorney and the gift deeds, accurately define real nature of transaction between the parties. No evidence can be admitted or considered that the parties by executing general powers of attorney and the gift deed, meant to effect a sale in favour of respondent No,l. The right and obligations of parties can only be determined on the basis of these documents and no other meanings can be assigned to these documents.
13. In view of the above discussion, it clear that the plaintiff had challenged the transfer of property in dispute to respondents Nos.2 to 5 and subsequently to respondents Nos.6 to 11 on the basis of fraud and collusion and had also denied making of a gift of the property in dispute in favour of respondents Nos.2 to 5. Although the execution of three powers of attorney has been admitted by the plaintiff I but these were executed for different purposes i.e, sale of the land in dispute and transferring of sale proceeds to the plaintiff. Respondent No,l had transferred the property in dispute by way of Hibba to his son and other near relatives without obtaining prior consent of the plaintiff. Such transfer has no legal validity and is set aside.
14. For the foregoing, the transaction of gift is illegal and unlawful and subsequent transfers on the basis of gift, are also void. The appeal is accepted and the judgment of learned trial court is set aside and the suit of the plaintiffs is decreed as prayed for in the plaint, with no orders as to the costs.