1. MS. SOOFIA LATIF, J. --- The plaintiff has filed this suit for declaration, cancellation and permanent injunction against three, defendants.
2. It is desirable to state briefly certain facts giving rise to this litigation which are that the plaintiff is the owner and occupant of building comprising ground plus three floors on Plot No. 1588-A, Khudda, Lyari Quarters, Karachi. He having friendly relations with the defendants Nos. 1 and 3 helped them financially in their need and put trust on them, appointed defendant No. 1 his Attorney to sell the property on his behalf as the plaintiff had no time to deal with the property dealers or prospective buyers. He thus trusted the defendants Nos. 1 and 4 and assigned the job of selling the property. According to the plaintiff the defendants Nos. 1 and 4 betrayed his trust and defendant No. 1 fraudulently got conveyance, deed registered in ,the names of defendants Nos. 2, 3 and 4. They also prepared a forged receipt forging his signature in order to satisfy the Sub- Registrar. Thereafter they approached the Deputy Director, Land Revenue, Lyari Town, Lea Market, Karachi for mutation and from where he came to know through some known person about the said transaction, thereafter, he acquired photocopies of the Sale- Deed, Power-of-Attorney and Receipt.
3. He also informed the Deputy Director, Land Revenue vide letter dated 27.9.2003 through his Advocate to the Director Land Revenue raising objections to the mutation. According to the plaintiff the sale/conveyance deed dated 30.7.2003. Is fraudulent as the value of the property is more than Rs. 40,00,000/- but in the conveyance deed value shown as Rs, 6,50,000/- only According to him the physical possession is with him, neither he agreed to sell the property to defendanis Nos. 2, 3 and 4 in the sum of Rs. 6,50,000/- nor received any amount and the signature on the receipt is forged, therefore, the sale-deed is liable to be declared null and void and may be cancelled.
4. Plaintiff prayed for the following reliefs:- "(a) To declare that the conveyance deed registered No. 1085, dated 30.7.2003 as fraudulent, invalid and void/and/or to adjudge it cancelled.
(b) Mandatory Injunction directing the defendants Nos. 1 to 4 to surrender/deliver the document to the Nazir for its return to the plaintiff.
(c) Permanent Injunction restraining the defendants Nos. 1 to 4 from exercising any right over property as owner or attorney or dealing with the same in any manner.
(d) Permanent injunction restraining the defendants Nos. 1 to 4 from dispossession the plaintiff from the suit property forcibly. Cost of the suit be awarded."
5. Defendants were duly served and defendants Nos. 1 to 4 filed written statement jointly, wherein they challenged the maintainability of the suit. They denied the allegations levelled by the plaintiff in the plaint. However, it is stated by them that admittedly the plaintiff executed the General Power-of- Attorney in favour of defendant No. 1; which was registered and on the basis of registered Power- of-Attorney defendant No. 1 sold property in question to the defendants Nos. 2 to 4 as by virtue of such Power-of-Attorney he was authorized to enter into sale agreement in respect of the property in question. It is further stated that the total sale consideration in respect of the property was fixed at Rs. 24,25,000/- as per terms and conditions of the sale agreement out of which defendants Nos.
6. 2 to 4 paid Rs. 4,25,000/- to the defendant No. 1 as earnest money and agreed to pay the balance amount of Rs. 20,00,000/- at the time of registration of conveyance deed in their favour. When the conveyance deed was registered in favour of defendants Nos. 2 to 4 on 30th July, 2003 they paid balance amount of Rs. 20,00,000/- to defendant No. 1 and after payment of full consideration and executing the conveyance deed the defendants Nos: 2 to 4 became lawful owner of the property. It is further stated that the building in question is fully occupied by the tenant. Except Rooms Nos. 1 and 2 which are in possession of the plaintiff as an illegal occupant. In this regard the Nazir of this Court also inspected the property in question by the order of the Court and as per his report the building is fully occupied by the tenants except Rooms Nos. 1 and 2, which are in possession of the plaintiff. It is denied by the defendants that the market value of the property is about Rs.
7. 40,00,000/-. The defendants prayed for dismissal of the suit with costs.
8. From the pleadings of the parties following issues were settled by the Court:--
(1) Whether the suit is maintainable as against Defendants Nos. 2 to 4 or not?
(2) Whether the defendant No. 1 was appointed as duly constituted Attorney in respect of property being Plot No. 1588-A, measuring 110 square yards, Excise and Taxation No. AKI-168-36, situated at Khudda, Lyari Quarters, Karachi, under a registered Irrevocable General Powerof-Attorney registered at No. 89, Book No. IV, with the Registrar T. Division VI-A, Karachi on 28.9.2002 (M.F. Roll No. 53456/951, dated 9.10.2002)? If so, its effect?
(3) Whether the Attorney has entered into a fraudulent Agreement of Sale in respect of the subject property of the plaintiff with Defendants Nos. 2 to 4? If so, its effect?
9. ( ) Whether the conveyance Deed registered at No. 1085, Book No. I, with the Sub-Registrar T. Division, VI-A, Karachi on 20.7.2003 (M.F. Roll No. U- 53224/1397, dated 11.8.2003 executed by the Defendant No. 1 in favour of Defendants Nos. 2 to 4 is fraudulent, invalid and void and liable to be called for to be adjudged and cancelled?
(5) To what relief, the parties are entitled to?
10. The evidence of parties was recorded on commission, Plaintiff Muhammad Yousuf filed his affidavit-in-evidence, his examination-in-chief was recorded as Ex.P/2. He produced affidavit-in- evidence as Ex.P/3, certified/true copy of conveyance deed dated 30.7.2003 as Ex.P/4 and sale agreement dated 28.9.2002 as Ex.P/5. He was cross-examined by the learned counsel for defendants. Plaintiff also filed affidavit-in-evidence of his witness Suhail Mithani, whose examination-in-chief was recorded. He was also cross-examined by the learned counsel defendants.
11. The defendant No. 1 Irfan filed his affidavit-inevidence, his examination-in-chief was recorded. He produced his affidavit-in-evidence as Ex.D/2. Photostat copy of Irrevocable Genera! Power-of- Attorney as Ex.D/3. Photostat copy of Conveyance deed dated 30.7.2003 as Ex.D/4. He was cross- examined by the learned counsel for plaintiff.
12. Defendant also filed the affidavit-in-evidence of his witness Abdul Sattar Chowtawala, whose examination-inchief was recorded. He was also cross-examined by the learned counsel for the plaintiff.
13. Defendant No. 4 Hanif filed his affidavit-in-evidence on behalf of defendants Nos. 2 to 4 also, his examination-inchief was recorded as Ex D/7 and he produced the following documents:---, (1)
14. Affidavit in evidence Ex.D/8.
(2) " Photocopy of General Power-of-Attorney duly attested by notary. Public dated 19.5.2004 as Ex.
15. D/9.
(3) Photocopy of Sale Agreement dated 11.1.2003 duly'attested by notary public as Ex.D/10.
(4) Receipt dated 11.1,2003 as Ex.D/11.
(5) Photocopy of Conveyance Deed dated 30.7.2003 as Ex.D/12.
(6) Attested copy of letter dated 17.12.1998 as Ex.D/13.
(7) Approved site plan as Ex.D/14.
(8) Photocopy of letter dated 6.11.1990 issued by K.M.C. As Ex.D/15.
(9) Photocopy of search certificates dated 3.12.1998 and 22.5.1999 as Ex.D/16 and D/17 respectively.
(10) Photo copy of mutation dated 1.2.1995 as Ex.D/18.
(11) Photocopy of lease deed issued by K.M.C. Dated 13.9.1980 as Ex.D/19.
(12) Photocopy of paid challan as Ex.D/20.
16. Heard learned counsel for the parties and perused the record of the case very carefully. My findings on the above issues with reasons are as under:--- ISSUE NO. 1: In their written statement the defendants have challenged the mutation ability of the suit.
17. Mr. Yasin Azad Advocate appearing for defendants has urged that the suit against defendants Nog.
18. 2 and 4 is not maintainable as they are bona fide purchasers of suit property and after the execution of conveyance deed they became the lawful owners of the said property and as such no cause of action accrued against them..
19. Conversely, Mr. Lmran Ahmed ,the learned counsel for plaintiff has contended that as the defendant No. 1 being his attorney has sold the suit property to defendants Nos. 2 to 4 with mala fide intentions at a very less value than the market value, without his knowledge, therefore, such transaction is a voidable transaction and the suit against defendants Nos. 2 to 4 is very much maintainable under Section 39 of the Specific Relief Act as they are the main beneficiaries of the said transaction.
20. It is obvious from prayer (a) of the plaint that the plaintiff has sought the declaration that "to declare the conveyance deed registered No. 1085, dated 30.7.2003 as fraudulent, invalid and void/and/or to adjudge it cancelled."
21. By seeking such relief, in fact, the plaintiff wants to get cancel the conveyance deed dated 30.7.2003 registered in favour of defendants Nos. 2'to 4.
22. A suit for cancellation of instrument can be filed under Section 39 of the. Specific Relief Act which provides as under:--- "A person against whom a written instrument is void and voidable, who has reasonable apprehension that such instrument, if left outstanding, .May cause him serious injury, in its discretion, so adjudge it to be delivered up and cancelled."
23. From a plain reading of the provision of Section 39 of the Specific Relief Act, it reveals that under this section, the suit for cancellation of instrument would Tie through a declaration for cancellation of the instrument declaring it to be void and voidable. The 'instrument' has been defined in Chamber's English Dictionary 'a writing containing a contract a formal record. According to Blacks Law Dictionary, the word 'instrument' would mean 'formal or legal document in writing such as contract deed, will, bond, or lease. A writing that satisfies the requisites of the negotiability. It has been further defined that anything reduced to writing a document or a formal of solemn character, a writing given as a means of affording evidence. A document in writing which gives formal expression to a legal act or agreement, for the purpose of creating, securing, modifying or terminating a right."
24. From the contents of plaint in hand,' it is evident that suit for declaration, cancellation of sale-deed alongwith consequential relief for permanent injunction has been filed and according to Chamber's and Black's Law Dictionary the sale-deed is fully covered within the definition of instrument or document as the plaintiff by seeking such relief wants to get cancel the sale/conveyance deed. Of the property in question which was sold by the defendant No. 1 having power-of-attorney in his favour, admittedly executed :by the plaintiff authorizing him to sell. The property in question- to third party, therefore, the suit is covered by the provision of Section 39 of the Specific Relief Act and is maintainable against the defendants Nos. 2 to 4, who are beneficiaries of the said sale. Issue answered accordingly.
25. ISSUE NO 2: The execution of Irrevocable General Power-ofAttorney (Ex.D/3) is 'not disputed by the plaintiff as in the cross-examination he has clearly admitted that he got a general power-of- attorney dated 28.9.2002 registered before the concerned Sub-Registrar in favour of Irfan the defendant No. 1. He has also admitted that the aforesaid Power-ofAttorney was witnessed by Mr. A.
26. Sattar Chowtawala, Advocate and by one lmran. The title of this Power-ofAttorney shows that it was irrevocable power-of-attorney. Para-15 of this power-of-attorney further confirms this position. According to this power-of-attorney the defendant No. 1 was authorized to sell, transfer, mortgage and gift the suit property in favour of any person. In law, there are only two kinds of power-of-attorney, firstly special and secondly the general. The word "irrevocable" 'mentioned before or after the text cannot place any embargo to the powers of the executant to revoke it at any time.
27. It is apparent from the contents of General Power-ofAttorney- (Ex.D/3) that plaintiff had irrevocably appointed defendant No. 1 as his general attorney to deal with the property in question in any manner he likes, therefore, the defendant No. 1 as an agent of the former, acquired an interest in the suit property forming part of the agency within the meaning of Section 202 of the Contract Act as interpreted in PLD 1979 Karachi 22 and as such plaintiff cannot revoke the authority by his own act by investing the fact of the irrevocability of the general power-of-attorney in the deed itself and he also incurred this liability by the operation of law as contained in Section 202 ibid. There is- another aspect of the case that once the relationship between principal and agent is created by contract, the incident of the contract of agency are governed and have to be determined by applying the law of contract. In Pakistan such law is to be found in the Contract Act.
28. The terms of the power-of-attorney make the power-of-attorney irrevocable or impose restrictions or circumstances to the limitation within which the power of revocability should be exercised. But all those are matters within the region of contract, there is no reason to exclude the right of revocation which is recognized under Section 203 of the Contract Act. In the instant case admittedly in the suit neither the plaintiff has sought any relief for cancellation of power-of- attorney nor prior that he revoked it.
29. ISSUES NOS. v & 4: These issues being interconnected, therefore, for the sake of convenience I would discuss them together.
30. On the contrary the defendant No. 1 in his affidavit-inevidence has stated that on the same date i.e., 28.9.2002 when the power-of-attorney was executed plaintiff also executed the sale agreement in respect of the sale property in his favour and he paid Rs. 20,00,000/- 'to the plaintiff towards the sale consideration, at that time plaintiff had handed over all the original documents to him. In support of his evidence defendant Not 1 also examined A. Sattar Chowtawala as Ex.D/6, who has fully supported the defendant No.4 and nothing come in his cross-examination to shake his veracity. Defendant No. 4 examined himself and also on behalf of defendants Nos. 2, 3 and he confirmed that the defendant No. 1 sold the said property to them on the. basis of Power-of-Attorney in consideration of Rs. 24 25,000/- out of which Rs. 4,25,000/- were paid to the defendant No. 1 at the time of sale agreement and thereafter. The conveyance deed was duly registered before the concerned Sub-Registrar in their favour and the balance amount of Rs.
31. 20,00,000/- to the defendant No. 1 who had handed over all the original title documents in respect of property in question. He has further stated that after the execution of conveyance deed they became the owner of the said property.
32. "That the Vendor has this day received from .The Vendee that sum of Rs. 20,00,000/- (Rupees Tkenty Lacs only) towards full and final amount of sale consideration at time of proper deed."
33. PLD 1976 Karachi 316, it has been observed that it is well-established that a party may be debarred from pleading for or enforcing his right if he -had acquiesced in the breach thereof and waived his right.
34. 2004 CLC 1500 (a) it has been observed that where one party had made to the other party, a clear and unequivocal promise intending to create a legal relationship or to effect a legal relationship to arise in future that promise would be binding on the party making the same.
35. These principle clearly apply to the instant case as the plaintiff at the time of executing power-of- attorney also executed a sale agreement with the defendant No. 1 in sale consideration of Rs.
36. 20,00,000/- with a clear understanding that the property had been sold to the attorney as the plaintiff admitted his signature of the sale agreement (Ex.P/5). Admittedly plaintiff did not seek cancellation of the said sale agreement (Ex.P/4) if the same was executed by fraud and thereby the defendant No. 1 possess the right of ownership over the property. It appears that the plaintiff must be in need of money and had received the payment from the attorney by executing sale agreement in his favour, as such, the power-of-attorney in the present case was irrevocable, having been executed after receipt of Rs. 20,00,000/- as consideration. Reference can be made in case of Abdul Rahim v Mukhtar Ahmed and others, reported in 2001 SCMR 1488, it has been held that when the principal had received certain payment and executed the power-ofattorney, such power-of-attorney was irrevocable. The Honourable Supreme Court declined to interfere with concurrent finding of two Courts below.
37. 1992 CLC 2137; it has been observed that attorney at an agent of his principal subsequently acquiring an interest in property in question, forming part of the agency within the meaning of Section 202 of the Contract Act; 1872, principal was not competent to revoke authority given to general attorney. Principal and entailed his legal disability by his own act by inserting the fact of the irrevocabiy of the general power-of-attorney in the deed itself as also in the collateral agreement, thus, incurring liability by the operation of law as contained in Section 202 of the Contract Act, 1872. Cancellation deed of such power-of-attorney by the principal would have no legal effect and same could not operate against authority of general attorney itself.
38. Now question arises whether the defendant No. 1 on the basis of power-of-attorney (Ex.D/3) could have sold the property in question. The main contention of learned counsel for plaintiff is that the defendants Nos. 1 to 4 betrayed the trust of plaintiff and fraudulently got registered the conveyance deed in favour of defendants Nos. 2 to 4 without payment of a single penny to the plaintiff as sale consideration. The physical and constructive possession of the suit property was not delivered to the alleged purchaser as the plaintiff was collecting rent from this tenant and no notice of change of ownership was sent by-the defendants Nos. 2, 3 and 4 to the tenant and as such the conveyance deed was got registered by the defendant collusively and secretly and as such, the same is void and liable to be cancelled . In support of his contention the learned has relief on following laws:---
(1) NLR 1986 SCJ 430.
(3) PLD 1996 Peshawar 86.
39. Conversely, learned counsel for, defendants has urged that by executing general power-of- attorney in favour of the defendant No. 1 empowering him Ito deaf with property for the sale of the property in question at his own It is further urged that in the power-of-attorney there was no condition that prior to dealing with any purchaser the attorney (defendant No. 1) would consult/discuss with the plaintiff. It is further urged that on the basis of sale agreement (Ex.P/4) the attorney having some interest into property in question has sold out the property to defendant's Nos. '2 to 4 by executing conveyance deed in accordance with law, However on tnis reason that the property has been sod on a very less value than the market value, the saledeed executed in favour of defendants Nos. 2 to 4 cannot be cancelled. The learned counsel has relied on following case- laws:---
(1) PLD 1994 Karachi 194.
(2) 2001. SCMR 1488.
(3) 1992 CLC 2137.
40. Having regards to the contentions advanced by both the learned counsels and considering case- laws cited by them respectively and having found no substance in the contentions of learned counsel for plaintiff and the facts of . The cited cases being distinguishable as the plaintiff from his own evidence has not proved as to why and how the defendants betrayed his trust and got registered the conveyance deed in favour of defendant Nos. 2 to 4, which is void and liable to be cancelled. The case-laws cited by the learned counsel are totally distinguishable with the present circumstances of the case.
41. It appears from the record that as per Nazir report except two rooms the whole building is in possession of tenants and two rooms are in possession of the plaintiff. It proves that the possession was not handed over to the defendant No. 1 at the time of executing the power-ofattorney and sale agreement in his favour. The defendants have not disputed this fact.
42. Now I come on the point of execution of sale-deed in favour of defendants Nos. 2 to 4 by the defendant No. 1 being attorney of plaintiff. The fact that the defendants Nos. 2 to 4 are the lawful purchaser of property in suit in good faith for value is fully proved from the sale agreement (Ex.D/10), receipt (Ex.D/11) and subsequent registered conveyance deed (Ex.P/4). The amount of sale consideration of Rs. 24,25,000/- was also received by the attorney as he has admitted in his affidavit-in-evidence. There is no evidence produced by the plaintiff to prove the male fide and fraud of defendants Nos. 1 to 4. It has not been proved by the plaintiff that he filed any suit for cancellation of power-of-attorney or sale agreement (Ex.5). He has admitted in his cross- examination that no F.I.R. Has been lodged by him regarding such fraud committed by defendants Nos. 1 to 4. He has also not proved that he came to know about the sale transaction through publication of notice in daily Intekhab newspaper dated 24.9.2003 and moreover this fact does not appeal to common sense when the plaintiff admittedly had good terms/relation with the defendants Nos. 1 to 4. I cannot close my eyes from the all circumstances which manifestly indicate that the above circumstances were very well in the knowledge of plaintiff.
43. It is clear from the evidence that defendants Nos. 2 to 4 entered into an agreement of sale with the defendant No. 1 in good faith. There is also no evidence on record to show that defendants Nos. 2 to 4 were the relatives/friends of defendant No. 1. In fact th y had seen they irrevocable power-of- attorney and after taking reasonable care had acted in good faith and in view of PLD 1972 SC 25 he was not supposed to prove any other thing. It has been observed in the case of Sarsher A.I v.
44. Roberts Cotton Association Ltd. And another, reported in PLD 1963 SC 244 that third party who enters into a contract through attorney of the principal and is not aware any defect in his authority, the contract will nevertheless binding upon the principal under Section 237 of the Contract Act.
45. Section 41 of the Transfer of Property Act, 1882 intends to protect bona fide purchaser for value. It provides an exception to the general' rule that a transferor cannot transfer upon his transferee a better title than he himself has The reasonable care and good faith are necessary ingredients to invoke the provision of Section 41 (ibid).. The reasonable care means such care as an ordinary man of business or a person of ordinary prudence would take. It is a question of fact depending on the circumstances of each case. In the instant case, there was an irrevocable power-ofattorney in favour of defendant No. 1 when defendants Nos. 2 to 4 entered into an agreement of sale with him as a person of ordinary prudence, they would have accepted the validity of this power. They have paid a consideration which appears to be adequate in a situation like the case under consideration and in these circumstances. I am satisfied that they have taken reasonable care to ascertain that defendant No. 1 had power to make the transfer. The law protects and guards the interest of third party and unless it is shown that he acted in bad faith the sale-deed cannot be cancelled. It has been laid down in the case of Kanhaiya Lal and another v. Ganga Baksh Singh (AIR 1919 Oudh 201) that a person having a general power-of-attorney in his favour authorizing him to execute documents on behalf of the person executing the power-of-attorney can sign the sale-deed on behalf of later . In the instant case the defendant No 1 being attorney of plaintiff has sold the property in question to defendants Nos 2 to 4 by executing conveyance deed before Registrar under law which has been produced by the plaintiff himself as Ex.P/4. Defendants have proved its execution by their own evidence as well as its attesting witness DW-2 Abdul Sattar Chowtawala, whose evidence has not been shaken in their cross-examination. Nor the plaintiff has proved any mala fides on their part. In his cross- examination. On one hand the plaintiff is still showing full confidence and trust upon defendant No. 1 and on the other hand in his evidence he has alleged that the defendant No 1 with male fide intention entered into a fraudulent sale agreement with defendants Nos 2 to 4. Such statement of plaintiff blowing hot and cold together, supports the version of defendant No. 1 who on the basis of power got executed the conveyance deed under the law in favour of defendants Nos. 2 to 4 who have even otherwise proved that they are bona fide purchasers haying paid valuable consideration for the purchase of suit property. In such circumstances, the rights acquired by defendants Nos. 2 to 4 in the suit property, cannot be allowed to be defeated only for the reasons that they have purchased the suit property for less than the prevailing market price.
46. POINT NO. 5: In view of findings of above discussed issues. I therefore, hold that the plaintiff is not entitled to any relief claimed in the suit. Consequently the suit of plaintiff stands dismissed with cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.